Defense Secretary Pete Hegseth is asking an appeals court to revive a punishment against Democratic Sen. Mark Kelly after a federal judge blocked the Pentagon from enforcing it, according to a court filing. The U.S. Justice Department on Tuesday sought review by the U.S. Court of Appeals for the District of Columbia Circuit of a Feb. 12 ruling by U.S. District Judge Richard Leon.
Kelly, who represents Arizona, said in a post on X that the appeal exists to protect the government’s ability to punish speech. “These guys don’t know when to quit,” Kelly wrote, after he argued the case is about what he characterized as efforts to restrict free speech by retired service members and other critics.
Leon’s order prohibited the Pentagon from implementing or enforcing Kelly’s punishment while Kelly’s lawsuit remains pending. The ruling said Pentagon officials violated Kelly’s First Amendment rights and also “threatened the constitutional liberties of millions of military retirees,” using “Horsefeathers!” in response to the government’s argument that Kelly was trying to exempt himself from military-justice rules.
Hegseth had vowed to appeal Leon’s decision. In an X post, Hegseth wrote, “Sedition is sedition, ‘Captain,’” referring to Kelly by his former Navy rank, according to the filing and reporting described in the court documents.
The dispute traces to a video posted in November in which Kelly and other Democratic lawmakers told troops to uphold the Constitution and not follow unlawful military directives from the Trump administration. The video was first posted on a social media account belonging to Rep. Elissa Slotkin, and additional participants named in the reporting include Reps. Jason Crow, Chris Deluzio, Maggie Goodlander, and Chrissy Houlahan, along with Slotkin.
A later social media post by President Donald Trump accused the lawmakers of sedition “punishable by DEATH,” days after the video appeared, according to the same reporting. Earlier this month, a Washington grand jury declined to indict the lawmakers over the video.
Kelly sued in federal court to block a censure from Hegseth that the Pentagon sought to impose on Jan. 5. Leon’s order prevented the Pentagon from enforcing that punishment while the case proceeds, and the Justice Department’s appeal seeks to challenge the underlying basis for the block.