US appeals court appears skeptical of Pentagon bid to punish Mark Kelly

A US federal appeals court at a hearing on Thursday appeared skeptical that the Trump administration could legally punish Mark Kelly, a Democratic US senator, over public remarks he made urging service members to refuse unlawful orders.

Members of a three-judge panel of the US court of appeals for the District of Columbia circuit criticized the government’s efforts to censure Kelly, a retired navy captain and Arizona Democrat, over more than an hour of questioning.

“These are people who serve their country. Many of them put their lives on the line,” Florence Pan, a circuit judge, told a justice department lawyer. “You’re saying that they have to give up their retired status in order to say something that is a textbook example – taught at West Point and the Naval Academy – that you can disobey illegal orders?“

Kelly spoke outside the courthouse in downtown Washington after the hearing. “This was a day in court not just for me, but for the first amendment rights of millions of us,” Kelly said.

The Pentagon and White House did not immediately respond to requests for comment.

Kelly sued the Pentagon in January, alleging the move by Donald Trump’s administration to demote him and reduce his retirement pay was retaliatory and violated the US constitution’s first amendment protection of free speech. The Pentagon appealed after US district judge Richard Leon issued a preliminary injunction blocking the administration in February from pursuing its campaign to censure Kelly.

Pete Hegseth, the US defense secretary, moved to sanction Kelly, a former astronaut, after Kelly took part in a November 2025 video amid rising criticism of the Trump administration’s deployment of the national guard in US cities and authorization of lethal strikes on suspected Latin American drug smuggling boats.

In the clip, Kelly stated: “Our laws are clear: you can refuse illegal orders.” The government’s lawyer told the appeals court on Thursday that the constitution does not protect speech by military officers who urge disobedience to lawful orders, even if the officer is retired.

“It’s very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation,” John Bailey, a justice department lawyer, told the court.

Retired officers remain part of the armed forces, are subject to recall to active duty and can influence service members, the Trump administration argued.

Kelly’s lawyers countered that the Pentagon’s actions amounted to retaliation against protected political speech on matters of public concern.

“The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech,” Kelly’s lawyer, Benjamin Mizer, argued to the appeals court. “The censure letter says on its face that it’s targeting the senator for his public statements.”