Analysis: Pentagon move against war hero Mark Kelly shows Trump’s quest for vengeance is endless

By Stephen Collinson, CNN

Analysis: US President Donald Trump's political retribution campaign just took two embarrassing steps back and one giant leap forward.

The collapse of criminal cases against former FBI chief James Comey and New York Attorney General Letitia James raised questions about the Justice Department's competence after a judge ruled Trump's handpicked prosecutor was illegally appointed amid rushed prosecutions under political pressure.

But the administration didn't miss a beat after its twin defeat on Tuesday (NZT).

The Pentagon swiftly announced a probe into and potential court martial of war hero, NASA astronaut and Democratic Senator Mark Kelly over a video in which he and colleagues pointed out that members of the military don't have to obey illegal orders.

This followed Trump's claim last week that Kelly and other Democratic lawmakers in the video, all military or intelligence community veterans, had committed sedition - inciting an insurrection against the state - which Trump said was punishable by death.

Trump has made no secret of his determination to use presidential power to prosecute his opponents in revenge for his own criminal indictments - it was a pillar of his 2024 presidential campaign. But the use of the military to target a political foe crosses a new line and invokes the possibility that the free speech of veterans could be constrained if they criticise the commander in chief.

It also marks an extension of Trump's attempt to use government institutions to weaponise justice against his opponents, a process that the Comey and James cases show is already advanced in the DOJ.

Defence Secretary Pete Hegseth has already dismissed senior military officers in an attempt to build a team he believes is loyal to the president and his own ethos of unfettered discretion for "war fighters." He has also fired top legal officers who raised questions about the legality of administration policies, CNN reported.

The extraordinary possibility that a decorated retired Navy captain such as Kelly could be called back to duty to be prosecuted under military justice threatens to take the process further.

"What Trump wants to say is, 'If I can come after him, I can come after anyone,'" said Paul Rieckhoff, founder and chief executive of Independent Veterans of America.

"This is crossing the Rubicon," Rieckhoff told CNN's John Berman on Anderson Cooper 360. "The idea you can drive (Kelly) back onto active duty and threaten a court martial … is breaking glass that has never been broken before in the modern military."

Since Kelly was a senior officer who retired from the Navy, he is required by law to remain available for recall to the military. The Pentagon said it could take him back into the service to carry out a court martial or administrative punishment. It was not immediately clear what potential charges might be viable against Kelly, since his alleged offence was to point out a fact - that military officers are only obligated to follow legal orders under the Uniform Code of Military Justice.

There must be considerable doubt that a case against Kelly would get anywhere near the court martial stage, not least because a conviction would set a precedent that any retired member of the military could be pursued by the government in perpetuity for remarks construed as criticism of the president's actions.

The video by Democratic lawmakers has sparked debate over whether they were needlessly dragging the military into political disputes with a campaign-style stunt. But it did not take place in a vacuum. Trump has ordered reservists and US Marines into US cities in deployments that some judges have blocked. And many experts believe that the administration's strikes on the speedboats of alleged drug traffickers in the Caribbean and Pacific thwart due process and could infringe US and international law and the Constitution.

Trump is pursuing his revenge - but will it hurt him politically?

Trump's political strategy is clear. With his prosecutions against Comey, James and now investigation into Kelly, he's using the power of the executive branch to target political opponents. These are acts of a president who takes his political beefs deeply personally and believes, erroneously, that his role comes with unlimited executive power.

Some Republicans insist his targets are fair game. They argue that some or all of Trump's criminal indictments, including for election interference, a felony conviction and civil legal problems were examples of Democratic "lawfare" and that he's justified in responding.

It's fair to debate whether some of the prosecutions were politically motivated and the strength of the legal theories behind them. But Trump was convicted by a jury of his peers in the New York hush money case, and there was substantial evidence he tried to overthrow the result of the 2020 election. Trump denied wrongdoing in all cases against him.

And the president's social media posts reveal the political axe he's grinding. The Comey and James indictments quickly followed a social media post, which may have been intended to be private, to Attorney General Pam Bondi, demanding prosecutions. And news of the Kelly investigation followed days after Trump's social media outburst against the Democratic lawmakers who made the video.

Hegseth issued a statement Monday that appeared to be designed to catch the president's eye with its amped-up language. "The video made by the 'Seditious Six' was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of 'good order and discipline.' Their foolish screed sows doubt and confusion - which only puts our warriors in danger," he wrote.

The lawmakers in the video did not directly encourage US military personnel to ignore the orders of their commanders. This argument would only work if the commanders issued an unlawful order. The video pointed out that military members can or must refuse illegal orders or those that violate the Constitution.

The legality of an order is often a tough call in the heat of combat. That's why members of the Judge Advocate General's Corps - military lawyers - are often attached to units to provide legal counsel to active-duty personnel, sometimes in combat situations. Every member of the military is trained in their legal obligations. Supporters of the Democratic lawmakers in the video argue they were merely stating that everyone in the military has an obligation to obey the law - hardly a heinous offence.

Kelly said that if the intent was to intimidate him, "it won't work." He added, in a statement on X: "I've given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution."

White House doubles down

Successful prosecutions of Kelly, Comey or James seem unlikely. But being ensnared by legal wrangles can be traumatic and financially ruinous. "The process is the punishment," Miles Taylor, a former government homeland security official who is being investigated by the DOJ after criticising Trump during his first term, told CNN's Kasie Hunt.

The White House reacted to its losses in the Comey and James cases as it always does: by doubling down on accusations and vows to appeal, and by implying that any judge who rules against the president is negligent or politicised. "I know the Department of Justice will be appealing this in very short order, so maybe James Comey should pump the brakes on his victory lap," said White House press secretary Karoline Leavitt.

A federal judge dismissed the cases after finding that Trump's appointment of former White House official Lindsey Halligan as interim US attorney in Alexandria, Virginia, was invalid. The president named Halligan amid a rush to bring the criminal indictments.

Comey pleaded not guilty to lying to and obstructing Congress during testimony in late 2020. James, who said in her campaign for attorney general that she would investigate Trump over his business dealings, secured a civil court fraud judgement against the president, his adult sons and the Trump Organisation in September 2023. She has pleaded not guilty in a mortgage fraud case brought by the administration.

Kelly gains a political spotlight

The legal and constitutional obligations of Monday's legal drama will take time to play out. But the political reverberations were immediate.

Kelly, for example, is seen as a potential 2028 Democratic presidential candidate who appeals to moderates in the party. He has strong credentials as a senator from a border state and because of his military record. He did not waste any time sending out multiple fundraising emails after the news, telling supporters, "The Department of War is coming after me because they don't like what I have to say."

Like California Governor Gavin Newsom and Illinois Governor JB Pritzker - other potential Democratic presidential candidates - Kelly now has a fight with the administration and a platform to show the kind of defiance toward Trump that his party's voters crave.

The politics of the showdown may also backfire on the president. After all, a commander in chief who never served in the military is now using his power in pursuit of a hero who flew combat jets off a US carrier over Iraq in the 1991 Gulf War and who showed the right stuff by blasting into space on shuttle missions.

Kelly implicitly made the contrast in his statement. "When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA, and every day since I retired - which I did after my wife Gabby was shot in the head while serving her constituents," Kelly said.

The Arizona senator is married to Gabrielle Giffords, a former Democratic member of the House who was shot at a political event in 2011 and left with a severe brain injury.

While Trump has always prospered politically when he's picked fights and singled out political foes - at least with his ever-loyal base voters - he has wider problems than his personal grievances. He's struggling to show empathy to voters struggling with the high prices of groceries and housing. The White House on Monday postponed an expected announcement on a new health care proposal as millions of Americans are seeing spiking premiums. Trump's approval ratings have tumbled, and the surprise resignation of Georgia Republican Marjorie Taylor Greene, once a fervent supporter, exposed splits in the MAGA movement.

And as many Republicans anticipate next year's midterm elections with trepidation as voters demand help, their president is obsessing over ancient personal feuds - including the one with Comey, which stretches back nearly a decade.

-CNN