WASHINGTON — A federal judge ruled Thursday that Defense Secretary Pete Hegseth cannot demote Sen. Mark Kelly, a retired Navy captain, for urging active duty personnel to refuse unlawful orders — a basic tenet of military law.

U.S. District Judge Richard Leon reprimanded Hegseth for trying to censure the Arizona senator, a Democrat whose 25-year Navy career included dozens of combat missions and four trips to space as an astronaut.

“If legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” wrote the judge, who was named to the bench by President George W. Bush, a Republican.

It was the Trump administration’s second setback in two days in its effort to punish Kelly.

On Tuesday, a federal grand jury declined to indict Kelly and five other lawmakers — four military veterans and one former CIA analyst, all Democrats — who posted a video in November reminding service members that they can and should refuse illegal orders.

The video left President Donald Trump irate. On his Truth Social platform, he accused them of “SEDITIOUS BEHAVIOR, punishable by DEATH!” and said they should be “ARRESTED AND PUT ON TRIAL.”

It is unclear what criminal charges Jeanine Pirro, the U.S. attorney for the District of Columbia, sought. It is extremely unusual for a grand jury to reject a request for an indictment, in part because in the secret process, jurors hear only from prosecutors.

“This case was never just about me. This administration was sending a message to millions of retired veterans that they too can be censured or demoted just for speaking out,” Kelly said in a video posted shortly after Thursday’s ruling was issued.

On January 5, Hegseth announced that Kelly would be censured and emoted for “seditious statements” and a “pattern of reckless misconduct.” Kelly went to court a week later.

Thursday’s ruling came on the senator’s request for an injunction to block the censure as the case plays out. 

At a February 3 hearing, the Justice Department argued that as a military retiree, Kelly doesn’t have the same First Amendment rights as other civilians. But the Justice Department’s lawyer acknowledged that he could find no other instance of a retiree being punished for statements made after leaving active duty.

“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” the judge wrote Thursday. 

 “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!” he added.

The video stemmed from criticism over National Guard deployments into U.S. cities and deadly strikes in the Caribbean on purported drug smugglers. “Our laws are clear,” Kelly says into the camera. “You can refuse illegal orders.”

Kelly retired from the Navy in 2011. None of the others in the video served long enough to formally retire.

The senator has warned that if his censure were allowed, even veterans in their 80s and 90s could face punishment for criticizing the president.

In a friend of the court brief, 39 retired officers, mostly admirals and generals – plus former secretaries of the Navy and Army, both appointed by Democratic presidents – echoed the concern about military retirees’ free speech rights.

The “attempts to punish” the senator risks future “veteran participation in public discourse,” they warned the court.

The judge agreed.

“Speech ‘on matters of public concern’ lies at the core of First Amendment protection,” he wrote in his ruling. 

And while retired servicemembers may be called to active duty, he wrote, they are still civilians whose opinions on whether a military operation is lawful “does not threaten `obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers.” 

Federal lawmakers are also protected by the “Speech or Debate” clause of the Constitution, which gives them immunity from prosecution for legislative acts. Kelly is a member of the Senate Armed Services committee.

Few Republicans have denounced the effort to prosecute their colleagues.

After the grand jury vindication, Kelly and Sen. Elissa Slotkin of Michigan, the former CIA analyst in the group, challenged GOP colleagues to speak out.

 “Where are they as Donald Trump tries to throw senators and representatives in jail for what they say?” Kelly said Wednesday.

“Twenty anonymous Americans we will never meet, who made up that grand jury, told us more about the values of America than Jeanine Pirro or (Attorney General) Pam Bondi or certainly this president,” Slotkin said. “The intimidation was the point, to get other people beyond us to think twice about speaking out.”

The others in the video were Reps. Jason Crow of Colorado, a former Army Ranger; Maggie Goodlander of New Hampshire, a former Navy reservist; and Pennsylvanians Chrissy Houlahan, a former Air Force officer, and Chris Deluzio, a Navy veteran.

In granting the injunction, the judge noted that a censure would effectively be irreversible, because Hegseth would have final say if Kelly appeals the demotion. 

“Rather than trying to shrink the First Amendment liberties of retired servicemembers,” the judge wrote, “Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.”

This article first appeared on Cronkite News and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.