Trump & Hegseth Panic as Plot Collapses

Summary

Legal AF Podcast Summary: "Trump & Hegseth Panic as Plot Collapses"

Date: May 11, 2026
Hosts: Michael Popok (MidasTouch Network), with notable clips featuring Senator Mark Kelly, Pete Hegseth, and members of Congress
Theme: A breakdown of recent legal and political developments centering on the confrontation between Senator (and retired Navy Captain) Mark Kelly and Secretary of Defense Pete Hegseth, specifically over First Amendment rights, military law, and political gamesmanship during ongoing national security debates.

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Episode Overview

This episode explores Senator Mark Kelly's legal battle to defend his free speech rights as both a retired military officer and a sitting senator, following actions by Defense Secretary Pete Hegseth aimed at punishing Kelly for reminding military personnel not to follow illegal orders. The discussion intricately examines how military justice and First Amendment rights intersect—especially for those who shift from military service to public office. Hosts analyze the legal arguments, the implications of the case for civil-military relations, and the overarching political strategy exhibited by Trump and Hegseth as their "plot collapses" in court.

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Key Discussion Points & Insights

1. Mark Kelly vs. Pete Hegseth: The Legal Showdown

• Background:

  • Mark Kelly, former Navy pilot, astronaut, and current Arizona Senator, produced a public service announcement (PSA) with five other members of Congress, reminding military members of their duty not to follow illegal orders ([04:04]).
  • Pete Hegseth, Trump’s Secretary of Defense, attempted to penalize Kelly (demotion, pension loss, censure) for his comments, claiming violation of military code—sparking Kelly’s legal challenge ([04:05], [05:13]).

• Legal Issue:

  • The central question: Can a retired military officer, now a senator, advise active duty personnel on their legal and moral obligations under the Constitution, or does military law still silence them? ([07:03])
  • The Department of Defense cites Parker v. Levy (1974), which applies to active duty, not retired, officers ([08:22]).

• Host Take:

  • Michael Popok is confident the appellate court will rule in favor of Mark Kelly, affirming free speech protections for retired service members serving in public office ([08:36]).

2. Clips of the Key PSA (The 'Illegal Orders' Message)

• Notable Quote:

  • “You must refuse illegal orders.” — Sen. Mark Kelly ([05:48])
  • “No one has to carry out orders that violate the law or our Constitution.” — Rep. Maggie Goodlander ([05:52])
  • “Don’t give up the ship.” — Sen. Alyssa Slotkin ([06:17])

• The PSA reinforced lessons from military academies on refusing unlawful commands, causing a political uproar only because of its timing and current divisions.

3. Hypocrisy Exposed: Hegseth's Own Words

• Hegseth Previously Said:
  • “That’s why the military said it won’t follow unlawful orders from their commander in chief.” ([06:38])
• Host Commentary:
  • Both Kelly and Hegseth, as retired military, made almost identical statements—undermining Hegseth’s case and highlighting political motivations ([07:03]).

4. Judges' Reactions & Legal Precedents

• Appellate Panel:
  • Judges Pollard and Pan (from oral arguments) appeared favorable to Kelly’s defense ([08:36]).
  • Judge Karen Henderson questioned the limits of military control over retirees’ speech, even suggesting the Supreme Court would not uphold such broad restrictions ([08:36]).

5. Live Congressional Testimony: Kelly vs. Hegseth

• Hearing Highlights: ([10:54]–[12:38])
  • Rep. Jason Crow challenges Hegseth on the dangerous rhetoric of “no quarter, no mercy,” directly referencing U.S. law of war.
  • Crow: “So you stand by that statement. So you’re the Secretary of Defense. The things you say matter. And your response here… makes it clear to the American people exactly why you are not right for this job.” ([12:32])
  • Hegseth, dodging accountability: “We fight to win, and we follow the law.” ([11:45], [12:12])

6. Political Aftermath and Gaslighting Playbook

• Kelly’s Statement Post-Hearing: ([12:50])

  • “If 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.”
  • Kelly details escalating attempts (prosecution, jail threats, demotion) as blatant First Amendment violations.

• Host’s Analysis:

  • Popok: “This is another page out of the Donald Trump playbook... You gaslight. You do the exact same thing the other party does, but you claim they’re doing something wrong… to grab the news cycle because you know you’re going to be getting a bad result out of court.” ([17:11])

7. Rehashing Old Arguments in the Press

• Hegseth’s Public Contradiction:
  • Hegseth claims Kelly’s comments on munitions depletion (public knowledge) violate his oath—despite Hegseth himself making similar statements.
    • Kelly on TV: Critiques defense budget, points out well-known depletion of resources ([14:41])
    • Hegseth, previously: Acknowledges the same issue about depleted munitions and logistics ([16:01])

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Notable Quotes

• Sen. Mark Kelly (on First Amendment and military obligations):

  • “You must refuse illegal orders.” ([05:48])
  • “If you say something that the president or this administration does not like, they’re going to come after you... I can’t think of anything that’s more un-American.” ([12:50])

• Pete Hegseth:

  • “That’s why the military said it won’t follow unlawful orders from their commander in chief.” ([06:38])
  • “We fight to win, and we follow the law.” ([11:45], [12:12])

• Michael Popok (on the case’s significance):

  • “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 … you got to come away with Pan and Pilar are going to vote in favor…” ([08:36])
  • “This is another page out of the Donald Trump playbook, tiresome, hackneyed, dog eared playbook that we’re all tired and fatigued about…” ([17:11])

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Timestamps for Key Segments

• Mark Kelly’s PSA recap and context: [04:05]–[06:25]
• Hegseth’s prior statements on unlawful orders: [06:25]–[07:01]
• Legal debate on First Amendment vs. military code for retirees: [07:03]–[08:36]
• Congressional hearing confrontation: [10:54]–[12:38]
• Kelly’s response after oral arguments: [12:50]
• Debates over munitions, hypocrisy exposed: [14:41]–[16:31]
• Popok’s closing analysis of the broader Trump/Hegseth playbook: [17:11]

---

Memorable Moments

• The airing of Mark Kelly’s PSA, directly telling troops: “You must refuse illegal orders… Don’t give up the ship.”
• The juxtaposition of nearly identical statements by both Kelly and Hegseth about the military’s duty to refuse unlawful orders ([06:25]–[07:01]).
• The sharp, tense exchange between Jason Crow and Hegseth in a live oversight hearing, exposing evasiveness on adherence to military law ([10:54]–[12:38]).
• Kelly’s emotional, defiant post-hearing statement recounting presidential threats and his fight for constitutional values ([12:50]).

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Conclusion

This episode of Legal AF illustrates the high-stakes collision between constitutional law, military obligations, and partisan political machinations. Through careful legal analysis, direct source clips, and sharp commentary, the hosts show how attempts by Trump and Hegseth to silence critics like Mark Kelly not only threaten foundational First Amendment principles, but are also undermined by their own prior statements and public knowledge. The likely appellate court victory for Kelly is projected as a critical affirmation of both free speech and checks on executive overreach.

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For more detailed legal documents, oral argument recordings, and daily news roundups, listeners are encouraged to visit Legal AF’s Substack.

Transcript

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[Michael Popak]

Just like his boss Donald Trump, Department of Defense Secretary Pete Hegseth k can't

[Podcast Host/Commentator]

take what looks to be a losing

[Michael Popak]

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. 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 the the there's

[Podcast Host/Commentator]

a depletion of the munitions and weapons

[Michael Popak]

pile for the United States in fighting the war in Iran. That's why they're going to Congress for more money. That's something that's publicly known. But the Pete Heg said oh, you must have learned that from a secret briefing. No, he learned it from listening to you. I'm Michael Popak. You're on the Midas Dutch network in legal af. I'm traveling today because today is the day we receive the Webby Awards for the best News podcast, Legal AF2 awards and the best new podcast in news, the Intersection with Michael Popak me. You'll see photos later today and hopefully some video from down from the event. Holding three. I feel like a Grammy award winning winner. Holding three Webbies. 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

[Podcast Host/Commentator]

they are not to follow illegal orders

[Michael Popak]

under their code, under their oath, which is exactly what they're taught in school, by the way. 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 in, when he was teaching at one of these war colleges. Peg Seth decides he's gonna 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, 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.

[Senator Alyssa Slotkin]

I'm Senator Alyssa Slotkin.

[Senator Mark Kelly]

Senator Mark Kelly, Representative Chris d', Aluzio,

[Congresswoman Maggie Goodlander]

Congresswoman Maggie Goodlander, Representative Chrissy Houlihan.

[Michael Popak]

Congressman Jason Crow.

[Congressman Jason Crow]

I was a captain in the United

[Senator Mark Kelly]

States Navy, former CIA officer, former Navy,

[Congressman Jason Crow]

former paratrooper and Army Ranger, former intelligence

[Congresswoman Maggie Goodlander]

officer, former Air Force.

[Congressman Jason Crow]

We want to speak directly to members of the military and the intelligence community

[Senator Mark Kelly]

who take risks each day to keep Americans safe.

[Senator Alyssa Slotkin]

We know you are under enormous stress and pressure right now.

[Congresswoman Maggie Goodlander]

Americans trust their military, but that trust is at risk.

[Congressman Jason Crow]

This administration is pitting our uniform military

[Michael Popak]

and intelligence community professionals against American Citizens

[Mark Kelly (clip)]

like us, you all swore an oath

[Interviewer]

to protect and defend this Constitution.

[Senator Mark Kelly]

Right now, the threats to our Constitution aren't just coming from abroad, but from

[Congressman Jason Crow]

right here at home. Our laws are clear. You can refuse illegal orders.

[Senator Alyssa Slotkin]

You can refuse illegal orders.

[Senator Mark Kelly]

You must refuse illegal orders.

[Senator Alyssa Slotkin]

No one has to carry out orders

[Congresswoman Maggie Goodlander]

that violate the law or our Constitution.

[Congressman Jason Crow]

We know this is hard and that it's a difficult time to be a public servant.

[Senator Alyssa Slotkin]

But whether you're serving in the CIA,

[Congresswoman Maggie Goodlander]

the army, our Navy, the Air Force,

[Congressman Jason Crow]

your vigilance is critical.

[Senator Alyssa Slotkin]

And know that we have your back.

[Congresswoman Maggie Goodlander]

Because now, more than ever, the American people need you.

[Senator Alyssa Slotkin]

We need you to stand up for

[Senator Mark Kelly]

our laws, our Constitution, and who we are as Americans.

[Mark Kelly (clip)]

Don't give up.

[Senator Mark Kelly]

Don't give up.

[Mark Kelly (clip)]

Don't give up.

[Senator Alyssa Slotkin]

Don't give up the ship.

[Michael Popak]

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.

[Pete Hegseth (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.

[Podcast Host/Commentator]

So what's the difference?

[Michael Popak]

What's the difference that, 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

[Podcast Host/Commentator]

if they're in the military?

[Michael Popak]

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.

[Podcast Host/Commentator]

And if you're just a regular citizen,

[Michael Popak]

never serving in the military, there's no limits on your First Amendment rights. 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.

[Podcast Host/Commentator]

That's different.

[Michael Popak]

They're inside the military, breaching the chain of command. Captain Kelly, former Captain Kelly, is Senator Kelly outside. And that was the issue that the judges had.

[Podcast Host/Commentator]

Their position is we're in a whole new world.

[Michael Popak]

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? Because they can't. And I don't even think the Supreme Court is going to find that. My cat Chanel, she runs the house. I just pay the mortgage and scoop litter. So when I found something that fixes that worst part of having a cat, I paid attention.

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[Michael Popak]

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.

[Congressman Jason Crow]

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?

[Pete Hegseth]

The only entity that would kill detainees or target civilians is the Iranians, and they're the ones being crushed. The Iranian military and their military capability question is, with your articulation, no.

[Congressman Jason Crow]

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.

[Pete Hegseth]

We fight to win, and we follow the law.

[Congressman Jason Crow]

Okay, so your. Your quote was, we will keep pushing, keeping dancing. 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. Do you stand by that statement you

[Interviewer/Moderator]

made on March 13?

[Pete Hegseth]

We have untied the hands of our war fighters. We fight to win, and we follow the law.

[Congressman Jason Crow]

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

[Interviewer/Moderator]

it clear to the American people exactly

[Congressman Jason Crow]

why you are not right for this job.

[Pete Hegseth]

It makes it clear to our enemy, Senator.

[Congressman Jason Crow]

Thank you, Mr. Chairman.

[Michael Popak]

That's his job.

[Podcast Host/Commentator]

That's his job.

[Michael Popak]

Mark Kelly was so confident coming out of the hearing from a couple days ago as I am, that he said this coming out of the oral argument. Play the clip.

[Mark Kelly (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. If 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, which has now led

[Michael Popak]

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 violence, that we're depleting our ammunition. Now, 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.

[Interviewer]

When it comes to making America ready to defend our allies and ourselves, does what you described basically make it impossible for a Democrat like yourself to say no to, to that request from the White House for one and a half trillion dollars in defense spending?

[Senator Mark Kelly (continued)]

Well, first of all, let me, let

[Congressman Jason Crow]

me just back up a second.

[Senator Mark Kelly (continued)]

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 where 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.

[Interviewer/Moderator]

And as I pointed out in that,

[Senator Mark Kelly (continued)]

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 and 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.

[Michael Popak]

And now here's Kelly reminding Hegset that he said the exact same thing publicly that, that he's now claiming is a violation of the oath for having been briefed as a senator. Play the clip of Hegseth saying the exact same thing.

[Interviewer/Moderator]

How many years to replenish?

[Congressman Jason Crow]

That's the question.

[Pete Hegseth]

I think that's exactly the right question to Senator, because the time frame we were existing under was unacceptable.

[Interviewer/Moderator]

Okay, well, tell me what this budget does.

[Pete Hegseth]

I mean, months and years, past years. I mean, we're building new plants in real time.

[Interviewer/Moderator]

So just to replace what we. I said months and then you said years.

[Congressman Jason Crow]

Both.

[Pete Hegseth]

It depends on the weapon system, but 2 to 3.4x of what we have today. So, yes, we're dealing with a reality under the previous administration of what they sent to Ukraine and what they allocated elsewhere.

[Interviewer/Moderator]

I got it so we fired years worth of munitions and it is clear that we're 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 regiment 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 of this war is.

[Michael Popak]

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 I host with Karen Freeman Agnifolo and Ben Meiselas and Best New News Podcast in the Intersection, my podcast on Tuesday nights on the Midas Touch Network. Coming up with three Webbies 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 Popock.

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