WASHINGTON (AP) — A federal judge said Tuesday that he knows of no U.S. Supreme Court precedent that would justify the Pentagon’s censure of a sitting U.S. senator who joined a video calling on the military to resist the Trump administration’s illegal orders.
Sen. Mark Kelly sat in the front row of the courtroom as his lawyers urged U.S. District Judge Richard Leon to block the Pentagon from punishing the Arizona Democrat and retired U.S. Navy pilot. Leon did not immediately rule on Kelly’s claim that Pentagon officials violated his First Amendment right to free speech.
But the judge appeared skeptical of a key argument made by a government lawyer for Kelly’s Jan. 5 censure of Defense Secretary Pete Hegseth.
“You’re asking me to do something that the Supreme Court has never done,” the judge told Justice Department attorney John Bailey. “Isn’t that a bit far-fetched?”
Bailey argued that Congress decided that retired service members should be subject to the Uniform Code of Military Justice that applies to active duty service members.
“Retirees are part of the Armed Forces,” Bailey said. “They are not separated from the service.”
Benjamin Mizell, one of Kelly’s attorneys, said they were unaware of any ruling supporting the idea that military retirees have “diminished speech rights.” He argued that the First Amendment clearly protected Kelly’s speech in this case.
“Any other way is to create new laws,” Mizell added.
Leon, who was nominated to the bench by Republican President George W. Bush, said the Pentagon’s action against Kelly could have a chilling effect on “a lot of other retirees who want to have a voice.”
The judge said he hoped to rule by next Wednesday. After the hearing, Kelly shook hands with two government lawyers.
In November, Kelly and five other Democratic lawmakers appeared in a video urging the military to uphold the Constitution and not follow the Trump administration’s illegal military directives.
Republican President Donald Trump accused lawmakers in a social media post days later of inciting an insurrection “punishable by death.” Hegseth said Kelly’s censure was a “necessary step” in the proceedings and could result in a reduction in the senator’s retired captain’s rank and a subsequent reduction in retirement pay.
The 90-second video was first posted on Sen. Elissa Slotkin’s social media account. Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houulahan also appear in the video. All participants were veterans of the armed forces or intelligence services.
The Pentagon began investigating Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty at the order of the defense secretary to face possible court-martial or other punishment.
Heggs said Kelly was the only one of six lawmakers under investigation because he is the only one who has officially retired from the military and remains under Pentagon jurisdiction.
