Defense Secretary Pete Hegseth has moved to revive his dispute with Sen. Mark Kelly (D-Ariz.), appealing a federal court ruling that blocked the Pentagon from punishing the Democratic lawmaker over a video urging U.S. service members to defy “illegal orders.”
On Tuesday, the Department of Justice filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit on behalf of Hegseth, the Department of Defense, the U.S. Navy and Navy Secretary John Phelan.
The appeal follows a ruling earlier this month by U.S. District Judge Richard Leon, who determined the Pentagon likely violated Kelly’s First Amendment rights — and those of “millions of military retirees” — when it formally censured him on Jan. 5. (RELATED: Federal Judge Blocks Pentagon Bid To Censure Sen. Mark Kelly)
Leon, who was appointed by former President George W. Bush, wrote that the military’s stricter rules governing speech are intended to preserve discipline among active-duty troops but have never been applied to retired service members.
“I will not be the first to do so,” Leon wrote, warning that the Pentagon’s actions threatened the constitutional freedoms of millions of retired veterans.
The judge accused Defense Department officials of “trampling” on Kelly’s free speech rights and argued that retirees are entitled to stronger protections from government punishment.
Quoting Bob Dylan, Leon added, “You don’t need a weatherman to know which way the wind blows,” criticizing what he described as an obvious overreach.
Leon’s ruling blocked the Pentagon from demoting Kelly from his retired rank of captain or reducing his military retirement pay. Hegseth responded shortly afterward by vowing to appeal the decision.
Kelly reacted to the appeal by reposting coverage of the filing on X.
“These guys don’t know when to quit,” he wrote. “A federal judge told Donald Trump and Pete Hegseth that they violated my constitutional rights and chilled the free speech of millions of retired veterans.”
“There is only one reason to appeal that ruling: to keep trampling on the free speech rights of retired veterans and silence dissent,” Kelly continued. “I went to war to defend Americans’ constitutional rights and I won’t back down from this fight, no matter how far they want to take it.”
Hegseth previously criticized Kelly on X following the district court’s ruling, writing: “Sedition is sedition, ‘Captain.’”
The dispute stems from a 90-second video posted in November by a group of Democratic lawmakers with military and intelligence backgrounds, urging service members to “refuse illegal orders.” The video was first posted by Sen. Elissa Slotkin (D-Mich.) and also featured Reps. Jason Crow (D-Colo.), Chris Deluzio (D-Pa.), Maggie Goodlander (D-N.H.) and Chrissy Houlahan (D-Pa.), all military veterans.
Hegseth previously said an investigation was launched into Kelly because he is formally retired from the military and therefore remains subject to Pentagon jurisdiction.
A grand jury in Washington, D.C., later declined to indict the group after the Justice Department sought charges.
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Who decides what military orders are illegal? Does the average person who is in uniform? What kind of a disciplined military force would that cause to be?
And what kind of civilian person feels that they can tell a military person that they can arbitrarily decide for themselves what is legal and what is not.
Yes, if an order is obviously not legal, it is correct to not follow that order. It is written to be so, in such a case, in the UCMJ.
But that goes into a grey area which can put the person who decided to not follow an order into a cell in Leavenworth if the order is found to actually be legal.
And it could cause the death of a fellow military person ( or more than one ) by one or a few people deciding to not follow that particular given order.
If someone decides to not follow an order, they had better be very aware of the result of that action!