Pentagon says it's investigating Sen. Mark Kelly over video urging
troops to defy 'illegal orders'
[November 25, 2025]
By KONSTANTIN TOROPIN and BEN FINLEY
WASHINGTON (AP) — The Pentagon announced Monday it is investigating
Democratic Sen. Mark Kelly of Arizona over possible breaches of military
law after the former Navy pilot joined a handful of other lawmakers in a
video that called for troops to defy “illegal orders.”
The Pentagon’s statement, posted on social media, cited a federal law
that allows retired service members to be recalled to active duty on
orders of the defense secretary for possible court martial or other
measures.
It is extraordinary for the Pentagon, which until President Donald
Trump's second term had usually gone out of its way to act and appear
apolitical, to directly threaten a sitting member of Congress with
investigation. It comes after Trump ramped up the rhetoric by accusing
the lawmakers of sedition “punishable by DEATH” in a social media post
days after the video was released last week.
In its statement Monday, the Pentagon suggested that Kelly’s statements
in the video interfered with the “loyalty, morale, or good order and
discipline of the armed forces” by citing the federal law that prohibits
such actions.
“A thorough review of these allegations has been initiated to determine
further actions, which may include recall to active duty for
court-martial proceedings or administrative measures,” the statement
said.
Kelly said he upheld his oath to the Constitution and dismissed the
Pentagon investigation as the work of “bullies.”
“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,” Kelly said in a statement.
What the lawmakers said in the video
Kelly was one of six Democratic lawmakers who have served in the
military or intelligence community to speak “directly to members of the
military.” The other lawmakers are Sen. Elissa Slotkin and Reps. Jason
Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan, who are
seen as possible future aspirants for higher office and elevated their
political profiles with the video's wide exposure.
Kelly, who was a fighter pilot before becoming an astronaut and then
retiring at the rank of captain, told troops that “you can refuse
illegal orders,” while other lawmakers in the video said they needed
troops to “stand up for our laws ... our Constitution.”
Defense Secretary Pete Hegseth said Kelly was facing investigation
because he is the only one of the lawmakers who formally retired from
the military and is still under the Pentagon’s jurisdiction.
“Kelly’s conduct brings discredit upon the armed forces and will be
addressed appropriately,” Hegseth said on his personal X account. Of the
wider group, he added that “their foolish screed sows doubt and
confusion — which only puts our warriors in danger.”
Kelly and the other lawmakers didn’t mention specific circumstances in
the video, but its release comes as the Trump administration has ordered
the military to blow up small boats in the Caribbean Sea and eastern
Pacific Ocean accused of ferrying drugs and continues its attempts at
deploying National Guard troops into U.S. cities despite some legal
setbacks.
Chief Pentagon spokesman Sean Parnell said last week that “our military
follows orders, and our civilians give legal orders.”
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The Pentagon is seen on Sunday, Aug. 27, 2023, in Washington. (AP
Photo/Carolyn Kaster, File)
Other Senate Democrats came to Kelly’s defense, with Democratic
leader Chuck Schumer accusing Trump of using the Pentagon “as his
personal attack dog” and saying “this is what dictators do.”
His fellow Democratic Arizona senator, Ruben Gallego, said “Mark
told the truth — in America, we swear an oath to the Constitution,
not wannabe kings.”
What legal scholars say
In the past decade, there has been “a quiet but significant uptick
in courts-martial of retired servicemembers, even for
post-retirement offenses,” Stephen Vladeck, a Georgetown University
law professor, said in an email. He said there has been debate in
the courts about their constitutionality but the practice is
currently allowed.
But Kelly’s status as a U.S. senator could complicate the Pentagon’s
investigation because the Constitution explicitly shields members of
Congress from White House overreach, said Anthony Michael Kreis, a
constitutional law professor at Georgia State University.
“Having a United States senator subject to discipline at the behest
of the secretary of defense and the president — that violates a core
principle of legislative independence,” Kreis said in a phone
interview.
Kreis said such protections were a reaction to the British monarchy,
which had arbitrarily punished members of Parliament.
”Any way you cut it, the Constitution is fundamentally structurally
designed to prevent this kind of abuse from happening,” Kreis said.
Troops can reject unlawful orders
Troops, especially uniformed commanders, do have specific
obligations to reject orders that are unlawful, if they make that
determination.
While commanders have military lawyers on their staffs to consult
with in making such a determination, rank-and-file troops who are
tasked with carrying out those orders are rarely in a similar
position and often have to rely on their superiors.
Broad legal precedence also holds that just following orders —
colloquially known as the “Nuremberg defense,” as it was used
unsuccessfully by senior Nazi officials to justify their actions
under Adolf Hitler — doesn’t absolve troops.
Yet, there has been little reaction online from troops to the
lawmakers' video.
A former service member who helps run an online military forum and
spoke on condition of anonymity to avoid retaliation said the
lawmakers’ message is unlikely even to reach troops because the
video was posted only on X and was far too long to be reposted on
platforms like TikTok where troops actually consume information.
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Associated Press writer Matt Brown contributed to this report.
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