Defense Secretary Hegseth Escalates Legal Battle to Demote Senator Kelly

2026-02-26 politics

Washington D.C., Thursday, 26 February 2026.
Defense Secretary Pete Hegseth has appealed a federal court order preventing the Pentagon from demoting Senator Mark Kelly. This escalation follows a grand jury’s refusal to indict Kelly for a video advising troops to disobey illegal orders, intensifying the constitutional standoff regarding the free speech rights of retired military officers.

The Appeal and Legal Context

On Tuesday, February 24, 2026, the Department of Justice filed a formal appeal in the U.S. Court of Appeals for the District of Columbia on behalf of Defense Secretary Pete Hegseth, the Department of War, and Navy Secretary John Phelan [2][6]. This legal maneuver seeks to overturn a preliminary injunction issued earlier this month by U.S. District Judge Richard Leon, which effectively barred the Pentagon from disciplining Senator Mark Kelly [2][5]. The administration had sought to penalize Kelly, a retired Navy captain, for his political speech, with proposed punishments including a demotion in rank and a reduction in his military retirement pay [2][6]. Judge Leon’s ruling had halted these proceedings, determining that the Pentagon’s actions likely violated Kelly’s First Amendment rights and those of millions of military retirees [6].

The Origins of the Dispute

The confrontation traces back to November 2025, when Senator Kelly joined five other Democratic lawmakers—all veterans with national security or military backgrounds—in a 90-second video posted to social media [2][3]. In the footage, the group urged U.S. service members to uphold the Constitution and “refuse illegal orders” [3][4]. This message was released during a period of heightened tension involving the Trump administration’s use of military assets, specifically regarding controversial airstrikes against alleged drug smuggling vessels in the Caribbean and the deployment of the National Guard into U.S. cities against the wishes of local governors [3][4]. Following the video’s release, President Donald Trump accused the lawmakers of “sedition at the highest level,” prompting Hegseth to launch a command investigation into Kelly’s conduct [1][2].

Constitutional Arguments and Judicial Rulings

The administration’s attempt to punish Kelly relies on the argument that as a military retiree, he remains subject to the Uniform Code of Military Justice and Pentagon jurisdiction [2]. However, Judge Richard Leon, an appointee of former President George W. Bush, rejected this rationale in his February ruling [5]. Judge Leon stated that the government’s arguments were insufficient, noting that courts have not historically imposed limits on the political speech of retired service members and emphasizing that the Constitution demands respect for veterans [3][5]. Despite this judicial rebuke, Hegseth has remained defiant, stating on social media after the ruling, “Sedition is sedition, ‘Captain’” [2][6].

Grand Jury Rejection and Broader Implications

The executive branch’s legal standing has been further complicated by the refusal of a grand jury to support criminal charges. Earlier in February 2026, a Washington, D.C., grand jury rejected a Department of Justice effort to secure felony indictments against the Democratic lawmakers involved in the video [1][2]. This decision, combined with the abandonment of a related legal crusade by Jeanine Pirro against other veterans in the video on February 17, suggests a divergence between the administration’s rhetoric and its success in the courts [1]. Senator Kelly has characterized the continued pursuit of this case as an attempt to “silence dissent,” asserting that the appeal serves only to “keep trampling on the free speech rights of retired veterans” [1][3].

Sources

Executive Power Defense Department