A federal judge on Tuesday sharply questioned the legality of the Defense Department’s efforts to censure and possibly demote Sen. Mark Kelly, a retired Navy captain, over his public criticism of the Trump administration.
U.S. District Judge Richard J. Leon said Defense Secretary Pete Hegseth appeared to be expanding restrictions on free speech that have applied only to active-duty service members, not military retirees.
“That’s never been done before,” Leon, who was nominated by President George W. Bush, told a government lawyer during a hearing in D.C. federal court on Kelly’s request for an injunction to halt the disciplinary proceedings. “You’re asking me to do something the Supreme Court’s never done.”
Hegseth issued a formal letter of censure last month reprimanding Kelly for comments in a social media video from several Democratic lawmakers in which they said members of the military weren’t always obligated to follow commands from superiors.
“Like us, you all swore an oath,” Kelly says in the video. “Our laws are clear. You can refuse illegal orders.”
In the censure letter, Hegseth said Kelly had “undermined the chain of command,” “counseled disobedience” and displayed “conduct unbecoming an officer.” The Defense Department also initiated disciplinary proceedings to consider a postretirement demotion that could cut Kelly’s retirement benefits.
The lawmakers have said they made the video in response to the Trump administration’s legally controversial uses of the military. Kelly, an Arizona Democrat who serves on the Armed Services and Intelligence committees, has been a leading critic of the administration’s moves to deploy the National Guard to cities run by Democratic officials and conduct strikes on alleged drug traffickers’ boats in the Caribbean Sea.
An attorney for Kelly, Ben Mizer, argued Tuesday that the disciplinary proceedings would have a far-reaching chilling effect on veterans who wish to speak out on public matters. If Kelly, a U.S. senator and decorated fighter pilot and astronaut, can be censured and demoted in retirement over his political speech, others who served in the military will start to think twice before voicing their own political opinions, he said.
“However you slice it … there is a clear First Amendment violation here,” Mizer said. The punitive measures could also weaken congressional oversight of the military if members of Congress who served in the armed forces can be muzzled by the military justice system, Kelly’s attorneys argued.
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” they said in a legal filing.
Leon said he aimed to issue a written ruling before Feb. 11, which he expected would be appealed regardless of the outcome. Kelly’s response to the military demotion proceedings is due Feb. 16, the judge noted.
Tuesday’s hearing marked the latest twist in the fight between Kelly and Hegseth since the video surfaced, one that military law experts have said more broadly aims to send a message throughout the ranks of current and retired military officers that they risk losing their benefits if they speak out against the administration’s policies.
For officers still serving, even if they do not actively speak against the administration but are perceived as not toeing the line, the consequences of being fired by the administration before they have completed their full 20 years of service could mean losing ample pay and lifetime medical coverage.
Kelly retired from the military in 2011 after 24 years on active duty. His career included flying fighter jets over Iraq during the Persian Gulf War and becoming an astronaut. He left the Navy several months after his wife, former congresswoman Gabrielle Giffords (D-Arizona), was shot in the head during a constituent event and survived.
The video was organized by Sen. Elissa Slotkin (D-Michigan), a former CIA analyst and political appointee in the Obama administration; and also featured Democratic Reps. Jason Crow (Colorado), a former Army Ranger; Chrissy Houlahan (Pennsylvania), a former Air Force officer; Chris Deluzio (Pennsylvania), a former Navy officer; and Maggie Goodlander (New Hampshire), a Navy veteran.
Leon asked Kelly’s attorneys whether he could rule on the dispute before the military’s disciplinary proceedings concluded and also noted that under federal appellate precedent, the law “takes a dim view of district judges second-guessing military judgments.”
But most of the questioning came as Justice Department lawyer John Bailey, who was representing the Pentagon, argued the government’s case.
Bailey said Congress has made clear that military retirees can be recalled to active duty and remain subject to the Uniform Code of Military Justice. “If they wanted to exempt congressmen from the UCMJ, they may. They just need to amend the statute,” he said.
If the court granted Kelly’s injunction, it would “effectively veto” an ongoing military disciplinary process, Bailey said, and that “would be very troubling.”
“Rather than avail himself of the military administrative processes established by Congress, Plaintiff rushed to federal court,” Justice Department lawyers said in a legal filing.
Mizer said Leon could rule on the case because Hegseth’s censure letter was final and expressly stated that it was not subject to appeal. He characterized the demotion proceedings as a sham with a predetermined outcome because “Secretary Hegseth has abundantly demonstrated bias.”
In brief remarks to reporters after the hearing, Kelly said he was being punished “for doing my job as a United States senator” and that the effort was part of a broader crackdown by the Trump administration on peaceful dissent.
“Today was a day in court, not just for my constitutional rights, but for millions of retired service members, and really all Americans,” Kelly said. “There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government.”
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