Federal and military authorities are moving to examine whether a group of Democratic lawmakers crossed legal or ethical lines in a viral video urging U.S. service members to “refuse illegal orders.”
The clip, led by Sen. Elissa Slotkin, D-Mich., and featuring Sen. Mark Kelly, D-Ariz., along with several Democratic House veterans and former intelligence officers, has prompted both a Pentagon review and outreach from the FBI to the U.S. Capitol Police to arrange interviews with all six members of Congress involved.
The federal inquiries mark the first concrete step toward determining whether the lawmakers’ message violated statutes or regulations governing civilian control of the military and the conduct of current and former service members.
President Donald Trump has sharply condemned the video, saying the senators’ message should be “punishable by death,” a remark that has escalated political outrage and raised questions about how such calls fit within federal law.
According to a statement from the Department of War, officials have received “serious allegations of misconduct” involving Capt. Mark Kelly, USN (Ret.), and have opened a review “to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.”
Under 10 U.S.C. § 688, retired officers remain subject to recall for trial under the Uniform Code of Military Justice (UCMJ) for offenses committed while in uniform and, in some circumstances, for post-retirement conduct that undermines good order and discipline. The department emphasized that retirees “remain subject to the UCMJ for applicable offenses,” and pointed to 18 U.S.C. § 2387, which prohibits efforts to interfere with the loyalty, morale or discipline of the armed forces.
If recalled, Kelly — who served 25 years in the Navy — could face a range of potential outcomes, from administrative censure or loss of retired pay to court-martial and possible confinement, depending on the findings of the review. Officials stressed that the matter “will be handled in compliance with military law, ensuring due process and impartiality,” and declined to comment further.
Four of the other lawmakers in the video previously served in the military but left with discharges rather than retirements, meaning they are no longer subject to the UCMJ. Because of that, their discharges cannot be retroactively changed to “dishonorable” based on actions taken after leaving service.
Slotkin is a former CIA officer, adding an intelligence background to the group’s profile. The FBI and the Department of Justice have begun examining the lawmakers’ conduct by working through Capitol Police to schedule interviews with each of the six members.
In a joint statement, Democratic Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire, Chris Deluzio of Pennsylvania and Chrissy Houlahan of Pennsylvania accused Trump of “using the FBI as a tool to intimidate and harass members of Congress.”
“We will not be bullied,” they said.
Under 10 U.S.C. § 688, the Secretary of the Navy can recall a retired officer to active duty if there is probable cause to believe the officer committed an offense subject to the UCMJ. The Pentagon’s statement again highlighted 18 U.S.C. § 2387, the statute that criminalizes attempts to interfere with the loyalty, morale or discipline of U.S. forces.
If prosecutors determine that Kelly’s participation in the video meets that threshold, he could face civilian prosecution under that law or military prosecution under analogous UCMJ provisions — most likely Article 88 (contempt toward officials), Article 92 (failure to obey orders or regulations) or Article 134 (conduct prejudicial to good order and discipline).
Whether the case is handled in civilian courts or via court-martial would depend on how the Justice Department and the Pentagon choose to exercise jurisdiction. Recalls for potential court-martial are rare and typically reserved for serious post-retirement misconduct, such as espionage, sexual assault or fraud.
One of the most notable recent examples of a retired officer under scrutiny was Marine Gen. James Cartwright, who was investigated for leaking classified information but ultimately faced civilian prosecution rather than recall to active duty. The military has historically used its recall authority sparingly to avoid perceptions of political retaliation.
If Kelly were recalled and convicted at court-martial of an offense warranting dismissal, the Department of the Navy could alter his status from “retired with pay” to “dismissed” or “dishonorably discharged.” That would strip him of Tricare medical coverage, retired pay and survivor benefits, and eligibility for benefits through the Department of Veterans Affairs.
Even without a criminal conviction, administrative measures could affect his finances and access to military facilities. If the Department of War or Navy finds misconduct but does not seek a court-martial, they could still reduce or suspend retirement pay or limit base access.
The initial FBI and DOJ interviews are expected to be voluntary. Afterward, the Justice Department will have to decide whether the video amounts to potential criminal interference with the armed forces under 18 U.S.C. § 2387 or should be treated as protected political speech. The matter could also be referred to congressional ethics committees, or could escalate to subpoenas or criminal charges.
The lawmakers involved — led by Slotkin and joined by Kelly and several Democratic House veterans and intelligence professionals — have framed their message as a call to uphold the Constitution. But military law experts note that, in practice, refusing an order can carry severe consequences, even when a service member believes the directive is unlawful.
“You can’t expect a sailor to overrule Washington lawyers,” Rachel VanLandingham, a retired Air Force judge advocate and professor at Southwestern Law School, told Fox News Digital. “That’s why it’s unfair to put the burden on the military instead of on policymakers.”
Under the Uniform Code of Military Justice, which governs all members of the U.S. armed forces, the baseline expectation is obedience to orders — with only a very narrow exception where an order’s illegality is “manifest,” or unmistakably obvious. In real-world situations, that means troops risk punishment if they refuse a command before a court or higher authority has declared it unlawful.
Article 90 of the UCMJ provides that any service member who “willfully disobeys a lawful command” of a superior officer can face up to five years of confinement, forfeiture of all pay and allowances and a dishonorable discharge. If the offense occurs in wartime, the maximum penalty can be death or any lesser punishment a court-martial decides.
Article 92, covering “Failure to obey order or regulation,” states that disobeying a lawful order or regulation can also result in court-martial, with possible penalties including forfeiture of pay, reduction in rank and up to two years of confinement. Military lawyers view these provisions as the core of the armed forces’ discipline and chain of command — the very foundations some critics say the video risks undermining.
The law leaves little room for well-intentioned guesswork.
“There is no duty to obey an illegal order, but a subordinate who disobeys based on that belief takes immense risk of conviction by court-martial unless he or she can prove the order was truly illegal,” said Texas Tech law professor Geoffrey Corn, director of the university’s Center for Military Law and Policy.
The flip side is just as dangerous. Under Article 77, service members who carry out an illegal order can be punished as “principals,” meaning they share full criminal liability with the commander who issued the order. That principle, developed in the aftermath of World War II, rejects “just following orders” as a defense.
When an order violates the Constitution, the law of armed conflict or the rights of U.S. citizens, obedience offers no shield. Service members who follow such directives can face prosecution for war crimes or dereliction of duty under Article 134, the UCMJ’s broad “general article” for conduct that brings discredit on the armed forces.
Military law therefore sets a strict standard for refusing an order: it must be manifestly unlawful — so clearly illegal that “a person of ordinary sense and understanding” would recognize it as criminal on its face. Classic examples include orders to kill civilians, torture detainees or overthrow the government.
By contrast, commands to deploy troops, enforce federal authority or carry out presidential directives are presumed lawful unless a statute or court ruling explicitly forbids them.
“There’s a presumption that military orders are lawful,” said Victor Hansen, a former Army judge advocate and professor at New England Law Boston. “A defense only exists if the order is manifestly unlawful — something clearly criminal, like an order to kill a prisoner of war. That’s where the duty to disobey applies.”
Hansen noted that service members are not positioned to adjudicate the legality of presidential decisions about deployments or strikes. “If a soldier came to me after seeing that video, I’d tell them: Do nothing different than you’re already doing,” he said. “It’s not your job to second-guess the politics behind a decision to use force.”
The one-minute “Don’t Give Up the Ship” video addresses military and intelligence personnel and declares, “You can refuse illegal orders. You must refuse illegal orders.” It does not spell out which orders might qualify as “illegal,” even as the same group of lawmakers backs legislation aimed at limiting Trump’s ability to deploy National Guard units or conduct anti-narcoterrorism strikes abroad.
Conservatives quickly accused the lawmakers of encouraging insubordination.
Secretary of War Pete Hegseth wrote on X, “Stage 4 TDS,” referencing what supporters of the president call “Trump derangement syndrome.”
Inside the Pentagon, officials have long warned that urging troops to make their own legal judgments about orders can undermine civilian control of the military — a core principle of the U.S. constitutional system. Current regulations instruct service members to seek immediate legal guidance through their chain of command or the Judge Advocate General’s office before refusing a directive, except in situations of obvious criminality.
Retired Air Force Maj. Gen. Steven Lepper, a former deputy judge advocate general, said the Democrats’ message “simply restates existing law” but risks obscuring where legal responsibility actually lies.
“There’s a strong presumption that military orders are lawful,” Lepper said. “That’s as it must be, because if the presumption ran the other way, our military would be hopelessly weakened.”
History offers stark examples of what can happen when that balance collapses. In 1968, U.S. troops massacred hundreds of unarmed civilians in the Vietnamese village of My Lai. When the killings were exposed, 1st Lt. William Calley was convicted of murder despite arguing that he had followed orders — a case that taught generations of service members that some commands are so clearly criminal they must be refused.
Decades later, the Abu Ghraib prison abuse scandal in Iraq highlighted another breakdown in command responsibility, as reservists at a U.S. detention facility humiliated and abused detainees under what they believed were authorized interrogation practices. Eleven soldiers were court-martialed, while senior officials avoided prosecution — a reminder, military lawyers say, of how vague orders and weak oversight can drive troops into criminal acts.
VanLandingham called the new video “careless and dangerous,” arguing that it misrepresents how narrow the legal duty to refuse orders really is.
“Service members are under no legal obligation to follow unlawful orders,” she said. “But the universe of orders that are so manifestly or patently unlawful that a soldier of ordinary understanding would recognize them as such is very small — that’s by design. The military depends on obedience.”
She noted that this principle, rooted in the Nuremberg trials after the Holocaust, remains a cornerstone of modern military law — a warning that obedience cannot excuse crimes “so patently unlawful that any person of ordinary understanding would recognize them as such.”
VanLandingham said the standard becomes even less clear in contemporary conflicts, pointing to U.S. strikes on suspected narcotrafficker boats in the Caribbean and off Venezuela. Those missions, she argued, may be unlawful under international law but would not necessarily appear manifestly unlawful to the service members ordered to conduct them. Troops in that position face what she described as a legal and moral “catch-22.”
“They disobey at their peril,” she said. “If they refuse an order believing it’s unlawful, they risk their career, their family’s income, even court-martial. But if they obey, they could later be accused of a crime. It’s a catch-22, and it’s unfair to expect individual service members to carry that burden.”
“Don’t go after the troops,” VanLandingham added. “Go after the policymakers who issue unlawful orders. Congress should be reining in the executive, not telling privates and lieutenants to decide what’s legal.”
For individual service members, the stakes could not be higher. Refusing a lawful order — or obeying one that turns out to be unlawful — can end a career, result in years of confinement and erase hard-earned veterans’ benefits.
While the senators say they are urging troops to honor their constitutional duty, the UCMJ offers little room for personal interpretation — and no safe harbor for those who guess wrong.
