Today, Democratic senator Mark Kelly of Arizona sued Defense Secretary Pete Hegseth, the Defense Department, Navy Secretary John Phelan, and the Navy Department for violating his First Amendment rights, the Speech and Debate Clause of the U.S. Constitution, the separation of powers, due process, the law that establishes ranks for retired commissioned officers (10 USC 1370), and the Administrative Procedure Act that establishes the ways in which agencies can make regulations.
While this sounds complicated, at its heart it's about the attempt of the Donald J. Trump administration to trample Congress and create a military loyal to Trump alone.
Defense Secretary Hegseth came to his position from his job as a weekend host on the Fox News Channel. Before that, he served in the Army Reserve and the National Guard but, as Kelly and Senator Tammy Duckworth (D-IL) noted in a Military Times op-ed questioning Hegseth's fitness for the position, he never rose to a command position and his "track record falls short of military standards." He is the least-experienced defense secretary in U.S. history.
His attack on Kelly, who is a retired Navy officer and astronaut, began after Kelly and five other Democrats in Congress—Senator Elissa Slotkin (D-MI), and Representatives Chris Deluzio (D-PA), Maggie Goodlander (D-NH), Chrissy Houlahan (D-PA), and Jason Crow (D-CO)—all of whom are veterans, released a video on November 18, 2025, in which they warned members of the military and the intelligence community that the administration was "pitting our uniformed military and intelligence community professionals against American citizens."
"Like us, you all swore an oath to protect and defend this Constitution," the video continued. "Right now, 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; you must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it's a difficult time to be a public servant. But whether you're serving in the CIA, the Army, our Navy, the Air Force, your vigilance is critical."
The lawmakers concluded: "Know that we have your back, because now, more than ever, the American people need you. We need you to stand up for our laws, our Constitution, and who we are as Americans."
The video simply reiterated the law, but White House deputy chief of staff Stephen Miller promptly posted on social media, "Democrat lawmakers are now openly calling for insurrection," and by the next day, Trump was reposting comments that called for the lawmakers to be arrested, "thrown out of their offices," "frog marched out of their homes at 3:00 AM with FOX News cameras filming the whole thing," and "charged with sedition." He reposted "Insurrection. TREASON!" and a message from a user who wrote: "HANG THEM GEORGE WASHINGTON WOULD!!"
On November 24, the "Department of War" posted on social media that it was investigating Kelly, after "serious allegations of misconduct." It suggested that Kelly could be recalled to active duty "for court-martial proceedings or administrative measures."
Over a photograph of the medals on his uniform, Kelly responded on social media: "When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA, and every day since I retired—which I did after my wife Gabby was shot in the head while serving her constituents.
"In combat, I had a missile blow up next to my jet and flew through anti-aircraft fire to drop bombs on enemy targets. At NASA, I launched on a rocket, commanded the space shuttle, and was part of the recovery mission that brought home the bodies of my astronaut classmates who died on Columbia. I did all of this in service to this country that I love and has given me so much.
"Secretary Hegseth's tweet is the first I heard of this. I also saw the President's posts saying I should be arrested, hanged, and put to death.
"If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won't work. I've given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution."
Charlotte Clymer, who writes Charlotte's Web Thoughts, walked readers through Kelly's citations. They include the Navy Pilot Astronaut Badge, earned by fewer than 200 service members, and the NASA Distinguished Service Medal. As Clymer notes, the NASA Distinguished Service Medal is "the highest award bestowed by NASA and one of the rarest awards in the federal government." Since the medal was created in 1959, it has been awarded fewer than 400 times.
On January 5, Hegseth issued a formal censure of Kelly, saying Kelly's call for military personnel to refuse unlawful orders "undermines the chain of command," "counsels disobedience," "creates confusion about duty," "brings discredit upon the armed forces," and "is conduct unbecoming an officer." Hegseth said he was directing the secretary of the Navy to look into reducing Kelly's retirement grade.
Kelly responded: "Over twenty-five years in the U.S. Navy, thirty-nine combat missions, and four missions to space, I risked my life for this country and to defend our Constitution—including the First Amendment rights of every American to speak out. I never expected that the President of the United States and the Secretary of Defense would attack me for doing exactly that.
"My rank and retirement are things that I earned through my service and sacrifice for this country. I got shot at. I missed holidays and birthdays. I commanded a space shuttle mission while my wife Gabby recovered from a gunshot wound to the head—all while proudly wearing the American flag on my shoulder. Generations of servicemembers have made these same patriotic sacrifices for this country, earning the respect, appreciation, and rank they deserve.
"Pete Hegseth wants to send the message to every single retired servicemember that if they say something he or Donald Trump doesn't like, they will come after them the same way. It's outrageous and it is wrong. There is nothing more un-American than that.
"If Pete Hegseth, the most unqualified Secretary of Defense in our country's history, thinks he can intimidate me with a censure or threats to demote me or prosecute me, he still doesn't get it. I will fight this with everything I've got—not for myself, but to send a message back that Pete Hegseth and Donald Trump don't get to decide what Americans in this country get to say about their government."
Kelly's lawsuit notes that the First Amendment prohibits the government from retaliating against those engaging in protected speech and that the Constitution's protection of the speech and debate of lawmakers provides additional safeguards. Indeed, the lawsuit says, "never in our nation's history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech."
If the court permits that unprecedented step, the lawsuit argues, it would allow the executive branch to punish members of Congress for engaging in their duty of congressional oversight.
Kelly asked the court "to declare the censure letter, reopening determination, retirement grade determination proceedings, and related actions unlawful and unconstitutional; to vacate those actions; to enjoin their enforcement; and to preserve the status of a coequal Congress and an apolitical military."
The warning Kelly and the other five Democratic lawmakers offered to military personnel that they must refuse illegal orders took on renewed meaning this evening. Charlie Savage, Eric Schmitt, John Ismay, Julian E. Barnes, Riley Mellen, and Christiaan Triebert of the New York Times reported that when the U.S. military attacked a small boat apparently coming from Venezuela on September 2, 2025, the first such attack of what now number at least 35, it used a secret aircraft that had been disguised to look like a civilian plane.
The journalists report that disguising a military aircraft to look like a civilian plane is a war crime called "perfidy." "Shielding your identity is an element of perfidy," former deputy judge advocate general of the U.S. Air Force retired Major General Steven J. Lepper told the reporters. "If the aircraft flying above is not identifiable as a combatant aircraft, it should not be engaged in combatant activity." The Defense Department manual concerning the law of war explains that combatants must distinguish themselves from the civilian population and may not "kill or wound the enemy by resort to perfidy."
It explicitly prohibits "feigning civilian status and then attacking."
—
