The Pentagon said Monday it has launched an investigation into Democratic Sen. Mark Kelly of Arizona over potential violations of military law, after the former Navy pilot appeared in a video telling service members they can refuse “illegal orders.”
In a statement posted on social media, the Pentagon cited a federal statute that allows retired service members to be recalled to active duty at the direction of the defense secretary, potentially for court-martial or other disciplinary action.
The move is highly unusual. Until President Donald Trump’s second term, the Pentagon typically worked to remain above the political fray. The announcement came after Trump escalated tensions by accusing the lawmakers featured in the video of “sedition,” calling it “punishable by DEATH” in a social media post days after the video was released.
In its statement, the Pentagon suggested that Kelly’s comments in the video could undermine “loyalty, morale, or good order and discipline of the armed forces,” referencing federal law that bars such interference.
“A thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures,” the statement said.
Kelly responded that he has honored his oath to the Constitution and dismissed the investigation as an attempt at intimidation.
“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 said in a statement.
What the lawmakers said in the video
Kelly was one of six Democratic lawmakers with backgrounds in the military or intelligence community who recorded a message “directly to members of the military.” The others are Sen. Elissa Slotkin and Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan, all seen as potential future candidates for higher office whose profiles were elevated by the video’s wide circulation.
Kelly, a former fighter pilot who later became an astronaut and retired from the Navy at the rank of captain, told service members that “you can refuse illegal orders.” Other lawmakers in the video urged troops to “stand up for our laws … our Constitution.”
Defense Secretary Pete Hegseth said Kelly is under investigation because he is the only one of the group who formally retired from the military and therefore remains under Pentagon jurisdiction.
“Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately,” Hegseth wrote on his personal X account. Of the broader group, he added that “their foolish screed sows doubt and confusion — which only puts our warriors in danger.”
The lawmakers did not cite specific scenarios in the video, but it comes at a time when the Trump administration has ordered the military to destroy small boats in the Caribbean Sea and eastern Pacific Ocean suspected of trafficking drugs, and continues to push for deploying National Guard units into U.S. cities despite some legal challenges.
Chief Pentagon spokesman Sean Parnell said last week that “our military follows orders, and our civilians give legal orders.”
Other Senate Democrats rallied behind Kelly. Democratic leader Chuck Schumer accused Trump of using the Pentagon “as his personal attack dog” and said, “this is what dictators do.”
Kelly’s fellow Arizona senator, Ruben Gallego, also defended him, saying, “Mark told the truth — in America, we swear an oath to the Constitution, not wannabe kings.”
What legal scholars say
Stephen Vladeck, a Georgetown University law professor, noted that in the past decade there has been “a quiet but significant uptick in courts-martial of retired servicemembers, even for post-retirement offenses.” He said that while the practice has been challenged, it is currently permitted.
However, Kelly’s role as a sitting U.S. senator complicates matters, according to Anthony Michael Kreis, a constitutional law professor at Georgia State University. He pointed to constitutional provisions that protect lawmakers from interference by the executive branch.
“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 phone interview.
He added that such protections were designed in response to the British monarchy, which had punished members of Parliament for political reasons.
“Any way you cut it, the Constitution is fundamentally structurally designed to prevent this kind of abuse from happening,” Kreis said.
Troops’ duty to reject unlawful orders
Service members — especially commanders — have a legal obligation to disobey orders they determine to be unlawful.
Commanders typically have access to military lawyers who can help them assess the legality of orders. Rank-and-file troops, however, often lack that direct access and must rely heavily on guidance from their chain of command.
Broad legal precedent holds that simply following orders does not shield troops from responsibility for unlawful actions — a concept often associated with the failed “Nuremberg defense,” invoked by senior Nazi officials after World War II to justify their conduct under Adolf Hitler.
Despite the attention the video has received in political and media circles, reaction from service members themselves appears muted.
A former service member who helps run an online military forum, and requested anonymity to avoid retaliation, said the message is unlikely to gain much traction in the ranks. The video, they noted, was posted only on X and runs too long to be easily reposted on platforms like TikTok, where many troops are more likely to see and share content.
