Judge Questions Effort to Demote Sen. Mark Kelly Over Free Speech Concerns
WASHINGTON – A federal court hearing on Tuesday highlighted a contentious effort by Defense Secretary Pete Hegseth to reduce the retirement rank of Senator Mark Kelly, sparking a debate over veterans’ free speech rights. U.S. District Judge Richard Leon described the move as an unprecedented attempt to limit a congressman’s ability to speak freely, particularly by using military pension as leverage.
Judge Leon, during a 45-minute session, questioned how members of Congress could effectively fulfill their duties under such constraints. Kelly, an Arizona Democrat, is a retired Navy captain who served 25 years, including numerous combat and space shuttle missions.
Related: Arizonans react to the Pentagon’s latest move against Sen. Mark Kelly
Last November, Kelly, along with five other Democratic lawmakers—all military or CIA veterans—released a video urging military personnel to reject unlawful orders. The video did not specify any such orders, but at the time, Democrats were vocal about President Donald Trump’s military decisions, including National Guard deployments and controversial strikes in the Caribbean.
In response, Trump called for the arrest and trial of the six legislators on Truth Social, accusing them of “seditious behavior” and suggesting it was “punishable by death.”
On January 5, Hegseth issued a censure letter to Kelly, accusing him of making “seditious statements” and demonstrating a “pattern of reckless misconduct,” thus announcing his demotion. The specifics of Kelly’s new rank remain undisclosed by the Defense Department.
Hegseth stated, “Captain Kelly’s status as a sitting United States Senator does not exempt him from accountability,” arguing that the video aimed to undermine military discipline.
At the hearing, Kelly sat with his legal team, later telling reporters, “Today was a day in court, not just for my constitutional rights, but for millions of retired service members and really all Americans.” He emphasized the fundamental nature of free speech in democracy, asserting that it was what he was fighting for.
Judge Leon challenged Justice Department lawyer John Bailey to provide examples of similar cases where a military retiree was penalized for political expression. Bailey could not cite any precedent, prompting the judge to remark, “You haven’t been able to find a case. You’re asking me to do something the Supreme Court has never done.”
Kelly, who filed a lawsuit on January 12 to prevent the demotion, is seeking a preliminary injunction. The judge is expected to rule by February 11.
Military law experts suggest that reminding personnel of their duty to refuse unlawful orders aligns with their training and established law. John Vile, a political science professor, noted, “Frankly, this is so far off the charts,” referencing free speech rights. He criticized the administration’s attempt to intimidate dissenters as antithetical to the First Amendment.
While other lawmakers in the video are not subject to military discipline due to their service length, retirees typically face discipline only for active-duty conduct. Kelly’s supporters have rallied, raising $12.5 million for his defense and establishing a legal fund.
In the Senate, Kelly and all Democratic senators, along with three Republicans, opposed Hegseth’s confirmation. Vice President JD Vance cast the decisive vote.
Senator Elissa Slotkin, D-Mich., who appeared in the video, defended Kelly by referencing Hegseth’s 2016 comments as a Fox News commentator, where he claimed it was “standard” for the military to reject unlawful orders from the commander in chief.
