Pete Hegseth’s Legal Appeal Against Sen. Mark Kelly Hits Major Roadblock

Following a two-week delay in lodging an appeal against a significant legal defeat, Secretary of Defense Pete Hegseth has managed to expedite his complaint against Senator Mark Kelly, a Democrat from Arizona. However, the selection of judges indicates that the Trump administration may face increased challenges in this legal battle.

The U.S. Court of Appeals for the District of Columbia Circuit has arranged an accelerated briefing schedule, extending through March and April, with oral arguments slated for May 7. This timeline aligns with the government’s urgent request for a swift resolution.

Law&Crime has detailed Senior U.S. District Judge Richard Leon’s decision in February, which halted Hegseth’s attempt to penalize Kelly by demoting his retirement rank and pay grade. The allegations against Kelly included “undermining the chain of command,” “counseling disobedience,” and “conduct unbecoming an officer” due to his past role as a Navy captain.

In a video released in November, Kelly and five other Democratic lawmakers criticized President Donald Trump’s lethal maritime actions against alleged drug traffickers in international waters. Kelly notably advised service members that they could “refuse illegal orders,” citing the Uniform Code of Military Justice.

In response, Trump vehemently denounced the criticism as “SEDITIOUS BEHAVIOR, punishable by DEATH!” He further declared that “each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”

A high-profile failure to persuade a grand jury to indict the so-called “Seditious Six” followed, and Leon poured some salt in the wound.

Finding that Kelly was “likely to succeed on the merits” that the Trump administration unlawfully retaliated against the sitting senator for “unquestionably protected speech,” in violation of the First Amendment, the judge said that Hegseth could not win the day.

“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,” the judge said, blocking the disciplinary action. “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!”

Hegseth, for his part, vowed to “immediately” appeal and then took 12 days to do so. But after the DOJ noticed its appeal, it asked the D.C. Circuit to hear the case on an expedited basis and before the summer, citing the “public’s unusual interest in prompt disposition of this appeal[.]”

“Plaintiff brought this action against the government to challenge a letter of censure issued by the Secretary of War and the reopening of his retired grade. Those actions were based on statements that plaintiff made concerning military affairs that the Secretary determined were prejudicial to good order and discipline in the Armed Forces. Plaintiff filed suit in district court and obtained a preliminary injunction enjoining defendants from, among other things, giving effect to the letter of censure or taking steps to revisit plaintiff’s grade determination,” the filing said. “The government is currently enjoined from taking further actions against plaintiff in reliance on the findings in the letter of censure.”

The D.C. Circuit acted accordingly on Monday, also revealing the three-judge panel that will hear the case: U.S. Circuit Judges Karen LeCraft Henderson, Florence Pan, and Cornelia Pillard, respectively appointed by Presidents George H.W. Bush, Joe Biden, and Barack Obama.

Pan has presided over her share of Trump-related tilts, memorably asking during one oral argument if Trump could order his political rivals to be assassinated by SEAL Team 6, have official acts immunity, and sell pardons. In another case, she penned a dissent warning that Trump’s independent agency firing spree — “excessive power in the President” left unchecked by the courts — had opened the door to “autocracy.”

Pillard, also something of a thorn in the side of the Trump administration, was part of a panel that picked apart Peter Navarro’s contempt appeal back in December. Notably, the DOJ didn’t participate, and the court has not yet issued a decision.

Both judges were on a panel that greenlit special counsel Jack Smith’s Jan. 6 search warrant on X for Trump’s data without the then-former president’s knowledge.

As the DOJ has been given the go-ahead, before this panel, to challenge one major loss in a First Amendment lawsuit, the Trump administration on Monday separately stopped appealing its losses against several law firms targeted by the president’s executive orders. On Tuesday, just hours later, the DOJ attempted to pull a 180 and continue those appeals.