WASHINGTON (AP) 鈥� The Pentagon announced Monday it is investigating over possible breaches of military law after the former Navy pilot joined a handful of other lawmakers that called for troops to defy 鈥渋llegal orders.鈥�
The Pentagon鈥檚 statement, posted on social media, cited a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court martial or other measures.
It is extraordinary for the Pentagon, which until President Donald Trump’s second term had usually gone out of its way to act and appear apolitical, to directly threaten a sitting member of Congress with investigation. It comes after Trump ramped up the rhetoric by accusing the lawmakers of sedition 鈥減unishable by DEATH鈥� in a social media post days after the video was released last week.
In its statement Monday, the Pentagon suggested that Kelly鈥檚 statements in the video interfered with the 鈥渓oyalty, morale, or good order and discipline of the armed forces鈥� by citing the federal law that prohibits such actions.
鈥淎 thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures,鈥� the statement said.
Kelly said he upheld his oath to the Constitution and dismissed the Pentagon investigation as the work of 鈥渂ullies.鈥�
鈥淚f this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won鈥檛 work,鈥� Kelly said in a statement.
What the lawmakers said in the video
Kelly was one of six Democratic lawmakers who have served in the military or intelligence community to speak 鈥渄irectly to members of the military.鈥� The other lawmakers are Sen. and Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan, who are seen as possible future aspirants for higher office and elevated their political profiles with the video’s wide exposure.
Kelly, who was a fighter pilot before becoming an astronaut and then retiring at the rank of captain, told troops that 鈥測ou can refuse illegal orders,鈥� while other lawmakers in the video said they needed troops to 鈥渟tand up for our laws … our Constitution.鈥�
Defense Secretary Pete Hegseth said Kelly was facing investigation because he is the only one of the lawmakers who formally retired from the military and is still under the Pentagon鈥檚 jurisdiction.
鈥淜elly鈥檚 conduct brings discredit upon the armed forces and will be addressed appropriately,鈥� Hegseth said on his personal X account. Of the wider group, he added that 鈥渢heir foolish screed sows doubt and confusion 鈥� which only puts our warriors in danger.鈥�
Kelly and the other lawmakers didn鈥檛 mention specific circumstances in the video, but its release comes as the Trump administration has ordered in the Caribbean Sea and eastern Pacific Ocean accused of ferrying drugs and continues its attempts at deploying National Guard troops into U.S. cities despite some .
Chief Pentagon spokesman Sean Parnell said last week that 鈥渙ur military follows orders, and our civilians give legal orders.鈥�
Other Senate Democrats came to Kelly鈥檚 defense, with Democratic leader Chuck Schumer accusing Trump of using the Pentagon 鈥渁s his personal attack dog鈥� and saying 鈥渢his is what dictators do.鈥�
His fellow Democratic Arizona senator, Ruben Gallego, said 鈥淢ark told the truth 鈥� in America, we swear an oath to the Constitution, not wannabe kings.鈥�
What legal scholars say
In the past decade, there has been 鈥渁 quiet but significant uptick in courts-martial of retired servicemembers, even for post-retirement offenses,鈥� Stephen Vladeck, a Georgetown University law professor, said in an email. He said there has been debate in the courts about their constitutionality but the practice is currently allowed.
But Kelly鈥檚 status as a U.S. senator could complicate the Pentagon鈥檚 investigation because the Constitution explicitly shields members of Congress from White House overreach, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
鈥淗aving a United States senator subject to discipline at the behest of the secretary of defense and the president 鈥� that violates a core principle of legislative independence,鈥� Kreis said in a phone interview.
Kreis said such protections were a reaction to the British monarchy, which had arbitrarily punished members of Parliament.
鈥滱ny way you cut it, the Constitution is fundamentally structurally designed to prevent this kind of abuse from happening,鈥� Kreis said.
Troops can reject unlawful orders
Troops, especially uniformed commanders, do have specific obligations to reject orders that are unlawful, if they make that determination.
While commanders have military lawyers on their staffs to consult with in making such a determination, rank-and-file troops who are tasked with carrying out those orders are rarely in a similar position and often have to rely on their superiors.
Broad legal precedence also holds that just following orders 鈥� colloquially known as the 鈥淣uremberg defense,鈥� as it was used unsuccessfully by senior Nazi officials to justify their actions under Adolf Hitler 鈥� doesn鈥檛 absolve troops.
Yet, there has been little reaction online from troops to the lawmakers’ video.
A former service member who helps run an online military forum and spoke on condition of anonymity to avoid retaliation said the lawmakers鈥� message is unlikely even to reach troops because the video was posted only on X and was far too long to be reposted on platforms like TikTok where troops actually consume information.
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Associated Press writer Matt Brown contributed to this report.
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