Sen. Mark Kelly Censured & 92-Year-Old Judge in Maduro Case

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1:45In mid-November, Democratic Senator Mark Kelly, a retired Navy captain, and five other Democrats, all who served in the military or intelligence services, released a video online in which they reminded U.S. troops they can disobey illegal orders. Right now, the threats to our Constitution aren't just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. The video garnered millions of views and President Trump's anger.

2:27On social media, he called the lawmakers traitors who should be arrested and put to death. And the administration is not giving up on the issue. Defense Secretary Pete Hegseth has issued a formal letter of censure against Kelly with plans to cut his military rank and dock his pension. Kelly, who served more than 25 years in the Navy, including 39 combat missions, said, quote, I'll fight this with everything I've got. And Monday night on Comedy Central's The Daily Show, the senator said the fight was not just about him. They're trying to intimidate all of us. Of course. Don't say something they don't like, and especially for members of the military, retired members like me.

3:14Keep your mouth shut or they're coming after you. They're going to take away your pension. So this is much bigger than me. My guest is Joshua Kastenberg, a professor at the University of New Mexico Law School. He was both a judge and a prosecutor in the U.S. Air Force. Josh, in the censure letter, Hegseth said that Kelly had directly attacked the legitimacy of military leadership and the lawfulness of their orders. But that didn't appear to be what was said in that video. Did you find anything objectionable in the video? No, I mean, first of all, with a certain degree, I would say, of political and legal savvy, everything that was said within the video is legally correct.

4:01Military personnel have a duty not to follow unlawful orders. This is fundamentally different than explaining one's idea of what an unlawful order is or what a lawful order is. They put it out there as what some have characterized as rage bait. That's not my characterization, but some have, including in the Senate. So Mark Kelly, as a retiree, is subject to recall and court-martial and the like. The UCMJ, the Uniform Code of military justice, the governing law of the military does have a controversial jurisdiction over retirees. And it came into being in 1861 during an emergency session of Congress.

4:50It is very, very rare that someone is brought back on active duty and court-martialed or disciplined, and usually only for things that occurred while they were on active duty or things that directly affect the military like some retired Marines selling cocaine on base to active duty Marines. So you see it like that. So this was a highly unusual step to begin with. But what made it more unusual is that Senator Kelly did nothing wrong and he's a sitting United States Senator. And correct me if I'm wrong, but we have three independent branches of government. And the reason our government was structured in the way it was, was to prevent a tyranny from occurring, such as happened in England when Oliver Cromwell ruled parliament with the army back in the 1700s.

5:35And so this censure is a step towards that. Now, funny enough, the initial threat was to actually do a court-martial. And I think the DOD Secretary of Defense, Hegseth, backed off on that because the U.S. District Court would step in and say, no, this is unconstitutional. So then they picked an administrative route. And what is a letter of censure? Well, for someone who's on actual active duty, this could be career ending. But since Captain Mark Kelly, Navy captain, which is the equivalent of a colonel, is retired, the letter of censure at this point without more is nothing more than your third grade teacher telling you she or he's unhappy with you that day.

6:19Hegseth said that this is part of the process, the letter of censure. So what happens next? Is Hegseth the one to decide what the next step is? Is there an investigation? So what could happen, and some media pundits and Secretary of Defense Hegseth himself has said this, is that they may pursue what's known as an officer grade reduction. What's problematic about that is that officers cannot be reduced in grade by a court-martial. However, the Secretary of the Navy or the Secretary of Defense can always do an officer-grade determination if it is determined that someone should not have been promoted based on criminal or other types of deleterious activity while on active duty or reserve or guard duty that had the promotion board known of, they wouldn't have gotten promoted.

7:20So for example, someone cheating on an exam, if it's discovered years later, someone who'd been court-martialed, someone who committed conduct on becoming an officer, like fraternizing with junior enlisted members, things like that. You know, I represented a major who was once reduced to captain because it came to light that he was engaged in sexual conduct and activity with two enlisted women under his direct command earlier, which is a UCMJ violation. But generally, those officer grade reductions are thought of as things that occurred on active duty. And Senator Mark Kelly is not on active duty.

7:59He's a retiree. So that could create a legal issue. But you'd have to get through the hurdle of, one, what he said was technically correct. And so there's a First Amendment and a truth defense built into that, and he could still fight the reduction in U.S. District Court or in the Court of Claims. And two, you know, you really have to go back to the separation of powers. What authority does the Secretary of Defense really have over a sitting United States senator? And the answer to that is not much, and it would be unprecedented to try to do something. My sense of what happened is a few attorneys that the administration has actually listened to have told him, you won't survive a court-martial.

8:43Here's the things we think you could get away with, and it's the letter of censure and probably nothing more. There's also the speech and debate clause for members of Congress. Yeah, so I've done an investigation into that. The speech and debate clause protects individuals who are elected to Congress or the Senate for what they say and do on the floor of the Senate or the House and within the official business of the House or Senate, meaning committee work and investigations and the like. But the speech and debate clause has not been held to extend as far as what Senator Kelly and the others have done.

9:25I suppose you could make an argument that because they're speaking on a matter of public concern in their official capacity, elected capacities as members of the Article I branch of the government, maybe it extends that far. But I actually think that's the weakest of the arguments that have been raised. Is this move by Hegseth precedent setting? I couldn't find anything similar when I did some research. There has been a long, long history of retired generals and admirals and other senior individuals, you know, who've spoken on public matters. During the height of the Vietnam War, decorated and heroic generals like General James Gavin, Marine Corps General David Shoup, spoke out against the Vietnam conflict and outright accused Lyndon Johnson and Richard Nixon of lying, even David Hackett, who Nixon wanted to go after.

10:22But John Dean, as attorney, told him, you can't do that. There have been hundreds of veterans who served in the House, in the Senate, and in the Article III branch of government, you know, the federal judiciary, and as governors, many of whom have criticized the president and other matters. And yet, no, no one's ever tried, no secretary of defense or service secretary has ever done this move. It's been unprecedented. They've made the front page of The New York Times or CBS Evening News and the like. And, you know, I think about it and I think, gee, if Richard Nixon did nothing to David Hackett, a retired decorated colonel who started his career in World War II and ended it in the Vietnam conflict, then that's kind of a barometer of where we should be.

11:10But this administration has crossed well over that threshold. All six of the lawmakers who appeared in that video served in the military or the intelligence branches. Why did they pick on Kelly in particular? Because Kelly's the only one who's subject to the Uniform Code of Military Justice. The other served in the military, but they're not collecting a retirement. They didn't go the full 20 years. Or they served in intelligence operations, but not in the military. So actually, the administration has attempted to silence them when FBI Director Kash Patel said, well, we're going to investigate them for sedition.

11:44Really? I think that that is not even close to a definition of sedition. I think if I were in the Pentagon as a judge advocate and someone asked me to give a legal review on this, my legal review would read something like this. I cannot in good conscience draft a letter of censure to a sitting United States senator under these conditions because the framers of our Constitution, the whole construct of our Republican form of government is premised on the principle that we will have no dictatorship like Oliver Cromwell. And the idea that we can use the military to silence a sitting United States senator that we find disagreeable is so antithetical to the constitutional values which we have in the military that I would ask you to find someone else to do it in my place.

12:41Well, let's see what happens here. Hegseth said that Kelly has 30 days to submit a response and the process to downgrade his retirement rank will be completed within 45 days. Coming up next on the Bloomberg Law Show, thousands of federal agents have been deployed to Minneapolis, Minnesota. Why, there are no National Guard troops among them. I'm June Grosso and you're listening to Bloomberg. So there's a lot of noise about AI. But time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions.

13:28Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. If you follow markets, you know the value of long-term thinking. You plan, you diversify, you prepare for volatility. But even the best strategies can't prevent every bad day. For more than 75 years, Cincinnati Insurance has helped individuals and businesses navigate tough moments with expertise, personal attention, and independent agents who focus on relationships, not transactions. The Cincinnati Insurance Companies.

14:08Let them make your bad day better. Find an agent at c-i-n-f-i-n.com. You need to make a huge presentation in an hour. Adobe Acrobat uses AI to take all your documents and generate a presentation with a single click. Build slides quickly and streamline the process. Need a last-minute pitch deck? Do that with Acrobat. Need to level up your presentation design? Do that with Acrobat. You have 30-plus documents that need to be simplified into a proposal. Do that. Do that. Do that with Acrobat. Learn more at adobe.com slash do that with Acrobat. Thousands of federal agents have been deployed to Minneapolis, Minnesota, the latest Democratic city targeted by the Trump administration for mass deportations following operations in Chicago, Los Angeles, and Portland.

15:03However, unlike those cities, the administration is not deploying National Guard troops under the guise of high crime rates and the need to protect federal officials involved in immigration enforcement. In fact, President Trump is backing off, at least for now, on his push to deploy the National Guard, pulling troops out of those three cities. This after legal roadblocks, including one from the Supreme Court, a rare setback for Trump at the high court. But he warned that, quote, we will come back if crime begins to soar again. I've been talking to Professor Joshua Kastenberg of the University of New Mexico Law School.

15:46Josh, do you think the administration saw that the legal deck was sort of stacked against them? You know, I think they read the tea leaves and the tea leaves were the last Supreme Court decision not to immediately overturn or put in abeyance the temporary restraining order in regard to Chicago that the Seventh Circuit came up with. And, you know, of course, Alito and Thomas dissented, but you did have this decision that was issued that at least tepidly included Kavanaugh because he had a concurrence, but it also had Barrett in it and Chief Justice John Roberts as well. And so I think they read the tea leaves and pulled out the military in the hopes that mootness, which is a fundamental principle of constitutional law, will prevent any further review at this time.

16:44That 6-3 decision was really one of the first times in the second Trump administration that the Supreme Court has stopped Trump on the emergency docket. Yeah, I think there's the tariff issue coming up, and that may be a pullback too, but that's a fundamentally different issue. It's purely economic and where the power to regulate the economy, foreign economy, rests. As far as sending in troops, Trump said, we'll come back perhaps in a much different and stronger form when crime begins to soar again. Well, you know, it's always the threat. And I can tell you that in talking to people who have served in the military, as well as others, the concern is there'll be a city that tends to vote Democrat with a higher crime rate than the norm.

17:41and the operation will occur shortly before the midterm elections. And if you think about cities in purple states where voting might make a difference, could that happen in a place like Detroit or certainly Minneapolis now particularly? Yeah, because the fiasco of Governor Walz up there may actually give the Republicans a shot at doing well in the midterms. And so I could see some people in the White House thinking, this is where we're going to send troops next. Also, Trump rather recently once again seemed to be toying with the idea of invoking the Insurrection Act. Well, the court did leave that open.

18:27You know, I mean, the White House, and this is something every listener should understand. The White House argued there was an inherent presidential authority to do what he did, but they didn't cite any direct language in the Constitution or any statutes. There is the Insurrection Act statute. The Insurrection Act makes it very clear that if the laws of the land are unenforceable and that the civil government cannot enforce the law, the president can use the military as a police force in those cities. Now, to me, that's a very high bar, but I could see others making the argument of, well, no, you know, there's a backlog of cases and the local police don't have enough people to do their job, even though they are doing their job.

19:18And I could see that occurring, too. So, I mean, what do you think the broad principle of the Supreme Court's decision stands for? Well, I think the Supreme Court's decision's broad principle is you don't have unfettered power, Mr. Trump, and you've got to have more. You know, you've got to have more facts on your side and you have to have a statute that is open for you to do it. And the Insurrect Act is such a statute. That, of course, would start another round of litigation, I'm sure. Always a pleasure to have you on, Josh. Thanks so much. That's Professor Joshua Kastenberg of the University of New Mexico Law School.

19:54Coming up next on the Bloomberg Law Show, the judge overseeing the Nicolas Maduro prosecution is a 92-year-old native New Yorker who is willing to take unpopular stances, is unafraid to challenge lawyers, and has managed to win praise from President Trump despite crossing him on key issues. I'm June Grosso, and you're listening to Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions.

20:38Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off. Deep in the work that moves the business. Let's create smarter business. IBM. If you follow markets, you know the value of long-term thinking. You plan, you diversify, you prepare for volatility. But in life, even the best strategies can't prevent every bad day. A fire, a loss, a disruption that demands immediate attention. When that happens, what matters isn't just what you planned, it's who shows up. That's where Cincinnati Insurance comes in. For more than 75 years, they've helped individuals and businesses navigate life's toughest moments with care, expertise, and personal attention.

21:20Together with independent agents, Cincinnati Insurance focuses on relationships, not transactions. Their approach is grounded in experience, follow-through, and trust built over time. Bad days happen, and when they do, you deserve an insurance partner who understands risk, respects what you've built, and is ready to help you move forward. The Cincinnati Insurance Companies. Let them make your bad day better. Find an independent agent at c-i-n-f-i-n dot com. Everyone has been there. Your team's feedback is scattered across emails, chats, and sticky notes. It's a mess. But PDF Spaces and Adobe Acrobat gives you one collaborative workspace to streamline every file and comment.

22:04So, if you need six departments to finally agree on a proposal, do that with Acrobat. Need to turn a mountain of feedback into one plan of action? Do that with Acrobat. Want to stop searching for files and finally get everyone on the same page? Do that, do that, do that with Acrobat. Learn more at adobe.com slash do that with Acrobat. Ousted Venezuelan President Nicolas Maduro was defiant in his first court appearance on federal drug trafficking charges on Monday, attempting to tell the story of his capture by U.S. forces in a stunning raid. Maduro said, quote, I am here kidnapped since January 3rd, Saturday.

22:50I was captured at my home in Caracas. But before he could go further, the judge cut him off, saying, at this point in time, I only want to know one thing. Are you, Nicholas Maduro Moros? And with that, Manhattan federal judge Alvin Hellerstein showed Maduro who was in charge in his courtroom. At 92 years old, with 38 years on the bench, Judge Hellerstein has shown an independent streak and no fear of taking unpopular positions. Joining me is Bloomberg Law Reporter Mike Valensky, who's written a profile on Judge Hellerstein. Mike, tell us a little about the background of this Clinton appointee.

23:32So Judge Alvin K. Hellerstein, he's a district court judge in Manhattan in the U.S. History Court for the Southern District of New York. He's a character there. I mean, he's 92 years old. He's been on the bench about three decades, kind of gives you the impression, you know, he's seen it all. He's heard it all. He's one of those judges. And in fact, he's had a pretty incredible career as far as interesting cases going back to allowing the KKK to march in New York City in the 90s through several high-profile cases involving the financial sector. He oversaw the Charlie Javis trial. He oversaw the Bill Huang trial and recently has, even before being handed the Maduro case, has gotten a bunch of politically sensitive cases involving President Trump.

24:22Let's talk about some of those cases because he ruled against the Trump administration in one case, and then he ruled against Trump personally in another. The case against the administration, which also directly involved Venezuela, was an early effort by the administration to quickly deport alleged Venezuelan gang members under a very old statute called the Alien Enemies Act that the Trump administration kind of dusted off to create these sped up deportations. And Judge Hellerstein stopped it effectively. He issued an injunction saying that due process was needed, they needed notice, they needed a hearing, and that the administration was trying to kind of circumvent the legal rules of due process.

25:12I didn't realize that Judge Hellerstein was involved in the Trump hush money case and in fact is still involved in it. Tell us what happened. Yeah. So that case is before him now. So twice the president tried to get that case into federal court. It was tried in Manhattan State Court by District Attorney Alvin Bragg. But Trump has repeatedly said, you know, and his legal team has said it belongs in federal court. It involves issues of presidential duties. And twice Judge Hellerstein said, no, it doesn't. And in quite blunt terms said, you know, paying an adult film star has nothing to do with your role as president.

25:53This is a state case. This belongs in state court. Interestingly, he was essentially overturned by the U.S. Court of Appeals for the Second Circuit recently, which said they're not taking a position on whether the case belongs in state or federal court, but that Judge Hellerstein didn't adequately probe whether the U.S. Supreme Court decision on this topic means that this case should potentially be in federal court. So he has the case again now with Trump and his legal team trying to get it into federal court, and he'll again rule on whether or not it should be. And unusual for President Trump, who often criticizes the judges he's in front of or the administration is in front of.

26:35He said, quote, the judge is very respected. We'll see how we do. We're going to go through a slog of a trial. He's one of a few judges that come to mind that Trump has actually said kind things about, at least on Air Force One on Sunday. But, you know, it's early days. So we will see how how that relationship plays out. You know, Trump mentioned a slog of a trial and this is going to be a long trial. So as a senior judge, Judge Hellerstein could have refused the trial. Yes, and he still can voluntarily give up the case if he doesn't want it under what I understand to be the rules of the Southern District.

27:15But he has the case because he was already overseeing a case involving one of Maduro's co-defendants who's already pled guilty, a former Venezuelan intelligence chief who is in the U.S. and pled guilty. So that was a Maduro co-defendant. And from my understanding, that's how Hellerstein ended up with this case. He could voluntarily give it up, but he's given no indications that he wishes to. And given his history of presiding over high profile cases, it doesn't seem like he's a judge who would be at all intimidated by that part of it. So it's unusual to have a 92-year-old judge. Frankly, does his age show in the courtroom?

27:52Not really. No. I mean, so he seems sharp. He seems alert. He's still, from what I've seen of him and from what I've heard from other lawyers, he's still a sharp legal mind. Where it might show is just a little bit of crankiness, as one lawyer put it. And as I've observed, he'll tell a lawyer, you're being boring. If a lawyer objects beyond just sustaining or overruling, he'll say there's nothing objectionable here. So he can kind of snap. And if you associate that kind of cantankerous quality with age, perhaps he has that. But one of the lawyers said to me, you know, judges who have been on the bench that long, at some point get like that because they've seen and heard everything.

28:36But this is a case that even Judge Hellerstein at 92 has never seen or heard before. So he will be engaged. Yeah, I think the crankiness This may be more about having been on the bench so long that you've seen and heard just about everything from lawyers after almost four decades. And you have a unique view of what's going on in the courtroom. So Judge Hellerstein said to lawyers in the Archegos trial, The jury looks like it's bored to tears. I think you should stick to what's important, please. That actually sounds like good advice because judges are very attuned to jurors. Yeah, he gave lawyers in that trial several tips, even like kind of telling them how he would suggest they phrase questions, things like that.

29:22So he has the kind of paternal quality towards younger lawyers sometimes. And maybe it can come off curt or sharp at moments, but he does appear to actually kind of be giving guidance, you know, as a kind of legal sage at his age. He does appear to be giving advice to the lawyers at times. You talked to the New York County Lawyers Association president, Richard Swanson, who said he's a real believer in due process. He's not going to be swayed by politics. If anything, Maduro should be glad he has a fair judge. Yeah, a lot of the lawyers I spoke with, especially lawyers in positions of leadership, feel like Judge Hellerstein will kind of set a positive model in terms of giving a fair shake to someone in a U.S.