How the Pentagon could investigate Sen. Mark Kelly over viral ‘orders' video

Here's a summary of the provided YouTube video transcript:

Key Concepts

Court-martial: A military trial to determine guilt or innocence of an accused service member.
Illegal Orders: Orders that are contrary to law or regulation.
UCMJ (Uniform Code of Military Justice): The body of federal law that governs the armed forces of the United States.
Article 134 of the UCMJ: A general article that covers disorders and neglects prejudicial to good order and discipline in the armed forces.
Incompatibility Act: Legislation that prohibits individuals from holding certain federal offices simultaneously.
Retired Reserve: A category of military personnel who have retired but can be recalled to active duty under certain circumstances.
Convening Authority: The military official empowered to order a court-martial and to approve or disapprove its findings and sentences.
NCIS (Naval Criminal Investigative Service): The primary law enforcement arm of the U.S. Navy and Marine Corps.
Staff Judge Advocate: A legal advisor to a commanding officer.
Grade Determination Board: A board that reviews a service member's rank and may recommend a reduction in grade.
Letter of Reprimand: A formal disciplinary action that becomes part of a service member's permanent record.
Sedition: Conduct or speech inciting people to rebel against the authority of a state or monarch.

Pentagon's Threat to Court-Martial Senator Mark Kelly

The Pentagon is reportedly threatening to court-martial Arizona Democratic Senator Mark Kelly for comments made in a video where he urged troops to refuse "illegal orders." Senator Kelly, a retired Navy commander, is the only one among six Democrats featured in the video who is subject to military law due to his retired status. President Trump has characterized the video as "seditious behavior."

Pentagon's Legal Basis for Investigation

The Pentagon's investigation is citing a code that prohibits actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces.

Senator Kelly's Response

Senator Kelly responded on social media, stating that the action "won't work" as an attempt to intimidate him or other members of Congress from holding the administration accountable. He asserted that he has "given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution."

Military Investigation Process

Greg Rinkey, a former attorney with the U.S. Army JAG Corps, explained the potential investigation process.

Recall to Active Duty: The first step would be to recall Senator Kelly to active duty.
Investigation: Once on active duty, an investigation would be conducted by NCIS or the office of the Staff Judge Advocate on the naval base.

Potential Disciplinary Actions

The military has a range of disciplinary actions it can pursue:

Court-martial recommendation: Leading to a trial.
Grade Determination Board: Potentially reducing Senator Kelly's rank (he retired as a naval captain).
Letter of Reprimand: A formal disciplinary note.

The decision on which route to take would ultimately rest with the convening authority on the naval base.

Challenges in Prosecuting the Case

Rinkey highlighted several challenges in prosecuting Senator Kelly:

Rarity of Recall: It is uncommon to recall individuals from the retired reserve back to active duty for such proceedings.
Sedition Charge Difficulty: Rinkey believes prosecuting for sedition might be difficult.
Stronger Case for Article 134: He suggests the government may have a stronger case under Article 134 of the UCMJ for "conduct that's prejudicial to good order and discipline."

Complication: Senator Kelly's Status as a Sitting Senator

A significant complicating factor is Senator Kelly's current position as a sitting U.S. Senator.

Incompatibility Act: This raises issues under the Incompatibility Act, which likely prohibits him from serving as an active-duty officer and a U.S. Senator simultaneously.
Vacated Seat: If recalled to active duty, there is expected to be a push in Congress to declare that he has vacated his Senate seat.
Potential Supreme Court Litigation: This situation could lead to litigation, potentially requiring a Supreme Court decision, as there has been limited judicial review on such cases. Rinkey referenced a case where a military reservist serving as a sitting judge was found unable to hold both offices.

Conclusion

The Pentagon's threat to court-martial Senator Mark Kelly presents a complex legal and political situation. The process would involve recalling him to active duty, followed by an investigation. While sedition charges may be difficult to prove, a charge under Article 134 of the UCMJ for conduct prejudicial to good order and discipline might be more viable. The most significant complication is Senator Kelly's concurrent role as a U.S. Senator, which could trigger legal challenges under the Incompatibility Act and potentially lead to Supreme Court involvement regarding his eligibility to hold both positions.