US judge blocks Hegseth’s bid to punish Mark Kelly over ‘illegal orders’ video

A US judge on Thursday blocked the Pentagon from reducing Senator Mark Kelly’s retired military rank and pension pay because he urged troops to reject unlawful orders.

The preliminary ruling by Richard Leon, a George W Bush appointee, is the latest setback for Donald Trump in his campaign of vengeance against perceived political enemies, which has drawn opposition from judges across the ideological spectrum.

Kelly, a retired navy captain and former astronaut who represents Arizona in the US Senate, was one of six congressional Democrats who appeared in a November video that reminded service members of their duty to reject unlawful orders. In the clip, Kelly stated: “Our laws are clear: you can refuse illegal orders.“

Kelly’s remarks came as Democrats criticized Trump’s deployment of national guard troops in US cities and the authorization of lethal strikes on boats suspected of smuggling drugs from Latin America.

The Republican president, in a social media post, called the video “SEDITIOUS BEHAVIOR, punishable by DEATH”.

Defense secretary Pete Hegseth issued a censure letter on 5 January, asserting that Kelly had “clearly intended to undermine good order and military discipline” in violation of military rules that apply to active and retired personnel. Kelly filed his lawsuit against Hegseth’s attempt to reduce the military veteran’s rank and pension a week later.

Earlier this week, a grand jury in Washington DC declined to indict the six members of Congress featured in the video: Kelly, Michigan senator Elissa Slotkin, and House members Jason Crow of Colorado, Maggie Goodlander of New Hampshire, Chris Deluzio of Pennsylvania, and Chrissy Houlahan.

The grand jury’s decision and Judge Leon’s ruling are a stark rebuke of the Trump administration and its allies’ attempts to use their position to criminalise dissent.

Slotkin said: “It’s just a sad moment when anonymous grand jurors, just citizens called at random in Washington DC, have more bravery to uphold [the] basic rule of law and stand for that than some of our colleagues here in the Senate.”

Trump administration lawyers had urged the judge to dismiss Kelly’s lawsuit, calling it a “quintessential matter of military discipline not within the judiciary’s purview” in a recent court filing.

The Trump administration has also called the lawsuit premature, saying Kelly has not yet been formally censured and that he should have responded to Hegseth’s allegations through administrative channels.

In his ruling, Leon wrote that Hegseth had “trampled” on Kelly’s first amendment rights and “threatened the constitutional liberties of millions of military retirees”.

He admonished Hegseth for his handling of the issue, writing that “rather than trying to shrink the first amendment liberties of retired servicemembers, Secretary Hegseth and his fellow defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our nation over the past 250 years”.

“If so, they will more fully appreciate why the Founding Fathers made free speech the first amendment in the Bill of Rights,” he continued. “Hopefully this injunction will in some way help bring about a course correction in the defense department’s approach to these issues.”