On Thursday, the U.S. Navy completed its review into Arizona Sen. Mark Kelly’s comments in a Nov. 18 video urging troops not to follow unlawful orders.
This investigation was called for by Defense Secretary Pete Hegseth, who accused Kelly and five other Democrats in the video of encouraging insubordination.
Hegseth, who calls the group the “Seditious Six,” says he is now looking at whether Kelly should face court martial or some kind of administrative action. Among the six Democrats, Kelly is the only former service member to reach active-duty retirement, which requires more than 20 years of service. A retired U.S. Navy captain who flew combat missions during Desert Storm, Kelly still receives benefits from the Defense Department, which Hegseth oversees.
Kelly, who also served as an astronaut for NASA, says he hasn’t been informed of any action against him.
There’s no deadline for Hegseth to respond, if he opts to act at all. It’s also not clear what the Navy’s review of Kelly determined exactly. Officials are withholding details of the Navy’s report, citing privacy laws.
In a lengthy statement posted Nov. 24 to the department’s official X account, Hegseth accused Kelly of “serious allegations of misconduct” and threatened to recall Kelly to active duty to face charges. He cited a federal law that prohibits actions that interfere with the “loyalty, morale, or good order and discipline of the armed forces.”
While that Nov. 24 statement noted that “further official comments will be limited, to preserve the integrity of the proceeds,” Hegseth continued to address the matter on social media, accusing him of wearing his medals out of order in a photo.
“When/if you are recalled to active duty, it’ll start with a uniform inspection,” Hegseth posted on X on Nov. 25.
While Hegseth could recall Kelly to active duty to charge him in a military court, it’s unlikely because of legal hurdles.
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Legal experts say it’s not clear that Kelly broke any laws by reminding troops not to follow illegal orders, which is an accurate statement. Experts also say that charging a sitting U.S. senator using court-martial proceedings and for an alleged crime that occurred post-service would face major legal challenges.
Notably, Hegseth’s personal lawyer, Tim Parlatore, has acknowledged that a court martial — while possible — would be legally messy.
In a recent interview with far-right activist and Trump supporter Laura Loomer, Parlatore said the Constitution prohibits someone from holding office in two branches at once. In this case, if Kelly were recalled to active-duty service – part of the executive branch – he wouldn’t be able to simultaneously hold office as a senator – part of the legislative branch.
Parlatore said that invoking that option “could potentially cause separation of powers issues, and I could see that being litigated heavily within the district court.”
Hegseth could try to reduce Kelly’s rank or change his discharge to “Other than Honorable” – a move that would reduce or eliminate his retirement benefits.
Parlatore also noted in his interview with Loomer that while trying to court-martial Kelly could be tough, he could seek administrative punishments, including a letter of reprimand or a reduction in rank.
Doing so would be a nod to Trump supporters who objected to the criminal prosecution of dozens of veterans and active-duty service members connected to the Jan. 6 riots at the Capitol in 2021. While some veterans received light punishments, others accused of violence were demoted and discharged from the military.
On his first day back in office, Trump offered a “full, complete and unconditional pardon” to anyone convicted of crimes related to the riots.
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