Sen. Mark Kelly Sues Pentagon to Block Censure and Possible Rank, Pension Downgrade Over 'Illegal Orders' Video
Sen. Mark Kelly filed a federal lawsuit in Washington, D.C., against Defense Secretary Pete Hegseth (and the Pentagon, Navy and Navy secretary), seeking to block a Letter of Censure and a retirement‑grade review that could strip his retired Navy captain rank and reduce his pension, arguing the actions are unconstitutional retaliation for protected political speech and invoking the Speech or Debate Clause. Hegseth has labeled Kelly’s November video urging troops to refuse “illegal orders” seditious, opened formal proceedings under the UCMJ (giving Kelly 30 days to respond and 45 days for a decision), a move unfolding amid President Trump’s public denunciations of the lawmakers in the clip.
đź“Ś Key Facts
- Defense Secretary Pete Hegseth has formally issued a letter of censure to Sen. Mark Kelly; the letter will be placed in Kelly’s permanent military personnel file and is described by Hegseth as a 'necessary process step' toward possible demotion.
- The Pentagon has opened retirement‑grade determination proceedings that could reduce Kelly’s retired rank from Navy captain and cut his pension; the process gives Kelly 30 days to respond and a decision is to be completed within 45 days.
- The action stems from a 90‑second November video (posted from Rep. Elissa Slotkin’s X account) featuring six Democratic lawmakers — Slotkin, Jason Crow, Chris Deluzio, Chrissy Houlahan, Maggie Goodlander and Mark Kelly — urging service members and intelligence personnel to refuse 'illegal orders'; Kelly is the only lawmaker under Pentagon investigation because he is a formally retired officer still subject to UCMJ recall jurisdiction.
- Hegseth has publicly characterized Kelly’s statements as 'seditious' and 'clearly intended to undermine good order and military discipline,' saying retired officers who receive pay remain subject to the Uniform Code of Military Justice (citing Articles 133 and 134); Pentagon officials said the review covers Kelly’s public statements from June through December 2025.
- President Trump publicly denounced the lawmakers’ video, calling it 'sedition "punishable by DEATH"' in social‑media posts; the broader political backlash has been used by some Democrats in fundraising and has intensified pressure around the Pentagon’s actions.
- On Jan. 12, Kelly filed a 46‑page federal lawsuit in Washington, D.C., (assigned to Judge Richard Leon) naming Defense Secretary Hegseth, the War Department/DoD, the Navy and Navy Secretary John Phelan as defendants, seeking to block the retirement‑grade proceedings and any reduction in his retired rank or pay.
- The complaint argues the censure and retirement review are unconstitutional retaliation for protected post‑retirement political speech, invokes the Speech or Debate Clause, and says using military sanctions against a sitting member of Congress for disfavored speech is unprecedented; Kelly has publicly vowed to 'fight this with everything I've got,' calling the move an effort to 'stifle' speech and a 'chilling message' to retired service members.
- The Pentagon previously said it was also considering whether Kelly should be recalled to active duty for possible court‑martial as part of its November review of alleged misconduct, providing additional context to the scope of the department’s inquiries.
đź“Š Relevant Data
Since 2000, there have been 15 appellate opinions involving UCMJ prosecutions of military retirees, with the vast majority involving sex offenses rather than political speech or statements.
Retiring Military Jurisdiction Over Military Retirees — Villanova Law Review
The U.S. government has not brought an Article 133 (Conduct Unbecoming an Officer) case against a military retiree since 1958, and that case did not involve speech.
Can the Pentagon strip Mark Kelly’s rank over speech? — Foundation for Individual Rights and Expression (FIRE)
In the 2024 U.S. congressional elections, there were 133 Republican veteran candidates compared to 56 Democratic veteran candidates running for office.
Smaller But More Diverse Group of Veterans Running for Congress This Year — Military.com
Military veterans in the U.S. have long been more likely to align with the Republican Party, with 65% supporting Donald Trump in the 2024 presidential election compared to 34% supporting Kamala Harris; veterans comprise about 6% of the U.S. adult population.
Military veterans support Trump by wide margin in 2024 election — Pew Research Center
đź“° Source Timeline (13)
Follow how coverage of this story developed over time
January 12, 2026
9:40 PM
Sen. Kelly sues the Pentagon over Trump administration attempts to punish him
New information:
- Confirms the lawsuit has formally been filed in federal district court in Washington, D.C., and assigned to Judge Richard Leon (a George W. Bush appointee).
- Details Kelly’s First Amendment argument that the censure and threatened retirement-grade proceedings are unconstitutional retaliation against protected political speech by a legislator.
- Clarifies that Hegseth publicly framed the censure letter as a 'necessary process step' toward possible demotion from retired Navy captain to a lower grade, which would cut Kelly’s pension.
- Explains that among the six lawmakers in the November 'resist unlawful orders' video, Kelly is the only one under Pentagon investigation because he is the only formally retired military officer still under UCMJ recall jurisdiction.
- Reiterates that Trump publicly labeled the lawmakers’ video 'sedition punishable by DEATH,' contextualizing the political pressure surrounding Hegseth’s actions.
7:39 PM
Sen. Mark Kelly sues Defense Secretary Pete Hegseth
New information:
- Kelly has formally filed suit in federal court against Defense Secretary Pete Hegseth, rather than merely threatening litigation.
- The complaint explicitly argues that the Pentagon’s retirement‑grade review and censure constitute unconstitutional retaliation for protected post‑retirement political speech.
- The lawsuit invokes the Speech or Debate Clause and challenges DoD’s authority to police a retired officer’s political expression after he became a member of Congress.
7:38 PM
Mark Kelly sues Hegseth over effort to demote his Navy rank
New information:
- Confirms that Mark Kelly has formally filed suit (not just threatened) against Defense Secretary Pete Hegseth over the Navy retirement‑grade proceeding.
- Reiterates that the lawsuit seeks to prevent a downgrade from retired Navy captain rank and a corresponding pension cut tied to Kelly’s November video telling troops to refuse 'illegal orders.'
7:03 PM
Sen. Mark Kelly sues Hegseth to block move to cut rank, pension
New information:
- Mark Kelly filed a 46-page civil complaint in federal court on Monday against Defense Secretary Pete Hegseth, seeking to block retirement-grade determination proceedings and any reduction in his retired rank and pay.
- Kelly’s suit argues that Hegseth’s actions are unconstitutional retaliation for his post-retirement political speech, violating the First Amendment and the Constitution’s Speech or Debate Clause.
- The complaint asserts that 'never in our nation's history' has the executive branch imposed military sanctions on a member of Congress for disfavored political speech and that there is no legal basis to punish him for 'post-retirement political speech.'
7:00 PM
Arizona Sen Kelly sues Hegseth over military pension cuts following video message
New information:
- Confirms the suit is filed in federal court in Washington, D.C., and names the War Department, Navy, DoD and Navy Secretary John Phelan as defendants alongside Pete Hegseth.
- Quotes additional language from Kelly’s public statement on X warning that Hegseth’s actions send a 'chilling message' to all retired service members about being punished years later for disfavored speech.
- Restates that the censure letter is being used as the basis for a potential reduction in Kelly’s retirement rank and pension, framed by Kelly as unprecedented executive retaliation against a member of Congress.
January 08, 2026
2:00 AM
Mark Kelly avoids saying arresting Maduro, Venezuela strikes were 'illegal'
New information:
- In a CNN interview on 'The Lead with Jake Tapper,' Sen. Mark Kelly declined to say President Trump’s military operation in Caracas to seize Nicolás Maduro was 'illegal,' instead framing it as raising 'constitutional questions.'
- Kelly distinguished between individual service members evaluating 'illegal orders' (the subject of his earlier viral video) and broader constitutional questions about a president using '150 airplanes and the full force of the U.S. military' to conduct what he called essentially a law-enforcement action on a head of state.
- Kelly said, 'Maduro is a bad guy, and it’s good that he’s gone,' but argued the administration had 'no plan beyond removing Maduro' and criticized the effective elevation of Vice President Delcy RodrĂguez as akin to a Navy executive officer 'fleeting up' to commanding officer.
- The piece notes that progressive Democrats have been calling the Venezuela operation 'illegal' and 'potentially impeachable,' but Kelly stopped short of endorsing that view when pressed.
- Fox reiterates that Defense Secretary Pete Hegseth has ordered a formal censure letter for Kelly and directed the Navy secretary to review Kelly’s retired rank and pay, emphasizing Hegseth’s characterization of Kelly’s video as 'reckless and seditious.'
January 06, 2026
2:46 PM
Kelly fires back at Hegseth over censure, says he's never backing down
New information:
- Fox News reports that Secretary of War Pete Hegseth has announced Sen. Mark Kelly will receive a formal censure letter related to the November video urging troops to refuse illegal orders.
- In an MS NOW interview with Rachel Maddow, Kelly says he is 'never going to back down,' vows to keep speaking out, and characterizes the censure move as an effort by the Trump administration to 'silence' him.
- Kelly argues that if the administration is able to 'punish [him] in a significant way' it could chill speech by other retired service members and critics of the government, which he calls a 'foundational problem' for constitutional democracy.
- Kelly reiterates his view that Trump is upset because service members’ loyalty is to the Constitution rather than to him personally, saying Trump 'opens his mouth before he thinks and then doubles down on it.'
2:45 PM
Sen. Mark Kelly says Hegseth's move to demote him "is about stifling people's speech"
New information:
- Kelly told CBS Mornings that Hegseth’s move to demote him and cut his retirement pay "is about stifling people's speech" and that "this administration doesn't like what I say."
- Kelly said on air that President Trump reacted to his video by saying he should be "hanged, executed, prosecuted," citing Trump’s social‑media posts labeling his actions "seditious behavior" punishable by death and reposting "HANG THEM, GEORGE WASHINGTON WOULD!"
- Kelly framed Hegseth’s stated plan to prosecute him under the Uniform Code of Military Justice as "nonsense," arguing that urging refusal of illegal orders is itself language found in the UCMJ.
January 05, 2026
5:10 PM
Sen. Mark Kelly fires back after Hegseth threatens his rank and retirement pay
New information:
- NPR provides Kelly’s first detailed, on‑the‑record response, including a long statement defending his rank as earned "through my service and sacrifice" and citing his combat and astronaut service and his wife Gabby Giffords’ shooting recovery.
- Kelly explicitly accuses Hegseth and President Trump of trying to send a message that any retired servicemember who says something they dislike will be targeted, calling that "outrageous" and "un‑American."
- Kelly states he will "fight this with everything I've got" not just for himself but to assert that Trump and Hegseth "don't get to decide what Americans in this country get to say about their government."
- Article reiterates that Kelly’s 25‑year Navy career and retired‑with‑benefits status make him subject to the Uniform Code of Military Justice and notes the Pentagon investigation into his conduct began in November.
4:19 PM
Hegseth moves to demote Sen. Mark Kelly, cut pension over illegal orders video
New information:
- CBS details that Hegseth has formally issued a Letter of Censure to Mark Kelly and that it will be placed in Kelly’s permanent military personnel file.
- The Pentagon has initiated 'retirement grade determination proceedings' that could reduce Kelly’s retired grade and correspondingly cut his retired pay, with a 30-day window for Kelly to respond and a 45-day deadline to complete the process.
- Hegseth publicly labels the video 'seditious' and 'clearly intended to undermine good order and military discipline,' emphasizing that Kelly remains accountable to military justice as a retired officer receiving a pension.
- The article specifies the full group of six Democratic lawmakers in the November video — Elissa Slotkin, Jason Crow, Chris Deluzio, Chrissy Houlahan, and Maggie Goodlander alongside Kelly — and notes their message urging service members and intelligence personnel to refuse 'illegal orders' citing constitutional threats.
- It reiterates that in November the Pentagon said it was reviewing misconduct allegations to consider whether Kelly should be recalled to active duty for possible court-martial.
3:38 PM
Hegseth goes after Mark Kelly's rank over "seditious" video
New information:
- Hegseth publicly states that Kelly’s conduct was 'seditious in nature' and 'clearly intended to undermine good order and military discipline.'
- The Defense Department (referred to as the Department of War) has initiated an administrative 'retired grade' review of Kelly’s status as a Navy captain, which could reduce his retirement rank and pension.
- Hegseth specifies that the review covers Kelly’s 'public statements from June through December 2025' in which he allegedly characterized lawful operations as illegal and counseled troops to refuse 'lawful orders.'
- The Pentagon’s process gives Kelly 30 days to respond, with a retirement-grade determination to be completed within 45 days.
- Hegseth asserts Kelly remains subject to the UCMJ as a retired officer receiving pay and cites Articles 133 and 134 as the basis for saying his conduct violated military law.
3:17 PM
Hegseth issues letter of censure to Sen. Kelly after warning about following illegal orders
New information:
- Confirms that Defense Secretary Pete Hegseth has now formally issued the letter of censure to Sen. Mark Kelly, not just announced plans to do so.
- Specifies that Hegseth calls the censure 'a necessary process step' toward possible demotion from Kelly’s retired Navy captain rank.
- Details the 90‑second November video posted from Sen. Elissa Slotkin’s X account, naming all six lawmakers involved and their message urging troops to defy 'illegal orders.'
- Reports that President Trump publicly accused the lawmakers of 'sedition "punishable by DEATH"' in response to the video.
- Notes that Kelly and some other Democrats have used Trump’s reaction in fundraising appeals to bolster their campaign coffers and national profiles.