Sen. Kelly lawyers up, prepares to fight Department of Defense probe

Attorneys representing Sen. Mark Kelly said they will take “all appropriate legal action” if the Department of Defense takes any action against the Arizona Democrat for a video in which Kelly and several other lawmakers said that military members are not required to follow orders that violate the law. 

The letter, obtained by Punchbowl News, was sent to John Phelan, the Secretary of the Navy, in response to the Department of Defense, which recently announced it was “escalating” its review of the senator into an “official command investigation.” 

Last month, Kelly, along with six other Democratic lawmakers, posted a video on social media telling members of the military that they are not required to follow orders that violate the law, spurring anger from Republicans and specifically President Donald Trump.

“SEDITIOUS BEHAVIOR, punishable by DEATH!” Trump posted in response to the video. A report has been submitted to Secretary of Defense Pete Hegseth making recommendations on possible punishments, but it is unclear what those recommendations are.

“To be clear: there is no legitimate basis for any type of proceeding against Senator Kelly and any such effort would be unconstitutional and an extraordinary abuse of power,” Attorney Paul J. Fishman says in the letter. “If the Executive Branch were to move forward in any forum — criminal, disciplinary, or administrative — we will take all appropriate legal action on Senator Kelly’s behalf to halt the Administration’s unprecedented and dangerous overreach.” 

Members of Congress are often granted constitutional protections for speech and debate, and it is still unclear how the military review and threat of court-martial by the DoD would impact those protections.

“It should send a shiver down the spine of every patriotic American that the president and secretary of defense would abuse their power to come after me or anyone this way,” Kelly said in a Monday statement after the Department of Defense announced it was escalating the review. “It wasn’t enough for Donald Trump to say I should be hanged. It wasn’t enough for Pete Hegseth to threaten me with a court martial. Now they are threatening everything I fought and served for across twenty-five years in the U.S. Navy—all because I repeated something every service member is taught. “

From 1987 to 2012, Kelly served as an aviator in the United States Navy, in which he was deployed as part of Operation Desert Storm during the first Gulf War. Prior to his retirement from military service, he reached the rank of captain and would later go on to become an astronaut with NASA. 

The other six Democratic lawmakers in the video also served in the military or intelligence communities. 

They said that Americans in those institutions can and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

When announcing their investigation into Kelly, the DoD said that “military retirees remain subject to the UCMJ 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.”

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

This story was first published by Arizona Mirror, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity.