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The Department of War announced Monday that it has opened a formal review into allegations of misconduct against Democratic Sen. Mark Kelly of Arizona over a video calling on service members to “refuse illegal orders.”
The Pentagon said it may even call Kelly, a retired Navy captain, back to active duty to face court-martial proceedings or other administrative actions under the Uniform Code of Military Justice.
“This matter will be handled in compliance with military law, ensuring due process and impartiality,” the department said, adding that further comments will be limited to protect the integrity of the proceedings.
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The statement also underscored that military retirees remain subject to the UCMJ and reminded servicemembers that “orders are presumed to be lawful” and must be obeyed. The department cited federal statutes, including 18 U.S.C. § 2387, which prohibits attempts 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 read. “A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”
Even though Kelly left active service years ago, the Pentagon could, if it determines his actions violated the code, bring him before a military court.
Such recalls are rare and typically reserved for serious criminal conduct, such as espionage, sexual assault, or fraud. Still, precedent exists. In United States v. Dinger (2018) and United States v. Larrabee (2020), military appellate courts reaffirmed that retirees receiving pay remain under the UCMJ’s jurisdiction and can be tried for offenses committed after retirement.
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If the review concludes that Kelly’s comments constituted conduct “to the prejudice of good order and discipline” or a violation of U.S. code, which prohibits encouraging disloyalty or insubordination among the armed forces, he could face recall to active duty for a formal court-martial. Punishments under those statutes can include forfeiture of pay, confinement or dismissal from service — though such outcomes are extraordinarily rare for political figures.
Any proceedings would likely provoke a constitutional showdown over whether speech made in a political context can be subject to military law, even by a retired officer.
While many lawmakers have served in the armed forces — and several have remained in the reserves while in office — there is no historical record of a sitting U.S. senator or representative being recalled to active duty for disciplinary action.
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.”
Four of the other Democrats are former military, but not retired and therefore are not subject to the UCMJ, according to Sec. Pete Hegseth. 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 said the lawmakers should be arrested and tried for “seditious behavior.”
“SEDITIOUS BEHAVIOR, punishable by DEATH!” he said.
Kelly accused Trump of “trying to intimidate us” and added: “I’m not going to be intimidated.”
“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 responded to the latest investigation with an X post detailing his time in service in the Navy and as an astronaut at NASA.
“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.”
“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,” said White House press secretary Karoline Leavitt.
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