Arizona Democratic Sen. Mark Kelly outside the District of Columbia federal courthouse where his lawsuit against the Department of Defense was heard on Feb. 3, 2026. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — 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 pointed to Hegseth’s X account as official comment on the matter.

The secretary wrote about the case: “This will be immediately appealed. Sedition is sedition, ‘Captain.’”

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.”

Sen. Elissa Slotkin, D-Mich., listens as Sen. Mark Kelly, D-Ariz., speaks on the failed grand jury indictment against them during a news conference at the U.S. Capitol on Feb. 11, 2026 in Washington, D.C. (Photo by Heather Diehl/Getty Images)

WASHINGTON — Democratic members of Congress said Wednesday the Trump administration was using the “authoritarian playbook” when it tried to secure a grand jury indictment against them for releasing a video that reminded members of the military and intelligence communities they can refuse illegal orders. 

Arizona Sen. Mark Kelly and Michigan Sen. Elissa Slotkin said during a joint press conference they don’t expect this will be the last time administration officials seek to punish them for the video. They also expressed frustration and dismay that more Republicans haven’t spoken out.

“This isn’t the judicial system at work,” Kelly said. “It’s not supposed to be a president deciding right out of the gate here that members of the United States Senate should be hanged, calling for our execution. And then, I guess when he realized that was not a good idea, or somebody told him that that’s ridiculous. Then he went with prosecution for something that is in the First Amendment.”

Slotkin, a former CIA officer, said the unsuccessful attempt to convince a District of Columbia federal grand jury to indict her and the other five lawmakers in the video is not something she expected to happen in America.

“If things had gone a different way, we’d be preparing for arrest,” Slotkin said.  

The Department of Justice and the office of United States Attorney for the District of Columbia Jeanine Pirro did not respond to a request for comment. 

No word from Justice Department

Slotkin said she and the other Democrats learned about the attempt to indict them from news articles. The Justice Department didn’t reach out to say what they were trying to charge the lawmakers with or what law they allege they may have violated. 

Kelly noted during the press conference that he is waiting to learn if a federal judge will issue a preliminary injunction, blocking the Defense Department from downgrading his retirement rank and pay as a Navy captain for appearing in the video. 

Kelly, 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.

“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.”

Trump reaction, DOD investigation

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

The Defense Department opened its investigation into Kelly later that month and Secretary Pete Hegseth announced in January that officials had started the process to downgrade Kelly’s retirement rank and pay. 

Kelly filed a lawsuit shortly afterward, asking a federal court to block the Defense Department from moving forward and alleging its actions violated his constitutional rights, including the First Amendment. 

House members speak out

The four House Democrats in the video held a press conference of their own in the afternoon, criticizing the Trump administration for seeking a grand jury indictment and hinting at possible legal action of their own. 

“My lawyers just sent a letter today to the Department of Justice, putting them on notice that there will be costs,” Crow said. “We will not just sit back and let them lob false allegations after false allegations at us.”

Crow declined to answer several questions about what exactly he meant and his office did not return a request for details from States Newsroom. 

Houlahan said Trump administration officials do not get to pick which parts of the Constitution they are going to respect and which they are going to ignore, especially when criticized by members of Congress.  

“The First Amendment is not optional. It is not conditional. It does not expire because someone who’s in power is threatened by it,” Houlahan said. “It does, thankfully, limit the power of our government, especially when that power is tempted to punish lawful speech.”

Deluzio said the Trump administration’s actions show they wanted to “throw us in prison for stating the law.”

“I have little doubt that Donald Trump and those around him are willing to abuse their power. We’ve seen it with us, with other perceived political opponents,” Deluzio said. “There has to be accountability and there has to be justice. And I know that all of us will see that through.”

Goodlander said it was “truly sad and it is downright dangerous” that Trump became “so unglued by a cornerstone and completely uncontroversial principle of American law” that illegal orders should not be obeyed.

“A principle of law that was born of the hard-earned, the unparalleled tragedies of the Holocaust. A principle that has always guided us,” Goodlander said. “A principle that makes us who we are as Americans.”

Arizona Democratic Sen. Mark Kelly outside the District of Columbia federal courthouse where his lawsuit against the Department of Defense was heard on Feb. 3, 2026. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — The federal district court judge overseeing the lawsuit Arizona Democratic Sen. Mark Kelly filed against the Department of Defense said during a Tuesday hearing he expects to issue a ruling before Feb. 11. 

Kelly has asked the judge to issue a preliminary injunction blocking the Pentagon from demoting his rank as a retired Navy captain for appearing in a video where he and other members of Congress reminded members of the military they do not need to follow illegal orders. 

Senior Judge Richard J. Leon of the District of Columbia District Court said toward the beginning of the one-hour hearing that he planned to issue his decision “as quickly as possible” and told the lawyers that he didn’t “want to get too lost in the weeds” of the case at this earlier stage. 

Instead, he asked several questions about First Amendment rights in general, what protections a lawmaker holds, and whether the Trump administration was trying to expand previous court decisions regarding the military justice system to retirees. 

Leon was nominated by former President George W. Bush.

Kelly’s lawyers see a ‘First Amendment violation’

Benjamin Mizer, one of the lawyers on Kelly’s team, said “a lot about this case is unprecedented,” and urged the judge to reject the Department of Defense’s assertion that it has the legal right to demote any retired military member if they say something critical of its actions. 

Defense Secretary Pete Hegseth’s censure letter and efforts to demote Kelly, he said, represented a “clear First Amendment violation.” 

“Secretary Hegseth demonstrated bias and that he is not a decision maker who has kept an open mind,” Mizer said. 

Mizer also said that all of the cases the Trump administration had cited in briefs to the judge addressed active duty service members, not retired members of the military. He contended that the federal district court does have jurisdiction to decide this case since it addresses constitutional claims. 

Trump administration battles back

John Bailey, the Justice Department attorney representing the Defense Department in the case, said that there is “at least a military clause to the First Amendment.”

Leon interjected to ask Bailey if it wasn’t “a bit of a stretch” to ask him to expand previous court rulings about active duty service members to cover retired members, like Kelly. 

“You’re asking me to do something the Supreme Court and D.C. Circuit haven’t done,” Leon said. 

Bailey also contended that Kelly should have exhausted administrative avenues within the Department of Defense to contest Hegeth’s move to add a censure letter to his file and begin the process of demoting his retirement rank and pay. 

Leon also questioned 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. 

Bailey said that Congress has determined that certain retired military members are still subject to the Uniform Code of Military Justice. 

Later in the hearing, Bailey conceded that there are “perhaps a few unique First Amendment” aspects to the case, but said one important aspect is that Kelly hasn’t stopped speaking out against Trump administration policies he disagrees with, meaning there hasn’t been any “chill’ of his First Amendment rights. 

Leon said it may not be just Kelly who feels a chilling effect but also other military retirees who decide not to question Defense Department actions over concerns they may experience the same demotion Kelly faces. 

Leon wrapped up the hearing saying he would decide whether to grant Kelly a preliminary injunction in the “very near future … so it can be appealed.”

Kelly cites freedom of speech for military retirees

Kelly, who attended the hearing, said afterward the case is not just about his constitutional rights but the rights of “millions of retired service members.”

“There’s nothing more fundamental to our democracy than the freedom of speech and the freedom to speak out about our government, and that’s what I’m fighting for,” Kelly said. “I appreciate the judge’s quick and careful consideration in this case, given what is at stake here.”

Kelly rebuked Hegseth for trying to punish him for telling members of the military they didn’t need to follow illegal orders. 

“Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator,” Kelly said. “And this isn’t happening in isolation. Since taking office, this administration has repeatedly gone after First Amendment rights of many Americans. That’s not how we do things here in the United States.”

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Arizona Democratic Sen. Mark Kelly’s lawyers on Monday urged a federal judge to block the Defense Department from downgrading his retirement rank as a Navy captain and his pay for telling U.S. troops they aren’t required to follow illegal orders. 

Paul J. Fishman wrote in a 35-page filing that Defense Secretary Pete Hegseth’s attempt to punish Kelly for appearing in the video alongside other members of Congress violates several constitutional rights.  

“As a decorated combat veteran and member of the Senate Armed Services Committee, Senator Kelly is deeply committed to the necessity of good order and discipline in the armed forces,” Fishman wrote. “He asks this Court to reinforce, not degrade, those principles. 

“His speech—simply reminding servicemembers of their fundamental obligation not to follow unlawful orders— promotes good order. And discipline does not demand silence —particularly from those no longer serving on active duty.”

Fishman firmly rejected the Department of Justice’s assertion in a brief filed last week that the federal court system has no authority over the Defense Department’s actions in this instance. 

“Defendants begin from the premise that questions of ‘military discipline’ lie beyond judicial review,” Fishman wrote. “Their claim that this Court is ‘not permitted to address’ Senator Kelly’s challenge disregards reams of precedent reviewing military disciplinary actions and demands an untenable level of deference.”

Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, had scheduled a hearing on the issue for Wednesday, but postponed that until Feb. 3 due to the snowstorm. 

Hegseth pursues penalties

Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

The video at the center of the debate featured 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 intelligence community.

They said that Americans in those institutions “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.”

Kelly lawyer’s arguments

Fishman wrote in his brief that the Trump administration is asking the court to “embrace a novel rule” regarding the First Amendment: “that retired military veterans have no constitutional protection for their speech whenever the Secretary of Defense—in his sole discretion and without even identifying all of the speech at issue—concludes that it ‘risks undermining military discipline and good order.’” 

The Justice Department’s brief from last week, he wrote, erroneously argued that retired military officers can legally face punishment for speaking out against Defense Department policies they oppose.

“From Alexander Hamilton denouncing President Adams’s fitness to command during the Quasi-War, to modern episodes in which retired generals publicly called for Secretary Rumsfeld’s resignation over the Iraq War, retired officers have long participated forcefully in public debate over military policy,” Fishman wrote. 

“The same is true today: retired servicemembers, including Members of Congress, have openly criticized presidential decisions ranging from the Afghanistan withdrawal to vaccination requirements,” he added. “Many continue to serve with distinction as legislators, governors, and federal judges. Yet against that backdrop, Defendants assert the power to limit the First Amendment rights of more than two million retired servicemembers, all without judicial review.”

U.S. Sen. Mark Kelly, an Arizona Democrat, speaks with attendees of Kamala Harris for President campaign event in Phoenix in November 2024. (Photo by Gage Skidmore | Flickr/CC BY-SA 2.0)

WASHINGTON — The Trump administration on Thursday asked a federal judge to deny Arizona Democratic Sen. Mark Kelly’s request to halt efforts within the Defense Department to punish him for appearing in a video where he urged members of the military not to follow illegal orders.

Attorneys for the Department of Justice asserted in a 52-page brief that the administration doesn’t believe federal courts hold jurisdiction over the matter, writing “the Judiciary does not superintend military personnel decisions.”

Kelly, a retired U.S. Navy captain, “is not a private citizen and does not enjoy the First Amendment freedom of speech as if he were one when being assessed by the military in military proceedings to determine whether his conduct comports with his obligations as a retired servicemember,” the brief states. 

Kelly’s lawsuit asked a federal judge for an emergency ruling declaring the Defense Department’s attempts to demote him and reduce his military retirement pay are “unlawful and unconstitutional.”

The lawsuit alleges the Pentagon’s actions against Kelly “trample on protections the Constitution singles out as essential to legislative independence.” 

“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. ”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.”

Video rankled Pentagon

Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

The video at the center of the debate featured 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 intelligence community.

They said that Americans in those institutions “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.”

First Amendment doesn’t apply, DOJ says

Attorneys at the Justice Department, representing DOD in the case, argued in the brief they filed Thursday that no emergency relief is warranted, in part, because they believe Kelly’s First Amendment rights have not been violated. 

“Plaintiff is unlikely to succeed on his First Amendment claim because, as a retired servicemember, he has no First Amendment right to encourage other servicemembers to question the legitimacy of their military orders or to impugn their superior officers when such conduct violates his ongoing duties and obligations to the military,” the DOJ brief states. “The First Amendment is not a shield against the consequences of such violations in military personnel matters.”

Kelly’s constitutional protections as a member of the U.S. Senate under the Speech and Debate Clause of the Constitution also don’t apply in this instance, the DOJ legal team wrote. 

“A legislator’s public statements in interviews and on social media are not legislative acts protected by the Speech or Debate Clause,” DOJ wrote. 

The judge doesn’t need to issue emergency relief, the DOJ brief states, because there isn’t a separation-of-powers issue between the Executive Branch, where the Defense Department exists, and Kelly’s role as a senator in the Legislative Branch, which are considered separate but equal under the Constitution. 

Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, has scheduled a hearing on the issue for Wednesday. 

Leon could rule from the bench during those proceedings or issue a written order anytime afterward. 

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Arizona Democratic Sen. Mark Kelly sued Defense Secretary Pete Hegseth and the department on Monday for trying to demote Kelly’s retirement rank and pay after he appeared in a video where he and other lawmakers told service members they didn’t need to follow illegal orders. 

Kelly’s suit, filed in the federal district court for the District of Columbia, says attempts by the Trump administration to punish him violate the First Amendment, the separation of powers, due process protections and the Speech and Debate clause of the Constitution.

“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. “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.”

Kelly appeared in the video alongside Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander — all of whom are former members of the military or intelligence agencies, though none of the others are still subject to the military’s legal system.

President Donald Trump was irate after seeing the video, posting on social media that he believed it represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

DOD investigation

The Defense Department announced in late November that it was looking into “serious allegations of misconduct” against Kelly, a retired Navy captain, for participating in the video. 

Kelly said during a press conference on Capitol Hill in December the Defense Department investigation into him, along with one by the FBI into all of the lawmakers in the video, marked “a dangerous moment for the United States of America when the president and his loyalists use every lever of power to silence United States senators for speaking up.”

Hegseth, who originally threatened to court-martial Kelly, said in early January the Defense Department would instead downgrade his retirement rank and pay. 

“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”

Kelly said at the time he would challenge Hegseth’s course of action. 

First Amendment cited

The 46-page lawsuit marks the next step in the months-long saga, with Kelly asking a federal judge to declare the effort to demote him “unlawful and unconstitutional.”

“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the lawsuit states. “That prohibition applies with particular force to legislators speaking on matters of public policy. As the Supreme Court held 60 years ago, the Constitution ‘requires that legislators be given the widest latitude to express their views on issues of policy,’ and the government may not recharacterize protected speech as supposed incitement in order to punish it.”

The lawsuit alleges that the Pentagon’s actions against Kelly “also trample on protections the Constitution singles out as essential to legislative independence.” 

“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. ”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.”

Kelly’s legal team asked the judge to grant “emergency relief” in their favor by Friday, Jan. 16.

The case was assigned to Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush.

Arizona Democratic Sen. Mark Kelly speaks with reporters in the Mansfield Room of the U.S. Capitol building in Washington, D.C., on Monday, Dec. 1, 2025. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — The Defense Department will attempt to downgrade Arizona Democratic Sen. Mark Kelly’s retirement rank and pay, seeking to punish him for making a video along with other Democrats in Congress, who told members of the military they didn’t need to follow illegal orders. 

Defense Secretary Pete Hegseth originally threatened to recall Kelly from military retirement and court-martial him for his participation in the video, but announced Monday that the department would instead try to downgrade his rank of captain as well as his retirement pay. 

“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”

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

Kelly wrote in a social media post that he planned to challenge Hegseth’s attempt to alter his retirement rank and pay, arguing it’s an attempt to punish him for challenging the Trump administration. 

“My rank and retirement are things that I earned through my service and sacrifice for this country. I got shot at. I missed holidays and birthdays. I commanded a space shuttle mission while my wife Gabby recovered from a gunshot wound to the head– all while proudly wearing the American flag on my shoulder,” Kelly wrote. “Generations of servicemembers have made these same patriotic sacrifices for this country, earning the respect, appreciation, and rank they deserve.”

Kelly added that Hegseth’s goal with the process is to “send the message to every single retired servicemember that if they say something he or Donald Trump doesn’t like, they will come after them the same way. It’s outrageous and it is wrong. There is nothing more un-American than that.”

Constitutional protection

Members of Congress are generally protected under the speech and debate clause of the U.S. Constitution, which states that unless a lawmaker is involved in treason, felony and breach of the peace, they are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer. 

Hegseth wrote in that letter that if Kelly continues “to engage in conduct prejudicial to good order and discipline, you may subject yourself to criminal prosecution or further administrative action.”

Allegations of misconduct

The Department of Defense posted in late November that officials were looking into “serious allegations of misconduct” against Kelly for appearing in the video. 

It didn’t detail how Kelly might have violated the Uniform Code of Military Justice but stated that “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth referred the issue to Navy Secretary John Phelan for any “review, consideration, and disposition” he deemed appropriate. Hegseth then asked for a briefing on the outcome of the review “by no later than December 10.”

Kelly said during a press conference in early December the military’s investigation and a separate one by the FBI were designed to intimidate the six lawmakers in the video from speaking out against Trump. 

The lawmakers in the video, who have backgrounds in the military or intelligence agencies, told members of those 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.”

The other Democrats in the video — Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander — are not subject to the military justice system. 

Trump railed against the video a couple of days after it posted, saying the statements represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”

U.S. Sen. Mark Kelly, a retired U.S. Navy captain, speaks to veterans at a town hall in Raleigh, North Carolina, on Aug. 31, 2025. (Photo by Brandon Kingdollar/NC Newsline)

WASHINGTON — The Defense Department says it has upgraded its investigation into Arizona Democratic Sen. Mark Kelly over a video where he and other members of Congress told members of the military they didn’t need to follow illegal orders. 

“The Office of the Secretary of War, in conjunction with the Department of War’s Office of the General Counsel, is escalating the preliminary review of Captain Mark Kelly, USN (Ret.), to an official Command Investigation,” a spokesperson for the department wrote in an email Monday night. 

“Retired Captain Kelly is currently under investigation for serious allegations of misconduct,” the spokesperson continued. “Further official comments will be limited to preserve the integrity of the proceedings.”

Paul J. Fishman, an attorney at the Arnold & Porter law firm who is representing Kelly, wrote in a Monday letter to the secretary of the Navy that “there is no legitimate basis for any type of proceeding against Senator Kelly, and any such effort would be unconstitutional and an extraordinary abuse of power.”

“If the Executive Branch were to move forward in any forum—criminal, disciplinary, or administrative—we will take all appropriate legal action on Senator Kelly’s behalf to halt the Administration’s unprecedented and dangerous overreach,” Fishman wrote. 

Defense Secretary Pete Hegseth had set Dec. 10 as the deadline for the secretary of the Navy to recommend what to do about Kelly’s appearance in the video, but that came and went without any public announcements.

Hegseth also remained silent on the matter after rebuking Kelly weeks ago for posting the video where he and five other Democrats warned against illegal orders.

Kelly said on Dec. 9, one day before the deadline, he hadn’t received any information from the Navy or other administration officials. 

“Forget about an update. I haven’t heard anything from the guy,” Kelly told reporters. “That’s a good question for you guys to ask the Navy.”

The secretary of the Navy’s office did not respond to multiple requests for comment from States Newsroom. 

The Department of Defense posted in late November that officials were looking into “serious allegations of misconduct” against Kelly for appearing in the video. 

It didn’t detail how Kelly might have violated the Uniform Code of Military Justice but stated that “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” 

Hegseth referred the issue to Navy Secretary John Phelan for any “review, consideration, and disposition” he deemed appropriate. Hegseth then asked for a briefing on the outcome of the review “by no later than December 10.”

Kelly said during a press conference in early December the military’s investigation and a separate one by the FBI were designed to intimidate the six lawmakers in the video from speaking out against President Donald Trump. 

The lawmakers in the video, who have backgrounds in the military or intelligence agencies, told members of those 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.”

The other Democrats in the video — Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander — are not subject to the military justice system. 

Trump railed against the video a couple days after it posted, saying the statements represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”