Appeals court signals it will block Pentagon’s retaliation against Sen. Mark Kelly over ‘illegal orders’ video

The DC Circuit Court of Appeals appears ready to slam the brakes on Defense Secretary Pete Hegseth’s bid to penalize Democratic Sen. Mark Kelly over a video urging U.S. military personnel to disobey illegal orders. In a hearing Thursday, a majority of judges expressed skepticism toward the Justice Department’s arguments supporting the Pentagon’s retaliation plan, which a federal judge already struck down earlier this year as unconstitutional.

Judges Nina Pillard and Florence Pan, appointed by Democratic presidents Barack Obama and Joe Biden respectively, made clear that Kelly’s comments rest on a “textbook” military principle taught at the Naval Academy and West Point. “These are people who served their country – many put their lives on the line,” Pan said, rejecting the idea that retired service members must sacrifice their retired status to speak out. Pillard emphasized that Kelly’s remarks were an “abstract statement of a principle,” not a call to disobey lawful orders.

The third judge, Karen Henderson, appointed by Republican George H.W. Bush, showed some sympathy to the administration’s position, suggesting that military retirees’ unique status might allow for some disciplinary measures. But even she did not signal full support for the Pentagon’s aggressive retaliation strategy.

Kelly, a retired Navy captain and former astronaut, sued Hegseth after the defense chief announced plans to demote him and issue a formal censure over the November 2022 video. In the footage, Kelly and five other Democrat lawmakers with military or intelligence backgrounds urged service members to refuse unlawful orders—a fundamental tenet of military law. The video came amid heightened tensions over Trump’s use of military force and deployment of federalized National Guard troops to Democratic-led cities, raising questions about the legality of such orders.

The Justice Department argued that retired service members like Kelly do not enjoy the full free speech protections of civilians and can be punished if their speech disrupts military discipline. Prosecutors cited a 1970s Supreme Court ruling allowing punishment of active-duty officers who encouraged troops not to fight in Vietnam. But the judges dismissed this comparison, noting the stark differences and the lack of precedent on speech rights for retirees.

Kelly’s lawyer called the Pentagon’s actions “textbook retaliation for disfavored speech,” highlighting that Kelly was merely reiterating a well-established military legal principle. Outside the courthouse, Kelly warned that the administration’s approach sets a dangerous precedent: “If you say something that the president and this administration does not like, they’re going to come after you.”

This case is a critical test of free speech boundaries for veterans and exposes the Trump administration’s broader pattern of weaponizing government power to intimidate and punish critics. The court’s apparent reluctance to endorse Hegseth’s punitive measures signals a pushback against authoritarian overreach cloaked in military discipline.