U.S. Senator Mark Kelly filed a federal lawsuit on January 12 against Defense Secretary Pete Hegseth and the Department of Defense, alleging that efforts to censure and demote him violate his constitutional rights and exceed statutory authority.
Kelly joined five other Democratic lawmakers, all military veterans or former intelligence officers, in releasing a video reminding servicemembers of their legal obligation to refuse unlawful orders in November 2025. The video, titled “Don’t Give Up the Ship,” featured Senators Kelly and Elissa Slotkin, along with Representatives Jason Crow, Christopher Deluzio, Maggie Goodlander, and Chrissy Houlahan.
In the 90-second clip, the lawmakers stated: “Our laws are clear. You can refuse illegal orders. You must refuse illegal orders.” The video was released after the Trump administration deployed National Guard troops within US cities and conducted strikes on boats in the Caribbean alleged to be transporting drugs, killing those aboard.
On January 5, 2026, Secretary Hegseth issued a formal Letter of Censure against Kelly, accusing the retired Navy captain of conduct that “undermined the chain of command,” “counseled disobedience,” and constituted “conduct unbecoming an officer.” The censure letter declared Kelly’s statements “seditious in nature” and announced the initiation of retirement grade determination proceedings that could reduce both his military rank and pension.
The Department of Defense stated it would review whether Kelly should be demoted from his retired rank of O-6 Captain, which would result in a corresponding reduction in his retirement pay. Hegseth’s letter also threatened “criminal prosecution or further administrative action” if Kelly continued making similar statements.
Kelly’s lawsuit argues that the government’s actions violate multiple constitutional provisions:
First Amendment: The complaint alleges that the censure and threatened demotion constitute unconstitutional retaliation for protected political speech. Kelly’s attorneys argue that reminding servicemembers of their duty to refuse unlawful orders is a “plain statement of blackletter law” protected by the First Amendment.
Speech or Debate Clause: The lawsuit contends that Kelly’s statements were legislative acts protected by Article I, Section 6 of the Constitution, which shields members of Congress from being “questioned in any other Place” for “any Speech or Debate in either House.” As a member of the Senate Armed Services Committee and Select Committee on Intelligence, Kelly’s oversight of military operations falls squarely within his constitutional duties.
Separation of Powers: The complaint argues 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”. Allowing such action would “invert the constitutional structure by subordinating the Legislative Branch to executive discipline and chilling congressional oversight of the armed forces”.
Due Process: Kelly alleges the proceedings violate his Fifth Amendment rights because the outcome has been prejudged. President Trump publicly accused Kelly of “sedition” and “treason” punishable by “DEATH,” while Hegseth’s censure letter conclusively determined Kelly’s conduct met the criteria for grade reduction before any review process began.
The lawsuit also challenges the legal basis for reconsidering Kelly’s retirement grade under 10 U.S.C. § 1370. Kelly retired from the Navy in 2011 as a Captain, and his retirement grade became final by operation of law at that time. The statute allows reopening grade determinations only for “good cause” related to whether an officer “served on active duty satisfactorily,” not for post-retirement political speech.
Kelly’s attorneys argue that reading the statute to permit demoting a sitting senator based on protected speech would raise serious constitutional concerns and should be rejected under the constitutional-avoidance principle.
The lawsuit asks the court to declare the censure, grade-determination proceedings, and related actions unlawful and unconstitutional; vacate those actions; enjoin their enforcement; award attorney’s fees; and grant other appropriate relief. Kelly seeks both preliminary and permanent injunctive relief to halt all proceedings immediately.
