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.”

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 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.