A federal appeals court panel appears likely to reject Pentagon plans to punish Sen. Mark Kelly for advising troops to disobey illegal orders, another potential victory for the rising Trump administration foe and likely 2028 presidential candidate.
Kelly, a Navy veteran and former astronaut who has been a vocal critic of President Donald Trump and his military moves over the past year, faces a potential retirement demotion and a reduction in his benefits for comments that Defense Secretary Pete Hegseth has labeled “seditious.”
The saga has turned the Arizona Democrat into a high-profile opponent of the administration — and elevated his national standing as he “seriously" considers a White House bid. Kelly has already profited off the fight, raking in astaggering $25 million-plus over the last six months even though he's not on the ballot this year. And he is using his latest stint in court to solicit even more.
“My case against Pete Hegseth is going to go before a federal appellate court … is there anything I can say to convince you to make a donation?” reads a fundraising email Kelly’s team blasted out ahead of Thursday’s hearing that was obtained by POLITICO.
It hinted at more solicitations to come. “Trump’s out to crush anyone who opposes him, and it’s incredibly likely the attacks will only continue,” the email went on. “It would mean a lot to know we’ll have everything we need to face whatever comes next.”
Kelly has leveraged the media attention as a megaphone and grown his online following. Regardless of how the appeals court rules, the case is likely to end up before the Supreme Court just before the congressional midterms or in the months after, as candidates sharpen their 2028 message over Trump’s improper and potentially illegal use of the military.
The senator and five other Democratic lawmakers last November released a video warning that the Trump administration was “pitting our uniformed military and intelligence community professionals against American citizens.” It also told troops to “refuse illegal orders” but did not specify what those entailed.
The Pentagon, soon after the video’s release, launched a probe into Kelly that led to a formal censuring by Hegseth. Military officials also launched a review process to determine whether his rank and retirement pay should be reduced for actions against the Defense Department.
A district judge’s ruling in February found the move amounted to imposing unconstitutional limits on political speech by retired service members, prompting Hegseth’s appeal.
The three-judge panel of the Court of Appeals for the D.C. Circuit on Thursday harshly questioned administration lawyers on the rationale for the Pentagon move, signaling they are unlikely to stray from the lower court ruling that blocked Hegseth’s bid to punish Kelly and concluded it amounts to a violation of the Democratic senator’s freedom of speech.
The judges also questioned whether Hegseth’s assertion that Kelly was sending mixed messages to troops held any legal weight.
“The text of the video, which I take to be really the fulcrum of this entire case, advises that service members have no obligation to obey unlawful orders,” said Judge Cornelia Pillard, an Obama appointee. “Nobody in the video says service members have a duty to disobey lawful orders.”
The Pentagon declined to comment on ongoing litigation.
Kelly, in a press conference after his court appearance, positioned himself as a guardian of free speech and cast the Pentagon’s push to punish him as a warning sign of future Trump administration crackdowns.
“I am not backing down,” Kelly said. “After 25 years in the Navy, I have given too much to this country to be silenced by an administration that does not want to be held accountable. So today, this was a day in court not just for me, but for the First Amendment rights of millions of us.”
Adrienne Elrod, a Democratic strategist who has worked on several presidential campaigns, said Kelly is using the administration’s attacks to build a national brand as a principled and unflappable leader.
“This situation has really elevated him and has given him, I think, a greater platform nationally that he, frankly, has not had until this point,” said Elrod, who is not working for Kelly. “He’s become I think a hero to many because he is standing up against something [from which] other people might cower.”
On the campaign trail, Kelly has amassed a hefty war chest. He kicked off the year by hauling in roughly $13 million in the first quarter of 2026.
Kelly has said he’ll “seriously consider” mounting a candidacy in 2028. He was on the short list of running mates for Vice President Kamala Harris’ unsuccessful campaign against Trump in 2024.
“He’s got the backstory. He’s a hot commodity right now,” said Pete Giangreco, a longtime Democratic strategist who has worked on multiple presidential campaigns. “He’s done it in a way that has excited the base of the party but is also a talking point that can win a general election because this is about courage and standing up for the Constitution and making sure we have a military that is not politicized.”
Another Democrat in the video, Sen. Elissa Slotkin of Michigan, is also weighing a run for the party’s presidential nomination. Slotkin serves with Kelly on the Senate Armed Services Committee and is a former CIA analyst and Pentagon official.
Neither side has indicated they are backing down from the fight, signaling the court battle is likely to drag on past the next ruling.
The Justice Department has also pushed to indict Kelly and the other Democrats in the video. But DOJ officials failed to secure criminal charges from a grand jury against the lawmakers. All six of the lawmakers involved in the effort — Kelly, Slotkin and Reps. Jason Crow (D-Colo.), Chris Deluzio (D-Pa.), Maggie Goodlander (D-N.H.) and Chrissy Houlahan (D-Pa.) — all served in military or national security roles.
Kyle Cheney contributed to this report.
