U.S. Senator Mark Kelly (D-AZ) speaks to members of the media at the U.S. Capitol, in Washington, D.C., U.S., March 12, 2025. REUTERS/Nathan Howard
Sen. Mark Kelly (D-Ariz.) remains under the microscope over his appearance in a video that reminded military members they can "refuse illegal orders." The government has now officially filed an appeal after its loss in the lower courts.
While the filing tries to adjust what Kelly said to justify the case, the prosecutors attempt to appeal it by saying that it should be put in military court rather than a federal court.
U.S. military members have not only a legal right but a duty to refuse illegal orders under the Uniform Code of Military Justice (UCMJ). The issue also falls under 10 U.S. Code § 892 - Article 92.
While Kelly is no longer an active-duty member of the military, he is receiving a pension, and Secretary of Defense Pete Hegseth attempted to demote his rank and then cut the amount of that pension. Kelly took the Pentagon to court and won. President Donald Trump's administration appealed and there is a court date on May 7.
In his ruling, U.S. District Court Judge Richard Leon, a Republican appointee, said in the decision that veterans like Kelly do not forefit his constitutional rights even when it comes to matters of the military.
Trump called the video "seditious," though no one in the video has been charged with sedition.
In the appeal documents, the Pentagon is seeking to move the case out of federal court and into a military administrative process.
The court filing alleges, “The district court here held that the military has no ability to restrict the speech of retired officers — not even speech that counsels disobedience to lawful orders,” the government wrote. Kelly didn't counsel disobedience to lawful orders.
As CNN reported last November, "The administration has argued that by emphasizing service members’ duty to disobey unlawful orders, Kelly and the other lawmakers were inciting troops to disobey lawful orders."
The court filing describes Judge Leon's ruling as “plainly wrong” and again demands that Kelly be treated as "anyone else currently serving," the Arizona Republic reported. Although Kelly is retired, the rules require him to continue to follow the UCMJ. The distinction is different from a discharged veteran.
The problem, however, is that Article 90 of the UCMJ makes it clear, "Orders must be specific, personal, and lawful; service members have an obligation to disobey patently illegal orders. Unlawful orders include those violating constitutional rights, crimes against humanity, or personal, non-military tasks."
The court filing again misstates what Kelly said by claiming, "he does not disagree that these are the very reasons that the Supreme Court and this Court have rejected First Amendment claims by other servicemembers who counseled disobedience to lawful orders."
Further, Hegseth made the same comment as Kelly during a podcast on Nov. 7, 2024. Hegseth was appearing on “The Shawn Ryan Show” to promote his book, reported Politico in January 2026.
The appeal information comes just after news broke that the DOJ was indicting former FBI Director James Comey for a second time.