Pentagon investigates Arizona Sen. Mark Kelly after he appears in video blasted by Trump

The Department of Defense announced on social media Monday
it’s looking into “serious allegations of misconduct” against Arizona
Democratic Sen. Mark Kelly, one of several lawmakers who posted a video
last week telling military members they are not required to follow
orders that violate the law. 

The video spurred anger from President Donald Trump, who posted, also on social media, that he believed the statement from six Democratic lawmakers represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The
claim led to safety concerns on Capitol Hill, especially after a year
that included numerous acts of violence against lawmakers and key
political figures. 

The Defense Department announcement
didn’t detail exactly how Kelly may 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.” 

It was unclear how the military review and
threat of court-martial proceedings would fit with the constitutional
protections held by members of Congress for speech and debate.

Kelly wrote in a statement the Defense Department’s post was the first time he’d heard about the inquiry. 

“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,”
Kelly wrote. “I’ve given too much to this country to be silenced by
bullies who care more about their own power than protecting the
Constitution.”

White House press secretary Karoline
Leavitt said Kelly and the other senators in the video were encouraging
“disorder and chaos within the ranks.”

“Not a single one
of them … can point to a single illegal order that this administration
has given down because it does not exist,” Leavitt said. “They knew what
they were doing in this video and Sen. Mark Kelly and all of them
should be held accountable for that.”

Kelly military background

Kelly
served as an aviator in the United States Navy from 1987 until 2012. He
was deployed as part of Operation Desert Storm during the first Gulf
War. He received several awards throughout his military career,
including the Legion of Merit and the Distinguished Flying Cross. 

Kelly reached the rank of captain before his retirement from military service. 

Kelly, who was also a NASA astronaut, was first elected to the U.S. Senate in November 2020. 

The
Defense Department’s post announcing an investigation into Kelly said
military officials wanted to remind people that “military retirees
remain subject to the UCMJ for applicable offenses, and federal laws
such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the
loyalty, morale, or good order and discipline of the armed forces.”

The
statement added that all service members “have a legal obligation under
the UCMJ to obey lawful orders and that orders are presumed to be
lawful.  A servicemember’s personal philosophy does not justify or
excuse the disobedience of an otherwise lawful order.”

The
statement appeared somewhat similar to the one Kelly, Michigan Sen.
Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris
Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander
gave in the video they published Nov 18. 

The
Democrats, all of whom served in the military or worked in intelligence
agencies, said they wanted “to speak directly to members of the
military and the intelligence community who take risks each day to keep
Americans safe.”

They said that Americans in those institutions “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.”

Broad constitutional protections for Congress

Members of Congress are broadly protected under the speech and debate clause of the U.S. Constitution,
which states that unless a lawmaker is involved in treason, felony and
breach of the peace, they are “privileged from Arrest during their
Attendance at the Session of their respective Houses, and in going to
and returning from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.”

The
annotated explanation of the clause on Congress’ official website says
the Supreme Court has “broadly” interpreted its applications over the
years to ensure an independent legislative branch. 

“Despite
uncertainty at the margins, it is well established that the Clause
serves to secure the independence of the federal legislature by
providing Members of Congress and their aides with immunity from
criminal prosecutions or civil suits that stem from acts taken within
the legislative sphere,” it states. “As succinctly described by the
Court, the Clause’s immunity from liability applies ‘even though their
conduct, if performed in other than legislative contexts, would in
itself be unconstitutional or otherwise contrary to criminal or civil
statutes.’ This general immunity principle forms the core of the
protections afforded by the Clause.”

A report
from the nonpartisan Congressional Research Service states the
judiciary’s “immunity principle protects Members from ‘intimidation by
the executive’ or a ‘hostile judiciary’ by prohibiting both the
executive and judicial powers from being used to improperly influence or
harass legislators.”