Legal experts are questioning whether the Pentagon can punish Senator Mark Kelly, an Arizona Democrat and a retired Navy fighter pilot, after he appeared in a video saying U.S. troops should refuse “illegal orders.” President Donald Trump called his and other Democrats’ remarks on social media “seditious behavior, punishable by death,” but experts noted that Kelly is a civilian lawmaker protected by the Constitution, making any military action against him highly unlikely.
Why it Matters
The U.S. relies on a military that stays neutral and under civilian control. When a senator appears to tell troops to ignore orders, it raises questions about where those boundaries lie. It also sparks concern that political leaders could try to use the military for party advantage instead of the nation’s best interests. Because the Constitution shields lawmakers, the Pentagon has limited power to act—even if the comments are seen by some as controversial.
What To Know
The U.S. Department of Defense launched an investigation last week after a video—posted by Trump—emerged on social media, showing Kelly (and five other Democratic lawmakers), urging U.S. troops to defy “illegal orders.”
Defense Secretary Pete Hegseth said that Kelly was being investigated because—unlike the other lawmakers in the video—Kelly is a formally retired Navy officer. As a retired officer who receives retirement pay, Kelly remains under certain military jurisdiction, meaning the Pentagon could theoretically recall him to active duty and prosecute him under the Uniform Code of Military Justice. However, experts note this would be highly unusual and legally challenging.
While retired service members receiving retirement pay are technically subject to military law, legal experts say prosecution for statements made as private citizens or elected officials is rare and fraught with constitutional complications.
What People Are Saying
According to reporting by The Associated Press, Colby Vokey, a civilian military attorney, said: “Let’s say you have a 100-year-old World War II veteran who is retired with pay and he steals a candy bar. Hegseth could bring him back and court-martial him. And that, in effect, is what is happening with Kelly.”
Patrick McLain, a retired Marine Corps judge, said: “I’ve not seen anything like the kind of wackadoodle thing they’re trying to do to Senator Kelly for essentially exercising his First Amendment right to free speech, which they don’t like.”
Anthony Michael Kreis, a constitutional law professor at Georgia State University, said: “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. Any way you cut it, the Constitution is fundamentally structurally designed to prevent this kind of abuse.”
What Happens Next
As the Pentagon’s investigation moves forward, legal experts predict the case is unlikely to result in prosecution or disciplinary action. They say that any attempt to recall Kelly for court-martial would be challenged on constitutional grounds and would not withstand judicial scrutiny, particularly given his status as an elected senator acting in a civilian capacity.