WASHINGTON — The Pentagon has launched an investigation into Sen. Mark Kelly, the Democratic senator from Arizona and a retired Navy fighter pilot, over a video in which he and several other lawmakers urged U.S. troops to defy what they described as illegal orders. The probe, announced last week, comes amid sharp criticism from legal experts who question whether the military has the authority to pursue such a case against a sitting member of Congress.
The controversy erupted after President Donald Trump posted on social media, accusing Kelly and five other Democratic lawmakers featured in the video of sedition, a charge he described as punishable by death. Defense Secretary Pete Hegseth, in justifying the investigation, noted that Kelly is the only participant who formally retired from the military and remains eligible for retirement pay, placing him under the Pentagon's jurisdiction. Hegseth made these remarks during a speech at the 4th annual Northeast Indiana Defense Summit at Purdue University Fort Wayne on November 12, 2025.
Sen. Kelly, who served as a Navy pilot before becoming an astronaut and then a senator, dismissed the inquiry during a recent appearance. "This is the work of bullies," Kelly said, adding that it would not deter him or his colleagues from "doing our jobs and holding this administration accountable." The video in question, released earlier this month, features Kelly alongside other Democrats calling on service members to reject unlawful commands, without specifying particular scenarios. Some lawmakers, including Kelly, have raised concerns about the Trump administration's plans to deploy National Guard troops to U.S. cities and military actions against alleged drug boats off South America's coast.
Legal scholars have lined up to challenge the Pentagon's move, arguing it stretches military law beyond its limits. Stephen Vladeck, a law professor at Georgetown University, pointed to a "significant uptick" in courts-martial of retired service members over the past decade. According to Vladeck, courts have wrestled with the constitutionality of such prosecutions, but the practice is currently permitted, with about a dozen cases across military branches in recent years. There are roughly 2 million formal military retirees receiving pensions, per a Congressional Research Service report, typically after 20 years of active duty.
Todd Huntley, a retired Navy captain and former judge advocate general who now directs Georgetown's national security law program, acknowledged that prosecuting retirees for post-retirement actions is uncommon but not unprecedented. "It’s not totally unheard of," Huntley said. He recounted prosecuting an enlisted retiree who had been out of service for 16 years on charges related to assaulting his adopted daughter, noting that civilian authorities lacked jurisdiction in that instance.
Other experts see the case against Kelly as fundamentally flawed. Colby Vokey, a civilian military lawyer and former prosecutor, argued that while Hegseth may claim personal jurisdiction over Kelly due to his retirement pay, the Pentagon lacks subject matter jurisdiction because Kelly spoke as a senator, not a service member. "Hegseth appears to be misreading the Uniform Code of Military Justice," Vokey said. He warned that extending military law this way could lead to absurd outcomes, such as court-martialing a 100-year-old World War II veteran for stealing a candy bar.
Patrick McLain, a retired Marine Corps judge and former federal prosecutor, echoed this skepticism, describing the effort as a "wackadoodle thing" aimed at punishing Kelly for exercising his First Amendment rights. "I’ve not seen anything like the kind of thing they’re trying to do to Sen. Kelly," McLain said, adding that typical retiree prosecutions involve serious crimes like fraud or child pornography, not political speech.
Charles Dunlap, a Duke University law professor and retired Air Force lawyer, highlighted in an email that military law imposes stricter speech restrictions on active-duty personnel than the First Amendment allows for civilians. However, he questioned whether those rules apply to retirees like Kelly. "Even if the video was found to have violated military law, a key issue may be whether the law can be applied to someone who is retired," Dunlap wrote.
A coalition of former military lawyers, known as the Former JAGs Working Group, issued a statement defending Kelly outright. "The video simply described the law as it pertains to lawful versus unlawful orders," the group said. "It did not suborn mutiny or otherwise encourage military members to disregard or disobey lawful orders issued to them." This aligns with longstanding military doctrine, which requires troops—especially uniformed commanders—to reject illegal directives. The principle traces back to the post-World War II Nuremberg trials, where Nazi officials' "just following orders" defense failed to excuse war crimes.
Michael O’Hanlon, director of research in the foreign policy program at the Brookings Institution, predicted that any case against Kelly would likely collapse. "Saying that you shouldn’t break the law cannot be a crime," O’Hanlon said. He emphasized Kelly's civilian status at the time of the video, noting it might have been politically unwise to provoke the administration but lacked legal merit for prosecution.
Beyond military law questions, Kelly's position as a senator invokes constitutional safeguards. Anthony Michael Kreis, a constitutional law professor at Georgia State University, argued that subjecting a member of Congress to Pentagon discipline at the president's behest undermines legislative independence. "Having a United States senator subject to discipline at the behest of the secretary of defense and the president — that violates a core principle of legislative independence," Kreis said in a telephone interview. He traced these protections to the framers' reaction against British monarchs who arbitrarily punished Parliament members.
"Any way you cut it, the Constitution is fundamentally structurally designed to prevent this kind of abuse," Kreis added. This separation-of-powers argument could prove decisive if the investigation proceeds, potentially leading to court challenges that test the boundaries between executive and legislative branches.
The video's release occurs against a backdrop of heightened tensions over military deployments. Democratic lawmakers, including Kelly, have scrutinized the administration's push to use National Guard units in domestic policing roles, citing potential violations of the Posse Comitatus Act, which limits federal troops in law enforcement. Kelly has specifically voiced worries about operations targeting drug trafficking vessels in South American waters, questioning whether involved officers might face illegal orders and the personal risks they entail.
As the investigation unfolds, it has drawn bipartisan scrutiny, though Republicans have largely supported the administration's stance. No timeline has been set for the probe's conclusion, but experts like Vladeck suggest it could drag on, given the novelty of applying military justice to a senator. Kelly, undeterred, continues his Senate duties, including recent testimony before the Senate Intelligence Committee on January 15, 2025, where he addressed national security matters.
The saga underscores broader debates about free speech, military obedience, and political accountability in a divided Washington. With Trump's return to the White House, such clashes between Congress and the executive branch are likely to intensify, testing the resilience of democratic institutions amid partisan fervor.