WASHINGTON – The FBI has launched an investigation into Arizona Sen. Mark Kelly and five other Democratic lawmakers over a video in which they urge military personnel to reject illegal orders.
The probe marks an expansion of President Donald Trump’s efforts to punish the Democrats. He called their video “seditious” and “punishable by DEATH!”
On Monday, the Pentagon threatened possible court-martial for Kelly, a retired Navy captain, and Defense Secretary Pete Hegseth branded the group the “seditious six.”
“President Trump is using the FBI as a tool to intimidate and harass Members of Congress,” the four House members in the group said in a joint statement Tuesday. “No amount of intimidation or harassment will ever stop us from doing our jobs and honoring our Constitution.”
The sixth lawmaker in the video, Sen. Elissa Slotkin of Michigan, a former CIA analyst, posted on X that “the President directing the FBI to target us is exactly why we made this video in the first place.”
“He believes in weaponizing the federal government against his perceived enemies and does not believe laws apply to him or his Cabinet. He uses legal harassment as an intimidation tactic to scare people out of speaking up,” she said.
Kelly called the Pentagon investigation an effort to bully him into silence.
All six lawmakers said the FBI had requested they submit to interviews.
Reps. Jason Crow of Colorado, Chris Deluzio and Chrissy Houlahan of Pennsylvania and Maggie Goodlander of New Hampshire all served in uniform.
But because they are not military retirees, they are no longer subject to military justice, according to Hegseth, unlike Kelly. As a former CIA employee, Slotkin is not, either.
Sen. Ruben Gallego, who served in combat as a Marine, defended Kelly and the others at a town hall event Monday with veterans in Casa Grande.
“What they were saying was perfectly sane and in line,” he said. “You as a member of the military have a right to disagree with illegal orders. … They’re just restating the Constitution of the United States and the oath that we all take. Why does he think that is such a threat?”
It’s unclear what civilian crime the FBI might be investigating.
Kelly and the others posted the video Nov. 18, reminding active duty personnel that obeying unlawful orders is a violation of military law and their oath to uphold the Constitution.
“Our laws are clear, you can refuse illegal orders,” Kelly, a former combat pilot and astronaut, says into the camera.
Two days after the video went online, Trump called for the lawmakers to be prosecuted. He and aides have noted repeatedly that sedition can be punishable by execution.
Democrats say they have since received death threats.
Hegseth has ordered Navy Secretary John Phelan to provide recommendations by Dec. 10 for any disciplinary action against Kelly. 10.
Legal experts say it would be extraordinary for the Defense Department to pursue criminal charges, given that the military itself trains personnel to resist orders that violate law or the Constitution. It is very rare for a former service member to be recalled to face a court-martial over actions taken after they left active duty.
Even so, the Pentagon said it opened a “thorough review” of “serious allegations of misconduct” by the senator, adding that further actions “may include recall to active duty for court-martial proceedings or administrative measures.”
The video doesn’t cite any particular illegal orders.
Democrats have cited lethal strikes in the Caribbean that Trump has ordered without congressional approval and without providing evidence the boats were carrying drugs. They also cite military deployments in U.S. cities over the objections of local and state officials, which Trump says are a response to out-of-control crime.
“Nothing that was said called for violating or disobeying lawful orders,” Geoffrey Corn, director of the Center for Military Law and Policy at Texas Tech University School of Law, said by email, adding that a prosecution based on the video seemed implausible.
Under Article 90 of the Uniform Code of Military Justice, the military’s criminal code, 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 be punishable by death.
It is also a crime to knowingly obey unlawful orders – though the presumption is that a superior’s orders are lawful.
Disobeying brings the risk of arrest. A service member can avoid punishment by persuading a court-martial that the order violated the law or their oath to defend the Constitution.
Kelly, 61, retired from the Navy and NASA 14 years ago, nine months after his wife, former Rep. Gabby Giffords, was shot and nearly killed during a congressional event in Tucson.
White House press secretary Karoline Leavitt rejected Democrats’ assertions that the administration is trying to intimidate Kelly. Rather, she told reporters Monday, the senator is trying to “intimidate the 1.3 million active duty service members.”
She expressed offense at the implicit message that Trump has issued illegal orders.
One punishment the Pentagon could seek is retroactive demotion, which would not require calling Kelly back to active duty. That would reduce his retirement pay.
In July 2022, the Navy demoted U.S. Rep. Ronny Jackson, a retired rear admiral and close Trump ally, to captain after a scathing inspector general report about his behavior as White House physician under Trump and President Barack Obama.
Phelan, a Trump appointee, restored the Texas Republican’s rank in June.
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