WASHINGTON – The Pentagon has opened an investigation into Sen. Mark Kelly that could lead to a court-martial, over a video in which the Arizona Democrat urged troops to reject illegal orders.
After receiving what it called “serious allegations of misconduct,” the Pentagon said Monday, “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.”
Kelly, a former combat pilot and astronaut, accused the Trump administration of trying to bully him into silence.
Last Tuesday, Kelly and five other Democrats who served in the CIA or military reminded active duty personnel that obeying unlawful orders would violate military law and their oath to uphold the Constitution. “Our laws are clear, you can refuse illegal orders,” he says into the camera.
Two days later, President Donald Trump labeled the video an act of “SEDITIOUS BEHAVIOR, punishable by DEATH!” and called for the lawmakers to be prosecuted. He and aides have since noted repeatedly that sedition is a capital crime.
The video doesn’t cite any particular orders that have or might be illegal, though Democrats point to deadly strikes against Venezuelan drug smugglers and deployments in U.S. cities in the guise of crime-fighting.
“Subjecting someone to criminal or disciplinary sanctions for making a legally accurate statement seems that it would be quite challenging, if not impossible,” Geoffrey Corn, director of the Center for Military Law and Policy at Texas Tech University School of Law, said by email.
“While these statements may not have been wise, nothing that was said called for violating or disobeying lawful orders,” he added.
In a social media post Monday, Defense Secretary Pete Hegseth branded Kelly a member of the “Seditious Six” and said the “despicable” and “reckless” video undermines discipline by encouraging troops to question their commanders.
Kelly retired from the Navy and NASA in October 2011, nine months after his wife Gabby Giffords was shot and nearly killed during a congressional event in Tucson.
Hegseth said Kelly was singled out for a misconduct inquiry because of the six in the video, he is the only one who left the armed services by retiring. That means he remains subject to the Uniform Code of Military Justice, the military’s criminal code.
“Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately,” Hegseth said.
Reciting a military record of 39 combat missions and flights through anti-aircraft fire, Kelly said Monday that the latest attacks from Hegseth and Trump will not deter him.
“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,” he said in a statement. “I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
On CBS News’ “Face the Nation” Sunday, Kelly criticized Republicans for staying silent as Trump raises the specter of executing federal lawmakers – in sharp contrast to their outcry over political violence two months earlier when conservative activist Charlie Kirk was murdered.
“We’ve heard very little, basically crickets, from Republicans in the United States Congress about what the President has said about hanging members of Congress,” he said.
Sen. Ruben Gallego, who served in combat as a Marine, hit back at the White House over the threat against his fellow Arizona Democrat.
Kelly “has dedicated his life to serving this country with honor,” Gallego posted. “And now Trump is coming after him with the same baseless garbage he throws at anyone who refuses to bend the knee. Mark told the truth — in America, we swear an oath to the Constitution, not wannabe kings.”
In its statement, the Department of Defense – or as Trump and Hegseth have rebranded it, the Department of War – reminded service members that “they have a legal obligation under the UCMJ to obey lawful orders.”
“A service member’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order,” the statement reads.
The Democratic lawmakers made the same point in their video and in subsequent interviews.
At the White House, press secretary Karoline Leavitt said the president supports the investigation, asserting that Kelly was trying to “intimidate the 1.3 million active duty service members.”
“Sen. Mark Kelly well knows the rules of the military and the respect that one must have for the chain of command and that all orders, all lawful orders, are presumed to be legal by our service members,” she said.
Under Article 90 of the UCMJ, a service member who “willfully disobeys a lawful command of that person’s superior commissioned officer” is subject to court-martial. During wartime the crime can by punishable by death.
Hegseth said Kelly’s comments carried special weight because he invoked his Navy rank and service in the video, giving his words the “appearance of authority.”
Within hours of the Pentagon announcement, the Democratic National Committee blasted out a joint fundraising appeal with Kelly, calling it “political persecution.”
One punishment the Pentagon could seek is retroactive demotion, which would not require calling Kelly back to active duty. Apart from the black mark against him, that would reduce his military retirement pay.
In July 2022, the Navy retroactively demoted U.S. Rep. Ronny Jackson, a Texas Republican and close Trump ally who at that point had been in office about 18 months.
Jackson served as White House physician under Trump and President Barack Obama.
Obama had promoted Jackson to rear admiral, and Jackson retired at that rank in late 2019 – before release of an inspector general report that found that as White House physician, he “disparaged, belittled, bullied and humiliated” subordinates, misused sedatives and made lewd statements.
The Navy demoted him to captain, a move he called politically motivated.
“This was happening because I am a perceived threat to the Biden administration and because a few political appointees in the Department of Defense want to make a name for themselves,” Jackson wrote in his 2022 memoir, “Holding the Line.”
In September, Jackson revealed that Navy Secretary John Phelan, a Trump appointee, had restored him to the rank of rear admiral in June.
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