Commentary by Heather Cox Richardson
Today, Democratic senator Mark Kelly of Arizona sued Defense Secretary Pete Hegseth, the Defense Department, Navy Secretary John Phelan, and the Navy Department for violating his First Amendment rights, the Speech and Debate Clause of the U.S. Constitution, the separation of powers, due process, the law that establishes ranks for retired commissioned officers (10 USC 1370), and the Administrative Procedure Act that establishes the ways in which agencies can make regulations.
While this sounds complicated, at its heart it’s about the attempt of the Donald J. Trump administration to trample Congress and create a military loyal to Trump alone.
Defense Secretary Hegseth came to his position from his job as a weekend host on the Fox News Channel. Before that, he served in the Army Reserve and the National Guard but, as Kelly and Senator Tammy Duckworth (D-IL) noted in a Military Times op-ed questioning Hegseth’s fitness for the position, he never rose to a command position and his “track record falls short of military standards.” He is the least-experienced defense secretary in U.S. history.
His attack on Kelly, who is a retired Navy officer and astronaut, began after Kelly and five other Democrats in Congress—Senator Elissa Slotkin (D-MI), and Representatives Chris Deluzio (D-PA), Maggie Goodlander (D-NH), Chrissy Houlahan (D-PA), and Jason Crow (D-CO)—all of whom are veterans, released a video on November 18, 2025, in which they warned members of the military and the intelligence community that the administration was “pitting our uniformed military and intelligence community professionals against American citizens.”
“Like us, you all swore an oath to protect and defend this Constitution,” the video continued. “Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear: You can refuse illegal orders; you must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant. But whether you’re serving in the CIA, the Army, our Navy, the Air Force, your vigilance is critical.”
The lawmakers concluded: “Know that we have your back, because now, more than ever, the American people need you. We need you to stand up for our laws, our Constitution, and who we are as Americans.”
The video simply reiterated the law, but White House deputy chief of staff Stephen Miller promptly posted on social media, “Democrat lawmakers are now openly calling for insurrection,” and by the next day, Trump was reposting comments that called for the lawmakers to be arrested, “thrown out of their offices,” “frog marched out of their homes at 3:00 AM with FOX News cameras filming the whole thing,” and “charged with sedition.” He reposted “Insurrection. TREASON!” and a message from a user who wrote: “HANG THEM GEORGE WASHINGTON WOULD!!”
On November 24, the “Department of War” posted on social media that it was investigating Kelly, after “serious allegations of misconduct.” It suggested that Kelly could be recalled to active duty “for court-martial proceedings or administrative measures.”
Over a photograph of the medals on his uniform, Kelly responded on social media: “When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA, and every day since I retired—which I did after my wife Gabby was shot in the head while serving her constituents.
“In combat, I had a missile blow up next to my jet and flew through anti-aircraft fire to drop bombs on enemy targets. At NASA, I launched on a rocket, commanded the space shuttle, and was part of the recovery mission that brought home the bodies of my astronaut classmates who died on Columbia. I did all of this in service to this country that I love and has given me so much. (continued on page 2 or here)