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By Gabe Whisnant
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A federal judge on Tuesday questioned whether the Pentagon has legal authority to censure Democrat Mark Kelly, a sitting U.S. senator who appeared in a video urging service members to resist unlawful orders from the Trump administration.
U.S. District Judge Richard Leon, appointed to his post by former Republican President George W. Bush, said he was unaware of any U.S. Supreme Court precedent that would justify punishing Kelly, a retired Navy pilot, for his participation in the recording. The Arizona Democrat attended the hearing as his attorneys asked Leon to block the Pentagon from taking disciplinary action against him.
Leon warned that disciplining Kelly could have broader implications beyond the senator’s case.
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“The chilling effect of this kind of action will be on many, many other retirees who wish to voice their opinion,” the judge said.
Leon did not immediately rule from the bench but appeared skeptical of the government’s position that military retirees can face punishment for political speech. Leon said he hopes to issue a ruling by next Wednesday.
Pentagon Singles Out Kelly
The Pentagon launched an investigation into Kelly in late November, citing a federal statute that allows retired service members to be recalled to active duty for possible court‑martial or other disciplinary action.
Defense Secretary Pete Hegseth formally censured Kelly on January 5, calling the move “a necessary process step” toward possible penalties that could include reducing Kelly’s retired rank of captain and cutting his military retirement pay.
Hegseth has said Kelly was the only lawmaker investigated because he is the only one who formally retired from the military and remains subject to Pentagon jurisdiction.
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Pentagon Defends Authority Over Retirees
Justice Department attorney John Bailey argued that Congress has determined retired service members remain subject to the Uniform Code of Military Justice, which governs active‑duty troops.
“Retirees are part of the armed forces,” Bailey told the court. “They are not separated from the services.”
Leon pushed back on that argument, telling Bailey that the Pentagon was asking the court to take a step the Supreme Court has never endorsed.
“You’re asking me to do something the Supreme Court has never done,” Leon said. “Isn’t that a bit of a stretch?”
Newsweek reached out to the DOJ via email on Tuesday night for comment.
Kelly Cites First Amendment Protections
Kelly’s attorneys countered that there is no legal basis for limiting the free speech rights of military retirees, particularly when they speak in a civilian or political capacity.
Benjamin Mizer, one of Kelly’s lawyers, said they were unaware of any ruling supporting the idea that retired service members have diminished First Amendment protections.
“And any other approach would be to make new law,” Mizer said, arguing that Kelly’s comments are clearly protected political speech.
Video Prompts Investigation and Censure
The dispute stems from a 90‑second video posted in November in which Kelly and five other Democratic lawmakers urged military personnel to uphold the Constitution and reject unlawful orders.
All six lawmakers appearing in the video are veterans of the armed services or intelligence community. The video was first shared on a social media account belonging to Sen. Elissa Slotkin of Michigan and also featured Reps. Jason Crow of Colorado, Chris Deluzio of Pennsylvania, Maggie Goodlander of New Hampshire and Chrissy Houlahan of Pennsylvania.
Days after the video surfaced, Republican President Donald Trump accused the lawmakers of sedition in a social media post, calling their actions “punishable by DEATH.”
This article includes reporting by the Associated Press.
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