By Missy Ryan
Monday, February 09, 2026
Of the many questions posed by those gathered in U.S.
District Judge Richard Leon’s courtroom last week, the most obvious one of all
never came up: Why on earth was anyone here in the first place?
Until now, the military has pursued only a tiny number of
criminal cases against retirees for actions that occur after military
service has ended. Until now, the idea that the secretary of defense would
accuse a lawmaker of treason simply for disagreeing with him would be
laughable. Until now, any free-speech debates concerning sitting members of
Congress have led to the conclusion that lawmakers ought to have—to borrow from
former Chief Justice Earl Warren—the widest possible latitude to express
themselves.
And yet there we all were anyway, gathered to see Mark
Kelly—the fighter pilot turned astronaut turned U.S. senator—defend his First
Amendment rights against an attempt by the Pentagon chief, Pete Hegseth, to
silence him and knock down his military retirement rank and pay.
As someone who’s covered 10 secretaries of defense, I’ve
never seen anything like what Hegseth is doing—not even close. If Hegseth gets
his way, he won’t just be punishing Kelly; he will succeed in dramatically
curbing the First Amendment rights of all military retirees, some of the very
people who have fought to defend such freedoms.
At the heart of the case is a November video in which
Kelly and five other Democratic lawmakers—all veterans of the military or
intelligence agencies—address U.S. troops, reminding them that they “can and
must refuse illegal orders.” Their goal with the video was to push back against
the president’s domestic troop deployments, a trend his critics feared might
lead to clashes with ordinary Americans or be used to interfere in upcoming
elections. At the time the video was posted, Democrats were also assailing the
administration over the legality of its air campaign against suspected Latin
American drug boats. The lawmakers did not specify which problematic orders
they had in mind.
The Trump administration’s response was swift. Adviser
Stephen Miller called the video an attempted “insurrection.” Donald Trump
declared that the “traitors to our Country should be ARRESTED AND PUT ON
TRIAL,” and reposted suggestions that they be hanged. Hegseth ordered the Navy to look into Kelly’s “potentially unlawful” comments, something
he was able to do because Kelly is the only one in the video who receives
benefits as a military retiree. (Although some 18 million military veterans are
living in the U.S., according to the Pew
Research Center, a much smaller share of those people reach retirement
status.) Kelly now receives lifelong retirement pay and is subject to rules,
including the Uniform Code of Military Justice. In early January, Hegseth
issued Kelly a letter of censure over his “seditious statements and his pattern
of reckless misconduct,” which, Hegseth said, had harmed military discipline
and undermined the chain of command. He also asked Navy Secretary John Phelan
(a Republican donor and billionaire art collector with no naval experience) to
begin a review of Kelly’s retirement rank and pay.
The Trump administration’s attempts to go after Kelly
are, several legal experts told me, straightforwardly outrageous and without
merit. But even if the judge rules in Kelly’s favor, it’s worth paying
attention to this fight, because it underscores the degree to which the Trump
administration is seeking to expand executive power in novel ways. Far more is
at stake than the retirement benefits of one man.
***
The U.S. military has sought legal action against its own
retirees only in a rare few cases—and those cases have typically involved
egregious crimes, such as sexual assault. And although the military can prosecute
sitting service members for prohibited speech—to make sure troops stay in line
and follow orders, the military has strict rules prohibiting them from
insulting public officials or making statements that undermine “good order and
discipline”—several former military lawyers told me that no cases have
previously been brought against a military retiree for something said after
they hung up their uniform. “It’s important for the public to understand the
extraordinary power that the administration is asking the courts to bless,”
Ryan Goodman, a former Pentagon lawyer who teaches at the NYU School of Law,
told me.
If the government prevails against Kelly, it will
establish a precedent for punishing retirees for statements perceived as out of
line by whoever is in charge at the time. (The Trump administration denies that
this case has any First Amendment issues to consider, saying that even as a
retiree, Kelly has no right to undermine military discipline by encouraging
others to question orders.)
Even before the Kelly episode, I had heard from numerous
veterans about the chilling effect that Hegseth has had. The defense
secretary—who insists on being called the “war secretary”—has used social media
and speeches to vilify opponents, including former service members. Those who
have worn the uniform are now less likely to criticize the administration’s
policy or personnel moves, because they fear for their benefits or worry about
getting in hot water with current employers skittish about backlash from the
administration.
During his first term, Trump mused about bringing senior
officers whom he disliked, including Stanley McChrystal and William McRaven,
back onto active duty and court-martialing them, but Pentagon officials talked
him out of it, former Defense Secretary Mark Esper wrote in his memoir. Trump
once insinuated that retired General Mark Milley, who served as his second
chairman of the Joint Chiefs of Staff, should be executed. Shortly after taking
office, Hegseth stripped Milley of his security detail.
Expanding the military’s ability to control veterans’
speech would be a major and historic reversal of basic freedoms. Retired
service members turned public officials have a long history of criticizing
Pentagon leaders in ways those leaders might find objectionable. Dwight D.
Eisenhower famously warned Americans about the corruption that would come from
the unchecked growth of the military-industrial complex, focusing on the power
of the people in mitigating “the potential for the disastrous rise of misplaced
power” that would “endanger our liberties or democratic processes.” John F.
Kennedy beat back the
A bomb–loving generals he believed were as dangerous
as Nikita Khrushchev. Veterans have often been some of the harshest (and most
clear-eyed) analysts of the military’s shortcomings.
I was thinking about this history as I watched Kelly
stand at attention when Judge Leon entered the courtroom on Tuesday, a combat
veteran who was doing just as new recruits are taught: holding his spine ramrod
straight, fists curled back, thumbs aligned with the seam of the pants.
Leon, who kept his eyebrows positioned in a skeptical V
for much of the hearing, seemed to be focused on that history too. How are
veterans on Congress’s Armed Services Committees, he asked, supposed to do
their job if they can’t criticize the military without fear of prosecution?
Leon was visibly wary of the government’s arguments, at times tipping into what
appeared to be barely contained bewilderment. At one point, when the Justice
Department attorney John Bailey conceded that there were “a few unique things”
about the government’s First Amendment–related claims, Leon barked back, “You
think?”
***
Dan Maurer, a former Army lawyer and combat engineer,
told me that Hegseth’s decision to pursue administrative disciplinary steps
against Kelly—rather than an attempt to court-martial him—was likely because a
trial would leave Kelly’s fate to a military jury. When I asked whether such a
jury would convict Kelly, he laughed dismissively. “Absolutely not,” he said.
Maurer, who teaches law at Ohio Northern University, said he believes that the
administration’s objective is more about demonstrating punitive action and appealing
to the base than winning in court. “They don’t care what the courts say,
because they’re going to depict them as liberal, woke courts,” he said. (Judge
Leon was appointed by George W. Bush.)
Tim Parlatore, Hegseth’s personal lawyer who now serves
as an adviser in his office, suggested that the Pentagon might not pursue a
criminal case against Kelly, because doing so would require him to be called
back to active duty in the executive branch. This would effectively remove
Kelly from his Senate seat and force litigation. “The Constitution prohibits
somebody from holding office in two branches at the same time,” he told the
Trump ally and Joseph
McCarthy enthusiast Laura Loomer in December.
This brings up a second way that Hegseth’s orders
would expand Pentagon leaders’ powers over military retirees. According to
Maurer, who signed a letter from a group of retired military lawyers expressing
concern about the actions against Kelly, the administrative procedure for
reviewing and possibly reducing a retiree’s rank and pay has never been
understood to apply to actions that occur after retirement.
Hegseth, who did not attend the hearing, has long
expressed his disdain for the military justice system, advocating for lenient
treatment of troops convicted of war crimes and deriding judge advocates
generals, or JAGs, as pencil-necked “jagoffs.” The Pentagon spokesperson
Kingsley Wilson said in an emailed statement that can only be interpreted as a
non sequitur that Hegseth and his team would “do everything in our power to
stop those who seek to harm Americans and the brave men and women defending our
Homeland.”
But the government’s lawyer seemed to stumble at times,
struggling to defend Hegseth’s actions. Leon noted that the cases the
government had cited as precedent weren’t a perfect fit; they were either First
Amendment cases involving currently serving troops or cases about other kinds
of crimes involving retired military personnel. (Bailey argued that they were
relevant because retirees can be recalled to active duty to be
court-martialed.) Bailey asserted that retiree speech could still undermine
good order and discipline, and denied that Hegseth’s actions would extend the
reach of the military’s punitive powers over retirees. (“I know you don’t view
it that way, but that’s what you’re doing,” Leon responded.)
Kelly’s attorney, Benjamin Mizer, urged the judge to shut
down the Navy’s review because Hegseth’s public statements had put his thumb on
the scales. “He’s not a decision maker who has kept an open mind,” Mizer told
Leon. Federal courts have had a history of deferring to the military on
national-security matters. Leon will issue a decision by Wednesday.
If the government prevails, the silencing of longtime
service members would be like barring retired doctors from opining on health
policy, Maurer said. When debating matters of war and peace, he said, it serves
the public to hear from the very people who have served on the front lines—and
lived through the consequences.