U.S. Circuit Judges Karen LeCraft Henderson, Florence Pan, and Cornelia Pillard, respectively appointed by Presidents George H.W. Bush, Joe Biden, and Barack Obama, formed the panel, a fact that Law&Crime pointed out after Hegseth finally filed the promised appeal of his loss. Despite technical difficulties with the court's publicly posted audio stream, Pillard and Pan's grilling of a DOJ attorney was enough to glean which way the wind is blowing.

"I mean, this is really basic," Pillard told the government. "You are not disagreeing that the video at issue that is the fulcrum of this case, Senator Kelly never says the words disobey lawful orders, right? I mean, that's uncontroversial. I understand you have a whole theory, but he doesn't say that, right?"

"Not in isolation, expressing —" the DOJ lawyer began to answer, before agreeing the judge was "correct."

In the lead-up to oral arguments, Kelly filed a brief recounting how President Donald Trump accused him and five other Democrats — Rep. Jason Crow, D-Colo., Rep. Maggie Goodlander, D-N.H., Reps. Chris Deluzio and Chrissy Houlahan, D-Pa., and Sen. Elissa Slotkin, D-Mich. — of engaging in "SEDITIOUS BEHAVIOR, punishable by DEATH!" when they appeared in a video in November, condemned lethal military strikes on alleged drug smugglers' boats in international waters, and stated, "you can refuse illegal orders."

The Trump administration not only accused Kelly of "undermin[ing] the chain of command," "counsel[ing] disobedience," and engaging in "conduct unbecoming an officer" warranting a reduction in his retirement rank and pay grade, but U.S. Attorney Jeanine Pirro also launched a criminal investigation into the retired Navy captain and his fellow members of the so-called "Seditious Six." That ended in grand jury no-bills, and Kelly scored his lawsuit win days later in February.

All along, Kelly said "you can refuse illegal orders" referred to the Uniform Code of Military Justice, and Pillard picked up on it.

"He says you have a duty to disobey unlawful orders, right? That is something that is taught at Annapolis to every cadet, right?" the judge asked.

The DOJ shot back that the "only reason" Kelly said what he did was because the sitting senator and astronaut had a "specific intent to influence active duty service members" and that "Captain Kelly was not purporting to give a speech in Annapolis on military law."

"How do we know that?" Pillard followed up.

Because Hegseth said so, the DOJ replied.

"This was the secretary's determination based off a review of a pattern of conduct in a series of public statements," the attorney said. "He determined — that was his inference, his characterization, that the statements were made with the intent to counsel disobedience."

Pillard and Pan dug deeper and suggested the government's case boils down to Hegseth's say-so that Kelly really meant "disobey lawful orders."