Judge Temporarily Blocks Hegseth From Punishing Mark Kelly Over ‘Illegal Orders’ Video

Judge Richard J. Leon found that attempts to discipline Mark Kelly for a video that warned against following illegal orders would violate the senator’s First Amendment rights.

A federal judge on Thursday temporarily blocked Defense Secretary Pete Hegseth from punishing Senator Mark Kelly, Democrat of Arizona, for participating in a video that warned active-duty service members not to follow illegal orders.

Judge Richard J. Leon of the District Court for the District of Columbia wrote in a 29-page opinion that the Defense Department’s move to discipline Mr. Kelly, a retired Navy captain and former astronaut, ran roughshod over his freedom of speech. Judge Leon barred Mr. Hegseth and the Pentagon from taking any steps to reduce the senator’s retirement rank and pay, or using the findings against Mr. Kelly in a criminal proceeding.

“Rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our Nation over the past 250 years,” he wrote. “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”

The blunt ruling came after a grand jury in Washington rejected an extraordinary attempt by federal prosecutors in Washington to secure a criminal indictment against Mr. Kelly and five other Democratic lawmakers who together released a video in November directed at members of the military and intelligence community.

“Our laws are clear,” Mr. Kelly said in the video. “You can refuse illegal orders.”

The message enraged President Trump, who accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The decision on Thursday came after Mr. Kelly sued Mr. Hegseth and the Defense Department for censuring him and initiating a military review of the senator’s public statements that could result in a reduction of his retirement rank and pension.

The Justice Department had argued that the video, and public statements by Mr. Kelly criticizing Mr. Hegseth for firing admirals and generals and surrounding himself with “yes men,” undermined military discipline.

But Judge Leon, a nominee of President George W. Bush, wrote that Mr. Kelly was acting within his role as a member of the Senate Armed Services Committee, exercising oversight authority over the defense secretary, and that attempts to penalize him through military channels appeared to be a tactic to skirt review by the courts.

Mr. Hegseth said the Defense Department would immediately appeal the judge’s decision. “Sedition is sedition, ‘Captain,’” the defense secretary added in a social media post directed at Mr. Kelly.

Read the ruling

The Defense Department's effort to punish Senator Mark Kelly, Democrat of Arizona, infringed upon the senator's First Amendment rights, wrote Judge Richard J. Leon of the District Court for the District of Columbia.

Read Document 29 pages

The government had argued that the beginning of the proceedings against Mr. Kelly was not reviewable by normal courts outside the military’s internal administration, and that Mr. Kelly could not preemptively challenge a military punishment until after it was determined that he would face discipline.

Judge Leon dismissed that assertion, writing that attempts to constrain Mr. Kelly to a military process were designed to ensure that “the military can have the first crack at adjudicating his First Amendment rights.”

“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” he 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!”

Lawyers for the senator argued in their complaint that the defense secretary was trying to punish Mr. Kelly “solely for the content and viewpoint of his political speech.”

Judge Leon’s ruling followed a hearing last week in which he told lawyers for the Defense Department that they were asking him to create a new precedent and extend the free speech restrictions commonly applied to active-duty service members to a retired officer.

“You’re asking me to do something that the Supreme Court has never done,” the judge said in the hearing.

He blocked the Defense Department from continuing its administrative action against Mr. Kelly until after the court could fully adjudicate the matter. The judge has said he is aware of the high-profile nature of the case and that any decision he makes will be appealed.

“This case was never just about me,” Mr. Kelly said in a statement. “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.”

Judge Leon did not address whether Mr. Kelly’s statements were shielded from military discipline by the section of the Constitution that protects House and Senate members’ speech. The Justice Department had argued in a filing that it applied narrowly to legislative work, and could not be relied on to defend the senator’s social media posts or news media interviews.

The judge appeared skeptical of that claim last week, but said he would hear arguments on the “speech or debate” clause at a later hearing.

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