Pentagon says Sen. Kelly could be recalled to active duty, face court martial for video to troops

The Pentagon is threatening to recall Sen. Mark Kelly, a former Navy pilot, to active duty where he could face court-martial proceedings over “serious allegations of misconduct” now under review.

The warning came after Mr. Kelly, Arizona Democrat, made a video with five other Democratic lawmakers urging U.S. troops to ignore any “illegal” orders coming from President Trump. 

Mr. Kelly, who also served as a NASA astronaut before entering politics, said the video only advised service members and intelligence personnel not to follow illegal orders. The Trump administration said otherwise, with Defense Secretary Pete Hegseth calling the video “despicable, reckless, and false.”

Mr. Kelly retired as a captain in October 2021 after a 25-year career in the Navy and the NASA astronaut corps. 

The Defense Department didn’t specify what misconduct Mr. Kelly is accused of committing, but referred to 18 U.S. Code Section 2387, which makes it a crime to engage in activities affecting the U.S. armed forces that promote insubordination or disloyalty within the military.

“Encouraging our warriors to ignore the orders of their commanders undermines every aspect of ‘good order and discipline,’” Mr. Hegseth said in a statement. “Their foolish screed sows doubt and confusion, which only puts our warriors in danger.”

Mr. Kelly said he first learned about the possibility that he could be recalled to active duty and face a court-martial after reading one of Mr. Hegseth’s social media posts.

“If this is meant to intimidate me and the other members of Congress from doing our jobs and holding this administration accountable, it won’t work,” he said. “I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”

The Democratic lawmakers who joined Mr. Kelly in the video are all also military veterans or former CIA personnel. The video has sparked fierce pushback from the White House.

“I think what they did is really bad. The hatred is pretty strong,” Mr. Trump said Monday on Fox News’ “Brian Kilmeade Show.” 

Mr. Trump accused Mr. Kelly and other Democrats — Sen. Elissa Slotkin of Michigan, Rep. Jason Crow of Colorado, Rep. Maggie Goodlander of New Hampshire, and Reps. Chris DeLuzio and Chrissy Houlahan of Pennsylvania — of telling the troops not to obey the orders of the president, their commander-in-chief.

“That was a traitorous statement. That was a horrible thing to do.  I believe they broke the law very strongly,” Mr. Trump said.

Mr. Hegseth referred to the Democratic lawmakers as the “Seditious Six.”

Mr. Kelly said he first swore an oath to the Constitution as a newly commissioned 22-year-old Navy ensign. He said he upheld the oath through flight school, multiple deployments on the U.S.S. Midway, almost 40 combat missions during Operation Desert Storm, test pilot school, and four space shuttle flights at NASA.

“In combat, I had a missile blow up next to my jet and flew through anti-aircraft fire to drop bombs on enemy targets,” he said in a statement. “At NASA, I launched on a rocket, commanded the space shuttle, and was part of the recovery mission that brought home the bodies of my astronaut classmates who died on Columbia.”

Justin Amash, a former G.O.P. House member who called for Mr. Trump to be impeached during his first administration, said the chances of a successful prosecution, even if Mr. Kelly is ultimately charged, are “zero point zero percent.”

“Everything with this administration is performative nonsense to cater to an ever-shrinking base,” he said Monday on X. “We don’t live in North Korea. Anyone here can freely state that service members must refuse unlawful orders.”

Because he retired from the Navy, Mr. Kelly is the only person on the video who remains subject to the Uniform Code of Military Justice, the body of federal law that governs the military justice system for all branches of the U.S. armed forces.

“The [Defense] 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,” Mr. Hegseth said. “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

Ms. Slotkin, a former CIA intelligence analyst, told ABC News’ Martha Raddatz that she wasn’t aware of any illegal orders coming from the Trump administration. 

“To my knowledge, I am not aware of things that are illegal, but certainly there are some legal gymnastics that are going on with these Caribbean strikes and everything related to Venezuela,” she said, referring to U.S. attacks on alleged drug boats.

Democrats and some Republicans on Capitol Hill have raised concerns about the legality of U.S. military strikes against the suspected drug trafficking boats in the Caribbean, along with deploying National Guard troops to U.S. cities to help crack down on crime.

“All servicemembers are reminded that they have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful,” the Defense Department said in a statement. “A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”

Texas Tech law school professor Geoffrey S. Corn spent 22 years in the Army as a tactical intelligence officer and Army lawyer before retiring as a lieutenant colonel. In an essay for the American Constitution Society, he observed that Mr. Trump had raised questions about the military justice system even before his first term in the White House.

He accused Mr. Trump of denigrating the U.C.M.J. when he complained about the financial resources spent on a court-martial for Army Sgt. Bowe Bergdahl, who had abandoned his combat outpost in Afghanistan.

“Instead, Trump called for his execution as a traitor,” Mr. Corn wrote. “These comments were deeply troubling, not only because Trump’s demand violated the most basic notions of due process, not to mention that treason is not even an offense in the U.C.M.J., but because once Trump was elected president, they arguably compromised Bergdahl’s ability to receive a fair trial.”

Sen. Kelly’s wife, then Arizona Rep. Gabby Giffords, was shot and nearly killed in a January 2011 assassination attempt. He later announced his retirement from NASA and the U.S. Navy, citing his need to care for his wife. In 2019, he announced his candidacy for the Senate. After winning the primary, he defeated incumbent Republican Martha McSally in the November 2020 general election, becoming the first Democrat to win the seat since 1962.

He was reportedly on the short list of potential vice presidents in the 2024 election. Democratic presidential nominee Kamala Harris ultimately chose Minnesota Gov. Tim Walz.