WASHINGTON (AP) — The Pentagon's investigation into Sen. Mark Kelly over a video urging U.S. troops to ignore “unlawful orders” has raised many questions and some criticism from legal experts.
Some say the Pentagon misunderstands military law by targeting Kelly as a retired Navy fighter pilot. Others say the Arizona Democrat cannot be impeached as a member of Congress. A group of former military prosecutors say he did nothing wrong.
The Pentagon announced the investigation last week following a social media post by President Donald Trump accusing Kelly – and five other Democratic lawmakers in the video – of inciting an insurrection “punishable by DEATH.”
Defense Secretary Pete Hegseth said Kelly is being investigated because he is the only one of the group who has officially left the military and is still under Pentagon jurisdiction.
Kelly called the investigation the work of “bullies” and said it will not deter him and other members of Congress “from doing our job and holding this administration accountable.”
“It's not completely unheard of”
Stephen Vladeck, a law professor at Georgetown University, said there has been a “significant increase” in the number of military retirees over the past decade. Although courts debate the constitutionality, the practice is currently permitted. According to him, about a dozen similar prosecutions were registered in the service units.
According to a report from the Congressional Research Service, about 2 million people have officially left the military and are receiving pensions. Military personnel are generally eligible for retirement benefits after 20 years of active duty.
Todd Huntley, a retired Navy captain and Judge Advocate General (JAG), said it is rare for retirees to be held accountable for anything that happened after they retired.
“This is not unheard of,” said Huntley, who now directs Georgetown’s program on national security law. “I actually prosecuted a military man who had been retired for 16 years. He was essentially assaulting his adopted daughter. Basically, no one else had jurisdiction, so we prosecuted him.”
“Funny conclusion”
Colby Vokey, a prominent civilian military lawyer and former military prosecutor, said Hegseth appears to be misinterpreting the Uniform Code of Military Justice to justify the Kelly investigation.
Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is entitled to retirement benefits. But Vokey said Hegseth lacked subject matter jurisdiction because Kelly made his statements in his capacity as a senator.
Case law has evolved to the point where the military can prosecute an active-duty service member for a crime committed off base, such as robbing a convenience store, Vokey said. But applying military law to a retired service member and “assuming that means any crime is kind of a ridiculous conclusion.”
“Let's say you have a 100-year-old World War II veteran who retired and stole a candy bar,” Vokey said. “Hegseth could have brought him back and court-martialed him. That's what's happening with Kelly.”
Patrick McClain, a retired Marine Corps judge and former federal prosecutor, said cases where retirees were called back “are more like extreme examples of fraud or some of these child pornography cases.”
“I haven't seen anything like the stupid thing they're trying to do to Senator Kelly for essentially exercising his First Amendment right to free speech, which they don't like,” McClain said.
“He did it as a civilian.”
Charles Dunlap, a Duke University law professor and retired Air Force lawyer, said in an email that military law can limit military speech that is protected for civilians by the First Amendment.
But even if the video is found to violate military law, the key question may be whether the law can be applied to retirees, Dunlap said.
A group of former military lawyers, the former JAG Task Force, said in a statement that Kelly did not violate the Uniform Code of Military Justice.
“The video simply describes the law regarding legal and illegal orders,” the group said. “He did not incite mutiny or encourage military personnel to ignore or disobey lawful orders given to them.”
Troops, especially uniformed commanders, have special obligations to reject unlawful orders. Broad legal precedent also holds that simply following orders – colloquially known as the “Defense of Nuremberg” because it was unsuccessfully used by senior Nazi officials to justify their actions under Adolf Hitler – does not free troops.
Kelly and other lawmakers did not mention specific circumstances in the video. Some Democratic lawmakers have questioned the legality of the Trump administration's efforts to send National Guard troops to U.S. cities. Kelly sharply questioned the use of the military to attack suspected drug ships off the coast of South America, saying he was concerned about the military officers involved in the mission and whether they were following orders that may have been illegal.
Michael O'Hanlon, research director for the Brookings Institution's foreign policy program, said any case brought against Kelly would likely be dismissed or end in acquittal.
O'Hanlon said it may have been politically unwise to “wave the red flag at the bull”, but he saw no legal basis for a court-martial.
“It can't be a crime to say you shouldn't break the law,” O'Hanlon said. “But also, he didn’t do it as a military officer. He did it as a civilian.”
Separation of powers
Kelly's status as a senator could block the Pentagon investigation due to constitutional protections for the separation of powers in the US government.
The Constitution clearly protects members of Congress from White House abuses, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
“Disciplining a United States senator on the orders of the secretary of defense and the president violates the basic principle of legislative independence,” Crace said in a telephone interview.
Kreis said the defense was a reaction to the British monarchy, which arbitrarily punished members of Parliament.
“No matter how you look at it, the Constitution is structurally designed to prevent this kind of abuse,” Kreis said.
