A former Bush administration official is calling the Trump administration out on its bluff to prosecute Sen. Mark Kelly (D-AZ) over comments he made urging service members to defy illegal orders, suggesting on Fox News Tuesday that the administration is well aware that its criminal probe is unwinnable.
Kelly had participated in a video published last week in which several Democratic lawmakers urged active duty service members to defy unlawful orders, a video that sparked outrage from President Donald Trump, who went on to accuse the lawmakers of “seditious behavior” and threatened to execute them.
On Monday, the Pentagon announced that it was investigating Kelly – a former Navy pilot – for his participation in the video, but on Tuesday, Cully Stimson – also a former Navy pilot – poured cold water on the prosecution’s chances at success.
“The problem is that when we recall people to active duty to prosecute them, almost in every instance it's been for a crime they committed while they were on active duty, not in this situation where he's a senator giving a speech [as it’s] not covered by the Speech or Debate Clause because it wasn't a core legislative function,” Stimson said, appearing with Fox News’ Bill Hemmer.
“And so I don't think any military jury is ever going to convict this guy, ever. So I think the punishment here is the process, and they'll ultimately not prosecute him or bring him back on active duty.”
Stimson, who served in the Bush administration as the deputy assistant secretary of defense for detainee affairs before resigning amid controversy, was not the only conservative who criticized the criminal probe directed toward Kelly on Tuesday.