Hegseth and Trump’s Unhinged Rantings Got it Exactly Wrong
The Investigation, Not the Dems’ Video, Was the Constitutional Violation
EDITOR’S NOTE
This is the second in a two-part series examining the legal and constitutional issues raised by the administration’s lethal boat strikes in the Caribbean—and its escalating efforts to investigate six Members of Congress who accurately restated the military’s own rules for dealing with patently illegal orders. Part One explained why the lawmakers’ message was legally sound. This Part shows why the administration’s retaliatory response is itself unconstitutional, and why it fits a recurring American pattern of overreach in moments of perceived conflict.
The administration’s reaction to the lawmakers’ 40-second video was immediate and incendiary. The President declared their message “SEDITION punishable by DEATH.” Secretary of Defense Pete Hegseth escalated the charge, accusing the Members of trying to “undermine” the chain of command—a remarkable claim given recent allegations that he himself issued an order directly contradicting the Defense Department’s Law of War Manual, which states: “An order to fire upon the shipwrecked would be clearly illegal.” The Manual reinforces that commanders must decline manifestly unlawful orders.
Within hours, a sober and important recitation of military law was recast by senior civilian leaders as subversion.
From that false premise came a law-enforcement “investigation.” Although, you might ask, what exactly were federal agents investigating? The supposed crime was the video itself, and nothing more. No new information had surfaced. The only trigger was the President’s call for prosecution. But the national-security apparatus moved anyway, as if the video posed an operational threat.
Nevertheless, Pentagon officials, on someone’s orders, opened inquiries. The FBI launched “knock-and-talk” visits. Agents appeared at lawmakers’ homes and, according to multiple accounts, at their congressional offices—a nearly unprecedented intrusion into a coequal branch.
Should the Congress, or the American people, care about mere visits to members from your friendly neighborhood FBI agent? Clearly. The investigation’s plain agenda was to bully and intimidate. The agents were not chasing a lead or resolving a factual dispute. There was no dispute to resolve. The video is public. Its words are plain. Whether it is “seditious” is a legal question with a one-word answer: no.
This was not fact-finding; it was message-sending. The point was unmistakable: protected speech about the legality of military orders can draw a visit from the national-security apparatus. The purpose wasn’t to learn anything. It was to browbeat and chill—to make clear that speaking openly about the administration’s conduct carries a cost.
The overreach is even more alarming given the target. The administration, which insists in the courts and the public on maximum respect and credibility, showed no regard for the members of a coordinate branch. Trump and Hegseth ran roughshod over the Constitution’s Speech or Debate Clause, which insulates Members engaged in “legislative acts,” a category courts read broadly. In particular, the Speech or Debate Clause protects not only floor remarks but any conduct “integral to deliberation,” including information-gathering, oversight, war powers inquiries, and other legislative communications about military law.
A message explaining the lawful limits of military orders is exactly the kind of work the Clause protects. And the medium doesn’t matter. The Supreme Court has repeatedly held that the Clause shields the “informing function” of legislators speaking to the public. Calling this speech “sedition” is not merely wrong but fanciful. Sedition requires advocacy of unlawful force against the United States; a public reminder to obey the law, delivered in the military’s own language, is the absolute antithesis of it. Even if the First Amendment analysis were complicated (it isn’t), the Clause independently bars executive-branch investigations of legislative acts. The immunity is jurisdictional. The FBI had no authority to interrogate Members for performing their constitutional duties.
The core constitutional violation at play in this episode–and one that has not been a part of the regular coverage—is the investigation itself.
The analysis of the Administration’s constitutional transgressions begins with probably the most famous and important first amendment principle in the canon. It arose, moreover, in a sedition case in which the defendants were convicted, but the courts and country later came to see it as fundamentally unjust. And the influential opinion was a dissent from a Supreme Court decision upholding the conviction.
Abrams v. United States (1919) took place at the high-water mark of patriotic fervor in World War I, when citizens were exhorted to call French fries “freedom fries” and frankfurters “liberty sausages.” The government prosecuted Russian immigrants for distributing leaflets criticizing America’s military intervention in Russia and urging a general strike. This was straightforward political advocacy: speech about war, foreign policy, and governmental conduct. Yet the Supreme Court, consumed by wartime panic, affirmed the convictions—a decision now regarded as a failure of constitutional judgment that blurred dissent into disloyalty.
Abrams is remembered instead for the dissent by Justices Oliver Wendell Holmes and Louis Brandeis. They insisted that political advocacy may be punished only when it poses a “clear and present danger” of causing legally cognizable harm—not theoretical harm, not political irritation, and certainly not mere disagreement with government policy. They warned, with enduring clarity, that suppressing criticism out of fear is the very mistake the First Amendment exists to prevent. Their dissent, rejected in the moment, became the cornerstone of modern free-speech law.
Seen through that lens, the present episode is not close. The lawmakers’ video concerns the legality of military orders—a subject repeatedly placed by the Court at the heart of public constitutional concern. The Members spoke cautiously, used the military’s own words, and urged compliance with law. Nothing in the message approaches the Holmes-Brandeis threshold. And critically, even if the Members had misstated the law—which they did not—the First Amendment would still protect their speech.
American history offers a regular refrain about what happens when the government confuses criticism with sedition. In Abrams itself, federal prosecutors won convictions against pamphleteers whose leaflets posed no threat at all—judgments now remembered only because the Holmes–Brandeis dissents lit the path toward modern First Amendment law. In the 1950s, congressional committees dragged writers, actors, and professors before television cameras for the “crime” of refusing to mouth the party line. After 9/11, investigative powers were again deployed against people whose views were merely unpopular. The through-line is unmistakable: when the government targets protected expression for official scrutiny, the constitutional injury begins with the investigation itself.
A corollary to the Abrams principle drives the point home: investigations themselves can violate the First Amendment if they are undertaken based on the subject’s viewpoint. The government can no more discriminate on the basis of viewpoint in mounting investigations than in bringing prosecutions.
So in Watkins v. United States, the Supreme Court held that the government may not wield investigative power “to expose, intimidate, or punish” political expression. The Ninth Circuit said the same in White v. Lee, holding that an eight-month HUD inquiry into citizens’ speech was itself unconstitutional. The D.C. Circuit reaffirmed the rule in Clark v. Library of Congress, condemning an investigation launched solely because of an employee’s political associations. And there are many others—especially at the district-court level—applying the same basic rule: once the government singles out protected speech for official scrutiny, the constitutional injury begins at the moment of investigation.
Here, the chain is clear. The lawmakers spoke; the President denounced them; agents were dispatched to cow the lawmakers. There was no national-security risk, no disclosure of classified material, no operational harm. The only “predicate” was the administration’s anger at a message that highlighted the legality of its own conduct in the Caribbean. That is retaliatory investigation, full stop.
The misfortune of Abrams is that its error took decades to acknowledge. Here, the governing principles are already settled. No future court needs to supply clarity. It is already on the table.
The lawmakers stayed within the law. The administration stepped outside it. Nothing in the Constitution permits a President to convert lawful oversight and truthful public explanation into a predicate for federal investigation.
That, in the end, is the gravest offense here. The danger is not that the Members might someday be prosecuted; it is that the Executive has already weaponized its investigative powers to punish dissent in real time. That is the constitutional injury. It is also the alarm bell.
So if the FBI comes knocking again, the Members should not simply answer the door. They should demand a subpoena, move to quash it, and force the administration to defend its misuse of authority in open court. Because this is no longer about a single video or a fleeting political clash. It is about whether Congress may still speak freely about war, law, and presidential power without the security services being turned against it.
The Constitution gives them the shield. The country needs them to raise it — and to raise their voices—precisely because the administration is straining to push past the legal limits that bind the use of military force. And it is vital that Members of Congress, especially those who have worn the uniform, insist—unequivocally—that those limits still bind.
Talk to you later.
Another sickening attempt by a madman and his drunk and incompetent minions to stifle the truth and those who speak it.
Well said! I am 78, disabled and have cancer. This walking on my civil liberties is terrifying. Thank God for honest, honorable humans here in the USA.