The following is the opinion and analysis of the writer:
Gerald Farrington
To the people of Arizona: Can we please just set aside our partisanship for a moment and muster a full-throated bipartisan defense of one of our own patriots who has devoted his life to the service of his country? President Trump wants to punish Senator Kelly for Kelly’s "truthful words."
By now, everyone must know that AZ U.S. Senator Mark Kelly and 5 congressional colleagues with military and intelligence backgrounds made a controversial video — a warning that unlawful and unconstitutional military orders can be and must be disobeyed. Trump called the speech “seditious” and said that Kelly should be executed.
Now, a federal grand jury has refused to indict the “Patriotic 6” on “trumped”-up allegations of “sedition.”
Previously, but recently, Secretary of War, Hegseth had censured Kelly and had taken steps to reduce his military retirement pay with a demotion in rank. The “Seditious 6,” MAGA pundits labeled them. The “Patriotic 6” should be given medals for valor and leadership.
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They needn’t defend themselves. The Constitution, the law, morality, and decency do precisely that. Many have said that the 6 patriots are protected by the First Amendment (free speech), the Speech or Debate Clause for members of Congress (Article I, Section 6, paragraph 1), and a constitutionally-prescribed oath to protect and defend the Constitution (Article VI, Clause 3).
Largely unreported, however, is the Incompatibility Clause, a constitutional provision that would prohibit the Trump-MAGA threat to bring retired Captain Mark Kelly back to executive-branch-military active duty status to court martial him for alleged sedition. Article I, Section 6, Clause 2 prohibits Kelly from serving in the executive branch while being a member of Congress. SCOTUS has never definitively ruled on this issue.
As sitting members of Congress, the Patriotic 6 also have a legislative and representative responsibility to the entire country and all of its people. They represent more than their constituents in their respective states and congressional districts. They make laws for the nation.
In addition, the Uniform Code of Military Justice provides that every person in military uniform is charged with carrying out lawful orders to protect and defend the Constitution of the United States, and in so-doing, to protect and defend the American people — its laws, institutions and values.
To fulfill this duty, there is a corollary — the same duty is to disobey unlawful and unconstitutional orders from military and civilian leaders, including the Commander-in-Chief and the Secretary of Defense. Otherwise, there would be no distinction between lawful and unlawful orders, and the Constitutional Oath prescribed in Article VI, Section 3 would be just words with no meaning. Either we have a “constitutional republic” or we don’t.
The difficulty for most members of the military is that they are neither lawyers nor people trained to know the difference between lawful and unlawful orders. The military leaders, however, have such training — in the constitutional and military requirements of the law — including military law embedded in the UCMJ.
When Senator Kelly and his 5 colleagues made the video about the duty of people in uniform to disobey unlawful and unconstitutional orders, their lawful message was directed at military leaders and civilian leaders of the military to remind them of their responsibility to the Constitution and the laws. And, their duty — “to protect the troops” under their command. It’s what leaders do.
Senator Kelly is such a leader — a retired decorated combat pilot, and astronaut. Warnings to us all, especially from leaders to military leaders, not only is leadership — it is heroic. It is patriotism at the highest level.
Kelly is decorated with military medals and patriotic service to his constitutional oath and to his country. Trump is decorated with gold, glitter, and grift in service to himself.
President Trump’s vicious attacks on Senator Mark Kelly and his five duty-driven congressional colleagues are redolent of Trump’s disgusting attacks on the life and legacy of former AZ Senator John McCain, and Trump’s disrespect for the Americans who gave their lives for their country in World Wars I and II. He called them “suckers” and “losers.” This from the brave patriotic “bone-spurs warrior.” Oh my, now we have a fearless-masculine-warrior role model for our children.
Maybe Trump just reserves his special disrespect for the dead whose values, in life, were noble self-sacrifice for America and the common good — and not just ignoble gilded self-interest. Only a coward speaks ill of the dead who cannot protest in defense of their valor. Only the living can do that on their behalf — the living who are not cowards.
But remember Trump wanted military veteran and hero Senator Kelly executed so he could properly disrespect a dead critic who could never again warn soldiers of their duty to disobey unlawful orders.
Strong aggressive leadership in our perilous time. “President Mark Kelly” sounds about right.
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Gerald Farrington is a retired community college professor of history, political science, and law and retired from the practice of law. He is a member of the Arizona Daily Star’s editorial advisory board.
