Inside the legal peril for Mark Kelly and fellow Democrats over the ‘illegal orders’ controversy

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Democrats tell military to ‘refuse illegal orders’ in viral video: 'Don't give up the ship'

Democrat veterans of the military and the intelligence community serving in Congress shared a video many are saying calls for treason on X Tuesday, titled "Don't Give Up the Ship." (Credit: @SenatorSlotkin via X)

The controversy surrounding a viral video of Democratic lawmakers urging U.S. service members to "refuse illegal orders" deepened this week as Sen. Mark Kelly, D-Ariz., came under Pentagon investigation and the FBI contacted the U.S. Capitol Police to begin scheduling interviews with the six members of Congress who appeared in the clip.

The outreach marks the first concrete step by federal authorities to determine whether the lawmakers — led by Sen. Elissa Slotkin, D-Mich., and joined by Kelly and several Democratic House veterans and intelligence officers — violated laws or regulations governing civilian oversight of the military.

President Donald Trump said the senators’ message should be "punishable by death," intensifying outrage across the political spectrum — and confusion about what that advice could actually mean under federal law.

According to a statement from the Department of War, officials have received "serious allegations of misconduct" against Capt. Mark Kelly, USN (Ret.), and have opened a review "to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures."

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Senator Mark Kelly, a former Navy captain, urged troops to refuse "illegal orders" in the viral video.  (Eric Lee/Bloomberg)

Under 10 U.S.C. § 688, retired officers can be recalled to active duty to face trial under the Uniform Code of Military Justice (UCMJ) for offenses committed while in uniform or, in some cases, for post-retirement conduct that undermines good order and discipline. The department emphasized that military retirees "remain subject to the UCMJ for applicable offenses," and that federal law — specifically 18 U.S.C. § 2387 — prohibits acts intended to interfere with the loyalty, morale, or discipline of the armed forces.

If recalled, Kelly, who spent 25 years in the Navy, could face charges ranging from administrative censure or loss of retired pay to court-martial and potential confinement, depending on the findings of the review. The department said the matter "will be handled in compliance with military law, ensuring due process and impartiality," and declined further comment to protect the integrity of the proceedings.

Four of the other members in the video did not retire but were discharged from service, meaning they are no longer subject to the Uniform Code of Military Justice. Their discharges cannot be retroactively changed to "dishonorable" based on actions that occurred after they left the military.

Another, Sen. Elissa Slotkin, D-Mich., is a former CIA officer.  The FBI and the Department of Justice have begun to probe all six members by reaching out to Capitol police to schedule interviews with them. 

A joint statement by Democratic Reps. Jason Crow, Colo., Maggie Goodlander, N.H., Chris Deluzio, Pa., and Chrissy Houlahan, Pa., accused President Donald Trump of "using the FBI as a tool to intimidate and harass members of Congress." 

"We will not be bullied," they said. 

Under 10 U.S.C. § 688, the Secretary of the Navy can recall a retiree to active duty if there is probable cause to believe they committed an offense subject to the UCMJ. 

The Pentagon statement specifically referenced 18 U.S.C. § 2387, a federal statute that criminalizes attempts to interfere with the loyalty, morale, or discipline of U.S. armed forces.

If prosecutors believe Kelly’s role in the video meets that threshold, he could face either civilian prosecution under that statute or military prosecution under parallel UCMJ articles — most likely Article 88 (contempt toward officials), Article 92 (failure to obey orders or regulations), or Article 134 (conduct prejudicial to good order and discipline).

Whether he is charged under military or civilian law depends on how the Justice Department and the Pentagon decide to handle jurisdiction. 

Recalls for potential court-martial are rare and generally reserved for serious misconduct — such as espionage, sexual assault, or fraud — committed after retirement.

A group of Democratic lawmakers with military and intelligence backgrounds, including Sen. Elissa Slotkin, D-Mich.; Sen. Mark Kelly, D-Ariz.; Rep. Chris Deluzio, D-Pa.; Rep. Maggie Goodlander, D-N.H.; Rep. Chrissy Houlahan, D-Pa.; and Rep. Jason Crow released a video directed at service members and intelligence officers stating: "Our laws are clear. You can refuse illegal orders." (Nicolas Economou/NurPhoto via Getty Images; Mark Kelly; Elissa Slotkin; Congress)

One of the last high-profile examples was Marine Gen. James Cartwright, who was investigated for classified leaks but ultimately prosecuted in civilian court instead of being recalled. The military typically uses this power sparingly to avoid the perception of politically motivated discipline.

If Kelly were recalled and subsequently convicted at court-martial of an offense serious enough to warrant dismissal, the Department of the Navy could change his retirement status from "retired with pay" to "dismissed" or "dishonorably discharged."

That would strip him of Tricare medical coverage, any retired pay or survivor benefits and eligibility for veterans' benefits through the Veterans' Administration. 

Even without a criminal conviction, administrative action could still hit his finances and healthcare indirectly. If the Department of War or Navy determines misconduct occurred but does not pursue a court-martial, they could still suspend or reduce retirement pay or restrict base access. 

The interviews with the FBI and DOJ, meanwhile, are almost certainly voluntary at first. The DOJ will then determine whether the video rose to the level of potential criminal interference with the armed forces (18 U.S.C. § 2387) or remains protected political speech. They could then be referred to congressional ethics committees or hit with subpoenas or criminal charges. 

While the lawmakers behind the video — led by Sen. Elissa Slotkin, D-Mich., and joined by Sens. Mark Kelly, D-Ariz., and several Democratic House veterans and intelligence officers — framed the appeal as a defense of the Constitution. Military legal codes make clear that refusing orders, even ones a service member personally believes are unlawful, can carry devastating penalties. 

"You can’t expect a sailor to overrule Washington lawyers," Rachel VanLandingham, a retired Air Force JAG and professor at Southwestern Law School, told Fox News Digital. "That’s why it’s unfair to put the burden on the military instead of on policymakers."

Under the Uniform Code of Military Justice (UCMJ), a set of laws that governs all members of the U.S. armed forces, obedience to orders is not optional — except in the narrowest of cases where the illegality is "manifest," or unmistakably obvious. In practice, that distinction means most troops risk punishment if they refuse a command before a court or superior authority has ruled it unlawful.

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The UCMJ’s Article 90 states that any service member who "willfully disobeys a lawful command" of a superior officer can face up to five years’ confinement, loss of all pay and allowances and dishonorable discharge. If the offense occurs in wartime, the punishment can be death or any lesser penalty a court-martial decides.

While the lawmakers behind the video  framed the appeal as a defense of the Constitution, military legal codes make clear that refusing orders can still carry devastating penalties.  (Reuters)

Article 92 — "Failure to obey order or regulation" — adds that disobeying any lawful order or regulation may also result in a court-martial, with punishments including forfeiture of pay, reduction in rank and up to two years’ confinement. Those provisions, military lawyers say, are the backbone of discipline and chain of command — the very system the senators’ video appears to challenge.

The law leaves little room for mere good intentions.

"There is no duty to obey an illegal order, but a subordinate who disobeys based on that belief takes immense risk of conviction by court-martial unless he or she can prove the order was truly illegal," said Texas Tech law professor Geoffrey Corn, director of the university’s Center for Military Law and Policy.

The opposite mistake can be just as destructive. Under Article 77, service members who carry out an illegal order can be punished as "principals," meaning they share the same criminal liability as the commander who gave the order. 

That principle — established after World War II — rejects the idea that "just following orders" is a defense.

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If an order violates the Constitution, the law of armed conflict or the rights of U.S. citizens, obedience offers no protection. A service member who follows such a directive could face prosecution for war crimes or dereliction of duty under Article 134, the UCMJ’s broad "general article" covering conduct that discredits the armed forces.

Military law sets an extremely narrow standard for refusing an order: it must be manifestly unlawful — so clearly illegal that "a person of ordinary sense and understanding" would recognize it as a crime on its face. Examples include commands to kill civilians, torture detainees or overthrow the government.

By contrast, orders to deploy troops, enforce federal authority, or carry out presidential directives are presumed lawful unless specifically prohibited by statute or court ruling.

"There’s a presumption that military orders are lawful," said Victor Hansen, a former Army judge advocate general (JAG) officer and professor at New England Law Boston. "A defense only exists if the order is manifestly unlawful — something clearly criminal, like an order to kill a prisoner of war. That’s where the duty to disobey applies."

Hansen said service members aren’t in a position to interpret the legality of a president’s decisions on deployments or strikes. "If a soldier came to me after seeing that video, I’d tell them: Do nothing different than you’re already doing," he said. "It’s not your job to second-guess the politics behind a decision to use force."

The one-minute "Don’t Give Up the Ship" video tells military and intelligence personnel, "You can refuse illegal orders. You must refuse illegal orders." It never defines which orders qualify — even as the same lawmakers push legislation limiting Trump’s ability to deploy National Guard units or conduct anti-narcoterrorism strikes abroad.

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Conservatives quickly accused the group of encouraging insubordination. 

Secretary of War Pete Hegseth responded on X: "Stage 4 TDS," referring to what supporters of the president call "Trump derangement syndrome." 

Inside the Pentagon, officials have long cautioned that calls for troops to interpret legality themselves can undermine civilian control of the military — a bedrock of American constitutional order. Current regulations instruct service members to seek immediate legal guidance through their chain of command or the Judge Advocate General’s office before refusing a directive, except in cases of clear criminality.

Retired Air Force Maj. Gen. Steven Lepper, a former deputy JAG, said the Democrats’ message "simply restates existing law" but risks confusion about where accountability truly lies.

"There’s a strong presumption that military orders are lawful," Lepper said. "That’s as it must be, because if the presumption ran the other way, our military would be hopelessly weakened."

In 1968, U.S. troops massacred hundreds of unarmed civilians in the Vietnamese village of My Lai, a crime their commanders initially tried to conceal. When the killings came to light, 1st Lt. William Calley was convicted of murder despite claiming he had been following orders — a case that taught generations of soldiers that some commands are so clearly criminal they must be refused.

Decades later, the Abu Ghraib prison abuse scandal in Iraq revealed another breakdown of command responsibility. Reservists at a U.S. detention facility humiliated and assaulted detainees under what they believed were authorized interrogation practices. 

Eleven soldiers were court-martialed, while senior officials escaped prosecution — a stark reminder, military lawyers say, of how ambiguous orders and weak oversight can still lead troops into criminal acts.

VanLandingham called the video "careless and dangerous," saying it misrepresents how limited the legal duty to refuse orders actually is.

"Service members are under no legal obligation to follow unlawful orders," she said. "But the universe of orders that are so manifestly or patently unlawful that a soldier of ordinary understanding would recognize them as such is very small — that’s by design. The military depends on obedience."

She said that principle, born out of the Nuremberg trials after the Holocaust, remains the foundation of modern military law — a reminder that obedience can never excuse crimes "so patently unlawful that any person of ordinary understanding would recognize them as such."

VanLandingham said the standard becomes even murkier in modern conflicts, citing U.S. strikes on suspected narcotrafficker boats in the Caribbean and off Venezuela. Those missions, she said, may be unlawful as a matter of international law but would not appear manifestly unlawful to troops ordered to carry them out." (Secretary of War via X)

VanLandingham said the standard becomes even murkier in modern conflicts, citing U.S. strikes on suspected narcotrafficker boats in the Caribbean and off Venezuela. Those missions, she said, may be unlawful as a matter of international law but would not appear manifestly unlawful to troops ordered to carry them out. "

"They disobey at their peril," VanLandingham added. "If they refuse an order believing it’s unlawful, they risk their career, their family’s income, even court-martial. But if they obey, they could later be accused of a crime. It’s a catch-22, and it’s unfair to expect individual service members to carry that burden."

"Don’t go after the troops," VanLandingham said. "Go after the policymakers who issue unlawful orders. Congress should be reining in the executive, not telling privates and lieutenants to decide what’s legal."

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For individual troops, the stakes are high. Refusing a lawful order — or obeying an unlawful one — can end a career, result in years of confinement and erase veterans’ benefits.

While the senators say they’re defending constitutional duty, the UCMJ leaves little room for personal interpretation — and no safe harbor for those who guess wrong.