Body
A federal judge on Tuesday questioned the Pentagon’s legal justification for censuring sitting Sen. Mark Kelly, a retired Navy pilot who joined a videotaped appeal to troops to resist unlawful orders from the Trump administration. U.S. District Judge Richard J. Leon, who was hearing arguments in court, said he knows of no U.S. Supreme Court precedent that would support the Defense Department’s punishment of a sitting senator. Leon did not immediately rule on Kelly’s request to block the Pentagon from punishing him, and he said he hopes to issue a decision by next Wednesday.
The case put Kelly’s First Amendment free speech argument at the center of the hearing. Kelly attended as his attorneys urged Leon to stop the Pentagon from proceeding with its censure, which Defense Secretary Pete Hegseth linked to potential consequences affecting Kelly’s retired status. Leon, nominated to the bench by Republican President George W. Bush, also raised concerns about whether the Pentagon’s approach could chill speech by other retirees who want to voice their opinions, according to the hearing account.
Leon’s skepticism surfaced during questioning of the government’s attorney, Justice Department lawyer John Bailey. Leon told Bailey, “You’re asking me to do something the Supreme Court has never done,” and asked, “Isn’t that a bit of a stretch?” Bailey defended the Pentagon’s position by arguing that Congress decided retired military service members are subject to the Uniform Code of Military Justice in the same way as active-duty troops.
Bailey said, “Retirees are part of the armed forces,” adding that “They are not separated from the services.” Kelly’s lawyer Benjamin Mizer responded that the defense had not identified any ruling supporting the government’s argument that military retirees have “diminished speech rights.” Mizer also told the court that the First Amendment protects Kelly’s speech in this case, and argued that “And any other approach would be to make new law.”
In the underlying dispute, Leon’s hearing followed a decision by the Pentagon to investigate Kelly that began in late November. The Pentagon cited a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment. The Pentagon’s actions drew attention after Kelly and five other Democratic lawmakers appeared in a 90-second video urging troops to uphold the Constitution and not follow unlawful military directives from the Trump administration.
Republican President Donald Trump later accused the lawmakers of sedition “punishable by DEATH” in a social media post, and Hegseth said in response that Kelly’s censure was “a necessary process step” to proceedings that could result in a demotion from the senator’s retired rank of captain and a reduction in retirement pay. The video was first posted on a social media account belonging to Sen. Elissa Slotkin, with Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan also appearing. The participants, the report said, are veterans of the armed services or intelligence communities.
Hegseth said Kelly was the only one of the six lawmakers to be investigated because he is the only one who formally retired from the military and still falls under the Pentagon’s jurisdiction. After the hearing, Kelly shook hands with two government attorneys.