The Pentagon said Monday night that Defense Secretary Pete Hegseth is “escalating” his review of Sen. Mark Kelly’s involvement in a video he and other Democratic lawmakers made reminding service members of their duty to disobey illegal orders — an unprecedented use of the military justice system to investigate a political adversary.
In a statement, the Defense Department said it was elevating what had been a “review” to an “official Command Investigation” to be carried out at least in part by the Pentagon general counsel’s office. The change signals a more formal effort by Hegseth to scrutinize the Democratic senator from Arizona, who is a retired Navy officer and outspoken critic of the Trump administration.
Within the military, such investigations seek to determine whether disciplinary action — or potential legal action — is warranted, according to a handbook from the Naval Justice School. They typically last about 30 days and can involve documenting evidence and conducting interviews with relevant witnesses.
Military law experts and Democratic lawmakers have said that, although retired military officers can be recalled to active duty, Hegseth’s inquiry into Kelly is a highly unusual use of the military justice system. Some Republicans have also questioned the investigation’s merit.
In a letter sent to the Pentagon before its announcement Monday, Paul Fishman, a lawyer representing Kelly, warned that any legal action against the senator “would be 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,” Fishman wrote.
The video Kelly joined included five other Democrats who previously served in the military or intelligence community. They spoke directly to U.S. service members, reminding them that they can disobey illegal orders. Though none of the lawmakers explicitly said so in the video, their message appeared aimed at the Trump administration’s controversial military action in Latin America and its domestic use of active-duty and National Guard troops.
The lawmakers involved have since said that they decided to film the message after troops had asked them about the legality of some of the Trump administration’s actions, such as striking alleged drug-trafficking boats or sending the military into U.S. cities to protect federal property and agents.
Hegseth had directed Navy Secretary John Phelan to determine whether Kelly’s involvement in the video should merit any action by the Pentagon. Phelan provided his recommendation to Hegseth last week, though the Navy did not disclose publicly what he advised.
Of the six lawmakers who made the video, Kelly is the only retired military officer, which made him vulnerable to a recall to active duty. Retired members of the armed forces — those who have served at least 20 years — remain subject to the Uniform Code of Military Justice even after they leave military service because they continue to receive government benefits.
The FBI also has gotten involved.
President Donald Trump reacted angrily to the lawmakers’ video, suggesting it was “seditious” and declaring the senators’ actions “punishable by DEATH!” Hegseth quickly responded by announcing that the Pentagon would review what he called the “serious allegations of misconduct” by Kelly, a combat veteran and U.S. astronaut.
Experts on military law also have argued that the lawmakers did not appear to say anything illegal and that the duty to disobey unlawful orders is a foundational part of the U.S. military.
Kelly has said the effort was an attempt to intimidate him.
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