Law professor points to Signal chat, boat strikes, alleged Kelly retribution
Finkelstein, a contributing opinion writer for the Guardian, wrote that recriminations are now flying among Democrats over the failed vote, but that the outcome lets the party drop the articles she believes were most likely to fail. “A more targeted set of articles in the new Congress might stand a better chance of success,” she wrote.
The first four of Massie’s articles addressed the Iran war, asserting that the Department of Defense overstepped presidential war powers authority. The first three accused Hegseth of failing to respect congressional authority and the War Powers Resolution. The fourth claimed that the Pentagon failed to mitigate harm to civilians in its operations, resulting in the tragedy of the US strike on the girls’ school in Minab, Iran.
Finkelstein argued that those articles might ultimately have backfired in the Senate, and maybe even in the House on a final vote. She noted a long history of presidents ignoring Congress’s role in decisions to engage in military force, citing Richard Nixon’s invasion of Laos and Cambodia, the US-led Nato intervention in Kosovo and Serbia under Bill Clinton, and US military intervention in Libya under Barack Obama, among others, and wrote that presidents and their secretaries of defense have flouted Congress’s role in authorizing military operations for years. She applied the same reasoning to civilian harm, writing that mistaken strikes against civilians during the Obama years inspired Secretary Mattis, followed by Secretary Austin, to establish the now-shuttered Civilian Harm Mitigation and Response program — whose dismantling she called a Hegseth initiative and one of Massie’s concerns.
Of three causes Finkelstein said were most likely to garner bipartisan support, the first did not appear in Massie’s articles at all: Hegseth’s handling of classified communications in the Signal chat conversation about a planned military operation in Yemen, when the editor-in-chief of the Atlantic, Jeffrey Goldberg, was inadvertently included on the thread. Finkelstein wrote that “Signalgate” identifies one of the worst cases of mishandling classified information ever by a higher-level official in the defense department, and that a Pentagon report itself suggests Hegseth put troops in danger in the incident. She wrote that Hegseth and other members of the administration continued to exchange classified information on Signal even after the initial revelation by the Atlantic, and that Hegseth then embarked on extensive internal investigations, using polygraph testing to search for leakers, and ultimately firing Lt Gen Brett Sylvia, a member of the joint staff. Yet the secretary himself, or at least his lax practices, may well have been the source of some of the very leaks he is investigating, Finkelstein wrote.
Second, Finkelstein wrote, boat strikes directed against civilian vessels in the Caribbean and eastern Pacific stand on a different footing from the articles relating to the Iran war. She wrote that this use of US military force has been virtually unanimously condemned by legal experts as an indisputable violation of the laws of war, or, more accurately, as murder.
Third, she proposed an article addressing what she called a vindictive campaign of retribution against Senator Mark Kelly for a controversial video he made with five other members of Congress. Finkelstein wrote that this third article could well garner support from Republicans, some of whom may rise to the occasion to defend their colleague. As Finkelstein wrote in a brief supporting Kelly, the video, which reminded troops they may refuse to follow illegal orders, merely restated textbook training to servicemembers regarding the law of superior orders. She wrote that the attack on Kelly was not popular with either Democratic or Republican members of Congress.
Finkelstein also suggested that Hegseth’s attack on Pentagon lawyers should also be investigated and should possibly form a fourth article in newly refocused charges. She wrote that, starting with the firing of the top Judge Advocate Generals and moving on to incursions into the role played by rank-and-file Jags, Hegseth has sought to undermine fidelity to the rule of law and the role of lawyers in reviewing military operations. She noted that Congress has heard some testimony on these matters, such as that of Adm Frank Bradley, who took the hit himself for certain of the boat strikes in what she called a likely attempt to protect Hegseth, but that many questions remain unanswered.
Finkelstein wrote that impeachment proceedings against Hegseth would give Congress an opportunity to strengthen its oversight authority, including forcing release of the Office of Legal Counsel memo justifying the boat strikes. As she recently wrote about possible impeachment charges against Trump, Finkelstein wrote, Congress’s heightened investigatory powers during an impeachment inquiry provide a critical benefit of the process. She said OLC lawyers should be called on to testify — presumably behind closed doors — to explain the process by which they came to support the strikes, and that an investigation of the OLC is long overdue in any event, and a more general inquiry should be conducted by the House and Senate judiciary committees.
She anticipated that Hegseth would likely invoke either presidential “testimonial immunity” or “deliberative privilege,” doctrines she said were made up by the executive branch over time and rarely tested in article III courts. Finkelstein acknowledged that presidents need to be able to consult with members of their cabinets confidentially, but wrote that these doctrines have served more to interfere with congressional oversight and block transparency than to further sound presidential decision-making, and that Congress must work to cut these outsized claims of presidential authority down to size. She predicted that classification concerns would also be raised against sharing information with Congress, wrote that Congress must stand firm and focus on rebuilding its oversight authority, and noted that members of the two armed services committees have robust classification privileges that make sharing information behind closed doors entirely legal and appropriate.
Finkelstein wrote that leaders of the 120th Congress will have the opportunity to lead critical impeachment inquiries as well as conduct extensive oversight in the new year, but must play their cards carefully and keep their eyes on the prize — what she described as the long-term restoration of democratic norms and the strengthening of checks and balances in the federal government.
Finkelstein is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania, founder and faculty director of Penn’s Center for Ethics and the Rule of Law (CERL), and a fellow in residence at the Edmond & Lily Safra Center for Ethics at Harvard University during the 2026-27 academic year.