What did Donald Trump do today?

He lost another court battle to punish veterans for exercising their First Amendment rights.

Last November, six Democratic members of Congress released a brief video in which they restated a basic legal fact: military or government agents have both the right and duty to disobey illegal orders. If they don't, they are criminally liable for those illegal acts. Put another way, it is not a valid legal defense in the United States to say "I was just following orders," any more than it was at the Nuremberg trials.

The context of those lawmakers' statements was obvious: Trump has openly talked about using federal agents and National Guard forces to violate Americans civil rights and even interfere in elections. Trump's response at the time was to call for their execution on the grounds that stating the simple fact of the law was "SEDITIOUS BEHAVIOR."

Of course, there is no such legal case to be made, although Trump demanded that the Department of Justice try anyway. Earlier this week, Trump's political appointee and former Fox News commentator Jeanine Pirro failed to get a grand jury to indict the lawmakers. This is a humiliating rebuke: because prosecutors effectively conduct grand juries themselves, and because the standard required for an indictment is so much lower than what is needed for a criminal conviction, it is extremely rare for a grand jury to refuse to indict. In one year, it happened in 11 out of about 162,000 cases, or 0.0068%. 

But with no real hope of accomplishing anything more than creating a nuisance in court, Trump has also been trying a more theatrical approach to punishing elected representatives for speaking out against him. He ordered the Department of Defense to start an administrative proceeding that would retroactively reduce Sen. Mark Kelly's former military rank. Sen. Kelly (D-AZ) is a former astronaut and retired Navy captain. Reduction in rank is a severe and deliberately humiliating punishment, and almost never used against senior officers. (One recent example of a Navy officer whose conduct was so bad that it required a reduction in rank was Ronny Jackson, Trump's official White House physician and political protégé. Jackson, a former rear admiral, was reduced in rank to captain when an investigation revealed that he dispensed drugs, including amphetamines and fentanyl, in the White House without a prescription or keeping accurate records, and without proper examinations.)

Today, a federal judge issued a scathing preliminary injunction against the Department of Defense. In blocking Trump from reducing Kelly's rank, Richard Leon, a George W. Bush appointee, wrote that Trump's attempts to use military discipline to silence Kelly violated not only Kelly's right to freedom of speech, but his constituents' rights to have him able to represent their interests in Congress:

United States Senator Mark Kelly, a retired naval officer, has been censured by Secretary of Defense Pete Hegseth for voicing certain opinions on military actions and policy. In addition, he has been subjected to proceedings to possibly reduce his retirement rank and pay and threatened with criminal prosecution if he continues to speak out on these issues. Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces. Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so! 

…This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, "You don't need a weatherman to know which way the wind blows." To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!

Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years. If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!  
 

Why does this matter?

• The law is what the law says, not what Donald Trump wants it to say.   

• Going outside the law to punish people standing up for the law is about as authoritarian as it gets. 

• The only reason a president would be mad about someone telling soldiers they don't have to obey illegal orders is if he wanted to give soldiers illegal orders.