The Pentagon has opened a formal review into Arizona Sen. Mark Kelly (D) after the lawmaker appeared in a video urging U.S. service members to “refuse illegal orders,” triggering one of the most significant military-legal disputes involving a sitting senator in decades.
The Department of War confirmed the inquiry Monday, saying investigators will determine whether Kelly, a retired Navy captain, violated rules governing the conduct of military retirees.
Officials acknowledged the review could escalate to an extraordinary step: recalling Kelly to active duty for potential court-martial proceedings.
In its statement, the Pentagon emphasized the process would follow established military law and said further comment would be limited to protect the integrity of the review.
The department reiterated that “military retirees remain subject to the UCMJ” and noted that “orders are presumed to be lawful” unless otherwise determined, according to Trending Politics.
Officials also pointed to federal statute 18 U.S.C. § 2387, which criminalizes efforts to undermine the “loyalty, morale, or discipline” of the armed forces.
The department stressed that “a servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order,” signaling prosecutors are evaluating whether Kelly’s comments crossed a legal line.
Resist the Mainstream previously reported that the controversy erupted after Kelly and five other Democratic lawmakers released a video telling military and intelligence personnel, “Our laws are clear. You can refuse illegal orders.”
Four of the lawmakers previously served in the military but are not retirees, making Kelly the only participant still subject to the UCMJ. Another participant, Michigan Sen. Elissa Slotkin (D), served in the CIA, according to Fox News.
War Department Secretary Pete Hegseth said investigators are examining whether Kelly’s remarks—delivered while referencing his rank and military background—created “the appearance of authority” and risked undermining the chain of command.
“Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately,” Hegseth said.
The Pentagon confirmed that while rare, recalling retirees to active duty for disciplinary action is legally permissible.
Courts reaffirmed this authority in cases such as United States v. Dinger (2018) and United States v. Larrabee (2020), which involved retirees prosecuted for crimes including sexual assault and fraud.
If investigators conclude Kelly’s statements amounted to conduct “to the prejudice of good order and discipline” or violated federal law prohibiting encouragement of insubordination, he could face administrative penalties or a full court-martial.
Possible punishments range from forfeiture of pay to confinement, though actions of that magnitude against sitting lawmakers are virtually unprecedented.
Any attempt to discipline a sitting senator under military law would push the Pentagon into new constitutional territory, raising questions about the limits of political speech by retired officers serving in public office.
No member of Congress has been recalled to active duty for disciplinary purposes.
President Donald Trump forcefully condemned the lawmakers’ video, calling their message “seditious behavior” and asserting that such conduct is “punishable by DEATH!”
Kelly responded by accusing the president of attempting to intimidate him.
“I’m not going to be intimidated,” he said, adding that Trump’s remarks have increased threats against lawmakers.
Kelly’s office did not respond to requests for comment. The White House referred all inquiries to the Department of War.
