A federal judge agreed Thursday to block the Pentagon from punishing Democratic Sen. Mark Kelly, a former Navy pilot, for participating in a video that called on troops to resist unlawful orders.
U.S. District Judge Richard Leon ruled that Pentagon officials not only violated Kelly’s First Amendment free speech rights, but they also “threatened the constitutional liberties of millions of military retirees.” The judge invoked an old-fashioned rebuke — “Horsefeathers!” — in response to the government’s claim that Kelly is trying to exempt himself from the rules of military justice.
“To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” wrote Leon, who was nominated to the bench by Republican President George W. Bush.
Kelly, who represents Arizona, sued in federal court to block his Jan. 5 censure from Defense Secretary Pete Hegseth. Leon’s order prohibits the Pentagon from implementing or enforcing Kelly’s punishment while his lawsuit is pending. The judge instructed the parties to provide him with an update in 30 days.
In November, Kelly and five other Democratic lawmakers appeared on a video in which they urged troops to uphold the Constitution and not to follow unlawful military directives from the Trump administration. Republican President Donald Trump accused the lawmakers of sedition “punishable by DEATH” in a social media post days later.
The court case is just one front in a broader dispute that has spiraled between the group of Democratic lawmakers and the Trump administration since they posted the video. Earlier this week, a Washington grand jury declined to indict the lawmakers over the video.
Michigan Sen. Elissa Slotkin has said she has been told the Justice Department could seek a new indictment as soon as Friday. Kelly and Slotkin said at a news conference Wednesday that they are keeping all legal options on the table regarding potentially suing the administration.
Leon said that Kelly “is likely to succeed on the merits” of his free speech claim. “He has also shown irreparable harm, and the balance of the equities fall decidedly in his favor.”
Hegseth said Kelly’s censure was “a necessary process step” to proceedings that could result in a demotion from the senator’s retired rank of captain and subsequent reduction in retirement pay.
The judge concluded that Kelly’s speech is entitled to full First Amendment protection.
“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,” Leon wrote.
“If so,” he added, “they will more fully appreciate why the Founding Fathers made free speech the First Amendment in the Bill of Rights!”
The Pentagon did not immediately respond to an email seeking comment on the judge’s ruling.
Kelly said in a video statement posted after the ruling that the case was about more than just him and that the administration “was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out.”
He added that the ruling was unlikely the end: “This might not be over yet, because this president and this administration do not know how to admit when they’re wrong.”
The 90-second video was first posted on a social media account belonging to Slotkin. Reps. Jason Crow of Colorado, Chris Deluzio of Pennsylvania, Maggie Goodlander of New Hampshire and Chrissy Houlahan of Pennsylvania also appeared in the video. All of the participants are veterans of the armed services or intelligence agencies.
The Pentagon began investigating Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment. Hegseth has said Kelly was the only one of the six lawmakers to be investigated because he is the only one who formally retired from the military and still falls under the Pentagon’s jurisdiction.
Kelly’s lawyers said the Pentagon’s censure of Kelly — and its efforts to reduce his retirement grade and pay — are an unprecedented attack on the rights of veterans to publicly debate national security issues.
“Defendants assert an absolute and unreviewable authority to impose military punishment on a retired veteran and sitting United States Senator for engaging in speech a civilian political appointee dislikes. That position is as alarming as it is unprecedented,” they wrote.
Government lawyers said the case “is not about legislative independence or freedom of speech in civilian society.”
“Instead, this case involves a retired military officer who seeks to use his military status as a sword and his legislative position as a shield against the consequences of his actions in military personnel matters,” they wrote.
Hegseth, the Defense Department, Navy Secretary John Phelan and the Navy are named as defendants in the lawsuit.
Associated Press writer Ben Finley contributed to this report.
Editor’s note: This report has been updated.
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