“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech.”
Senator Mark Kelly has filed a lawsuit against Secretary of War Pete Hegseth, Secretary of the Navy John Phelan, the Department of War, and the Department of the Navy over the Pentagon’s move to censor and reduce the rank of the lawmaker, who is a former Navy Captain, for his role in what has been called the "Seditious Six" video. Kelly and other lawmakers called for active duty troops to "refuse illegal orders" in the late 2025 video.
In the complaint, filed in the US District Court for the District of Columbia on Monday, Kelly claimed that the actions from the Pentagon violate the First Amendment, writing that it "forbids the government and its officials from publishing disfavored expression or retaliating against protected speech. That prohibition applies with particular force to legislators speaking on matters of public policy."
He later added, "It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech. Allowing that unprecedented step here would invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces."
Kelly said that he was sent a "Secretarial Letter of Censure" from Hegseth on January 5 that declared Kelly’s statements since June have "undermined the chain of command," "counseled disobedience," and constitute "conduct unbecoming an officer." The Department of the Navy, "relying expressly and exclusively on that determination" and at Hegseth’s direction, "then initiated proceedings to 'reconsider'—that is, to reduce—the rank (or 'grade') and pay at which Senator Kelly retired nearly fifteen years ago."
Referencing the letter from Hegseth, Kelly wrote that it cites "statements about foundational principles of military law and concerns about potential commission of war crimes—areas squarely within the legislative and oversight jurisdiction of the committees on which Senator Kelly serves. And the letter highlights Senator Kelly’s criticism of the 'firing of admirals and generals’—personnel decisions by Secretary Hegseth and other senior defense officials over whom those same committees exercise oversight and whose appointments are subject to the Senate’s advice and consent. All of those topics, and Senator Kelly’s statements about them, lie at the core of the Speech or Debate Clause and the long-recognized immunity for legislative acts.
He said that the process that Hegseth has directed for reconsidering Kelly’s retirement grade "also violates due process." He wrote, "Before that proceeding even began, the President publicly accused Senator Kelly of sedition and treason and demanded punishment. The Secretary himself has echoed those accusations, announced an investigation, and then issued a Letter of Censure that—not tentatively, but conclusively—determined that Senator Kelly’s speech met the very criteria that the Department must consider when reducing retirement grade."
"The outcome of any subsequent 'review' of Senator Kelly’s grade—even assuming it could lawfully proceed—is foreordained. The Constitution does not permit the government to announce the verdict in advance and then subject Senator Kelly or anyone else to a nominal process designed only to fulfill it."
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