A federal judge temporarily blocked Defense Secretary Pete Hegseth on Thursday from censuring Sen. Mark Kelly or reducing his military pension over a video reminding troops to “refuse illegal orders.”
U.S. District Judge Richard Leon’s preliminary injunction prevents Hegseth from taking those actions or reducing Kelly’s rank as a retired Navy captain.
Hegseth censured Kelly last month in an attempt to reduce his military rank and reduce his pension after Kelly and other veterans in Congress reminded those actively serving to disobey illegal orders in a video with five other Democratic lawmakers.
Kelly said he earned his rank and retirement through his service to his country as a combat pilot and an astronaut.
In his 29-page opinion, Leon underscored the unprecedented nature of the case, which he heard arguments on last week.
“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” the Washington, D.C.-based judge wrote. “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,” adding that “This Court will not be the first to do so!”
Leon said Hegseth’s move threatened the liberties of millions of retired veterans.
“To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”
In the video in question, published in November, Kelly and the other Democratic lawmakers admonished the Trump administration for pitting service members against U.S. citizens and told those serving that they “can refuse illegal orders” — a basic tenet of U.S. military law.
Kelly did not specify which illegal orders he was referring to, but other lawmakers from the video, like Rep. Jason Crow, said they made the remarks partly in response to President Donald Trump’s deployment of troops to major U.S. cities for crime and immigration enforcement operations.
Thursday’s ruling marked back-to-back wins for Kelly in the administration’s efforts to punish him for it, coming a day after federal prosecutors in Washington failed to persuade a grand jury to indict him and the other lawmakers on charges of seditious conspiracy.
Kelly called the ruling and the failed prosecution attempt “a critical moment to show this administration they can’t keep undermining Americans’ rights,” even as he acknowledged the administration was likely to keep up the attempts to punish him. Although all lawmakers in the video served in either the military or intelligence communities, only Kelly served long enough to formally retire and receive a pension. Hegseth, a former Army National Guard officer, had said this makes Kelly “still accountable to military justice.” Leon challenged that argument when Defense Department lawyers made it during a Feb. 3 hearing, though he acknowledged that unlike with active-duty personnel, there’s no case law confirming the First Amendment rights of military retirees. “You’re asking me to do something the Supreme Court has never done before?” he asked one of the Defense Department attorneys with mild frustration. But he also telegraphed his ruling, saying there were clear First Amendment concerns with Hegseth’s move.
Erum Salam is a breaking news reporter and producer for MS NOW. She previously was a breaking news reporter for The Guardian.
Fallon Gallagher is a legal affairs reporter for MS NOW. Recommended
