Federal Judge Blocks Hegseth's Censure Of Sen. Mark Kelly
Authored by Stacy Robinson via The Epoch Times,
A federal judge has blocked Secretary of War Pete Hegseth’s censure of Sen. Mark Kelly (D-Ariz.), halting a process that could lower the senator’s military rank and benefits.
“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” U.S. District Judge Richard Leon ruled on Feb. 12.
“To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”
Kelly, a retired Navy Captain, came under fire when he and four other lawmakers recorded a video last November telling members of the military that they should disobey any “unlawful” orders they received.
On Jan. 5, Hegseth issued a letter censuring Kelly, saying his actions “undermined the chain of command,” “counseled disobedience,” and constituted “conduct unbecoming an officer.” He also posted on X that he initiated proceedings to reduce Kelly’s military rank and retirement pay because of “seditious” conduct.
That letter said Kelly—as a retired officer still receiving pay—was in violation of Articles 133 and 134 of the Uniform Code of Military Justice, which deal with punishing an officer for unbecoming conduct.
Kelly sued Hegseth and the Department of War, alleging that the censure sought to “chill” his free speech rights by threatening punishment. He also alleged that Hegseth was violating the separation of powers by interfering with the speech of a sitting Congressman.
Justice Department attorney John Bailey argued that the case was not ready for the district court yet because Kelly had not exhausted all the administrative appeals available to him.
Before issuing his ruling, Leon had pointed out that while the Uniform Code of Military Justice does impose certain limits on the free speech of active military, it has never been applied to retired service members.
He challenged the government’s attorney to produce a single case where that had occurred.
“You’re asking me to do something the Supreme Court has never done, or the DC Circuit,” Leon said during a hearing on Feb. 3. “That’s a bit of a stretch, isn’t it?”
Kelly’s attorney, Ben Mizer, said the senator didn’t need to wait for the censure before seeking relief. Even an appeal before a military board would be useless, he said, since Hegseth would have the final say, and had “abundantly demonstrated bias” through his X posts.
Bailey countered that, despite Hegseth’s public statements, the outcome of such a hearing was uncertain, and any violation of Kelly’s First Amendment rights was still “abstract and unmaterialized.”
Leon soundly rejected that last argument, writing that Kelly was already suffering “immediate irreparable harm” because of the infringement of his First Amendment rights.
The ruling comes shortly after Kelly and Sen. Elissa Slotkin (D-Mich.) denounced the Justice Department after a grand jury purportedly rejected criminal charges against lawmakers who appeared in the video.
“We have not been formally told what they were trying to charge us with and what law they were using. It’s just what we’re hearing through the media,” Slotkin said.
Building on today's legal win for Kelly, the six Democrats who urged military servicemembers in a video not to comply with illegal orders are now looking to gain political momentum and build their campaign war chests.
“We are not done,” said Pennsylvania Rep. Chrissy Houlahan at a press conference alongside fellow House members.
“We will continue to push back. The tide is turning and accountability is coming,” Colorado Rep. Jason Crow said in a video posted to social media.
Michigan Sen. Elissa Slotkin said in a fundraising email: “They tried to indict me.”
In addition to a flurry of social media posts and two afternoon press conferences, Politico reports that several have been making the cable news rounds and scheduled appearances on high-profile late night TV shows — signs that they see political opportunity in Trump’s attacks and are hoping to bottle that clout.