Federal judge grills DOJ lawyers over censure of Democratic senator
A federal judge on Tuesday appeared receptive to the claim from Sen. Mark Kelly, D-Ariz., that the Pentagon is retaliating against him for protected political speech, raising concerns about potential violations of the First Amendment.
U.S. District Court Judge Richard Leon is considering whether to issue a preliminary injunction that would halt War Secretary Pete Hegseth’s efforts to reopen Kelly’s military retirement grade, a process that could result in a reduction of his pension, while the case proceeds.
"You don’t need a weatherman to see which way the wind is blowing," Leon said, invoking Bob Dylan and suggesting he needed little additional information to determine whether Kelly’s First Amendment rights were violated.
The case stems from a video posted on social media in November in which Kelly and five other Democratic lawmakers told members of the U.S. military to refuse illegal orders.
Hegseth issued a letter of censure against Kelly on Jan. 5, accusing him of undermining the chain of command, counseling disobedience, and engaging in conduct unbecoming an officer.
Kelly sued Hegseth days later, arguing the censure and effort to reopen his military retirement grade amounted to unconstitutional retaliation for protected political speech.
Kelly’s defense team argued in court that the situation is unprecedented, and that Hegseth is "openly admitting they are punishing a decorated war veteran and senator" for exercising his First Amendment rights.
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Justice Department lawyers arguing for Hegseth contended that Kelly is still subject to the Uniform Code of Military Justice as a retired officer and that his comments undermined order and discipline within the armed forces.
They also suggested an injunction from the judge could take power away from the government to administer personnel matters in its own military.
Judge Leon did not rule from the bench but acknowledged that he knew Kelly was up against looming deadlines and would make an effort to issue a ruling in the coming days.
Kelly said after the high-stakes hearing that the case is not only about his First Amendment rights, but those of all retired military personnel.
"Since taking office, this administration has repeatedly gone after the First Amendment rights of Americans," he said. "That’s not how we do things in the United States of America. We have the Constitution and the law on our side."