Judge appears likely to side with Mark Kelly in case challenging Pentagon’s efforts to punish him over ‘illegal orders’ video

By Devan Cole, Austin Culpepper, CNN

(CNN) — A federal judge appears likely to side with Mark Kelly in the Democratic senator’s case alleging the Pentagon is violating his First Amendment rights through its effort to punish him over his urging of US service members to refuse illegal orders.

During a high-stakes hearing in Washington, DC, on Tuesday, Senior US District Judge Richard Leon seemed troubled by the Trump administration’s suggestion that he take the unprecedented step of expanding existing loopholes to First Amendment protections for active-duty service members to also cover retirees such as Kelly.

“You’re asking me to do something the Supreme Court or the DC Circuit has never done,” Leon told a Justice Department lawyer defending the Pentagon’s efforts. “That’s a bit of a stretch.”

Leon, an appointee of former President George W. Bush, said he would likely issue a decision on Kelly’s request for a court order blocking the Pentagon’s efforts by February 11.

The hearing was the latest flashpoint in the Trump administration’s campaign to use the levers of government to punish high-profile critics of the president. In several other cases involving Donald Trump’s perceived political enemies, federal judges have stymied the president’s retribution crusade, killing criminal cases brought against former FBI Director James Comey and New York Attorney General Letitia James and ruling against the president’s efforts to hamstring the work of Mark Zaid, a notable whistleblower attorney.

Kelly’s case, brought last month, came just after Defense Secretary Pete Hegseth announced the Pentagon would pursue administrative action against the senator, including reducing his last military rank, which would lower the pay he receives as a retired Navy captain, and issuing a letter of censure.

Hegseth and Trump have publicly attacked Kelly over a video posted in November by the Arizona lawmaker – and five other Democrats 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 to Kelly last month in the censure letter.

But lawyers for the senator argue the Pentagon’s actions run afoul of his First Amendment rights and that his comments are protected by 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. Additionally, they say the moves violate his due process rights, describing them as “foreordained decisionmaking.”

CNN’s Haley Britzky, Natasha Bertrand and Zachary Cohen contributed to this report.

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