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.—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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