Arizona Sen. Mark Kelly appears likely to prevail in a court battle against the Pentagon over efforts by Defense Secretary Pete Hegseth to demote the former Navy captain and strip him of his retirement benefits — but the fight may not be over yet.
A federal appeals court seemed ready to dismiss Hegseth’s bid during a hearing on Thursday after two of the three judges defended Kelly’s right to tell active service members they can reject orders deemed illegal even if they come from the administration. That plea from Kelly was included in a video alongside five other lawmakers that was posted last year — prompting anger from the president and his top officials.
“Last year, I said something that the president didn’t like,” Kelly said after court proceedings in the U.S. Court of Appeals for the D.C. Circuit on Thursday. “It’s literally written into the (Defense Department’s) Law of War manual. That’s the same law that I was trained to follow, and that these veterans standing with me today were trained to follow, and it’s the same law that every veteran is trained to follow. And in response, the president said I should be prosecuted and hanged.”
Kelly sued the Pentagon earlier this year after Hegseth moved to censure the Arizona Democrat, seeking to strip him of his retired rank and pay grade. That effort from Hegseth came in response to a video in which Kelly told service members they don’t need to obey orders they find unconstitutional — a message President Donald Trump claimed amounted to treason.
“The president and the secretary of Defense picked the wrong guy,” Kelly said. “Because when it comes to our most fundamental rights, I will not back down, given what’s at stake. … We have the Constitution and the law on our side, and I’ve never been more confident than I am today.”
The video did not specify which orders, if any in particular, the lawmakers found to be illegal. However, the missive came shortly after a series of strikes against suspected drug trafficking boats in the Caribbean and eastern Pacific that several lawmakers questioned as being constitutional.
The video also coincided with Trump’s decision to deploy state National Guard members to a handful of Democratic-led cities to tamp down crime rates.
But Hegseth argued the advice to not follow potentially illegal orders is one that is etched into law and the DOD’s requirements for service members — something the majority of judges on Thursday echoed.
“These are people who served their country — many put their lives on the line,” said Judge Florence Pan, a Biden appointee. “And 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.”
While the appeals court seems likely to dismiss the case, it could likely still end up before the Supreme Court.