In a lawsuit against Secretary of Defense Pete Hegseth, the Department of Defense, the U.S. Navy and its secretary, Democratic Sen. Mark Kelly of Arizona is asking a federal judge to declare Hegseth’s censure of the Arizona senator — and a forthcoming proceeding that could dock the Navy veteran of his rank and retirement pay — as unlawful and unconstitutional.
The complaint, filed Monday in federal district court in the District of Columbia, alleges Hegseth is disciplining Kelly “solely for the content and viewpoint of his political speech” over statements the senator made in a video message last year, when he reminded active-duty service members of their duty to disregard unlawful orders.
That speech, Kelly argues in the complaint, is explicitly protected by the First Amendment — for average citizens, and particularly for legislators commenting on matters of public policy.
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” according to the complaint. “Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”
In a statement, Kelly said the censure and pending 45-day review also sends a chilling message to all service-members.
“Pete Hegseth wants our longest-serving military veterans to live with the constant threat that they could be deprived of their rank and pay years or even decades after they leave the military just because he or another Secretary of Defense doesn’t like what they’ve said,” Kelly said. “That’s not the way things work in the United States of America, and I won’t stand for it.”
Disobeying illegal orders
The Pentagon launched its investigation of Kelly, who served for roughly 25-years as a Navy pilot, after the senator and five other members of Congress posted a video in November titled “Don’t Give Up the Ship.”
In it, Kelly and others plainly state to active-duty military that the law is clear: “You can refuse illegal orders. …You must refuse illegal orders.”
According to the complaint, those comments aren’t controversial, but a “plain statement of blackletter law.” Hegseth himself embraced this core principle a decade ago, the complaint notes.
But earlier this year, Hegseth issued a letter censuring Kelly for having “undermined the chain of command” and initiated the proceedings to reconsider the rank and pay the senator earned upon his retirement nearly 15 years ago.
The results of that review, Kelly argues in the complaint, are inevitable given Hegseth and President Trump’s public accusations that the senator is guilty of sedition and treason.
“The Constitution does not permit the government to announce the verdict in advance and then subject Senator Kelly or anyone else to a nominal process designed only to fulfill it,” the complaint states.
The complaint states that Kelly must be vindicated now, “before the Senator is forced to submit to an unconstitutional and legally baseless proceeding.”
Protected free speech
Kelly also argues the Pentagon investigation is retaliation, not just for his November video statement, but for the senator’s efforts at congressional oversight of the Trump administration’s military actions.
Kelly serves on the Senate Armed Services Committee and the Select Committee on Intelligence, and in that role has been critical of Trump’s deployments of the National Guard to various U.S. cities, as well as the administration’s boat strikes in the Caribbean Sea and Pacific Ocean.
In media appearances, Hegseth has confirmed that he chose to censure Kelly after evaluating a host of statements, “not just that one video.”
Kelly’s remarks, the complaint states — “reminders to servicemembers of their duty to refuse unlawful orders… criticism of military leadership for ‘firing admirals and generals’... and concerns that certain military operations may be illegal" — all fall under protected political speech.
Beyond Kelly’s right to voice his opinion, the complaint states that Hegseth and the Pentagon’s review threaten his ability to conduct business as a legislator and violate Kelly’s “presumptive immunity” for official acts.
Kelly is seeking a temporary restraining order and preliminary injunction halting the effect of Hegseth’s censure and the proceedings reviewing his retirement grade.
