Kelly v. Hegseth — Rule of Law (DC)

On Jan. 12, 2026, U.S. Sen. Mark Kelly sued Secretary of Defense Pete Hegseth and others, alleging that disciplinary measures taken against him amounted to “punishing disfavored expression” and “retaliating against protected speech,” in violation of his First Amendment and due process rights.

The punitive measures stem primarily from a video that Kelly, a retired U.S. Navy captain, and other veterans and former national security personnel serving in Congress published on social media, in which they remind members of the military and intelligence community that they have a legal obligation to refuse with illegal orders.

“Americans trust their military. But that trust is at risk,” the congressmembers said in the video. “This administration is pitting our uniformed military and intelligence community professionals against American citizens.”

In response, Hegseth formally censured Kelly and initiated proceedings within the Department of Defense to determine if his military rank and pay should be demoted in retirement.

Kelly’s lawsuit seeks to declare Hegseth’s actions unlawful and block the censure and any other further measures from taking effect.

On Jan. 20, 2026, 41 former military leaders—including former secretaries of the U.S. Army and Navy, retired senior officers, and Vet Voice Foundation—filed an amicus brief in the case supporting Kelly’s motion to temporarily block Hegseth’s disciplinary measures.

The group, represented by the States United Democracy Center and Protect Democracy Project, argues that the defendants’ actions, if allowed to stand, “would chill public participation by veterans around the country.” It also argues that Kelly’s remarks that the military is obligated to not follow unlawful orders are a “restatement of a settled principle of military law” and do not warrant discipline by the Defense Department.

On Feb. 12, 2026, the judge overseeing the case granted Kelly’s request for a preliminary injunction and blocked Hegseth’s punitive actions from taking effect.

In his opinion, the judge cited and quoted from the arguments made by the military leaders and Vet Voice Foundation in the amicus brief.

“Per an amicus brief submitted by forty-one retired officers, many veterans are today ‘declining’ to ‘participate in public debate on important and contested issues’ out of fear of ‘official reprisal,’” he wrote. “That is a troubling development in a free country!”

The judge said retired veterans should be able to add their “distinct perspective and specialized expertise” to the public discourse on military policy issues.

Quoting once more from the military leaders’ brief, the judge writes that allowing Hegseth’s disciplinary actions against Kelly to stand “would further chill the speech of these retired servicemembers and thereby ‘impoverish public debate on critical issues relating to our military and its role in domestic and foreign affairs.’”

Hegseth could appeal the decision.

• Opinion (issued Feb. 12, 2026)
• Amicus brief (filed Jan. 20, 2026)
• Complaint (filed Jan. 12, 2026)

• NBC News: Trump administration fails to indict Democrats involved in ‘illegal orders’ video (Feb. 10, 2026)
• The Associated Press: Slotkin rejects Justice Department request for interview on Democrats’ video about ‘illegal orders’ (Feb. 5, 2026)
• CBS News: Trump administration investigates 5 Democratic lawmakers over their video message to troops. Here’s what we know. (Jan. 14, 2026)
• The Associated Press via Military.com: Sen. Kelly Sues the Pentagon Over Attempts to Punish Him, Declaring It Unconstitutional (Jan. 12, 2026)
• NPR: Sen. Mark Kelly fires back after Hegseth threatens his rank and retirement pay (Jan. 5, 2026)