WASHINGTON — Attorneys for the Trump administration argued before a federal appeals court Thursday the Pentagon should be able to reprimand Arizona Democratic Sen. Mark Kelly for reminding members of the military they can refuse illegal orders, and for criticizing the Defense Department.
Lawyers from the Justice Department told the three-judge panel that even though Kelly, a retired Navy captain, is no longer on active duty and has no commanding officer, they believe he is still subject to disciplinary action and limited First Amendment rights.
John Bailey, an attorney in the DOJ’s civil rights division, said a “pattern of statements and conduct” showed Kelly intended to “counsel disobedience” within the armed forces. That led to a censure letter and attempts by the Defense Department to downgrade his retirement rank and pay.
Defense Secretary Pete Hegseth’s attempts to punish Kelly, he said, weren’t solely based on the senator’s appearance alongside other Democrats in the “Don’t Give up the Ship” video.
Bailey said comments Kelly made during a press conference and in television news interviews about the deployment of National Guard troops to various cities and strikes on alleged drug smuggling boats in the Caribbean also played a role.
Bailey told the judges that if Kelly or another of the roughly 2 million retired service members wanted to make similar statements, they were “free” to separate from the military and resign their commissions. He said the Trump administration was not seeking to apply the same restrictions on free speech to the 17 million veterans who have been discharged and no longer have any connection to the military.
But, Bailey also told the judges that “context matters” and an instructor at the Naval Academy or West Point wouldn’t be in the wrong to tell service members they aren’t required to follow illegal orders.
The question before the U.S. Court of Appeals for the District of Columbia, which will rule in the coming weeks, is on whether a preliminary injunction granted to Kelly can stay in place while the case proceeds, or whether it should be overturned.
Separation of powers
The attorney representing Kelly said during oral arguments a district court judge ruled correctly earlier this year when he granted the preliminary injunction that allows Kelly to keep his retirement rank and pay while the case moves through the court system.
Benjamin C. Mizer, a partner at the Arnold & Palmer law firm, said that Kelly “did not counsel disobedience to lawful orders.”
He also said subjecting a retired service member who is also a lawmaker to the jurisdiction of the president as commander-in-chief would create an issue with the separation of powers.
Kelly said outside the courthouse after 90 minutes of oral arguments the Trump administration’s attempts to limit the free speech rights of retired service members was “absurd” and “an outrageous violation of our constitutional rights.”
“One of our most fundamental rights is the right to speak out about the government,” Kelly said. “It’s the right that guarantees all others and it’s how we hold our government accountable.”
Kelly said the voices and experiences of retired service members are especially important after President Donald Trump started a war with Iran.
“Who better to speak out and share their perspective than the people who served — retired military members who understand the risks and sacrifice of sending brave Americans into combat, who understand how to use combat power, but also understand its limitations,” he said. “And also who have seen the mistakes of past administrations that thought wars could be fast and simple, only to get bogged down for years or for decades.”
Karen LeCraft Henderson, nominated by President George H.W. Bush in 1990; Cornelia T.L. Pillard, nominated by President Barack Obama in 2013; and Florence Y. Pan, nominated by President Joe Biden in 2022, make up the three-judge panel that will rule on the appeal.
Downgrade in Kelly retirement rank, pay
The case began earlier this year after Hegseth started the process to downgrade Kelly’s retirement rank and pay for appearing in a 90-second video alongside other Democratic lawmakers.
“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said in the video published in November. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”
The video also featured Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander.
A censure letter from Hegseth released in January alleged Kelly’s comments in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer.
Senior Judge Richard J. Leon of the District of Columbia District Court heard arguments in early February over whether to grant Kelly a preliminary injunction, which he did later that month.
“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,” Leon wrote. “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”
The Trump administration then appealed to the U.S. Court of Appeals for the District of Columbia.
