Judge appears likely to curtail Hegseth’s power to penalize Kelly for video

WASHINGTON — A federal judge on Tuesday appeared likely to temporarily block the Trump administration from disciplining Sen. Mark Kelly, D-Ariz., for criticizing Defense Secretary Pete Hegseth and reminding active-duty service members in a video that they did not have to follow illegal orders.

During a preliminary hearing in Kelly’s lawsuit against Hegseth and the Pentagon, Judge Richard J. Leon, an appointee of President George W. Bush, said the Trump administration was asking him to break with precedent in extending the free speech restrictions applied to active-duty service members to a retired member of the military.

“You’re asking me to do something that the Supreme Court has never done,” Leon said. The argument, he added, was a “bit of a stretch.”

He also raised questions about punishing a member of Congress for statements made in connection with his legislative responsibilities.

He said he aimed to issue a temporary decision in the case as early as next week.

The case springs from a video that Kelly and five other Democratic members of Congress released in November, in which they addressed military service members. “Our laws are clear,” the senator said. “You can refuse illegal orders.”

In response, Hegseth censured Kelly, a retired officer who receives pay and benefits and is still subject to military law. The secretary accused Kelly of sedition and a pattern of public statements that undermined military discipline, and he initiated a review of his comments that could result in a reduction of his retirement rank and pension.

Kelly sat at the front of the courtroom on Tuesday as his attorneys argued that the Trump administration was brazenly violating the separation of powers in seeking to punish a member of Congress for constitutionally protected speech.

Benjamin C. Mizer, an attorney for the senator, asked the judge to block Hegseth from taking further action on the matter before the court could fully adjudicate the case, or else risk a “dangerous” encroachment by the executive branch on the powers of the legislative branch.

As a member of the Senate Armed Services Committee with oversight authority over the Pentagon, Mizer said, Kelly had been well within his rights to publicly question Hegseth’s policy and personnel decisions. In addition to encouraging his active-duty counterparts to refuse illegal orders, Kelly has criticized the defense secretary for firing admirals and generals and surrounding himself with “yes men,” statements his attorneys argued were all protected speech.

But the administration argued that regardless of his position on the panel, Kelly was still subject to disciplinary action as a military retiree, a claim that appeared to trouble the court.

“How are they supposed to do their job?” asked Leon, referring to members of the congressional armed services committees.

In a filing before the hearing, attorneys for the senator argued that Kelly’s statements were also shielded by the section of the Constitution that protects House and Senate members’ speech. But the judge said he would not wade into the “thorny ticket” of arguments on that section, known as the “speech or debate” clause, until later in the case.

Mizer said failure to swiftly curtail the Defense Department’s ability to punish Kelly for his public comments while the case played out would “run the risk of chilling the speech of every retired veteran in this country.”

The judge made little effort to hide that he shared the concern. He told the attorneys for the administration that a decision not to temporarily block the Defense Department’s action could harm “many, many other retirees who wish to voice their opinion.”

The Trump administration argued that Leon had no authority to intervene in the disciplinary review of Kelly that was already underway.

Federal law makes clear that the military does not have to tolerate speech that “undermines the chain of command, encourages disobedience or erodes confidence in leadership,” the Defense Department said in a filing before the hearing.

“It would be very troubling,” said John Bailey, an attorney for the administration, if courts were in the business of “pausing or vetoing” decisions by the defense secretary on personnel matters.

But attorneys for Kelly said that the administration was relying entirely on legal examples of the military’s limiting the speech of active-duty service members, or civilians on military bases, and that neither provided a sufficient basis to ignore the charge of free speech violations.

The judge gave no indication that he was considering bowing out. He said that the case raised “novel” legal issues and that it would certainly be appealed no matter how he ultimately ruled.

Kelly said after the hearing that the case centered on the “freedom to speak out about our government.” “That’s what I’m fighting for,” the senator added, standing outside the courthouse. “I appreciate the judge’s quick and careful consideration in this case, given what is at stake here. A lot is at stake.”

This article originally appeared in The New York Times.