Sen. Mark Kelly, D-Ariz., takes his seat during a Senate Armed Services Committee hearing on January 15.
Tom Brenner/Getty Images
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Tom Brenner/Getty Images
A federal judge in Washington, D.C., has granted Sen. Mark Kelly’s request for a preliminary injunction against Pete Hegseth, in a lawsuit filed by the Arizona Democrat accusing the defense secretary of trying to punish him for his political speech.
Kelly, a former Navy Captain, sued Hegseth in January, one week after the defense secretary moved to formally censure him for participating in a video where he and several Democratic lawmakers told U.S. servicemembers they can refuse illegal orders.
“Our rules are clear. You can refuse illegal orders,” Kelly says in the video.
Hegseth has labeled Kelly’s statements as “seditious” and announced a review of his retirement grade, which could lead to a demotion in rank and reduction in retirement pay.
Defense Secretary Pete Hegseth arrives on Capitol Hill for a classified briefing with senators on the situation in Venezuela on January 7.
J. Scott Applewhite/AP
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J. Scott Applewhite/AP
In his lawsuit, Kelly’s lawyers argue that those actions are “unconstitutional and legally baseless.”
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the suit reads. “That prohibition applies with particular force to legislators speaking on matters of public policy.”
The ruling was issued by Judge Richard Leon, a George W. Bush appointee on the U.S. District Court for the District of Columbia.
“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 wrote in his opinion. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”
Kelly was one of six Democratic lawmakers to participate in the video, which was released on social media in November amid concerns from Democrats in Congress about the legality of U.S. military strikes on alleged narco-trafficking boats in the Caribbean.
The video drew a furious response from President Trump, who in a post on social media called it “SEDITIOUS BEHAVIOR, punishable by DEATH!” Trump also said the lawmakers — all with military or intelligence backgrounds — “should be ARRESTED AND PUT ON TRIAL.”
Federal prosecutors attempted to indict the lawmakers, but a grand jury in Washington, D.C., ultimately rejected the effort, according to a source familiar with the matter who was not authorized to speak publicly.
“Trump and his Administration want to make an example out of me so they can scare Americans like you and keep you from speaking out against him,” Kelly wrote in a post on X after the grand jury’s decision.
“The most patriotic thing any of us can do right now is to keep speaking up.”
It is not clear what charges prosecutors attempted to bring against the lawmakers. Previously the Justice Department had declined to “confirm or deny the existence of an investigation” into either Democrat.
