On The Front Lines
Defending the Constitution Is Not a Crime: Twin Rulings Block Trump Administration Retaliation Against Veteran Lawmakers
WASHINGTON, D.C. — Two back-to-back rulings have rebuffed efforts by the Trump administration to retaliate against military veterans for exercising their First Amendment rights and reaffirming that military service members’ oath is to the Constitution.
A federal grand jury rejected attempts to prosecute six members of Congress for reminding military service members that their allegiance is to the Constitution—not to any individual officeholder—and that they retain both the right and the legal obligation to refuse unlawful commands. Two days later, a federal district court judge blocked the Pentagon’s effort to reduce the military retirement grade and pay of Senator Mark Kelly, one of the six lawmakers, ruling that the move violated his constitutional protections. Together, the decisions reaffirm both the constitutional protection of free speech and the structural safeguards designed to check government overreach, including the vital role of citizen nullification.
“The Constitution does not place veterans—or members of Congress—on a shorter leash when it comes to free speech or conscience,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “These twin rulings are a timely reminder that service members have a duty to disobey unlawful orders, free speech cannot be criminalized because it is inconvenient, and the Constitution depends on citizens and courts willing to enforce its limits.”
Under longstanding principles of U.S. military law, service members are obligated to disobey unlawful orders —a doctrine embedded in military training, reinforced by the Uniform Code of Military Justice, and rooted in constitutional tradition. Concerns over unlawful orders are not hypothetical. The Orders Project, a nonpartisan initiative that connects service members with outside legal counsel, has reported increased inquiries from military personnel concerned they could be pressured to carry out actions inconsistent with the Constitution or the laws of war. In response, six members of Congress—all with military or national security backgrounds, including Senator Kelly, a decorated combat veteran—recorded a public message reminding service members of what every recruit is taught in basic training: “No one has to carry out orders that violate the law or our Constitution.”
Despite the longstanding legal foundation of that principle, federal prosecutors sought grand jury action under a statute prohibiting interference with the loyalty, morale, or discipline of the armed forces—a charge carrying penalties of up to ten years in prison. The grand jury declined to indict.
Separately, Secretary of Defense Pete Hegseth moved to reduce Senator Kelly’s military retirement grade and pay following his public statements. A federal district court ruled that doing so “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” adding that “our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”
The grand jury’s refusal to indict and the court’s injunction together reaffirm the powerful role citizens and the judiciary play in acting as constitutional bulwarks against government misconduct and overreach. The Rutherford Institute has long emphasized the importance of nullification—whether by juries, grand juries, or citizens refusing to cooperate with unconstitutional mandates—as a legitimate and historic means of pushing back against abuses of power.
The Rutherford Institute is a nonprofit civil liberties organization dedicated to making the government play by the rules of the Constitution. To this end, the Institute defends individuals whose constitutional rights have been threatened or violated and educates the public on a broad range of issues affecting their freedoms.
Case History
January 8, 2026 • Rutherford Institute Sounds Alarm Over Trump Administration Efforts to Retaliate Against Veterans for Defending the Constitution
