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.”

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!”