By Jan Wolfe
WASHINGTON, Feb 3 (Reuters) – A judge on Tuesday skeptically questioned the Trump administration’s efforts to reduce the military rank and pension pay of Senator Mark Kelly, saying the campaign could undermine the free speech rights of all retired U.S. veterans.
During a one-hour hearing in Washington, Kelly’s lawyers asked U.S. District Judge Richard Leon to block the demotion proceedings, which the Pentagon initiated because the Arizona Democrat urged troops to reject unlawful orders.
The judge, who said he intends to rule by February 11, signaled agreement with Kelly that the demotion proceedings were unlawful retaliation for constitutionally protected free speech.
The judge said there is no question that the Defense Department can limit the free speech rights of active-duty soldiers to promote cohesion, but that the Trump administration wants to create new precedent that would allow it to treat retired personnel similarly.
“You’re asking me to do something the Supreme Court … has never done,” Leon told a Justice Department lawyer defending the Pentagon’s efforts. “That’s a bit of a stretch.”
Leon, who was appointed by then-President George W. Bush, a Republican, said members of Congress who are veterans need to be able to criticize the Pentagon without fear of their retirement rank or pension pay being reduced.
Bailey argued that the judiciary should be wary of interfering with the military’s personnel decisions. He also asserted that Kelly’s continued outspoken criticism of the Trump administration makes clear that his free speech rights have not been chilled.
“The chilling effect isn’t just on him,” Leon responded. “It could be on many, many other retirees.”
The lawsuit is another test of President Donald Trump’s historic campaign of vengeance against his perceived political enemies, which has drawn pushback from judges across the ideological spectrum.
Kelly, a retired Navy captain and former astronaut, was one of six congressional Democrats who appeared in a November video that reminded service members of their duty to reject unlawful orders. In the clip, Kelly stated: “Our laws are clear: You can refuse illegal orders.”
Kelly’s remarks came as more Democrats were criticizing Trump’s decisions to deploy the National Guard in U.S. cities and authorize lethal strikes on boats suspected of smuggling drugs from Latin America.
The Republican president, in a social media post, called the video “SEDITIOUS BEHAVIOR, punishable by DEATH.”
U.S. Defense Secretary Pete Hegseth issued a censure letter on January 5, asserting that Kelly had “clearly intended to undermine good order and military discipline” in violation of military rules that apply to both active and retired personnel.
Trump administration lawyers have urged Leon to dismiss the case, calling it a “quintessential matter of military discipline not within the Judiciary’s purview” in a recent court filing. The Trump administration has also called the lawsuit premature, saying Kelly has not yet been formally censured and should have responded to Hegseth’s allegations through administrative channels.
Leon previously blocked a Trump executive order targeting the WilmerHale law firm, calling it a “staggering” act of retaliation.
(Reporting by Jan Wolfe; Additional reporting by Mike Scarcella; Editing by Noeleen Walder, Mark Porter and Sonali Paul)
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