{"id":314536,"date":"2025-11-26T09:47:09","date_gmt":"2025-11-26T09:47:09","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/314536\/"},"modified":"2025-11-26T09:47:09","modified_gmt":"2025-11-26T09:47:09","slug":"hegseth-focuses-on-potential-punishments-for-sen-kelly-in-confrontation-over-illegal-orders-video","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/314536\/","title":{"rendered":"Hegseth focuses on potential punishments for Sen. Kelly in confrontation over \u2018illegal orders\u2019 video"},"content":{"rendered":"

\n Publicly, Secretary of Defense Pete Hegseth has been highly critical of the six Democratic lawmakers who released a video last week<\/a> urging military service members to disobey illegal orders, calling the lawmakers the \u201cSeditious Six\u201d and categorizing their message as \u201cdespicable, reckless, and false.\u201d\n <\/p>\n

\n 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.\n <\/p>\n

\n Hegseth has attacked Kelly by name, unlike the other lawmakers. He mocked Kelly<\/a> for a picture of him in uniform \u2014 \u201cyou can\u2019t even display your uniform correctly\u201d \u2014 and wrote<\/a> that Kelly\u2019s \u201cconduct brings discredit upon the armed forces and will be addressed appropriately.\u201d\n <\/p>\n

\n 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\u2019s rank and pension to prosecuting him under military law, according to a source familiar with the matter.\n <\/p>\n

\n 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 \u2014 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.\n <\/p>\n

\n 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\u2019s 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.\n <\/p>\n

\n 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.\n <\/p>\n

\n It would also be an uphill battle for the administration, VanLandingham and other legal experts said, in large part because Hegseth\u2019s public statements deriding Kelly\u2019s video appear to be a clear-cut case of \u201cunlawful command influence,\u201d in which a superior commander implies or dictates a predetermined outcome for a military trial and thus makes a fair hearing impossible.\n <\/p>\n

\n Because everyone at the Defense Department works for Hegseth, VanLandingham noted, it\u2019s hard to see who could fairly convene a court to hear his case.\n <\/p>\n

\n \u201cHegseth has completely tainted this process,\u201d she said.\n <\/p>\n

\n A coalition of former and retired military judge advocates has also issued a rare joint statement warning that the Pentagon\u2019s effort to recall Kelly for UCMJ prosecution is partisan in nature, legally baseless and compromised by unlawful command influence.\n <\/p>\n

\n \u201cWe 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,\u201d the statement said.\n <\/p>\n

\n In his various public messages, Hegseth has suggested Kelly\u2019s comments violated several statutes of the UCMJ, which lays out legal requirements for those in the military, but they don\u2019t seem to cohere to a single theory of the case, legal experts said.\n <\/p>\n

\n In the video that triggered the Trump administration\u2019s calls for consequences, lawmakers said that \u201cthreats to our Constitution\u201d are coming \u201cfrom right here at home,\u201d and repeatedly urged the military and intelligence community to \u201crefuse illegal orders.\u201d\n <\/p>\n

\n Although the video didn\u2019t 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\u2019s deployment to cities over the protest of governors.\n <\/p>\n

\n The administration has argued that by emphasizing service members\u2019 duty to disobey unlawful orders, Kelly and the other lawmakers were inciting troops to disobey lawful orders. President Donald Trump has called the video \u201cseditious behavior at the highest level.\u201d\n <\/p>\n

\n Kelly\u2019s involvement in the video is under \u201creview\u201d by the Pentagon, rather than subject to a formal investigation, meaning military police are not involved, the source familiar with Hegseth\u2019s thinking said.\n <\/p>\n

\n At this stage, it remains unclear whether Kelly will ultimately face a recall and court-martial or a lesser administrative penalty. It\u2019s also not clear what, exactly, Kelly might be charged with if he were to be charged.\n <\/p>\n

\n \u201cThere are many options,\u201d the source told CNN.\n <\/p>\n

\n In the short term, Hegseth is deferring to his Navy secretary, who oversees the military branch Kelly served in, for advice \u2014 giving him a deadline of December 10 to provide his recommendations.\n <\/p>\n

\n \u201cI am referring this, and any other related matters, for your review, consideration and disposition as you see fit,\u201d Hegseth wrote in a memo to the Navy secretary, dated November 25.\n <\/p>\n

\n Hegseth has hinted at one option he is considering in response \u2014 to administratively reduce Kelly\u2019s rank \u2014 referring to him in a social media post as a \u201cretired Navy Commander,\u201d which is below the senator\u2019s rank of captain.\n <\/p>\n

\n 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.\n <\/p>\n

\n That gives Hegseth options for action against Kelly that he doesn\u2019t have for the others, though the FBI is also seeking interviews with the lawmakers<\/a>.\n <\/p>\n

\n While retired service members have been called back to face military law before, it has generally been for violent crimes. It\u2019s unclear what crime Kelly could be charged with.\n <\/p>\n

\n 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.\n <\/p>\n

\n 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.\n <\/p>\n

\n 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 \u201cdiscredit\u201d upon the armed services.\n <\/p>\n

\n If Kelly is recalled for prosecution under the UCMJ, his case will be handled by officers in the Judge Advocate General corps.\n <\/p>\n

\n Hegseth has significantly changed<\/a> 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.\n <\/p>\n

\n 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.\n <\/p>\n

The UCMJ and its limits<\/p>\n

\n Court-martialing Kelly is technically a viable option for Hegseth because three appellate courts have upheld that it\u2019s 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.\n <\/p>\n

\n 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.\n <\/p>\n

\n 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.\n <\/p>\n

\n \u201cProsecuting [Kelly] for saying something that is literally true is going to raise the mother of all First Amendment objections,\u201d he said. Separately, Kelly enjoys additional protections on his speech as a member of the Senate under what\u2019s known as the \u201cspeech and debate clause\u201d of the Constitution. That defense is a bit less clear-cut, Vladeck noted \u2014 Kelly didn\u2019t make his remarks on the Senate floor \u2014 and the lower courts have offered different interpretations of the limits of those protections.\n <\/p>\n

\n \u201cUCI is the cleanest shot here,\u201d Vladeck said. \u201cThe First Amendment is the second cleanest. Speech and debate is the most obvious but the trickiest.\u201d\n <\/p>\n

\n For his part, Kelly has been defiant in response to Hegseth\u2019s threats, posting that he will not be intimidated or \u201csilenced by bullies who care more about their own power than protecting the Constitution.\u201d\n <\/p>\n

\n CNN\u2019s Katie Bo Lillis and Pamela Brown contributed to this report.\n <\/p>\n","protected":false},"excerpt":{"rendered":"Publicly, Secretary of Defense Pete Hegseth has been highly critical of the six Democratic lawmakers who released a…\n","protected":false},"author":2,"featured_media":314537,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[54],"tags":[88,92],"class_list":{"0":"post-314536","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-tv","8":"tag-entertainment","9":"tag-tv"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/314536","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=314536"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/314536\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/314537"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=314536"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=314536"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=314536"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}