WASHINGTON — A federal circuit court announced Monday it will hold oral arguments in May to determine whether a lower court erred when it blocked the Pentagon from downgrading Arizona Democratic Sen. Mark Kelly’s retirement rank and pay for appearing in the “Don’t Give Up The Ship” video. 

The U.S. Court of Appeals for the District of Columbia Circuit’s new schedule came just days after the Trump administration requested an expedited timeline.

“In light of the public’s unusual interest in prompt disposition of this appeal, the government respectfully requests that this Court set an expedited briefing schedule that will allow the Court to hear oral argument this Term, before the Court’s summer recess,” Assistant Attorney General Brett A. Shumate wrote in a filing submitted Friday. 

The circuit court now expects the Trump administration to file a brief by March 20 explaining why it appealed the district court’s ruling and for Kelly’s legal team to file its reply brief by April 27. Attorneys for both sides would then present their oral arguments May 7. 

Karen LeCraft Henderson, nominated by President George H.W. Bush in 1990; Cornelia T.L. Pillard, nominated by President Barack Obama in 2013; and Florence Y. Pan, nominated by President Joe Biden in 2022, make up the three-judge panel that will rule on the appeal.  

90-second video

The Defense Department’s attempt to punish Kelly stems from when he and five other Democratic lawmakers posted a 90-second video last year, telling members of the military and those in the nation’s intelligence communities that they can and must refuse illegal orders. 

Kelly, a former Navy captain, was the only member of the group still subject to the military’s judicial system, leading Defense Secretary Pete Hegseth to issue a letter of censure and initiate proceedings to downgrade the senator’s retirement rank and pay. 

Kelly filed a lawsuit in January, seeking to block those efforts on several fronts, including that it violated his constitutional rights. 

“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” Kelly’s lawsuit stated. “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.”

Judge rules for Kelly

Senior Judge Richard J. Leon of the District of Columbia District Court wrote in his 29-page ruling granting Kelly a preliminary injunction that “it is a particularly valuable asset for our country to have retired veterans contributing to public discussion on military matters and policy. 

“Given their ‘distinct perspective and specialized expertise,’ it is essential for retired veterans to contribute to our ‘public discourse’ on issues of military policy. Allowing Defendants’ actions against Senator Kelly to stand would further chill the speech of these retired servicemembers and thereby ‘impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs.’”

The Department of Justice had sought a grand jury indictment against Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander for their participation in the video. But it was unsuccessful. 

WASHINGTON — The Trump administration must explain to a circuit court before the end of March exactly why it appealed a lower court’s ruling that allows Arizona Democratic Sen. Mark Kelly to keep his retirement rank and pay while a First Amendment case about the “Don’t Give Up The Ship” video plays out.

The U.S. Court of Appeals for the District of Columbia Circuit’s order gives the Department of Justice until March 30 to provide a series of documents in its appeal of the district court’s preliminary injunction.

That ruling, from Senior Judge Richard J. Leon of the District of Columbia District Court, said Defense Department officials, including Secretary Pete Hegseth, erred when trying to apply rules that affect active-duty military members to Kelly, a retired Navy Captain.  

“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” Leon wrote. “Unfortunately 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. 

DOD seeks to downgrade Kelly retirement rank

The lawsuit began earlier this year after the Defense Department began proceedings to downgrade Kelly’s retirement rank and pay for appearing in the 90-second video.

The six Democrats, all of whom are former members of the military or intelligence agencies, said in the video they understood the people working in those fields “are under enormous stress and pressure right now.” 

“Americans trust their military. But that trust is at risk,” they said. “This administration is pitting our uniformed military and intelligence community professionals against American citizens.”

They went on to say the “laws are clear” and that illegal orders can and must be refused. The video ended with them saying, “Don’t Give up the Ship,’ a long-held phrase in the U.S. Navy.

The Democrats’ video infuriated President Donald Trump, leading the Defense Department to open an investigation into Kelly.

Justice Department officials also launched an investigation into Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander.

The Justice Department failed to get a grand jury to indict the lawmakers earlier this month. 

Kelly cites effects on millions of retired veterans

Kelly wrote on social media Tuesday, after the Justice Department filed its appeal on behalf of the Defense Department, that the Trump administration didn’t “know when to quit.” 

“A federal judge told Donald Trump and Pete Hegseth that they violated my constitutional rights and chilled the free speech of millions of retired veterans,” Kelly wrote. “There is only one reason to appeal that ruling: to keep trampling on the free speech rights of retired veterans and silence dissent. I went to war to defend Americans’ constitutional rights and I won’t back down from this fight, no matter how far they want to take it.”

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.”

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.”