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Trump’s case against Senator Mark Kelly faces steep hurdles under military law

Threats by the Trump administration to recall Senator Mark Kelly to active Navy duty, and to prosecute him under military law for urging troops to disobey illegal orders, would face steep hurdles in a system designed to give troops strong rights to due process, according to seven military law experts.
Kelly and five other Democratic lawmakers with military or intelligence backgrounds posted videos about disobeying illegal orders that Trump called “dangerous” and “seditious.” The FBI and the Department of Defense are investigating.

Democrats have criticized the president’s decisions to attack boats allegedly carrying drugs to the U.S. from Latin America and to deploy the National Guard to police American cities. Kelly told servicemembers in the video: “Our laws are clear: you can refuse illegal orders.”
Military cases usually involve clear violations because they first have to undergo multiple rounds of investigation and legal approval before reaching a judge, who can dismiss charges that don’t pass legal muster.
Kelly’s case is not clear-cut, and several legal experts told Reuters they did not think he broke the law.
Victor Hansen, a former military prosecutor and professor at New England Law Boston, said it was one thing for Defense Secretary Pete Hegseth to threaten a court-martial and another for it to take place.

“It would be a mistake to assume that Pete Hegseth can by fiat say, OK we’re going to court-martial. That’s not going to happen,” Hansen said in an interview.
Asked for comment, the White House said there had been no examples of unlawful orders given by Trump, and accused the Democrats of calling for the defiance of lawful orders, not just unlawful ones.
“It should deeply concern all Americans that elected Democrats are publicly urging the military to openly defy the chain-of-command and the Commander-In-Chief’s lawful orders to subvert the will of the American people,” White House spokesperson Abigail Jackson said.
The U.S. military’s criminal code has unique prohibitions against speaking contemptuously of the president and conduct unbecoming of an officer, but the experts told Reuters that Kelly merely reiterated the well-established legal principle that soldiers are permitted and in some cases required to refuse illegal orders.

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