Hegseth censures Sen. Kelly after Democrats' video urging troops to resist unlawful orders

Investigating and now punishing a sitting U.S. senator is an extraordinary move for the Pentagon, which until President Donald Trump’s second term had usually gone out of its way to act and appear apolitical. A legal expert says the choice to go after a lawmaker will complicate an already unique case.

In a lengthy post on social media, Kelly said he “never expected” what he called an “attack” from Trump and Hegseth, recounting his 25 years of Navy service as well as combat and space missions.

Calling Hegseth's move “outrageous” and “un-American,” Kelly said he would fight the censure “with everything I’ve got — not for myself, but to send a message back that Pete Hegseth and Donald Trump don’t get to decide what Americans in this country get to say about their government.”

Hegseth's action follows video about illegal orders

The censure comes after Kelly participated in a video in November with five other Democratic lawmakers — all veterans of the armed services and intelligence community — in which they called on troops to uphold the Constitution and defy “illegal orders.”

Trump, a Republican, accused the lawmakers of sedition “punishable by DEATH” in a social media post days later.

The 90-second video was first posted from Sen. Elissa Slotkin’s X account. In it, the six lawmakers — Slotkin, Kelly and Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan — speak directly to U.S. service members, whom Slotkin acknowledges are “under enormous stress and pressure right now.”

The lawmakers didn’t mention specific circumstances. But their message was released amid a series of military attacks on boats accused of smuggling drugs in the Caribbean Sea and the eastern Pacific Ocean and Trump’s attempts to deploy National Guard troops to American cities.

The Pentagon announced that it began an investigation of Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other measures.

While all six lawmakers served in the military or the intelligence community, Hegseth previously said Kelly was the only one facing investigation because he is the only one of the lawmakers who formally retired from the military and is still under the Pentagon’s jurisdiction.

Kelly said last month that the investigation was part of an effort to silence dissent: “This is just about sending a message to retired service members, active duty service members, government employees — do not speak out against this president or there will be consequences.”

Kelly, along with some of the other Democrats in the initial video, have sent out fundraising messages based off Trump’s reaction to their comments, efforts that have gone toward filling their own campaign coffers and further elevating their national-level profiles.

What accusations Hegseth is leveling against Kelly

In his post Monday, Hegseth charged that Kelly's remarks in the video and afterward violated Uniform Code of Military Justice provisions against conduct unbecoming an officer and violating good order and discipline.

“Captain Kelly’s status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action," Hegseth said.

Todd Huntley, a retired Navy captain and judge advocate general, called this is a “novel” situation that raises legal questions.

One issue, Huntley said, is whether Kelly’s comments fall under the constitutional protections of the speech or debate clause, which is intended to protect members of Congress from questioning about official legislative acts.

A 1968 Supreme Court decision said the provision’s intent was “to prevent legislative intimidation by and accountability to the other branches of government.”

“You can’t punish him for making statements that are consistent with the office he is holding,” said Colby Vokey, a prominent civilian military lawyer and former military prosecutor, citing the Constitution’s speech and debate clause.

Huntley said that while the type of process Hegseth is using — known as a retirement grade determination — is fairly routine, “as far as I know, they’ve always been based on conduct during the individual’s active duty service, even if it only came to light after retirement.”

“So, I don’t know if conduct totally after retirement would fit the requirement for such a determination,” he added.

Vokey also expressed skepticism, saying that while the Navy secretary can reduce a retired officer’s rank and pay grade if it's determined that good cause exists, "I have no idea what the good cause would be. I think that’s pretty questionable.”

According to Hegseth, Kelly now has 30 days to submit a response to the proceedings that will decide if he is demoted. The decision will be made within 45 days, Hegseth’s post added.

Huntley noted that Kelly also will have options to appeal the finding both within the military and in federal court. Vokey said a lawsuit in federal court would likely be the more effective course of action for Kelly.

Kinnard reported from Columbia, S.C. Associated Press writers Ben Finley and Stephen Groves contributed to this report.