A breakdown of the impeachment articles filed against Pete Hegseth

For a legal perspective on the effort to impeach Defense Secretary Pete Hegseth, Geoff Bennett spoke with Eugene Fidell. He’s a longtime military law expert who served as a Coast Guard lawyer and later practiced military law in the private sector. He also co-founded the National Institute of Military Justice, an organization dedicated to improving the military justice system.

Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

Geoff Bennett:

And for a legal perspective on the effort to impeach Defense Secretary Pete Hegseth, I spoke earlier today before the failed procedural vote with Eugene Fidel.

He's a longtime military law expert who served as a Coast Guard lawyer. He's also co-founder of the National Institute of Military Justice. That's an organization dedicated to improving the military justice system. He's now a lecturer at Yale Law School.

Eugene Fidel:

Thank you.

Geoff Bennett:

Let's start by looking at some of the specific charges. Article FIVE accuses Secretary Hegseth of extrajudicial killings in connection with the U.S. strikes on those suspected drug smuggling boats. And it cites an operation in which an initial strike reportedly left survivors, followed by an additional strike that killed them.

What's the central legal question here?

Eugene Fidel:

Well, the government has argued, the administration has argued that these were deaths in the context of an armed conflict. That's a ridiculous claim. And, in fact, these are extrajudicial killings -- that's French for murder -- committed on the high seas in a totally botched law enforcement effort.

Geoff Bennett:

So what would Congress need to prove in order to make that case?

Eugene Fidel:

Very little. The -- for one thing, the government has never released to the public the legal opinion that pretends to justify the boat strikes.

And basically you would have to put on evidence that the boat strike victims, who now count way over 200, were never convicted by any court of law, were never sentenced to death, and were basically executed.

Geoff Bennett:

There are three articles that accuse Hegseth of violating the war powers resolution by directing military attacks against Iran without congressional authorization. But presidents of both parties have ordered military strikes without explicit approval from Congress. What makes this case legally different?

Eugene Fidel:

Well, it's a fact that presidents of both parties have tended to either get chalk on their strips -- their spikes or go over the line prescribed in the U.S. Constitution.

The Constitution gives Congress the power to declare war. Congress has never declared a war against Iran, also against the Houthis in Yemen, and to pursue hostilities that clearly amount to war without that authorization puts this case squarely in the heartland of high crimes and misdemeanors.

The fact that other administrations have tiptoed around this or maybe committed the same kind of offense doesn't take Mr. Hegseth or his boss off the hook.

Geoff Bennett:

Well, on that point, Hegseth could argue that the president, as commander in chief, has broad constitutional authority to order military operations, and he was simply carrying that out as defense secretary. How much legal protection would that offer?

Eugene Fidel:

If I were voting, I would reject that defense.

Geoff Bennett:

Why?

Eugene Fidel:

Because the president cannot declare war unilaterally. He -- the Constitution binds. It's the supreme law of the land. It governs him and it governs Hegseth. And the president cannot pretend to arrogate to himself the power that Congress alone possesses.

So the claim that Hegseth was only following orders doesn't get him anywhere, because those orders were illegal.

Geoff Bennett:

Where would Hegseth's independent responsibility under the law begin?

Eugene Fidel:

He never loses independent responsibility. That's the thing about a system of law and -- that includes accountability.

independent responsibility. That's the thing about a system of law and that includes accountability. You cannot invoke somebody else as the giver of orders and say, well, I wash my hands of this. I'm just doing what I was told.

That was the problem in, for example, the case of Lieutenant Calley in the My Lai massacre. That was the problem during World War II, and that's the problem that we're facing now.

Geoff Bennett:

When we're speaking about legality, to be clear, impeachment is a political process, not a criminal one, not a criminal prosecution.

You told our team, though, that based on the conduct described in these articles of impeachment, that Secretary Hegseth could be exposed to criminal prosecution in civilian courts. Say more about that.

Eugene Fidel:

Well, I'm thinking specifically about the over 200 victims of those boat strikes. The boat strikes can be characterized as murders. Murder on the high seas is a federal crime that applies not simply to military personnel. It applies to everyone subject to Title 18 of the U.S. Code. That includes Mr. Hegseth.

So he, in theory, as an architect of these boat strikes and the approver of the boat strikes, has some exposure there. Now, whether that exposure will ever take him into a courtroom is another matter, because, among other things, President Trump could give him a pardon. That's a different question.

Geoff Bennett:

The secretary today also suggested that this impeachment effort could ultimately expose American service members to war crimes prosecutions for simply following orders. Is that a legitimate concern?

Eugene Fidel:

That's a pathetic argument on his part. Military personnel have a duty to disobey unlawful orders. If any of them actually followed these orders, and obviously some people did, there is some exposure there.

But that doesn't get Mr. Hegseth off the hook. And the notion that he would trade on the fact, basically use subordinates as kind of human shields in the legal system is really sickening.

Geoff Bennett:

Eugene Fidel, thank you for your time this evening. We appreciate it.

Eugene Fidel:

Thank you.