By John Q. Hosedrinker 
The Pentagon’s investigation into Senator Mark Kelly, regarding a video advising troops to reject “illegal orders,” has sparked debate among legal experts. Some suggest the Pentagon is overstepping its authority by applying military law to a retired service member, while others question the jurisdiction given Kelly’s role as a senator. Critics argue that Kelly’s actions, which were made as a civilian, and his First Amendment rights should be protected, with some experts predicting the investigation will likely be dismissed. Furthermore, constitutional law experts suggest that the investigation may violate the separation of powers.
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Experts doubt the Pentagon can punish Kelly over the ‘illegal orders’ video because, quite frankly, it’s difficult to see how it could be done legally. The core of the matter seems to be Sen. Mark Kelly’s call for troops to adhere to the law, specifically the Uniform Code of Military Justice (UCMJ), and to refuse “illegal orders.” The overwhelming sentiment is that he did nothing wrong. Some even suggest that he was merely reiterating a fundamental principle of military service, a soldier’s duty.
The investigation, as many see it, is nothing more than political theater. The Pentagon’s actions appear to be an attempt to appease a segment of the public. The focus of the case is more about political strategy than legal substance. The legal experts question the Pentagon’s reading of military law, particularly given that Kelly is a retired military officer and a member of Congress. The administration is essentially trying to punish someone for stating a fact: soldiers are bound by law, and they don’t have to obey orders that are against the law.
The very premise of this inquiry seems to be based on a misunderstanding of the law itself. The UCMJ is explicit about “lawful orders,” implying that illegal ones shouldn’t be followed. The response has been a mix of amusement and frustration. There’s a clear feeling that the administration is operating outside of legal constraints.
The political context is important. This is seen by many as a diversionary tactic. The focus seems to be on distracting from this administration’s legal and social framework issues. The legal principle at play here is, quite frankly, “well, duh!” It’s hard to avoid the conclusion that the administration knows it can’t punish Kelly, it’s just endless culture war rage bait.
The administration’s actions also highlight the current state of legal norms. There is widespread belief that the Supreme Court justices are willing to go back on their word. This suggests that the administration may have a disregard for laws. A common sentiment is that the Pentagon can’t legitimately punish Kelly, because all he did was state existing policy. It’s perceived as an attempt to stoke outrage.
The consensus is that pursuing Kelly could backfire. He’d likely gain support, and the trial, if there is one, would be a sham. The focus on Kelly also reflects a broader concern about attempts to undermine the integrity of the military. It is seen as a way to create as much noise as possible in order to distract from actions this administration is undertaking.
The lack of action against Kelly also reflects the broader political landscape, where the public is often bombarded with “expert opinions”. However, a key aspect is the constitutional protection of a member of Congress’s speech. The founding fathers foresaw that the executive branch might try to pressure or intimidate members of the legislature. They wrote the Speech or Debate Clause to prevent that.