Judge appears likely to side with Mark Kelly in case challenging Pentagon’s efforts to punish him over ‘illegal orders’ video

CNN

By Devan Cole, Austin Culpepper, CNN

(CNN) — A federal judge appears likely to side with Mark Kelly in the Democratic senator’s case alleging the Pentagon is violating his First Amendment rights through its effort to punish him over his urging of US service members to refuse illegal orders.

During a high-stakes hearing in Washington, DC, on Tuesday, Senior US District Judge Richard Leon seemed troubled by the Trump administration’s suggestion that he take the unprecedented step of expanding existing loopholes to First Amendment protections for active-duty service members to also cover retirees such as Kelly.

“You’re asking me to do something the Supreme Court or the DC Circuit has never done,” Leon told a Justice Department lawyer defending the Pentagon’s efforts. “That’s a bit of a stretch.”

Leon, an appointee of former President George W. Bush, said he would likely issue a decision on Kelly’s request for a court order blocking the Pentagon’s efforts by February 11.

The hearing was the latest flashpoint in the Trump administration’s campaign to use the levers of government to punish high-profile critics of the president. In several other cases involving Donald Trump’s perceived political enemies, federal judges have stymied the president’s retribution crusade, killing criminal cases brought against former FBI Director James Comey and New York Attorney General Letitia James and ruling against the president’s efforts to hamstring the work of Mark Zaid, a notable whistleblower attorney.

Kelly’s case, brought last month, came just after Defense Secretary Pete Hegseth announced the Pentagon would pursue administrative action against the senator, including reducing his last military rank, which would lower the pay he receives as a retired Navy captain, and issuing a letter of censure.

Hegseth and Trump have publicly attacked Kelly over a video posted in November by the Arizona lawmaker – and five other Democrats with a history of military service – urging service members not to obey unlawful orders that could be issued by the Trump administration.

“When viewed in totality, your pattern of conduct demonstrates specific intent to counsel servicemembers to refuse lawful orders. This pattern demonstrates that you were not providing abstract legal education about the duty to refuse patently illegal orders. You were specifically counseling servicemembers to refuse particular operations that you have characterized as illegal,” Hegseth wrote to Kelly last month in the censure letter.

But lawyers for the senator argue the Pentagon’s actions run afoul of his First Amendment rights and that his comments are protected by the Constitution’s Speech and Debate Clause, which states that a sitting member of Congress is protected from certain inquiries and procedures that originate outside of Congress. Additionally, they say the moves violate his due process rights, describing them as “foreordained decisionmaking.”

The First Amendment issues featured prominently during Tuesday’s proceeding, with Leon at one point asking whether he even needed to wade into the other “novel” legal questions at the center of the lawsuit to issue the type of order Kelly has requested.

“I’m not sure the court has ever seen a First Amendment case of this nature involving a sitting US senator and a retired service member,” he said.

“At this stage, the court doesn’t have to get into the thorny thicket” of the Constitution’s Speech and Debate Clause, Leon said to Kelly’s attorney, who quickly agreed that the judge could rule only based on his client’s free speech arguments – a sign the judge was sympathetic to those claims.

Kelly was sitting in the well of the courtroom during the hearing, but said nothing during the proceeding. Underscoring the significance of the case, several other judges from the same courthouse were seated in the gallery next to members of the public.

Kelly’s attorney, Benjamin Mizer, warned that if Leon adopted the administration’s First Amendment arguments, the decision could potentially chill the speech of scores of other retired service members, as well as others considering speaking publicly about military matters, including lawmakers who sit on congressional committees that have oversight over the Pentagon. He pointed specifically to former high-ranking military officials who have spoken critically about DOD policies in recent years.

“However you slice it … there is a clear First Amendment violation here,” Mizer said.

DOJ attorney John Bailey countered that Kelly has not experienced a “chilling effect” on his own speech, since he has publicly insisted that he will not be silenced even as the administration seeks to retaliate against him.

But Leon appeared unconvinced by that argument and agreed with Kelly’s claim that the alleged “chilling effect” could eventually be widespread.

Noting that the Arizona senator is not the first retired service member to serve in Congress and speak out against the Pentagon, he expressed concern that all retired service members in the House or Senate would be unable to properly legislate if they can’t offer their opinions.

“Is it your position that they’re not supposed to offer their position” on military matters, he asked Bailey. “How are they supposed to be able to do their job?”

The Justice Department has argued that federal courts don’t have the power to wade into such military disciplinary matters and that even if they do, Kelly’s lawsuit is ill-timed since the administrative actions are still in their earliest stages.

“The military is not required to tolerate speech by its own members – active or retired – that undermines the chain of command, encourages disobedience, or erodes confidence in leadership,” the department wrote in court papers. “The Secretary’s determination that (Kelly’s) statements posed those risks is entitled to the highest degree of deference, if it is reviewable at all.”

Absent a ruling from Leon ordering the Pentagon to pause its plans, the senator has until February 16 to formally respond to the censure letter he received last month and the retirement-grade proceedings.

Other Democrats are facing heat over video

Several other Democrats who appeared in the November video have also found themselves in the administration’s crosshairs.

The top federal prosecutor in Washington, DC, has contacted at least four of them for interviews as part of their office’s probe into the video, CNN reported last month.

Among that group are Michigan Sen. Elissa Slotkin and Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chrissy Houlahan of Pennsylvania.

It’s not clear what crime, if any, the Justice Department may be investigating related to the lawmakers, though Trump has suggested the six Democratic lawmakers engaged in “seditious behavior.”

In the video, the lawmakers don’t specify which orders service members have received, or might receive, that could be illegal.

But it was released as US military officials, including the commander of US Southern Command, and US allies, including the UK, questioned the legality of a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific and as the Trump administration faced multiple court challenges to Trump’s decision last year to send scores of federalized state National Guard members to Democratic-led cities.

This story has been updated with additional reporting.

CNN’s Haley Britzky, Natasha Bertrand and Zachary Cohen contributed to this report.

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