Sen. Mark Kelly files lawsuit alleging Hegseth violated his rights with push for punishment over illegal orders video

By Haley Britzky, CNN

(CNN) — Lawyers for Sen. Mark Kelly filed a lawsuit Monday seeking to block Secretary of Defense Pete Hegseth’s move to cut Kelly’s retirement pay and reduce his rank in response to Kelly’s urging of US service members to refuse illegal orders. The lawsuit argues punishing Kelly violates the First Amendment and will have a chilling effect on legislative oversight.

“If permitted to stand, the Secretary’s censure and the grade-determination proceedings that he has directed will inflict immediate and irreparable harm,” the lawsuit says. “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.”

Hegseth and the Defense Department have not yet responded to a request for comment.

Kelly’s lawsuit, which also names the Defense Department, Navy and Navy Secretary, comes a week after Hegseth announced the Pentagon would pursue administration action against Kelly, including reducing the pay Kelly receives as a retired Navy captain, and issuing a secretarial letter of censure. Hegseth and President Donald Trump have publicly attacked Kelly over a video posted in November by Kelly – and five other lawmakers – with a history of military service, urging service members not to obey unlawful orders that could be issued by the Trump administration.

“When viewed in totality, your pattern of conduct demonstrates specific intent to counsel servicemembers to refuse lawful orders. This pattern demonstrates that you were not providing abstract legal education about the duty to refuse patently illegal orders. You were specifically counseling servicemembers to refuse particular operations that you have characterized as illegal,” Hegseth wrote in Kelly’s letter of censure, which was obtained by CNN.

Trump said in social media posts that the lawmakers “should be in jail right now” and called the act “sedition.”

In the suit, Kelly’s legal team argues that the punishment of Kelly is retaliation meant to stifle criticism.

“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,” it says.

Hegseth’s announcement that the Pentagon was pursuing administration action meant he was sending the decision back to the Department of the Navy to determine Kelly’s retired rank, said Rachel VanLandingham, a former Air Force Judge advocate and current law professor at Southwestern Law School.

Still, VanLandingham stressed that there is “no legal basis” for knocking a retired officer down in rank for actions like Kelly’s after their retirement. An officer could be reduced in grade if they were convicted in a court martial — meaning they would have to be brought back onto active duty to face military justice — or if they are convicted in a civilian court for something like espionage. Otherwise, retired officers could have their rank reduced for misconduct that occurred while they were on active duty. Kelly’s participation in the illegal orders video took place years after his retirement.

“Those are the only ways under federal law that an officer who has already retired can lose any retirement pay,” VanLandingham said, calling Hegseth’s efforts an “abuse of power.”

The tension between Kelly and Hegseth has boiled over into at least one in-person confrontation, when Kelly was asking Hegseth questions during a classified briefing to Senators. CNN previously reported that Hegseth turned to accuse Kelly of hurting unit cohesion and undermining the chain of command; two people who heard the remarks told CNN that Kelly repeated his operational questions about the briefing, while Hegseth continued to harp on the video Kelly and the other lawmakers released.

The content of the video is “not different whatsoever” from what military lawyers advise troops, Rachel VanLandingham, a former Air Force Judge advocate and current law professor at Southwestern Law School, previously told CNN.

“What they said was just a generalized version of what military lawyers brief, what folks in basic training are briefed on, folks at professional military education courses are briefed on,” she said. “A, it was well within the framework of an appropriate articulation of the law, and B, it was well within their duties as sitting senators and representatives to reiterate this advice, because they’re responsible for the law that these service members were supposed to be following.”

The lawsuit filed on Monday says the activity Hegseth points to in his letter of censure are “quintessential legislative and oversight activity,” and lie at the core of “the long-recognized immunity for legislative acts.” The suit also says Kelly is protected by a law which establishes immunity for legislative activity, and that Hegseth’s action “erodes the separation of powers” by punishing a sitting Senator “through military proceedings for his political speech.”

Kelly said in a statement Monday that Hegseth is “coming after what I earned through my twenty-five years of military service.”

“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 said. “That’s not the way things work in the United States of America, and I won’t stand for it.”

This story has been updated with additional reporting.

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