Federal Judge Blocks Pentagon from Penalizing Senator Mark Kelly Over “Illegal Orders” Video, Citing Constitutional Concerns
WASHINGTON — A federal judge on Thursday blocked the Department of Defense from pursuing disciplinary action against Senator Mark Kelly, ruling that the Pentagon’s effort to reduce the Arizona Democrat’s retired rank and pension benefits was likely unconstitutional.
U.S. District Judge Richard Leon, an appointee of President George W. Bush, granted a preliminary injunction halting the proceedings initiated by Defense Secretary Pete Hegseth. The ruling serves as a significant legal rebuke to the administration’s attempt to sanction a sitting member of Congress for political speech under the Uniform Code of Military Justice (UCMJ).
“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,” Judge Leon wrote in his opinion issued Thursday. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”
The legal battle stems from a video posted to social media in November 2025, in which Senator Kelly—a retired Navy captain and former NASA astronaut—appeared alongside five other Democratic lawmakers with military or intelligence backgrounds. In the video, the group reminded active-duty service members of their obligation to “refuse illegal orders,” a statement made amid heightened political tensions regarding the potential use of the military in domestic enforcement operations.
The video drew immediate condemnation from the White House and Pentagon leadership. President Donald Trump described the lawmakers’ comments as “seditious behavior,” and Secretary Hegseth subsequently issued a formal letter of censure to Kelly in January. Hegseth further announced the commencement of a “retirement grade determination,” a process that could have demoted Kelly on the retired list and significantly curtailed his retirement pay. The Pentagon argued that as a retiree, Kelly remained subject to the UCMJ and that his comments undermined “good order and discipline.”
However, Judge Leon rejected the government’s argument that military retirees possess significantly diminished First Amendment rights comparable to active-duty troops. During hearings earlier this month, Leon expressed skepticism at the Justice Department’s claim that the executive branch could retroactively punish a senator for speech made years after leaving active service.
In his ruling, Leon emphasized that the Pentagon’s actions could cast a “chilling effect” on the millions of veterans who participate in public discourse. “To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” Leon wrote. The judge noted that the administration was asking the court to validate an unprecedented use of military authority against a legislator, a move he described during oral arguments as “a bit of a stretch” unsupported by Supreme Court precedent.
The injunction prevents the Department of Defense from demoting Kelly or reducing his benefits while the underlying lawsuit proceeds. Kelly’s legal team, which includes former high-ranking Justice Department officials, argued that the Pentagon’s retaliation violated not only the First Amendment but also the separation of powers and the Speech or Debate Clause of the Constitution.
The Department of Defense has not yet indicated whether it will appeal the preliminary injunction to the D.C. Circuit Court of Appeals. For now, Senator Kelly retains his rank as Captain, and the disciplinary process remains frozen.
* bloomberglaw.com
* cbsnews.com
* quora.com
* azpbs.org
* theguardian.com
* yahoo.com
* military.com
* military.com
* apnews.com
* investing.com
* straitstimes.com
* lawfaremedia.org
