Publicly, Secretary of Defense Pete Hegseth has been highly critical of the six Democratic lawmakers who released a video last week urging military service members to disobey illegal orders, calling the lawmakers the “Seditious Six” and categorizing their message as “despicable, reckless, and false.”

That criticism has particularly focused on Sen. Mark Kelly, the member of the group who had the longest tenure in the military and who achieved the highest rank of captain in the Navy.

Hegseth has attacked Kelly by name, unlike the other lawmakers. He mocked Kelly for a picture of him in uniform — “you can’t even display your uniform correctly” — and wrote that Kelly’s “conduct brings discredit upon the armed forces and will be addressed appropriately.”

Behind closed doors, Hegseth is weighing his options to punish Kelly for participating in the video, ones that range from reducing the retired US Navy captain’s rank and pension to prosecuting him under military law, according to a source familiar with the matter.

In Kelly, Hegseth sees a critic worth making an example of, and he could technically use the military justice system to do so, the source said. Unlike the other five Democrats who appeared in the video, Kelly is a military retiree — meaning he served long enough to receive a pension, and thus, is still beholden to the Uniform Code of Military Justice, or UCMJ, including its restrictions on free speech, legal experts told CNN.

Kelly could be recalled to active service and court-martialed because of that status, but doing so over his role in the video would be extraordinary, legal experts said. That’s because not only has the UCMJ mainly been used in recent years to prosecute former service members who commit crimes overseas outside of US civil jurisdiction, but also because Kelly is a US senator.

Prosecuting him would raise unprecedented separation-of-powers issues, with the executive branch going after someone in the legislative branch, said Rachel E. VanLandingham, a national security law expert and former active-duty judge advocate in the US Air Force.

It would also be an uphill battle for the administration, VanLandingham and other legal experts said, in large part because Hegseth’s public statements deriding Kelly’s video appear to be a clear-cut case of “unlawful command influence,” in which a superior commander implies or dictates a predetermined outcome for a military trial and thus makes a fair hearing impossible.

Because everyone at the Defense Department works for Hegseth, VanLandingham noted, it’s hard to see who could fairly convene a court to hear his case.

“Hegseth has completely tainted this process,” she said.

A coalition of former and retired military judge advocates has also issued a rare joint statement warning that the Pentagon’s effort to recall Kelly for UCMJ prosecution is partisan in nature, legally baseless and compromised by unlawful command influence.

“We are confident the unlawful influence reflected in the press reports will ultimately disqualify all convening authorities except possibly the president himself from actually referring a case for court martial,” the statement said.

In his various public messages, Hegseth has suggested Kelly’s comments violated several statutes of the UCMJ, which lays out legal requirements for those in the military, but they don’t seem to cohere to a single theory of the case, legal experts said.

Pentagon undertakes ‘review’

In the video that triggered the Trump administration’s calls for consequences, lawmakers said that “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”

Although the video didn’t reference what orders service members might be receiving that would potentially be illegal, lawmakers on both sides of the aisle have raised concerns repeatedly about the legality of US military strikes against suspected drug boats in the Caribbean and the US military’s deployment to cities over the protest of governors.

The administration has argued that by emphasizing service members’ duty to disobey unlawful orders, Kelly and the other lawmakers were inciting troops to disobey lawful orders. President Donald Trump has called the video “seditious behavior at the highest level.”

Kelly’s involvement in the video is under “review” by the Pentagon, rather than subject to a formal investigation, meaning military police are not involved, the source familiar with Hegseth’s thinking said.

At this stage, it remains unclear whether Kelly will ultimately face a recall and court-martial or a lesser administrative penalty. It’s also not clear what, exactly, Kelly might be charged with if he were to be charged.

“There are many options,” the source told CNN.

In the short term, Hegseth is deferring to his Navy secretary, who oversees the military branch Kelly served in, for advice — giving him a deadline of December 10 to provide his recommendations.

“I am referring this, and any other related matters, for your review, consideration and disposition as you see fit,” Hegseth wrote in a memo to the Navy secretary, dated November 25.

Hegseth has hinted at one option he is considering in response — to administratively reduce Kelly’s rank — referring to him in a social media post as a “retired Navy Commander,” which is below the senator’s rank of captain.

Because Kelly was a senior officer who retired from the Navy, he is required to remain available for recall to the military by law. The other five lawmakers in the video, Sen. Elissa Slotkin and Reps. Jason Crow, Maggie Goodlander, Chris Deluzio and Chrissy Houlahan, are not eligible for recall to a military service.

That gives Hegseth options for action against Kelly that he doesn’t have for the others, though the FBI is also seeking interviews with the lawmakers.

While retired service members have been called back to face military law before, it has generally been for violent crimes. It’s unclear what crime Kelly could be charged with.

In its response, the administration has pointed to a number of legal provisions. A Pentagon statement referenced a World War II-era federal law prohibiting actions intending to interfere with the discipline or loyalty of the military, which the military could theoretically charge through a backdoor provision that allows it to charge federal crimes not explicitly laid out by the UCMJ.

But that law has not been used in the modern era and is widely viewed as a dead letter after a series of postwar Supreme Court decisions reinforcing free-speech protections, VanLandingham said.

Other legal terms of art referenced by Hegseth in response to Kelly and the other lawmakers seem to match with provisions in the UCMJ criminalizing behavior against good order and discipline or which bring “discredit” upon the armed services.

If Kelly is recalled for prosecution under the UCMJ, his case will be handled by officers in the Judge Advocate General corps.

Hegseth has significantly changed the role and responsibilities of those military lawyers and fired some who ran afoul of the policies he is trying to implement, moves sources previously told CNN were viewed inside the Pentagon as the first warning shots by an administration intent on pushing the boundaries of the law.

But using the Uniform Code of Military Justice to punish a sitting senator and retired Navy captain for something that, for private citizens, is protected as free speech, would mark a significant escalation by Hegseth.

GOP Sens. Lisa Murkowski and John Curtis defended their Democratic colleague after the Pentagon’s announcement.

Murkowski noted in a post on X that Kelly had served the country “valiantly,” and “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.”

“The Department of Defense and FBI surely have more important priorities than this frivolous investigation,” she added.

Curtis, a first-term senator from Utah, didn’t directly reference the investigations into Kelly, but said on Tuesday evening he has “respect” for the Arizona Democrat and values his “friendship.”

“I know him as someone whose career has been defined by service. His record as a combat naval aviator and NASA astronaut reflects his example of the discipline and dedication that are important for success,” Curtis wrote on X.

The UCMJ and its limits

Court-martialing Kelly is technically a viable option for Hegseth because three appellate courts have upheld that it’s constitutional to court-martial retired service members, though there have been long-standing arguments from some legal scholars that this should not be the case.

Among other things, the UCMJ places stiff limitations on free speech that some legal analysts believe are unconstitutional for people who are in every other way living as civilians. It could in theory allow the government to court-martial a Korean War veteran for saying something critical about the sitting president, for example.

There are other problems, beyond the potential issue of Unlawful Command Influence, said Steve Vladeck, a professor of law at the Georgetown University Law Center and a CNN legal analyst.

“Prosecuting [Kelly] for saying something that is literally true is going to raise the mother of all First Amendment objections,” he said. Separately, Kelly enjoys additional protections on his speech as a member of the Senate under what’s known as the “speech and debate clause” of the Constitution. That defense is a bit less clear-cut, Vladeck noted — Kelly didn’t make his remarks on the Senate floor — and the lower courts have offered different interpretations of the limits of those protections.

“UCI is the cleanest shot here,” Vladeck said. “The First Amendment is the second cleanest. Speech and debate is the most obvious but the trickiest.”

For his part, Kelly has been defiant in response to Hegseth’s threats, posting that he will not be intimidated or “silenced by bullies who care more about their own power than protecting the Constitution.” (CNN)

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