Why the Pentagon is Threatening to Court-Martial Senator Mark Kelly

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President Donald Trump has threatened to prosecute a sitting U.S. Senator under military law. The target was Senator Mark Kelly (D-AZ), a retired Navy Captain who joined five other Democratic lawmakers in releasing a video urging active-duty military personnel to refuse “illegal orders.”

The President characterized the lawmakers’ actions as “seditious behavior” punishable by death. Defense Secretary Pete Hegseth reinforced this position, and the Pentagon confirmed it was reviewing whether to recall Kelly to active duty for court-martial.

This confrontation exposed a fundamental tension in military law: the requirement to obey orders versus the duty to refuse unlawful commands. It also raised unprecedented constitutional questions about whether the executive branch can use military jurisdiction to punish a sitting legislator for political speech.

The Video

On November 18, 2025, six Democratic members of Congress released a 90-second video on social media. All six had backgrounds in national security: Senator Mark Kelly (retired Navy Captain), Senator Elissa Slotkin (former CIA analyst), Representative Jason Crow (former Army Ranger), Representative Maggie Goodlander (former Navy intelligence officer), Representative Chris Deluzio (former Navy officer), and Representative Chrissy Houlahan (former Air Force officer).

The lawmakers asserted that “threats to our Constitution aren’t just coming from abroad, but from right here at home.” They explicitly addressed members of the armed forces and intelligence community, reminding them of their oath to the Constitution rather than to an individual.

Senator Kelly delivered the central message: “Our laws are clear: You can refuse illegal orders. You must refuse illegal orders.” The video concluded with the naval exhortation, “Don’t give up the ship.”

The Administration’s Response

The administration viewed this direct appeal to troops as subversion of the chain of command. Trump, using his Truth Social platform, escalated the rhetoric to capital stakes, labeling the video “SEDITIOUS BEHAVIOR, punishable by DEATH!” and reposting calls for the lawmakers to be hanged.

Defense Secretary Pete Hegseth called the video “despicable, reckless and false.” The Department of Defense argued that “encouraging our warriors to ignore the orders of their commanders undermines every aspect of ‘good order and discipline’.”

By advising troops to independently evaluate the legality of orders, particularly during active operations, the administration argued the lawmakers were inciting mutiny under Article 94 of the Uniform Code of Military Justice.

Why Only Kelly?

While six lawmakers participated, the Pentagon’s disciplinary focus narrowed exclusively to Senator Kelly. This was jurisdictional.

Of the six, only Kelly was a “retired” member of the Regular Armed Forces entitled to pay. The others had either resigned their commissions (separating them from military jurisdiction) or, in Senator Slotkin’s case, never been subject to military law.

The Department of Defense confirmed that “serious allegations of misconduct” had been received against “Captain Mark Kelly, USN (Ret.)” and that a review was underway to determine if he should be recalled to active duty for court-martial.

The Illegal Orders in Question

The lawmakers’ video didn’t occur in a vacuum. By November 2025, the U.S. military was engaged in two controversial missions that legal experts and human rights organizations had flagged as potentially unlawful.

National Guard in U.S. Cities

Throughout 2025, the Trump administration aggressively utilized National Guard troops for domestic law enforcement under the umbrella of “crime emergencies” and immigration enforcement. By November, thousands of troops were deployed in Washington, D.C., Chicago, Portland, and Los Angeles.

The legality of these deployments was being actively litigated. On November 20, 2025, U.S. District Judge Jia Cobb declared the deployment of National Guard troops in Washington D.C., unlawful.

Judge Cobb ruled that the President had exceeded his statutory authority. While the Executive can protect federal property, he cannot unilaterally commandeer the D.C. National Guard for general policing or summon out-of-state Guard units without local consent.

This ruling created a direct conflict for service members: the Federal Judiciary had declared their mission illegal, yet their Commander-in-Chief ordered them to remain. The lawmakers’ video was a direct intervention in this confusion, reinforcing that troops aren’t obligated to follow orders the courts have deemed unlawful.

Operation Southern Spear

Simultaneously, U.S. Southern Command was executing “Operation Southern Spear,” a kinetic campaign against drug trafficking vessels in the Caribbean and Eastern Pacific. By November 2025, U.S. airstrikes had destroyed over 20 vessels and killed at least 83 individuals.

The administration justified these strikes by designating drug cartels, specifically those linked to the Venezuelan government, as “narco-terrorists.” However, international law generally categorizes drug trafficking as a law enforcement issue, not an armed conflict.

Amnesty International and the United Nations High Commissioner for Human Rights condemned the strikes as extrajudicial executions, arguing that lethal force in international waters is only permissible when there’s an imminent threat to life, not merely to destroy contraband.

For military pilots and drone operators, this presented a profound legal hazard. If the “war on drugs” didn’t legally qualify as an armed conflict, then sinking a boat and killing its crew could constitute murder under both U.S. and international law.

The “Illegal Orders” video appeared to be a specific warning to these operators that the “Nuremberg Defense” (just following orders) wouldn’t protect them from future war crimes prosecutions.

Why Military Law Requires Questioning Orders

The dispute involves the military’s dual requirement: instant obedience to lawful orders and absolute rejection of unlawful ones. This dichotomy is a legal standard forged in the aftermath of 20th-century atrocities.

The Calley Standard

The defining precedent for the American military is United States v. Calley (1973), which arose from the My Lai Massacre in Vietnam. Lieutenant William Calley’s defense was that he was following orders from his superior to kill villagers. The U.S. Court of Military Appeals rejected this, establishing that the defense of superior orders is invalid if the order is “palpably illegal.”

The court established the “ordinary sense and understanding” test: An order is illegal if “a man of ordinary sense and understanding would, under the circumstances, know to be unlawful.” This places an affirmative burden on the soldier.

They’re not expected to carry a law library into combat, but they’re required to recognize fundamental violations of human rights or the laws of war. Failing to do so makes them accomplices to a crime.

Legal experts noted in the wake of the Kelly controversy that if a pilot in the Caribbean knew that a target was merely a drug smuggler and not a combatant posing a threat, the Calley standard suggests they would be criminally liable for murder if they executed the strike.

The Presumption of Legality

While Calley addresses the extremes, day-to-day military operations rely on the “presumption of legality.”

Article 90 punishes the willful disobedience of a superior commissioned officer. Article 92 punishes the failure to obey other lawful orders or regulations.

Both articles hinge on the word “lawful.” However, military courts have long held that orders are presumed lawful. The burden of proof typically rests on the subordinate to prove the order was illegal, a daunting task in the heat of operation.

This creates a high-stakes dilemma: Disobey an order you think is illegal, and you face court-martial for mutiny if you’re wrong. Obey an order that is illegal, and you face prison for war crimes.

The lawmakers’ video attempted to shift this psychological burden, encouraging troops to err on the side of the Constitution when faced with orders like domestic deployments that federal judges were actively striking down.

What Is Sedition?

President Trump’s accusation of “sedition” references Article 94 of the UCMJ. This article defines sedition as acting “with intent to cause the overthrow or destruction of lawful civil authority” by creating revolt or violence.

Mutiny involves usurping military authority (refusing orders in concert with others). Sedition involves attacking civil authority.

Legal experts argue the lawmakers’ video doesn’t meet the elements of Article 94. Advising troops to follow the law (refuse illegal orders) is arguably a reinforcement of lawful authority, not an attempt to overthrow it.

However, the administration’s theory was that by encouraging troops to judge legality for themselves, the lawmakers were deconstructing the chain of command, which they equated to usurping military authority (mutiny).

The “Forever Soldier” Problem

The threat to recall Senator Kelly to active duty relies on a controversial but legally affirmed aspect of military law: continued jurisdiction over retired regular officers.

The Retainer Theory

Article 2(a)(4) of the UCMJ extends jurisdiction to “Retired members of a regular component of the armed forces who are entitled to pay.”

The legal theory, upheld since the 19th century, is that retirement pay is a “retainer” ensuring the officer is available for recall during national emergencies. Therefore, they remain subject to the UCMJ and can be court-martialed for crimes committed even after retirement.

The Larrabee Precedent

The constitutionality of this jurisdiction was challenged in Larrabee v. United States. Steven Larrabee, a retired Marine convicted by court-martial for sexual assault committed as a civilian, argued this violated his right to a grand jury and civilian trial.

The Supreme Court denied certiorari in 2019, leaving in place lower court rulings that affirmed the military’s power to court-martial retirees.

By November 2025, Larrabee remained the controlling precedent. The Department of Defense retained the legal authority to court-martial Senator Kelly.

However, Larrabee was involved in a violent felony (sexual assault). Applying this jurisdiction to political speech creates a novel constitutional clash. The military has rarely recalled retirees for court-martial, and almost never for pure speech offenses.

Article 88: Contempt Toward Officials

If recalled, the specific charge against Kelly would likely be a violation of Article 88, which prohibits commissioned officers from using “contemptuous words” against the President, Vice President, or Congress.

The words must be personally contemptuous. Truth is not a defense. While Article 88 applies to retirees, its enforcement against them is virtually nonexistent in modern history due to First Amendment concerns.

Prosecuting a sitting Senator for criticizing the President under Article 88 would essentially criminalize the Senator’s job (oversight and debate), creating a direct conflict between the UCMJ and the Constitution’s Speech or Debate Clause.

Constitutional Defenses

While the UCMJ provides the sword for the administration, the Constitution provides the shield for Senator Kelly. Any attempt to recall and prosecute him would trigger a separation of powers crisis.

The Speech or Debate Clause

Article I, Section 6, Clause 1 protects members of Congress from being “questioned in any other Place” for “any Speech or Debate in either House.” This immunity is absolute for legislative acts.

Kelly would argue the video was an exercise of his legislative duty to inform constituents and oversee the military.

The weakness: In Hutchinson v. Proxmire (1979), the Supreme Court ruled that newsletters and press releases aren’t protected legislative acts. A social media video likely falls into this unprotected category.

However, recent 2024-2025 Supreme Court cases on social media (Lindke v. Freed) have begun to treat official social media accounts as state action, potentially complicating this analysis. If the video is seen as an extension of his official duties, the Clause might offer protection.

The Incompatibility Clause

Article I, Section 6, Clause 2 prevents a person from holding an “Office under the United States” while serving in Congress.

Recalling Kelly to active duty makes him a military officer—an “Office under the United States.” This would theoretically force him to vacate his Senate seat.

The administration could use this to force Kelly’s removal from the Senate, bypassing the expulsion requirements (2/3 vote) of the Senate itself.

During WWII, members of Congress resigned to fight, but they weren’t involuntarily recalled to force their resignation. Legal scholars argue the Executive lacks the power to expel a member of Congress via recall, and the Senate would likely refuse to recognize the vacancy, provoking a constitutional crisis.

The First Amendment

Kelly would argue that applying Article 88 to a retired officer engaging in political speech violates the First Amendment. While United States v. Howe (1967) upheld Article 88 for active-duty officers, courts have suggested the military’s interest in suppressing the speech of retirees (who aren’t in command) is far lower.

Recalling a retiree solely to punish them for protected political speech would be challenged as a “pretextual” prosecution and a violation of the unconstitutional conditions doctrine.

The Standoff

The threat to prosecute Senator Mark Kelly in November 2025 represents a moment where the technicalities of military law were weaponized against the separation of powers.

The administration’s logic was rooted in a rigid interpretation of “good order and discipline,” viewing the lawmakers’ reminder of the “duty to disobey” as an existential threat to military cohesion during active operations. By invoking recall statutes and Articles 88 and 94, the Executive Branch sought to enforce a standard of loyalty that supersedes the civilian status of retired officers, even those serving in the legislature.

The lawmakers’ video highlighted the strain placed on the military by controversial domestic and foreign missions. By invoking the Calley standard, they sought to empower individual service members to act as a constitutional check against an Executive they viewed as acting unlawfully.

The UCMJ requires military members to question the legality of their orders because the United States military is sworn to the Constitution, not a person. The Calley standard exists to prevent the military from becoming a tool of tyranny.

The attempt to prosecute a Senator for reminding troops of this duty suggests the administration viewed this safety valve not as a legal necessity, but as seditious disloyalty. The resolution of this crisis will likely depend on whether the Federal Judiciary views the “forever soldier” statute as subservient to the independence of the Legislative Branch.

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