The Pentagon announced on Monday that it is launching an investigation into Democratic Senator Mark Kelly, a retired US Navy captain, following serious allegations of misconduct. This investigation could potentially lead to his recall to active duty, where he may face a court-martial or administrative punishment. The move comes in the wake of former President Donald Trump's ongoing demands for repercussions against Kelly and five other Democratic lawmakers for a video they released, urging servicemembers to disobey illegal orders.
In a video shared last week on X, the group of lawmakers, which includes Senators and Representatives, emphasized that “threats to our Constitution” are emerging “from right here at home.” They called upon the military and intelligence community to “refuse illegal orders.” Trump's response characterized their actions as “seditious” and “treasonous,” intensifying the scrutiny on Kelly, who, due to his status as a senior officer, is legally obligated to be available for recall.
Alongside Kelly, the other lawmakers involved in the video—Senator Elissa Slotkin and Representatives Jason Crow, Maggie Goodlander, Chris Deluzio, and Chrissy Houlahan—are not eligible for military recall. The Department of Defense released a statement that indirectly referenced the video, reminding all servicemembers of their legal obligations under the Uniform Code of Military Justice (UCMJ). The statement reiterated that orders are presumed to be lawful and that personal beliefs do not justify disobedience of lawful orders.
Service members are bound to follow only lawful orders, as following an unlawful order can lead to prosecution under the UCMJ. This principle is underscored by historical precedents, including the infamous “Nuremberg defense,” which was utilized by high-ranking officials in Nazi Germany during post-World War II trials. The law mandates that simply receiving an order does not protect an individual from accountability.
In light of the investigation, Mark Kelly responded with a statement highlighting his extensive military service and criticizing Trump’s rhetoric. He declared, “If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work.” Kelly emphasized that he has dedicated too much to his country to allow intimidation from those prioritizing power over constitutional values.
In a subsequent statement shared on X, Secretary of Defense Pete Hegseth condemned the video, labeling it “despicable, reckless, and false.” He argued that encouraging servicemembers to disregard orders jeopardizes the foundation of military discipline and endangers the safety of troops. Hegseth noted that while five of the six lawmakers do not fall under the jurisdiction of the Department of Defense, Mark Kelly, as a retired Navy Commander, remains subject to the UCMJ.
Legal expert and Georgetown University professor Steve Vladeck commented on the feasibility of a court-martial for Kelly, stating that it has been upheld constitutionally for retired servicemembers by several appellate courts. However, he cautioned that this case exemplifies the ongoing concerns regarding military jurisdiction over civilians, a principle that dates back to the nation’s founding. The Supreme Court has historically limited military jurisdiction, and Vladeck argued that it should not be extended indefinitely to those who once served.
While the video did not specify which orders might be deemed illegal, members from both political parties have consistently raised concerns about the legality of US military actions, including operations against suspected drug vessels in the Caribbean and military deployments to US cities that faced protests. Senate Minority Leader Chuck Schumer criticized Trump’s actions, equating them to dictatorial behavior, stating, “Trump is attempting to use the Pentagon as his personal attack dog.” He expressed solidarity with Kelly, advocating for the rights of all Americans to oppose authoritarianism.
This ongoing investigation into Senator Mark Kelly highlights significant legal and ethical discussions regarding military authority and the responsibilities of elected officials. As developments unfold, the implications for both Kelly and military protocol remain critical to observe.