Trump & Hegseth Panic as Plot Collapses

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0:30Michael Popok:Just like his boss, Donald Trump, Department of Defense Secretary Pete Hegseth can't take what looks to be a losing hand at an appeals court as an answer. Instead, he's going back after Mark Kelly, the senator from Arizona, war hero, space shuttle commander, and now claiming that he's going to start an investigation all over again because he thinks Mark Kelly, quote unquote, violated his oath again. Yes, but the three-judge panel, at least two of those judges, in a case brought by Mark Kelly to defend his First Amendment rights as a retired member of the military, to look the military in the eye and tell them that they have an obligation, which they are taught in their academies and taught by the Code of Military Justice, not to follow illegal orders.

1:16Michael Popok:And from that ad, with five other members of Congress, we have an appeal that looks like Mark Kelly is about to win. I'm going to play you some clips from the appeal from the judges, judges Pollard and Pan especially, and tell you why I think this is going to be a winner for Mark Kelly. And even Pete Hegseth knows it because he's starting some new commotion about bringing another investigation because Mark Kelly told the American people on Sunday morning talk shows that which we already know, that there's a depletion of the munitions and weapons pile for the United States in fighting the war in Iran.

2:00Michael Popok:That's why they're going to Congress for more money. That's something that's publicly known. But to Pete Hanks said, oh, you must have learned that from a secret briefing. No, he learned it from listening to you. I'm Michael Popok. You're on the Midas Touch Network and Legal AF. I'm traveling today because today is the day we receive the Webby Awards for the best news podcast, Legal AF 2 Awards, and the best new podcast in news, The Intersection with Michael Popok, me. You'll see photos later today and hopefully some video from down from the event holding three. I feel like a Grammy Award winner, holding three Webbys.

2:37Michael Popok:Let's get to the story of Mark Kelly. Mark Kelly, a decorated fighter pilot in the Navy, husband of Gabby Gifford, who hopefully people know was going to be probably a senator herself as she ran for office. She was brutally shot and barely recovered, but not enough to ever go back into public life. Mark Kelly, space shuttle commander as well, Navy pilot in the Iraq war. He also is on the Senate Armed Services Committee, which does oversight over Pete Hegseth. You often see Hegseth battling it out in a losing battle with Senator and former Captain Kelly about these issues. But after, in November, around the time of the Caribbean military strikes of fishing boats in the Caribbean, Mark Kelly and five other members of Congress, including Senator Elisa Slotkin, created a 90-second personal service announcement, infomercial, reminding the troops that they are not to follow illegal orders under their code, under their oath, which is exactly what they're taught in school, by the way.

3:47Michael Popok:But Hegseth didn't like that. Even though Pete Hegseth himself, I'll show you a clip, had a very similar statement that he made when he was teaching at one of these war colleges. Peg Seth decides he's going to admonish retired Captain Kelly. He's going to take away some of his pension. He's going to demote him. He's going to censure him. And Mark Kelly ran to court and got a district court judge, federal district court judge, to stop it. Hence the appeal. Now, just to frame it before we get to what happened on the appeal at the oral argument, here's the 90-second clip. Don't give up the ship. Play the clip.

4:47an army ranger former intelligence officer former air force we want to speak directly to members of the military and the intelligence community who take 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 uniform 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.

5:19Our 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. Don't give up. Don't give up. Don't give up the ship.

6:01Michael Popok:Now that's exactly what Pete Hegseth said in his own presentation to a war college when he had less gray hair. It was just a Fox News analyst or whatever he is. Play that clip. I do think there have to be consequences for abject war crimes. 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. So what's the difference? What's the difference?

6:42Michael Popok:Because you're both retired military at that point. And that was the core of the oral argument. What to do about retired members of the military who are also senators with their own speech and debate privilege, their own First Amendment privilege, providing oversight over that military? Are they bound and gagged forevermore as if they're in the military? Because look, we'll all admit that when you're in the military under the First Amendment, you are not going to be able to freely speak out against the chain of command or to undermine morale or esprit de corps. And if you're just a regular citizen never serving in the military, there's no limits on your First Amendment rights.

7:22Michael Popok:The question here is, if you're formerly in the military, if you're retired, do you have the ability to freely talk to the military and that which is consistent with the code of military justice, yes or no. And that was at the heart of the matter. See, the lawyers for the Department of Defense, they relied on a case, Perry versus Levy, from 1974. But that had to do with an active duty captain, Captain Levy, who was telling black soldiers they should not serve in Vietnam. They should go AWOL. That's different. They're inside the military, breaching the chain of command. Captain Kelly, former Captain Kelly, is Senator Kelly outside.

8:07Michael Popok:And that was the issue that the judges had. Their position is we're in a whole new world. We've got to analyze what happens when a retired member of the military is speaking out to the military, active duty, that conversation. How does the First Amendment and the law apply to that. So they're going to be making new law here, but clearly it's going to be in favor of Kelly. Anybody that listened to the oral argument in completion like I did, you got to come away with Pan and Pilar are going to vote in favor on that panel. Now, whether Karen Henderson, a George W. Bush appointee, I don't know. She's more concerned with, well, if he can be brought back into the military and court-martial, Why can't they also restrict his First Amendment speech?

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10:20Michael Popok:And just to recall First Amendment and speech and debate privilege issues here, here's Mark Kelly going after Hegseth in the last couple of weeks during an oversight committee hearing. Play the clip. I saw your hearing yesterday and I'm going to give you one more chance to address a question here. it's my understanding that the definition of no quarter is that legitimate offers of surrender will be refused or that detainees will be executed is that your understanding of the definition well the only entity that would kill detainees or target civilians is the iranians and they're the ones being crushed.

11:04So you Iranian military and their military capability. The question is, I disagree completely with your articulation. No, do you understand the definition that I just read you? Because that's the definition from your department's law of war manual. Is that your understanding? And I'm going to I'm going to just get to the point here. We fight to win and we follow the law. OK, so your your quote was, we will keep pushing, keep advancing, no quarter, no mercy for our enemies. And yesterday, you did not clarify whether you stand by this statement. So I'm going to give you another opportunity to clarify if that is what you meant.

11:43Do you stand by that statement you made on March 13th? We have untied the hands of our warfighters. We fight to win and we follow the law. Okay. So you're not clarifying. So you stand by that statement. So you're the secretary of defense. The things you say matter. And your response here right now makes it clear to the American people exactly why you are not right for this. It makes it clear to our enemy, Senator. Thank you, Mr. Chairman.

12:14Michael Popok:That's his job. That's his job. Mark Kelly was so confident coming out of the hearing from a couple of days ago, as I am, that he said this coming out of the oral argument. Play the clip. Last year, I said something that the president didn't like. It was pretty simple then, and it still is, that service members need to follow the law. And in response, the president said I should be prosecuted and hanged. Then he tried to throw me in jail. And then Pete Hegseth, the Secretary of Defense, tried to censure me, demote me, and take away my pension. All for something I said that I had the right to say as a senator, as a veteran, but most importantly as an American.

13:11If you say something that the president or this administration does not like, they're going to come after you. The president is trying to silence us. And I can't think of anything that's more un-American.

13:28Michael Popok:Which has now led Pete Hegseth to try to go after Kelly again, knowing that this is a losing battle. He's picking a new fight. He said, oh, oh, he posted, oh, are you violating your oath again? Because you said on television that we're depleting our ammunition? No, any idiot, any novice, amateur follower of the media knows, or the military, knows you're depleting your ammunition and your munitions. Here's Kelly saying that on television. When it comes to making America ready to defend our allies and ourselves, does what you describe basically make it impossible for a Democrat like yourself to say no to that request from the White House for one and a half trillion dollars in defense spending?

14:18Well, first of all, let me let me just back up a second. Things like this, nothing is inevitable. There are always other options. During the Obama administration, the Iran deal, the JCPOA kept the enrichment at a lower level. Donald Trump tore that up. That's the reason we're we're here. But this also was not inevitable. There were other things that we could do. The$1.5 trillion request from this administration, it's outrageous. When I got to the Senate five and a half years ago, the defense budget was just over$700 billion. Now they're asking for twice as much money. It's nearly the amount that the rest of the world pays for its defense.

15:00And as I pointed out in that And I pointed as I pointed out in that hearing, there's stuff in there like Golden Dome. The physics on that stuff is really, really hard. I'm very confident we're going to spend a lot of money. We're going to get a system that doesn't work. There are other things in there we do not need. I mean, they need to submit a defense budget that makes sense for the moment we're in. And now here's Kelly reminding the headset that he said the exact same thing publicly,

15:28Michael Popok:that he's now claiming is a violation of the oath for having been briefed as a senator. Play the clip of Hexeth saying the exact same thing. How many years to replenish? That's the question. I think that's exactly the right question, too, Senator, because the time frame we were existing under was unacceptable. Okay, well, tell me. And what this budget does, I mean, months and years. Fast. Years. I mean, we're building new plants in real time. So just to replace what we have expended. I said months. And then you said years. It depends on the weapons system, but two to three, four X of what we have today.

16:02So, yes, we're dealing with a reality under the previous administration of what they sent to Ukraine and what they allocated elsewhere. OK, I got it. So we fired years worth of munitions. And it is clear that these are being expended to try to achieve some objectives. That was the plan. But, Mr. Secretary, this war is stuck. the Strait of Hormuz is closed the Iranian regime is in place the nuclear material still in their hands Americans are being crushed by higher costs and it's not clear to them at all what the goal

16:45Michael Popok:of this war is so again this is another page out of the Donald Trump playbook tiresome hackneyed dog-eared playbook that we're all tired and fatigued about, which is you gaslight, you do the exact same thing the other party does, but you claim they're doing something wrong. You don't acknowledge that you had said it or done it. And then you try to make this a cover to grab the news cycle because you know you're going to be getting a bad result out of court. Sound familiar? But we know it here on Legal AF and Midas Touch, and we follow it closely. Thank you for following us closely and making us the Webby Award winners, the People's Voice Award for Best News Podcast, Legal AF, Top Law and Politics Podcast.

17:32Michael Popok:I host with Karen Freeman, Ignifilo and Ben Micellis and Best New News Podcast in the Intersection, my podcast on Tuesday nights on the Midas Touch Network. Coming up with three Webby's tonight. There'll be video. You'll be able to watch it on Substack that I'll be posting later today. Thank you for that. In the meantime, take a moment, hit the free subscribe button here and on Legal AF YouTube. Until my next report, I'm Michael Popak.

18:20Michael Popok:from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.