WASHINGTON (CN) - Arizona Senator Mark Kelly sued Secretary of Defense Pete Hegseth on Monday over his efforts to demote the retired Navy captain in retaliation for comments in a video urging military members to reject illegal orders from President Donald Trump.
The former Navy pilot and astronaut filed the 46-page lawsuit in the U.S. District Court for the District of Columbia, challenging Hegseth's moves as a clear violation of the First Amendment, the speech or debate clause and the separation of powers.
Hegseth initiated the "retirement grade determination proceedings" on Jan. 5, stating in an X post that Kelly's status as a sitting U.S. senator "does not exempt him from accountability." Hegseth further issued a letter of censure against Kelly, outlining what he described as "reckless misconduct."
"The censure, grade-reduction process and its inevitable outcome impose official punishment for protected speech, chill legislative oversight and threaten reductions in rank and pay," Kelly writes. "Each of these actions also signals to retired service members and members of Congress that criticism of the executive's use of the armed forces may be met with retaliation through military channels."
Kelly is asking a federal judge to declare Hegseth's conduct as unlawful and unconstitutional, vacate the actions, block the secretary and "preserve the status of a coequal Congress and an apolitical military."
Under federal law, the Pentagon can reassess a military officer's retired rank if the defense secretary determines that "good cause exists" to reopen proceedings. If the Defense Department follows through on the move, Kelly could be demoted from captain and have his pension reduced.
In November, Kelly joined a group of other military veteran Democrats to warn U.S. service members that the Trump administration was threatening citizens' trust in the military and was actively violating the Constitution.
"Our laws are clear," the lawmakers say in the video. "You can refuse illegal orders. You must refuse illegal orders."
Michigan Senator Elissa Slotkin, Pennsylvania Representative Chrissy Houlahan and Colorado Representative Jason Crow were among the other Democrats who took part in the video. So far, the Pentagon has not publicly announced any disciplinary action against those lawmakers, but the FBI is reportedly investigating their conduct.
The video followed the United States' escalating military strikes in the Caribbean and eastern Pacific targeting suspected drug traffickers - well before Trump struck Venezuela and captured President Nicolas Maduro - as well as the deployment of National Guard troops in several cities.
Trump quickly blasted Kelly and his colleagues on Truth Social, calling the video "SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL" and suggested they should be executed as a result.
In the suit, Kelly argues Hegseth's actions violate the First Amendment's clear requirement that lawmakers "be given the widest latitude to express their views on issues of policy," citing the Supreme Court's 1966 decision in Bond v. Floyd.
There, the high court held the Georgia House of Representatives could not bar Julian Bond, a Black man and member of the Student Nonviolent Coordinating Committee, from joining the legislative body over his opposition to the Vietnam War.
Further, as the first-ever example of military sanctions against a member of Congress for political speech, allowing the demotion to proceed would "invert the constitutional structure by subordinating the legislative branch to executive discipline and chilling congressional oversight of the armed forces," Kelly says.
The Arizona senator says his comments were core legislative acts and thus should be protected by the Constitution's speech or debate clause, which grants lawmakers and their aides wide immunity from criminal prosecution or civil suits stemming from those acts.
Kelly rejected the idea Hegseth would afford him an impartial investigation, noting the censure letter seemed conclusive in its determination that Kelly's speech met the criteria necessary for reducing a retirement grade.
"The outcome of any subsequent 'review' of Senator Kelly's grade - even assuming it could lawfully proceed - is foreordained," Kelly writes. "The Constitution does not permit the government to announce the verdict in advance and then subject Senator Kelly or anyone else to a nominal process designed only to fulfill it."
In a statement on X, Kelly said the lawsuit was part of his effort to stand up "for the rights of the very American who fought to defend our freedoms."
"His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn't like, you will be censured, threatened with demotion or even prosecuted," Kelly said.
The Pentagon did not respond to a request for comment.
Source: Courthouse News Service
