WASHINGTON — The Defense Department says it has upgraded its investigation into Arizona Democratic Sen. Mark Kelly over a video where he and other members of Congress told members of the military they didn’t need to follow illegal orders.
“The Office of the Secretary of War, in conjunction with the Department of War’s Office of the General Counsel, is escalating the preliminary review of Captain Mark Kelly, USN (Ret.), to an official Command Investigation,” a spokesperson for the department wrote in an email Monday night.
“Retired Captain Kelly is currently under investigation for serious allegations of misconduct,” the spokesperson continued. “Further official comments will be limited to preserve the integrity of the proceedings.”
Paul J. Fishman, an attorney at the Arnold & Porter law firm who is representing Kelly, wrote in a Monday letter to the secretary of the Navy that “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.”
“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,” Fishman wrote.
Defense Secretary Pete Hegseth had set Dec. 10 as the deadline for the secretary of the Navy to recommend what to do about Kelly’s appearance in the video, but that came and went without any public announcements.
Hegseth also remained silent on the matter after rebuking Kelly weeks ago for posting the video where he and five other Democrats warned against illegal orders.
Kelly said on Dec. 9, one day before the deadline, he hadn’t received any information from the Navy or other administration officials.
“Forget about an update. I haven’t heard anything from the guy,” Kelly told reporters. “That’s a good question for you guys to ask the Navy.”
The secretary of the Navy’s office did not respond to multiple requests for comment from States Newsroom.
The Department of Defense posted in late November that officials were looking into “serious allegations of misconduct” against Kelly for appearing in the video.
It didn’t detail how Kelly might have violated the Uniform Code of Military Justice but stated that “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.”
Hegseth referred the issue to Navy Secretary John Phelan for any “review, consideration, and disposition” he deemed appropriate. Hegseth then asked for a briefing on the outcome of the review “by no later than December 10.”
Kelly said during a press conference in early December the military’s investigation and a separate one by the FBI were designed to intimidate the six lawmakers in the video from speaking out against President Donald Trump.
The lawmakers in the video, who have backgrounds in the military or intelligence agencies, told members of those communities they “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.”
The other Democrats in the video — Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander — are not subject to the military justice system.
Trump railed against the video a couple days after it posted, saying the statements represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”
