Furious GOP Judge Excoriates Trump and Blocks Attack

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1:46Michael Popok:In breaking news, a Republican appointed judge, Judge Leon, has just ruled against the Trump administration and its Department of Defense leader, Pete Hegseth, and has blocked his efforts to censure, reduce in rank, to court martial and to criminally prosecute Mark Kelly, the senator from Arizona, who flew 39 combat missions as a Navy captain, an aviator, and also a shuttle commander. He's also on the Armed Services Committee, providing oversight and legitimate criticism to the Trump administration. And the Trump administration didn't like that he, along with five other members of Congress who served in the military, created a video to remind members of the military that they have an obligation as constitutional officers to uphold the Constitution and not follow illegal orders.

2:39Michael Popok:That led Pete Hegseth to call them the Seditious Six. that led Donald Trump to call for their hanging and to say that George Washington would do the same thing. I just read Judge Leon's order. It is chock full of exclamation marks. I've never seen so many exclamation marks tapped out by a federal judge in an order against the Trump administration. He also has to remind the Trump administration that while service members in the active military may have limited First Amendment rights. Retirees like Mark Kelly, who are also sitting senators, they enjoy wide berth to criticize the government. And Judge Leon also said, look, there's been two major, major policy transgressions by the Trump administration, one involving the takeover of the National Guard and the other being the lethal strikes on human beings in the Caribbean.

3:36Michael Popok:And of course, the judge says that Mark Kelly as a senator has a First Amendment right and a senatorial right to comment on it, to provide oversight about it. Let me read to you first as we start this hot take from Judge Leon's conclusion. It's always good to start at the back of a 29-page decision. Rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our nation over the last 250 years.

4:13Michael Popok:If so, they will more fully appreciate why the founding fathers made free speech, the First Amendment in the Bill of Rights exclamation point. Hopefully, this injunction will in some small way help bring about a course correction in the Defense Department's approach to these issues. Senator Kelly's motion for preliminary injunction is granted. You're here on Legal AF and on the Midas Touch Network. I'm Michael Popok. Let's get to the 29-page decision and how we got here. And I'll connect it, weave it, if you will, with a rejection by a grand jury just yesterday to indict Senator Kelly. I mean, they're going, they're not just doing censure and a slap on the wrist.

4:52Michael Popok:Pete Hegseth, the Department of Justice, and Donald Trump want him hanged, want him criminally prosecuted. So Janine Pirro, right on cue, the U.S. attorney for Donald Trump in the D.C., brought an indictment, tried to get an indictment from a grand jury against Mark Kelly, against Elise Slotkin, the senator from Michigan, and four others. and the grand jury, which is the conscience of the American people, said, no, we're not indicting them for that. Of course, it didn't help that the new reporting is that Janine Pirro sent in effectively a part-time prosecutor who on the side has a dance photography studio.

5:33Michael Popok:I'm not making this up. Who has no federal court experience, and that's the one that went in for the indictment. But be that as it may, that's just a technicality. The fact that they were even trying to prosecute Mark Kelly for this 90-second video in which all he and the others did was properly state the code of military justice, the Nuremberg principle, that as a federal officer sworn to uphold the Constitution, you need to follow the Constitution and you can't follow illegal orders. Before I read the order of Judge Leon supporting Mark Kelly and in stopping Pete Hegseth from censuring him and penalizing him, retaliating against him under the First Amendment.

6:16Michael Popok:Let's play the now famous video. Play the video.

6:42take risks each day to keep Americans safe. We know you are under enormous stress and pressure right now. Americans trust their military. But that trust is at risk. This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. 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 we know this is hard and that it's a difficult time to be a public servant but whether you're serving in the cia the army or navy the air force your vigilance is critical and know that we have your back because now more than ever the american people need you we need you to stand up for our laws our constitution and who we are as americans don't Give up.

7:40Don't give up. Don't give up. Don't give up the ship.

7:44Michael Popok:Now, right around that same time, Hegseth calling them the seditious six seems to have forgotten that about 10 years ago, when he was at a military academy, Pete Hegseth said the exact same thing as this video. And I guess he was hoping that nobody would find it, but Elisa Slotkin found it and here it is. If you're doing something that is just completely unlawful and ruthless, then there is a consequence for that. That's why the military said it won't follow unlawful orders from their commander in chief. There's a standard. There's an ethos. There's a belief that we are above what so many things that our enemies or others would do.

8:22Our laws are clear. You can refuse illegal orders.

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9:12Michael Popok:Take control of your data and keep your private life private by signing up for Delete Me, now at a special discount for our listeners. You can get 20 % off your Delete Me plan when you go to joindeliteme.com slash Legal AF and use promo code Legal AF at checkout. But the only way to get 20 % off is to go to joindeliteme.com slash Legal AF and enter code Legal AF at checkout. One more time, joindeliteme.com slash Legal AF, code Legal AF. So they argued in court before Judge Leon that he has no jurisdiction. This is a military tribunal issue. In other words, they get the first crack at the First Amendment analysis, and the judge rejected that.

10:00Michael Popok:They also said it's the same. Service members have limited First Amendment rights. And the judge says, yeah, but he's a retired service member. And therefore, your argument, your principles don't apply in this situation. Here's what the judge says. about this retired naval officer with an illustrious career and his role as a senator to provide oversight to the Trump administration and speak out. He goes through the timeline first, the judge, about all the ways that he's been censured and retaliated against by the Trump administration. Then on page 19 of his order, he says, let's start, well, let's start with the basics.

10:43Michael Popok:I like the way this judge writes. Under ordinary First Amendment principles on page 19, the judge says, the speech at issue here is unquestionably protected speech. Speech on matters of public concern lies at the core of First Amendment protection. It includes opposition to national foreign policy and even vehement, caustic, and unpleasantly sharp attacks on government and public officials. By the way, that video was none of that. It wasn't even it wasn't even addressed to Trump, wasn't even critical of Trump. It was reminding these officers of their duty under the Constitution and military justice code.

11:17Michael Popok:Here, the letter of censure identifies a sustained pattern of public statements, including the November 18 video. Defendants rest their entire First Amendment defense on the argument that more limited First Amendment protection for active duty members extends to a retired Navy captain. The judge says that does not apply. The case law does not apply. On page 21, he says the same rationale does not hold true for retired service members and certainly not those in Senator Kelly's position of being a sitting senator with oversight capacity. And here's more of the plain speak of Judge Leon with a lot of exclamation marks and references to things, including Bob Dylan songs.

12:03Michael Popok:He says on page 22, as applied to a sitting member of Congress, the rule about limiting First Amendment speech of a active military member has even less force! Our system of representative government requires that legislators be given the widest latitude to express their views on issues of policy. Then he goes on to say, let me give you the reference, bottom of 22, defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that Congress has expressly made applicable to retired service members. Horse feathers, the judge writes, exclamation mark, bottom of page 22.

12:50Michael Popok:Earlier, he makes a reference in a footnote to Bob Dylan. In his opening, he says, worse still, on page one over to two, Secretary Hegseth contends that this court is not yet competent to decide the issues in this case. This court on page two, the judge Leon writes, has all it needs to conclude that defendants have trampled on Senator Kelly's First Amendment freedoms and threatened 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, citing to Bob Dylan's subterranean homesick blues from 1965.

13:32Michael Popok:To say the least, our retired veterans deserve more respect from their government and our Constitution demands they receive it. Wait for it. Judge Leon Drinking Game! So we have these two cases going on, right? The grand jury rejecting the indictment of Mark Kelly, and right on the heels of that, Judge Leon stopping the Defense Department from censuring him, retaliating against him, or taking any steps towards demoting him, criminally prosecuting him, or the rest. Now, Elise Slotkin, who got invited by Jeanine Pirro in to talk to the prosecutors before they went to the grand jury, respectfully rejected that and said, go pound sand and told her lawyers told the prosecutors they should immediately be dismissing this prosecution.

14:27Michael Popok:This Janine Pirro is the same one who's going after the Federal Reserve chairman, Jay Powell, because of cost overruns in a building construction project involving the Federal Reserve. Here's Elise Slotkin. Earlier today, I sent a letter to Attorney General Bondi and to the lead Department of Justice lawyer in D.C., Janine Pirro, telling them, one, I will not be complying with their inquiries and sitting down for an interview based on a 90-second video I filmed. and number two, urging them to retain their records on this case in case I decide to sue for infringement of my constitutional rights.

15:03Michael Popok:So if the Trump administration, Department of Justice, Pete Hegg said they don't like this ruling and they're not going to like this ruling, they can go take Judge Leon up to the D.C. Circuit Court of Appeals. If they don't like that, they can take it to the United States Supreme Court. But if they think even the MAGA 6 on the Supreme Court is going to rule that a sitting member of Congress, a United States senator, highly decorated like Mark Kelly or anybody, can be censured for expressing his First Amendment rights as a retiree when he has oversight committee obligations as a senator? They got another thing coming!

15:39Michael Popok:Exclamation mark horse feathers. I guess to pay tribute to Judge Leon, and I'll put it that way. So I'm glad you're here. Hit the free subscribe button. Come over to Legal AF YouTube, do the exact same thing. And I'll see you in my next video. I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else?

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