Key Takeaways
- The Pentagon is investigating Senator Mark Kelly over a video that urges American troops to defy "illegal orders", raising questions and criticism from legal experts
- Some experts argue that the Pentagon is misreading military law and that Kelly cannot be prosecuted as a member of Congress
- Others say that Kelly did nothing wrong and that the investigation is an attempt to intimidate him and other lawmakers
- The case highlights the complexities of military law and the separation of powers in the US government
- Experts predict that any case brought against Kelly would likely be thrown out or end in an acquittal
Introduction to the Investigation
The Pentagon’s investigation of Senator Mark Kelly has sparked a heated debate about the limits of military law and the separation of powers in the US government. The investigation was launched after President Donald Trump accused Kelly and five other Democratic lawmakers of sedition, punishable by death, over a video that urges American troops to defy "illegal orders". The video, which was posted on social media, has been criticized by some as an attempt to undermine the military chain of command, while others see it as a legitimate exercise of free speech.
Military Law and the Investigation
The investigation has raised questions about the application of military law to retired service members. According to Stephen Vladeck, a Georgetown University law professor, there has been a "significant uptick" in courts-martial of retired service members in the past decade. However, Colby Vokey, a prominent civilian military lawyer, argues that the Pentagon is misreading the Uniform Code of Military Justice to justify the investigation. Vokey says that while the Pentagon has personal jurisdiction over Kelly as a retired service member, it lacks subject matter jurisdiction because Kelly made his statements as a senator. This distinction is crucial, as it highlights the complexities of military law and its application to retired service members.
Expert Opinions on the Investigation
Other experts have weighed in on the investigation, with some arguing that Kelly did nothing wrong. Patrick McLain, a retired Marine Corps judge and former federal prosecutor, said that the cases he has seen of retirees being called back are "more like extreme examples of fraud or some of these child pornography cases". McLain argues that the investigation is an attempt to intimidate Kelly and other lawmakers, and that it is "wackadoodle" to suggest that Kelly’s statements constitute a crime. Similarly, Charles Dunlap, a Duke University law professor and retired Air Force lawyer, said that military law can restrict speech for service members that is protected for civilians under the First Amendment. However, Dunlap notes that even if the video was found to have violated military law, a key issue may be whether the law can be applied to someone who is retired.
Separation of Powers and the Investigation
The investigation has also raised concerns about the separation of powers in the US government. Anthony Michael Kreis, a constitutional law professor at Georgia State University, argues that the Constitution explicitly shields members of Congress from White House overreach. Kreis says that having a US senator subject to discipline at the behest of the secretary of defense and the president violates a core principle of legislative independence. This principle is fundamental to the US system of government, and is designed to prevent the executive branch from exerting undue influence over the legislative branch. The investigation of Kelly highlights the importance of this principle, and the need for the executive branch to respect the independence of the legislative branch.
Conclusion and Predictions
In conclusion, the investigation of Senator Mark Kelly has raised important questions about the application of military law and the separation of powers in the US government. While some experts argue that the Pentagon is misreading military law, others say that Kelly did nothing wrong and that the investigation is an attempt to intimidate him and other lawmakers. Michael O’Hanlon, director of research in the foreign policy program at the Brookings Institution, predicts that any case brought against Kelly would likely be thrown out or end in an acquittal. O’Hanlon says that Kelly’s statements were made as a civilian, and that saying that you shouldn’t break the law cannot be a crime. Ultimately, the outcome of the investigation will depend on the interpretation of military law and the Constitution, and will have significant implications for the balance of power in the US government. The case serves as a reminder of the importance of protecting the independence of the legislative branch, and of ensuring that the executive branch does not overstep its authority.
