Judge temporarily blocks Pentagon action against Mark Kelly over illegal orders video

A federal judge in Washington, D.C., has granted Sen. Mark Kelly’s request for a preliminary injunction against Pete Hegseth, in a lawsuit filed by the Arizona Democrat accusing the defense secretary of trying to punish him for his political speech.

Kelly, a former Navy Captain, sued Hegseth in January, one week after the defense secretary moved to formally censure him for participating in a video where he and several Democratic lawmakers told U.S. servicemembers they can refuse illegal orders.

“Our rules are clear. You can refuse illegal orders,” Kelly says in the video.

Hegseth has labeled Kelly’s statements as “seditious” and announced a review of his retirement grade, which could lead to a demotion in rank and reduction in retirement pay.

Thursday’s ruling temporarily blocks the Pentagon from taking steps to discipline Kelly. It was issued by Judge Richard Leon, a George W. Bush appointee on the U.S. District Court for the District of Columbia.

“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,” Leon wrote in his opinion. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”

In his lawsuit, Kelly’s lawyers argued that the Pentagon review was both “unconstitutional and legally baseless.”

“The First Amendment forbids the government and its officials from punishing disfavored expression or retaliating against protected speech,” the suit reads. “That prohibition applies with particular force to legislators speaking on matters of public policy.”

In a statement following the court’s ruling, Kelly said the case was bigger than him.

“This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out. That’s why I couldn’t let this stand.”

“I appreciate the judge’s careful consideration of this case, and the clarity of his ruling,” he continued. “But I also know that this might not be over yet, because this President and this administration do not know how to admit when they’re wrong.”

Pentagon officials were not immediately available to respond to a request for comment.

Kelly was one of six Democratic lawmakers to participate in the video, which was released on social media in November amid concerns from Democrats in Congress about the legality of U.S. military strikes on alleged narco-trafficking boats in the Caribbean.

The video drew a furious response from President Trump, who in a post on social media called it “SEDITIOUS BEHAVIOR, punishable by DEATH!” Trump also said the lawmakers — all with military or intelligence backgrounds — “should be ARRESTED AND PUT ON TRIAL.”

Federal prosecutors attempted to indict the lawmakers, but a grand jury in Washington, D.C., ultimately rejected the effort, according to a source familiar with the matter who was not authorized to speak publicly.

It is not clear what charges prosecutors attempted to bring against the lawmakers. Previously the Justice Department had declined to “confirm or deny the existence of an investigation” into either Democrat.