Defense Secretary Pete Hegseth censured Sen. Mark Kelly this month, a step below a court-martial, on the grounds that Kelly's participation in a video calling on American troops to disobey unlawful orders was seditious and conduct unbecoming of an officer.
As a retired Naval officer, Kelly is subject to the Uniform Code of Military Justice (UCMJ), and a censure in this case would begin the proceedings of reducing his rank and pension. However, experts in military law scoff at Hegseth's accusations against the senator from Arizona.
Eugene Fidell, a senior research scholar in law at Yale Law School specializing in military law, called the Defense Secretary's claims "ludicrous."
“This is one of the odder and least defensible things that this administration has done," Fidell told Connecting Vets. “It is a ludicrous claim; there was nothing seditious about it. Hegseth has said much of the same before he was in the government."
Daniel Maurer, a retired Lt. Col. in the Judge Advocate General (JAG) and now Associate Professor of Law at Ohio Northern University, concurred with Fidell's assessment.
"The allegations are beyond the pale," Maurer told Connecting Vets. "They are ridiculous, they are not based on fact. The allegation of sedition and conduct unbecoming listed in the censure have no basis in fact."
Maurer described the Pentagon's actions censuring Kelly as not only abnormal, but "unjust, unfair, and unlawful."
Maurer and Fidell point out that if Kelly had actually run afoul of the UCMJ, then the Pentagon would have had him court martialed. Instead, they censured him despite the statute stating that retired members of the military can be court martialed for their activities in retirement, but they cannot be censured for anything they do after leaving active duty. Sen. Kelly has filed his own lawsuit against Hegseth, challenging the censure.
"He is not being court martialed because he didn't commit a crime," Maurer explained. "You don't give a letter of censure to someone who is committing sedition."
The real reason for the censure, Maurer said, is to humiliate a sitting Democratic Senator who has been vocally critical of the Trump administration.
“Kelly is going to win this case. It is a completely frivolous action on Hegseth's part that violates the statute on grade determinations, the First Amendment, and is the fruit of command influence by Trump," Fidell said.
As the case winds its way through the legal system from the Pentagon to District Court, Fidell and Maurer see Kelly retaining his rank and pay at the due to the Defense Department not following its own regulations about censuring retired officers.
"Only reason to do this is as in bad faith," Maurer added.