U.S. Army Sergeant Bowe Bergdahl walks out of the courthouse after the judge said he would continue deliberating on his sentence during Bergdahl's court martial at Fort Bragg, North Carolina on Nov. 3, 2017.

WASHINGTON – The Pentagon's investigation into alleged misconduct by Sen. Mark Kelly faces significant legal challenges over what laws the Arizona Democrat may have violated, as well as President Donald Trump and Defense Secretary Pete Hegseth’s influence over the probe, legal experts said.

Trump's War Department announced Nov. 24 that it was investigating Kelly for "serious allegations of misconduct" after he was among a group of six Democratic lawmakers who put out a video directed at service members telling them they have the right not to obey orders they believe to be illegal.

The Pentagon cited the Uniform Code of Military Justice, the body of federal law that governs the U.S. military's criminal code and justice system, to begin an investigation into Kelly that could "include recall to active duty for court-martial proceedings or administrative measures." Kelly retired from both the U.S. Navy and NASA, where he was an astronaut, in 2011.

Military retirees remain subject to laws that prohibit actions "intended to interfere with the loyalty, morale, or good order and discipline of the armed forces," according to the War Department.

But legal and military experts say that Kelly committed "no crime" in the video that would violate articles under the UCMJ, including the articles related to sedition.

"My prediction is it will never make it into a court room and it will be dead on arrival," said Eugene R. Fidell, who teaches military justice at Yale Law School.

"Nothing that Sen. Kelly or the others said or did violates any provision of the Uniform Code of Military Justice," Fidell added. "It doesn't even come close. That's the long and short of that."

Will Kelly’s case reach the courts?

In a video posted to social media last week, Kelly and five other Democrats said service members and the intelligence community have the right, and even the obligation, to refuse to carry out orders they believe are unlawful. The lawmakers did not specify which orders could be illegal.

"Our laws are clear: You can refuse illegal orders," Kelly said in the video.

The other Democratic politicians who spoke in the video were: Sen. Elissa Slotkin, a former CIA officer; Rep. Chris Deluzio, a Navy veteran; Rep. Maggie Goodlander, a former Navy Reserve intelligence officer; Rep. Chrissy Houlahan, an Air Force veteran; and Rep. Jason Crow, an Army veteran.

There are many hoops that a military case goes through and that it could "die in a variety of ways" before even making it to the courts, Fidell said. And Kelly’s investigation would be no different.

Before making it to the courts, any offense Kelly allegedly committed would need to be turned into a report submitted to a commanding officer or military authority for a preliminary inquiry. Then a commander would decide whether Kelly should be arrested and put into pre-trial confinement. Next would come the actual trialing of the alleged offenses.

But one thing a commander could do, Fidell said, is to simply not take any action.

"There's a variety of hurdles that would have to be overcome before this thing got anywhere near a court martial," he said.

Another route that Hegseth or even Trump can take is convening an Article 15 proceeding, which is like a grand jury in the military, said David Schwendiman, a former senior Justice Department lawyer. The process would determine whether there was probable cause to believe a crime had been committed, and then refer it on for general or special court martial.

However, Schwendiman said that it’s an "involved process" that offers "a lot of protections for anybody who's referred" to that court process.

Kelly, during a Nov. 24 appearance on "The Rachel Maddow Show" on MS NOW, said the investigation against him is "about intimidation."

"The whole thing's almost comical ... We're basically repeating the Uniform Code of Justice (in the video) and they're saying that's in violation of the Uniform Code of Military Justice," Kelly said. "It's absurd."

But several experts said that a case against Kelly would likely not be pursued because of Trump and Hegseth’s influence in the investigation.

'Unlawful command influence' by Trump and Hegseth

Shortly after the video of Kelly and the other Democrats was posted, Trump in a flurry of social media posts, accused the Democratic lawmakers of "SEDITIOUS BEHAVIOR, punishable by DEATH!" He later said on Fox News that he does not believe the lawmakers should be executed but believes they're in "serious trouble."

Hegseth in a post on X labeled the lawmakers in the video as the "Seditious Six" and called the video "despicable, reckless, and false."

Both comments from the president and Hegseth fall directly in the category of undue command influence, Schwendiman said, which would make it difficult for the case to make it to court or would add to the challenges if it did.

"I don't think you could hold a proceeding that would have any reasonable trappings of fairness or due process if you've got the convening authorities telling the people below how this is supposed to turn out," Schwendiman said.

Trump has been in hot water in the past due to questions about unlawful command influence.

As a candidate during the 2016 presidential election, Trump called the U.S. Army's Bowe Bergdahl a "traitor" and suggested harsh punishment for the solider who left his post in 2009 while deployed to Afghanistan before being held captive in brutal conditions for five years. Trump also referred back to those comments as president when asked about Bergdahl.

In 2017, Bergdahl pleaded guilty to desertion and misbehavior before the enemy. He later was dishonorably discharged and demoted, but did not serve prison time.

Bergdahl later filed an appeal, citing Trump’s comments about his case. The U.S. Court of Appeals for the Armed Forces rejected Bergdahl’s appeal but did find some evidence that Trump’s remarks could amount to unlawful command influence.

In 2013, a Navy judge in Hawaii found then-President Barack Obama to have exerted "unlawful command influence" after he suggested that those convicted of military sexual assault should be punished with a dishonorable discharge.

Col. Morris Davis, a former chief military commission prosecutor at Guantanamo, said that both Trump and Hegseth have expressed their views on the outcome which would make it difficult for a jury to be impartial.

"(Trump) and Hegseth have both been very clear that they have predetermined guilt and punishment," he said. "So I think it would make it really difficult to be impartial on a jury, particularly in an administration that has made it very clear that there’ll be retribution if you don't toe the line."

Kelly could turn to the federal courts

Kelly, a retired U.S. Navy captain, also has the standing to go to federal court if he is recalled to active duty to then be court martialed, said Rachel VanLandingham, a professor at Southwestern Law School and former Air Force lawyer.

"I have a hard time seeing that he's court-martialed because I think if they tried to recall him to active duty, he should go to federal court and get an injunction," she said.

While there’s a federal court doctrine that instructs federal courts to refrain from intervening in ongoing military court martials, VanLandingham said there are two exceptions: an immediate threat of irreparable harm and when there is no impartial tribunal in the military to hear the case.

Both Hegseth and Trump have been critical of the lawmakers over the video, calling it "seditious."

Because everyone in the military works for Hegseth, and technically Trump, as he is commander-in-chief, there would be no impartial tribunal. Kelly would have a strong case in federal court because of that, VanLandingham said.

"How could you get a fair and impartial trial in the military court where the chain of command runs up through both of these folks," she said.

She said that retired military members do not have to be recalled to active duty to be court martialed. She pointed to a case in which Army Gen. James Grazioplen, who retired in 2005, was court martialed following a 2015 investigation that found he raped his daughter while living on military bases. He was not recalled to active duty.

But in Kelly’s case, VanLandingham predicted that the Trump administration "would want the spectacle of him in uniform."

Did Kelly commit a 'seditious' act?

Kelly’s comments do not violate the military laws that address sedition or mutiny, Schwendiman said. That article is for specific instances of getting people to override lawful military authority, to refuse to do their duty, or to create violence or disturbance, such as overtaking a ship, he said.

It would also be difficult to pursue charges under military laws that prohibit a wide range of conduct that could harm military discipline or order, or that brings discredit on the armed forces, Schwendiman added.

"I don't know how that article would even be contemplated in a case where all that Mark Kelly, and the others did, was state the obvious, which is you do not have to obey illegal orders," he said.

Hegseth in a post on X accused Kelly’s conduct of bringing "discredit upon the armed forces," which would fall under the military's code of rules.

"Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of 'good order and discipline,'" Hegseth wrote. "Their foolish screed sows doubt and confusion — which only puts our warriors in danger."

Still, legal experts caution that Kelly committed no crime in the video.

"It's really hard to see how you could have any kind of court martial, but the punishment would be the process," VanLandingham said. "It's all very abusive. It's very much not supported by the crimes that are being thrown out here."

This article originally appeared on USA TODAY: Will Mark Kelly case reach courts? It's 'dead on arrival,' experts say.

Reporting by Rebecca Morin, USA TODAY / USA TODAY

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