Arizona Democratic Sen. Mark Kelly on Monday sued Secretary Pete Hegseth and the Defense Department in D.C. district court over the Pentagon’s attempt to reduce Kelly’s pension pay and rank after he appeared in a November video that urged troops to refuse unlawful orders. The lawsuit contends that Kelly’s speech was protected by the First Amendment and that the video constituted protected speech. It also argues that the Pentagon’s retaliation violated the Speech or Debate Clause that protects members of Congress for legislative activity. “In 1986, at just 22 years old, I took an oath to protect and defend the Constitution. I have fulfilled that oath every day since, but I never expected that I would have to defend it against a Secretary of Defense or President,” Kelly said in a press release. By filing the lawsuit, Kelly said he was standing up for “bedrock principles of our democracy,” including freedom of speech, separation of powers and due process. The lawsuit, which also names Navy Secretary John Phelan and his department as defendants, marks the latest action in what has become a seemingly personal and political feud between Hegseth and Kelly and could have far-reaching implications on freedom of speech and the balance of power between the executive and legislative branches. The Defense Department did not immediately respond to a request for comment. The dispute stems from the video released by Kelly and five other Democrats in Congress: Sen. Elissa Slotkin of Michigan and Reps. Jason Crow of Colorado, Chris Deluzio and Chrissy Houlahan of Pennsylvania and Maggie Goodlander of New Hampshire. Slotkin served in the CIA, while the others served in the armed forces. The video, which sought to remind servicemembers of their obligation to refuse to carry out illegal orders, became a lightning rod for criticism of the lawmakers involved, who maintained that they were not responding to a particular incident but simply restating the law. “Right now, the threats coming to our Constitution aren’t just coming from abroad but from right here at home. Our laws are clear. You can refuse illegal orders. You must refuse illegal orders,” the group said in the video, which earned a ferocious rebuke from President Donald Trump, who called it “seditious behavior” of the sort that is “punishable by death.” In November, Hegseth wrote that Kelly was being singled out because he is technically “retired” military and subject to the Uniform Code of Military Justice, unlike the others. Earlier this month, Hegseth issued a censure letter and moved to reduce Kelly’s post-retirement pay and rank of Navy captain. In the filing, attorneys for Kelly also contend that the Pentagon is violating the constitutional separation of powers, as punishing a senator through military proceedings for his political speech would give the executive branch a power over legislators that the Constitution “does not contemplate.” Additionally, they argued that punishing veterans for post-retirement conduct would “subject all of the nation’s retired veterans to an ever-present threat against their retirement.” And, they said, Hegseth violated Kelly’s due process by prejudging his actions — Hegseth has said that Kelly’s actions discredited the armed forces and were unbecoming of an officer — and deciding that Kelly would be punished before any review had occurred. Kelly has asked the court to declare Hegseth and the other defendants’ actions unlawful and nullify any punishments that the Pentagon may try to carry out.
