Judge pleads with Pete Hegseth to stop 'trying to shrink' Constitution in win for Mark Kelly

12 Feb 2026, 15:51 by Matt Naham · Law & Crime

President Donald Trump salutes as he attends a military parade commemorating the Army's 250th anniversary, coinciding with his 79th birthday, Saturday, June 14, 2025, in Washington, as Secretary of the Army Daniel Driscoll, Defense Secretary Pete Hegseth, and first lady Melania Trump, watch. (AP Photo/Julia Demaree Nikhinson).

In a scorching order, a federal judge blocked Secretary of Defense Pete Hegseth's inquisition to punish Sen. Mark Kelly, D-Ariz., for telling service members "you can refuse illegal orders," calling the Trump administration's action a threat to the free speech rights of "millions" of military retirees.

Senior U.S. District Judge Richard Leon, a George W. Bush appointee, issued the ruling Thursday, just two days after it was reported that U.S. Attorney Jeanine Pirro failed to indict Kelly and five other Democrats who appeared in a video in November condemning President Donald Trump's lethal boat strikes on alleged drug smugglers in international waters.

In that video, Kelly addressed "members of the Military and the Intelligence Community" and said "our laws are clear. You can refuse illegal orders."

After Trump claimed the Democrats engaged in "SEDITIOUS BEHAVIOR, punishable by DEATH!" and said "each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL," the Defense Department, headed by Hegseth, accused Kelly of "undermin[ing] the chain of command," "counsel[ing] disobedience," and engaging in "conduct unbecoming an officer," threatening a reduction in retirement rank and pay grade for the former Navy captain.

For Leon, Kelly showed that he "easily has the balance of the equities and the public interest on his side," and is "likely to succeed on the merits" that the Trump administration unlawfully retaliated against Kelly for "unquestionably protected speech," in violation of the First Amendment.

Kelly's suit argued that the senator was merely articulating a "plain statement of blackletter law" under the Uniform Code of Military Justice when he said "you can refuse illegal orders."

Leon agreed.

"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," the judge summarized. "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!"

The judge then quoted Bob Dylan while bashing Hegseth's "trampl[ing]" of Kelly's rights and, by extension, the threat levied against "millions" of other retired military members.

Sen. Mark Kelly, D-Ariz., refutes efforts by President Donald Trump and Defense Secretary Pete Hegseth to intimidate him and other lawmakers after expressing concerns over U.S. military strikes against vessels suspected of smuggling drugs in the Caribbean, during a news conference at the Capitol, in Washington, Monday, Dec. 1, 2025 (AP Photo/J. Scott Applewhite).

"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," Leon added. "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!"

Describing one DOJ argument as "anemic" and reacting "Please! That is not the law" to another, the judge granted Kelly a preliminary injunction — in no small part because "our representative system of Government cannot function!" if lawmakers can't speak "without fear of reprisal by the Executive[.]"

The judge issued a parting plea to Hegseth to make a "course correction" away from "trying to shrink" the First Amendment.

"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," Leon said. "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."

In response to the ruling, Hegseth said, "This will be immediately appealed. Sedition is sedition, 'Captain.'"