The Defense Department said Monday that it is opening an investigation into Sen. Mark Kelly of Arizona, a retired Navy captain, in connection with a video he and other Democrats recorded urging members of the military and the intelligence community not to comply with illegal orders from President Donald Trump’s administration.
Defense Secretary Pete Hegseth said on X that the video, which set off a political firestorm last week, was "despicable, reckless, and false."
"Five of the six individuals in that video do not fall under @DeptofWar jurisdiction (one is CIA and four are former military but not ‘retired’, so they are no longer subject to UCMJ). However, Mark Kelly (retired Navy Commander) is still subject to UCMJ—and he knows that," he added, referring to the Uniform Code of Military Justice.
A thorough review of allegations has been initiated to determine further actions, which could include recalling Kelly to active duty for court-martial proceedings or administrative measures, the Defense Department said.
Kelly, who spent more than two decades in the Navy as a pilot and retired as a captain, said on X that Hegseth's post was the first he had heard of the investigation.
"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," 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."
Kelly’s fellow Arizona senator, Ruben Gallego, wrote on X that Kelly "has dedicated his life to serving this country with honor. And now Trump is coming after him with the same baseless garbage he throws at anyone who refuses to bend the knee. Mark told the truth — in America, we swear an oath to the Constitution, not wannabe kings."
"F--- you and your investigation," added Gallego, a Democrat and veteran of the Marines.
Trump said last week on Truth Social that the Democratic lawmakers “should be arrested and put on trial,” accusing them of “seditious behavior” that, he said, could be “punishable by death.”
The next day, he said on conservative Brian Kilmeade's radio show that he was "not threatening death" toward the members.
“I think they’re in serious trouble. I would say they’re in serious trouble. I’m not threatening death, but I think they’re in serious trouble," Trump said. "In the old days, it was death. That was seditious behavior."
The Democrats' video was posted online Tuesday as a direct appeal to members of the military and the intelligence community.
“This administration is pitting our uniformed military and intelligence community professionals against American citizens," the lawmakers said in the video. "Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats coming to our Constitution aren’t just coming from abroad but from right here at home. Our laws are clear. You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.”
In addition to Kelly, it featured Sen. Elissa Slotkin of Michigan and Reps. Chris Deluzio of Pennsylvania, Maggie Goodlander of New Hampshire, Chrissy Houlahan of Pennsylvania and Jason Crow of Colorado. All are military veterans and former intelligence officials.
Kelly is the only lawmaker in the group who retired from the military. That means he can be recalled for an urgent need like a war or a national emergency but also to face court-martial for misconduct.
As part of the Pentagon's investigation, if the facts support charges, Kelly’s commander would notify him of them. It’s not clear yet who Kelly’s commander would be. Kelly would then sign a charge sheet and be recalled to active duty to possibly face a court-martial. The Convening Authority, which is similar to a judge, could then refer the case to court-martial — the equivalent of an indictment in a civilian court.
The likeliest charges that would be pursued are basically a catch-all: Article 133 Conduct Unbecoming an Officer and Article 134 Conduct Prejudicial to Good Order and Discipline. If he were found guilty, Kelly could be knocked down to a rank lower than captain, his separation could be changed to dishonorable, he could lose his benefits, and he could serve jail time.
In social media posts Monday, Crow and Slotkin voiced their support for Kelly and bashed Trump.
“You can’t bully a patriot. I stand with @SenMarkKelly,” Crow wrote. “This is a decisive moment. Trump is trying to incite violence, intimidate, and punish those who speak up to hold him accountable.”
In her post, Slotkin wrote: “This is the President’s playbook: using intimidation, harassment, and the weight of the federal government to try and silence anyone who speaks up against him. That won’t stop Senator Kelly, or any of us, from standing up for what’s right.”
Slotkin has previously defended the group's original video, noting that the Uniform Code of Military Justice requires members of the military to disobey illegal orders.
"This is the law," she said last week in response to a post from White House deputy chief of staff Stephen Miller criticizing the Democrats. "Passed down from our Founding Fathers, to ensure our military upholds its oath to the Constitution — not a king. Given you’re directing much of a military policy, you should buff up" on the UCMJ.
Multiple lawmakers in the video have said they have faced threats following Trump's threats.
"I’ve been through dangerous situations before, so it doesn’t change my feeling about speaking my mind," Slotkin said Sunday in an interview ABC’s "This Week." "But obviously, the president took issue with one sentence in a video and was calling for our death. I think that’s inappropriate, whether you’re a Democrat, Republican or an independent."
