WASHINGTON — Sen. Mark Kelly is suing Defense Secretary Pete Hegseth after the top Pentagon official censured the former Navy captain, an effort Kelly said violates “numerous constitutional guarantees” and sets a dangerous precedent for other military veterans.
Kelly, a Democrat from Arizona, filed the lawsuit on Monday, naming Hegseth, the Defense Department, the Department of the Navy and John Phelan, the secretary of the Navy, as plaintiffs in the case. The 46-page lawsuit accuses Hegseth of violating the First Amendment and unfairly targeting Kelly for making statements the administration disagrees with.
“The Secretary’s letter makes clear on its face that he is disciplining Senator Kelly solely for the content and viewpoint of his political speech,” the lawsuit states. “Nothing in the statute authorizes the Department of Defense to reopen (Kelly’s military status) based on post-retirement political speech — and if it did, it would raise serious constitutional concerns and subject all of the nation’s retired veterans to an ever-present threat against their retirement.”
Hegseth announced last week that he formally issued the censure against Kelly and opened official proceedings to downgrade his retired rank and pay grade. Phelan is instructed to review Kelly’s status and provide a recommendation to the Defense Department within the next 45 days.
Kelly had 30 days to respond to the censure, with Monday’s lawsuit being the senator’s official appeal. Kelly argued that Hegseth’s order violates the First Amendment by “punishing disfavored expression or retaliating against protected speech,” a protection that Kelly says should be applied “with particular force” for lawmakers speaking on public policy.
Kelly also accused Hegseth and the administration of making a “verdict in advance” by announcing the investigation after President Donald Trump had called Kelly and five other lawmakers “traitors” who “should be arrested and put on trial.” In one social media post, Trump said “seditious behavior” is “punishable by DEATH!”
The group of lawmakers came under fire after posting a video late last year encouraging service members and those in the U.S. intelligence community not to follow orders that violate the law — even if they come from their superiors or directly from the Trump administration.
Hegseth’s review of Kelly cited that video as well as other public statements from June through December of last year as the basis for his possible demotion and pay cut. Hegseth had accused Kelly of characterizing “lawful military operations as illegal and counseled members of the Armed Forces to refuse lawful orders.”
Kelly listed his military experience in his lawsuit as being crucial to his work as a senator, noting it informs his policy on issues related to national security, the military, and veterans affairs. His criticism and pushback of the administration’s military policy, he said, falls under his responsibilities as a lawmaker — meaning his speech in the video is protected speech, he said.
It’s not yet clear whether Hegseth will respond to the lawsuit before a review is provided by Phelan. The Deseret News contacted the Defense Department, which declined to comment on pending litigation.