Note: this story was updated to add information about military members' legal ability to disobey orders.
The Pentagon is investigating Sen. Mark Kelly after he participated in a video addressed to active military members telling them they “can refuse illegal orders.”
In a statement on Monday, the Department of Defense wrote that federal law prohibits “actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces.”
Kelly, an Arizona Democrat, was one of six Senators and Representatives who took part in a Nov. 18 video addressed to active members of the military and intelligence agencies.
“This administration is pitting our uniformed military and intelligence community professionals against American citizens,” they said in the video, without identifying any specific examples.
“Our laws are clear: you can refuse illegal orders,” said Kelly in the video.
The enlistment oath taken by military members swears to obey orders from commanders "according to regulations and the Uniform Code of Military Justice." According to the UCMJ, soldiers are only liable for disobeying orders that are lawful.
All six elected officials in the video were Democrats who had served in the military or worked in intelligence agencies.
“A servicemember's personal philosophy does not justify or excuse the disobedience of an otherwise lawful order,” the Pentagon’s statement said.
President Donald Trump had called the video “seditious behavior, punishable by DEATH!” in a social media post last week. White House spokesperson Karoline Leavitt later denied Trump wanted to execute members of Congress.
In its statement, the Pentagon said further actions could include recalling Kelly to active duty to pursue “court-martial proceedings or administrative measures.”
Veterans are subject to military law even after retiring. Federal offenses can be litigated in military courts through a process known as assimilation.
Responding to a request for comment, a spokesperson for Kelly referred AZPM News to a statement posted on social media.
“When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA, and every day since I retired – which I did after my wife Gabby was shot in the head while serving her constituents,” Kelly wrote after the Pentagon’s announcement.
“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. I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution,” he wrote of recent actions in response to the video.
Military legal experts say Kelly investigation is far from an easy win for Pentagon##
“I think the investigation will be lengthy and complex and may not result in what some people want,” said Philip Cave, a Virginia attorney with 46 years of experience in military legal cases.
Several laws beyond the one cited by the Pentagon could affect Kelly’s investigation, according to Cave. One is a separate military statute calling for a court-martial in cases of solicitation and advice to desertion, mutiny, sedition or “misbehavior before the enemy.” Another is the Constitution’s Speech and Debate Clause, which shields members of Congress from liability for actions taken as part of their legislative duties.
Kristine Huskey, a professor at the University of Arizona law school and director of its Veterans’ Advocacy Law Clinic, called the Pentagon’s investigation “absurd” and its proposed charges “ridiculous.”
In his video, she said, Kelly was “reminding troops of their duty to follow the law and to not engage in illegal activities.”
Huskey said it is uncommon to recall an ex-soldier to try them in military court.
When it does happen, it is very unusual for them to be prosecuted on similar grounds as Kelly, Cave said. He said all the military prosecutions of retirees — which number only in the dozens since the 1950s enactment of the Uniform Code of Military Justice — involved crimes like sex offenses, theft and fraud.
However, Cave said most military justice investigations, which take place before prosecutions, are not public.
“It’s bluster and it’s intimidation,” Huskey said about the Pentagon’s investigation.
Kelly’s video address a sign of the political times##
Huskey said strikes against alleged drug-smuggling boats and deployments of the National Guard to U.S. cities were troubling instances of the Trump administration putting service members into legal gray areas.
“There is probably a lot of consternation and confusion within the military about the types of orders they’re being given,” she said. “They’re probably already questioning whether they’re lawful.”
“I think it’s unfortunate that the Senator and others feel compelled to remind troops of that,” Huskey said.
“(Kelly) was doing his duty and just reminding people about their rights as service members,” said Democratic Sen. Ruben Gallego, himself a veteran, in a social media video. “Secretary Hegseth, all these guys, f*** you guys.”
Another veteran in Arizona’s congressional delegation, Republican U.S. Rep. Eli Crane, had a different interpretation.
“Our President and Secretary of War are not issuing any unlawful orders,” he wrote on social media after Kelly’s video was posted. “Encouraging our military and intelligence community to disobey their chain of command is dangerous.”
