Sen. Mark Kelly, D-Ariz., at left, and Defense Secretary Pete Hegseth.
Reuters
A federal judge on Thursday barred Defense Secretary Pete Hegseth from censuring Sen. Mark Kelly over the Arizona Democrat’s participation in a video reminding American military service members of their right to refuse illegal orders.
Judge Rich Leon’s order in U.S. District Court in Washington, D.C., also blocks Hegseth, for now, from reducing Kelly’s U.S. Navy rank and retirement pay as punishment for his role in the video.
Kelly retired from the Navy as a captain.
Leon said Hegseth had “trampled” on Kelly’s First Amendment free speech protections and that the senator is likely to succeed in his lawsuit challenging the Pentagon’s effort to punish him.
The preliminary injunction that the judge issued preventing that punishment could become permanent if Hegseth loses that case, as Leon strongly suggested will happen.
“This will be immediately appealed,” Hegseth said in a post on X. “Sedition is sedition, ‘Captain.’ “
The order came two days after the U.S. Attorney’s Office for D.C. tried and failed to get a federal grand jury to indict Kelly and Sen. Elissa Slotkin, D-Mich., who is a former CIA analyst, on criminal charges of seditious conspiracy related to their participation in the video along with four other members of Congress. The video was released in November.
President Donald Trump had condemned the Democrats who appeared on the video, accusing them of “SEDITIOUS BEHAVIOR, punishable by DEATH!”
“Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL,” Trump wrote on Truth Social then.
Leon, in a scathing opinion explaining his order Thursday, noted that Hegseth, in seeking to punish Kelly for his public statements as a member of Congress, relied “on the well-established doctrine that military service members enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces.”
“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,” Leon wrote.
“This Court will not be the first to do so!”
Leon also smacked aside Hegseth’s argument that a federal district court judge “is not yet competent” to decide the legal issues in Kelly’s lawsuit to block his censure.
Hegseth and the other defendants had argued that decisions about military personnel are “exempt from judicial review,” and that Kelly should be required to first go through a military appeals process to challenge his punishment, the judge noted.
“I disagree,” Leon wrote.
“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,” the judge wrote. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”
“To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” Leon said.
Kelly, in a statement posted on X shortly after the order was issued, said, “Today a federal court made clear Pete Hegseth violated the Constitution when he tried to punish me for something I said.”
“This is a critical moment to show this administration they can’t keep undermining Americans’ rights,” Kelly wrote. “I also know this might not be over yet, because Trump and Hegseth can’t admit when they are wrong.”
The Department of Justice, which is defending Hegseth and the other defendants in the lawsuit, and the Defense Department did not immediately respond to CNBC’s requests for comment.
In addition to Hegseth and the Defense Department, the defendants in the case are the Department of the Navy and Navy Secretary John Phelan.