Experts: Kelly case unlikely to see trial
Trump, Hegseth remarks may be undue influence
By: Rebecca Morin
USA Today
WASHINGTON - the Pentagon's investigation into alleged misconduct by Senate Mark Kelly faces significant legal challenges over what laws the Arizona Democrat may have violated, as well as President Donald Trump and Secretary of War Pete Hegseth's influence over the probe, legal experts said.
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Trump's War Department, formerly the Defense Department is investigation Kelly "serious allegations of misconduct" after he was among a group of six Democratic lawmakers who put out a video directed at service members telling them they have the right not to obey orders they believe to be illegal, the agency said November 24. [2025]
..... The Pentagon cited the Uniform Code of Military Justice, the body of federal law that governs the U.S. military's criminal code and justice system, to begin an investigation into Kelly that could "include recall to active duty for court martial proceedings or administrative measures." Kelly retired from both the U.S. Navy and NASA, where he was an astronaut in 2011.
..... Military retirees remain subject to laws that prohibit actions "intended to interfere with the loyalty, morale, or good order and discipling of the armed forces," according to the War Department.
..... But legal and military experts say that Kelly committed "no crime" in the video hat would violate articles under the UCMJ, including the articles related to sedition.
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"My prediction is it will never make it into a court room and it will be dead on arrival," said Eugene R. Fidell, who teaches military justice at Yale Law School. "Nothing that Senator Kelly or the others said or did violates any provision of the Uniform Code of Military Justice,: Fidell added.
..... In a video posted to social media recently, Kelly and five other democrats said service members and the intelligence community have the right, and even the obligation, to refuse to carry out orders they believe are unlawful. The lawmakers did not specify which orders could be illegal.
..... The other Democratic politicians who spoke in the video were Sean tor Elssa Slotkin, a former CIA officer; Representative Chris Deluzio, a Navy veteran; Representative Maggie Goodlander, a former Navy Reserve intelligence officer; Representative Chrissy Houlahan, an Air Force veteran; and Representative Jason Crowm an Army veteran.
..... There are many hoops that a military case goes through and that it could "die in a variety of ways" before making it to the courts, Fidell said.
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First, any offense the retired Navy captain allegedly commuted would need to be turned into a report submitted to a commanding officer or military authority for a preliminary inquiry. then a commander would decide whether Kelly should be arrested and put into pretrial confinement. Next would come the trial on the alleged offenses.
..... But one thing a commander could do, Fidell said, is to simply not take any action. "there;s a variety of hurdles that would have to be overcome before this thing got anywhere near a court martial," he said.
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Another route that Hegseth or even Trump can take is convening an Article 15 proceeding, which is like a grand jury in the military,s aid David Schwendiman, a former senior Justice Department lawyer.
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This is an "involved" process, which he added offers " a lot of protections for anybody who's referred." It would determine whether there was probable cause to believe a crime had been committed, and then refer it on for general or special court martial.
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Kelly, during a November 24 [2025] appearance on "The Rachel Maddow Show" on MS NOW, said the investigation against him is "about intimidation."
..... "The whole thing's almost comical. ... We;re basically repeating the Uniform code of Justice (in the video) and they've saying that's in violation of the Uniform code of Military Justice," Kelly said. "It absurd."
..... But several experts said that a case against Kelly would likely not be pursued because of Trump and Hegseth's influence in the investigation.
..... Shortly after the video of Kelly and the other Democrats was posted, Trump in a flurry of social media posts, accused the Democratic lawmakers of "SEDITIOUS BEHAVOR, punishable by DEATH!" He later said on Fox News that he does not believe the lawmakers should be executed but believes they're in serious trouble."
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Hegseth in a post on X called the video "despicable, reckless, and false."
..... Both comments from the president and Hegseth fall directly in the category of undue command influence. Schwendiman said, which make it difficult for the case to make it to court or would add to the challenges if it did.
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"I don't think you could hold a proceeding that would have any reasonable trapping of fairness or due process if you've got the convening authorities telling the people below how this is supposed turn out," Schweniman said.
..... Colonial Morris Davis, a former chief military commission prosecutor at Guantanamo, said that both Trump and Hegseth have expressed their views on the outcome which would make it difficult for a jury to be impartial.
..... "(Trump) and Hegseth have both been very clear that they have predetermined guilt and punishment," he said. "So I think it would make it really difficult to be impartial on a jury."
..... Kelly also has the standing to go to federal court if he is recalled to active duty then be court-martial, said Rachel VanLandinham, a professor at Southwestern Law School and former Air Force lawyer.
..... "I have a hard time seeing that he's court-martial because I think if they tried to recall him to active duty, he should go to federal court and get an injunction," she said.
..... While there's a federal court doctrine that instructs federal courts to refrain from intervening in ongoing military court-martials, VanLandingham said there are two exceptions: an immediate threat of irreparable harm and when there is no impartial tribunal in the military to hear the case.
..... Kelly would have a strong case in federal court because everyone in the military works for Hegseth and technically Trump, as he is commander in chief, VanLandingham said.
..... "How could you get a fair and impartial trial in the military court where the chain of command runs up through both of these folks," she said.