A federal judge on Tuesday expressed skepticism over the Pentagon’s effort to downgrade the pay and rank of Democratic Sen. Mark Kelly of Arizona after he publicly urged service members not to follow unlawful military orders.
Kelly, a retired Navy captain, previously sued Defense Secretary Pete Hegseth in mid-January, saying he is the target of “extreme rhetoric and punitive retribution” by the Trump administration over a video in which he and five other Democratic lawmakers urged members of the military to “refuse illegal orders.”
Following the video’s release in November, Kelly received a censure letter in early January from Hegseth which claimed the senator’s public criticism undermined the chain of command, counseled disobedience among the ranks and represented conduct unbecoming of an officer. The Navy later followed up with a letter saying his retirement pay grade would be re-evaluated.
In a 45-minute court hearing on Tuesday, U.S. District Judge Richard Leon appeared concerned by the Justice Department’s arguments that the speech limitations customarily imposed on active-duty military officers to promote discipline and obedience was being extended to include retired service members like Kelly.
“That’s never been done,” Leon told Justice Department attorney John Bailey, adding that the government did not have a single case to support the argument.
“You’re asking me to do something that the Supreme Court has never done,” Leon said. “That’s a bit of a stretch, is it not?”
Kelly’s legal team, which includes the former U.S. Attorney for the District of New Jersey as well as other prominent former senior officials from the Justice Department, say that the Pentagon’s actions are an unlawful attempt to stifle his First Amendment right to free speech.
“There is a clear First Amendment violation here,” said Ben Mizer, one of Kelly’s attorneys, during oral arguments on Tuesday. He added that the government’s actions not only infringe on Kelly’s rights but also run “the risk of chilling the speech of every retired veteran in this country.”
Kelly’s lawyers also separately argue that, as a member of Congress, he is immune from criminal prosecution or civil lawsuits targeting his legislative activity under the Constitution’s Speech and Debate clause.
The Justice Department on Tuesday told Leon that Kelly is not eligible to petition the federal court for relief because he has failed to exhaust his administrative appeals through the military tribunals and that the actions taken against him are not final.
Mizer, however, said that it was clear based on Hegseth’s own words that he has expressed bias towards Kelly.
“Secretary Hegseth has … demonstrated bias, and he is not a decision-maker who has kept an open mind,” he told Leon.
Leon said he hopes to rule on the issue by Feb. 11 in order to give the parties time to appeal.
Kelly, speaking to reporters outside the courthouse on Tuesday, said he appreciates “the judge’s quick and careful consideration in this case given what is at stake here.”
He added that he believes he has the Constitution on his side.
Kelly is one of six congressional Democrats who appeared together in the video last year.
The video came as the Trump administration was facing intense pressure over its military strikes against drug vessels, with legal experts and congressional Democrats saying the strikes amounted to unlawful extrajudicial killings.
The Justice Department has since sent inquiries to the five other congressional Democrats who participated in the video. In response to the Justice Department probe, the lawmakers have accused the Trump administration of trying to silence and intimidate them.