Pete Hegseth has been looking to punish Sen. Mark Kelly, and now it looks like he may have blown up his own case before it even starts.
The defense secretary, who now styles himself as the secretary of war, has threatened to haul Kelly back onto active duty so the retired Navy captain and Arizona Democrat can be court-martialed for appearing in a video urging troops to refuse illegal orders. The clip, released in November, featured Kelly and five other Democratic members of Congress with military or intelligence backgrounds, all telling service members that they have a constitutional duty not to carry out unlawful commands.
Of the six, Kelly is the only one who actually retired from the armed forces with a pension, which means he is still subject to the Uniform Code of Military Justice. Hegseth, a former Fox News host and Army National Guard officer, has zeroed in on that fact. Kelly spent 25 years in the Navy, flew combat missions over Iraq, and later became a NASA space shuttle pilot before retiring as a captain in 2011. The Department of War, sources told CNN, wants to “make an example” of him.
But in trying to turn Kelly into a cautionary tale, Hegseth may have handed the senator a powerful legal shield.
By repeatedly accusing Kelly in public of violating the UCMJ, legal experts say, Hegseth has almost certainly tainted any future military case with what is known as unlawful command influence. In military justice circles, unlawful command influence is sometimes called the “mortal enemy” of a fair court-martial, the idea that a senior leader has improperly shaped or appeared to shape the outcome of a trial.
Everyone in the Defense Department ultimately works for Hegseth. When the secretary of war announces on social media that a specific retired officer’s conduct “brings discredit upon the armed forces and will be addressed appropriately,” and labels him part of the “Seditious Six,” it sends a clear message about what result he expects. A superior commander making comments that lean on subordinates to reach a certain outcome is a textbook example of unlawful command influence under the military’s own training materials.
If Kelly were ever recalled and charged, his lawyers would almost certainly argue that Hegseth’s statements poisoned the pool of potential convening authorities and panel members. Any officer asked to assemble or sit on a court-martial would know the boss has already publicly pronounced the underlying conduct disgraceful and hinted that punishment is coming. That is exactly the kind of scenario military judges have thrown out in past cases.
A coalition of former and retired military judge advocates has already gone on record warning that recalling Kelly for a court-martial would be partisan, legally baseless, and compromised from the start by unlawful command influence, per CNN. They have pointed out that Kelly and the other lawmakers were actually citing the UCMJ in their video, not encouraging troops to ignore legal commands.
The Defense Department has declined to comment on the CNN report or on Kelly’s case in general. Inside the building, Hegseth has reportedly been looking at other ways to punish the senator, including trying to administratively reduce his retired rank from captain to commander, a move that would hit both Kelly’s record and his pension.
For now, the secretary of war is still talking tough in public and portraying Kelly as a cautionary tale. But the more Hegseth insists that the senator is already guilty of discrediting the armed forces, the more he gives Kelly’s lawyers ammunition. In trying to make an example out of a retired Navy captain turned senator, Hegseth may have done the one thing a commander is never supposed to do in a military justice case, speak so loudly about what he wants that a fair trial becomes almost impossible.
