‘Horsefeathers!’: Judge blasts Hegseth’s attempt to demote Sen. Kelly over video to U.S. troops

Defense Secretary Pete Hegseth violated Sen. Mark Kelly’s (D-Ariz.) First Amendment rights by moving to strip him of his retired military rank for reminding troops in a video last year that they are obligated to refuse illegal orders, a federal judge ruled Thursday.

In a fiery decision that included 15 exclamation points, U.S. District Judge Richard Leon, a George W. Bush appointee, wrote that Hegseth “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees” in attempting to punish the senator over the video.

“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!” he added.

Leon summarized Hegseth’s defense of the demotion proceedings as amounting to “Horsefeathers!”

Beyond just halting Hegseth’s attempt to demote Kelly, a fighter pilot and astronaut who was later elected a U.S. senator, Leon’s ruling reinforces the First Amendment rights of all military retirees.

In November, Kelly was one of six Democratic lawmakers who recorded a video reminding members of the military and intelligence community that they took an oath to defend the Constitution and that they are legally required to refuse unlawful orders.

They released the video in response to ongoing fears that Trump’s political appointees have issued illegal orders in carrying out the president’s legally questionable campaign of killing people suspected of smuggling drugs in the Caribbean and Eastern Pacific.

The video did not name President Donald Trump, issue commands or urge disobedience to lawful authority. It reiterated long-standing military doctrine that Hegseth had publicly supported before he became defense secretary.

The Trump administration swiftly responded to the video. Trump himself expressed support for imprisoning and even executing the group of lawmakers for what he termed “seditious behavior” — a concept that does not exist under U.S. law.

Shortly after Trump’s threats, Hegseth announced that the Department of Defense (DOD) would reconsider Kelly’s retirement grade more than a decade after he left active duty in 2011, claiming that the senator’s conduct was “seditious in nature” and violated the Uniform Code of Military Justice.

In response, Kelly sued, arguing that Hegseth was unconstitutionally weaponizing demotion proceedings to penalize him for participating in the video.

In his Thursday ruling, Leon largely agreed with Kelly’s First Amendment arguments.

The judge said speech from retired service members, even comments on the lawfulness of ongoing military operations, could not, as Hegseth claimed, threaten the obedience and morale of active-duty soldiers.

Quoting from the singer-songwriter Bob Dylan, Leon also tore into the defense secretary’s argument that courts have no authority to intervene in disciplinary reviews against retired members of the military.

“I disagree,” he wrote. “After all, as Bob Dylan famously said, ‘You don’t need a weatherman to know which way the wind blows.’ To say the least, our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!”

Leon’s decision siding with Kelly was expected. In previous court proceedings, the judge appeared alarmed by the Department of Justice’s (DOJ) defense of Hegseth’s effort against Kelly. Leon had previously ruled in a similar case that the Constitution bars the military from prosecuting retired service members for post-retirement conduct.

In addition to the demotion proceedings, Hegseth said that the DOD, upon his orders, would investigate whether Kelly’s comments in the video violated a law barring retired service members from issuing orders to active duty soldiers. The investigation is ongoing. 

The Trump administration hasn’t just attempted to punish Kelly over the video. 

Earlier this week, federal prosecutors in Washington, D.C., sought to indict Kelly and the five other lawmakers for violating a statute that forbids interference with the loyalty, morale or discipline of the U.S. armed forces.

However, the effort failed after a grand jury refused to approve the charges. Dubbed a “no true bill,” grand jury rejections are an astonishingly rare occurrence in federal criminal cases.

The indictment attempt came after Jeanine Pirro, the staunch Trump ally heading the U.S. attorney’s office for the District of Columbia, sought investigatory interviews with the five other lawmakers who took part in the video.

At the time, the requests indicated that Pirro’s office had opened a probe against the lawmakers even though DOJ policy and guidelines generally prohibit investigations from being initiated solely based on activities protected by the First Amendment.

The FBI’s counter-terrorism division also sought interviews with the lawmakers.

This story has been updated with additional information throughout.