Judge: Pentagon ‘trampled’ Kelly’s free speech with demotion threat

A federal judge issued a preliminary injunction Thursday, blocking the Department of Defense from downgrading Arizona Democratic Sen. Mark Kelly’s rank as a retired Navy captain for appearing in a video where he and other lawmakers reminded members of the military they aren’t required to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court wrote in the 29-page ruling that Defense Secretary Pete Hegseth and others named in the lawsuit have “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.”

In his scathing opinion loaded with emphasis and exclamation points, Leon 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!” 

The senior judge ruled that Kelly is likely to succeed on the merits of his case. The preliminary injunction will block Pentagon action while the case proceeds through the courts.

Leon conceded that while active military personnel are subject to “well-established doctrine” limiting First Amendment rights, “(u)fortunately 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.” 

“This Court will not be the first to do so!”

Leon was nominated by former President George W. Bush.

Leon concluded the ruling with a biting passage suggesting that “Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.” 

“If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights! Hopefully this injunction will in some small way help bring about a course correction in the Defense Department’s approach to these issues,” Leon wrote.

‘This case was never just about me’

Kelly said in a lengthy statement following the ruling that the federal court “made clear that Pete Hegseth violated the constitution when he tried to punish me for something I said.” 

“But this case was never just about me. This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out. That’s why I couldn’t let it stand,” Kelly said.

Kelly said the nation is at a “critical moment” to defend free speech.

“The First Amendment is a foundation of our democracy. It’s how we demand better of presidents like Donald Trump – whether they are jacking up the cost of groceries with tariffs or sending masked immigration agents to intimidate American communities.  

“But Donald Trump and his administration don’t like accountability. They don’t like when journalists report on the consequences of their policies. They don’t like when retired veterans question them. And they don’t like when millions of everyday Americans peacefully protest. That’s why they are cracking down on our rights and trying to make examples out of anyone they can.”

The Department of Defense did not immediately respond to a request for comment on whether it will appeal the decision.

DOD investigation

Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or national security, posted the video on Nov. 18

President Donald Trump reacted on social media a few days later, falsely claiming the video represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The Defense Department announced on Nov. 24 that it had opened an investigation into “serious allegations of misconduct” against Kelly. Officials wrote the senator could face “recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth wrote in a social media post on Jan. 5 that he had started the process to downgrade Kelly’s retirement rank as a Navy captain and his pay. 

Hegseth wrote Kelly’s “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

Kelly filed a lawsuit against the Department of Defense and Hegseth on Jan. 12, asking a federal judge to declare the effort “unlawful and unconstitutional.”

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement at the time. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Court hearing

Leon held a hearing on Kelly’s request for a preliminary injunction on Feb. 3, where he asked the attorney representing the Department of Defense how any retired member of the military who is later elected as a member of Congress, especially one that sits on the Armed Services Committee, like Kelly does, could challenge any actions taken by the Defense Department. 

John Bailey, the Justice Department attorney, contended that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Benjamin Mizer, one of the lawyers on Kelly’s team, told the judge the Defense Department’s actions represented a “clear First Amendment violation.” 

Grand jury non-indictment

The other Democratic lawmakers in the video aren’t subject to the military’s judicial system but rebuked the Justice Department Wednesday for seeking a grand jury indictment against them for publishing the video, where they told Americans in the military and intelligence communities they “can” and “must refuse illegal orders.”

“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”

Slotkin, a former CIA officer, posted a video on Feb. 5, saying she had informed U.S. Attorney General Pam Bondi and U.S. Attorney for the District of Columbia Jeanine Pirro that she wouldn’t be sitting for an interview. 

Slotkin said her letter to Bondi and Pirro also told them “to retain their records on this case in case I decide to sue for infringement of my constitutional rights.”

“To be honest, many lawyers told me to just be quiet, keep my head down and hopefully this will all just go away. But that’s exactly what the Trump administration and Jeanine Pirro want,” Slotkin said. “They are purposely using physical and legal intimidation to get me to shut up. But more importantly they’re using that intimidation to deter others from speaking out against their administration.

“The intimidation is the point and I’m not going to go along with that.”

House members 

Houlahan released her own video the same day saying she would not sit for an FBI interview and that the Democrats’ video “told the truth, it stated facts, it reiterated the law and it exercised speech explicitly protected by the First Amendment of the United States Constitution.” 

“Free speech is not a favor that the government can revoke,” Houlahan said. “It is a right and I will not surrender it, for myself or for anyone else.” 

Deluzio wrote in a social media post the following day that he would “not be intimidated by any harassment campaign” and does “not intend to sit down for a voluntary interview with DOJ or FBI officials sent to interfere with the important work I’m doing for my constituents.”

Goodlander wrote in a statement that the “Justice Department is targeting us for doing our jobs, and the aim here is clear: to intimidate, coerce, and silence us. It will not work. I will not bend the knee in the face of lawless threats and rank weaponization — I will keep doing my job and upholding my oath to our Constitution.”

Crow told CNN’s Pamela Brown last week that he was treating the FBI’s investigation as “an attempt to try to threaten, harass and intimidate political opponents.”

“(Trump’s) trying to make an example out of me and Mark Kelly and others because if he can make an example out of a member of Congress or a senator then why would everyday Americans stand up and protest and dissent? But he has chosen the wrong people.”

This story was first published by Arizona Mirror, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity.