A federal judge has openly questioned the Pentagon’s effort to discipline Democratic Senator Mark Kelly of Arizona, expressing deep skepticism about whether the Trump administration can lawfully penalize a retired military officer for public political speech. The case centers on a video in which Kelly and five other Democratic lawmakers urged U.S. service members to refuse unlawful military orders — remarks that have since triggered a high-profile legal battle over free speech, civilian oversight of the military and the limits of executive power.
During a court hearing on Tuesday, Richard Leon, a judge of the U.S. District Court in Washington, appeared unconvinced by the government’s arguments that speech restrictions traditionally applied to active-duty officers can be extended to retired service members. Leon repeatedly challenged Justice Department lawyers on whether there is any legal precedent for such a move, signaling concerns that the Pentagon may be venturing into uncharted constitutional territory.
Kelly, a retired Navy captain and former astronaut, filed suit in mid-January against Defense Secretary Pete Hegseth, accusing the Pentagon of targeting him with what his legal team describes as politically motivated retaliation. The lawsuit followed a series of actions taken after the release of the video last November, in which Kelly and his colleagues warned military personnel that they have a duty to refuse unlawful commands.
According to court filings, Kelly received a formal letter of censure in early January from Hegseth. The letter asserted that the senator’s comments undermined the military chain of command, encouraged disobedience among troops and constituted conduct unbecoming of an officer. Shortly afterward, the Navy notified Kelly that it would re-evaluate his retirement pay grade — a step that could result in reduced benefits and symbolic demotion.
At Tuesday’s hearing, Judge Leon focused sharply on the government’s core legal theory. Justice Department attorneys argued that because retired officers remain subject to certain military regulations, restrictions on their speech can be justified in the name of discipline and order. Leon appeared unconvinced, pressing the government to cite any prior case where such reasoning had been upheld.
“That’s never been done,” Leon told the Justice Department’s attorney, noting that the government had failed to produce a single example supporting its position. He added that the court was being asked to extend military speech restrictions in a way even the Supreme Court has never endorsed, calling the argument a significant stretch.
Kelly’s legal team countered that the Pentagon’s actions represent a clear violation of the First Amendment. One of his attorneys, Ben Mizer, a former senior Justice Department official, told the court that punishing Kelly for political speech not only infringes on his rights as a private citizen but also risks silencing millions of retired veterans across the country.
Mizer argued that the government’s approach could create a chilling effect, discouraging former service members from speaking out on matters of national importance for fear of financial or reputational consequences. He emphasized that Kelly’s comments were made in his capacity as a sitting U.S. senator, not as an officer issuing commands.
The lawsuit also raises constitutional issues unique to Kelly’s role in Congress. His attorneys contend that, as a lawmaker, he is protected under the Constitution’s Speech and Debate Clause, which shields members of Congress from legal or administrative punishment related to their legislative activities. They argue that the Pentagon’s actions amount to an attempt by the executive branch to intimidate a member of Congress for expressing dissenting views.
The Justice Department, however, urged the court to dismiss the case on procedural grounds. Government lawyers argued that Kelly has not exhausted administrative remedies available through military review boards and that the actions taken against him are not final, making the lawsuit premature. Kelly’s team rejected that claim, pointing to what they described as clear bias expressed by Hegseth himself.
Mizer told the judge that the defense secretary’s public statements demonstrate that he has already made up his mind about Kelly, undermining the idea that any internal review would be fair or impartial. Judge Leon appeared to take those concerns seriously, indicating that he would consider the issue carefully and aim to issue a ruling by February 11.
Outside the courthouse, Kelly thanked the judge for moving quickly, saying the case touches on fundamental constitutional principles. He told reporters that he believes the Constitution is firmly on his side and that the outcome will have implications far beyond his own situation.
The dispute stems from the broader political context surrounding the video released last year. The message from Kelly and the other lawmakers came as the Trump administration faced intense criticism over U.S. military strikes against suspected drug vessels, actions that some legal experts and Democratic lawmakers argued amounted to unlawful extrajudicial killings. The video urged service members to uphold the law even in the face of controversial orders.
Kelly is one of six Democratic members of Congress who appeared in the video. The Justice Department has since sent inquiries to the other participants, prompting accusations from the lawmakers that the administration is attempting to intimidate and silence critics through legal pressure.
As Judge Leon weighs the arguments, the case has become a flashpoint in a broader debate over civil-military relations, free speech and the rights of retired service members who continue to play prominent roles in public life. His forthcoming decision is expected to clarify whether the Pentagon’s authority extends as far as the administration claims — or whether it has crossed a constitutional line that the courts are unwilling to accept.
