Judge presses DOJ lawyers for a precedent for Pentagon to punish Sen. Mark Kelly over video

A federal judge on Tuesday sharply questioned Justice Department lawyers whether there was a legal precedent for the Defense Department’s attempt to punish Democratic Sen. Mark Kelly, a frequent critic of President Donald Trump.

Kelly, a retired Navy captain and former astronaut, is seeking an injunction against the Pentagon for threatening to demote him in rank and reduce his military retirement benefits because of a video he made with other Democratic members of Congress who had served in the military or national security that urged troops not to comply with illegal orders. 

In a closed-courtroom hearing, Judge Richard J. Leon, who was nominated to the D.C. District Court by President George W. Bush, pressed the Trump administration’s legal team on whether the government had the power to take such action.

“You’re asking me to do something the Supreme Court or the DC Circuit has never done,” Leon told a Justice Department lawyer defending the Pentagon’s efforts.

Leon said he is aiming to make a decision on Kelly’s request for a preliminary injunction by Feb. 11.

The case has drawn considerable attention as a major test of the First Amendment rights of military veterans and the government’s separation of powers.

Defense Secretary Pete Hegseth accused Kelly of violating a federal law that prohibits undermining good order and discipline within the military and accused him of hiding behind his position as a U.S. senator to do so.

“A lot is at stake,” Kelly told reporters after the hearing. “I wore the uniform to defend this country, to defend the Constitution. Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States senator.”

“This administration has repeatedly gone after First Amendment rights of many Americans. That’s not how we do things here in the United States. I think folks understand that. That’s why this case is important, and in this case, we have the Constitution on our side.” 

Trump in November posted the Democratic lawmakers who appeared in the video could be prosecuted as traitors.

“Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???,” Trump wrote on Nov. 20 following the release of the Democrats’ video aimed at service members. 

In the video, Kelly and the other Democrats did not provide specifics on what orders they were referencing. At the time, the Pentagon was overseeing a military campaign in the Caribbean Sea and eastern Pacific Ocean that killed at least 126 suspected drug smugglers. Legal experts have widely questioned the use of the military to kill the alleged drug traffickers, rather than prosecute them in federal courts.  

In court documents, lawyers for the Trump administration alleged Kelly doesn’t have the same right to free speech as civilians because of his status as a retired officer. The Justice Department also noted that the senator hasn’t exhausted his administrative options yet. 

“This case is not about legislative independence or freedom of speech in civilian society. Instead, this case involves a retired military officer who seeks to use his military status as a sword and his legislative position as a shield against the consequences of his actions in military personnel matters,” the Justice Department lawyers wrote on Hegseth’s behalf. 

Among the Democrats who participated in the video, Kelly is the only former service member to reach active-duty retirement, which requires 20 years of service. Kelly, who flew combat missions during Operation Desert Storm in Iraq, still receives benefits from the Defense Department, which Hegseth oversees.

Kelly says the move by Hegseth is political retribution. 

“Pete Hegseth’s 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, the Secretary of Defense doesn’t like. You will be censured, threatened with demotion, or even prosecuted,” Kelly said in a Jan. 12 Senate floor speech.