Judge in Mark Kelly Case Seems Skeptical of Pentagon

A federal judge signaled Tuesday that the Pentagon may have overreached in its clash with Sen. Mark Kelly over his comments to US troops, CNN reports. At a hearing in Washington, DC, Senior US District Judge Richard Leon questioned the Trump administration's bid to punish Kelly, a retired Navy captain, for a video urging service members not to follow unlawful orders. Justice Department lawyers asked Leon to broaden limits on the free-speech rights of active-duty troops so they would also apply to military retirees like Kelly—something the judge suggested courts have never approved.

"You're asking me to do something the Supreme Court or the DC Circuit has never done," Leon told a government attorney. "That's a bit of a stretch." The AP reports that he also warned such a ruling could have a chilling effect on "many, many other retirees who wish to voice their opinion." Leon, a George W. Bush appointee, said he expects to rule by Feb. 11 on Kelly's request to block the Pentagon from cutting his retired rank and issuing a formal censure, steps announced by Defense Secretary Pete Hegseth.

In a letter to Kelly, Hegseth accused the Arizona Democrat of intentionally encouraging service members to resist "lawful orders," saying his comments went beyond abstract discussion of the duty to disobey clearly illegal commands and into specific opposition to potential Trump administration operations.

Kelly's legal team counters that the Pentagon is trampling his First Amendment rights and ignoring constitutional protections for lawmakers. They argue that his remarks are shielded by the Constitution's Speech and Debate Clause, which limits outside inquiries into legislative activity, and say the disciplinary process was "foreordained," violating his right to due process. Following the hearing, Kelly framed his case as part of a Trump administration crackdown on peaceful dissent, the Washington Post reports. The case is the latest in a series of court fights over efforts by the Trump administration to target prominent critics, a pattern that federal judges have previously disrupted in disputes involving former FBI Director James Comey, New York Attorney General Letitia James, and whistleblower attorney Mark Zaid.