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The Defense Department will attempt to downgrade Arizona Democratic Sen. Mark Kelly’s retirement rank and pay, seeking to punish him for making a video along with other Democrats in Congress, who told members of the military they didn’t need to follow illegal orders.
Defense Secretary Pete Hegseth originally threatened to recall Kelly from military retirement and court-martial him for his participation in the video, but announced Monday that the department would instead try to downgrade his rank of captain as well as his retirement pay.
“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”
Hegseth added that Kelly’s “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”
Kelly wrote in a social media post that he planned to challenge Hegseth’s attempt to alter his retirement rank and pay, arguing it’s an attempt to punish him for challenging the Trump administration.
“My rank and retirement are things that I earned through my service and sacrifice for this country. I got shot at. I missed holidays and birthdays. I commanded a space shuttle mission while my wife Gabby recovered from a gunshot wound to the head– all while proudly wearing the American flag on my shoulder,” Kelly wrote. “Generations of servicemembers have made these same patriotic sacrifices for this country, earning the respect, appreciation, and rank they deserve.”
Kelly added that Hegseth’s goal with the process is to “send the message to every single retired servicemember that if they say something he or Donald Trump doesn’t like, they will come after them the same way. It’s outrageous and it is wrong. There is nothing more un-American than that.”
Constitutional protection
Members of Congress are generally 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 Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer.
Hegseth wrote in that letter that if Kelly continues “to engage in conduct prejudicial to good order and discipline, you may subject yourself to criminal prosecution or further administrative action.”
Allegations of misconduct
The Department of Defense posted in late November that officials were looking into “serious allegations of misconduct” against Kelly for appearing in the video.
It didn’t detail how Kelly might 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.”
Hegseth referred the issue to Navy Secretary John Phelan for any “review, consideration, and disposition” he deemed appropriate. Hegseth then asked for a briefing on the outcome of the review “by no later than December 10.”
Kelly said during a press conference in early December the military’s investigation and a separate one by the FBI were designed to intimidate the six lawmakers in the video from speaking out against Trump.
The lawmakers in the video, who have backgrounds in the military or intelligence agencies, told members of those communities they “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.”
The other Democrats in the video — Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander — are not subject to the military justice system.
Trump railed against the video a couple of days after it posted, saying the statements represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”
This story was originally published by Stateline.
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18 Comments
The Defense Department’s allegations that Sen. Kelly’s participation in the video undermined the military chain of command and created confusion about duty are serious, but it’s not clear how they plan to prove this or what evidence they have to support these claims.
I think it’s unfair to suggest that Sen. Kelly’s actions were prejudicial to good order and discipline, given his long history of service and sacrifice for the country, and I hope that the Defense Department will take a more nuanced view of this situation.
As a veteran myself, I’m troubled by the idea that the Defense Department is trying to punish Sen. Kelly for speaking out, and I think this could have a chilling effect on other retired servicemembers who want to express their opinions or criticize the government.
Sen. Kelly’s argument that his rank and retirement are things he earned through his service and sacrifice for the country is compelling, and it’s hard to see how the Defense Department can justify taking those away from him.
I’m skeptical about the timing of this move, coming after Sen. Kelly’s participation in a video telling members of the military they don’t need to follow illegal orders, and wonder if this is an attempt to silence him and other Democrats who are speaking out against the administration.
The attempt to downgrade Sen. Mark Kelly’s retirement rank and pay is a clear example of political retaliation, as he has been a vocal critic of the Trump administration and has made sacrifices for his country, including being shot at and commanding a space shuttle mission.
This move by Defense Secretary Pete Hegseth could set a concerning precedent for retired servicemembers who speak out against the government.
The fact that Defense Secretary Pete Hegseth originally threatened to recall Sen. Kelly from military retirement and court-martial him, but then changed his approach to downgrading his rank and pay, suggests that there may be some uncertainty or disagreement within the Department about how to handle this situation.
The process of downgrading Sen. Kelly’s retirement rank and pay will be completed within 45 days, according to Defense Secretary Hegseth, but it’s unclear what the criteria are for making this determination or what Sen. Kelly’s options are for appealing the decision.
The fact that Sen. Kelly has 30 days to submit a response to the Defense Department’s notice suggests that there is still an opportunity for him to make his case and potentially avoid having his rank and pay downgraded.
It’s worth noting that the Constitution protects members of Congress from being questioned for their speeches and debates, unless they are involved in treason, felony, or breach of the peace, which doesn’t seem to be the case here.
I’m concerned about the implications of the speech and debate clause of the U.S. Constitution on this case, as it seems to suggest that lawmakers like Sen. Kelly are protected from questioning for their speeches and debates, but the Defense Department is still trying to hold him accountable.
I’m curious about what other Democrats who participated in the video are facing in terms of consequences, and whether they will also be subject to disciplinary action or attempts to downgrade their retirement benefits.
It’s possible that this case could end up in court, if Sen. Kelly decides to challenge the Defense Department’s decision to downgrade his rank and pay, which could have implications for the broader interpretation of the Constitution and the rights of members of Congress.
The Department of Defense’s letter of censure to Sen. Kelly alleged that his participation in the video undermines the military chain of command and brings discredit upon the Armed Forces, but it’s unclear how this will affect his current status as a senator.
It’s possible that this could lead to further action against Sen. Kelly, including criminal prosecution or administrative action, if he continues to engage in conduct deemed prejudicial to good order and discipline.
This situation highlights the complex and sometimes fraught relationship between the military and civilian leaders, and raises questions about the limits of free speech and the role of the military in enforcing discipline and order.
The potential consequences of this move for Sen. Kelly and other retired servicemembers are significant, and could include not just a loss of retirement benefits but also damage to their reputations and livelihoods.