Mark Kelly thought he was merely stating the obvious. Earlier this month, the Arizona senator joined five other congressional Democrats to film a message addressed to members of the military. “You can refuse illegal orders. You must refuse illegal orders,” they said.
An ordinary president, Kelly told us on Tuesday afternoon, would have responded to the video by affirming that troops should of course follow lawful orders. “But not this guy,” he added. “We basically said, ‘Follow the law.’ And he said, ‘Kill them.’”
The video to service members was the second Kelly had recently released. The former Navy pilot and astronaut took to social media with a group of fellow Democrats last month to urge the public to peacefully resist President Donald Trump’s placement of troops in U.S. cities and to “step up for the country we all love.” Like so much else that members of Congress push online to connect with voters or stump for campaign funds, their video ahead of nationwide “No Kings” protests in October generated little national buzz.
Earlier this month, the group filmed its second message, amid U.S. strikes on alleged drug-smuggling boats in the Caribbean and eastern Pacific, a campaign of questionable legal validity. Like the first, the video message was intended as a “digital play” to generate views and support, according to two Democratic Senate staffers with knowledge of the matter. “It was supposed to be nothing more than that,” one of the aides told us.
In the week since, it has become very much more than that. President Trump suggested trying and executing the lawmakers for sedition. A wave of violent threats against them followed. Then Secretary of Defense Pete Hegseth launched a review of what he termed “serious allegations of misconduct” into Kelly, who retired as a Naval captain in 2011. Kelly now faces the possibility of being recalled to active duty to be court-martialed for his statements. If convicted, he could be dismissed from the service, lose his pension, and possibly be imprisoned. (Kelly is the only lawmaker in the video who reached 20 years in the service, therefore making him an official military retiree eligible for recall.)
If the first 10 months of the second Trump administration showed how willing the president and his cabinet were to use the criminal-justice system against their perceived enemies, the pursuit of Kelly extends that retribution campaign to the machinery of military justice in a potentially destructive way.
Experts in military law say Hegseth’s gambit is unlikely to stand up in court, because Kelly’s apparent transgression consisted of restating service members’ oft-cited responsibility to act within the law, as defined by the Uniform Code of Military Justice, the services’ equivalent of the U.S. criminal code.
But even if the pursuit of Kelly—who flew combat missions in the Gulf War and was later sent into space by NASA before becoming a U.S. senator—ultimately fails, the move sends a clear warning to other officers and military retirees who might want to speak up.
Before recording the two videos, the group, spearheaded by Elissa Slotkin, a Michigan senator and former CIA officer, had discussed what they could do to publicly push back as Trump pulled the military into new and, from their perspective, troubling missions, Kelly told us. The group also included Representatives Jason Crow of Colorado, Maggie Goodlander of New Hampshire, and Chrissy Houlahan and Chris Deluzio of Pennsylvania. Some of the lawmakers sat on committees with oversight of the military; they all wanted service members to know “that we have their backs,” Kelly said.
The first suggestion that the latest video had found an audience—albeit a hostile one—was a Fox News appearance the following day by Stephen Miller, White House deputy chief of staff. He said the lawmakers’ remarks amounted to an “insurrection” and a “general call for revolt.”
“There is nothing graver that you could possibly say as a United States senator than encouraging, urging, directing members of the armed forces of the United States, or the clandestine services of the United States, to defy their president, defy their chain of command,” Miller said.
By the next morning, the president, on Truth Social, blasted what he called “SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL” and reposted suggestions that the lawmakers be hanged. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL,” Trump wrote. “An example MUST BE SET.”
White House Press Secretary Karoline Leavitt denied that Trump was threatening the Democrats with execution. But she called their statements “very, very dangerous” and perhaps illegal.
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In his first term, Trump had considered recalling both retired Army General Stanley McChrystal and retired Admiral William H. McRaven to active duty so they could be court-martialed for perceived disloyalty, according to a 2022 memoir, A Sacred Oath, by former Defense Secretary Mark Esper. Esper wrote that he and former chairman of the Joint Chiefs of Staff Mark Milley talked Trump out of it.
Hegseth had a different response. He initially posted a relatively muted message on his personal X account that said the video signified a case of “Stage 4 TDS,” or Trump Derangement Syndrome. But the following evening, he amplified a White House social-media post that stamped the word seditious over the lawmakers’ images in the video. And on Monday, he decried the “seditious six,” labeling their circumvention of Trump’s command authority “despicable, reckless, and false.”
Earlier today, the Pentagon posted a memo in which Hegseth ordered the Navy to review Kelly’s “potentially unlawful comments.”
Hegseth argued that by citing his rank and Navy service in the video, Kelly was attempting to issue a pseudo-order to the troops. “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately,” Hegseth wrote.
Kelly’s office also has been notified of an FBI request to speak to the senator about the video, according to an aide. Other lawmakers involved received the same request, though where the FBI’s interest lies remains unclear. Kelly has not spoken to federal authorities. But in interviews and on social media, he has said he would not be intimidated or “silenced by bullies who care more about their own power than protecting the Constitution.”
Hegseth has clashed with Kelly before, as he has with most Democrats on the House and Senate Armed Services Committees. During Hegseth’s confirmation process, in which the nominee forcefully denied allegations of sexual assault and alcohol abuse, Kelly questioned whether Hegseth had adequate experience for the job. Kelly retired at a higher rank than Hegseth, who was a major in the Army National Guard.
The statements by Trump and Hegseth appear to have unleashed a deluge of intimidation, including a bomb threat against Crow’s Colorado office and hundreds of threats to Slotkin. Slotkin, who made multiple deployments with the CIA in Iraq, typically reports one or two higher-level threats to Capitol Police each month. Since Trump’s threats, her office has reported more than 80, according to a Senate aide. The Michigan senator also began receiving Capitol Police protection after Trump’s posts.
Threats against Kelly increased, too. He and his aides declined to elaborate, a stance Kelly and those close to him have taken in the years since his wife, former Representative Gabrielle Giffords, was shot in the head during a 2011 attempted assassination that left six dead and her and 12 others wounded. In recent years, Kelly was among the lawmakers who were spending more campaign funds on security-related expenses than nearly anyone else in Congress, according to an analysis by The Arizona Republic.
(In Arizona, Kelly is sometimes accompanied by security, although he relishes flying his small plane alone to far-flung events in the sprawling desert.)
“I’m not backing down. I’m not shutting up,” Kelly told us. “If somebody in my situation was to do that, what is the message that sends to not only service members but government employees? How about to just U.S. citizens about what our First Amendment rights are?”
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Arizona’s other senator, Democrat Ruben Gallego, a Marine Corps veteran, said that Trump was weaponizing the military against one of its own. “He’s trying to distract also from his problems right now,” Gallego told us, citing tensions within the GOP, economic troubles, and the furor over the Epstein files.
Numerous Republican veterans in Congress joined the administration in condemning the Democrats’ video. But Senator Lisa Murkowski of Alaska praised Kelly’s military and NASA service on X. “To accuse him and other lawmakers of treason and sedition for rightfully pointing out that servicemembers can refuse illegal orders is reckless and flat-out wrong,” she wrote. “The Department of Defense and FBI surely have more important priorities than this frivolous investigation.”
Hegseth would have a difficult task crafting a viable case against Kelly, even if the Navy decides to recall him, according to experts in military justice. Before reaching a military court, the case against him would have to clear various pretrial hurdles.
Hegseth appeared to be making a case on social media to charge Kelly under Article 133 of the Uniform Code of Military Justice, commonly known as “conduct unbecoming an officer and a gentleman,” and Article 134, a wide-ranging statute that addresses conduct that harms good order and discipline or brings discredit to the unit. But for that “you need actual evidence—Hegseth saying it is so is not enough,” Eric Carpenter, a professor of military law at Florida International University and a former Army lawyer, told us.
The Uniform Code of Military Justice also has provisions outlawing mutiny, sedition, and other crimes. But Carpenter explained that telling troops to follow the law shouldn’t constitute any kind of offense. “While I was on active duty, I regularly briefed soldiers on this framework,” he added. “I wasn’t committing a crime, and neither was Senator or Captain Kelly.”
Ashley Parker, Elaine Godfrey, and Marie-Rose Sheinerman contributed to this report.
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