Pentagon Can’t Punish Mark Kelly for ‘Illegal Orders’ Video (1)

Defense Secretary Pete Hegseth can’t penalize Sen. Mark Kelly over a video in which the Arizona Democrat and military veteran told service members they can refuse “illegal orders,” a Washington federal judge ruled.

In an opinion with more than a dozen exclamation points, Senior Judge Richard Leon of the US District Court for the District of Columbia on Thursday blocked the Pentagon from pursuing disciplinary action against Kelly, a former US Navy officer.

Leon found that the effort to cut Kelly retirement benefits was likely unconstitutional in violation of his First Amendment right to free speech.

“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows,’” Leon, a George W. Bush appointee wrote. “To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”

Leon also said it is a “particularly valuable asset” to have retired service members contribute to public discourse, and allowing the Pentagon’s actions to stand threatened to suppress their speech at the expense of public debate, Leon said.

He added that he hopes his injunction “will in some small way help bring about a course correction in the Defense Department’s approach to these issues.”

The Pentagon didn’t immediately respond to a request for comment.

“I appreciate the judge’s careful consideration of this case, and the clarity of his ruling,” Kelly said in a statement Thursday. “But I also know that this might not be over yet, because this President and this administration do not know how to admit when they’re wrong.”

“One thing is for sure,” Kelly added, “however hard the Trump administration may fight to punish me and silence others, I will fight ten times harder. This is too important.”

Lawmakers’ Video

The case stems from Kelly’s participation in a November video, posted on social media, alongside Sen. Elissa Slotkin (D-Mich.), a former CIA analyst, and other lawmakers who are also former members of the military or intelligence community.

“Our laws are clear. You can refuse illegal orders,” Kelly said in the video. Kelly, who has represented Arizona in the Senate since 2020, previously served as an officer and naval aviator for the US Navy. He’s also a veteran of multiple NASA space shuttle flights.

The video was posted amid increased scrutiny into President Donald Trump’s use of the military, including National Guard deployments across the country and military strikes on alleged drug smuggling boats in the Caribbean Sea.

And it drew quick backlash from Trump, who posted on Truth Social that their remarks amounted to “seditious behavior” and called for them to be arrested.

Hegseth sent Kelly a letter of censure in January finding that his public criticism of the Pentagon “undermines the chain of command” and “counsels disobedience.”

The letter also threatened criminal prosecution and states that good cause exists to consider reducing Kelly’s retirement grade, which determines his pension. The Department of the Navy then initiated those proceedings to reconsider his grade.

Kelly, represented by attorneys with Arnold & Porter, argued in a lawsuit in January that Hegseth’s action violated his First Amendment right to free speech. His legal team includes the former US attorney in New Jersey and former top lawyers for the Justice Department, the CIA, and the White House.

The Justice Department had argued in court that service members don’t have the same First Amendment protections as private citizens, and that retirees aren’t exempted from that.

“Horsefeathers!” Leon wrote in response, finding that Kelly does enjoy First Amendment protections as a retired service member.

Leon disagreed with the government’s argument that he couldn’t review Kelly’s claim until the military administrative process was completed. He said in his decision Thursday that military boards are “ill-equipped” to handle First Amendment claims like Kelly’s, and that the outcome of such a proceeding “would, in all likelihood, be a fait accompli!”

The judge had appeared skeptical of the government’s argument during a hearing this month.

Indictment effort

Leon’s decision came days after Washington federal prosecutors tried, and failed, to secure a grand jury indictment against the lawmakers involved in the video, Kelly and Slotkin said at a press conference Wednesday.

Kelly described the move Wednesday as “straight from the authoritarian playbook” and a threat to democracy.

“This is a story about how Donald Trump and his cronies are trying to break our system in order to silence anyone who lawfully speaks out against them, and to send a signal to every American that they better think twice before they speak out, or they might be next,” Kelly said.

Slotkin said earlier this month that the Justice Department opened an inquiry into her following Trump’s social media posts about the video, and that she notified Attorney General Pam Bondi and Washington US attorney Jeanine Pirro that she refused to sit for an interview.

The case is Kelly v. Hegseth, D.D.C., No. 1:26-cv-00081.