The Pentagon’s efforts to punish Sen. Mark Kelly for appearing in a video message and urging U.S. troops not to follow illegal orders was smacked down by a judge on Thursday.
A U.S. District Court judge in Washington, D.C. wrote that the Pentagon had no jurisdiction to police the speech of retired service members in a preliminary ruling issued in the case, which hinged around Defense Secretary Pete Hegseth’s attempt to reduce Kelly’s retirement rank and pay.
The decision is just the latest defeat for the Trump administration in its failure-prone campaign to use the criminal justice system against enemies and critics of the president and his administration, and comes after previous failed efforts to prosecute the likes of former FBI Director James Comey as well as other Democrats involved in the video with Kelly. The senator sued the Trump administration in January after Hegseth’s announcement of his plans to go after Kelly.
Judge Richard Leon ruled that 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” but reminded the Pentagon’s chief that no court had ever ruled that the Pentagon would be able to exercise similar control over Americans who aren’t actively serving in the military.
His ruling continued: “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. 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!”
Kelly responded in his own statement, calling the effort to reduce his rank and pay a broader attempt to send a message to other retired service members about cricitizing the Trump administration.
“[T]his case was never just about me,” said the Arizona Democrat. “This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out.”
In November, Kelly and other Democrats released a video message to American troops amid a growing campaign by the Trump administration of military strikes targeting small vessels in the Caribbean Sea. In the video, Kelly and the other Democrats in the House and Senate state that “no one” in the U.S. armed forces or intelligence community is required to “carry out orders that violate the law”.
The video message drew an immediate furious rage from the president, who went on Truth Social and posted about members of Congress being hanged for treason for supposedly telling service members not to follow orders. Republicans in the House and Senate attempted to spin the message in a similar manner, ignoring that the members specifically spoke about unlawful orders in the video. Many dismissed the idea that the Trump administration or the president had ever, or would ever, issue an unlawful order.
“Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???” Trump posted on Truth Social.
Later on, the president reposted another user saying, ‘HANG THEM’ and also claimed the Democratic members committed “SEDITIOUS BEHAVIOR” which was “punishable by DEATH.”
Weeks later, the president directed U.S. military forces to capture the president of Venezuela, Nicolas Maduro, and began making threats against other countries including Iran, Cuba and Columbia.
But it was the “double tap” strike — a reported U.S. strike that finished off survivors of a preliminary attack against suspected drug traffickers — that rendered most of those arguments on Capitol Hill moot. Republicans on Capitol Hill were forced to confront legitimate questions, including from their own members, regarding whether the administration’s actions were legal or whether it amounted to an American war crime. The legality of the entire U.S. military campaign against drug traffickers, which previously were handled by U.S. law enforcement agencies, remains a debated topic on the Hill as well.
The White House’s efforts to transform the Justice Department into a weapon to be wielded against Trump’s enemies and the Pentagon’s efforts to punish Kelly are unpopular among Republicans on Capitol Hill, some of whom reacted publicly with relief after a grand jury declined to indict Kelly and his colleagues on Wednesday. U.S. Attorney General Jeanine Pirro led the effort, her latest failure to secure an indictment against one of Trump’s enemies in D.C.
“I think the grand jury made the right decision,” said Sen. Roger Wicker, chair of the Armed Services committee on which Kelly sits.
