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A federal judge signaled Tuesday that he is likely to rule in favor of Sen. Mark Kelly, D-Ariz., in his lawsuit challenging the Trump administration’s attempt to reduce his military retirement rank and pay over a video urging troops to reject unlawful orders.
During a hearing in U.S. District Court, Judge Richard Leon repeatedly questioned the legal basis for the Pentagon’s actions and focused on Kelly’s First Amendment rights as both a retired Navy officer and a sitting U.S. senator.
“Lots and lots of novel issues in the case,” Leon said. “Not sure we’ve ever seen a case like this.”
Kelly sued after Defense Secretary Pete Hegseth announced in early January that the Defense Department was moving to downgrade Kelly’s retirement rank from Navy captain, citing what Hegseth called “seditious statements.”
Hegseth was referring to a video released by Kelly and several other former military and intelligence officials now serving in Congress, urging service members to refuse illegal orders.
Speech protections at issue
Kelly’s lawsuit argues that Hegseth’s actions violate the First Amendment, as well as the Constitution’s speech or debate clause, which shields lawmakers from executive retaliation for official acts.
Leon appeared skeptical of the Justice Department’s position that restrictions on speech for active-duty service members should extend to retirees.
Justice Department attorney John Bailey argued that retired officers remain subject to military discipline, but acknowledged he could not point to a statute, regulation or binding case law explicitly applying active-duty speech restrictions to retirees.
“You’re asking me to do something the Supreme Court and the D.C. Circuit has never done,” Leon told Bailey. “Bob Dylan once said you don’t need a weatherman to decide which way the wind blows.”
Bailey countered that Kelly should not receive what he described as a “get out of jail free card” simply because he serves in the Senate.
Unique status of military retirees
Kelly is the only lawmaker in the video who formally retired from the military, a status that allows him to be recalled in cases of war or national emergency — and, under military law, potentially court-martialed for misconduct.
Kelly’s attorney, Benjamin Mizer, argued that Hegseth’s actions would have sweeping consequences beyond Congress.
“This is not just about Senator Kelly,” Mizer said. “This would affect every retired member of the U.S. military.”
Leon said he expects to issue a ruling by Feb. 11.
Claims of retaliation
Kelly’s lawsuit seeks a court order declaring the Pentagon’s actions unlawful, warning that allowing the executive branch to punish a sitting senator for political speech would upend constitutional checks and balances.
“Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate,” the lawsuit states.
The filing also accuses the administration of engaging in “extreme rhetoric and punitive retribution,” noting that President Donald Trump and Hegseth publicly labeled Kelly’s remarks as “sedition” and “treason.” Kelly argues those statements deprived him of due process.
Formal censure
Hegseth issued a formal letter of censure earlier this month accusing Kelly of “reckless conduct” that “directly attacked the legitimacy of military leadership and the lawfulness of their orders.”
The letter said Kelly’s remarks “prejudice good order and discipline” and “bring dishonor to the officer corps.”
Outside the courtroom Tuesday, Kelly condemned the censure and framed the dispute as part of a broader pattern.
“There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government,” Kelly said. “That’s what I’m fighting for.”
He added that Hegseth’s actions were not isolated.
“Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator,” Kelly said. “Since taking office, this administration has repeatedly gone after First Amendment rights of many Americans.”
