DOJ asks judge to move ahead with inquiry into Sen. Mark Kelly
The Trump administration on Thursday told a federal judge that the Pentagon should be allowed to proceed with its inquiry into Arizona Democratic Sen. Mark Kelly, contending that Kelly, as a retired naval officer, doesn’t have the same right to free speech as civilians and hasn’t exhausted his administrative options yet.
Kelly filed a lawsuit earlier this month in a district court to try to stop Defense Secretary Pete Hegseth’s efforts to demote his rank in retirement, insisting the inquiry unlawfully punished him for his speech and violated his due process. Kelly also argued that Hegseth’s potential reprimand of a sitting senator would have a chilling effect on other military veterans.
In its first court filing on the issue, Justice Department lawyers said the military is allowed to punish servicemembers for speech that risks undermining military discipline and good order. Hegseth’s chief of staff, Ricky Buria, told the judge he reviewed the matter and believes Kelly’s remarks did exactly that.
“This case is not about legislative independence or freedom of speech in civilian society. Instead, this case involves a retired military officer who seeks to use his military status as a sword and his legislative position as a shield against the consequences of his actions in military personnel matters,” the Justice Department lawyers wrote on Hegseth’s behalf.
In the video directed at military members, six Democrats -- including Kelly -- said that military service members can refuse illegal orders. While none of the Democrats mentioned any specific illegal orders given to service members, the video was released as the Pentagon began an operation killing suspected drug smugglers in the Caribbean -- a military operation that many Democrats and legal experts questioned at the time.
Among the Democrats, Kelly is the only former service member to reach active-duty retirement, which requires more than 20 years of service. A retired U.S. Navy captain who flew combat missions during Desert Storm, Kelly still receives benefits from the Defense Department, which Hegseth oversees. Kelly also served as an astronaut for NASA.
Hegseth and Trump both called the video “seditious.” The president suggested the Democrats should be jailed as a result.
Among the arguments laid out by the administration to the judge on Thursday is that Kelly’s criticism wasn’t done in pursuit of his legislative duties, and therefore was not protected under the Speech and Debate Clause in the Constitution.
Kelly says the move by Hegseth is political retribution. His legal team was expected to file its rebuttal early next week, ahead of a hearing on Jan. 28.
“Pete Hegseth's unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the president, the secretary of defense, doesn't like. You will be censured, threatened with demotion, or even prosecuted," Kelly said in a Jan. 12 Senate floor speech.
Judge Richard J. Leon, an appointee of President George W. Bush, said he hopes to make a decision on the case by Feb. 11.
