Appeals Court Signals Rejection of Hegseth’s Attempt to Punish Sen. Mark Kelly for Urging Troops to Refuse Illegal Orders

A federal appeals court appeared poised Thursday to reject Defense Secretary Pete Hegseth’s effort to punish Democratic Senator Mark Kelly over a video urging U.S. service members to refuse illegal orders. The ruling could mark a significant pushback against the Trump administration’s ongoing campaign to use government power to intimidate and silence critics with military backgrounds.

The three-judge panel at the DC Circuit Court of Appeals spent over 90 minutes scrutinizing the Justice Department’s arguments, which sought to revive Hegseth’s plan to reduce Kelly’s retired military rank and cut his pension. A lower court had already blocked this scheme earlier this year, ruling it was an unconstitutional act of retaliation.

Judges Nina Pillard and Florence Pan, appointed respectively by Presidents Obama and Biden, expressed skepticism toward the administration’s position. Pillard emphasized that Kelly’s comments were “something that is taught at Annapolis to every cadet” — the principle that service members must disobey unlawful orders. Pan underscored the absurdity of the administration’s demand that veterans forfeit their retired status simply for stating a basic tenet of military law.

The third judge, Karen Henderson, appointed by President George H.W. Bush, showed some sympathy for the government’s arguments but did not indicate a clear majority view.

Kelly, a retired Navy captain and former astronaut, posted the video last November alongside other Democratic lawmakers with military or intelligence backgrounds. They urged troops to refuse unlawful orders potentially issued by the Trump administration, amid controversy over military strikes and the deployment of federalized National Guard troops to Democratic-run cities.

The administration’s effort to punish Kelly is part of a broader pattern of weaponizing the Pentagon against political opponents. Federal prosecutors even tried, and failed, to indict the lawmakers over the video — a rare rebuke from a grand jury.

At issue is whether retired military members like Kelly have First Amendment protections when speaking to active-duty troops. The Justice Department argued retirees should face speech restrictions similar to active-duty personnel, citing a 1970s Supreme Court case involving Vietnam War dissent. But the judges found that precedent irrelevant given the different facts and noted that retirees occupy a legal gray zone not clearly defined by courts.

Kelly’s attorney called the defense secretary’s threats “textbook retaliation for disfavored speech,” highlighting that Kelly merely recited a fundamental military principle. After the hearing, Kelly warned that the administration’s position would chill free speech among veterans: “If you say something that the president and this administration do not like, they’re going to come after you.”

This case exposes the Trump administration’s authoritarian overreach, using government power to punish dissent and undermine democratic norms. The court’s likely rejection of Hegseth’s bid is a crucial rebuke to these tactics, affirming the right of veterans to speak out without fear of retaliation.