WASHINGTON — A federal judge Thursday temporarily blocked Defense Secretary Pete Hegseth from punishing Sen. Mark Kelly, D-Ariz., for participating in a video that warned active-duty service members not to follow illegal orders.

Judge Richard J. Leon of the District Court for the District of Columbia wrote in a 29-page opinion that the Defense Department’s move to discipline Kelly, a retired Navy captain and former astronaut, ran roughshod over his freedom of speech.

“Rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our Nation over the past 250 years,” he wrote. “If so, they will more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!”

The blunt ruling came after a grand jury in Washington rejected an extraordinary attempt by federal prosecutors in Washington to secure a criminal indictment against Kelly and five other Democratic lawmakers who together released a video in November directed at members of the military and intelligence community.

“Our laws are clear,” Kelly said in the video. “You can refuse illegal orders.”

The message enraged President Donald Trump, who accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!”

The decision Thursday came after Kelly sued Hegseth and the Defense Department for censuring him and initiating a military review of the senator’s public statements that could result in a reduction of his retirement rank and pension.

The Justice Department had argued that the video, and public statements by Kelly criticizing Hegseth for firing admirals and generals and surrounding himself with “yes men,” undermined military discipline.

But Leon, a nominee of President George W. Bush, wrote that Kelly was acting within his role as a member of the Senate Armed Services Committee, exercising oversight authority over the defense secretary, and that attempts to penalize him through military channels appeared to be a tactic to skirt review by the courts.

Grasping Arguments

Leon dismissed what he described as grasping arguments by the government that Kelly should have gone through the military appeals process first, which he pegged as a way that “the military can have the first crack at adjudicating his First Amendment rights.”

“This Court has all it needs to conclude that Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,” he wrote. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”

Lawyers for the senator argued in their complaint that the defense secretary was trying to punish Kelly “solely for the content and viewpoint of his political speech.”

Leon’s ruling followed a hearing last week in which he told lawyers for the Defense Department that they were asking him to create a new precedent and extend the free speech restrictions commonly applied to active-duty service members to a retired officer.

“You’re asking me to do something that the Supreme Court has never done,” the judge said in the hearing.

He blocked the Defense Department from continuing its administrative action against Kelly until after the court could fully adjudicate the matter. The judge has said he is aware of the high-profile nature of the case and that any decision he makes will be appealed.

Leon did not address whether Kelly’s statements were shielded from military discipline by the section of the Constitution that protects House and Senate members’ speech. The Justice Department had argued in a filing that it applied narrowly to legislative work, and could not be relied on to defend the senator’s social media posts or news media interviews.

The judge appeared skeptical of that claim last week but said he would hear arguments on the “speech or debate” clause at a later hearing.

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This article originally appeared in The New York Times.

By Megan Mineiro and Zach Montague/Eric Lee
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