WASHINGTON, D.C. (The Washington Post) — Sen. Mark Kelly filed a lawsuit Monday seeking to reverse Defense Secretary Pete Hegseth’s letter of censure and effort to potentially demote the retired Navy officer — sharply escalating a confrontation between the Arizona Democrat and President Donald Trump’s Pentagon chief over a video reminding U.S. service members they can refuse illegal orders.
In the lawsuit filed in D.C. federal court, Kelly’s lawyers argued that the Pentagon’s inquiry and formal reprimand, unlawfully punished the senator for his speech and violated his due process.
“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,” the lawsuit states.
The Pentagon said it was aware of the lawsuit but otherwise declined to comment.
Next steps in the case, which was assigned to Judge Richard J. Leon, an appointee of President George W. Bush, could come quickly. The Pentagon directed Kelly to respond by Jan. 20 to a query from the board of military officers whom Hegseth tasked with determining whether the senator will be demoted in retirement. Kelly’s attorneys have asked the court for a preliminary injunction that would pause that process while the lawsuit goes forward.
It’s possible the judge will decide that the court does not have jurisdiction in the case and instead direct Kelly to first exhaust his appeals within the military justice system, said Sean Timmons, a former Army attorney and a managing partner at the law firm Tully Rinckey. Timmons, who is not directly involved in the case, has followed the matter closely.
But there’s also a chance, Timmons said, that the unprecedented nature of the case could raise such significant questions about the U.S. government’s separation of powers that it will end up at the Supreme Court.
“This case is important in determining what is and what is not acceptable when it comes to the extent of the authority to take action against anyone in the military for political speech,” Timmons said.
Last week, Hegseth sent a letter of censure to Kelly, criticizing what he called the senator’s “reckless misconduct” for joining five other Democratic lawmakers who served in the U.S. military or intelligence community in making a video that reminded service members of their duty under military law to disobey illegal orders. The lawmakers have said they made the video in response to some of the Trump administration’s legally controversial uses of the military, including its deadly attacks on alleged drug traffickers in Latin America and the deployment of troops to major American cities run by Democrats.
Hegseth also told the senator that the Pentagon was opening a proceeding into whether Kelly’s last military rank and his pension should be reduced.
The administrative punishment fell short of the most aggressive option: recalling Kelly to active duty and charging him under the Uniform Code of Military Justice. But Hegseth’s letter warned that criminal charges were possible if Kelly continued to “engage in conduct prejudicial to good order and discipline.”
The FBI also is involved in the matter.
Democrats, some Republicans and many legal experts have criticized the inquiry as a specious attack on an outspoken critic of the Trump administration, who also oversees the Pentagon as a member of the Senate Armed Services Committee.
In a statement Monday, Kelly said Hegseth’s actions would saddle other veterans 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.”
