Arizona Democratic Senator Mark Kelly has taken a stand against the Defense Department’s efforts to downgrade his retirement rank and pay. This action follows his public statement to U.S. troops, asserting that they are not obligated to follow illegal orders. In a court filing submitted on January 26, 2026, Kelly’s legal representative, Paul J. Fishman, argued that the Pentagon’s move represents a violation of constitutional rights.
Fishman’s 35-page brief emphasizes that Secretary of Defense Pete Hegseth is attempting to impose unconstitutional power by punishing Kelly for his remarks. “As a decorated combat veteran and member of the Senate Armed Services Committee, Senator Kelly is deeply committed to the necessity of good order and discipline in the armed forces,” Fishman wrote. He contends that Kelly’s speech is vital for maintaining military discipline, stating, “Discipline does not demand silence—particularly from those no longer serving on active duty.”
In response to the Defense Department’s actions, Fishman firmly disagreed with the Justice Department’s claim that the federal court lacks authority to examine the Pentagon’s decisions. He pointed out that historical precedent allows judicial review of military disciplinary actions. “Their claim that this Court is ‘not permitted to address’ Senator Kelly’s challenge disregards reams of precedent,” he noted.
A hearing on this matter, originally scheduled for January 31, 2026, has been postponed to February 3 due to severe weather conditions.
Hegseth announced earlier this month that he initiated the process to downgrade Kelly’s military status, asserting that being a sitting U.S. Senator does not exempt him from accountability. The Defense Department’s letter accused Kelly of undermining military authority, fostering disobedience, and bringing discredit to the Armed Forces through his participation in a video featuring other Democratic lawmakers.
The video, which included Kelly alongside Michigan Senator Elissa Slotkin, Colorado Representative Jason Crow, Pennsylvania Representatives Chris Deluzio and Chrissy Houlahan, and New Hampshire Representative Maggie Goodlander, encouraged military personnel to refuse illegal orders. The lawmakers stated, “No one has to carry out orders that violate the law or our Constitution.” They acknowledged the difficulty of public service during such challenging times, emphasizing the importance of vigilance among servicemembers.
Fishman criticized the Trump administration’s argument that retired military personnel do not enjoy First Amendment protections for their speech when the Secretary of Defense deems it detrimental to military discipline. He highlighted historical instances where retired officers engaged in public discourse, such as Alexander Hamilton criticizing President Adams during the Quasi-War and retired generals calling for the resignation of former Secretary of Defense Donald Rumsfeld over the Iraq War.
“The same is true today,” Fishman stated, noting that retired servicemembers, including those in Congress, have voiced criticisms of various presidential decisions, including the withdrawal from Afghanistan and vaccination mandates. He argued that the Pentagon’s attempt to restrict the First Amendment rights of over two million retired servicemembers lacks judicial review and support from legal precedent.
The outcome of this case could have significant implications for the rights of retired military personnel and their ability to engage in public debate regarding military policies. The next steps will unfold in the upcoming court hearing, where Kelly and his legal team seek to uphold the constitutional protections they believe should extend to all members of the military, even those no longer in active service.
