Democratic Sen. Mark Kelly of Arizona sued the Pentagon on Monday, seeking to block a censure issued by Defense Secretary Pete Hegseth and halt proceedings that could strip the retired Navy captain of his military rank and cut his retirement pay. Kelly, a former U.S. Navy pilot, filed the lawsuit in U.S. District Court in Washington, D.C., arguing that the Jan. 5 censure violated his First Amendment rights by punishing him for participating in a video that called on troops to refuse unlawful orders from the Trump administration.
Kelly asked the court to declare the censure, any rank-reduction proceedings, and all related punishments “unlawful and unconstitutional.” U.S. District Judge Leon, nominated by Republican President George W. Bush, scheduled a hearing for Thursday on Kelly’s request for a temporary restraining order.
The lawsuit — a sitting senator suing the defense secretary — is rare and represents the latest effort by congressional Democrats to push back against what they describe as unchecked executive-branch power over military veterans who exercise free speech.
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the lawsuit said. “That prohibition applies with particular force to legislators speaking on matters of public policy.”
The censure and its origins
The censure stemmed from Kelly’s participation in a 90-second video posted in November on a social media account belonging to Sen. Elissa Slotkin. The video featured six Democratic lawmakers — all veterans or former members of the intelligence community — calling on troops to uphold the Constitution and decline to follow Trump administration military directives if those directives were unlawful. Reps. Jason Crow, Chris Deluzio, Maggie Goodlander, and Chrissy Houlahan also appeared in the video.
Hegseth described the Jan. 5 censure as “a necessary process step” toward proceedings that could result in reducing Kelly’s retired rank of captain and cutting his retirement pay. By itself, the censure — a formal letter — carries little immediate practical consequence, according to the Associated Press.
The video was released as the Pentagon was conducting attacks on suspected drug-smuggling boats in waters near Venezuela. Those operations have killed at least 115 people, according to the AP.
Kelly is the lone target
The Pentagon opened an investigation of Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty on the defense secretary’s orders for possible court-martial or other punishment.
Hegseth said Kelly is the only one of the six lawmakers facing investigation because he is the only one who formally retired from the military and therefore remains under the Pentagon’s jurisdiction.
Defendants named in the suit include Hegseth, the Defense Department, Navy Secretary John Phelan, and the Navy. The Pentagon said it was aware of the lawsuit but “as a matter of policy, the Department does not comment on ongoing litigation.”
Kelly’s response
Kelly said Monday he is “standing up for the rights of the very Americans who fought to defend our freedoms.” He accused Hegseth of trying to suppress dissent by threatening military veterans with the loss of their rank and pay.
“That’s not the way things work in the United States of America, and I won’t stand for it,” Kelly said.
Trump had accused the six lawmakers of sedition “punishable by DEATH” in a social media post shortly after the video was released. Kelly and the other lawmakers have not withdrawn from their positions.