On the one side, you have a person who has flown fighter jets in combat, gone into space and had his wife shot in the head. Some might call Mark Kelly a true American hero. On the other side, there’s the draft dodger with bone spurs and the laughably unqualified show pony toady with hair gel who can’t keep a top secret (or staff). But that does not mean the former can’t do wrong and the latter should call Senator Kelly to account if he did.
Unlike the others in the video, Mark Kelly is a retired naval captain, which makes him subject to recall to active duty and the Uniform Code of Military Justice. While Trump called this conduct “seditious,” subject to the punishment of “DEATH!!!”, it was clearly not sedition. But is it otherwise actionable under the UCMJ? Secretary of War Defense Pete Hegseth seems to think so.
OFFICIAL STATEMENT:
The Department of War has received serious allegations of misconduct against Captain Mark Kelly, USN (Ret.). In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, a thorough review of these allegations…
— Department of War 🇺🇸 (@DeptofWar) November 24, 2025
The argument is that Kelly’s statement, even if legally accurate under the UCMJ, is nonetheless in violation of 18 USC § 2387.
(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:
(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States;
There is a serious question whether this statute violates the First Amendment, but beyond that, did Kelly’s statement that service members can refuse illegal orders merely restate black letter law or counsel “insubordination, disloyalty, mutiny, or refusal of duty”?
Does the question hinge on the implication that, by making the video, the president has issued orders that are illegal? The video falls short of asserting any order to which it would apply, such as the bombing of boats in international waters and murder of those aboard or deploying active duty troops to American cities in violation of Posse Comitatus.
Senator Elisa Slotkin, who was the initiator of the video, refused to identify a particular order she believes to be illegal.
“Do you believe President Trump has issued any illegal orders?” host Martha Raddatz asked.
“To my knowledge, I am not aware of things that are illegal, but certainly there are some legal gymnastics that are going on with these Caribbean strikes and everything related to Venezuela,” Slotkin responded.
If so, then why sow the seeds of doubts, even if the video was a correct statement of law? For his part, Sen. Kelly is uncowed.
“If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work,” Mr. Kelly said on Monday in a statement. “I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
Notably, Kelly was speaking as a senator and not merely as a retired naval officer. Is his ability to express his views as an elected official in the legislative branch subject to sanction by the executive branch because of his former service? Should it be?
While others in Congress, such as Rep. Don Bacon, have taken a dim view of the video, and similarly see Hegseth’s attempt to court martial Kelly as ridiculous, the Trump administration has hardly been reluctant to use whatever means is available, or at least arguably available, to punish those who challenge Trump. Should Kelly be the next target of Trump’s retribution? Did he expose himself to court martial, or was his accurate statement of the law beyond reproach? Or was this video a half-baked effort to suggest illegality without the guts to come out and say what orders were wrong?
*Tuesday Talk rules apply.
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I hate giving life to the ignorant rants flowing from this administration’s sewer. But we’re lawyers, so law stuff:
Setting aside whether a senator can be brought back to active duty for the sole purpose of prosecuting him, there are four appellate cases regarding this section, which finds its lineage to the Espionage and Alien and Sedition Acts. Because the section is in derogation of 1A, there is strict construction. That results in two elements One, at the time of commission did the defendant have the specific intent proscribed by the statute? Two, was there “a clear and present danger that the activities in question will bring about the substantive evils” listed in the statute?
Analysis ends with the first element. The intent was to state the law.
The intent was manifestly to induce servicemembers to refuse to follow orders based on the implication (not outright stated, of course, because it’s indefensible) that current or near-term future orders will be unlawful. No other rationale for the video passes the laugh test.
Philip’s correct below that, if Kelly were recalled for court-martial, it wouldn’t be under § 2387; it’d instead be charged under a directly-applicable UCMJ article–perhaps Art. 82 (10 USC 882) as solicitation.
And since the implication is manifestly credible, it’s critical to remind servicemembers they swore an oath to the Constitution, not to the draft dodging insurrectionist traitor personally.
Why’d you stop at intent? Assuming arguendo you satisfied that element, and you did not, you still have one to go if you’d like to do this legal reasoning thing properly. I reckon you didn’t want to see your position fail the laugh test.
Was there the clear and present danger that the statement, “don’t follow illegal orders,” will bring about the substantive evils of soldiers not following legal orders? I spot a tiny flaw in the argument for the affirmative. Can you see any?
Servicemembers already know their duty to disobey unlawful orders because they are instructed as much. And they should be, as it will be their asses on the line too if they fail to do so. That’s besides the more general point that we might want them to disobey if ordered to massacre a village or bomb my house or a host of other things. The senator’s statement did nothing but reaffirm the pickle servicemembers are in all of the time. Determine what’s a lawful order and not, and do it quickly or else, private. That’s an order.
[Ed. Note: Moved comment because Skink is old and hit the wrong reply button.]
Dan–the orders in the Caribbean are both unlawful and illegal. We won’t rehash the distinction. But I will give way to Philip. This here Hotel was built on the foundation of law talk with lawyers. When a lawyer gives an opinion based on his practice, we listen. We don’t do the same for others–they clean the grease pond behind the restaurant.
I agree. The Article 32 preliminary hearing to establish probable cause is different than Rule 5.1. Even if a Preliminary Hearing Officer does not find probable cause, the convening authority can refer charges to trial regardless. That event has happened more times than I can count. And, having litigated it as a constitutional error, so far, only one military judge has agreed with me (and that for a relatively minor charge to others on the charge sheet).
As we know from Bergdahl and the Spath issue, even a retirement eligible MJ seeking post-retirement employment might be susceptible to influences.
Cheers -:)
I didn’t think Senator Kelly’s video was necessary, but recalling him back to active duty to investigate his conduct as a senator and citizen is a clear abuse of executive power. It’s also a colossal political miscalculation. The Department of War under the leadership of Secretary Hegseth formerly of Fox News, and future game show host, has just made Senator Kelly a martyr. And from a purely political perspective, how dumb was that? Senator Kelly’s personal background and military experience lends a certain gravitas to his opinions which merit respect and deep reflection by policy makers. Stay strong Senator Kelly. I have no doubt you will. Thank you for your service, and go Navy!
The quote, often attributed to Orwell, that “Speaking the truth in times of universal deceit is a revolutionary act” has a profoundly powerful resonance when urging people to, quite literally, follow the law can be considered illegal and subject to prosecution.
Another quote, one of Napoleon’s maxims, “Never interrupt your enemy when he’s making a mistake” comes to mind. Charging a decorated veteran and sitting member of Congress with a crime for telling the truth is the sort of grievous overreach and abuse of power that is likely to enormous negative repercussions. While I certainly don’t want to see Kelly prosecuted, his prosecution would serve to undermine support for Trump and likely hurt the GOP in the mid-terms. Given our present circumstances… that might actually prove to be a good thing.
Legally, Sen. Kelly, nor anyone else for that matter, will not be prosecuted under 18 USC 2387 (assuming, arguendo, the case even got that far). To do so, a court-martial convening authority would have to charge the allegation using the assimilation clause in Article 134, clause 3, UCMJ, 10 USC 934 for a state or federal non-capital crime. However, the military applies a preemption doctrine to charges under Article 134. If there is a specific charge in articles (8)80-(9)32, UCMJ, then an Article 134 charge is preempted and would be dismissed.
BTW, there is no offense under Article 688 of the UCMJ–such an offense doesn’t exist. Those of us who practice military law exclusively caught that immediately. Article 688 is the statutory authority to recall a Regular Component retiree to active duty for the purpose of court-martial, see Article 2(a)(1), UCMJ–for an offense listed in Articles 80-134.
Cheers.
Great analysis Philip Cave! In a normal world, your points would carry the day so that this effort never sees the light of day and is buried under the Pentagon. But with the recent examples of blindness to the law and facts and total unthinking allegiance to the President by Bondi as his guide, Hegseth obviously suffers the same blindness and allegiance.
Ten years ago I retired from the AF as a JAG after 29 years, with a tour as a military judge. In today’s upside down world, this nonsense might well make it to a preferral by a willing tool, it could even get past a referral to a General Court by another willing command SJA and convening authority. I’d like to think that the assigned military judge would stop it dead in its tracks. I certainly would have, and I know many retired colleagues who also would have done so, but unfortunately I also know retired colleagues who are such avid Trumpers they’d go along with it. I must assume there are active duty judges who wouldn’t blink at giving this a pass, and there is no “wheel” for random assignments of military judges so the judge would be handpicked. It would be a hard choice for a military judge who is not yet retirement eligible to make the right call and disobey the orders from above, both direct and indirect. I still have faith, however, that a court-martial panel would not be so easily led, as seen with some Military Commission decisions and sentences. Sad to say, it might not get a proper decision until appellate review.
We’ve also seen this before. Mark Esper (former SECDEF) wrote in his book, A Sacred Oath, that Trump wanted to recall General McChristal and Admiral McRaven from retirement in order to court-martial them, but that Esper and General Milley talked him out of it. Esper said he argued negative political blowback, and Milley promised to ask McCrystal and Raven to tone down their criticisms. That’s not going to happen this time around with Hegseth and perhaps even with Caine. Maybe there are influential Republican politicians who can talk him out of it, but that also seems a bridge too far.
Hmm. Hegseth AND Trump. Well, next time I see old Fred who sleeps at the bus terminal, I’ll find out what he thinks.
Don’t you recall? We killed him in last Tuesday’s comments just to prove nobody cares what happens to the homeless guy at the bus station.
This entire saga has been idiotic from beginning to end. Trump’s lawless murdering of probably innocent fishermen (or even drug smugglers) on the theory that they are “narco-terrorists”. Generals meekly obeying these ridiculous orders instead of resigning en masse. Congresscritters suggesting to grunts that they disobey orders. Even idiots are supposed to learn the chain of command (if nothing else) during military service, so Kelly has no excuse. Trump’s response to all of this idiocy. Hegseth’s sycophantic “official statement.”
If they were trying to discredit the government and the military, they wouldn’t do anything different.
When was the last time we didn’t have a draft dodging president? Or, at least, someone who didn’t avoid meaningful military service through connections or non-interest. I think that you have to go back to Bush I.
At some point, the US electorate decided that meaningful military service was not a requirement to be President.
Other presidents and SecDef’s haven’t gone overboard trying to prove their manliness by reacting to every perceived slight.
Boy, show up late and miss all the fun.
Of course, there is really nothing to charge Kelly for, but I don’t think he is beyond criticism. The complications for a service member refusing an order are considerable. Two days ago, SHG quoted an example where the question of legality is given to a JAG officer, seemingly exclusively.
And there is a question of evidence. It would probably be a good idea to have evidence.
So, maybe a little elaboration somewhere, maybe?
To me it is odd that the GOP ignores the term ‘illegal orders’ when they debate the video. The suggestion that the party of law and order assumes that the Commander in Chief will ask the troops to commit illegal acts that must be followed unquestionably speaks volumes. The video does not mention the President specifically. So the MAGA multitude is predicting the current administration will eventually (if not already) make an unconstitutional and illegal act that must be followed by our military heroes? Why does this fact alone not send shivers down the spine of every veteran in the country. What illegal act should we be expecting??
It was a half-baked effort to suggest illegality without the guts to come out and say what orders were wrong but the recall to active duty for possible court martial is ridiculous. I also think that the efforts by some Democrats to redefine “real American” (e.g., Chris Murphy) and “patriot” (e.g. Ed Markey) in terms of military service have obvious downsides.
Actually, it was brilliant in that it made Trump and Hegseth overreact and show their authoritarian side, as if we didn’t already know. But some people need to be hit over the head.
This just occurred to me, but wouldn’t/ shouldn’t Trump and Hegseth’s comments be considered “unlawful command influence”?
IANAL, but it seems to me that when the CINC and SECDEF call for someone to be punished, not just tried, that would pretty clearly constitute “influence”.
[Ed. Note: An excellent question. Eugene Vindman raised it as well.]
I was drafted into the Navy during Viet-Nam determining legal or illegal orders is not that hard. If you remember William Calley was court-martialed for My Lai massacre however since Viet-Nam was based on a lie would that make everyone guilty of following illegal orders? it is hard to determine what’s legal and what’s not at the time and telling military not to follow illegal orders is stupid and reckless and should not have been made and the intelligence personal do what they want when they want however they want, Constitution is nothing more than fish wrap remember (Russian collusion and Steele dossier) the Sedition Six showed poor judgement making that video
This is an unfortunately week late and thus less likely to be seen question, but something I’m very genuinely curious about as a law-interested person: the focus from various lawyer commentators I follow has been around Senator Kelly’s status as a former captain, specifics around the UCMJ and so on, but does the fact that he’s a US Senator not have any impact? Specifically, I’m curious why the Speech or Debate Clause hasn’t come up at all in any discussion I’m seeing. I’m assuming that’s for good legal reason, and to lawyers is pretty obvious, but at the same time the entire core purpose of the clause seems to be around this sort of situation, where the POTUS or other Executive Branch officials want to find some pretext to punish a member of Congress for taking legislative body related actions the POTUS doesn’t like. When it applies, the immunity is absolute right?
Senator Kelly and the others were clearly acting directly in their roles as members of Congress, on a matter of United States government import and debate. At least on the face of it kinda feels like that specific clause should outweigh everything else, including his status as a former officer or the 1A protections every American should have, so what am I missing?
I thought this an excellent question, did some searching, and found this @ the “Constitution Annotated” site (no link per rules);
“Article I, Section 6, Clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The Supreme Court has described the Speech or Debate Clause as a provision that cannot be interpreted literally,1 but instead must be construed “broadly” in order to effectuate the Clause’s vital role in the constitutional separation of powers.2 “Deceptively simple”3 phrases—such as “shall not be questioned,” “Speech or Debate,” and even “Senators and Representatives”—have therefore been accorded meanings that extend well beyond their literal constructions.4 Arguably, this purpose-driven interpretive approach has given rise to some ambiguity in the precise scope of the protections afforded by the Clause. Despite uncertainty at the margins, it is well established that the Clause serves to secure the independence of the federal legislature by providing Members of Congress and their aides with immunity from criminal prosecutions or civil suits that stem from acts taken within the legislative sphere.5 As succinctly described by the Court, the Clause’s immunity from liability applies “even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.”6 This general immunity principle forms the core of the protections afforded by the Clause.
Once it is determined that the Clause applies to a given action, the resulting protections from liability are “absolute,”7 and the action “may not be made the basis for a civil or criminal judgment against a Member.”8 In such a situation, the Clause acts as a jurisdictional bar to the legal claim.9 But this immunity is also complemented by two component privileges (an evidentiary privilege and a testimonial privilege) that emanate from the Clause and can be asserted to prevent certain compelled disclosures. Even if absolute immunity is inappropriate, the evidentiary component of the Clause prohibits the introduction of evidence of legislative acts for use against a Member,10 while the testimonial privilege protects Members from compelled testimony on protected acts.11 The Supreme Court has not explicitly framed the protections of the Clause by reference to these two independent component privileges, but has instead implicitly recognized their existence.12 As a result, these privileges are neither clearly established nor described, and may further contribute to the unsettled aspects of the Clause.”
I imagine that Hegseth and Trump, both of whom got their law degrees from the same place I got mine, would say that the comments by “the seditious six” constituted treason and were thus not protected.
Thank you for taking the time to reply, though that still doesn’t really explain why it hasn’t come up. I will note as well that “treason” gets thrown around a lot, but it’s either one of very few or maybe even the only crime that’s flat out defined in the Constitution itself in Article 3 Section 3:
A3S3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
Even someone who’s never read any of the Federalist or debates or the like at the time can tell just from that the Founders were pretty concerned about that one getting applied liberally.