A federal judge on Thursday blocked the Pentagon from downgrading the military retirement rank and pay of Democratic Sen. Mark Kelly of Arizona, finding that the government had “trampled on Senator Kelly’s First Amendment freedoms.”
A retired Navy captain, Kelly drew the Trump administration’s ire after he and five other Democratic lawmakers posted a video urging members of the military to “refuse illegal orders.”
U.S. District Judge Richard Leon’s order prohibits the Defense Department and the Trump administration from taking any adverse action against Kelly to reduce his retirement rank and pay.
“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. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.'”
Defense Secretary Pete Hegseth wrote on social media that the ruling would be “immediately appealed.”
Leon’s ruling comes a month after Kelly sued Hegseth, arguing that he was the target of “extreme rhetoric and punitive retribution” by the Trump administration.
Kelly asked Leon to set aside Hegseth’s recent moves to demote him and cut his military pension, and to block the enforcement of any punishment against him.
Heather Diehl / Getty Images 
Leon’s decision came two days after federal prosecutors in U.S. Attorney Jeanine Pirro’s office failed to secure an indictment against Kelly and the other Democratic lawmakers who appeared in the video. Prosecutors had hoped to charge them with violating a federal law that makes it a crime to counsel or cause “insubordination, disloyalty, mutiny, or reversal of duty” by military members, sources previously told CBS News.
Kelly and his colleagues came under fierce criticism by the Trump administration after they posted the video in November. The video was published amid the military buildup around Venezuela and strikes against alleged drug boats. The other five Democrats were also either military veterans or members of the intelligence community, but they have not faced any adverse action from the Defense Department because they do not draw retirement pay from the U.S. military.
Soon after the video was published, President Trump and Hegseth lambasted the lawmakers for the comments, with the president claiming that their statements amounted to “SEDITIOUS BEHAVIOR, punishable by DEATH!”
Hegseth claimed Kelly’s statements “undermined the chain of command” and constituted “conduct unbecoming an officer.” The Pentagon announced it was conducting a review of misconduct allegations against Kelly to determine whether he should be recalled to active duty to face court-martial proceedings.
The Defense Department said in December it was escalating its review into a command investigation. Hegseth then announced that the Pentagon had “initiated retirement grade determination proceedings” that could result in a “reduction in his retired grade” and “a corresponding reduction in retired pay.” Hegseth also said he issued a formal letter to censure Kelly, citing his “reckless misconduct.”
In a statement, Kelly said Leon’s order “made clear that Pete Hegseth violated the constitution when he tried to punish me for something I said. But this case was never just about me. 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 it stand.”
“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,” Kelly continued. “One thing is for sure: however hard the Trump administration may fight to punish me and silence others, I will fight ten times harder. This is too important.”
CBS News has reached out to the Defense Department for comment. The Justice Department declined to comment.
At a recent court hearing, Leon grilled the Justice Department and expressed strong reservations about the Pentagon’s efforts. Active-duty military officers typically face limitations on their right to free speech to promote discipline and obedience, but the military is now seeking to extend those limits to retired service members like Kelly.
“That’s never been done,” Leon told Justice Department attorney John Bailey during the Feb. 3 hearing, adding that the government did not have a single case to support the argument.
“You’re asking me to do something that the Supreme Court has never done,” Leon said. “That’s a bit of a stretch, is it not?”
In his ruling on Thursday, Leon reiterated those concerns again.
“Secretary Hegseth relies on the well-established doctrine that military
servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” Leon wrote.
“Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”
