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 — 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!”