Defense Secretary Pete Hegseth’s bid to censure Sen. Mark Kelly (D-Ariz.), a retired Navy captain, for encouraging service members to resist unlawful orders is nothing more than “punitive retribution,” according to a lawsuit filed by Kelly on Monday.
In November, Kelly and a handful of other lawmakers appeared in a short video shared on social media that urged U.S. service members and members of intelligence agencies to uphold their oaths to the Constitution in the face of “enormous stress and pressure.” The lawmakers also encouraged them to defy any “illegal orders” as part of that oath.
The backlash was swift, with President Donald Trump calling the video seditious and suggesting its recommendations were “punishable by death.” Hegseth issued a letter to censure Kelly last week, saying the “reckless and seditious video” was “clearly intended to undermine good order and military discipline.”
“This conduct was seditious in nature and violated Articles 133 and 134 of the Uniform Code of Military Justice, to which Captain Kelly remains subject as a retired officer receiving pay,” Hegseth declared.
Hegseth said he had “initiated” proceedings that could result in a reduction of Kelly’s retirement pay and that a decision would be made within 45 days.
In a statement Monday, Kelly said the self-proclaimed “Secretary of War” is “coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator whose job is to hold him — and this or any administration — accountable.”
In the lawsuit, Kelly’s lawyers pointed out that when Hegseth said Kelly would be censured, he also threatened him with criminal prosecution if he continued to make similar statements going forward.
“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” Kelly’s lawyers wrote Monday.
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” they added.
Letting that “unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces,” the lawsuit states.
The remarks in the video — Kelly also appeared with Sen. Elissa Slotkin (D-Mich.), Rep. Chrissy Houlahan (D-Pa.), Rep. Chris Deluzio (D-Pa.), Rep. Maggie Goodlander (D-N.H.) and Rep. Jason Crow (D-Colo.) — were straightforward.
“Our laws are clear: You can refuse illegal orders. You can refuse illegal orders. You must refuse illegal orders,” they said. “No one has to carry out orders that violate the law or our Constitution.”
No specific directive was given in the message.
Kelly wants the court to issue an order stopping Hegseth from reducing his retirement pay and to declare his actions were illegal.
“From the moment I drove through the gates of Naval Air Station Pensacola, to when I was shot at over Iraq and Kuwait, to when I landed Space Shuttle Endeavour on its last mission, I gave everything I had to this country and I earned my rank of Captain, United States Navy,” Kelly said in a statement issued Monday. “Now, Pete Hegseth wants our longest-serving military veterans to live with the constant threat that they could be deprived of their rank and pay years or even decades after they leave the military just because he or another Secretary of Defense doesn’t like what they’ve said. That’s not the way things work in the United States of America, and I won’t stand for it.”
The Defense Department did not immediately return a request for comment.