Sen. Mark Kelly sued the Pentagon and Defense Secretary Pete Hegseth on Monday, arguing that the Trump administration’s efforts to punish the Arizona Democrat for participating in a video for the U.S. military are unconstitutional.
The federal civil suit was filed in U.S. District Court in Washington a week after Hegseth announced the department would reduce Kelly’s military retirement benefits in response to the video.
Kelly’s lawyers said in a lawsuit also filed against the U.S. Department of the Navy and its secretary, John Phelan, that the government’s actions “violate the Constitution’s essential protections for legislative independence.”
“It appears that never in our nation’s history has an executive branch imposed military sanctions on a member of Congress for making adverse political speech,” the lawyers wrote.
The suit alleges that the defendants violated Kelly’s free speech rights and protections under the Constitution’s Speech or Debate Clause, which prohibits administrative lawsuits over legislative actions by members of Congress.
The lawsuit also alleges violations of Kelly’s due process rights and separation of powers.
A Pentagon official told CNBC in a statement that the department is aware of the lawsuit but does not comment on ongoing litigation.
The video at the center of the battle showed Kelly and five other Democrats in Congress delivering a message to members of the U.S. military and intelligence community.
“Our laws are clear: We can refuse unlawful orders,” Kelly said in a 90-second video first posted to social media on Nov. 18.
The information was shared as the U.S. military conducted a series of airstrikes targeting ships suspected of smuggling drugs in the Caribbean.
Lawmakers, including some Republicans, questioned the legality of these deadly attacks, which were carried out without Congressional authorization. The attacks continue, killing 123 people since early September, according to the New York Times.
Other lawmakers in the video, all of whom serve in the military or U.S. intelligence agencies, made similar comments about the military being allowed to refuse illegal orders.
But Kelly, a former U.S. Navy captain and NASA astronaut, is the only one to officially retire and therefore remains subject to the Uniform Act of Military Justice.
Days later, Hegseth denounced the video as “despicable, reckless, and false” and labeled the participants as the “Seditious Six.”
Around the same time, the Pentagon announced it would investigate “serious allegations of misconduct” against Mr. Kelly and warned that the senator could be recalled to active duty “for court-martial or administrative action.”
President Donald Trump has reposted his scathing criticism of Democrats, at one point accusing them of “sedition, worthy of the death penalty!”
Kelly said at the time that she did not intend to “let the bullies shut up”.
On January 5, Hegseth said the Pentagon was taking “administrative action” to reduce Kelly’s retirement rank, which would cause a “corresponding reduction in his retirement benefits.”
Hegseth also said he had issued a formal letter of censure. In response, Kelly vowed to “fight with all my might.”
