Podcast Summary: Consider This from NPR

Episode: Sen. Kelly says Trump doesn't “understand the Constitution”
Date: November 25, 2025
Host: Scott Detrow (NPR)
Featured Guests: Sen. Mark Kelly (D-AZ), Rachel Van Landingham (Southwestern Law School, former military lawyer)

Main Theme

This episode explores the escalating controversy following a video released by several Democratic lawmakers—in particular, Sen. Mark Kelly—stating that U.S. military members must refuse illegal orders. Triggered by President Trump and key administration officials’ strong condemnation, the episode delves into constitutional, military, and political implications. The show provides nuanced legal context and interviews key figures, examining whether reminding troops of their lawful duties has become a political flashpoint.

Key Discussion Points & Insights

1. The Video: Lawmakers Urge Troops to Refuse Illegal Orders

• Context: Sen. Mark Kelly, Rep. Chris d'Aluzio, and Sen. Alyssa Slotkin release a video reiterating that military members must refuse “illegal orders” ([00:05]–[00:17]).

  • “You must refuse illegal orders.” — Senator Mark Kelly ([00:11])
  • “No one has to carry out orders that violate the law or our Constitution.” ([00:13])

• Response from Trump:

  • President Trump calls the video “seditious behavior… punishable by death,” later clarifies he wasn’t making a threat, but upholds the charge ([00:17]–[00:48]).
  • Administration officials—including Press Secretary Caroline Levitt and Defense Secretary Pete Hegseth—label the video reckless, “despicable,” and “false” ([00:48], [00:56]).

• Investigating Sen. Kelly:

  • The Pentagon launches an unprecedented investigation into Sen. Kelly, the only fully retired military officer among the lawmakers, and thus technically still subject to military justice ([01:10], [01:25]).

• Legal Perspective:

  • Former military lawyer Kevin Carroll suggests the investigation is not legally serious but is an intimidation tactic ([01:47]):
    “I think it’s more of an intimidation tactic than a coherent litigation strategy, an attempt to intimidate elected officials into not criticizing misuse of the military.”

2. Sen. Mark Kelly’s Perspective

Interview Begins: [04:21]

Motivation Behind the Video

• Lawmakers were alarmed by administration discussions about using U.S. troops in domestic cities, potentially as “training grounds,” and by Trump's previous comments advocating violence against protesters ([04:27]):

  • “…the president has talked about sending troops into more cities to use cities as training grounds… you’re going to be using US Citizens for training of the US Military. We’re concerned about that… he has talked about shooting protesters in the legs… killing the families of terrorists… when told that would be illegal… he said the military would not refuse to follow his orders.”
    — Sen. Mark Kelly ([04:27]–[05:46])

• Kelly asserts the video simply restates the law:

  • “So the group of us… wanted to send a very simple message, something that’s consistent with the Uniform Code of Military Justice that you do not have to follow and you should not follow illegal orders. So we said, follow the law. Donald Trump responded with, ‘kill them.’”
    — Sen. Mark Kelly ([05:44])

Trump and Hegseth’s Reaction

• Kelly believes their reaction is illogical and stems from misunderstanding or disregarding the law:
  • “Any other president would have responded… with two words: ‘Of course.’… I don’t think [Trump] understands the Constitution. I’m not so sure Pete Hegseth does either.”
    — Sen. Mark Kelly ([06:02])
  • “Neither of them seem to understand the Uniform Code of Military Justice… now he wants to court martial me under the Uniform Code of Military Justice. It just doesn’t make any sense.”
    — Sen. Mark Kelly ([06:21])

Leadership, Loyalty, and Sycophancy

• On leadership and dissent, Kelly draws a parallel with his Shuttle crew command experience:
  • “You put a bunch of sycophants around you, a bunch of yes people, you do not get good outcomes… I used to tell my shuttle crew members… they were required to question my decisions… especially if it affects safety and mission success…”
    — Sen. Mark Kelly ([07:05])
  • On current leadership: “I don’t think Donald Trump has… an ounce of that instinct in his bones.” ([07:46])

Personal Attacks on His Service

• Responding to Secretary Hegseth mocking his title:
  • “He’s a Twitter troll, right? I take my job incredibly seriously…”
    — Sen. Mark Kelly ([08:10])

Was the Video Necessary?

• Responding to critics who call the video redundant:
  • “I’m not sure everybody in the military knows it. For me at the US Merchant Marine Academy, I may have heard [it] once… a friendly reminder about what the law is and that you’re required to follow the law.”
    — Sen. Mark Kelly ([08:51])

On the FBI Investigation

• On FBI involvement:
  • “We got something. Sergeant of arms got something in an email. We’re taking a look at it.”
    — Sen. Mark Kelly ([09:35])

3. Military Law & Refusing Illegal Orders

Interview with Rachel Van Landingham, former military lawyer, law professor ([10:09])

Legal Foundation

• “If an active duty member knows that an order is unlawful, they must disobey it. Or if they should know it’s unlawful… they must disobey it. But they do so… at their peril.”
  — Rachel Van Landingham ([10:21]–[10:42])

• The system presumes all orders are lawful; disobeying any order—even an unlawful one—could land a service member before a court martial. It’s then up to the court to decide the order’s legality ([10:53]).

Success Rate and Examples

• Success rate for such defenses is low:
  • Example: An Army major court-martialed for refusing to wear UN insignia; conviction was upheld because the order was deemed lawful ([11:51]–[12:41]).

Liability for Following Unlawful Orders

• Military members are criminally liable if they obey a manifestly illegal order (e.g., shooting detainees) ([12:41]).

Can a Retired Officer Be Court-Martialed?

• Retired military personnel can still be recalled and prosecuted under the Uniform Code of Military Justice.
  • Recent example: A retired Marine prosecuted for off-duty offenses in Japan ([14:41]).

Does Kelly Face Legal Jeopardy?

• “Absolutely not. Senator Kelly restated accurately the actual law. …reminding service members of their legal duties is under no stretch of anyone’s imagination an actual crime.”
  — Rachel Van Landingham ([15:36])

• The threat, she argues, is intimidation—particularly as Kelly is both a lawmaker and a retired officer. She references the Speech and Debate Clause as a likely shield against prosecution ([13:02]–[14:25]).

Notable Quotes & Memorable Moments

• On why the video was needed:
  “We also wanted to show members of the military that we have their backs and that we understand the situation they might find themselves in.”
  — Sen. Mark Kelly ([09:06])

• On current Pentagon leadership:
  “I have zero faith that [Secretary Hegseth] would ever say ‘No, Mr. President, you’re wrong.’ He just seems to react in whatever way the president wants him to, and that’s where the whole system starts to break down.”
  — Sen. Mark Kelly ([07:05])

• On intimidation:
  “It’s part of intimidation and threatening… unfortunately, UCMJ military criminal law jurisdiction over Senator Kelly because he’s a retiree… But Senator Kelly made this video in his duties as a lawmaker. So I think there’s a constitutional shield against any kind of criminal prosecution.”
  — Rachel Van Landingham ([13:02])

Timestamps for Key Segments

| Segment | Timestamp | |---------|-----------| | Lawmakers urge military on illegal orders; Trump response | [00:00] – [01:59] | | Pentagon investigating Sen. Kelly; legal opinions | [01:25] – [01:59] | | Interview: Sen. Mark Kelly | [04:21] – [09:45] | | Interview: Rachel Van Landingham, military law expert | [10:09] – [16:04] |

Conclusion

This episode of Consider This highlights the intersection of law, loyalty, and political tension, as the Trump administration’s rhetoric and legal actions escalate against a sitting senator over a video asserting a basic military principle. Sen. Mark Kelly and others warn of dangerous overreach, while legal experts underline the constitutional and legal framework protecting both service members and lawmakers. The episode captures a chilling moment—when reminding troops of their oath is treated as sedition rather than civic duty.