Senator Mark Kelly’s lawsuit against Pete Hegseth challenges the Pentagon’s attempt to censure and demote him — and cut his Navy pension — over a November 2025 video in which Kelly and five other lawmakers reminded active-duty troops of their duty to refuse illegal orders. Filed January 12, 2026, in the U.S. District Court for the District of Columbia, the case argues that the Defense Secretary retaliated against Kelly for speech protected by the First Amendment and the Constitution’s Speech or Debate Clause. A federal judge blocked the discipline on February 12, 2026, and the D.C. Circuit heard the government’s appeal in May.
What Started the Case
On November 18, 2025, Kelly appeared with Senator Elissa Slotkin and Representatives Jason Crow, Chris Deluzio, Maggie Goodlander, and Chrissy Houlahan in a social-media video titled “Don’t Give Up the Ship.” All six had backgrounds in the military or intelligence community. In the video, they told service members they had a duty to refuse illegal orders and to “protect and defend the Constitution.”
Hegseth responded by accusing the lawmakers of undermining the chain of command. On November 24, 2025, the Pentagon opened an investigation into Kelly, invoking a federal statute that allows the Defense Department to recall retired service members to active duty for court-martial. Hegseth said Kelly was the only participant still under Pentagon jurisdiction because of his status as a retired Navy captain. Kelly served 24 years in the Navy, flew combat missions in Operation Desert Storm, and retired in 2011.
What the Pentagon Tried to Do to Kelly
In mid-December 2025, the Pentagon converted its review into a formal command investigation citing “serious allegations of misconduct.” On January 5, 2026, Hegseth issued a Secretarial Letter of Censure, a written rebuke placed in Kelly’s permanent military file. Hegseth called it “a necessary process step” toward demotion from Kelly’s retired rank of captain.
The censure letter accused Kelly of “conduct unbecoming an officer” and “violating good order and discipline” under the Uniform Code of Military Justice. It cited what Hegseth described as “a sustained pattern of public statements,” including Kelly’s defense of the video and his criticism of Hegseth for firing dozens of admirals and generals. Hegseth labeled the conduct “seditious” and alleged Kelly had “specific intent to counsel service members to refuse lawful orders.”
A demotion in retired rank would have reduced Kelly’s retired pay. The Pentagon initiated formal retirement grade determination proceedings under 10 U.S.C. § 1370(f) and gave Kelly 30 days to respond. As Judge Richard Leon later observed, the department was effectively using Kelly’s pension as leverage.
What Kelly’s Lawsuit Claims
Kelly’s complaint, filed as case No. 1:26-cv-00081, names Hegseth, Navy Secretary John Phelan, the Department of Defense, and the Department of the Navy. It alleges the Pentagon retaliated against him for First Amendment-protected speech and interfered with his Article I duty to oversee the armed forces as a member of Congress. Kelly sits on the Senate Armed Services Committee and the Select Committee on Intelligence.
The complaint argues that the disciplinary proceedings “trample on protections the Constitution singles out as essential to legislative independence” and would let the executive branch impose military sanctions on a sitting senator for political speech. Kelly’s team framed his statements as inseparable from his congressional oversight role, invoking the Speech or Debate Clause, which the Supreme Court has called an “absolute bar to interference” for conduct within the “legitimate legislative sphere.”
The legal terrain is largely untested. Congress has subjected military retirees to the UCMJ since 1861, but the Supreme Court has never directly ruled on the scope of that jurisdiction; it declined to take up the question in Larrabee v. United States in 2019. Military-speech doctrine generally requires a “direct and palpable connection” between the punished speech and the military’s mission. The last officer prosecuted under Article 88 of the UCMJ, which bars “contemptuous words” against the president and other officials, was Second Lieutenant Henry Howe in 1965, and Howe was on active duty at the time.
How the District Court Ruled
On February 12, 2026, Senior U.S. District Judge Richard Leon granted a preliminary injunction blocking the Pentagon from enforcing the Letter of Censure. He wrote that the court had “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.”
The government had argued that reduced First Amendment protections applicable to active-duty personnel should extend to Kelly as a retired officer. Leon rejected that: “no court has ever extended those principles to retired service members, much less a retired service member serving in Congress and exercising oversight responsibility over the military. This court will not be the first to do so!” He also rejected the argument that Kelly needed to exhaust administrative remedies through the Board of Correction of Naval Records before suing, calling the constitutional questions “clearly justiciable.”
Leon closed by suggesting that the defendants “might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions” rather than trying to “shrink the First Amendment liberties of retired service members.”
The Appeal at the D.C. Circuit
The Justice Department filed an interlocutory appeal on February 24, 2026 (case No. 26-05070). The district court stayed further proceedings on March 18, with the preliminary injunction still in force.
DOJ attorney John Bailey’s opening brief argued that Kelly, as a retired officer still subject to the UCMJ, was bound by the reduced First Amendment standards the Supreme Court set for active-duty personnel in Parker v. Levy (1974). Kelly’s attorney Benjamin C. Mizer countered that unprotected categories of speech are “few and narrow,” that Kelly was reciting a “bedrock principle of military law,” and that punishing a sitting senator for public statements would be “quite extraordinary.”
A three-judge panel — Karen LeCraft Henderson, Cornelia Pillard, and Florence Pan — heard oral arguments on May 7, 2026. Two of the three judges appeared to lean toward Kelly. Judge Pan asked Bailey whether the government’s position meant retired service members had to “give up what they’ve earned by being military service members” to speak on military policy, noting the duty to disobey illegal orders is “a textbook example — taught at West Point and the Naval Academy.” Judge Pillard questioned whether the video actually counseled disobedience of lawful orders as the government claimed. Judge Henderson appeared more sympathetic to the government.
Bailey argued that a retiree who wants to avoid military obligations must relinquish military benefits, and that Kelly’s later criticisms of administration military decisions supported the inference that he was encouraging disobedience of lawful orders as well as illegal ones. Judge Pan suggested the panel was unlikely to craft a new legal test for retiree speech and might simply affirm Leon’s rejection of applying active-duty standards to Kelly.
Why the Case Matters Beyond Kelly
Two amicus briefs framed the stakes. In January 2026, 41 former service secretaries and retired senior military officers, joined by the Vet Voice Foundation, told the district court that the duty to disobey illegal orders is a “settled principle of military administration and federal law” rooted in the Nuremberg Trials and the Defense Department’s own Law of War Manual. At the appellate stage in April, 73 former service secretaries and retired military leaders — including officers who had served under every president from Eisenhower through Trump — argued the government “cannot justify sweeping restrictions on a retiree’s speech based on the hypothetical threat of recall to active duty.” Signatories over the two briefs included former Army Secretary Louis Caldera, former Navy Secretary Sean O’Keefe, retired General George Casey Jr., and retired General Michael Hayden.
The Foundation for Individual Rights and Expression warned that accepting the government’s theory would create a “new, status-based exception to the First Amendment” reaching “retired civil servants, law-enforcement officials, intelligence personnel, or other speakers receiving pensions.” The 73-signatory brief added that the threat against Kelly had already deterred other retirees from speaking on matters of public concern.
Where Things Stand Now
As of late May 2026, the D.C. Circuit has not issued its ruling. Judge Leon’s preliminary injunction remains in full effect, blocking the censure and any demotion of Kelly’s rank or reduction of his retired pay. Proceedings in the district court are stayed pending the appeal.
A separate track — a Justice Department effort to obtain criminal indictments against all six lawmakers who appeared in the video — collapsed on February 10, 2026, when a federal grand jury declined to indict, failing to reach the 12 votes needed to find probable cause. That criminal matter is distinct from Kelly’s civil suit against Hegseth and does not affect the disciplinary proceedings at issue in this case.