Posobiec opened the discussion by pointing to what he described as clear violations of the chain of command. He said: “Senator Kelly, he had this video over the last couple of weeks where, as you were just saying about the regulations of federal workers, it sounded to me that he was soliciting information or leaks or insubordination, and to my ears it sounded like insubordination from members of the military and undermining the chain of command."
"Now, as a retired Navy captain collecting a pension, he is still under the jurisdiction of the Uniform Code of Military Justice. I asked the press secretary, Wilson, yesterday, will there be an investigation? We knew that there was. She confirmed that that had been forwarded to Secretary Phelan over at the Navy, and by the way, we were going to have him on today, and we were also informed that he got pulled into the White House. I don't know if it's about that, but that's why he was supposed to be here today. The timeline on that investigation is one week from today, on December 10th.”
Parlatore, a former Navy officer and seasoned defense attorney, noted that investigators won’t need to spend time reconstructing what happened because the conduct was public.
He said, “That investigation or review is being done by the Navy. I'm not a part of it. But, you know, they're going to look at a bunch of things. They're going to look at the facts of the case. This is not something where you really need an investigation because it all happened publicly, and so they need to do a good review of the law and see the range of options they have here.
"It's not just about a court-martial. You know, they could bring administrative penalties here. They could, for example, reduce his pension. They could potentially, you know, say he's being reduced to the rank of commander in his retirement and then just take his pension down a bit.
"Ultimately, what they're going to do is they're going to make a decision not based on politics but based on the facts and the law as to what statutes that video violates, what are the impediments to a potential court-martial, and what makes the most sense in this case.”
He went on to highlight why a court-martial would trigger constitutional complications.
“One of the difficulties of court-martialing a sitting senator, the Constitution prohibits somebody from serving offices in two branches at the same time. If any of them get pulled to active duty, then they're an officer in the executive branch.
"And so then they can't serve both offices at the same time, and it acts as a functional forced resignation from Congress or the Senate, which could potentially bring all sorts of other separation of powers issues.”
Parlatore added that while an administrative penalty remains the more likely outcome, another track is already in motion. “You got to remember the FBI has been looking into this. So there's also the DOJ side, which applies to all six of them.”
Posobiec noted that DOJ involvement would apply to Kelly as a civilian. Parlatore agreed: “Correct. And that's obviously outside of this department's control.”
