Pentagon says it might recall Sen. Mark Kelly to military service for court martial over ‘illegal orders’ video

By Natasha Bertrand, CNN

(CNN) — The Pentagon said Monday that it is investigating Democratic Sen. Mark Kelly, a retired US Navy captain, in light of “serious allegations of misconduct” the department has received against him, and could even recall him to active duty to face a court martial or administrative punishment.

The investigation comes as President Donald Trump has been pushing relentlessly for consequences for Kelly and five other Democratic lawmakers over a video they made reminding servicemembers of their duty to disobey illegal orders.

In a video posted last week on X, the lawmakers said that “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”

Trump called the lawmakers’ actions “seditious” and “treason.”

Because Kelly was a senior officer who retired from the Navy, he is required to remain available for recall to the military by law. The other five lawmakers, Sen. Elissa Slotkin and Reps. Jason Crow, Maggie Goodlander, Chris Deluzio and Chrissy Houlahan, are not eligible for recall to a military service.

In a statement announcing the review, the Defense Department seemingly alluded to the video.

“All servicemembers are reminded that they have a legal obligation under the UCMJ (Uniform Code of Military Justice) to obey lawful orders and that orders are presumed to be lawful,” the statement said. “A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”

Troops are required to follow only lawful orders in accordance with the UCMJ. Following an order that might violate the law could open service members up to prosecution, as legal precedent holds that receiving an order alone isn’t a defense, colloquially known as the “Nuremberg defense” as it was deployed by senior members of Adolf Hitler’s leadership team during legal proceedings after World War II.

Kelly responded to news of the investigation with a statement pointing to his decades of military service, and referencing Trump’s comments about the lawmakers.

“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 wrote on X. “I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”

In a statement subsequently posted to X, Secretary of Defense Pete Hegseth made clear that the investigation stemmed from Kelly’s comments in the video.

“The video made by the ‘Seditious Six’ was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of ‘good order and discipline.’ Their foolish screed sows doubt and confusion — which only puts our warriors in danger,” he wrote. “Five of the six individuals in that video do not fall under @DeptofWar jurisdiction (one is CIA and four are former military but not ‘retired’, so they are no longer subject to UCMJ). However, Mark Kelly (retired Navy Commander) is still subject to UCMJ—and he knows that.”

Steve Vladeck, a professor of law at the Georgetown University Law Center and a CNN legal analyst, said that a court martial for Kelly is technically a viable option for the Pentagon because three different appellate courts have upheld that it’s constitutional to court-martial retired servicemembers.

But the Kelly case “is pretty powerful proof” of why that should not be an option, Vladeck said.

“Going all the way back to the Founding, we’ve been wary of the exercise of military jurisdiction over civilians — so much so that the Supreme Court has struck down statutes authorizing courts-martial of, e.g., former servicemembers; military contractors; and the dependents of servicemembers,” Vladeck said. “Retired servicemembers differ in that they remain at least theoretically subject to recall, but it still makes no sense to subject individuals to military jurisdiction in perpetuity just because, at some point in the past, they were on active duty.”

Although the video released by the Democratic lawmakers didn’t reference what orders service members might be receiving that would potentially be illegal, lawmakers on both sides of the aisle have raised concerns repeatedly about the legality of US military strikes against suspected drug boats in the Caribbean and the US military’s deployment to cities across the US over the protest of governors.

Senate Minority Leader Sen. Chuck Schumer issued his own statement decrying the news and equating Trump’s actions with those of a dictator.

“Trump is attempting to use the Pentagon as his personal attack dog,” he wrote. “I stand with Sen. Kelly, as should any American who doesn’t want to be ruled by a King.”

This story has been updated with additional developments.

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