Pentagon launches new phase of probe into Sen. Mark Kelly over ‘illegal orders’ video

By Haley Britzky, CNN

(CNN) — The Pentagon has launched a new “official Command” phase of its investigation into whether Sen. Mark Kelly will be punished for his involvement in a video that reminded members of the military they have a duty to refuse illegal orders, with a decision likely to be made in about 30 days.

A Pentagon official confirmed that preliminary review of the Arizona Democrat was being escalated “to an official Command Investigation” regarding “serious allegations of misconduct.”

Kelly, a retired Navy captain, and five other Democratic lawmakers told service members in a video that they must “refuse illegal orders,” provoking fierce criticism from Defense Secretary Pete Hegseth, President Donald Trump, and other officials. Trump called the remarks “seditious” and “treason.” Hegseth called it Kelly’s “sedition video” in a social media post last month.

In a statement posted to social media, Hegseth said Kelly “is still subject to the [Uniform Code of Military Justice],” given he is a retired Naval officer.

“The video made by the ‘Seditious Six’ was despicable, reckless, and false,” Hegseth said. “Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of ‘good order and discipline.’ Their foolish screed sows doubt and confusion — which only puts our warriors in danger.”

A command investigation is a formal probe that typically runs for 30 days, though the Pentagon could request it to be faster or completed more quickly, Rachel VanLandingham, a former Air Force judge advocate and current law professor at Southwestern Law School, told CNN. The investigation is conducted by an officer senior in rank to the individual under investigation, meaning at least a one-star Naval officer in Kelly’s case.

Hegseth confronted Kelly directly on Tuesday, sources told CNN.

During a classified briefing for senators about the US military’s strikes on suspected drug boats, Kelly asked a question about the operations and Hegseth pivoted to accusing Kelly of hurting unit cohesion and undermining the chain of command, according to two people who heard his remarks. Kelly, who was sitting in the front row of the briefing, repeated his question about the operations several times, but Hegseth spoke over him and continued to harp on the video, the people said. Other senators had to intervene to try to get the briefing back on track.

Kelly confirmed to reporters that Hegseth confronted him, saying he “brought it up in the in the brief, oddly, which I thought was, you know, just some reiterating his talking points on this when I was specifically asking him questions about strikes, again shows that this is very performative for him, even in front of a group of senators.”

“Eventually I replied to him, and I said, hey, these are the same views you had in 2016. Very eloquently, I said, like the way he expressed himself in 2016 about this, you know, same issue and I said, by the way, you were specifically speaking about this president,” Kelly added.

The Pentagon declined to comment on the exchange.

Given the political attention on the matter, it’s “highly unlikely” the investigation will find that no misconduct occurred, VanLandingham said. As Hegseth and Trump have already made their positions clear on Kelly, the investigating officer could be “putting their career in jeopardy” by determining no misconduct occurred.

But she said it’s unclear what punishment might be meted out.

Putting Kelly through a court-martial would be “beyond the pale” and “an abuse of power,” she said. But if the administration were to go forward with one, the most likely paths under the Uniform Code of Military Justice would be to peg Kelly’s actions to Article 133, conduct unbecoming of an officer, or Article 134, tying it to conduct that brings discredit upon the armed forces.

“Those are the most ambiguous military crimes that can be twisted and exploited to unfairly penalize speech,” VanLandingham said.

Another step the Navy could take is to issue a secretarial letter of censure, which comes from the secretary of the Navy and would stand as a written reprimand but would have no practical consequence for Kelly.

And while there has been speculation that the Pentagon would seek to reduce Kelly in rank — which would impact his pay and benefits as a retired Naval officer —VanLandingham said it’s doubtful they have the legal authority to do so.

“I don’t see any plausible route to reduction in rank if they’re actually going to follow current federal law, outside of trying to court-martial him and ask for dismissal,” she said. “They could try to bring him back to active duty and then engage in nonjudicial punishment, an Article 15, but again you run into the Constitution.”

The Incompatibility Clause of the Constitution says that no member of Congress can hold any other federal office simultaneously; in Kelly’s case, he would not be able to sit as a senator and serve as an active-duty military officer at the same time.

On Monday, in a letter to Secretary of the Navy John Phelan, Kelly’s attorneys argued there is “no legitimate basis for any type of proceeding” again him, “and any such effort would be unconstitutional and an extraordinary abuse of power.”

“If the Executive Branch were to move forward in any forum—criminal, disciplinary, or administrative—we will take all appropriate legal action on Senator Kelly’s behalf to halt the Administration’s unprecedented and dangerous overreach,” the letter says.

Ultimately, VanLandingham said, what Kelly and the other five lawmakers did is “not different whatsoever” from what military lawyers often advise service members.

“What they said was just a generalized version of what military lawyers brief, what folks in basic training are briefed on, folks at professional military education courses are briefed on,” she said. “A, it was well within the framework of an appropriate articulation of the law, and B, it was well within their duties as sitting senators and representatives to reiterate this advice, because they’re responsible for the law that these service members were supposed to be following.”

CNN”s Natasha Bertrand, Zachary Cohen, Aileen Graef and Ellis Kim contributed reporting.

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