By Tom Hals, Jack Queen and Nathan Layne
NEW YORK (Reuters) -Threats by the Trump administration to recall Senator Mark Kelly to active Navy duty, and to prosecute him under military law for urging troops to disobey illegal orders, would face steep hurdles in a system designed to give troops strong rights to due process, according to seven military law experts.
Kelly and five other Democratic lawmakers with military or intelligence backgrounds posted videos about disobeying illegal orders that Trump
called "dangerous" and "seditious." The FBI and the Department of Defense are investigating.
Democrats have criticized the president's decisions to attack boats allegedly carrying drugs to the U.S. from Latin America and to deploy the National Guard to police American cities. Kelly told servicemembers in the video: "Our laws are clear: you can refuse illegal orders."
Military cases usually involve clear violations because they first have to undergo multiple rounds of investigation and legal approval before reaching a judge, who can dismiss charges that don't pass legal muster.
Kelly's case is not clear-cut, and several legal experts told Reuters they did not think he broke the law.
Victor Hansen, a former military prosecutor and professor at New England Law Boston, said it was one thing for Defense Secretary Pete Hegseth to threaten a court-martial and another for it to take place.
“It would be a mistake to assume that Pete Hegseth can by fiat say, `OK we’re going to court-martial.` That's not going to happen," Hansen said in an interview.
Asked for comment, the White House said there had been no examples of unlawful orders given by Trump, and accused the Democrats of calling for the defiance of lawful orders, not just unlawful ones.
"It should deeply concern all Americans that elected Democrats are publicly urging the military to openly defy the chain-of-command and the Commander-In-Chief’s lawful orders to subvert the will of the American people," White House spokesperson Abigail Jackson said.
The U.S. military's criminal code has unique prohibitions against speaking contemptuously of the president and conduct unbecoming of an officer, but the experts told Reuters that Kelly merely reiterated the well-established legal principle that soldiers are permitted and in some cases required to refuse illegal orders.
"I am 99% certain nothing he said violated any of the provisions of the military code," said Geoffrey Corn, an army veteran and law professor at Texas Tech University.
A LENGTHY PROCESS BEFORE CHARGES ARE BROUGHT
Military regulations meanwhile spell out a lengthy process for charging servicemembers.
Cases must first be recommended for prosecution by an officer appointed to investigate whether a crime was committed.
A senior officer then conducts their own review and seeks a legal opinion before referring the case for prosecution. A military judge holds an initial hearing and decides whether the case can go forward after hearing arguments from both the defense and prosecution.
Those layers of investigation and approval by many officers and lawyers makes it very hard for flimsy charges to get through, the legal experts said.
"The likelihood of this getting any traction in the military justice system is essentially zero," said Eugene Fidell, who teaches military justice at Yale Law School.
If the case cleared those hurdles, a convening authority would establish the court-martial. Under the law, Hegseth or even Trump could be the convening authority.
At that point, Kelly can bring his legal defenses.
"I am not going to be silenced. I am not going to be intimidated," Kelly told Rachel Maddow in an interview on MS NOW.
Kelly could claim his speech was protected by the First Amendment since he wasn't inciting military disobedience but making general statements of fact.
Members of Congress are protected from investigation and prosecution for official acts under the Speech or Debate Clause of the Constitution, according to Georgetown University law professor Stephen Vladeck, who said Kelly had a strong argument for immunity.
There is also strong protection in courts-martial against "unlawful command influence" when senior officials, including Hegseth, take actions that might deny Kelly a fair trial, the experts said.
"There's an enormous unlawful influence issue in the case already, and the case hasn't even begun," Fidell said, referring to Trump and Hegseth's public comments accusing the lawmakers of disloyalty.
Using the court-martial system to prosecute veterans for conduct as civilians does have precedent.
Retired Marine Staff Sergeant Steven Larrabee was convicted in 2016 for a sexual assault that violated the military code, even though the incident occurred after he left military service.
He disputed the constitutionality of applying court-martial jurisdiction to a retired service member, but a U.S. appeals court ultimately upheld Larrabee’s conviction.
(Reporting by Tom Hals, Jack Queen and Nathan Layne; Editing by Ross Colvin, Noeleen Walder and Lincoln Feast)
