US senator Mark Kelly said it was “non-controversial” for him and other Democrats to implore military personnel to disobey “illegal orders” from the Trump administration – hitting back at accusations of “serious allegations of misconduct” leveled against him by the Pentagon.
“I said something that was pretty simple and non-controversial – and that was that members of the military should follow the law,” the Arizona Democrat senator, a former US Navy officer and astronaut who flew on four separate space shuttle missions between 2001 and 2011, told MS Now on Monday night.
Kelly then alluded to how the president went on social media to say Kelly and the others had engaged in “seditious behavior, punishable by death” – while also republishing another user’s post containing the phrase “hang them”.
“And in response to that, Donald Trump said I should be executed, I should be hanged, I should be prosecuted,” Kelly said to political talkshow host Rachel Maddow.
He added: “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.”
Kelly’s remarks came after the Pentagon announced it was launching an investigation into the senator after Trump protested that Kelly and the other five Democratic lawmakers “should be in jail right now” for releasing a video advising service members that “threats to our constitution” are coming “from right here at home”. The video also said military members can “refuse illegal orders”.
On Tuesday, Fox News reported that the FBI had contacted US capitol police in Washington DC to schedule interviews with the six Democrats in question.
The Pentagon warned that it could recall Kelly to active duty to be court-martialed and cited a federal law that bans military retirees against interfering “with the loyalty, morale, or good order and discipline of the armed forces”.
In a statement of his own, the US defense secretary, Pete Hegseth, argued that the video at the center of the controversy was “despicable, reckless, and false”.
“Encouraging our warriors to ignore the orders of their commanders undermines every aspect of ‘good order and discipline,’” Hegseth said.
Trump weighed in with his own point of view, calling the senators’ statement “seditious behaviour at the highest level” and for an example to be set. “Their words cannot be allowed to stand – We won’t have a Country anymore!!! punishable by DEATH!”
Active military members in the US – whose oath is to the constitution rather than the president – can face execution for the crime of sedition. Civilians, meanwhile, can be fined and imprisoned for up to 20 years if found to have engaged in seditious conspiracy.
Meanwhile, the US Manual for Courts-Martial states that military requirements to obey orders do not apply “to a patently illegal order, such as one that directs the commission of a crime” – while also prohibiting “contemptuous speech”.
The dispute between the Trump administration and Kelly – whose wife, Gabrielle Giffords, narrowly survived an attempted assassination in 2011 while she was in Congress meeting constituents – comes amid claims from Democrats that the Pentagon has issued illegal orders. Democrats allege that the purported illegal orders include sending military personnel to the seal the US-Mexico border and in carrying out deadly strikes on so-called fast boats in the Pacific and the Caribbean that the administration claims were carrying illegal narcotics.
Elizabeth Beaumont of Middle Tennessee State University’s Free Speech Center told the Associated Press that US military regulations “have been used to restrict political expression as well as other activities”.
The dispute also hits a shallow nerve on the use of “sedition” after Trump supporters were accused of precisely that by carrying out a deadly attack on the US Capitol on 6 January 2021 – when the first of his two non-consecutive presidential terms in ended in defeat to Joe Biden.
Some of the mob members even called for the hanging of Mike Pence, Trump’s vice-president at the time, who oversaw a congressional session certifiying Biden’s victory in the 2020 election.
Trump then granted presidential clemency to more than 1,500 Capitol attackers shortly after his second term began in January.
In his remarks on Monday to MS Now about Trump and the video, Kelly said “sending a mob to round me and the other folks up … says a lot more about him than it says about me. He doesn’t want accountability.”
Retired air force officer and Nebraska Republican congressman Don Bacon offered some measure of calm to the political mud-slinging, calling the Democrats’ video “unnecessary and foolish” but also drawing attention to the Pentagon’s response with an insult over its formal department of defense name.
“Amateur hour once again at the Department of Dense,” Bacon wrote on X.
Bacon added that Kelly and his fellow Democrats in the video “said don’t follow illegal orders – that is the law by the way”.
“Good luck prosecuting someone who is quoting the law,” Bacon continued. “The administration should have just pointed out how dumb it was. The threats looked dumber.”
