Sen. Kelly Sues Hegseth to Block Attempts to Cut Rank, Pension
Kelly claims Hegseth and the other defendants violate the First Amendment, the Speech or Debate Clause, the separation of powers, due process, 10 U.S.C. § 1370 [general rule for commissioned officers], and the Administrative Procedure Act.
Sen. Mark Kelly (D-AZ) has sued Department of War Secretary Pete Hegseth to block attempts to demote the senator in the Navy over a video encouraging military members to defy President Donald Trump.
Kelly claimed Hegseth and the other defendants violate the First Amendment, the Speech or Debate Clause, the separation of powers, due process, 10 U.S.C. § 1370 [general rule for commissioned officers], and the Administrative Procedure Act.
“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,” Kelly wrote on X. “That’s not the way things work in the United States of America, and I won’t stand for it.”
If permitted to stand, the Secretary’s censure and the grade determination proceedings that he has directed will inflict immediate and irreparable harm. The censure, the grade-reduction process, and its inevitable outcome impose official punishment for protected speech, chill legislative oversight, and threaten reductions in rank and pay. Each of these actions also signals to retired service members and Members of Congress that criticism of the Executive’s use of the armed forces may be met with retaliation through military channels. The Constitution does not leave such injuries to be remedied after the fact. Speech or Debate, First Amendment, separation-of-powers, and due-process protections must be vindicated at the outset, before the Senator is forced to submit to an unconstitutional and legally baseless proceeding.
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In particular, Senator Kelly respectfully asks this Court to declare the censure letter, reopening determination, retirement grade determination proceedings, and related actions unlawful and unconstitutional; to vacate those actions; to enjoin their enforcement; and to preserve the status of a coequal Congress and an apolitical military.
In November, six Democrats released the video, which Hegseth and others have described as seditious.
Hegseth ordered the Navy to review Kelly for “potentially unlawful comments” regarding the Seditious Six video.
In December, the Department of War confirmed that it escalated its investigation into Kelly.
Only Kelly falls under the Pentagon’s jurisdiction. Hegseth explained that four of the six are “retired,” which means “they are no longer subject to” the Uniform Code of Military Justice (UCMJ).
“However, Mark Kelly (retired Navy Commander) is still subject to UCMJ—and he knows that,” said Hegseth.
On January 5, Hengseth announced he has that he has taken steps against Kelly.
“Therefore, in response to Senator Mark Kelly’s seditious statements — and his pattern of reckless misconduct — the Department of War is taking administrative action against Captain Mark E. Kelly, USN (Ret),” stated Hegseth. “The department has initiated retirement grade determination proceedings under 10 U.S.C. § 1370(f), with reduction in his retired grade resulting in a corresponding reduction in retired pay.”
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Comments
Poor old bald treasonous bunghole!
He probably wins this one….shame too because he should be held accountable since he uses his military service to prop himself up for public office.
Actually, he’s up a creek without a paddle. A civil court is not the venue available for him. As a Retired Naval Officer, he is still subject to the UCMJ (Uniform Code of Military Justice). If he wants to appeal his censure and possible loss of rank, he has to appeal that finding and then he will go to a General Court Martial. Not a smart move.
Can Naval Officers get a Big Chicken Dinner?
You are correct, but there is a proverbial army of #Resistance Federal district judges who believe they are now the Commander in Chief and therefore get to issue orders to the military and make other military related decisions. In their view civilians should no longer have control over the military – only unelected judges like themselves.
Kelly went to the DC court to file this, where he is almost certain to get what he wants.
SCOTUS recently ruled on this point about some categories of Military Retirees subject to UCMJ so that particular defense is a dry hole.
He might be able to get traction on speech/debate clause. However as a policy matter that has huge implications. Lots of current members of both HoR and Senate are serving Reservists and there’s a long history of such. None of them throughout that long history have suggested they were exempt from some/all UCMJ provisions. In addition SCOTUS could take the opportunity to narrow the current expanded definition of the speech and debate clause to limit it to speech on the floor or in committee v anywhere, anytime.
I thought execution was the normal route for treason.
Treason is when you harm your country for the benefit of another country. That doesn’t apply here. He is guilty of sedition.
What an asshole. He should know better. Probably pulled to many Gs and/or was oxygen deprived one too many times. Next thing you know he’ll be driving across country with a diaper on to avoid stops just so he can confront
Hegseth.
Mark was the twin NASA left on Earth while his brother did the hard vacuum work in NASA’s Twins Study to examine the effects of prolonged time in space.
After that, he threw away his reputation and any respect he might have gotten by devolving into a useful Dem socialist idiot. IMHO
Mark Kelly was an “astronaut” for 15 years spending a total 0f 54 days in “space” an average of 3 1/2 days per year. During that time he travelled 50 into space.
In the 1960s astronauts traveled 238,855 miles to the moon but now decades later they barely reach the 50-mile edge of space and call themselves “astronauts.”
Heck, Katy Perry’s an astronaut. She travelled 62 miles into space on Blue Origin.
Perry was a sack of potatoes.
Throw the lawsuit out on the technicality that it’s the Department of War.
This lawsuit has to get laughed out of court, right? Right?
The facts are that you got censured by your employer. And Kelly literally wants to make a federal cast out of it. No. No. A thousand times no. You don’t get to make a federal case out of being censured by your boss.
Has there ever been a case like this before? Has there ever been a case of an employee suing in federal court over being censured by your boss?
HIs statements weren’t made on the Senate floor. Speech and debate clause is a non-starter. And free speech? Kelly is saying I can disrespect my superior officer. I can insight mutiny because I have free speech rights? No, Kelly. No. It doesn’t work that way.
This had better get laughed out of court.
Not i DC where the judges are afflicted with TDS, this will be settled by SCOTUS
Venue may be the problem. The Federal District Court does not seem to have jurisdiction. He needs to go through the administrative process and exhaust those avenues, then through the Military Courts up to the Court of Military Appeals and then he can appeal to SCOTUS. IMO no Federal District Court can/should act to intervene until he exhausts his remedies available through the Military Admin process and Military Court System.
Yep, if it does reach USSC, They’ll hit the stamp of “Failed to exhaust administrative appeals before suing.”
I think you are exactly right. Thanks.
Should be laughed out, but DC courts are so corrupt they’ll probably uphold whatever nonsense he is peddling. MarkS is right–this is yet another unnecessary waste of time that will ultimately reach SCOTUS for final adjudication.
He can stay a senator and continue to embarrass himself. His status as a senator is not connected to his status as a retired military officer. Any reduction in rank with accompanying reduction in military pension doesn’t affect him as a senator. Kelly is trying to draw a connection to the two that doesn’t exist. And as a retired flag officer, he’s still subject to the UCMJ whether he has another government job or not.
Arrogant @$$.
.
Oh, Mark, baby, stop digging.
The UCMJ. A gift that keeps on giving.
Yeah feels that way but only for certain categories of Retirees. I believe the distinction is gonna be the re-enlistment code on the DD-214. If it shows you would be eligible to serve in the future then you are probably covered but if you got a medical retirement with a not eligible for further service code then probably not.
If the UCMJ applies to him in this regard (and I do believe it does), then he’s claiming special exemptions from the jurisdiction of the UCMJ by way of his position as a senator. I don’t believe his current office can isolate him from the UCMJ. Like a dual national, he’s concurrently subject to more than one authority, with each able to impose its unique obligations and responsibilities, with neither capable of providing protection from the other. With regard to his constitutional claims to free speech, if as a retired officer the UCMJ still applies to his conduct, he should find no refuge there (as no active duty service person can either). As a former soldier and as a former employee of a major police organization, I’ve seen firsthand that one’s conduct doesn’t have to be criminal in order to be actionable under the special rules of military and police organizations. Any form of “conduct unbecoming” or that “brings disrepute” to the organization, or that is “disruptive to good order” can be actionable no matter that such language or actions are usually protected for citizens not subject to special jurisdictions.
If the UCMJ applies, much of the Bill of Rights does not. Most notably the 1st Amdt does not, and cannot. But neither does the 2nd Amdt. As for the 1st Amdt, you can speak when allowed to speak. Otherwise, you just follow orders.
Mr. Kelly made the remarks of his own free will. He was not under duress and had plenty of time to contemplate his words and their effect. He insinuated that Trumps orders are illegal orders not lawful orders encouraging defiance of the commander in chief. This is a perfect time to use the UCMJ to correct his wrong and send a message to others that sedition will not be tolerated
Most of the above comments are correct:
— The federal court does not have jurisdiction over military personnel matters.
— The speech and debate clause only applies when he’s on the floor of the Senate.
— As a “retired” commissioned officer, he remains subject to the UCMJ (not all veterans do.)
— He now needs to be court martialed, adding in his additional subsequent insubordination towards the SecDef and Commander in Chief.
— And, finally, since he thinks he’s a special free speech case compared with other active and retired military personnel, he should be given his druthers and discharged back into the general civilian population.
Find one Commassar Judge and besides pension he will get a big judgment reward as well.
Mark Kelly hasn’t been this relevant since a wacko Democrat shot his wife.
This really seems like an unnecessary fight.
The charge of “sedition” doesn’t truly fit as telling service members to not follow illegal orders is not seditious.
A better response from the Administration would be “thank you for reminding military members of the duty. Go do yours and stop attacking the people of the United States and using illegal lawfare against citizens and lawfully elected officials.”
I keep wondering about sheriffs who are members of National Guard units who have come out and said they will not follow the orders of their governor if ordered to confiscate weapons. They advise others not to follow what they consider to be “illegal orders” as well.
Isn’t that the same thing? (Governors are in the chain of command for instate National Guard actions.)
Isn’t a sheriff serving within the Guard saying “don’t follow illegal orders” the same as what the Senators did? Should they be facing reduction in rank / pension as well?
This fight makes no sense.
I appreciate your reply but you are flat wrong about sedition. It is the act of causing discontent, rebellion,or insurrection within the military. That was obviously the aim of the seditious six when they put out that video.
No its not.
”
“Sedition” is defined under 18 U.S.C. § 2384:
“[i]f two or more persons in [the U.S.], conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
Sedition is not necessarily tied to the military.
But assume you are right that sedition applies only to the military. Does that mean when drill sergeants / officers cover not obeying unlawful orders in basic or in other training, are they guilty of “sedition?”
There is no proof that the intent of the six senators were to cause “sedition.”
If that was the intent, then why haven’t the other five Senators been indicted with “sedition?”
The answer to your last question is simple — because the UCMJ contains harsher restrictions against dissing your chain of command than civil law does, and Kelly is the only one who is still subject to it.
Re: Sheriffs – not the same.
Kelly’s offense is found in what he said, but the purpose for saying it. If a sheriff says he won’t enforce unconstitutional orders, he’s telling the public how he will behave. When Mark Kelly joined others to “tell service members of their obligation to refuse illegal orders” their purpose wasn’t merely to inform, it was to sow division, disrupt good order and discipline, and to unhinge the POTUS from his authority to command the military. Intent and purpose matter.
It is exactly the same. The sheriffs are saying they will not obey unConstitutional orders and encourage other sheriffs and deputy sheriffs to do the same. In fact, there is a whole association of sheriffs who say they will not obey unConstitutional orders. Many of those sheriffs have served in the military as officers.
With all due respect, prove it.
You say that was their intent, so prove it. Do you have a memo, statement, an email that says that was their intent?
You are looking at their legal actions and proscribing illegal intent. That’s a tough sell.
Look, I get it. I understand what people are saying about this and why they believe what they believe. But if a drill instructor and an officer tells recruits and trainees to not follow unConstitutional and unlawful orders, how is that any different than what the Senators did in their video?
I personally think Kelly and his cohorts are idiots for making that video.
Being an idiot isn’t illegal.
No, it’s not the same thing. The Seditious Eight made claims that illegal orders were presently coming out of the White House. That changes everything,
Six. sorry. Not the Gang of Eight.
I don’t think that the Seditious Six actually said that Trump was issuing illegal orders. They were mostly just suggesting it. After all, why would they need to remind service members not to follow illegal orders, if they didn’t believe that President Trump and his DOD actually issued illegal orders.
You are incorrect.
The clear implication of this unnecessary, unasked-for announcement by butting-in “do-gooders is that there is/was some need for it because illegal orders are/were being uttered.
In addition. Article 89 (10 U.S.C. § 889) Insubordiination. Article 88 also prohibits commissioned officers from using “contemptuous words” against the President and other high-ranking officials, punishable by dismissal, forfeiture of pay, and confinement.
kelly will win this battle and ph shouldnt have bothered other than denouncing the seditious nature of yet another leftys call for socialism to rule …which it pretty much does …the usa
This is sue made me think about about the movie “A Few Good Men”, starring Jack Nicholson, as Col (O-6 like Kelly) Jessup, commanding the Marine detachment at Guantanamo Bay, and Tom Cruise, a young hotshot attorney, defending two low level Marines who had participated in a Code Red, in which another low level Marine died. Cruise’s main defense was that they were just following orders. In the end, even though they were following orders, the orders were essentially illegal.
But before they got there, Nicholson, defending himself, says that his orders are always followed, because when they aren’t, people (Marines) die, and that is justified because of the responsibility he has been given to protect the US. Then, Cruise asks, if Jessup had given the order for there not to be a Code Red, why was that Marine ever in jeopardy of a Code Red, if his orders are always obeyed? The answer was, as Cruise suspected, was that Jessup had issued a second set of orders to his XO for the Code Red. Which ultimately resulted in Jessup being charged himself for the death.
But what I was struck by was that superior officers must, by necessity, rely upon those under their command obeying all of their orders by superiors unquestioningly. As Jessup said, in his Speech, if they don’t follow orders exactly, people die.
What Kelly (also O-6) did was suggest that orders need only be obeyed, if they are legal. While that may be technically true, it suggested that every service member had to determine whether any order given them was legal, before obeying it.
The way that the military gets around this dilemma is with a strong presumption of legality of orders, which means that the primary responsibility for making sure that the orders are legal is with the officer giving the order, having responsibility for making sure that they are not illegal orders. And that presumption is why lower ranking service members shouldn’t need to make these decisions about the legality of these orders.