The U.S. Navy has recommended possible penalties for Democratic Sen. Mark Kelly’s participation in a video reminding U.S. troops of their responsibility to refuse illegal orders, Pentagon officials told CNN on Thursday.
The recommendations have been submitted to the Pentagon’s Office of General Counsel “who are providing legal review and input,” the official said.
CNN has reached out to Kelly’s office for comment. It’s unclear what recommendations are included in the report.
Late last month, Defense Secretary Pete Hegseth sought advice from the Navy secretary, who oversees the military branch where Kelly served for more than two decades, about how to punish Kelly for his involvement in the video, which Hegseth claimed constituted a serious violation of the military’s code of justice.
“I submit this matter and any other matters of interest to you for your review, consideration and disposition,” Hegseth wrote in a Nov. 25 memo to the Secretary of the Navy.
In a video that prompted calls for consequences from the Trump administration, six Democratic lawmakers said the “threat to our Constitution” came from “domestic” and repeatedly urged the military and intelligence community to “reject unlawful orders.”
While the video did not mention what potentially illegal orders service members may have received, lawmakers from both parties have repeatedly raised concerns about the legality of U.S. military strikes against suspected drug-trafficking ships in the Caribbean and the legality of U.S. troop deployments to cities in response to protests by governors.
The Trump administration argued that Kelly and other Democratic lawmakers were inciting troops to disobey lawful orders by emphasizing their legal obligation to disobey unlawful orders. President Donald Trump called the video “incitement at the highest level.”
A source familiar with Hegseth’s thinking previously told CNN that Kelly’s involvement in the video was “under review” by the Pentagon rather than a formal investigation, meaning military police were not involved.
Behind closed doors, Hegseth has been considering ways to punish Kelly for his involvement in the video, including reducing the retired U.S. Navy captain’s rank and pension and prosecuting him under military law, CNN reported.
In his various public messages, Hegseth has suggested that Kelly’s comments violated several statutes of the Uniform Code of Military Justice, which sets out legal requirements for military personnel.
Sources familiar with Hegseth’s thinking say Hegseth sees Kelly as a critic worth emulating, and technically he could use the military justice system to do so. Legal experts told CNN that unlike the other five Democrats featured in the video, Kelly is a military retiree, meaning he served long enough to receive a pension and therefore remains subject to the UCMJ, including its restrictions on free speech.
Legal experts say Kelly could be recalled to active duty and face a court-martial because of that status, but doing so for his role in the video would be extraordinary. That’s because the UCMJ has been used primarily in recent years to prosecute former service members for crimes committed overseas outside U.S. civilian jurisdiction, and because Kelly is a U.S. senator.
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