By Devan Cole, CNN
(CNN) — A federal appeals court appeared ready Thursday to reject Defense Secretary Pete Hegseth’s effort to punish Democratic Sen. Mark Kelly over his call to US service members to refuse illegal orders.
A majority of judges on a three-member panel at the DC US Circuit Court of Appeals spent more than an hour and a half throwing cold water on arguments pushed by the Justice Department to revive Hegseth’s plans, which were shut down earlier this year by a federal judge who said they were unconstitutionally retaliatory.
“That is something that is taught at Annapolis to every cadet,” Judge Nina Pillard, an appointee of former President Barack Obama, said of Kelly’s comments last year.
“These are people who served their country – many put their lives on the line,” said Judge Florence Pan, an appointee of former President Joe Biden. “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.”
The third member of the panel – Judge Karen Henderson, an appointee of former President George H. W. Bush – seemed at least somewhat sympathetic to the administration’s arguments.
Kelly, a retired Navy captain and former astronaut who represents Arizona, sued Hegseth in January after the secretary 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.
Both Hegseth and President Donald Trump have attacked Kelly over a video posted in November by the Arizona lawmaker and five other Democrats with a history of military or intelligence service that urged service members not to obey unlawful orders that could be issued by the Trump administration.
In the video, the lawmakers don’t specify which orders service members have received, or might receive, that could be illegal. But it was released as US military officials, including the commander of US Southern Command, and US allies, including the UK, questioned the legality of a series of military strikes targeting suspected drug traffickers in the Caribbean and eastern Pacific and as the Trump administration faced multiple court challenges to Trump’s decision last year to send scores of federalized state National Guard members to Democratic-led cities.
Federal prosecutors in Washington, DC, also attempted to indict the lawmakers over the video, but were rebuffed by a grand jury in a remarkable push back that is rarely seen.
Outside the courthouse after the hearing, Kelly issued a warning about the purpose of the censure effort: “If you say something that the president and this administration does not like, they’re going to come after you.”
The administration, he said, argued in court that “any time a retired veteran says something the secretary of Defense doesn’t like, they can be punished.”
“The people who have given the most in service to this country wouldn’t be free to say what they believe,” Kelly added.
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