I am not now, nor ever likely to be, a fan of Sen. Mark Kelly. Sure, he was an astronaut and a Navy captain, which sounds pretty cool on a resume for a senator. The truth is that his anti-gun agenda is never going to sit well with me, and he's one lawmaker I don't see coming around on Second Amendment issues.
But I can accept there are some differences of opinion between the senator and me.
Last week, though, he and some of his compatriots released a now-notorious video calling on American servicemembers to "refuse illegal orders."
Now, let's understand that we were taught in boot camp that we were to disobey illegal orders, but we were also warned that if we were wrong, it was our posteriors. The idea of disobeying illegal orders, though, was clear, and there are some things that are obvious. We couldn't mow down an entire village because some jackass inside was rude to us, for example. (Not that I was ever in such a position, anyway. I was never in combat.)
The video in question never gave any examples. It just introduced some vague idea that there were orders the troops might need to disobey.
Now, though, Kelly is the subject of a misconduct investigation by the Department of War.
The Pentagon confirmed it is investigating Anti-Gun Democratic Sen. Mark Kelly of Arizona — a former Navy captain and astronaut — after he appeared in a political video urging U.S. service members to “refuse illegal orders.” Because Kelly is a retired officer, he is still subject to the Uniform Code of Military Justice (UCMJ), and defense officials say his actions may have crossed a legal line.
In a public statement, the Pentagon said it had received “serious allegations of misconduct” and has launched “a thorough review of these allegations… which may include recall to active duty for court-martial proceedings or administrative measures.”
The investigation involves federal law 18 U.S.C. § 2387 — a statute that makes it a crime, punishable by up to ten years in prison, to “advise, counsel, urge, or in any manner cause… insubordination, disloyalty, mutiny, or refusal of duty” among U.S. military forces.
Kelly and five other Democratic lawmakers released the video last week, telling troops, “Our laws are clear. You can refuse illegal orders.” The message did not clarify which “illegal orders” they believed were being issued, or by whom — something even CNN noted the group did not specify.
While all six lawmakers in the video are Democrats with national-security backgrounds, Kelly is the only one who can be recalled to active duty and court-martialed, because he is the only retired military officer in the group.
President Trump described the video as "seditious" and noted that the potential punishment for sedition was death.
Yeah, that escalated quickly.
Of course, the president never expressly said that anyone was getting the death penalty, just as no one in the video outlined any order they felt was illegal. However, as I argued elsewhere last week, just floating the idea that there are orders that are illegal or immoral going around could introduce some indecision into the military structure, which is less than grand. People could be killed because someone else thinks the order to act is illegal.
And Kelly is knee-deep in that and can be recalled.
Whoops.
The only reason I'm talking about it here is because of Kelly's history of anti-gun activism, which I'd argue is a betrayal of his oath to "support and defend the Constitution against all enemies, foreign and domestic," that he took not just when he took office, but when he entered the Armed Forces. We all took it, and that doesn't include cherry-picking the parts of the Constitution you personally approve of.
Personally, I think that's misconduct, but I also get that not everyone is comfortable framing it that way.
So, what will happen?
Probably nothing. This is probably more of a scare tactic than anything, a way for the Trump administration to make it clear they're not going to just shrug off stuff from these lawmakers. The video itself doesn't expressly tell anyone to do anything in particular, which gives them enough legal wiggle-room to avoid any charges, and I suspect the DOW will ultimately agree.
Still, if Kelly keeps his head down for a little while just to be safe, so much the better.
