A federal judge appears likely to rule in favor of Sen. Mark Kelly in his lawsuit against the Trump administration over its efforts to reduce his retirement rank as a Navy captain after he urged troops to reject unlawful orders in a video message.
At a hearing Tuesday, U.S. District Judge Richard Leon seemed particularly focused on the First Amendment rights of Kelly, D-Ariz., both as a retired member of the military and as a sitting U.S. senator.
“Lots and lots of novel issues in the case,” Leon said. “Not sure we’ve ever seen a case like this.”
Defense Secretary Pete Hegseth said in early January that the Defense Department was taking steps to downgrade Kelly’s military retirement rank and pay because of his “seditious statements,” referring to a video Kelly and other retired service members who serve in Congress released to urge members of the military not to comply with illegal orders.
Kelly filed a lawsuit in response that argued Hegseth’s actions violate his First Amendment rights, as well as the speech and debate clause of the Constitution, which grants immunity to lawmakers for official acts.
Leon pointed out Tuesday that there are restrictions on the speech of active members of the military, whereas Kelly is no longer on active duty. Justice Department attorney John Bailey said those restrictions on speech should extend to retired members, as well, but he wasn't able to cite a law, regulation or relevant case law that said the same.
“You’re asking me to do something the Supreme Court and the D.C. Circuit has never done,” Leon chided Bailey. “Bob Dylan once said you don’t need a weatherman to decide which way the wind blows.”
Bailey argued that Kelly doesn’t deserve a “get out of jail free card” simply because he’s a U.S. senator.
Hegseth first said he would go after Kelly in November, days after the video was posted. While the five other lawmakers in the video are military veterans and former intelligence officials, Kelly is the only one who retired from the military. His status means he can be recalled for an urgent need, like a war or a national emergency, but also to face court-martial for misconduct.
Kelly’s attorney, Benjamin Mizer, said Tuesday that Hegseth’s decisions would affect not just Kelly but also any retired member of the U.S. military — senator or not.
Leon said he will rule by Feb. 11.
Kelly’s lawsuit seeks a court order declaring Hegseth’s actions unlawful.
“Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate,” it says.
The lawsuit adds that the administration responded to Kelly’s remarks “with extreme rhetoric and punitive retribution,” with Hegseth and President Donald Trump branding his statements as “sedition” and “treason.” Kelly’s suit argues that their comments deprived Kelly of his right to due process.
Kelly told reporters outside the courtroom Tuesday, “There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government, and that’s what I’m fighting for.”
Hegseth issued a formal letter of censure in early January outlining Kelly’s “reckless conduct.”
In the letter, Hegseth said Kelly had “directly attacked the legitimacy of military leadership and the lawfulness of their orders,” had said things that “directly prejudice good order and discipline” and had “engaged in conduct that seriously compromises your standing as an officer and brings dishonor to the officer corps.”
Kelly condemned the censure, telling reporters Tuesday that Hegseth's attack "isn't happening in isolation."
"Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator," Kelly said. "Since taking office, this administration has repeatedly gone after First Amendment rights of many Americans."
