Judge says Pentagon 'trampled on' Sen. Kelly's First Amendment rights
In a blistering ruling that accused Defense Secretary Pete Hegseth of trying to strip the First Amendment rights of military retirees, a Republican-appointed judge on Thursday blocked the Pentagon from trying to punish Sen. Mark Kelly because of a video he and other Democratic lawmakers made urging service members not to follow illegal orders.
The sharply worded opinion by D.C. District Court Judge Richard J. Leon, who was appointed by President George W. Bush in 2002, accused Hegseth of "trampling" on the Arizona senator's right to free speech and suggested that Hegseth should be more "grateful" for the wisdom of retired service members.
"This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees," Leon wrote in his opinion.
Leon later added that rather than trying to "shrink the First Amendment liberties" of retired service members, "Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our Nation over the past 250 years."
"This will be immediately appealed," Hegseth posted on social media on Thursday after the opinion was released.
"Sedition is sedition, 'Captain,'" he wrote, appearing to address Kelly, a retired Navy captain.
White House deputy press secretary Anna Kelly said in a statement that Hegseth "rightfully directed a review" of Kelly and that the ruling will "not be the final say on the matter."
Last November, President Donald Trump on social media accused Kelly and the other Democrats in the video of being "traitors" guilty of "seditious behavior."
"President Trump publicly expressed his concerns about the troubling comments made by Senator Mark Kelly and other Democrat lawmakers encouraging them to defy lawful orders from their Commander-in-Chief," Anna Kelly wrote in a statement released Thursday to reporters by the White House. "Secretary Hegseth rightfully directed a review to determine future actions as a result of these dangerous comments by Senator Kelly, who as a military retiree is subject to the Uniform Code of Military Justice. This will not be the final say on the matter."
Hegseth's office did not respond to requests for comment.
Leon's decision on Thursday amounts to an extraordinary rebuke of Hegseth by a conservative judge in a case seen as a major test of the First Amendment rights of military retirees and the government's separation of powers.
At issue was a video released by Kelly and five other Democrats -- all military or intelligence service veterans -- urging troops not to follow illegal orders. The Democrats did not specify which orders they believed were in question, although the Pentagon was in the midst of a campaign striking alleged drug boats in the Caribbean. Legal experts widely questioned the operations, which historically were handled by federal law enforcement and not lethal military action.
Hegseth, who called the group the "Seditious Six," suggested that Kelly should face court martial or some kind of administrative action. Among the six Democrats, Kelly is the only former service member to reach active-duty retirement, which requires more than 20 years of service. A retired Navy pilot who flew combat missions during Desert Storm, Kelly still receives benefits from the Defense Department, which Hegseth oversees.
Hegseth censured Kelly and ordered a 45-day review into possibly demoting Kelly in rank, accusing him of violating a federal law that prohibits undermining good order and discipline within the military.
Kelly praised the judge's decision blocking that review but said he expected the administration to appeal.
"I appreciate the judge's careful consideration of this case and the clarity of his ruling, but I also know that this might not be over yet, because this president and this administration do not know how to admit when they're wrong," Kelly said in a video posted online.
Kelly later told reporters: "This is about an administration that is out of control on so many different levels."
The U.S. Attorney's office in Washington, D.C., failed to convince a grand jury to indict Kelly, Slotkin and Democratic Reps. Maggie Goodlander, Jason Crow, Chrissy Houlahan and Chris DeLuzio, all of whom are former members of the military or intelligence community.
The U.S. attorney’s office in Washington, D.C. was unable to secure an indictment against the six Democrats after failing to convince a grand jury that charges were warranted, multiple sources familiar with the matter told ABC News.
