Pentagon investigating whether Sen. Mark Kelly violated military law
The Pentagon is investigating Sen. Mark Kelly over a video in which he told the military that he could “refuse illegal orders.”
WASHINGTON – The Pentagon’s investigation into Sen. Mark Kelly’s alleged misconduct faces serious legal questions over what laws the Arizona Democrat may have violated and the influence of President Donald Trump and Defense Secretary Pete Hegseth on the probe, legal experts said.
President Trump’s Department of the Army announced on November 24 that it was investigating Kelly for “alleged gross misconduct” after he was one of a group of six Democratic congressmen who released a video telling soldiers they had the right to disobey orders they thought were illegal.
Citing the Uniform Military Justice Act, the body of federal law that governs the U.S. military’s criminal law and justice system, the Pentagon has launched an investigation into Kelly that could “include court-martial and return to active duty for administrative action.” Kelly retired from both the US Navy and NASA as an astronaut in 2011.
According to the Department of the Army, veterans remain subject to laws that prohibit conduct “intended to disrupt the loyalty or morale of the military, or good order and discipline.”
But legal and military experts say Kelly “committed no crime” in the video, which violates the UCMJ’s provisions, including the incitement clause.
“My prediction is that this animal will never make it to court and will be dead on arrival,” said Eugene R. Fidel, a professor of military justice at Yale Law School.
Fidel added, “The words and actions of Senator Kerry and others do not violate any provisions of the Uniform Act of Military Justice.” “It’s not even close to that. It has its pros and cons.”
Will Kelly’s case make it to court?
Kelly and five other Democrats said in a video posted on social media last week that military and intelligence agencies have the right, and even the obligation, to refuse to carry out orders they believe are illegal. Lawmakers did not say which orders might be illegal.
“Our law is clear: We can refuse unlawful orders,” Kelly said in the video.
Other Democratic politicians who spoke in the video were: Sen. Elissa Slotkin, a former CIA employee; Congressman Chris Delzio, Navy Veteran. Congresswoman Maggie Goodlander, former Naval Reserve intelligence officer; Congresswoman Chrissy Houlahan, Air Force Veteran. and Congressman Jason Crow, an Army veteran.
Fidel said military cases come with many challenges and can “die in many different ways” before reaching court. The Kelly investigation is no exception.
Before being brought to court, any crimes Kelly is alleged to have committed must be compiled into a report submitted to command or military authorities for preliminary investigation. Commanders will then decide whether to arrest Kelly and hold him in pretrial confinement. Next, the actual trial of the suspect will take place.
But one thing commanders can do is take no action, Fidel said.
“There are various hurdles that must be overcome before this matter approaches a court martial,” he said.
David Schwendiman, a former senior Justice Department attorney, said another path Hegseth, or even Trump, could take is to convene a Chapter 15 process, similar to grand juries in the military. This process determines whether there is probable cause to believe that a crime has been committed and may refer the case to a general or special court martial.
However, Mr Schwendiman said it was an “involved process” and offered “a number of protections to those referred” to that court process.
Kelly appeared on MS NOW’s “The Rachel Maddow Show” on November 24 and said the investigation against him was “about intimidation.”
“The whole situation is almost comical…We’re basically repeating the Uniform Code of Justice (in the video) and they’re saying it violates the Uniform Code of Military Justice,” Kelly said. “That’s unreasonable.”
But several experts said the case against Kelly likely won’t be pursued because of Trump and Hegseth’s influence in the investigation.
“Unlawful command influence” by Trump and Hegseth
Immediately after the video of Kelly and other Democrats was posted, President Trump made a flurry of social media posts, accusing them of “sedition and deserves the death penalty!” He later told Fox News that he did not believe the lawmakers should be executed, but that he believed they were in “deep trouble.”
In a post on X, Hegseth labeled the lawmakers in the video the “six instigators” and criticized the video as “despicable, reckless and false.”
Schwendiman said both the President’s and Hegseth’s comments directly fall under the category of undue command influence, which would make it difficult to litigate or create additional difficulties if a lawsuit were filed.
“I don’t think you can hold a proceeding with any reasonable pretense of fairness or due process if the convening authority was letting people down the line tell you what the outcome was going to be,” Schwendimann said.
President Trump has been at odds in the past over allegations of illegal command influence.
As a candidate in the 2016 presidential election, President Trump called Bowe Bergdahl a “traitor” and proposed harsh punishment for the soldier, who was deployed to Afghanistan in 2009 and then spent five years as a prisoner of war in harsh conditions. President Trump also referred to these comments as president when asked about Bergdahl.
In 2017, Bergdahl pleaded guilty to desertion and misconduct before the enemy. He was then dishonorably discharged and demoted, but did not serve any time in prison.
Ms. Bergdahl later appealed, citing President Trump’s comments about her case. The U.S. Court of Appeals for the Armed Forces rejected Bergdahl’s appeal, but found some evidence that Trump’s comments may amount to unlawful command influence.
In 2013, a Navy judge in Hawaii found then-President Barack Obama used “unlawful command influence” after suggesting those convicted of military sexual assault should be punished with dishonorable discharges.
Col. Morris Davis, a former military commission chief prosecutor at Guantanamo, said both Mr. Trump and Mr. Hegseth have expressed views on the consequences of making it difficult for juries to be impartial.
“Both[Trump and Hegseth]have made it very clear that they are predetermining the crime and the punishment,” he said. “So I think it’s going to be very difficult to be impartial on a jury, especially in an administration that has made it clear that there will be retaliation if you don’t toe the line.”
Kelly could sue in federal court
Rachel VanLandingham, a Southwestern Law School professor and former Air Force attorney, said Kelly, a retired U.S. Navy captain, would also be eligible to sue in federal court if he were recalled to active duty and court-martialed.
“I don’t understand why he should be court-martialed, because I think if they’re going to put him back on active duty, they’re going to have to go to federal court and get an injunction,” she said.
VanLandingham said there is a federal doctrine that directs federal courts to refrain from intervening in ongoing courts-martial, but there are two exceptions: when irreparable harm is imminent and when there is no impartial tribunal within the military to hear the case.
Both Mr. Hegseth and Mr. Trump criticized the members of Congress, calling the video “inflammatory.”
There will be no impartial court because everyone in the military works for Hegseth and Trump is technically the commander in chief. As a result, Mr. Kelly will have a strong case in federal court, Mr. VanLandingham said.
“How can these two men receive a fair and impartial trial in a military tribunal where the chain of command extends to them?” she said.
He said veterans do not have to be recalled to active duty to be court-martialed. She pointed to a case in which Army Gen. James Gladioplein, who retired in 2005, was court-martialed after a 2015 investigation found he had raped his daughter while living on a military base. He was not recalled to active duty.
But in Kelly’s case, VanLandingham predicted the Trump administration “will want to see him in uniform.”
Did Kelly commit an act of “sedition”?
Schwendimann said Kelly’s comments did not violate military law, which deals with sedition and insurrection. The article targets specific examples of causing people to override legitimate military authority, refuse to perform duties, or cause violence or disorder, such as overtaking ships, he said.
Schwendiman added that it would also be difficult to pursue charges under military law, which prohibits a wide range of conduct that could undermine military discipline and order or bring the military into disrepute.
“I don’t know how that article could be considered if all Mark Kelly et al. did was state the obvious: you don’t have to follow illegal orders,” he said.
In a post on X, Hegseth accused Kelly’s actions of bringing “a disgrace to the military” and falling within military regulations.
“Encouraging our nation’s warriors to ignore the orders of their commanders undermines every aspect of ‘good order and discipline,'” Hegseth wrote. “Their foolish screed only creates suspicion and confusion and puts our warriors at risk.”
Still, legal experts caution that Kelly did not commit a crime in the video.
“It’s very difficult to understand how a court-martial would work, but punishment would be part of the process,” VanLandingham said. “It’s all very abusive. The crimes being hurled here don’t support that.”
