Navy delivers report to Hegseth on potential of punishment for Sen. Mark Kelly over ‘illegal orders’ video

(CNN) — The US Navy has submitted its recommendations on potential punishments, if any, for Democratic Sen. Mark Kelly over his participation in a video that reminded US troops they have a duty to refuse illegal orders, a Pentagon official told CNN on Thursday.

Those recommendations have been submitted to the Pentagon’s Office of General Counsel “where they are providing a legal review and input,” the official said.

It was not immediately clear what recommendations were included in the report.

A spokesperson for Kelly told CNN in a statement that the senator was “never notified or contacted” about the Navy secretary delivering a report at Hegseth’s request and reiterated he will not be intimidated by the Defense Secretary [Pete Hegseth] or President Donald Trump.

“It defies belief that with all of the threats facing our country, Pete Hegseth initiated this ridiculous process to try to intimidate Senator Kelly for saying something Pete Hegseth himself has said repeatedly. Senator Kelly was never notified or contacted about this, and it sure as hell won’t stop him from doing his job representing Arizona,” Kelly’s spokesperson said when asked about the Navy submitting its recommendations to the Pentagon’s Office of General Counsel.

“Pete Hegseth and Donald Trump could do themselves a big favor and learn about our country’s history, the Constitution and the rule of law. He will not be intimidated by them or anyone else,” the spokesperson added.

Late last month, Hegseth requested advice from the Navy Secretary, who oversees the military branch Kelly served in for more than two decades, on how to proceed to potentially punish Kelly for participating in the video, which Hegseth has claimed amounted to serious violations of the military’s code of justice.

“I am referring this, and any other related matters, for your review, consideration and disposition as you see fit,” Hegseth wrote in a memo to the Navy secretary, dated November 25.

In the video that triggered the Trump administration’s calls for consequences, six Democratic lawmakers said that “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”

Although the video didn’t reference what orders service members might be receiving that would potentially be illegal, lawmakers on both sides of the aisle have raised concerns repeatedly about the legality of US military strikes against suspected drug boats in the Caribbean and the US military’s deployment to cities over the protest of governors.

Sen. Roger Wicker, a Republican who chairs the Senate Armed Services Committee, said Thursday it’s not appropriate for the military to try to punish Kelly.

Asked by CNN if it’s appropriate to do so, Wicker shook his head. And after a follow up question, he replied, “You asked me that question, and my answer is no.”

He would not elaborate nor say if he would call on Hegseth to end the effort against Kelly.

The Trump administration has argued that by emphasizing service members’ legal duty to disobey unlawful orders, Kelly and the other Democratic lawmakers were inciting troops to disobey lawful orders. Trump has called the video “seditious behavior at the highest level.”

Kelly’s involvement in the video is under “review” by the Pentagon, rather than subject to a formal investigation, meaning military police are not involved, a source familiar with Hegseth’s thinking previously told CNN.

Behind closed doors, Hegseth has been weighing his options to punish Kelly for participating in the video, ones that range from reducing the retired US Navy captain’s rank and pension to prosecuting him under military law, CNN has reported.

In his various public messages, Hegseth has suggested Kelly’s comments violated several statutes of the Uniform Code of Military Justice, which lays out legal requirements for those in the military.

In Kelly, Hegseth sees a critic worth making an example of, and he could technically use the military justice system to do so, the source familiar with Hegseth’s thinking said. Unlike the other five Democrats who appeared in the video, Kelly is a military retiree — meaning he served long enough to receive a pension, and thus, is still beholden to the UCMJ, including its restrictions on free speech, legal experts told CNN.

Kelly could be recalled to active service and court-martialed because of that status, but doing so over his role in the video would be extraordinary, legal experts said. That’s because not only has the UCMJ mainly been used in recent years to prosecute former service members who commit crimes overseas outside of US civil jurisdiction, but also because Kelly is a US senator.

This story has been updated with additional information.

CNN’s Ted Barrett contributed reporting.

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