Lead
On Feb. 12, 2026, U.S. District Judge Rich Leon in Washington, D.C., issued a preliminary injunction preventing Defense Secretary Pete Hegseth from censuring Sen. Mark Kelly over the Arizona Democrat’s appearance in a November video advising service members about refusing unlawful orders. The order also bars, for now, any move to strip Kelly of his retired U.S. Navy rank or cut his retirement pay; Kelly retired as a Navy captain. Judge Leon found that Hegseth’s actions likely violated Kelly’s First Amendment rights and indicated the senator is likely to prevail on the merits of his suit. The injunction could become permanent if Hegseth loses the underlying constitutional challenge.
Key Takeaways
- Judge Rich Leon issued a preliminary injunction on Feb. 12, 2026, blocking Defense Secretary Pete Hegseth from censuring Sen. Mark Kelly and from reducing Kelly’s retired Navy rank or pension.
- Kelly, a retired Navy captain, participated in a November 2025 video reminding troops of their right to refuse illegal orders; that appearance prompted the Pentagon’s proposed disciplinary response.
- Leon ruled Hegseth likely violated Kelly’s First Amendment free-speech protections and rejected the extension of military-duty speech restrictions to retired service members serving in Congress.
- The court’s order followed a failed attempt by the U.S. Attorney’s Office for D.C. to secure a grand jury indictment on Feb. 10, 2026 into alleged seditious conspiracy involving Kelly and Sen. Elissa Slotkin.
- President Donald Trump publicly condemned the lawmakers who appeared in the video on Truth Social, using strongly worded language that drew national attention.
- The Department of Justice and Department of Defense are defending Hegseth; Navy Secretary John Phelan and the Department of the Navy are also named defendants in Kelly’s lawsuit.
- Judge Leon emphasized that no precedent supports penalizing a retired servicemember who now serves in Congress for public statements made in that capacity.
Background
The controversy traces to a November 2025 video in which several members of Congress, including Sen. Mark Kelly (D-Ariz.) and Sen. Elissa Slotkin (D-Mich.), addressed active-duty service members about their rights to refuse unlawful orders. Some administration allies viewed the video as undermining military discipline and pressured Pentagon leadership to take punitive action against participating veterans who retain retired benefits.
Defense Secretary Pete Hegseth moved to censure Kelly and to reduce his retired rank and pay, treating the matter as a personnel decision within the military’s disciplinary authority. The defendants argued that matters of military personnel are typically insulated from judicial review and that Kelly should pursue military administrative remedies first.
Kelly challenged the punitive steps in federal court, asserting that his remarks as a member of Congress are protected by the First Amendment and that the proposed penalties would punish protected political speech. The legal clash then drew parallel scrutiny when the U.S. Attorney’s Office for the District of Columbia sought a grand jury to consider criminal charges related to the same video; that effort did not result in indictments.
Main Event
In a sharply worded Feb. 12 opinion, Judge Rich Leon concluded the defendants likely overstepped constitutional limits by seeking to punish Kelly. The judge observed that judicially recognized restrictions on serving members’ speech stem from the need for obedience and discipline in the armed forces, but that those doctrines do not apply to retired service members who hold public office.
Leon wrote that extending military-speech precedent to a retired veteran now serving in Congress would be unprecedented and inappropriate, noting the separation of powers and Congress’s oversight role of the military. He explicitly rejected the argument that a federal judge was not yet competent to resolve the dispute and found the court had jurisdiction to adjudicate the constitutional claim.
The preliminary injunction bars Hegseth from carrying out the planned censure and from administratively downgrading Kelly’s retired rank or cutting his retirement pay while the lawsuit proceeds. Leon suggested in his opinion that the injunction could be made permanent if the defendants fail to prevail on the merits.
The order arrived two days after the U.S. Attorney’s Office for D.C. failed to obtain a federal grand jury indictment into alleged seditious conspiracy concerning Kelly and Sen. Elissa Slotkin; prosecutors examined the same November video as part of that inquiry. Critics of the administration had argued that criminalizing the lawmakers’ speech would chill political expression by veterans and elected officials.
Analysis & Implications
Legally, the decision underscores a boundary between military discipline and constitutional protections for political speech. Courts have long afforded active-duty service members narrower First Amendment rights because of the unique needs of the military; Judge Leon’s ruling clarifies those limits do not neatly transfer to retired veterans who assume elected office and exercise legislative oversight.
Politically, the ruling removes an immediate tool for the administration to signal consequences to veterans who criticize or challenge military policy publicly. If the injunction becomes permanent, the Pentagon’s leverage over retired officers who enter politics would be diminished, reshaping how the executive branch responds to politically sensitive speech by former service members.
For the Pentagon, the case raises operational questions about where disciplinary authority ends and where constitutional protections begin. The Defense Department will have to balance concerns about maintaining military cohesion with the constitutional rights of retirees and the prerogatives of Congress to debate and oversee military policy.
Practically, the DOJ’s role in defending Hegseth means the case could produce appellate review on the interplay between military personnel statutes and constitutional speech protections. An appeals court decision could set a nationwide precedent affecting how the armed services treat retired members who engage in political speech.
Comparison & Data
| Date | Event |
|---|---|
| November 2025 | Video released featuring several lawmakers advising service members about refusing unlawful orders. |
| Feb. 10, 2026 | U.S. Attorney’s Office for D.C. sought a grand jury indictment; no indictment returned. |
| Feb. 12, 2026 | Judge Rich Leon issued a preliminary injunction blocking Hegseth’s punitive actions against Sen. Mark Kelly. |
The timeline shows rapid legal and prosecutorial activity in the months following the video’s release. The grand jury decision (Feb. 10) and Leon’s injunction (Feb. 12) came within days of each other, concentrating multiple legal avenues—criminal inquiry and civil constitutional litigation—on the same underlying conduct.
Reactions & Quotes
“This Court will not be the first to extend military-speech doctrine to a retired servicemember serving in Congress.”
Judge Rich Leon (excerpted ruling)
Leon framed the issue as one of constitutional limits: while the government can regulate speech in active-duty contexts to preserve order, that rationale does not justify punitive measures against a retired veteran acting in an elected capacity.
“Today a federal court made clear Pete Hegseth violated the Constitution when he tried to punish me for something I said.”
Sen. Mark Kelly (post on X)
Kelly called the decision a vindication of constitutional rights and urged vigilance against further attempts to curtail political speech by public officials and veterans.
Unconfirmed
- Whether the Department of Defense will appeal Judge Leon’s injunction swiftly to an appellate court remains unannounced and is not yet confirmed.
- It is unclear if the Pentagon has a revised administrative pathway planned that would attempt to achieve the same disciplinary outcomes through different procedures.
- Any renewed grand jury activity or new criminal charges tied to the November 2025 video have not been publicly confirmed beyond the Feb. 10, 2026 proceedings.
Bottom Line
Judge Leon’s preliminary injunction is a significant check on the Pentagon’s attempt to discipline a retired officer who serves in Congress for exercising political speech. The decision affirms that constitutional protections for speech cannot be bypassed by treating retirees as if they remain subject to active-duty restrictions, especially when they perform legislative oversight duties.
The case is likely to continue through litigation, and the appellate process may ultimately define how far military personnel authorities can reach into the lives of retirees who enter public office. For now, Kelly retains his retired rank and pay while the courts resolve the underlying constitutional questions.