Breaking: Kelly sues Hegseth over censure for lawmakers' video about troops' duty to refuse illegal orders
The Arizona senator is seeking an order by Friday blocking the Defense Department's efforts. And, for paid subscribers: Closing my tabs.
Arizona Sen. Mark Kelly on Monday sued Defense Secretary Pete Hegseth, the Defense Department, and others over Hegseth’s efforts to punish Kelly for the video released by Kelly and other members of Congress highlighting the oath that members of of the military and intelligence community take and their responsibility to refuse illegal orders.
“Plaintiff’s constitutional harms must be vindicated now, before he is forced to submit to any further unconstitutional proceedings,” the lawyers for the retired Navy captain and former astronaut who has served as one of Arizona’s senators since 2020 wrote in asking the court to issue an order this week blocking the Defense Department’s efforts while litigation proceeds.
The extraordinary lawsuit seeks to protect Kelly’s interests, but it also repeatedly highlights the larger picture of the Trump administration taking actions to punish Trump’s perceived enemies. Kelly’s lawyers warned that the Defense Department actions taken against Kelly “also signal to retired servicemembers and Members of Congress alike that criticism of the Executive’s use of military power may be met with retaliation through military channels.”
[Update, 7:50 p.m.: Senator Mark Kelly’s lawsuit against Defense Secretary Pete Hegseth and the Defense Department has been assigned to Judge Richard Leon, a George W. Bush appointee, and he ordered the defendants to respond by Thursday morning and set a 4 p.m. Thursday hearing.]
After the posting of the video on November 18, President Donald Trump predictably melted down, and Hegseth quickly followed up — investigating Kelly and settling on censuring him on January 5 and seeking to reduce his retirement pay.
Hegseth justified Kelly’s censure based on his “public statements” and nothing more.
“Between June 2025 and December 2025, you engaged in 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,“ Hegseth wrote.
As the Associated Press noted at the time, Kelly was the only participant to get this response because Hegseth had previously noted that Kelly “is the only one of the lawmakers who formally retired from the military and [under a provision of federal law] still under the Pentagon’s jurisdiction.“
When the Navy immediately followed up on Hegseth’s censure that same day by notifying Kelly that his “retirement paygrade will be revisited” due to the censure and giving him “10 working days” to respond without “waiv[ing]” his rights, Kelly’s lawyers — who initially reached out to the Navy in December — followed up quickly.
In a January 7 letter demanding that Hegseth rescind his censure and the Navy withdraw its efforts, Arnold & Porter partner Paul Fishman wrote, “Neither you, nor the Department you head, can use bureaucratic might to punish and deter protected speech by a retired veteran, regardless of whether that person is a sitting United States Senator.“
On Monday, not having received any substantive response to the demand and represented by Fishman and other lawyers from Arnold & Porter, Kelly sued in federal court in Washington, D.C., alleging that the actions taken by Hegseth and others at the Department of Defense violate the First Amendment, Speech & Debate Clause, separation of powers, due process guarantees, and federal laws.
The First Amendment claim highlighted that “Defendants’ actions punish Senator Kelly for his protected speech,” while the Speech & Debate Clause — a legislative protection — claim focused on the fact that “[a]ll three categories of statements identified in Secretary Hegseth’s letter fall within the legislative sphere.“
The lawsuit went on to claim that the effort to punish Kelly “erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate,“ and, as to the due process claim, the lawyers stated that, “Secretary Hegseth’s public statements … establish that the underlying decision to censure Senator Kelly [wa]s preordained.“
Finally, on the statutory front, the lawsuit claimed that the Pentagon did not follow the law setting forth how retirement pay is determined and violated the Administrative Procedure Act by taking actions contrary to law and that are arbitrary and capricious.
In addition to Fishman, the former U.S. Attorney for New Jersey and head of Arnold & Porter’s Crisis Management and Strategic Response team, the partners on the complaint include Ben Mizer, former acting associate attorney general at DOJ during the Biden administration, and Deborah Curtis, co-chair of Arnold & Porter’s White Collar Defense & Investigations Practice and former deputy general counsel at the CIA.
In their brief supporting their follow-up motion seeking a temporary restraining order, preliminary injunction, and stay of agency under the Administrative Procedure Act, Kelly’s lawyers make clear how far outside the norms Hegseth’s efforts to punish Kelly are.
“It appears that never in our nation’s history has the Executive Branch attempted to impose military sanctions on a sitting Member of Congress for engaging in disfavored political speech,” the lawyers wrote. “Allowing that unprecedented step would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces and intelligence community.”
The “clock is ticking in these unlawful proceedings,” the lawyers wrote, asking for a ruling on the motion by Friday due to the 10-working-day response requirement in the Navy letter.
“Emergency relief is necessary to prevent grave constitutional injury, and to forestall further prejudice to Senator Kelly’s rights should he be forced to participate in these unlawful, predetermined proceedings,” the lawyers wrote.
Arguing that the courts should not wait on Defense Department proceedings to act, the lawyers stressed the proceedings themselves causing harm.
“Because any proceedings against Senator Kelly by Defendants violate the First Amendment, the Speech or Debate Clause, the separation of powers, and due process, this court has jurisdiction to review Defendants’ unconstitutional actions immediately,” the lawyers wrote. “By virtue of these constitutional and statutory violations, the grade determination proceeding itself—not merely its outcome—causes injury.“
This is a breaking news report. It was updated after initial publication to add more details about the lawsuit’s claims, with the final update at 4:35 p.m. Check back for the latest.
Closing my tabs
For those who don’t know what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.
This Monday, these are the tabs I am closing:
