Judge seems skeptical of legal justification for Pentagon’s punishment of Sen. Mark Kelly
By MICHAEL KUNZELMAN
WASHINGTON (AP) — A federal judge said Tuesday that he knows of no U.S. Supreme Court precedent to justify the Pentagon’s censuring of a sitting U.S. senator who joined a videotaped plea for troops to resist unlawful orders from the Trump administration.
Sen. Mark Kelly had a front-row seat in a courtroom as his attorneys urged U.S. District Judge Richard Leon to block the Pentagon from punishing the Arizona Democrat, a retired U.S. Navy pilot. Leon didn’t immediately rule from the bench on Kelly’s claims that Pentagon officials violated his First Amendment free speech rights.
But the judge appeared to be skeptical of key arguments that a government attorney made in defense of Kelly’s Jan. 5 censure from Defense Secretary Pete Hegseth.
“You’re asking me to do something the Supreme Court has never done,” the judge told Justice Department attorney John Bailey. “Isn’t that a bit of a stretch?”
Bailey argued that Congress decided that retired military service members are subject to the same Uniform Code of Military Justice that applies to active-duty troops.
“Retirees are part of the armed forces,” Bailey said. “They are not separated from the services.”
Benjamin Mizer, one of Kelly’s lawyers, said they aren’t aware of any ruling to support the notion that military retirees have “diminished speech rights.” And he argued that the First Amendment clearly protects Kelly’s speech in this case.
“And any other approach would be to make new law,” Mizer added.
Leon, who was nominated to the bench by Republican President George W. Bush, said the Pentagon’s actions against Kelly could have a chilling effect on “many, many other retirees who wish to voice their opinion.”
The judge said he hopes to issue a ruling by next Wednesday. Kelly shook hands with two government attorneys after the hearing.
In November, Kelly and five other Democratic lawmakers appeared on a video in which they urged troops to uphold the Constitution and not to follow unlawful military directives from the Trump administration.
Republican President Donald Trump accused the lawmakers of sedition “punishable by DEATH” in a social media post days later. Hegseth said Kelly’s censure was “a necessary process step” to proceedings that could result in a demotion from the senator’s retired rank of captain and subsequent reduction in retirement pay.
The 90-second video was first posted on a social media account belonging to Sen. Elissa Slotkin. Reps. Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan also appeared in the video. All of the participants are veterans of the armed services or intelligence communities.
The Pentagon began investigating Kelly in late November, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment.
Hegseth has said Kelly was the only one of the six lawmakers to be investigated because he is the only one who formally retired from the military and still falls under the Pentagon’s jurisdiction.