WATCH LIVE: Senator Kelly holds press conference on Trump and Hegseth’s ‘efforts to intimidate him’

WASHINGTON (AP) — The Pentagon’s investigation into Sen. Mark Kelly over a video urging U.S. troops to defy “unlawful orders” has drawn a slew of questions and some criticism from legal experts.

Kelly is expected to hold a news conference at 3:30. Watch the live stream in the video player above.

Some say the Pentagon is misreading military law to pursue Kelly as a retired Navy fighter pilot. Others say the Arizona Democrat cannot be impeached as a member of Congress. A group of former military prosecutors insist he did nothing wrong.

The Pentagon announced the investigation last week after President Donald Trump on social media accused Kelly — and the five other Democratic lawmakers in the video — of sedition “punishable by death.”

Defense Secretary Pete Hegseth said Kelly faces investigation because he is the only one in that group who has officially retired from the military and remains under the Pentagon’s jurisdiction.

Kelly dismissed the investigation as the work of “bullies” and said it would not deter him and other members of Congress “from doing our work and holding this administration accountable.”

“No one has ever heard of it.”

There has been a “significant rise” in courts-martial for retired service members in the past decade, said Stephen Vladeck, a law professor at Georgetown University. While courts have debated the constitutionality of this practice, it is currently permitted. He said there had been nearly a dozen such prosecutions in service branches.

There are nearly 2 million people who have officially retired from the military and are receiving retirement pay, according to a report by the Congressional Research Service. Service members are generally entitled to retirement pay after completing 20 years of active duty.

It’s rare for retirees to be prosecuted for something that happened after they retired, said Todd Huntley, a retired Navy captain and judge advocate general, or JAG.

“We never heard about this,” said Huntley, who now directs the National Security Law Program at Georgetown University. “I actually prosecuted an enlisted man who had been retired for 16 years. He was sexually abusing his adopted daughter. Basically no one else had jurisdiction so we prosecuted him.”

‘A ridiculous conclusion’

Colby Fokey, a prominent civilian military lawyer and former military prosecutor, said Hegseth appears to be misreading the Uniform Code of Military Justice to justify the Kelly investigation.

Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is entitled to retirement pay. But Fokey said Hegseth lacks subject matter jurisdiction because Kelly made his statements as a senator.

He watches: White House supports Pentagon investigation into Senator Kelly after video urging troops to defy ‘unlawful orders’

Case law has evolved to where the military can prosecute an active-duty service member for a crime committed off-base, such as robbing a convenience store, Vokey said. But applying military law to a retired service member and “assuming that means every crime ever is kind of a ridiculous conclusion.”

“Let’s say you have a 100-year-old World War II veteran who’s retired and on pay and steals a candy bar,” Fokey said. “Hegseth could bring him back and court-martial him. That’s actually what’s happening with Kelly.”

Patrick McLean, a retired Marine Corps judge and former federal prosecutor, said the subpoena cases he’s seen “are very similar to extreme examples of fraud or some child pornography cases.”

“I’ve never seen anything like this kind of antics that they’re trying to do to Senator Kelly for exercising his First Amendment right to free speech, which they don’t like,” McClain said.

‘He did it as a civilian’

Military law can restrict the freedom of speech of service members protected by the First Amendment to civilians, Charles Dunlap, a Duke University law professor and retired Air Force attorney, said in an email.

But even if the video is found to violate military law, the key issue may be whether the law can be applied to a retired person, Dunlap said.

A group of former military lawyers, the Former JAGs Action Group, said in a statement that Kelly did not violate the Uniform Code of Military Justice.

“The video simply described the law regarding legal versus illegal orders,” the group said. “He did not encourage mutiny or encourage military members to ignore or disobey lawful orders given to them.”

Troops, especially uniformed commanders, have specific obligations to refuse unlawful orders. Broad legal precedence also stipulates that simply following orders – known colloquially as the “Nuremberg Defense,” and as used unsuccessfully by senior Nazi officials to justify their actions under Adolf Hitler – does not exonerate troops.

Kelly and the other lawmakers did not mention specific circumstances in the video. Some Democratic lawmakers have questioned the legality of the Trump administration’s attempts to send National Guard troops to American cities. Kelly clearly questioned the use of the military to attack alleged drug boats off the coast of South America, saying he was concerned about the military officers involved in the mission and whether they were carrying out orders that may have been illegal.

He watches: Military personnel are seeking legal advice on whether the missions ordered by Trump are legal

Any case against Kelly would likely be dismissed or end in an acquittal, said Michael O’Hanlon, research director of the Foreign Policy Program at the Brookings Institution.

O’Hanlon said it may not have been politically smart to “wave the red flag before the bull” but he did not see the legal grounds for a court-martial.

“Saying you shouldn’t break the law cannot constitute a crime,” O’Hanlon said. “But in addition to that, he didn’t do it as a military officer, he did it as a civilian.”

Separation of powers

It is possible that Kelly’s status as a senator could obstruct the Pentagon’s investigation because of the constitutional protection of the separation of powers in the US government.

Anthony Michael Kreis, a constitutional law professor at Georgia State University, said the Constitution explicitly protects members of Congress from White House overreach.

“Having a U.S. senator subject to discipline at the behest of the Secretary of Defense and the President — is a violation of the fundamental principle of legislative independence,” Chris said in a phone interview.

Chris said such protection was a reaction to the British monarchy, which arbitrarily punished members of Parliament.

“Any way you slice it, the Constitution is structurally designed to prevent this kind of abuse,” Chris said.