Military Attorney: Charges Against Senator Mark Kelly Will Be Proven Bogus

A former U.S. military prosecutor says Defense Secretary Pete Hegseth is abusing obscure military law to punish Sen. Mark Kelly for urging service members to disobey illegal orders — a move the attorney called unprecedented, unconstitutional and dangerous for American democracy.

Timothy Stringham, a retired JAG officer and law-of-war expert who spent 16 years in the military, told Democrats of Greater Tucson on Jan. 12 that the administration’s action amounts to retaliation for protected speech. Kelly, a decorated Navy veteran, has been targeted despite retiring from the service 15 years ago.

“This administration is trying to take punitive action against someone who is innocent,” Stringham said. “They’re doing it 15 years after he retired.”

Transcript

JAG Attorney Timothy Stringham: Thanks much for having me on. I did spend 16 years in the US military. I finally got out last September. I spent eight years as a counterinsurgency expert in the US Army, and then eight years as an international law attorney. But for the US government, for the last eight years, it was my job to be an international law attorney, specifically a law-of-war expert.

Michael Bryan, Moderator: Let’s start by just addressing the elephant in Arizona, and that’s the fight between Senator Kelly and Pete Hegseth. Based on your experience, how’s that going to shake out? How’s that going to work out for Hegseth?

JAG Attorney Timothy Stringham: It’s super interesting. Just start at the beginning. When you join the US military, you agree to an additional set of laws that governs your behavior. We call that the Uniform Code of Military Justice, which makes it a crime to disobey a lawful order. So if someone gives you a lawful order and you disobey, that is a crime.

Now, if you read that article as it is written by Congress, as the President explains it, and as it is given to every member of the military, it says that it is an affirmative defense of an accusation that an order was unlawful—so the law’s very clear on this.

You can disobey an unlawful order, which is exactly what Mark Kelly said, but the rule is that you must disobey an unlawful order. And so now we have an administration that is trying to take punitive action against an individual who is innocent, still part of the military.

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But here’s where it gets fun. Hegseth is trying to take action against an individual for saying ‘follow the law,’ but they’re doing so 15 years after he retired. That is because when you retire from the military, you actually go onto a reserve roster, and you are still subject to the Uniform Code of Military Justice.

It is extremely rare to try somebody for acts that are committed while they’re in a retired status. That is because it is typically far more appropriate to try them in a civilian court. In this case, there is no chance that they could win a court-martial, none at all.

And instead, what they have done is found an arcane provision of the US Code, which says that when you retire, the Secretary of your branch is supposed to take a look at your personnel file and make sure that you are prepared to retire without any lingering disciplinary issues. This is so that if you are currently under investigation for a crime, you do not retire to escape punishment.

There is a provision at the end of the title that says that if you have already retired, they can review your retirement package to determine whether you correctly met the three-year requirement in the current grade or rank, or whether you should have retired at an earlier grade.

I was unaware of this part of that provision until the administration found this for Mark Kelly. So I called friends in the Navy who worked on this case and their lawyers, who actually gave this course of action to the Secretary of Defense. And I said, “Has this ever been used before? And they said, “I don’t know.”

And I said, “Do you think that your interpretation of this law is going to stand up in court, or do you think it’s going to be a violation of due process? Because Mark Kelly is being told that he will essentially appeal the Secretary of Defense’s own decision. It’s the only due process he’s being offered.”

And I asked the US government, “Do you think this is lawful?” And the answer was, “I don’t know.”

Michael Bryan, Moderator: It doesn’t seem likely to work out very well for the government. It’s certainly arguable that Senator Kelly was speaking in his capacity as an elected official and, therefore, would possibly be covered by the constitutional immunity for things that are said as part of your legislative immunity. Do you foresee any of that playing any role in this case?

JAG Attorney Timothy Stringham: It absolutely could. But the interesting thing is that the letter of censure that was given by Secretary Pete Hegseth to Captain Mark Kelly, because it’s given in his capacity as a captain, it says, and other statements you made with no context, no identification. This, in itself, is a violation of due process because, typically, if you’re going to charge someone with misconduct, you have to tell them what the misconduct is specifically, and provide the evidence you intend to use against them. So, even the accusation against Mark Kelly isn’t very clear.

But we have the speech-and-debate clause, which grants legislators immunity in their legislative capacity. You also potentially have the free speech clause, which is not just whether he had a right to free speech, but also whether governments’ actions would have a chilling effect on free speech. That is a consideration that previous Supreme Courts have considered in these cases. I don’t think that the effect on Mark Kelly is something that we need to be too worried about. I promise you, financially, he’ll be okay. But I do think we need to be concerned about an administration that was willing to choose a fight over the phrase ‘you can disobey unlawful orders,’ and I think that’s the issue that every citizen, including Republicans, ought to be pretty wary of in a country that’s always been skeptical of government authority.

Michael Bryan, Moderator: For an administration that has belly-ached about free speech, for them to pick this particular fight with this particular person seems hypocritical.

JAG Attorney Timothy Stringham: Absolutely an understatement. This is an incredible act of censorship.

Michael Bryan, Moderator: Let’s turn to Larry Bodine, our emeritus President. Larry, why don’t you speak up?

Larry Bodine: Tim, I really appreciate having a legal mind on this topic. Hegseth is talking about censuring Kelly. How would that lead to some sort of a tribunal?

JAG Attorney Timothy Stringham: Sure. The letter of censure is essentially not to yell at Mark Kelly or to shake your fist at him when he’s retired.

It is a US Naval captain who is of no consequence whatsoever. And so now, presumably, they’ve gone to the US Navy Personnel Command and handed them the censure, and said, “We would like you to take this into account and now reinvestigate Mark Kelly, and tell me if you still think his retired rank is to be Captain.” But then what they’re saying is that if you disagree with this, go ahead and appeal to the Secretary of Defense.

And this violates the principle of unlawful command influence in the military. If the Secretary of the Navy has been ordered to conduct this review from the Secretary of Defense and the outcome is predetermined, then it’s not a fair appeal, and you’re owed some kind of an appeal, some kind of due process.

And so I think what’s going to happen here is Mark Kelly is then going to have to sue in federal court, and then the federal court will have to say whether those due process rights were violated. Again, I think we have a constitutional issue here because I believe you have a due process violation.

I think the courts will hear the case, but this is something that’s going to grind along for a while. Like I said, I’m not aware of the Navy ever doing this, and I would bet this is something that drags out for more than a year.