A federal appeals court signaled serious doubts Thursday about the Trump administration's attempt to demote Democratic Senator Mark Kelly and cut his retirement pay for urging military personnel to refuse unlawful orders.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit spent more than an hour questioning government lawyers about whether the Pentagon could legally punish Kelly, a retired Navy captain and former astronaut from Arizona, for his public remarks on the subject.
Judge Florence Pan pressed the administration's position to its limits. "These are people who serve their country. Many of them put their lives on the line," Pan told a Justice Department lawyer. "You're saying that they have to give up their retired status in order to say something that is a textbook example taught at West Point and the Naval Academy that you can disobey illegal orders?"
Kelly sued the Pentagon in January, challenging the administration's move as unconstitutional retaliation for protected speech. A federal district judge issued a preliminary injunction in February blocking the Pentagon from moving forward with its censure campaign. The administration appealed that decision.
The dispute stems from a November 2025 video in which Kelly stated plainly: "Our laws are clear: you can refuse illegal orders." The video came as the Trump administration faced mounting criticism over its deployment of the National Guard domestically and authorization of lethal strikes targeting suspected drug smuggling operations in Latin America.
Defense Secretary Pete Hegseth initiated the action against Kelly shortly after the video surfaced. The government argued Thursday that the Constitution does not protect military officers, even retired ones, who encourage service members to disobey lawful orders.
Justice Department lawyer John Bailey framed the dispute as broader than a single statement. "It's very clear that this is about a pattern and totality of conduct, not any one line or any one statement taken in isolation," Bailey told the court.
The administration emphasized that retired officers remain technically part of the armed forces, can be recalled to active duty, and retain the ability to influence active service members. Those factors, the government contended, distinguished Kelly's situation from ordinary citizens exercising free speech rights.
Kelly's legal team countered with a straightforward characterization. "The punishments imposed on Senator Kelly are textbook retaliation against disfavored speech," his attorney Benjamin Mizer argued. He pointed to the censure letter itself, which he said explicitly targeted the senator for his public statements.
Kelly emerged from the courthouse in downtown Washington and framed the case in broader constitutional terms. "This was a day in court not just for me, but for the first amendment rights of millions of us," he said.
The Pentagon and White House declined to comment following the hearing.
Author James Rodriguez: "The court's skepticism suggests the administration picked a fight it may struggle to win on the merits, especially when the underlying speech matches what military academies teach."
Comments