A federal judge has issued a preliminary injunction, temporarily blocking the Pentagon's efforts to reduce Senator Mark Kelly's military retirement pay and rank. The actions by Defense Secretary Pete Hegseth stemmed from Senator Kelly's participation in a video advising military members on refusing unlawful orders. This legal development occurred shortly after a federal grand jury declined to indict Kelly and other lawmakers on criminal charges related to the video.
Origin of the Controversy
In November, Senator Mark Kelly (D-Ariz.), a retired Navy captain and astronaut, participated in a video alongside five other Democratic members of Congress who are military veterans. In the video, the lawmakers stated messages such as, "Our laws are clear: you can refuse illegal orders." The video was released amidst congressional discussions and legal scrutiny regarding U.S. military strikes on suspected narco-trafficking boats in the Caribbean and the deployment of federalized state National Guard members.
Following the video's release, then-President Donald Trump publicly characterized the lawmakers' actions as "seditious behavior." Senator Kelly, in response to an initial Pentagon investigation into his involvement, stated that the probe would not succeed if its intent was to "intimidate me and other members of Congress from doing our jobs."
Pentagon's Actions Against Senator Kelly
In early December, Defense Secretary Pete Hegseth initiated administrative actions against Senator Kelly. These actions included issuing a formal letter of censure and announcing a process to potentially reduce Kelly's military retirement pay and demote his retired rank of Navy captain. Hegseth characterized Senator Kelly's statements in the video as "seditious" and "reckless misconduct," asserting that they were intended to undermine good order and military discipline.
Secretary Hegseth stated that as a retired Navy captain receiving a military pension, Senator Kelly remained accountable to military justice under the Uniform Code of Military Justice (UCMJ). He alleged that Kelly's remarks violated UCMJ provisions concerning conduct unbecoming an officer and maintaining good order and discipline. Hegseth further indicated that Kelly's status as a sitting U.S. Senator did not exempt him from accountability, and future violations could lead to additional action. Kelly was given 30 days to respond to the decision.
Other Democratic lawmakers featured in the video were noted to have separated from their service branches rather than retiring. This distinction, which included Senator Elissa Slotkin (Michigan) and House Representatives Jason Crow (Colorado), Maggie Goodlander (New Hampshire), Chris Deluzio (Pennsylvania), and Chrissy Houlahan (Pennsylvania), meant they were not subject to the UCMJ in the same manner as Senator Kelly.
Senator Kelly publicly stated that his rank was earned through his combat service and as an astronaut. He characterized Hegseth's actions and the administration's stance as an effort to suppress free speech and dissent among retired military officers, describing them as "outrageous and un-American." Senate Minority Leader Chuck Schumer (D-N.Y.) condemned the Pentagon's move as "a despicable act of political retribution."
Legal Challenge and Court Proceedings
In January, Senator Kelly filed a lawsuit against Defense Secretary Hegseth in a federal court in Washington, D.C. The lawsuit alleged that the Pentagon's actions constituted an illegal attempt to demote him in retaliation for his criticism of the administration. Kelly contended that these actions violated his First Amendment rights to free speech and due process, and did not adhere to proper military procedures. His legal team argued that Hegseth lacked a legal basis to review his retirement grade based on post-retirement political speech.
In court, Justice Department lawyers, representing Hegseth, argued that the military is authorized to discipline service members, including retirees, for speech that risks undermining military discipline and good order. They maintained that Kelly's criticism was not conducted as part of his legislative duties and thus was not protected under the Constitution's Speech and Debate Clause. The department also argued that Kelly had not exhausted administrative appeals, making his lawsuit premature.
During hearings in late January, U.S. District Court Judge Richard Leon, a George W. Bush appointee, expressed skepticism regarding the Pentagon's arguments. He questioned the application of speech limitations typically reserved for active-duty military officers to retired service members like Kelly, noting a lack of historical precedent. Kelly's attorneys countered that the Pentagon's actions infringed upon his First Amendment rights and risked deterring speech from all retired veterans. They also asserted that Hegseth had demonstrated bias, making him not an impartial decision-maker.
Grand Jury Indictment Attempt
Separately, on February 10, federal prosecutors in Washington, D.C., presented a case to a federal grand jury seeking indictments against Senator Kelly and other lawmakers involved in the video on criminal charges, including seditious conspiracy. However, the grand jury declined to find the necessary probable cause, and no indictments were issued against the lawmakers.
Preliminary Injunction Issued
On February 11, Judge Richard Leon granted Senator Kelly's request for a preliminary injunction.
The ruling temporarily blocks the Pentagon from continuing its review of Kelly's retirement grade, demoting his rank, or reducing his retirement pay.
Judge Leon stated in his ruling that Secretary Hegseth's actions infringed upon Senator Kelly's First Amendment freedoms and represented an unconstitutional form of government retaliation. He concluded that Senator Kelly was likely to succeed in his lawsuit, noting that the Pentagon was targeting "unquestionably protected speech" entitled to "special protection." Judge Leon rejected the argument to extend First Amendment protection limitations from active-duty service members to retirees, especially those serving in Congress and exercising oversight responsibility over the military.
Following the ruling, Senator Kelly issued a statement, emphasizing the broader implications of the case for millions of retired veterans who might be discouraged from speaking out. Attorneys for Kelly and Senator Slotkin also formally requested the U.S. Attorney and Attorney General to refrain from seeking a second indictment, arguing that such an action would be an abuse of power, especially in light of the grand jury's decision and the federal court ruling.
The Justice Department has indicated it may appeal Judge Leon's decision.