WASHINGTON, D.C. — Federal District Court Judge Richard Leon expressed alarm on Tuesday that the Trump Justice Department asked him to break with the new First Amendment position in order to better punish Sen. Mark Kelly (D-AZ) for speaking out against the administration.
“You’re asking me to do something that the Supreme Court has never done — that’s a bit of a stretch, isn’t it?” the George W. Bush appointee asked the Justice Department’s John Bailey.
The Trump administration tried to argue during the hearing that the weakened speech rights that apply to active-duty service members — designed to maintain obedience and discipline — should also apply to Kelly, who is now retired.
“No one has ever done this before,” Leon said.
At Tuesday’s hearing, Kelly sat in the front row wearing a bright blue suit, flanked by staff.
Leon seemed particularly troubled by Kelly’s specific situation — under new rules proposed by the Trump administration, veterans serving in Congress could be punished for criticizing the Pentagon. Defense Secretary Pete Hegseth took aim at Kelly after he appeared in a video with other members of Congress advising members of the military not to obey illegal orders. The government launched a process aimed at demoting Kelly and jeopardizing his retirement benefits.
“How should a member of the military commission do his or her job?” Leon asked a lawyer to help manage it.
He also noted that the chilling effect of the Trump administration’s stance on Kelly extended to “many other” veterans.
After the hearing, Kelly paused to make a statement to a crowd of reporters waiting outside the courthouse, melting snow dripping from overhanging flakes.
“Secretary Hegseth has reprimanded me for what I said and for my work as a U.S. senator and is now trying to demote me,” he said as a cement mixer truck roared by. “This does not occur in isolation. Since taking office, this administration has repeatedly violated the First Amendment rights of many Americans.”
