The Department of War announced Monday that it opened a formal review into allegations of misconduct against Democratic Sen. Mark Kelly of Arizona following the release of a video in which Kelly told service members they could “refuse illegal orders.”
According to the department, officials are examining whether Kelly, a retired Navy captain, could be recalled to active duty to face a court-martial or other actions under the Uniform Code of Military Justice.
The announcement stated that the review will proceed under standard military legal procedures.
“This matter will be handled in compliance with military law, ensuring due process and impartiality,” the department said, adding that comments will be limited during the review to protect the process.
The department reiterated that military retirees remain subject to the UCMJ.
It also emphasized that “orders are presumed to be lawful” and that service members are obligated to follow them.
Federal statutes were cited in the statement, including 18 U.S.C. § 2387, which prohibits attempts to undermine the loyalty, morale, or discipline of U.S. forces.
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“The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses,” the statement read.
“A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”
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
Kelly retired from the Navy years ago, but the review could result in his recall to active duty if investigators determine that his statements violated military law.
Retired personnel receiving military pay fall under UCMJ jurisdiction, and military courts have upheld that authority.
In United States v. Dinger (2018) and United States v. Larrabee (2020), appellate courts ruled that retirees can be tried for offenses committed after leaving active service.
Such recalls are rare and have generally been used for cases involving offenses such as espionage, sexual assault, or fraud.
The review will determine whether Kelly’s comments meet the standard of conduct “to the prejudice of good order and discipline” or violate federal prohibitions on encouraging disloyalty or insubordination within the armed forces.
Penalties under those statutes can include forfeiture of pay, confinement, or dismissal from service, though cases involving elected officials have not occurred in modern history.
Any formal action could also bring legal challenges involving the limits of military jurisdiction over political speech by a retired officer.
While numerous lawmakers have military backgrounds, no sitting senator or representative has been recalled to active duty for disciplinary proceedings.
The review follows a video released last week by Kelly and five other Democratic lawmakers addressed to service members and intelligence officers.
In the video, Kelly said: “Our laws are clear. You can refuse illegal orders.”
We want to speak directly to members of the Military and the Intelligence Community.
The American people need you to stand up for our laws and our Constitution.
Don’t give up the ship. pic.twitter.com/N8lW0EpQ7r
— Sen. Elissa Slotkin (@SenatorSlotkin) November 18, 2025
Four of the participants previously served in the military but are not retired, and therefore are not subject to the UCMJ, according to War Secretary Pete Hegseth.
Another participant, Sen. Elissa Slotkin of Michigan, is a former CIA officer who later admitted that no illegal orders have been given.
Elissa Slotkin ADMITS Democrats lied about President Trump issuing illegal orders to the military:
ABC: “Do you believe President Trump has issued any illegal orders?”
SLOTKIN: “To my knowledge I am not aware of things that are illegal.” pic.twitter.com/63F8AHkK7E
— RNC Research (@RNCResearch) November 23, 2025
Hegseth said the department is assessing Kelly’s remarks and the context in which they were delivered.
“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 said.
“Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”
The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in… https://t.co/UvLXChZnmF
— Pete Hegseth (@PeteHegseth) November 24, 2025
President Donald Trump responded to the video by stating that the lawmakers should face legal consequences, calling for charges of “seditious behavior.”
“SEDITIOUS BEHAVIOR, punishable by DEATH!” he said.
Kelly said the criticism amounted to an effort to pressure the lawmakers involved.
He stated that Trump was “trying to intimidate us” and added: “I’m not going to be intimidated.”
Kelly expanded on his position during an interview on CBS’ Face the Nation.
“His words carry tremendous weight, more so than anybody else in the country, and he should be aware of that, and because of what he says, there is now increased threats against us,” Kelly said.
Following the announcement of the investigation, Kelly issued a post on X referencing his Navy service and his experience as a NASA astronaut.
“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. I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space… pic.twitter.com/jMAlYEozQ6
— Senator Mark Kelly (@SenMarkKelly) November 24, 2025
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