Hegseth’s fight against Kelly moves into untested legal waters

Defense Secretary Pete Hegseth is forgoing a promised court-martialing and taking a behind-closed-doors track to attempt to punish Sen. Mark Kelly (D-Ariz.).

The administrative move — which seeks to reduce Kelly’s retirement rank and military pension — is the latest in the bitter back-and-forth between the Trump administration and the retired Navy captain after he joined five other Democratic lawmakers in a November video reminding service members that they were obligated to refuse illegal orders.

While Hegseth is taking Kelly into uncharted legal waters, using an action typically meant to scrutinize service members’ active-duty conduct, a Pentagon packed with President Trump loyalists could unfairly tip the scales against the Arizona Democrat, according to military law experts.

“The bottom line is, this is not lawful,” Rachel VanLandingham, a retired Air Force lieutenant colonel and former judge advocate, said of Hegseth’s bid to reduce Kelly’s rank under the military code. “It’s just never been done.”

Hegseth on Monday issued a letter of censure to Kelly, claiming the senator’s actions were prejudicial to good order and discipline. The letter kicks off the proceedings against Kelly, with Navy Secretary John Phelan to make a recommendation to Hegseth within 45 days as to whether a reduction in retired grade is warranted. Hegseth will then decide if he will reduce Kelly’s grade.

Hegseth is basing the proceedings under 10 U.S. Code § 1370(f), which determines when a reduction in retirement grade is allowed. Under such law, Phelan is solely responsible for the grade reduction recommendation, with no board involved, according to Todd Huntley, a retired Navy captain and former judge advocate.

That gives the relatively new Navy secretary, a Trump loyalist, an oversized influence on how the saga may play out. The founder of the private investment firm Rugger Management LLC, Phelan was a major contributor to Trump’s presidential campaign in 2024, giving more than $800,000 to the then-candidate’s joint fundraising committee in April that year.

With no prior experience with the military, Phelan, when confirmed in March, became only the seventh nonveteran to serve as Navy secretary in the past 70 years, and the first in more than 15 years.

He also has sought to stack the Navy with other loyalists. Only a few months into the role, Phelan in July replaced three civil servants in favor of three acting political appointees for Navy assistant secretary roles: chief for energy, installations and environment; chief for manpower and reserve affairs; and general counsel, as reported by Politico.

Huntley, who now runs the national security law program at Georgetown University Law Center, said in Kelly’s case, where his retirement has been final for years, a determination can only be reopened if Phelan determines that “good cause” exists.

There are only four conditions under subsection f of the statute that allow for a retirement grade determination to be opened: if a retirement was procured by fraud; if a mistake in calculation happened when determining retirement grade; if substantial evidence comes to light after retirement that would have affected a determination; and if the service secretary finds “good cause” exists to reopen the determination of retired grade.

VanLandingham said the long-held understanding of this provision is that the “good cause” condition must be read consistently with the entire statute and all the provisions that refer to conduct on active duty only.

“It’s unethical for any lawyer to claim otherwise, and a gross abuse of power for Hegseth to threaten this,” she said.

Furthermore, while Kelly is a retiree and therefore has some limitations on free speech, there has to be a direct connection between what the lawmaker said and a proven effect on military operations.

“This is about intimidation,” VanLandingham told The Hill. “The reason they’re going the administrative route is because they have so much power to get the result that they want, which is exactly what they’re doing. It makes a mockery of the procedures and the rules and due process.”

In his censure letter, Hegseth asserts that statements Kelly made in the Nov. 18 video, as well as in additional follow-up videos and statements, undermined the chain of command, encouraged disobedience, created confusion about duty, discredited the military and amounted to conduct unbecoming of an officer.

Kelly, who appeared in the video with five other Democratic lawmakers who formerly served in the military or the intelligence community, addressed service members directly.

“Our laws are clear,” he said. “You can refuse illegal orders.”

The video drew President Trump’s ire, and he immediately suggested the six lawmakers be executed for their “SEDITIOUS BEHAVIOR, punishable by DEATH!”

A week later, Hegseth announced his department was investigating Kelly for “serious allegations of misconduct.” The two have since traded barbs back and forth.

This week’s announced administrative action is “based on Captain Kelly’s public statements from June through December 2025 in which he characterized lawful military operations as illegal and counseled members of the Armed Forces to refuse lawful orders,” Hegseth wrote in a post to the social platform X announcing his move. “This conduct was seditious in nature and violated Articles 133 [conduct unbecoming an officer] and 134 [good order and discipline] of the Uniform Code of Military Justice, to which Captain Kelly remains subject as a retired officer receiving pay.”

Kelly, meanwhile, has staunchly defended his statements, and this week he said he will fight against any effort to demote him.

“Pete Hegseth wants to send the message to every single retired service member that if they say something he or Donald Trump doesn’t like, they will come after them the same way,” Kelly said in a Monday statement. “It’s outrageous, and it is wrong. There is nothing more un-American than that.”

Hegseth’s move is notably not the court-martial he initially threatened Kelly with, an unprecedented warning as retired officers are usually recalled for crimes committed while serving on active duty. A court-martial also requires a significant burden of proof and evidence standards that administrative actions do not.

Asked about his decision to not court-martial Kelly, Hegseth dodged the question, saying that officials “went through the regular process” and that reducing rank or pay “is a serious administrative action that sends real signals that we take these things incredibly seriously.”

“Watching the, I don’t know, hissy fit that [Kelly’s] been throwing ever since, shows us just how over the target we are,” Hegseth said Wednesday on “The Charlie Kirk Show.” “I don’t think anybody should minimize how significant this is. We don’t do it without understanding that.”

Kelly retired from the Navy in 2011 as a captain after 25 years of service that included combat missions and missions to outer space.

As of Monday, Kelly has 30 days to submit a response to the Pentagon’s proceedings. He also has floated filing a federal lawsuit.

“I will do everything that’s appropriate in this circumstance to make sure they know that this is unacceptable, that they cannot do this to people,” Kelly said.

Copyright 2026 Nexstar Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

For the latest news, weather, sports, and streaming video, head to The Hill.