United States Attorney General Pam Bondi and United States Secretary of Defense Pete Hegseth applaud President Trump as they attend President Trump”s State of the Union address in the House Chamber of the Capitol Building on Tuesday, February 24. (Photo by Aaron Schwartz/Sipa USA)(Sipa via AP Images)
Secretary Pete Hegseth recently pledged to swiftly challenge the legal barrier hindering the Department of Defense from taking action against Senator Mark Kelly, a Democrat from Arizona. Now, nearly two weeks later, the Department of Justice has made good on that promise.
The DOJ has filed a concise notice of appeal, alerting the U.S. District Court for the District of Columbia that the U.S. Court of Appeals for the District of Columbia Circuit is being called upon to intervene.
The official notice declared, “Please take notice that all Defendants hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from this Court’s February 12, 2026 Memorandum Opinion and Order.” This development follows Senior U.S. District Judge Richard Leon’s decision, which reprimanded the Defense Department, Hegseth, and by extension, President Donald Trump. The judge accused them of violating Senator Kelly’s First Amendment rights and potentially impinging on the free speech of countless military retirees.
Details on how the DOJ plans to challenge Leon’s decision remain uncertain.
In a November video, Kelly, alongside five fellow Democrats, criticized Trump’s aggressive maritime tactics against suspected drug traffickers in international waters. Kelly specifically advised military personnel that they could reject unlawful orders, referencing the Uniform Code of Military Justice.
Hegseth responded by formally charging Kelly with “undermin[ing] the chain of command,” “counsel[ing] disobedience,” and displaying “conduct unbecoming an officer.” This was accompanied by threats to downgrade Kelly’s retirement rank and pay as a former Navy captain. Meanwhile, Trump accused the Democrats of engaging in “SEDITIOUS BEHAVIOR, punishable by DEATH!” and insisted that these “traitors” be “ARRESTED AND PUT ON TRIAL.”
The DOJ, particularly Trump ally U.S. Attorney Jeanine Pirro, tried to persuade a grand jury to satisfy the president’s call for punishment, but that effort failed across the board and has reportedly been abandoned — at least for now.
But while Hegseth has not abandoned his efforts to hold Kelly accountable, he has to contend with Leon’s preliminary view that Kelly is “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.
“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 inquisition. “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!”
Leon even hoped that Hegseth would make a “course correction” away from “trying to shrink” the First Amendment.
But in the immediate aftermath of the ruling, Hegseth mockingly posted on X that the injunction “will be immediately appealed.”
“Sedition is sedition, ‘Captain,’” the secretary said.
Valentine’s Day and Presidents Day immediately followed, but after a full business week and 12 days total, the Trump administration finally noticed an appeal of Leon’s ruling. In many instances, the DOJ has immediately or within hours noticed appeals on matters of pressing concern, but not in this case.
Like Hegseth, Kelly was on hand for Trump’s State of the Union address on Tuesday night. The senator said he would make an appearance to show he is not intimidated even though Trump “tried to have me arrested” for speech he didn’t like.
Just two weeks ago, Donald Trump tried to have me arrested because he didn’t like what I said.
So yes, I’ll be at the State of the Union tonight because he can’t intimidate me or stop me from doing my job. pic.twitter.com/9m2gV9izo7
— Senator Mark Kelly (@SenMarkKelly) February 24, 2026
“I’m going to be in that room tonight. I want him to look out and see me and to know this, that he and Pete Hegseth failed,” Kelly proclaimed. “He’s not going to intimidate me.”
