ByWASHINGTON — Arizona Democratic Sen. Mark Kelly’s legal team is urging a federal appeals court to uphold a ruling that allows the former Navy captain to keep his retirement rank and pay while his First Amendment case against the Pentagon moves forward.
Benjamin C. Mizer, partner at Arnold & Porter, wrote in a brief filed April 15 that the Defense Department violated Kelly’s constitutional rights when it tried to punish him for appearing alongside other Democrats in the “Don’t Give Up The Ship” video.
The Trump administration’s appeal of the district court’s ruling, he wrote, doesn’t cite “a single case” that has expanded the limited speech rights of active-duty military members to “retirees like Senator Kelly.”
The legal precedent the Trump administration did reference, Parker v. Levy, “involved an active-duty officer directly urging soldiers at his wartime military post to refuse specific orders to deploy and fight,” Mizer wrote.
“Senator Kelly, by contrast, is a retired officer and legislator who publicly called, alongside other Members of Congress, for adherence to settled law, not defiance of it,” Mizer wrote.
‘Illegal orders’ video posted in November
Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, New Hampshire Rep. Maggie Goodlander, and Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, all Democrats with backgrounds in the military or national security, posted the video at the center of the case on Nov. 18.
They said that Americans in those institutions “can” and “must refuse illegal orders.”
“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”
Mizer wrote in his legal brief that “Kelly never told members of the armed forces to refuse any particular military orders. The video did not even identify any specific military orders or operations.”
Mizer added the obligation to refuse clearly illegal orders “is a bedrock of the law of armed conflict.”
Defense Secretary Pete Hegseth announced in January that he would attempt to downgrade Kelly’s retirement rank and pay for his participation in the video, leading the senator to file a lawsuit.
Senior Judge Richard J. Leon of the District of Columbia District Court issued a preliminary injunction in February, blocking that from taking effect while the case progresses through the legal system.
The Trump administration appealed the preliminary injunction to the Court of Appeals for the D.C. Circuit, which has scheduled oral arguments for May 7.
Karen LeCraft Henderson, nominated by President George H.W. Bush in 1990; Cornelia T.L. Pillard, nominated by President Barack Obama in 2013; and Florence Y. Pan, nominated by President Joe Biden in 2022, make up the three-judge panel that will decide whether to uphold the district court’s preliminary injunction or overturn it.
DOJ argues discipline at risk
Assistant Attorney General Brett A. Shumate wrote in a 71-page brief filed March 20 the district court judge’s ruling “was gravely wrong and sweeps far beyond Kelly’s suit, calling into question the military’s ability to maintain discipline among servicemembers.”
Shumate added later in the filing that “while retired officers may well have greater speech rights than active-duty servicemembers in some respects, the district court erred in holding that they are indistinguishable from civilians for purposes of First Amendment analysis.
“The court reasoned that retired officers cannot undermine discipline as significantly as active-duty servicemembers, but that conclusion is unsupportable.”
Shumate contended that the “district court also erred insofar as it suggested that Kelly is entitled to heightened First Amendment protection because he is a Member of Congress. Whatever enhanced speech rights Kelly has in that capacity, they come from other constitutional provisions, not the First Amendment.”
“If anything, Kelly’s role in Congress provides more, not less, reason to hold him as accountable as other servicemembers for counseling disobedience to lawful orders, given that his ‘leadership position’ as a member of the Senate Armed Services Committee gives him ‘unique sway over the military,’” Shumate wrote.
