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Arizona Democratic Sen. Mark Kelly sued Defense Secretary Pete Hegseth and the department on Monday for trying to demote Kelly’s retirement rank and pay after he appeared in a video where he and other lawmakers told service members they didn’t need to follow illegal orders.
Kelly’s suit, filed in the federal district court for the District of Columbia, says attempts by the Trump administration to punish him violate the First Amendment, the separation of powers, due process protections and the Speech and Debate clause of the Constitution.
“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him—and this or any administration—accountable,” Kelly wrote in a statement. “His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”
Kelly appeared in the video alongside Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander — all of whom are former members of the military or intelligence agencies, though none of the others are still subject to the military’s legal system.
President Donald Trump was irate after seeing the video, posting on social media that he believed it represented “SEDITIOUS BEHAVIOR, punishable by DEATH!”
DOD investigation
The Defense Department announced in late November that it was looking into “serious allegations of misconduct” against Kelly, a retired Navy captain, for participating in the video.
Kelly said during a press conference on Capitol Hill in December the Defense Department investigation into him, along with one by the FBI into all of the lawmakers in the video, marked “a dangerous moment for the United States of America when the president and his loyalists use every lever of power to silence United States senators for speaking up.”
Hegseth, who originally threatened to court-martial Kelly, said in early January the Defense Department would instead downgrade his retirement rank and pay.
“Captain Kelly has been provided notice of the basis for this action and has thirty days to submit a response,” Hegseth wrote in a social media post. “The retirement grade determination process directed by Secretary Hegseth will be completed within forty five days.”
Kelly said at the time he would challenge Hegseth’s course of action.
First Amendment cited
The 46-page lawsuit marks the next step in the months-long saga, with Kelly asking a federal judge to declare the effort to demote him “unlawful and unconstitutional.”
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the lawsuit states. “That prohibition applies with particular force to legislators speaking on matters of public policy. As the Supreme Court held 60 years ago, the Constitution ‘requires that legislators be given the widest latitude to express their views on issues of policy,’ and the government may not recharacterize protected speech as supposed incitement in order to punish it.”
The lawsuit alleges that the Pentagon’s actions against Kelly “also trample on protections the Constitution singles out as essential to legislative independence.”
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”
Kelly’s legal team asked the judge to grant “emergency relief” in their favor by Friday, Jan. 16.
The case was assigned to Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush.
This story was originally published by Stateline.
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20 Comments
The 46-page lawsuit filed by Sen. Kelly is detailed and argues that the effort to demote him is ‘unlawful and unconstitutional’, which could set an important legal precedent for future cases involving free speech and military personnel.
The fact that Secretary Hegseth originally threatened to court-martial Sen. Kelly before deciding to downgrade his retirement rank and pay instead suggests a significant escalation of the situation, which the lawsuit aims to address.
It’s worth noting that the Defense Department’s investigation into Sen. Kelly was announced in late November, and the FBI also launched an investigation into all the lawmakers in the video, which Kelly described as a ‘dangerous moment’ for the US.
The downgrade of Sen. Kelly’s retirement rank and pay, as threatened by Secretary Hegseth, could have significant implications for his benefits and reputation, making this lawsuit a critical step in protecting his rights.
The specific mention of due process protections in the lawsuit is crucial, as it questions the legitimacy of the procedures followed by the Defense Department in their investigation and subsequent actions against Sen. Kelly.
The lawsuit mentions that the First Amendment forbids the government from punishing disfavored expression or retaliating against protected speech, which is a crucial point in Sen. Kelly’s case against the Defense Department.
I support Sen. Kelly’s decision to challenge Secretary Hegseth’s course of action, as it’s essential to protect the rights of retired veterans and ensure that they can speak freely without fear of retribution.
The fact that President Trump called the video ‘SEDITIOUS BEHAVIOR, punishable by DEATH’ is alarming and highlights the intensity of the situation, with Sen. Kelly now suing the Defense Department over the penalties.
I’m skeptical about the timing of the Defense Department’s actions, coming after President Trump’s public outrage over the video, which suggests a possible political motivation behind the penalties for Sen. Kelly.
It will be interesting to see how the court balances the need to maintain military discipline with the protection of free speech, as this case has the potential to set a precedent for similar situations in the future.
It’s interesting that none of the other lawmakers in the video, including Michigan Sen. Elissa Slotkin and Colorado Rep. Jason Crow, are subject to the military’s legal system, which raises questions about the fairness of targeting Sen. Kelly specifically.
Sen. Kelly’s 25 years of military service and his current role as a United States Senator underscore the importance of resolving this issue, as it affects not only him but potentially other retired veterans who wish to speak out.
I’m curious to see how the court will interpret the Speech and Debate clause of the Constitution in relation to Sen. Kelly’s case, as it’s a crucial aspect of his lawsuit against Secretary Hegseth.
As a veteran, I appreciate Sen. Kelly’s stance on advising service members to not follow illegal orders, and I believe his actions are protected under the First Amendment, making the lawsuit a necessary step to uphold these rights.
The attempt to demote Sen. Kelly’s retirement rank and pay is a clear violation of his First Amendment rights, as it targets his speech in the video where he advised service members to not follow illegal orders.
This is a concerning precedent, as it could silence other retired veterans who speak out against the administration.
The lawsuit is a significant step in what has been a months-long saga, with Sen. Kelly now seeking a federal judge’s declaration that the effort to demote him is indeed ‘unlawful and unconstitutional’.
The statement by Secretary Hegseth that Sen. Kelly has 30 days to submit a response to the basis for the action against him adds a layer of urgency to the situation, highlighting the need for a swift resolution to this conflict.
The involvement of the FBI in investigating all the lawmakers in the video adds a layer of complexity to the situation, and it will be important to follow how their investigation proceeds in parallel to Sen. Kelly’s lawsuit.
I’m concerned about the chilling effect this could have on free speech among retired military personnel, as Sen. Kelly’s statement highlighted, where speaking out against the administration could result in censorship or prosecution.