Pentagon to review 'allegations of misconduct' against Sen. Mark Kelly

WASHINGTON — The Defense Department on Monday said it was investigating Sen. Mark Kelly, D-Ariz., a former Navy captain, over his participation in a video urging troops and intelligence personnel to disobey “unlawful orders” and that he could face punishment under military law.

Citing “serious allegations of misconduct,” the department said it was initiating a thorough review of Kelly’s actions and that the Pentagon had the right to recall Kelly to active duty for possible “court-martial proceedings or administrative measures.”

The Pentagon missive follows a video posted on social media last week by Kelly and five other Democrats in Congress — Sen. Elissa Slotkin of Michigan and Reps. Jason Crow of Colorado, Chris Deluzio and Chrissy Houlahan, both of Pennsylvania, and Maggie Goodlander, D-N.H., of New Hampshire. Slotkin served in the CIA while the others served in the armed forces.

“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,” they said. The video earned a ferocious rebuke from President Donald Trump, who called it “seditious behavior” of the sort that is “punishable by death.”

Trump in a radio interview Friday backed away somewhat from such harsh comments. “I’m not threatening death, but I think they’re in serious trouble,” Trump said on the "Brian Kilmeade Show.' “In the old days, it was death. That was seditious behavior.”

In its statement Monday, the department cited two statutes: one that allows the military to recall veterans to active duty for court-martial proceedings, and another that carries fines, up to 10 years in prison and ineligibility for government employment for five years if convicted of interfering with the loyalty, morale or discipline of the military — including distributing material that does so.

“The Department of War reminds all individuals that military retirees remain subject to the Uniform Code of Military Justice for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces. Any violations will be addressed through appropriate legal channels,” the statement said.

In its statement, the Pentagon said that all service members “have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful. A service member’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”

In extreme circumstances where a member of the military is found guilty of “mutiny” or “sedition” as part of a court-martial, the law does specify the death penalty as an allowable punishment.

In his own statement, Defense Secretary Pete Hegseth wrote that Kelly was being singled out unlike the other five Hill Democrats because they are not technically “retired” military like Kelly is, and in Slotkin’s case, she is not ex-military. As such they are not subject to the Uniform Code of Military Justice, Hegseth wrote.

“As was announced, the Department is reviewing his statements and actions, which were addressed directly to all troops while explicitly using his rank and service affiliation — lending the appearance of authority to his words,” Hegseth wrote. “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

‘We have their backs’

After Trump’s initial response, the Democrats involved in the video said that “no threat, intimidation or call to violence” would dissuade them from defending the Constitution.

“What’s most telling is that the President considers it punishable by death for us to restate the law. Our service members should know that we have their backs as they fulfill their oath to the Constitution and obligation to follow only lawful orders. It is not only the right thing to do, but also our duty,” the group said in a joint statement.

Speaking on CBS News’ “Face The Nation” on Sunday, Kelly said that he was surprised that Trump would go so far as to call for the execution of members of Congress, and that he has faced an uptick in personal threats since then.

Last week, Crow released audio recordings of calls made to his office after Trump’s comments, in which callers said that they hoped that whoever murdered him records it, and that they hoped Crow and his family would die.

And on Friday, Houlahan’s district office in West Chester, Pennsylvania, was the target of a bomb threat, her office said.

Speaking Sunday on ABC’s “This Week,” Slotkin said that her security situation changed “almost immediately” following Trump’s comments.

“I think I’ve been through dangerous situations before, so it doesn’t change, you know, my feeling about speaking my mind. 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,” Slotkin said.

While the Democrats who appeared in the video were all defense hawks, some big names in the national security space were notably absent.

Sen. Jack Reed, D-R.I., the top Democrat on the Senate Armed Services Committee and an Army veteran, would not directly answer a question about whether he would have signed onto his colleagues’ video if asked to do so.

“You know, first I would have had to read the letter and to see what precisely it says,” Reed said during an interview on the "SpyTalk" podcast. “I would certainly reinforce this notion that an individual — soldier, sailor, Marine — cannot violate the laws of war or the laws of the United States, that I would sign easily.”

In an email, the Defense Department said it did not have any additional information to provide on the investigation.

The White House referred a request for comment to the Pentagon.

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(Caroline Coudriet contributed to this report.)