The Defense Department said on Wednesday that it would open an administrative investigation into Senator Mark Kelly, Democrat of Arizona, over his participation in a video with other lawmakers informing military service members of their obligation under law to refuse illegal orders.
In a statement, the department said it is “escalating the preliminary review of” Mr. Kelly, whom they referred to by his retired military rank of Navy captain, “to an official command investigation” for what they called “serious allegations of misconduct.”
A “command investigation” is an administrative process used by the military to examine potential misconduct within a unit or command or violations of regulations.
“Ordering an investigation to be opened is a serious matter, especially when coming from a higher authority like the secretary of defense ordering a lower authority like the secretary of the Navy to do so,” said retired Lt. Col. James Weirick of the Marine Corps, who served as a military judge advocate.
The command investigation marked another extraordinary step in the inquiry into Mr. Kelly, which comes amid a series of moves by the Trump administration to seek retribution against President Trump’s perceived political enemies.
Although Mr. Kelly could face a letter of censure or be referred for court-martial, Colonel Weirick said the senator’s remarks in the video would not by themselves be grounds for court-martialing him. “The video I’ve seen is a regurgitation of what I was taught beginning in boot camp: that service members are obligated to disobey patently illegal orders,” he said.
The Defense Department began the investigation after Mr. Kelly and five other Democratic lawmakers — all of whom served in the military or the intelligence community — posted a video on Nov. 18 reminding military service members of their obligation to refuse illegal orders. Mr. Trump responded by accusing the lawmakers of sedition.
In a statement earlier this week, a lawyer for Mr. Kelly called the investigation of his client “unconstitutional and an extraordinary abuse of power.”
“If the executive branch were to move forward in any forum — criminal, disciplinary, or administrative — we will take all appropriate legal action on Senator Kelly’s behalf to halt the administration’s unprecedented and dangerous overreach,” said the lawyer, Paul J. Fishman.
Through a spokesman, Mr. Kelly’s office declined to comment further on Wednesday on the Pentagon’s inquiry.
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Mr. Kelly retired in 2011 after 24 years of service as a naval aviator and astronaut before running for office and sitting on the Senate Armed Services Committee.
At issue is a provision of federal law that allows for retired officers to be brought back onto active duty to face disciplinary action in military courts for gross misconduct or criminal actions, though in practice such proceedings are rare.
The burden of proof for command investigations to find fault with a service member or retiree is set at what the military calls “a preponderance of the evidence,” which essentially equates to a finding that at least 51 percent of the evidence points toward guilt.
An officer conducting a command investigation lacks subpoena power, and “should be senior in rank to any individual whose conduct is subject to inquiry,” according to the Navy’s instruction, which means that the service has likely appointed an admiral to run the proceedings.
There is nothing in the Navy’s instruction that indicates that Mr. Kelly could be legally compelled to respond to an active-duty officer requesting to interview him as part of a command investigation.
If the investigation leads to a finding of wrongdoing short of criminal conduct, Mr. Kelly could receive a letter of censure in his official Navy service record, 14 years after he retired.
What happens now will largely depend on John Phelan, a financier and major Trump donor with no known military background whom the president appointed as the Navy secretary this year.
“The secretary of the Navy may administratively censure members, including retirees and reservists, in writing without resorting to” court-martial proceedings, according to Navy’s Manual of the Judge Advocate General, adding that if a Navy secretary “believes it is for the good of the service” they may “send communications to subordinate officers that may be in the nature of a reprimand.”
A letter of censure could then be entered into senator’s official Navy record of service. The recipient of such a document can offer a letter of rebuttal, though no appeal process exists to seek a retraction of the letter from his record.
According to the manual, only the secretary of the Navy may refer a retiree for trial by courts-martial.
John Ismay is a reporter covering the Pentagon for The Times. He served as an explosive ordnance disposal officer in the U.S. Navy.
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