Pete Hegseth Wants the D.C. Circuit To Let Him Punish a Senator for Criticizing Him

Mark Kelly, a Democrat, is an American citizen and the senior U.S. senator representing Arizona. He serves on the Senate’s Armed Services Committee and Select Committee on Intelligence. But according to Defense Secretary Pete Hegseth, Kelly’s status as a retired Navy captain constrains what he is allowed to say in those other capacities. Hegseth thinks he has the authority to punish Kelly, a legislator whose job includes oversight of Hegseth’s department, for criticizing his leadership of the Pentagon and the Trump administration’s military policies.

In February, U.S. District Judge Richard Leon, a George W. Bush appointee, rejected that astonishing claim, deeming it inconsistent with the First Amendment. Leon issued a preliminary injunction that barred Hegseth from “giving effect” to a letter of censure that faulted Kelly for saying things that irked Hegseth and from penalizing Kelly by reducing his retirement grade and pension. Now Hegseth is asking the U.S. Court of Appeals for the D.C. Circuit to override that injunction, reiterating his argument that retired military officers are subject to punishment, potentially including criminal prosecution, for political speech that he unilaterally deems “prejudicial to good order and discipline in the armed forces.”

In an amicus brief filed on Friday, 73 former admirals, generals, and service secretaries who held positions under presidents of both major parties emphasize the alarming implications of that position. Hegseth has taken “the unprecedented step of punishing a U.S. Senator and retired Navy Captain for accurate statements of law and criticisms of federal policy,” they note. “No retired servicemember could be lawfully sanctioned for these statements, least of all one whose public office requires that he speak on these issues.”

If Hegseth’s vendetta against Kelly were allowed to proceed, the brief warns, it “would chill public participation by veterans everywhere. Diverse viewpoints are critical to a free marketplace of ideas, and silencing veteran voices would be especially harmful—depriving the public of experienced and informed views on critical matters of national security.”

According to the brief, that threat already has had an intimidating impact. “Amici are aware of many fellow veterans who would participate in public debate, but are declining to do so today, fearing official reprisal,” it says. “This chilling effect risks silencing dissent from those who served in uniform—a critical ingredient in American self-governance dating back to those who fought for our independence.”

Hegseth’s beef with Kelly stems mainly from a November 18 video in which he and five other Democratic members of Congress reminded military personnel of their duty to “refuse illegal orders.” That obligation is legally uncontroversial. “Members of
the armed forces must refuse to comply with clearly illegal orders to commit
law of war violations,” the Defense Department says. “Through rigorous instruction and tragic lessons from history,” Pam Bondi, who served as President Donald Trump’s attorney general until last month, noted in 2024, “military officers are trained not to carry out unlawful orders, and they know they may be held criminally liable if they [do] carry out such orders.”

The video did not give any specific examples of unlawful orders, but it was critical of the Trump administration. “This administration is pitting our uniformed military and intelligence community professionals against American citizens,” Kelly et al. said. Addressing “members of the military,” they noted that “you all swore an oath to protect and defend” the Constitution. But “right now,” they warned, “the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders.” Although “we know this is hard” and “it’s a difficult time to be a public servant,” they added, “your vigilance is critical” and “we have your back.”

Trump was apoplectic. “It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” he wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” He added that “their words cannot be allowed to stand” because “we won’t have a Country anymore!!!”

Hegseth echoed that assessment. “The video made by the ‘Seditious Six’ was despicable, reckless, and false,” Hegseth said in an X post. “Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of ‘good order and discipline.’ Their foolish screed sows doubt and confusion—which only puts our warriors in danger.” While “five of the six individuals in that video do not fall under [military] jurisdiction,” he added, Kelly “is still subject to [the Uniform Code of Military Justice]—and he knows that.”

The letter of censure that Hegseth sent Kelly on January 5 falsely stated that Kelly had advocated “resistance to lawful orders”—a mischaracterization that Assistant Attorney General Brett Shumate repeats over and over again in his D.C. Circuit brief. Hegseth also inaccurately claimed that Kelly “identified [himself] as ‘a Captain in the United States Navy.'” Kelly actually said, “I was a captain in the United States Navy” (emphasis added).

In addition to the video, Hegseth cited “a sustained pattern of public statements that characterized lawful military operations as illegal and counseled members of the Armed Forces to refuse orders related to those operations.” Notably, he did not quote any specific statements fitting the latter description.

Kelly had been critical of Trump’s domestic military deployments. He participated in hearings on the subject and co-sponsored legislation that would have increased congressional oversight and restricted the president’s use of the National Guard. He also criticized Trump’s murderous military campaign against suspected cocaine smugglers. But judging from the evidence that Hegseth has been able to muster, Kelly never explicitly “counseled members of the Armed Forces to refuse orders” related to specific “operations.”

The closest Kelly came to that was when he was asked, during a November 30 interview on CNN, whether “a second strike to eliminate any survivors” of a U.S. attack on an alleged drug boat would constitute “a war crime”—specifically, a violation of the rule against attacking shipwrecked sailors. “It seems to,” Kelly said. “I have got serious concerns about anybody in that chain of command stepping over a line that they should never step over.” He added that he would have refused to follow such an order.

Hegseth resented Kelly’s criticism of the boat strikes, which he said amounted to an accusation that Hegseth was guilty of war crimes. Hegseth complained that Kelly had defended the video, that he had described the principle it enunciated as “non-controversial,” and that he had said “intimidation would not work” to silence him. Hegseth also did not like it when Kelly said he would “ALWAYS defend the Constitution.” And he was mad that Kelly had faulted him for “firing admirals and generals” and surrounding himself with “yes men.”

This catalog of complaints is hard to square even with the position that Shumate takes on Hegseth’s behalf. Shumate concedes that “retired servicemembers like Kelly undoubtedly…have a broad right to criticize military policy, participate in public debate, and express even vehement disagreement with military leaders.” Hegseth nevertheless seems to view criticism of him as inherently threatening to national security.

As Hegseth told it, the unifying theme of Kelly’s comments was his determination to interfere with military discipline. “When viewed in totality, your pattern of conduct demonstrates specific intent to counsel servicemembers to refuse lawful orders,” Hegseth wrote. “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 averred that Kelly had “undermine[d] the chain of command,” “counsel[ed] disobedience,” “create[d] confusion of duty,” brought “discredit upon the Armed Forces,” and engaged in “conduct unbecoming of an officer.” Those sins, he said, amply justified censure and might justify cutting Kelly’s retirement pay. “If you continue to engage in conduct prejudicial to good order and discipline,” he warned, “you may subject yourself to criminal prosecution or further administrative action.”

In defense of these actions, Hegseth cites Parker v. Levy, a 1974 case in which the Supreme Court upheld speech restrictions imposed on active-duty service members. That case involved Capt. Howard Levy, an Army physician assigned to Fort Jackson in South Carolina during the Vietnam War. Levy had publicly said that black soldiers “should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States.” He also stated that “Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.”

As Kelly’s lawyers note in their D.C. Circuit brief, that situation was starkly different from the senator’s. “Far from resting on all fours with this case, Parker involved an
active-duty officer directly urging soldiers at his wartime military post to refuse specific orders to deploy and fight,” they say. “Senator Kelly, by contrast, is a retired officer and legislator who publicly called, alongside other Members of Congress, for adherence to settled law, not defiance of it. Nor have Defendants ever cited a single case expanding Parker‘s application from active-duty servicemembers to retirees like Senator Kelly.”

Leon made the same point when he issued his preliminary injunction. “Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” he wrote. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”

The defendants “rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain,” Leon noted. If they are wrong about that, as Leon concluded they were, Hegseth’s retaliation against Kelly is obviously unconstitutional, since the speech that triggered it is “unquestionably protected” by the First Amendment, as Leon also held.

Urging the D.C. Circuit to overturn that decision, Shumate argues that Kelly is still part of the armed forces, noting that retired officers theoretically can be called back to active duty “as a manpower source of last resort after other sources are determined not to be available” or as “a source for unique skills not otherwise obtainable.” But even in that unlikely event, Kelly’s lawyers note, Defense Department policy says those officers “should be deployed [only] to civilian defense jobs.” Shumate nevertheless maintains that Kelly “may be recalled to active duty ‘at any time'” to “command the very servicemembers whose disobedience he just urged”—a claim that Kelly’s lawyers call “far-fetched at best.”

The government “cannot justify sweeping restrictions on a retiree’s speech based on the hypothetical threat of recall to active duty,” says the brief from former admirals, generals, and service secretaries. “Lawful recalls are extremely rare,” they note, and “recall for the clear purpose of retaliating against a retiree for their protected speech” would violate the First Amendment. “A recall like the one hypothesized by the government would be, in our understanding, without precedent,” they add. “For good reason: the government’s power to address legitimate staffing exigencies does not authorize a perpetual gag order over every retired military member’s political speech.”