The Department of War announced Monday that it has launched a formal review into allegations of misconduct against Democratic Sen. Mark Kelly of Arizona, following a video in which he urged U.S. service members to “refuse illegal orders.”
Officials said the Pentagon may consider recalling Kelly, a retired Navy captain, to active duty to face a court-martial or other administrative action under the Uniform Code of Military Justice (UCMJ).
“This matter will be handled in compliance with military law, ensuring due process and impartiality,” the department said in a statement, noting that further public comments will be limited to protect the integrity of the review.
The department emphasized that military retirees remain subject to the UCMJ and reminded current service members that “orders are presumed to be lawful” and must be obeyed. The statement also cited federal law, including 18 U.S.C. § 2387, which prohibits efforts to undermine the loyalty, morale or discipline of U.S. forces.
“The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses,” the statement continued. “A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”
Although Kelly left active duty years ago, the Pentagon could still bring him before a military court if it determines his actions violated the code.
Such recalls are rare and are generally reserved for serious offenses such as espionage, sexual assault or fraud. However, there is precedent. In United States v. Dinger (2018) and United States v. Larrabee (2020), military appellate courts reaffirmed that retirees who receive military pay remain under UCMJ jurisdiction and can be prosecuted for offenses committed after retirement.
If the review concludes that Kelly’s comments amounted to conduct “to the prejudice of good order and discipline” or violated statutes that prohibit encouraging disloyalty or insubordination within the armed forces, he could be recalled to active duty for a formal court-martial. Possible punishments include forfeiture of pay, confinement or dismissal from service, though such outcomes are extremely uncommon for sitting political figures.
Any attempt to prosecute would likely set up a constitutional clash over whether political speech by a retired officer can be subject to military law.
While many members of Congress have prior military service — and some have remained in the reserves while in office — there is no known case of a sitting U.S. senator or representative being recalled to active duty for disciplinary proceedings.
Last week, Kelly and five other Democratic members of Congress posted a video directed at service members and intelligence officers stating: “Our laws are clear. You can refuse illegal orders.”
According to Sec. Pete Hegseth, four of the other lawmakers previously served in the military but are not retired and therefore are not subject to the UCMJ. Another, Sen. Elissa Slotkin, D-Mich., is a former CIA officer.
“The Department is reviewing his statements and actions, which were addressed directly to all troops while explicitly using his rank and service affiliation—lending the appearance of authority to his words,” Hegseth said. “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”
In response to the video, President Donald Trump argued that the lawmakers should face criminal charges, calling their actions “seditious behavior.”
“SEDITIOUS BEHAVIOR, punishable by DEATH!” he said.
Kelly accused Trump of “trying to intimidate us” and pushed back publicly.
“I’m not going to be intimidated,” he said, adding that the president’s rhetoric has consequences. “His words carry tremendous weight, more so than anybody else in the country, and he should be aware of that, and because of what he says, there is now increased threats against us,” Kelly said on CBS’ Face the Nation.
Kelly also responded to news of the Pentagon review with a post on X highlighting his record of service in the Navy and as a NASA astronaut.
“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. I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
White House press secretary Karoline Leavitt said the administration supports the Pentagon’s review.
“The White House is supportive of the Department of War’s investigation into Senator Mark Kelly, and I think what Senator Mark Kelly was actually trying to do was intimidate the 1.3 million active duty service members,” Leavitt said.
