A federal judge appeared skeptical Tuesday over the Pentagon’s effort to discipline Sen. Mark Kelly, D-Ariz., for comments he made urging service members not to follow unlawful military orders. U.S. District Judge Richard Leon questioned whether the Defense Department is attempting to extend speech restrictions that apply to active-duty service members to retired members, something he said has never been done.
“You’re asking me to do something that the Supreme Court has never done,” Leon said. “That’s a bit of a stretch, is it not?”
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Pentagon review targets Kelly
Tuesday’s hearing follows a 90-second video released in November. The video featured Kelly and five other Democratic lawmakers urging members of the military to reject unlawful orders.
The video was first posted on Sen. Elissa Slotkin’s account. Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan — all veterans of the armed services or intelligence community — also appeared in the video.
After the video’s release, President Donald Trump posted on Truth Social, accusing the lawmakers of sedition, saying their actions were “punishable by DEATH.”
Shortly afterward, the Pentagon ordered a review that could result in Kelly’s retirement rank being downgraded, along with a reduction in his military pay.
As of Wednesday, Kelly is the only one of the six lawmakers involved to face disciplinary action from the Pentagon.
In response, Kelly filed a lawsuit against the Pentagon, calling the review an “unconstitutional crusade.”
“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 said.
As Straight Arrow News previously reported, the lawsuit also invokes the Constitution’s Speech or Debate Clause, which protects members of Congress from executive retaliation tied to their legislative duties.
Judge weighs constitutional questions
During Tuesday’s hearing, Kelly’s attorneys argued the Pentagon’s actions amount to a “clear First Amendment violation.” Attorney Ben Mizer added that the government’s actions not only infringe on Kelly’s rights, but risk “chilling the speech of every retired veteran in this country.”
Justice Department attorney John Bailey countered that Congress has long held retired military service members are subject to the same Uniform Code of Military Justice as active-duty troops.
“Retirees are part of the armed forces,” Bailey said. “They are not separated from the services.”
Judge Leon said he expects to issue a ruling by Feb. 11, giving both sides time to appeal.
