Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Leah Litman: Great to be back.
Litman: Yeah, absolutely. So I guess just starting at a high level, you know, it’s no accident that, of course, this administration would think it is illegal to tell people to comply with the law because that’s, at bottom, what Secretary of Defense Pete Hegseth is doing.
So under the Uniform Code of Military Justice, the secretary of defense does have power over former service members, but there are real questions about whether Secretary of Defense Hegseth has identified a violation of any law. And second, even if he has, I think Senator Kelly would have very solid First Amendment defenses as well as legislative immunity defenses.
Litman: Right. Which they don’t want people to do because we have seen so many of their unlawful military escapades. Of course, we are all living through the aftermath of their invasion and capture of a leader of a foreign state.
SargentL Yeah, that is very obviously a problem for them. So Mark Kelly did this video, which was a response to this whole thing. I think we should listen to all of it. Here goes.
Sargent: That’s striking stuff on any number of levels, but one thing that interests me about it is how it sounds like it’s again aimed at members of the military. He’s basically saying in a subtle way here: This commander in chief really doesn’t have your best interests at heart. What do you think of that?
And we did see some examples of that during the first Trump administration, whether it was individuals who were part of the executive branch refusing to go along with Trump’s allegations of voter fraud or whatnot. And I think Senator Kelly is appealing to that same duty, that same obligation, but for a group of people that he was a part of and is a retired service member. And he’s trying to appeal to their sense of duty, loyalty, and obligation that other people have felt and acted on.
Litman: Yes, exactly. I mean, there have been so many calls for Democrats to actually put up a fight and be fighters. And I think Senator Kelly is very much displaying that. And, in part, I think what people want is these very clear and forceful statements about why the Trump administration is acting illegally and why what they are doing is so dangerous and problematic. And I think that’s very much what Senator Kelly is doing here.
Litman: I mean, there are no guts, right? It is very basically, right, just telling someone you are violating the law because of the things you have said and the views you are expressing. As I kind of joked about earlier, only it’s not really a joke, you know, they are saying it is literally illegal to encourage people to follow the law, right? That is expressing a different view about what the law is or isn’t, what it does or doesn’t say, than the Trump administration’s view, which is basically they can do anything they want and that makes it legal. Senator Kelly is saying, No, that’s not how it works.
So I think both of those defenses are very powerful and plausible ones that he has to block any effort to censure him or penalize him that Hegseth is doing. And I just want to add, I’m surprised that Secretary Hegseth has had the time to do all of this, given that he is apparently running or coercing Venezuela at the same time.
I mean, it seems to me that whatever the answer to that question—and I would love to hear you explain that—it also seems like it’s really about saying to other people: You better not criticize us, you better not call us out for illegal acts, because we’ll bring the weight of the law against you and so forth. What do you think of that?
So in theory, the secretary of defense can attempt to censure or penalize former service members. He can also do so not just for violations of military code, but also federal law. But as ever, the problem is their application of these theories or principles. Because no matter their authority, they can’t use it to violate someone’s First Amendment rights.
The problem was everyone else feeling chilled and scared and censoring themselves, preemptively complying, obeying in advance, and avoiding criticizing the administration and doing anything they were concerned the administration wouldn’t like.
Litman: I’m not sure I could identify a single source, but every individual who serves in the federal government is still bound by law, still takes an oath to support and uphold the Constitution. So when the Constitution and laws are violated, your oath is to the law, not to the men telling you to violate the law.
And so we want them to exercise their powers responsibly and with care, in compliance with the laws that attempt to constrain their awesome powers. It’s a cliché. I’ll recite it: With great power comes great responsibility. And we want them to take their powers seriously.
Litman: Yeah, I mean, Stephen Miller is running around on the media, making tours saying it’s all about force and strength. Who cares about law?
Sargent: Right. And I think that gets at the elephant in the room here, which you got at earlier, which is that Trump is giving illegal orders to the military—or very well may be. The bombings of the so-called drug boats in the Caribbean clearly look illegal. Now this attack on Venezuela looks illegal. It’s clearly unconstitutional to do this without Congress. It violates international law.
Litman: Of course. I would hope again that people are willing to say, you know, ‘Don’t violate the law when someone orders you to do so.’ Like, we just think of that as basic decency, right? Basic civic duty, basic responsibility of people who hold political power and political office and actually have a platform to make these claims heard. I can post on Bluesky as much as I want that people should follow the law. But when Senator Kelly and Senator Slotkin make videos, they have a greater platform. And that message is going to be heard by more people. And it carries more force.
In determining whether the president has certain authority, we look to see whether Congress has stood up and said, ‘No, he doesn’t,’ and acted against the exercise of the president’s authority. So these statements matter. They matter not just for basic rule of law reasons, but they matter formally, you know, under the law as well.
Litman: Yes, that’s exactly right.
Litman: So when, for example, international lawyers or international organizations ask, Did this country, did this person violate customary international law? they have to figure out what obligations under international law are. And those aren’t all just written down on a piece of paper or in a treaty or whatnot. Instead, they are norms that states basically affirmed and reaffirmed. How do they do that? They make statements in support of them. They say, That’s a breach of that norm. And that is something that helps to actually establish what international law is. So that’s one component.
If they did, then that’s some evidence that the president has that power. Whereas if they instead stood up and spoke out and say, No, like, you can’t order an invasion of a foreign country, seize a leader, and run the country, that’s evidence, right, that under our constitutional system of separated powers, the president doesn’t have that authority.
Trump doesn’t see himself as serving the American people in any real sense. He punishes parts of the country for not voting for him in all kinds of ways. In a way, he’s not even serving his own supporters, though he kind of doles out the spoils of governing to his people.
Litman: Yeah, absolutely. So we have seen examples of Donald Trump and his administration threatening to cancel funding in ways that harm Democratic-leaning states. We have seen him attempt to punish states that don’t do what he wants, like releasing an individual from Colorado imprisonment and incarceration when he said, I want the state to actually release that individual who was convicted of a crime. And so we have seen him gleefully punish entire swaths of people that he is nominally in charge of representing.
And that’s why service members have an obligation to the law and the public interest, not just to following the commands of one single very terrible, no good, very bad person.
Litman: I think this case is going to go nowhere and quickly. I think like any court that gets it is going to say, like, you can’t penalize him for expressing the view that what you’re doing is unlawful and that service members, right, should only follow lawful orders. And I would just be shocked if it came to any other resolution.
Litman: Yep, exactly.
Litman: Great to be here. Thanks again for having me.
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