Judge blocks Hegseth from punishing Sen. Mark Kelly over ‘unlawful orders’ video
A federal judge has granted a preliminary injunction to U.S. Sen. Mark Kelly, blocking Secretary Pete Hegseth and the Department of War from taking disciplinary action against the Arizona Democrat over a video in which he said U.S. servicemembers can refuse unlawful orders.
U.S. District Judge Richard Leon said Kelly, a retired Navy captain who serves on the Senate Armed Services Committee, is likely to succeed on his claim that the Pentagon retaliated against him in violation of the First Amendment.
The dispute centers on a Nov. 18 video in which Kelly appeared alongside five other Democratic members of Congress, all veterans of the armed forces or intelligence services, in an effort to “speak directly to members of the military,” according to the court opinion.
In the video, the group said troops were facing “enormous stress and pressure” and argued the Trump administration was “pitting our uniformed military … against American citizens.”
Kelly identified himself as a Navy veteran and said: “I was a captain in the United States Navy.” He later said: “Our laws are clear. You can refuse illegal orders.”
The court said the video and Kelly’s other comments came amid controversy over the Trump administration’s deployment of National Guard troops to U.S. cities, including Washington, D.C., Los Angeles, and Chicago, as well as a campaign of lethal strikes targeting alleged drug-smuggling boats in the Pacific Ocean and Caribbean Sea.
Judge Leon said Hegseth issued a “Secretarial Letter of Censure” on Jan. 5 accusing Kelly of a “sustained pattern” of public statements that characterized lawful military operations as illegal and counseled servicemembers to refuse orders related to those operations.
The letter warned Kelly he could face criminal prosecution or further administrative action if he continued to engage in conduct “prejudicial to good order and discipline.”
The same day, the Navy notified Kelly that it had initiated proceedings to reconsider his retirement grade and pay, with the censure letter serving as the sole factual basis for the action.
The judge rejected the Pentagon’s argument that the case involved non-reviewable military personnel decisions.
“Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military,” Judge Leon wrote. “This Court will not be the first to do so!”
The judge also ruled Kelly was not required to exhaust internal military appeals before seeking judicial intervention, saying the alleged retaliation threatened immediate and irreparable harm to his First Amendment rights.
“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. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’”
Judge Leon said Kelly’s speech involved matters of public concern and was protected under ordinary First Amendment principles, concluding the censure letter and retirement-grade proceedings were retaliatory actions intended to deter protected speech.
“Retaliation against [Senator Kelly] … threatens retaliation against all,” Leon wrote, citing a recent court decision.
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Ella Rae Greene, Editor In Chief
