A federal judge has blocked Secretary of Defence Pete Hegseth from lowering Senator Mark Kelly's rank in the military over his urging service members to refuse illegal orders.
US District Judge Richard Leon wrote in a scathing ruling that Hegseth had unconstitutionally retaliated against Kelly in seeking to demote the retired Navy captain.
It is another setback in President Donald Trump's fight against Kelly and five other Democratic lawmakers who published a video last year encouraging troops to disobey orders they deemed illegal, which he branded seditious.
Earlier this week, a grand jury declined to bring charges of seditious conspiracy that federal prosecutors had sought against the six.
Reducing Kelly's rank could lead to a major cut in his retirement pay.
Kelly, who is also a former astronaut, sued the government in January, naming Hegseth as the defendant. He argued that Hegseth had illegally tried to demote him in retaliation for criticising the Trump administration. He asked the judge to block the demotion with a temporary injunction while his lawsuit proceeded.
The federal government had argued Kelly should contest the case against him through a military process and not in a civilian court of law, but in Thursday's decision, Judge Leon wrote: I disagree.
Leon wrote that while service members have more limited free speech protections than civilians under the US Constitution's first amendment, no court has ever extended those limits to retired service members.
This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees, he wrote.
To say the least, our retired veterans deserve more respect from their Government, the judge added, and our Constitution demands they receive it!
In the video, the Democrats say: This administration is pitting our uniformed military and intelligence community professionals against American citizens.
Kelly appears alongside Michigan Senator Elissa Slotkin and US Representatives Chris Deluzio, Maggie Goodlander, Chrissy Houlahan and Jason Crow, all of whom served in military or intelligence agencies.
Our laws are clear, he says. You can refuse illegal orders.
After the video was released, Trump posted on social media that the members of Congress should be arrested and put on trial. Labeling the video seditious behaviour, he posted: PUNISHABLE BY DEATH!
Trump later clarified to Fox News: I'm not threatening death, but I think they're in serious trouble.
Federal prosecutors then began criminal investigations into the lawmakers and sought to indict them on charges of seditious conspiracy. But a grand jury, which decides if a case can stand up in court, declined to approve the charges.
Meanwhile, Hegseth announced he would open retirement-grade determination proceedings against Kelly and issue a formal letter of censure. He described Kelly's comments as seditious in nature and a violation of the Uniform Code of Military Justice.
In his decision, which contained more exclamation marks than are typical in judicial writings, Leon wrote: Rather than trying to shrink the First Amendment liberties of retired servicemembers, Secretary Hegseth and his fellow Defendants might reflect and be grateful for the wisdom and expertise that retired servicemembers have brought to public discussions and debate on military matters in our Nation over the past 250 years.
