WASHINGTON (AP) — A federal judge said Tuesday he knows of no U.S. Supreme Court precedent that would justify the Pentagon’s censure of a sitting U.S. senator who joined a videotaped call for troops to resist illegal orders from the Trump administration.
Senator Mark Kelly had a front seat in the courtroom as his lawyers urged US District Judge Richard Leon to block the Pentagon from punishing the Arizona Democrat, a retired US Navy pilot. Leon did not 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 the main arguments a government lawyer made in defense of Kelly’s January 5 censure by 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 has 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 separate from the services.”
Benjamin Mizer, one of Kelly’s lawyers, said they are not aware of any decision that supports the idea that military retirees have “reduced 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 a 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 want to voice their opinion.”
The judge said he hopes to issue a decision by next Wednesday. Kelly shook hands with two government lawyers after the hearing.
In November, Kelly and five other Democratic lawmakers appeared on video urging troops to uphold the Constitution and not follow illegal military directives from the Trump administration.
Republican President Donald Trump accused lawmakers of sedition “punishable by DEATH” in a social media post days later. Hegseth said Kelly’s censure was a “necessary process step” for proceedings that could result in a demotion from the senator’s retired rank of captain and a subsequent reduction in retirement pay.
The 90-second video was first posted on Senator Elissa Slotkin’s social media account. Representatives Jason Crow, Chris Deluzio, Maggie Goodlander and Chrissy Houlahan also appeared in the video. All 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 the orders of the defense secretary for a possible court-martial or other punishment.
Hegseth said that Kelly was the only one of the six legislators who was investigated because he is the only one who formally retired from the military and still falls under the jurisdiction of the Pentagon.