WASHINGTON (AP) — The Pentagon’s investigation into Sen. Mark Kelly over a video urging U.S. troops to defy “illegal orders” has raised questions and some criticism from legal experts.
Some say the Pentagon is misinterpreting military law to pursue Kelly as a retired Navy fighter pilot. Others say the Arizona Democrat cannot be prosecuted as a member of Congress. A group of former military prosecutors insist he did nothing wrong.
The Pentagon announced the probe last week after President Donald Trump’s social media post accused Kelly — and the five other Democratic lawmakers in the video — of sedition “punishable with DEATH.”
Defense Secretary Pete Hegseth said Kelly faces an investigation because he is the only one of that group to have officially retired from the military and is still under the Pentagon’s jurisdiction.
Kelly dismissed the investigation as the work of “thugs” and said it would not deter him and other members of Congress from “doing our job and holding this administration accountable.”
“It’s not totally unheard of”
Stephen Vladeck, a law professor at Georgetown University, said there has been a “significant increase” in court-martials of retired members over the past decade. While the courts have debated the constitutionality, the practice is currently permitted. He said there have been about a dozen such prosecutions in the service branches.
There are about 2 million people who have officially retired from the military and are receiving retirement pay, according to a report by the Congressional Research Service. Service members are generally entitled to retirement pay after completing 20 years of active service.
Todd Huntley, a retired Navy captain and judge advocate general, or JAG, said it’s rare to prosecute retirees for something that happened after they retired.
“It’s not completely unheard of,” said Huntley, who now heads Georgetown’s homeland security law program. “We actually prosecuted an enlisted guy who had been retired for 16 years. He was basically assaulting his adopted daughter. Basically nobody else had jurisdiction, so we prosecuted him.”
A “ridiculous conclusion”
Colby Vokey, a prominent civilian military attorney and former military prosecutor, said Hegseth appears to be misreading the Uniform Code of Military Justice to justify the Kelly investigation.
Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is entitled to a pension. But Vokey said Hegseth has no jurisdiction over the matter because Kelly made his statements as a senator.
Vokey said case law has evolved where the military can prosecute an active-duty service member for a crime committed off base, such as robbing a convenience store. But applying military law to a retired service member and “assuming that means every crime ever is a ridiculous conclusion.”
“Let’s say you have a 100-year-old World War II veteran who is retired with pay and steals a candy bar,” Vokey said. “Hegseth could bring him back and court-martial him. And that’s actually what’s happening with Kelly.”
Patrick McLain, a retired Navy judge and former federal prosecutor, said the cases he’s seen where retirees are recalled “are more extreme examples of fraud or some of these child pornography cases.”
“We haven’t seen anything like the kind of thing they’re trying to do to Sen. Kelly for essentially exercising his First Amendment right to free speech, which they don’t like,” McLain said.
“He did it as a civilian”
Charles Dunlap, a Duke University law professor and retired Air Force attorney, said in an email that military law can restrict speech for service members that is protected for civilians under the First Amendment.
But even if the video was found to have violated military law, a key issue could be whether the law can be applied to someone who is retired, Dunlap said.
A group of former military attorneys, the Former JAGs Working Group, said in a statement that Kelly did not violate the Uniform Code of Military Justice.
“The video simply described the law in terms of legal orders versus illegal orders,” the group said. “He did not mutiny or otherwise encourage members of the military to ignore or disobey lawful orders issued to them.”
Troops, especially uniformed commanders, have specific obligations to reject orders that are illegal. Broad legal precedent also holds that mere obedience to orders — known colloquially as the “Nuremberg defense” because it was used unsuccessfully by senior Nazi officials to justify their actions under Adolf Hitler — does not absolve troops.
Kelly and the other lawmakers did not mention specific circumstances in the video. Some Democratic lawmakers have questioned the legality of the Trump administration’s attempts to send National Guard troops to American cities. Kelly questioned the use of the military to attack suspected drug boats off the coast of South America, saying he was concerned about the military officers involved in the mission and whether they were following orders that may have been illegal.
Michael O’Hanlon, director of research in the foreign policy program at the Brookings Institution, said any case against Kelly would likely be dismissed or end in an acquittal.
O’Hanlon said it may not have been politically smart to “wave a red flag in the face of the bull”, but he doesn’t see the legal grounds for a court-martial.
“Saying you shouldn’t break the law can’t be a crime,” O’Hanlon said. “But what’s more, he didn’t do it as a military officer, he did it as a civilian.”
Separation of powers
Kelly’s status as a senator could block the Pentagon’s investigation because of constitutional protections for the separation of powers in the US government.
The Constitution explicitly protects members of Congress from overreaching the White House, said Anthony Michael Kreis, a professor of constitutional law at Georgia State University.
“To have a United States senator subject to discipline at the behest of the secretary of defense and the president — that violates a basic principle of legislative independence,” Kreis said in a telephone interview.
Kreis said such protections were a reaction to the British monarchy, which arbitrarily punished members of Parliament.
“Any way you slice it, the Constitution is fundamentally structurally designed to prevent this kind of abuse,” Kreis said.