Category Archives: Court

U.S. Senator sues Hegseth and the DOD for multiple assaults on constitutional rights

In the face of persistent moves ordered by Secretary of Defense Pete Hegseth to punish Senator Mark Kelly, a former Navy combat pilot and retired astronaut, for opposing this administration’s policies, Kelly has now filed suit charging that these actions are in direct violation of fundamental constitutional rights as well as basic federal administrative law.

The lawsuit alleges seven violations. Here are a few excerpts from Kelly’s complaint on each alleged violation.

Violation of the First Amendment

Defendants’ actions seek to discipline the Senator for three categories of public statements: (1) reminders to servicemembers of their duty to refuse unlawful orders; (2) criticism of military leadership for “firing admirals and generals” and surrounding themselves with “yes men”; and (3) concerns that certain military operations might be illegal. All three categories are protected political speech….

Furthermore, Defendants’ actions amount to unconstitutional First Amendment retaliation. Senator Kelly’s speech is protected by the First Amendment; Defendants took materially adverse action against the Senator that would deter a person of ordinary firmness in his position; and a causal link exists between the protected speech and the adverse action.

Violation Of The Speech Or Debate Clause And Legislative Immunity

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Members of Congress “shall not be questioned in any other Place. ” U.S. Const. art. I, $ 6.

The “fundamental purpose” of this Clause is to free “the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” [legal case citations omitted]

Violation Of The Separation Of Powers

144. The Constitution presumes coequal branches, and the “doctrine of separation of powers” lies “at the heart of our Constitution.”

Separation-of-powers jurisprudence is animated by two primary concerns, “encroachment and aggrandizement.” Defendants’ actions do both.

Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate. [legal case citations omitted]

Violation Of Due Process

Agency decisions violate due process when they have been “prejudged” by pertinent Executive Branch officials, because agencies must “exercise [discretionary] authority according to [their] own understanding and conscience.”

Where a “disinterested observer may conclude that [an agency adjudicator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” the agency has “deni[ed] due process.”

Secretary Hegseth is the relevant agency decisionmaker here, having issued the censure letter and made the relevant “determination[s].” His letter states that the “Secretary of the Navy [will] recommend to me whether a reduction in grade is appropriate in your case,” but ultimately, “I will determine if a reduction is warranted.” (emphasis added).

Secretary Hegseth has already adjudged the decision to reduce Senator Kelly’s grade. The censure letter declares without qualification that Senator Kelly’s protected speech “undermines the chain of command,” “counsels disobedience,” “creates confusion about duty,” “brings discredit upon the Armed Forces,” and is “unbecoming” of an officer.

These determinations parrot the standards that, under Naval regulations, justify a reduction in grade. And the grade-determination letter confirms that the sole “factual basis supporting this action” is Secretary Hegseth’s letter of censure.

Violation Of 10 U.S.C. § 1370

Under 10 U.S.C. § 1370, an officer’s retirement grade must be determined exclusively by active-duty conduct: Officers “shall be retired in the highest permanent grade in which such officer is determined to have served on active duty satisfactorily,” unless “an officer committed misconduct in a lower grade than the retirement grade otherwise provided for the officer by this section.”

Under § 1370, the Secretary of the Navy-not the Secretary of Defense”shall” make the “determination of satisfactory service” for officers “serving in a grade at or below the grade of major general or rear admiral.”

An O-6, Navy Captain is a grade “below the grade of major general or rear admiral.”

Violation Of Administrative Procedure Act
Contrary To Law

Under the Administrative Procedure Act (“APA”), courts shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Defendants’ actions are contrary to law under each of the constitutional and statutory provisions described in Counts I through V above.

Violation Of Administrative Procedure Act
Arbitrary And Capricious

Under the APA, a court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.”

Defendants’ actions are arbitrary and capricious because the agency failed to “examine the relevant [information] and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” The agency has not offered any “rational connection” between Senator Kelly’s statements and Defendants’ actions. Id.

Each of these points is presented and argued extensively with a recitation of facts and extensive legal references in Kelly’s legal complaint, which is presented in full below.

Mainland fireworks companies or their employees appear to have facilitated illegal shipments to Hawaii

The year-end arrests of two Big Island men on federal charges for importing and selling illegal fireworks may be the tip of an investigative iceberg, or simply an easier case to make than one targeting similar shipments to the far larger underground marketplace here in Honolulu. I want to believe the former, but it’s not clear whether that would be a good bet.

According to a news release from the Office of the U.S. Attorney in Hawaii:

HONOLULU – United States Attorney Ken Sorenson announced that Darrel Goo, 52, of Keaau, Hawaii, and Cy Tamura, 45, of Hilo, Hawaii, were arrested and charged by criminal complaint yesterday with multiple fireworks-related criminal offenses, including transporting fireworks into Hawaii; engaging in the business of transporting, distributing, and storing explosive materials; and shipping, transporting, receiving, and possessing any explosive in and affecting interstate commerce. Goo was also charged with being a felon in possession of firearms and ammunition.

According to court documents, from in or around May 2016 through August 2025, Goo and Tamura conspired to engage in the business of transporting, storing, and distributing illegal fireworks in and around the Island of Hawaii. Goo used a fictitious name and Alaska addresses to conceal his annual fireworks purchases sourced from a fireworks company on the U.S. mainland. He also paid for the fireworks in batches of money orders and cash. Tamura arranged the shipping logistics from the U.S. mainland to Hawaii by falsely claiming that the fireworks shipments contained horticultural materials.

The arrests are the result of a multi-agency investigation involving the Internal Revenue Service – Criminal Investigation, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Investigation, with assistance from the Hawaii Attorney General’s Office, Special Investigation and Prosecution Division, and the Hawaii Department of Law Enforcement, according to the news release.

I couldn’t help but note that the Honolulul and Big Island police departments are not listed among those cooperating in the investigation, although joint local-federal investigative task forces are common.

The charges were brought via a “criminal complaint” rather than a federal grand jury indictment. This typically signals that the defendants are cooperating, so that prosecutors did not have to seek an indictment. In addition, the government did not seek to detain either defendant, and they were both released on unsecured $50,000 bonds without opposition by prosecutors.

The affidavit of an IRS criminal investigator filed in support of the criminal charges provides further details of the case. There’s some interesting stuff here.

The government alleges Goo and Tamura bought fireworks from a Wisconsin company, and companies in Kentucky and Indiana that sold “overloads,” referring to “fireworks that appear to be consumer grade fireworks, but in truth and fact are packed with more explosive material….”

The pair would fly Wisconsin to make the purchases and have the fireworks loaded into containers for shipping. The fireworks company and/or its employees facilitated the illegal shipping to Hawaii by helping to disguise the loads, using top soil or hay to cover the pallets and fireworks wrapped in black plastic. However, no charges appear to have been filed against others who facilitated the illegal shipments.

“The contents were falsely declared by the shipper as ‘Perlite, Horticultural’, ‘Horticultural Supplies including Perlite/Potting Soil’, ‘Bailed Horse Hay & Potting Mix’, ‘Horse Hay/Potting Mix’, and ‘Bailed Hay'”, according to the affidavit. “On certain trips, they would rent a truck and pick up the overloads in Kentucky, then drive them back to Wisconsin to be packed and shipped to Hawaii.”

Their annual bulk fireworks purchases in Wisconsin ranged up to $131,000, while another $80,000 was “typically” spent on overloads, the affidavit alleges.

During early years of this fireworks conspiracy, payment was made using multiple money orders in amounts of $500 and $1,000.

“The money orders were purchased at multiple locations on the Island of Hawaii and were purchased by multiple individuals, including Tamura, in small increments to avoid detection,” the affidavit states. Purchases were made using a false name (“John Branco”) using fictitious Alaska addresses.

For example, in or around May 2020, GOO placed a fireworks order under Branco for 588 cases of aerial-type fireworks including mortar tubes, multi-shot aerial cakes, rockets, and roman candles. The Fireworks Company invoice total was $51,805.96 and included handwritten notes that stated, “50,000 Money Orders” and an Alaska customer address. The Fireworks Company deposited 50 money orders in $1,000 denominations provided by GOO into its bank account. The money orders were purchased from various Post Office locations in Hawaii County between on or about March 19, 2020, and April 24, 2020.

Hawaii Island had 25 post offices in 2020, according to the State Data Book.

According to the affidavit, investigators had Goo and Tamura under surveillance earlier this year when they traveled to the fireworks company’s warehouse in Prescott, Wisconsin. In July 2025, investigators executed a search warrant and seized approximately 18 pallets of boxes containing aerial fireworks, and another 18 pallets believed to be “overloads” trucked from Kentucky/Indiana. The fireworks were removed for testing and held as evidence, replaced with bags of concrete mix, and the two containers were sent on their way, trucked to the port in Long Beach, California, and then shipped by barge to Honolulu.

The only information about the distribution network on the Big Island is contained in a footnote.

During an interview with law enforcement on August 13, 2025, GOO stated that his fireworks sales season ran from October through December. GOO had a network of people who helped him sell fireworks and were paid between $20 and $50 per piece sold. GOO passed out inventory lists on paper and text. Customers texted GOO what they wanted, and GOO would deliver the fireworks to them. GOO used burner cellphones to communicate with his distributors and customers.

The full criminal complaint and affidavit were filed under seal in Federal District Court in Honolulu on December 26, and unsealed after Goo and Tamura were arrested.

Miske co-defendants appeal long sentences

Two of Mike Miske’s co-defendants who received among the longest prison sentences have now appealed their extended terms to the 9th Circuit Court of Appeals in San Francisco. Both appeals had been delayed by the long government shutdown in October, and are only now proceeding.

Attorneys representing Norman Akau, sentenced to a 14-year term, and John Stancil, sentenced to the maximum 20 years for racketeering conspiracy, filed opening briefs last week. The filings spelling out what the attorneys say were reversible errors made during sentencing by Federal Judge Derrick Watson, who presided over the racketeering cases against Miske and his criminal associates.

Both appeals are seeking to vacate the original sentences on technical grounds, and are then asking for the cases to be assigned to a different district court judge for resentencing.

The government’s answering briefs in response to the appeals are due within 30-days.

A third co-defendant, Lance Bermudez, filed a notice of appeal of his 30-year sentence, the harshest of any of the Miske-associated defendants. However, his court-appointed attorney withdrew from the case after he refused to communicate with her.

California attorney DeAnna S. Dotson had been appointed in August to handle Bermudez’ appeal. Although she was able to speak with her client once after her appointment, he refused to accept a letter explaining her appointment, which was returned to her marked ‘Inmate refused to Legal Mail,’ and subsequently refused to talk to her on the phone, according to Dotson’s declaration filed in court. In her declaration, Dotson also said she had reviewed the case and found no grounds for an appeal.

Although another San Francisco-based attorney was assigned to the case on December 2, it remains unclear whether Bermudez will cooperate sufficiently for any appeal to go forward.

In their plea agreements with the government, all three men waived most of their rights to appeal either their convictions or sentences. Their plea agreements both contained the following provisions:

The defendant knowingly and voluntarily waives the right to appeal, except as indicated in subparagraph “b” below, his convictions and any sentence within the Guidelines range as determined by the Court at the time of sentencing, and any lawful restitution order imposed, or the manner in which the sentence or restitution order was determined, on any ground whatsoever, in exchange for the concessions made by the prosecution in this Agreement. The defendant understands that this waiver includes the right to assert any and all legally waivable claims.

The exception reads: “b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to the defendant, the defendant retains the right to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined and to challenge that portion of his sentence in a collateral attack.”

I believe their sentences were within range in the sentencing guidelines, but the appeals raise questions about whether the guidelines were applied properly.

The 9th Circuit will have to determine whether the appeals as filed fall within the exception to the standard waiver. However, appeals of this kind generally have a relatively low success rate in federal criminal cases.

Akau

At the time of his arrest and detention in 2020, Akau was serving his third term on the executive board of Local 665 of the International Alliance of Theatrical Stage Employees, which represents workers in the film and stage productions.

He had been permitted to run for election to the board while still on probation after being convicted and sentenced to prison for shooting a taxi driver in a botched robbery while still a teenager, despite a federal law barring felons from union office for a period of 13-years after release from custody.

While in prison, Akau had become a member of the USO prison gang and took part in assaults carried out by the gang. Later, during trial testimony, Akau said he had continued to carry out assaults for USO after being released from prison.

Tucson-based attorney Ramiro Salazar Flores filed a 50-page appeal on behalf of Norman Akau on Monday, December 22. He argues that the government breached the terms of Akau’s plea agreement with prosecutors by including Akau’s participation in the murder-for-hire plot targeting a former ILWU official in setting the range of appropriate sentences under federal sentencing guidelines. Akau had disclosed the murder plot as part of his plea agreement, and had been repeatedly assured during plea negotiations that his disclosure would not be used against him in sentencing. Allowing it to enter into calculating the appropriate sentence was a reversible error, according to Flores’ brief.

Stancil

The opening brief in the appeal on behalf of John Blaine Stancil, younger half-brother of the late racketeering boss, Michael J. Miske, Jr., was filed on Christmas Eve by Boise-based attorney W. Miles Pope.

The appeal argues that Judge Watson made a clear error during sentencing by refusing to consider Stancil to have had only a “minor” or “minimal” role in the murder-for-hire plot against Joe Boy Tavares, a Waimanalo man Miske suspected of providing information against him to investigators and therefore wanted to have killed. Federal guidelines provide for lower sentences when such a “mitigating-role adjustment” is appropriate.

In addition, Pope argues that Judge Watson failed to explain why he had not allowed some reduction in the sentencing guideline in light of Stancil’s clean disciplinary record during the 4-1/2 years he had spend in federal detention prior to sentencing. Failure to adequately explain sentencing decisions can be considered a reversible error, according to cases cited in the appeal.

Stancil entered into a last-minute plea deal with prosecutors early on the morning the federal racketeering trial was to begin, leaving Miske to face the jury alone.

Stancil pleaded guilty to a single charge of racketeering conspiracy, but also admitted his role in the Joe Boy Tavares murder plot, aiding in the release of the chemical chloropicrin inside two nightclubs that competed with Miske’s M Nightclub and its successor, Encore, as well as a string of violent assaults.

Judge: Presidential power deserves judicial deference, not immunity from court review

Associated Press reported on Christmas Eve:

A federal judge has blocked the Trump administration from enforcing a March presidential memorandum to revoke the security clearance of prominent Washington attorney Mark Zaid, ruling that the order — which also targeted 14 other individuals — could not be applied to him.

The decision marked the administration’s second legal setback on Tuesday, after the Supreme Court declined to allow Trump to deploy National Guard troops in the Chicago area, capping a first year in office in which President Donald Trump’s efforts to impose a sweeping agenda and pursue retribution against political adversaries have been repeatedly slowed by the courts.

U.S. District Judge Amir Ali in Washington granted Zaid’s request for a preliminary injunction, after he sued the Trump administration in May over the revocation of his security clearance. Zaid’s request called it an act of “improper political retribution” that jeopardized his ability to continue representing clients in sensitive national security cases.

As slow and unresponsive as it may seem, and as unhinged from constitutional history and precedent the highest court in the land may be at times, federal judges are in numerous cases finding solid legal grounds for rejecting the president’s assumption of royal powers.

And this rejection of the president’s “improper political retribution” against those he has defined as his political enemies is one of those cases.

In a 39-page opinion issued on December 23, Judge Amir H. Ali, Federal District Court for the District of Columbia, found that Zaid’s due process rights were violated by the revocation of his security clearance.

This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government, carried out by summarily canceling the attorney’s security clearance without any of the process that is afforded to others. In defending its actions, the government does not meaningfully rebut that the decision to deny this attorney the usual process was based on his prior legal work for clients adverse to the government. The government instead asserts, emphasizes, and repeats that the executive branch has exclusive power to determine who meets the requirements for security clearance. See Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (observing that “the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch”). That is well established, but does not answer the question in this case. It is equally well established that the executive branch’s exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the Constitution’s limits. As Judge Randolph aptly laid out in this context over thirty years ago:

All questions of government are ultimately questions of ends and means. The end may be legitimate, its accomplishment may be entrusted solely to the President, yet the judiciary still may properly scrutinize the manner in which the objective is to be achieved. Suppose the President has unlimited and judicially unreviewable constitutional power to determine which Executive Branch employees will be given access to the nation’s secrets. No one would suggest the government therefore could, despite the Fourth Amendment, conduct random searches without warrants in the hope of uncovering information about employees seeking security clearances. Still less would anyone consider such unconstitutional searches and seizures to be immune from judicial review. The government may have considerable leeway to determine what information it needs from employees holding security clearances and how to go about getting it. But a large measure of discretion gives rise to judicial deference, not immunity from judicial review of constitutional claims.

Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 290 (D.C. Cir. 1993). That guidance is sound, and it is binding.

It is another opinion that is worth wading throught the legalese to appreciate the substance of the arguments against the absolute power of this president to act like a king.