Experts Doubt Pentagon Can Punish Senator Kelly Legally/ Newslooks/ WASHINGTON/ J. Mansour/ Morning Edition/ Senator Mark Kelly is under Pentagon investigation for a video urging troops to reject illegal orders, but legal experts widely question the legitimacy of prosecuting him as a retired military officer. Many argue Kelly acted as a civilian and retains constitutional protections as a senator. Critics say the probe may be politically motivated and constitutionally unsound.
Pentagon vs. Senator Kelly: Quick Looks
- Pentagon investigates Senator Mark Kelly for comments in a viral video on illegal military orders.
- Kelly is the only retired military officer among the six Democrats featured in the video.
- Trump called the video “sedition punishable by death,” prompting Defense Department response.
- Experts say Kelly acted as a civilian and is protected by congressional privilege.
- Legal scholars warn the case may violate separation of powers.
- Few precedents exist for prosecuting retired officers for post-service speech.
- Former JAGs argue Kelly merely explained military law, not incited mutiny.
- Past prosecutions involved extreme crimes like assault or child pornography, not speech.
- Kelly dismisses probe as bullying and vows to hold administration accountable.
- Even critics say the video lacks legal grounds for punishment.
Deep Look: Experts Cast Doubt on Pentagon’s Authority to Punish Senator Kelly Over “Illegal Orders” Video
WASHINGTON (AP) – A Pentagon investigation targeting Senator Mark Kelly over his appearance in a video about military orders is facing mounting skepticism from legal scholars and former military prosecutors, many of whom argue the probe lacks both legal and constitutional footing.
The controversy centers on a video in which Kelly, a retired Navy combat pilot and Arizona Democrat, and five other Democratic lawmakers warn American troops to reject any “illegal orders.” The clip, published weeks ago, drew a sharp response from President Donald Trump, who accused the lawmakers of sedition “punishable by DEATH” in a social media post.
Following Trump’s remarks, Defense Secretary Pete Hegseth announced an official inquiry—but only into Kelly, citing his retired military status and continued eligibility for retirement pay, which places him under the Uniform Code of Military Justice (UCMJ).
Legal Gray Area—or Overreach?
But experts say this legal strategy may be on shaky ground.
Stephen Vladeck, a constitutional law professor at Georgetown University, notes there has been an uptick in prosecutions of military retirees under the UCMJ—but emphasizes these cases typically involve serious criminal conduct, not First Amendment-protected speech.
“It’s rare and controversial to use military law against retirees for speech made as civilians,” Vladeck said.
Similarly, Todd Huntley, a former Navy JAG and director at Georgetown’s national security law program, said he’s seen retirees prosecuted, but not for political speech after leaving the military. He recalled prosecuting a retiree who committed felony assault, noting that case was different due to the absence of other legal jurisdiction.
“It’s not unheard of,” he said, “but it’s almost always something like assault or fraud.”
Misreading Military Law?
Colby Vokey, a former military prosecutor turned civilian defense attorney, argues that Defense Secretary Hegseth is misapplying military law.
Yes, Kelly is eligible for retirement pay, Vokey explains, meaning he technically falls under the UCMJ’s personal jurisdiction. But because the video content was made in his role as a sitting U.S. senator, the Pentagon lacks subject-matter jurisdiction to prosecute.
“Applying military law in this case is absurd,” Vokey said. “This would mean a 100-year-old WWII veteran could be court-martialed for stealing a candy bar.”
Free Speech or Mutiny?
The content of the video itself doesn’t appear to cross legal lines, according to a coalition of former military lawyers known as the Former JAGs Working Group. In a joint statement, they emphasized that Kelly’s remarks accurately outlined the difference between lawful and unlawful orders.
“The video did not suborn mutiny or encourage troops to disobey lawful orders,” the group said.
Legal precedent, going back to Nuremberg, holds that military personnel are obligated to disobey unlawful orders, such as those involving war crimes or unconstitutional acts.
Kelly and others in the video did not specify any orders or incidents, but their remarks came amid debates over Trump’s controversial use of the National Guard in U.S. cities and military deployments against alleged drug activity in Latin America. Kelly had previously questioned the legality of those actions.
Constitutional Wall: Separation of Powers
Even if the Pentagon found legal grounds for a court-martial, constitutional scholars argue that Kelly’s position as a sitting senator offers him protection.
Anthony Michael Kreis, a constitutional law professor at Georgia State University, said any attempt by the executive branch to discipline a member of Congress undermines the core principle of legislative independence.
“Having a senator subject to Pentagon discipline at the president’s direction is exactly the kind of abuse the Constitution was designed to prevent,” Kreis said, referring to the U.S. Constitution’s separation of powers doctrine.
He added that the Founders created these safeguards to prevent abuses similar to those seen under British monarchs, who often punished dissenting members of Parliament.
Civilian vs. Military Identity
A key issue is that Kelly made the video as a civilian lawmaker, not in any official military capacity.
Charles Dunlap, a retired Air Force lawyer and law professor at Duke University, acknowledged that military members face stricter speech limitations than civilians. However, he questioned whether such rules can apply to someone long retired and now serving in a different branch of government.
Even Michael O’Hanlon, a senior fellow at the Brookings Institution, who said Kelly may have stirred unnecessary controversy, argued the video does not constitute a crime.
“Urging troops not to break the law isn’t criminal,” O’Hanlon said. “Plus, he wasn’t acting as a military officer—he was a civilian senator.”
Kelly Responds
Kelly has dismissed the probe as politically motivated, stating it will not stop him or other lawmakers from “doing our jobs and holding this administration accountable.” He described the investigation as a bullying tactic aimed at silencing criticism of the White House.
Broader Implications
Legal experts warn that pursuing a case like this could set a dangerous precedent. If successful, it could open the door for the executive branch to punish political opponents in Congress under the guise of military discipline.
As it stands, the case appears unlikely to succeed legally. But its political implications—coming in a tense pre-election atmosphere—may linger.
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