The day after a federal grand jury refused to indict him for reminding troops they can disobey illegal orders, Sen. Mark Kelly claimed vindication Wednesday, Feb. 11 and slammed President Donald Trump for trying to use the courts to silence critics.
He also challenged Republicans to speak out against the effort to lock up him and five other Democrats – all veterans of the military or CIA – for restating a basic tenet of military law.
“Where are the free speech absolutist Republicans now who were so concerned about the weaponization of government? What happened to them?” the Arizona Democrat tells reporters at the Capitol. “Where are they as Donald Trump tries to throw senators and representatives in jail for what they say?”
The failed prosecution, led by Jeanine Pirro, the U.S. attorney for the District of Columbia, stemmed from a video the six lawmakers posted in November. “Our laws are clear,” Kelly says into the camera. “You can refuse illegal orders.”
Trump quickly called for their arrest, accusing them on his Truth Social platform of “SEDITIOUS BEHAVIOR, punishable by DEATH!”
On Jan. 5, Defense Secretary Pete Hegseth announced that Kelly would be censured for “seditious statements” and a “pattern of reckless misconduct,” and would be demoted.
Kelly spent 25 years in the Navy and flew dozens of combat missions and four space shuttle missions for NASA. He retired in 2011 with the rank of captain.
As the only retiree among the six in the video, he remains subject to military law – though legal scholars say it would be unprecedented to punish a retiree for statements made after leaving active duty.
Kelly sued to block the demotion, which would come with a pension cut.
During a Feb. 3 hearing, U.S. District Judge Richard Leon, appointed by President George W. Bush, indicated strong skepticism of the Pentagon’s stance. A ruling is pending on Kelly’s request to block the demotion as the case plays out.
Sen. Elissa Slotkin of Michigan, a former CIA analyst, joined Kelly at a news conference lauding the grand jury and criticizing Trump.
“Twenty anonymous Americans we will never meet, who made up that grand jury, told us more about the values of America than Jeanine Pirro or (Attorney General) Pam Bondi or certainly this president,” Slotkin says. “The intimidation was the point, to get other people beyond us to think twice about speaking out.”
Rejecting a request for an indictment is extremely unusual, in part because in the secret grand jury process, jurors hear only from prosecutors.
The precise charges Pirro sought remain unclear. The senators say they were never told.
The others in the video were Reps. Jason Crow of Colorado, a former Army Ranger; Maggie Goodlander of New Hampshire, a former Navy reservist; and Pennsylvanians Chrissy Houlahan, a former Air Force officer, and Chris Deluzio, a Navy veteran.
“This is not about the content of one video. Let’s call it for what it is,” Slotkin says. “The president is using our justice system to weaponize against his perceived enemies.”
Few congressional Republicans have denounced the effort to prosecute their colleagues.
Sen. Thom Tillis, R-N.C., tweeted appreciation to the grand jury.
Kelly expressed his appreciation for that but with hardly any others speaking out, he says, “I’m not going to hold my breath.”
Speaker Mike Johnson, for instance, Kelly says, “seems to be fully onboard with us being thrown into jail.”
“The best moment for them to stand up would have been in November, when Donald Trump said we should be hanged for this video. But the next best moment? Well, that is right now,” the senator says.
The First Amendment protects the right of free speech. Federal lawmakers are also protected by the “Speech or Debate” clause of the Constitution, which gives them immunity from prosecution for acts taken as part of their legislative role.
The video stemmed from criticism over National Guard deployments into U.S. cities and deadly strikes in the Caribbean on purported drug smugglers.
In court, the Justice Department asserted that as a military retiree, Kelly doesn’t have the same First Amendment rights as civilians, and that encouraging disobedience in the ranks is punishable under military law regardless of his status as an elected official.
Kelly expressed little optimism that the president and his “cronies” will let the matter drop despite the grand jury’s repudiation.
“Donald Trump has a pretty limited capacity to move on from things and he doesn’t take bad news well,” he says, but “he should know that the Constitution is on our side.”
Many retired officers, Kelly says, have told him they have been cautious about what they say in public about Trump because of the legal tussle sparked by the video. He also says current military leaders have come to him “many times” with similar concerns.
Kelly warned journalists that their role in a society and their personal freedoms could be at risk. If the president isn’t stopped, he says, “You’re going to find yourself in the same situation as Don Lemon.”
Lemon, a former CNN anchor, was arrested after a protest Jan. 19 at a St. Paul, Minn., church where one of the pastors leads the local Immigration and Customs Enforcement office. Lemon was covering the protest. He and eight others were charged with violating worshippers’ civil rights.
Slotkin says the grand jury’s refusal in her own case is inspiring, “but many leaders around our country have gone quiet and put their head in the sand because they fear retribution from Donald Trump.”
“Whether you voted for President Trump or you voted for Kamala Harris,” Slotkin says, “we know right from wrong, and weaponizing the legal system against people for basic freedom of speech goes against everything we were taught since third grade.”
Insider Takeaways
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A federal grand jury declined to indict Sen. Mark Kelly and five other Democratic lawmakers over a video reminding troops they can refuse illegal orders, a rare rebuke in a process that typically favors prosecutors.
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The case stemmed from a Trump demand for arrests after he labeled the video “seditious,” escalating a political clash into a legal showdown.
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As a retired Navy captain, Kelly faces a separate Pentagon effort to censure and demote him, a move legal scholars call virtually unprecedented for post-retirement speech.
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Sen. Elissa Slotkin framed the episode as an intimidation tactic designed to chill dissent, warning that silence from other leaders only deepens the risk.
This article first appeared on Cronkite News and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
