Sen. Mark Kelly on Monday sued the Pentagon and Secretary of Defense Pete Hegseth, alleging the Trump administration’s efforts to punish the Arizona Democrat for his participation in a video to U.S. troops violate the Constitution.
The federal civil lawsuit in U.S. District Court in Washington was filed one week after Hegseth said his department would cut Kelly’s military retirement pay in response to the video.
The government’s actions “trample on protections the Constitution singles out as essential to legislative independence,” Kelly’s lawyers wrote in the lawsuit, which was also filed against the U.S. Navy Department and its secretary, John Phelan.
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawyers wrote.
The legal complaint alleges that the defendants violated Kelly’s right to freedom of speech, as well as his protection under the Constitution’s “speech or debate clause,” which prevents executive action against members of Congress for their legislative conduct.
The suit also alleges infringements of Kelly’s due process rights and the separation of powers, among other violations.
A Pentagon official told CNBC in a statement that the department is aware of the lawsuit, but that its policy is not to comment on ongoing litigation.
The video at the center of the fight featured Kelly and five other congressional Democrats delivering a message addressed to U.S. troops and members of the intelligence community.
“Our laws are clear: You can refuse illegal orders,” Kelly said in the 90-second video, which was first posted on social media on Nov. 18.
It was shared as the U.S. military carried out a succession of airstrikes in the Caribbean targeting boats purported to be smuggling drugs.
Members of Congress, including some Republicans, had questioned the legality of those deadly strikes, which were made without congressional authorization. The attacks have continued, killing 123 people since early September, according to The New York Times.
The other lawmakers in the video, who all served in the military or in U.S. intelligence, each made a similar statement about troops being allowed to refuse unlawful orders.
But Kelly, a former U.S. Navy captain and NASA astronaut, is the only one who formally retired from service, and therefore remains subject to the Uniform Code of Military Justice.
Days later, Hegseth slammed the video as “despicable, reckless, and false,” while labeling its participants the “Seditious Six.”
Around the same time, the Pentagon said it would investigate “serious allegations of misconduct” against Kelly, and warned that the senator may be recalled to active duty “for court-martial proceedings or administrative measures.”
President Donald Trump had reposted scathing criticism of the Democrats, at one point accusing them of “SEDITIOUS BEHAVIOR, punishable by DEATH!”
Kelly at the time said he would not be “silenced by bullies.”
On Jan. 5, Hegseth said the Pentagon is taking “administrative action” against Kelly by reducing his retired rank, which would trigger a “corresponding reduction in retired pay.”
Hegseth also said he had issued a formal letter of censure. Kelly, in response, vowed to “fight this with everything I’ve got.”
