U.S. Sen. Mark Kelly, an Arizona Democrat, speaks with attendees of Kamala Harris for President campaign event in Phoenix in November 2024. (Photo by Gage Skidmore | Flickr/CC BY-SA 2.0)
WASHINGTON — The Trump administration on Thursday asked a federal judge to deny Arizona Democratic Sen. Mark Kelly’s request to halt efforts within the Defense Department to punish him for appearing in a video where he urged members of the military not to follow illegal orders.
Attorneys for the Department of Justice asserted in a 52-page brief that the administration doesn’t believe federal courts hold jurisdiction over the matter, writing “the Judiciary does not superintend military personnel decisions.”
Kelly, a retired U.S. Navy captain, “is not a private citizen and does not enjoy the First Amendment freedom of speech as if he were one when being assessed by the military in military proceedings to determine whether his conduct comports with his obligations as a retired servicemember,” the brief states.
Kelly’s lawsuit asked a federal judge for an emergency ruling declaring the Defense Department’s attempts to demote him and reduce his military retirement pay are “unlawful and unconstitutional.”
The lawsuit alleges the Pentagon’s actions against Kelly “trample on protections the Constitution singles out as essential to legislative independence.”
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states. ”Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces.”
Video rankled Pentagon
Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”
The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer.
The video at the center of the debate featured Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or intelligence community.
They said that Americans in those institutions “can” and “must refuse illegal orders.”
“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”
First Amendment doesn’t apply, DOJ says
Attorneys at the Justice Department, representing DOD in the case, argued in the brief they filed Thursday that no emergency relief is warranted, in part, because they believe Kelly’s First Amendment rights have not been violated.
“Plaintiff is unlikely to succeed on his First Amendment claim because, as a retired servicemember, he has no First Amendment right to encourage other servicemembers to question the legitimacy of their military orders or to impugn their superior officers when such conduct violates his ongoing duties and obligations to the military,” the DOJ brief states. “The First Amendment is not a shield against the consequences of such violations in military personnel matters.”
Kelly’s constitutional protections as a member of the U.S. Senate under the Speech and Debate Clause of the Constitution also don’t apply in this instance, the DOJ legal team wrote.
“A legislator’s public statements in interviews and on social media are not legislative acts protected by the Speech or Debate Clause,” DOJ wrote.
The judge doesn’t need to issue emergency relief, the DOJ brief states, because there isn’t a separation-of-powers issue between the Executive Branch, where the Defense Department exists, and Kelly’s role as a senator in the Legislative Branch, which are considered separate but equal under the Constitution.
Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, has scheduled a hearing on the issue for Wednesday.
Leon could rule from the bench during those proceedings or issue a written order anytime afterward.
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