A federal judge ordered the Defense Department to halt pending disciplinary proceedings against Sen. Mark Kelly, saying in a ruling Thursday that the retired Navy captain’s right to free speech was under attack by the Trump administration.
U.S. District Judge Richard J. Leon barred Defense Secretary Pete Hegseth from enforcing a censure against Kelly over comments that the Arizona Democrat made in a social media video reminding service members that they can refuse illegal orders. The judge also stopped disciplinary proceedings that Hegseth had ordered, which could have reduced Kelly’s rank and cut his military retirement benefits.
“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” Leon wrote in a 29-page opinion.
The Trump administration is expected to appeal the ruling.
The injunction came two days after a federal grand jury in D.C. declined to indict Kelly and five other Democratic lawmakers over the social media video last year that drew President Donald Trump’s ire.
Members of the military, the lawmakers said in the video, could refuse to follow illegal orders amid the administration’s controversial uses of the armed forces to patrol Democratic-run cities and conduct strikes on alleged drug-trafficking boats in the Caribbean Sea and Pacific Ocean.
Although active-duty members of the military may be punished for comments seen as insubordinate, those restrictions on speech have never been applied by the federal courts to retired service members such as Kelly, Leon said.
The judge, who was nominated to the bench by President George W. Bush, said the case had ramifications far beyond one senator — millions of retired service members’ free-speech rights could be chilled, he said.
“Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years,” the judge wrote. “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”
In a statement responding to the ruling, Kelly said the Trump administration was using increasingly strong-handed tactics to stifle peaceful dissent, not just in Congress but across the country.
“This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out. That’s why I couldn’t let it stand,” Kelly said.
He added: “They don’t like when journalists report on the consequences of their policies. They don’t like when retired veterans question them. And they don’t like when millions of everyday Americans peacefully protest. That’s why they are cracking down on our rights and trying to make examples out of anyone they can.”
Spokespeople for Hegseth did not immediately respond to a request for comment.
In a formal censure letter last month, Hegseth said Kelly had “undermined the chain of command,” “counseled disobedience” and displayed “conduct unbecoming an officer.”
Kelly’s attorneys said the lawmakers in the video were invoking a well-established principle of military law. The Uniform Code of Military Justice says all orders from superiors are presumed lawful except in the case of “a patently illegal order, such as one that directs the commission of a crime,” they said.
They cited remarks from a speech Hegseth gave in 2016: “If you’re doing something that is just completely unlawful and ruthless, then there is a consequence for that. That’s why the military said it won’t follow unlawful orders from their commander in chief. … There’s a belief that we are above what so many things that our enemies or others would do.”
Kelly retired from the military in 2011 after 24 years of service. 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.
At a hearing this month, a Justice Department attorney argued that Congress had made clear that military retirees could be recalled to active duty and that they remain subject to the Uniform Code of Military Justice. If the court granted Kelly’s injunction, it would “effectively veto” an ongoing military disciplinary process, and that “would be very troubling,” the Justice Department attorney, John Bailey, argued.
Karen DeYoung and Tara Copp contributed to this report.
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