People whistle and film as federal agents block an alley near 35th Street and Chicago Avenue while they break a car window to detain a man and his young daughter Thursday, Jan. 22, 2026. (Photo by Nicole Neri/Minnesota Reformer)

Less than an hour after the Saturday morning killing of Alex Pretti by federal agents in south Minneapolis, conservative influencer Cam Higby took to social media with a sensational claim: Higby had “infiltrated” the group chats fueling local resistance to Operation Metro Surge.

On Monday, FBI director Kash Patel said he had “opened an investigation” into the chats. Many are said to be hosted on Signal, the encrypted messaging app.

“You cannot create a scenario that illegally entraps and puts law enforcement in harm’s way,” Patel said in a podcast interview with Benny Johnson, another conservative influencer. Johnson’s title for the episode’s YouTube stream, “Kash Patel Announces FBI Crack-Down of Left-Wing Minnesota Terrorist Network LIVE: ‘Tim Walz Next…’,” left little to the imagination.

In response to emailed questions about the nature of its investigation, the FBI declined to comment. 

First Amendment lawyers and national security experts expressed deep skepticism that any charges stemming from it will stick, however. 

“As a general proposition, reporting on things you are observing and sharing those observations is absolutely legal,” Jane Kirtley, professor of media ethics and law at the University of Minnesota Law School, said in an interview.

A guide that Higby described as “the watered down opsec version” of a “TRAINING MANUAL for domestic terrorist patrols chasing ICE agents in Minneapolis” instructs observers to draw attention to suspected ICE activity using whistles and car horns — but specifically warns against impeding officers.

Kirtley said Patel’s statements to date have been too vague to support firm conclusions about what the FBI will actually investigate or what charges, if any, the United States Department of Justice would bring as a result. The sorts of loaded terms that influencers like Higby and President Trump himself have used to describe organizers’ activities — such as “conspiracy” or “insurrection” — are formal legal concepts that require certain standards to be met, she added.

Jason Marisam, a constitutional law professor at Mitchell Hamline School of Law, said any prosecution would likely need to pass a two-part test established in a nearly 60-year-old U.S. Supreme Court ruling, Brandenburg v. Ohio.

Brandenburg prohibits speech only if it is “directed to inciting or producing imminent lawless action,” such as violence against law enforcement officers, and “is likely to incite or produce such action,” according to a summary by Cornell Law School’s Legal Information Institute. 

Brandenburg is “a very high bar,” Marisam said. Speech that only indirectly led to “lawless action,” such as coordinating a protest that later turned violent, would likely not meet it, he added.

Marisam said Brandenburg, incidentally, is the same standard that former special counsel Jack Smith would have needed to meet had his January 6th prosecution against President Trump gone to trial, Marisam added. That case was mooted after Trump won a second term and subsequently oversaw a campaign of professional retribution against the career prosecutors on Smith’s team. 

Marisam said narrowing or overturning Brandenburg has not yet been a priority for conservatives in the judiciary, despite self-evident benefits for Trump’s efforts to quell dissent and consolidate power. But he acknowledged that the “politics of free speech” can change depending on who’s in charge in Washington.

For instance, Trump supporters castigated what they perceived to be limits on free speech during the Biden years, but have remained silent in the face of a student’s deportation for writing an op-ed. 

Still, Patel’s apparent interest in Twin Cities observers’ encrypted chats is likely less the opening move of a well-thought-out legal strategy than an effort to discourage legally permissible activity, Marisam said.

“It seems to me that (Patel’s) announcement is meant to chill speech ahead of time,” he said.

In a blog post published Tuesday, Patrick Eddington, a senior fellow with the libertarian Cato Institute, said federal prosecutors would likewise struggle to make hay out of Twin Cities observers’ use of the encrypted messaging apps themselves. 

Trump officials and right-wing pundits have pointed to Signal’s popularity within the observer networks as evidence that participants want to evade legal accountability for their actions. Signal uses end-to-end encryption, meaning messages sent on properly secured devices kept in their owners’ possession are effectively impossible for third parties to see. Signal itself can’t access messages or calls sent over the app, the company says, though messages on a user’s device can be read if it is hacked or stolen. (Or, if the wrong person is added to a Signal chat, as when senior national security figures in the Trump administration — including Secretary of Defense Pete Hegseth — sent information about military operations to the editor of The Atlantic magazine after he’d been accidentally included.) 

Eddington, who works on homeland security and civil liberties issues for Cato, said the Ninth Circuit Court of Appeals’ 1999 ruling in Bernstein v. United States Department of Justice established ordinary citizens’ rights to use encrypted channels for communication they wish to keep private. Government efforts to curtail encryption could impede individuals’ rights under the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable search and seizure.”

Eddington cited a much earlier precedent that may well have informed the Constitution’s privacy protections, though its contemporary legal relevance is unclear. Thomas Jefferson, James Madison and other members of America’s founding generation used “codes and ciphers” to communicate before, during and after the Revolutionary War, Eddington wrote. 

“The use of encryption to keep government authorities from getting access to our private communications is literally as American as apple pie,” he wrote.

U.S. Sen. Mark Kelly, an Arizona Democrat, speaks with attendees of Kamala Harris for President campaign event in Phoenix in November 2024. (Photo by Gage Skidmore | Flickr/CC BY-SA 2.0)

WASHINGTON — The Trump administration on Thursday asked a federal judge to deny Arizona Democratic Sen. Mark Kelly’s request to halt efforts within the Defense Department to punish him for appearing in a video where he urged members of the military not to follow illegal orders.

Attorneys for the Department of Justice asserted in a 52-page brief that the administration doesn’t believe federal courts hold jurisdiction over the matter, writing “the Judiciary does not superintend military personnel decisions.”

Kelly, a retired U.S. Navy captain, “is not a private citizen and does not enjoy the First Amendment freedom of speech as if he were one when being assessed by the military in military proceedings to determine whether his conduct comports with his obligations as a retired servicemember,” the brief states. 

Kelly’s lawsuit asked a federal judge for an emergency ruling declaring the Defense Department’s attempts to demote him and reduce his military retirement pay are “unlawful and unconstitutional.”

The lawsuit alleges the Pentagon’s actions against Kelly “trample on protections the Constitution singles out as essential to legislative independence.” 

“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”

Video rankled Pentagon

Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

The video at the center of the debate featured Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or intelligence community.

They said that Americans in those institutions “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

First Amendment doesn’t apply, DOJ says

Attorneys at the Justice Department, representing DOD in the case, argued in the brief they filed Thursday that no emergency relief is warranted, in part, because they believe Kelly’s First Amendment rights have not been violated. 

“Plaintiff is unlikely to succeed on his First Amendment claim because, as a retired servicemember, he has no First Amendment right to encourage other servicemembers to question the legitimacy of their military orders or to impugn their superior officers when such conduct violates his ongoing duties and obligations to the military,” the DOJ brief states. “The First Amendment is not a shield against the consequences of such violations in military personnel matters.”

Kelly’s constitutional protections as a member of the U.S. Senate under the Speech and Debate Clause of the Constitution also don’t apply in this instance, the DOJ legal team wrote. 

“A legislator’s public statements in interviews and on social media are not legislative acts protected by the Speech or Debate Clause,” DOJ wrote. 

The judge doesn’t need to issue emergency relief, the DOJ brief states, because there isn’t a separation-of-powers issue between the Executive Branch, where the Defense Department exists, and Kelly’s role as a senator in the Legislative Branch, which are considered separate but equal under the Constitution. 

Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, has scheduled a hearing on the issue for Wednesday. 

Leon could rule from the bench during those proceedings or issue a written order anytime afterward. 

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — The Defense Department will attempt to downgrade Arizona Democratic Sen. Mark Kelly’s retirement rank and pay, seeking to punish him for making a video along with other Democrats in Congress, who told members of the military they didn’t need to follow illegal orders. 

Defense Secretary Pete Hegseth originally threatened to recall Kelly from military retirement and court-martial him for his participation in the video, but announced Monday that the department would instead try to downgrade his rank of captain as well as his retirement pay. 

“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”

Hegseth added that Kelly’s “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

Kelly wrote in a social media post that he planned to challenge Hegseth’s attempt to alter his retirement rank and pay, arguing it’s an attempt to punish him for challenging the Trump administration. 

“My rank and retirement are things that I earned through my service and sacrifice for this country. I got shot at. I missed holidays and birthdays. I commanded a space shuttle mission while my wife Gabby recovered from a gunshot wound to the head– all while proudly wearing the American flag on my shoulder,” Kelly wrote. “Generations of servicemembers have made these same patriotic sacrifices for this country, earning the respect, appreciation, and rank they deserve.”

Kelly added that Hegseth’s goal with the process is to “send the message to every single retired servicemember that if they say something he or Donald Trump doesn’t like, they will come after them the same way. It’s outrageous and it is wrong. There is nothing more un-American than that.”

Constitutional protection

Members of Congress are generally protected under the speech and debate clause of the U.S. Constitution, which states that unless a lawmaker is involved in treason, felony and breach of the peace, they are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

Hegseth wrote in that letter that if Kelly continues “to engage in conduct prejudicial to good order and discipline, you may subject yourself to criminal prosecution or further administrative action.”

Allegations of misconduct

The Department of Defense posted in late November that officials were looking into “serious allegations of misconduct” against Kelly for appearing in the video. 

It didn’t detail how Kelly might have violated the Uniform Code of Military Justice but stated that “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth referred the issue to Navy Secretary John Phelan for any “review, consideration, and disposition” he deemed appropriate. Hegseth then asked for a briefing on the outcome of the review “by no later than December 10.”

Kelly said during a press conference in early December the military’s investigation and a separate one by the FBI were designed to intimidate the six lawmakers in the video from speaking out against Trump. 

The lawmakers in the video, who have backgrounds in the military or intelligence agencies, told members of those communities they “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

The other Democrats in the video — Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander — are not subject to the military justice system. 

Trump railed against the video a couple of days after it posted, saying the statements represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”