Judge Richard Leon questioned a bid to punish Sen. Mark Kelly through military administrative action, calling the legal theory unprecedented and legally dubious. The dispute grew out of a November video in which Kelly urged service members to refuse illegal orders; the clip prompted a Pentagon inquiry because Kelly is a retired Navy captain. Kelly’s lawyers say the move would punish protected congressional speech and violate separation of powers; the judge signaled he may block the action and could issue a temporary ruling next week.
Judge Questions Pentagon-Backed Effort To Punish Sen. Mark Kelly, Calls Legal Theory 'Unprecedented'
Andrzej Iwanczuk/NurPhoto via Getty Images
A federal judge on Tuesday sharply questioned an effort led by Pete Hegseth to use military administrative processes against Sen. Mark Kelly, calling the legal theory behind the move unprecedented and “a bit of a stretch.” The hearing, presided over by D.C. District Judge Richard Leon, underscored constitutional concerns about separating military authority from protected political speech.
Judge Flags Constitutional And Precedent Concerns
“You’re asking me to do something that the Supreme Court has never done,” Judge Leon told lawyers during a preliminary hearing, according to the New York Times. He warned that allowing the action to proceed could threaten the free-speech rights of many retirees who wish to voice political opinions.
Kelly's under fire for reminding active service personnel they don't have to obey illegal orders. / Tom Williams/CQ-Roll Call, Inc via Getty Images
“Any decision not to block this would risk endangering many, many other retirees who wish to voice their opinion,” the judge said.
Background: Video, Reaction And Investigation
The dispute stems from a November video in which Sen. Mark Kelly encouraged service members to refuse unlawful orders. The clip drew fierce criticism from conservatives. Pete Hegseth called the video “despicable, reckless, and false,” and President Donald Trump publicly demanded severe punishment for lawmakers featured in the clip.
Because Kelly is a retired Navy captain and therefore remains subject to certain aspects of military jurisdiction, the Pentagon opened an inquiry into whether his remarks violated military law. In January, Hegseth issued a formal censure of Kelly and initiated administrative steps seeking to demote the senator and reduce his military pension.
Trump has suggested Kelly and his colleagues ought to be executed for
Legal Arguments And Next Steps
Kelly, a 61-year-old former combat pilot who later flew for NASA, attended Tuesday’s hearing. His attorneys argue the administration is attempting to punish a sitting member of Congress for constitutionally protected speech and that the move violates the separation of powers.
Judge Leon, who was appointed by President George W. Bush, appeared sympathetic to that argument at the preliminary hearing and indicated the court could issue a temporary ruling as soon as next week. No final decision was announced at the hearing.
Outreach: The Daily Beast said it has contacted the Pentagon and Kelly’s representatives for comment.
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