Sen. Mark Kelly (D-Ariz.) filed a lawsuit against Defense Secretary Pete Hegseth on Monday over efforts to censure the senator and lower his retirement rank after he participated in a video calling on service members to reject unlawful orders.
Kelly argues the Pentagon’s bid to reduce his retirement rank and military pension would “trample on protections” the Constitution lays out for legislative independence, contending the executive branch has never before sought to impose military sanctions on a U.S. lawmaker for engaging in “disfavored political speech.”
He asked a federal judge to block the efforts and declare them unlawful to “preserve the status of a coequal Congress and an apolitical military.”
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the complaint reads. “That prohibition applies with particular force to legislators speaking on matters of public policy.”
A Pentagon official told The Hill on Monday that the department is “aware of the litigation.”
“However, as a matter of policy, the Department does not comment on ongoing litigation,” the official said in a statement.
Hegseth’s efforts came after six Democrats shared a video online in November calling for troops to “refuse illegal orders.” Kelly participated in the video, alongside Sen. Elissa Slotkin (Mich.) and Reps. Chris Deluzio (Pa.), Maggie Goodlander (N.H.), Chrissy Houlahan (Pa.) and Jason Crow (Colo.), all of whom have either intelligence or military backgrounds.
“You all swore an oath to protect and defend this constitution,” they say in the video, which switches between their perspectives throughout. “Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home.
“Our laws are clear: You can refuse illegal orders,” they continue. “You can refuse illegal orders; you must refuse illegal orders.”
The lawmakers at the time did not specify which orders from the administration they viewed as illegal. In the complaint, Kelly points to President Trump’s deployment of National Guard members to cities and a series of lethal strikes against boats allegedly smuggling drugs.
The ongoing back-and-forth between Hegseth and Kelly kicked into higher gear last week when the Defense secretary announced the Pentagon had initiated retirement grade determination proceedings and issued a formal letter of censure.
Now it is up to Navy Secretary John Phelan to make a recommendation to the Pentagon head if a reduction in retired grade is warranted, and Hegseth will then decide if Kelly’s grade would be reduced.
Hegseth sidestepped court-martialing Kelly and has dragged the Arizona senator into untested legal waters, with some experts arguing the move is “unlawful.”
Allowing the Pentagon to proceed with the efforts would “invert the constitutional structure” by making lawmakers subordinate to executive discipline and would chill congressional military oversight, the complaint says.
Kelly suggested the Constitution’s Speech or Debate Clause, which shields lawmaker conducted carried out as part of their legislative activities, gives him immunity from many of the topics raised in Hegseth’s censure letter — from the possible commission of war crimes to the Defense secretary’s firings of admirals and generals.
The Senate Democrat also contended his due process rights were violated when Trump publicly accused him of sedition and treason and Hegseth echoed the accusations, issuing a conclusive determination about Kelly’s conduct in his letter without following any procedure.
“The Constitution does not permit the government to announce the verdict in advance and then subject Senator Kelly or anyone else to a nominal process designed only to fulfill it,” the complaint reads.
The Arizona Democrat said federal law further bars Hegseth from reopening his rank determination based on “post-retirement political speech.”
Kelly retired from the Navy with a rank of captain in 2011, after serving more than two decades that included multiple deployments.
“Each of these actions also signals to retired service members and Members of Congress that criticism of the Executive’s use of the armed forces may be met with retaliation through military channels,” the complaint reads.
Updated at 4:38 p.m. EST