Kelly v. Hegseth

2/12/2026

Cloudesley Shovell

2/13/2026 09:50:57

Judge Leon is too enamored of exclamation points! He shouldn't use them at all! They're annoying! And a bit juvenile!

Were Sen. Kelly some random internet clown, this would've very likely gone the other way, at the very least on exhaustion of remedies grounds, and in a verbal order from the bench. But being able to adjudicate a political spat is irresistible catnip, I'm sure.

Kind regards,
CS

Philip link

2/13/2026 12:25:07

Admirable re the opinion. But, on the exhaustion issue, there's a more than reasonable argument that any administrative remedy was a lost cause, and so he could go straight to court. Who ultimately decides a BCNR petition — is it SecNav, since he's an O-6? Would he get a meaningful review at BCNR and SecNav? See, e.g., U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 347 (5th Cir. 2022).

Cloudesley Shovell

2/14/2026 12:41:21

I just wish that this little dust-up might serve as a catalyst for Congress to re-examine the rather sweeping breadth of lifetime court-martial jurisdiction over retirees.

Perhaps some enlightened senior JAG can make recommendations up through the chain of command to petition Congress to amend Article 2.

Maybe a long-retired admiral can write a strongly-worded letter.

Kind regards,
CS

Anonymous

2/15/2026 16:59:50

Amending Article 2 wouldn't really touch on this subject though, right? The Department abandoned any attempt to court-martial the senator (at least as of right now). And this opinion touches on administrative - rather than criminal - measures taken in response to the Senator's statements under 10 U.S.C. 1370 (presumably 10 U.S.C. 1370(f)(2)(D)).

If the Department did move forward with a court-martial, Article 88 appears to preempt several of the statements from being charged under either Article 133 or Article 134. See, e.g., United States v. Brinson 49 M.J. 360 (Cox, J., concurring); MCM, pt. IV, para. 91.c.(5)(a).

It's a shame the district court didn't address the merits of the speech or debate clause argument. An excellent opportunity to mention the fun historical anecdote of Ansell v. Long, 293 U.S. 76 (1934). Ansell being Brigadier General and former Acting Judge Advocate General of the Army and Long of Senator Huey Long fame/infamy. Ansell sued Senator Long for libel and whether Senator Long was immune from civil suit reached the Supreme Court (it held no). It was one of the Supreme Court's first major "speech or debate" Clause cases. Senator Long's statements about Brig. Gen. Ansell are near the end of this article: https://time.com/archive/6767229/political-notes-petition-privilege/.

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Kelly v. Hegseth

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