Senate Republicans are growing uneasy about the Pentagon’s investigation into Sen. Mark Kelly (D-Ariz.), after Defense Secretary Pete Hegseth announced his office is stepping up its investigation into him.
The Defense Department announced Monday that the Kelly review had escalated to a “formal command investigation,” intensifying the dispute between the two sides over Kelly’s role in a video he and other congressional Democrats made to remind service members of their duty to disobey illegal orders.
The news also gave a number of Republicans pause as they question whether this is a prudent decision by the Pentagon against one of their colleagues.
“I think it’s a terrible idea,” said Sen. Rand Paul (R-Ky.).
Paul was one of five Senate GOP members who expressed reservations about the Hegseth-led investigation into Kelly, a retired Navy captain.
Kelly has been under fire from the administration for nearly a month after he, Sen. Elissa Slotkin (D-Mich.) and Democratic Reps. Jason Crow (Colo.), Chris Deluzio (Pa.), Maggie Goodlander (N.H.) and Chrissy Houlahan (Pa.) appeared in the video that sparked the spate of comments.
Trump also called for the execution of half a dozen lawmakers — a remark he walked back.
Days after Democrats released the joint video, the Defense Department said it had received “serious allegations of misconduct” against Kelly and had begun a “thorough review” of the allegations. Hegseth ordered the Navy to complete the review and submit it to the Defense Department by Dec. 10.
The Navy last week submitted the report on potential penalties against Kelly to the Department’s General Office. The content and scope of the report are unclear.
What is not ruled out is the investigation, which some Senate Republicans believe is likely without merit.
“I’m not,” Sen. Susan Collins (R-Maine) said when asked if she was comfortable with expanding the probe. “He is protected by the speech and debate clause.”
Hegseth appeared on Capitol Hill Tuesday with Secretary of State Marco Rubio to brief lawmakers on the administration’s targeting of boats near Venezuela. Hegseth and Kelly got into a “long exchange” during the briefing, according to Sen. Josh Hawley (R-Mo.).
According to one Senate Republican, the dispute began with a reasonable question about Kelly’s end, but eventually turned into a protracted discussion, with GOP members complaining that he “obstructed” during a secret briefing when other participants had questions.
Kelly said Hegseth brought up “talking points” about the video when he asked the Pentagon chief about strikes on suspected drug boats in the Caribbean.
“I think as far as I’m concerned, I went in there with a little speech that he wanted to give,” Kelly said after tipoff, adding, “I’m not going to waste my colleagues’ time with something that’s specific to me.”
Kelly told reporters after the briefing that the Pentagon had yet to contact him about the investigation and argued that the department was targeting him “for something I said was legal.”
“This is all a bunch of bulls—‑‑ and the reason, I think, is because it’s just about sending a message to retired service members, active service members, government employees, don’t speak out against this president, or there will be consequences,” he said.
Paul Fishman, Kelly’s lawyer, warned that the Pentagon’s action against the Democrats “would be unconstitutional and an extraordinary abuse of power.”
“Should the executive branch proceed in any forum — criminal, disciplinary or administrative — we will take all appropriate legal action on behalf of Senator Kelly to stop the Administration’s unprecedented and dangerous overreach,” Fishman wrote.
When reached for comment, the Pentagon said it had no further comment and referred The Hill to Monday’s statement.
Senate GOP members are concerned that Hegseth’s actions set a precedent that could boomerang on Republicans.
“These members will be here after this administration is gone. We’re setting a precedent that everyone should expect could be used against them,” one GOP senator told The Hill.
“Yes, he made a video,” they continued. “But I don’t think it rises to the level that they’re trying to get to. It really seems like vindictive prosecutions to me, and that’s a bad message to send to the American people.”
Kelly is the only one of the six lawmakers who falls under the purview of the Defense Department. Four of the others are ex-military but not retired like Kelly is. Slotkin is a former CIA official.
Even some who are more ardent supporters of the president have indicated they have questions about the investigation’s justification.
Sen. Lindsey Graham (R-R.C.) told reporters he didn’t think participating in the video was “very wise” of Kelly.
“But I don’t know if he broke any laws,” he added.
Sen. Dan Sullivan (R-Alaska), a retired Marine, similarly criticized Kelly’s participation. However, he cautioned that he does not think the investigation is a “good use of the Pentagon’s time.”
“While Senator Sullivan believes the message in the video was irresponsible and politically motivated, he does not believe it is a good use of the Pentagon’s time to investigate Senator Kelly — who served honorably in the Navy — under [Uniform Code of Military Justice (UCMJ)]especially given that the Speech or Debate Clause of the Constitution would likely take precedence over any UCMJ provision,” a Sullivan spokesperson said in a statement.
“Such an investigation has the potential to become a major distraction for our military,” they continued. “After four years of Biden’s military awakening, the War Department must remain focused on lethality and warfighting.”
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