ByWASHINGTON — The Trump administration must explain to a circuit court before the end of March exactly why it appealed a lower court’s ruling that allows Arizona Democratic Sen. Mark Kelly to keep his retirement rank and pay while a First Amendment case about the “Don’t Give Up The Ship” video plays out.
The U.S. Court of Appeals for the District of Columbia Circuit’s order gives the Department of Justice until March 30 to provide a series of documents in its appeal of the district court’s preliminary injunction.
That ruling, from Senior Judge Richard J. Leon of the District of Columbia District Court, said Defense Department officials, including Secretary Pete Hegseth, erred when trying to apply rules that affect active-duty military members to Kelly, a retired Navy Captain.
“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,” Leon wrote. “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!”
Leon was nominated by former President George W. Bush.
DOD seeks to downgrade Kelly retirement rank
The lawsuit began earlier this year after the Defense Department began proceedings to downgrade Kelly’s retirement rank and pay for appearing in the 90-second video.
The six Democrats, all of whom are former members of the military or intelligence agencies, said in the video they understood the people working in those fields “are under enormous stress and pressure right now.”
“Americans trust their military. But that trust is at risk,” they said. “This administration is pitting our uniformed military and intelligence community professionals against American citizens.”
They went on to say the “laws are clear” and that illegal orders can and must be refused. The video ended with them saying, “Don’t Give up the Ship,’ a long-held phrase in the U.S. Navy.
The Democrats’ video infuriated President Donald Trump, leading the Defense Department to open an investigation into Kelly.
Justice Department officials also launched an investigation into Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan and New Hampshire Rep. Maggie Goodlander.
The Justice Department failed to get a grand jury to indict the lawmakers earlier this month.
Kelly cites effects on millions of retired veterans
Kelly wrote on social media Tuesday, after the Justice Department filed its appeal on behalf of the Defense Department, that the Trump administration didn’t “know when to quit.”
“A federal judge told Donald Trump and Pete Hegseth that they violated my constitutional rights and chilled the free speech of millions of retired veterans,” Kelly wrote. “There is only one reason to appeal that ruling: to keep trampling on the free speech rights of retired veterans and silence dissent. I went to war to defend Americans’ constitutional rights and I won’t back down from this fight, no matter how far they want to take it.”
