Federal Judge Blocks Pentagon Disciplinary Action Against Senator Kelly

"Our rules are clear. You can refuse illegal orders." — Senator Mark Kelly

A federal judge has temporarily blocked the Department of Defense from taking disciplinary actions against Senator Mark Kelly (D-Arizona), ruling that the Pentagon's efforts to censure him and reduce his military retirement rank likely violated his First Amendment rights. The case stems from a video in which Kelly and other Democratic lawmakers advised U.S. service members that they could refuse illegal orders.

Background of the Dispute

The Video

In November 2025, six Democratic members of Congress with military or intelligence service backgrounds released a video on social media. Senator Kelly stated, "Our rules are clear. You can refuse illegal orders."

The other participants included:

• Senator Elissa Slotkin (D-Michigan), former CIA analyst
• Representative Jason Crow (D-Colorado)
• Representative Maggie Goodlander (D-New Hampshire), former Navy officer
• Representative Chris Deluzio (D-Pennsylvania), former Navy officer
• Representative Chrissy Houlahan (D-Pennsylvania), former Air Force officer

The video was released amid congressional scrutiny of U.S. military operations, including strikes on alleged narco-trafficking vessels in the Caribbean and National Guard deployments.

Official Reactions

Then-President Donald Trump characterized the lawmakers' actions as "SEDITIOUS BEHAVIOR" on social media and suggested they should be arrested. Defense Secretary Pete Hegseth also described the video as "seditious" and announced the Pentagon would pursue administrative actions against Senator Kelly.

Pentagon's Actions

Censure and Rank Review

On January 5, 2026, Secretary Hegseth issued a formal letter of censure to Senator Kelly. Hegseth alleged that Kelly's statements:

• Demonstrated "specific intent to counsel servicemembers to refuse lawful orders"
• Violated provisions of the Uniform Code of Military Justice concerning conduct unbecoming an officer and maintaining good order and discipline
• Undermined the chain of command

The Pentagon also initiated a 45-day process to review and potentially reduce Senator Kelly's retired military rank from captain, which would impact his retirement pay. Senator Kelly, a retired Navy captain who served in Desert Storm and as a NASA astronaut, receives benefits from the Department of Defense.

Legal Basis

The Justice Department argued that the military is authorized to discipline service members for speech that risks undermining military discipline and good order. The department asserted that Kelly, as a retired military officer, does not possess the same free speech rights as civilians and that he had not exhausted administrative options before seeking court intervention.

Distinction Among Participants

Among the six lawmakers in the video, only Senator Kelly is a formally retired service member receiving a military pension. The other four veterans separated from their respective service branches rather than retiring, making them not subject to the Uniform Code of Military Justice in the same manner.

Legal Proceedings

Federal Lawsuit

Senator Kelly filed a lawsuit against Secretary Hegseth in mid-January 2026, alleging that the Pentagon's actions were retaliatory and violated his rights to free speech and due process. Kelly's legal team argued that Hegseth was "disciplining Senator Kelly solely for the content and viewpoint of his political speech."

Grand Jury Investigation

The U.S. Attorney's Office for Washington, D.C., sought a federal grand jury indictment against Senator Kelly and Senator Slotkin on criminal charges of seditious conspiracy. On February 10, 2026, the grand jury declined to approve charges against the lawmakers.

Preliminary Injunction

On February 12, 2026, U.S. District Judge Richard Leon issued a preliminary injunction temporarily blocking the Pentagon from implementing any punishment against Senator Kelly. In his 29-page ruling, Judge Leon stated:

The Pentagon infringed upon Senator Kelly's First Amendment freedoms... The actions constituted an impermissible form of government retaliation.

The judge noted that no court has extended First Amendment limitations applied to active-duty service members to military retirees, particularly those serving in Congress and exercising oversight responsibility over the military.

Appeal

Secretary Hegseth has filed a notice to request a review by the U.S. Court of Appeals for the District of Columbia Circuit.

Statements from Parties Involved

Senator Mark Kelly: Outside the courthouse, Kelly stated that "if any retired veteran says something the Secretary of Defense does not like, they can be punished," adding that those who have given the most in service would not be free to say what they believe.

Secretary Pete Hegseth: Hegseth stated the censure constituted a "necessary process step" toward potential proceedings, affirming that Kelly's status as a sitting U.S. Senator does not exempt him from accountability.

Senate Minority Leader Chuck Schumer (D-New York): Schumer described the Pentagon's action as political retribution.

Attorney Paul Fishman (representing Senator Kelly): Fishman cautioned the Department of Justice against re-submitting the case to a grand jury, calling such an action "a remarkable abuse of the Department's power."

Attorney Preet Bharara (representing Senator Slotkin): Bharara asserted that "The grand jury has spoken, loudly, clearly, and unanimously" and that continuing the matter "would violate clear ethical duties."

Broader Context and Legal Analysis

Speech and Debate Clause

Senator Kelly's legal team has argued that as a member of Congress, he is immune from criminal prosecution or civil lawsuits targeting his legislative activity under the Constitution's Speech and Debate Clause.

Amicus Brief

Former high-ranking military officials submitted an amicus brief expressing concern over a potential chilling effect on retired service members' speech.

Related Congressional Inquiries

The Justice Department has reportedly sent inquiries to the other five Democratic lawmakers who participated in the video.

Current Status

The preliminary injunction remains in effect while the lawsuit proceeds. Judge Leon indicated he would issue a decision on the case by February 11. The Court of Appeals has not yet issued a ruling on Secretary Hegseth's appeal.