Mark Kelly Pentagon Lawsuit 2026, Judge Likely To Block Hegseth’s Censure Over “Illegal Orders” Video—First Amendment On TrialSERP Analysis Starting…
A federal judge appears likely to side with Senator Mark Kelly in his lawsuit against Defense Secretary Pete Hegseth, signaling the Pentagon violated Kelly’s First Amendment rights by threatening to cut his military retirement pay and demote him over a video urging troops to refuse illegal orders. Senior US District Judge Richard Leon said he would likely issue a decision on Kelly’s request for a preliminary injunction blocking the Pentagon’s actions by February 11, 2026.
Kelly, a retired Navy captain and former astronaut, filed suit in January 2026 after Secretary Hegseth threatened to demote him in rank and reduce his military retirement benefits. The case tests whether the executive branch can punish sitting members of Congress for political speech years after they leave military service.
What Is The Mark Kelly Pentagon Lawsuit About?
In January 2026, Senator Mark Kelly filed suit in U.S. District Court for the District of Columbia challenging the Department of Defense’s decision to formally censure him and initiate proceedings that could reduce his retired military rank and pension.
The controversy stems from a video Kelly made with other Democratic members of Congress in November 2025 urging service members to refuse unlawful orders. Trump wrote on social media: “Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???”
On January 5, 2026, Hegseth announced the Pentagon was taking administrative action to cut Kelly’s retirement pay, claiming Kelly violated federal law prohibiting undermining good order and discipline within the military.
The Legal Claims: First Amendment & Speech Or Debate Clause
At the heart of Kelly’s lawsuit is a First Amendment retaliation claim. Kelly argues his participation in the video constituted protected speech on a matter of public concern and the proceedings amount to punishment for expressing views disfavored by the executive branch.
Kelly’s lawyers also argue the Pentagon’s actions violate the Constitution’s Speech and Debate Clause, which states that a sitting member of Congress is protected from certain inquiries and procedures that originate outside of Congress.
Kelly contends that allowing the Pentagon to punish a sitting senator for such speech would undermine legislative independence and invite executive intimidation of lawmakers.
The Courtroom Showdown: Judge Skeptical Of Pentagon’s Position
During Tuesday’s February 3, 2026 hearing, Judge Leon seemed troubled by the Trump administration’s suggestion that he expand existing loopholes to First Amendment protections for active-duty service members to also cover retirees like Kelly.
“You’re asking me to do something the Supreme Court or the DC Circuit has never done,” Leon told Justice Department lawyer John Bailey. “That’s a bit of a stretch”.
When pressed by the judge, Justice Department lawyer John Bailey failed to raise any cases in which veterans’ speech was limited in the manner now sought by the government.
Leon noted that Kelly is not the first retired service member to serve in Congress and speak out against the Pentagon, expressing concern that all retired service members in the House or Senate would be unable to properly legislate if they can’t offer their opinions. “Is it your position that they’re not supposed to offer their position on military matters? How are they supposed to be able to do their job?”
What The Pentagon Argues
The Justice Department argues federal courts don’t have the power to wade into such military disciplinary matters and that Kelly’s lawsuit is ill-timed since the administrative actions are still in their earliest stages.
“The military is not required to tolerate speech by its own members – active or retired – that undermines the chain of command, encourages disobedience, or erodes confidence in leadership,” the Justice Department wrote in court papers.
Justice Department attorney Bailey argued Kelly doesn’t deserve a “get out of jail free card” simply because he’s a U.S. senator, insisting restrictions on military speech should extend to retired members.
What’s At Stake: Millions Of Veterans’ Free Speech Rights
Kelly’s attorneys argued the Department of Defense seeks to foist an “unprecedented punishment” upon the senator for protected speech but warned it’s not only Kelly’s First Amendment rights at risk. “Their rule would extend to every single retired service member in the country,” said lawyer Benjamin Mizer.
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Among the Democrats who participated in the video, Kelly is the only former service member to reach active-duty retirement, which requires 20 years of service. Kelly, who flew combat missions during Operation Desert Storm in Iraq, still receives benefits from the Defense Department.
Similar constitutional cases like the NPR lawsuit against Trump, and Jake Kidder Fourth Amendment lawsuit, show federal courts actively scrutinize government retaliation against protected speech and constitutional rights.
FAQs About The Mark Kelly Pentagon Lawsuit
What is the current status of the lawsuit?
Judge Leon will likely rule by February 11, 2026 on Kelly’s request for a preliminary injunction blocking the Pentagon’s censure and retirement pay cuts.
Could Kelly go to prison?
In early January, Hegseth backed down from his threat to court-martial Kelly and instead sought to reduce Kelly’s retirement pay. Criminal prosecution is no longer on the table.
What happens if Kelly wins?
The court could issue an injunction blocking the Pentagon from reducing Kelly’s rank or retirement benefits, and potentially establish precedent protecting retired service members’ free speech.
Can other retired military members in Congress be targeted?
Kelly’s lawsuit argues: “Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate”.
Where can I find official case documents?
Search PACER.gov for U.S. District Court for the District of Columbia case filings under Kelly v. Hegseth.
Last Updated: January 30, 2026
Disclaimer: This article provides information about Senator Mark Kelly’s lawsuit against the Pentagon based on court filings and public hearings. It is not legal advice.
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Sarah Klein, JD, is a licensed attorney and legal content strategist with over 12 years of experience across civil, criminal, family, and regulatory law. At All About Lawyer, she covers a wide range of legal topics — from high-profile lawsuits and courtroom stories to state traffic laws and everyday legal questions — all with a focus on accuracy, clarity, and public understanding.
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