On Thursday, May 7, 2026, a D.C. Circuit panel of Judges Karen LeCraft Henderson, Florence Pan and Cornelia Pillard heard Defense Secretary Pete Hegseth's appeal of a preliminary injunction that U.S. District Judge Richard Leon issued on Feb. 12. Leon's order bars Hegseth from proceeding with disciplinary action against Sen. Mark Kelly (D-AZ), a retired Navy captain, including a possible reduction in his retirement rank and pay, over a November 18, 2025 video in which Kelly and five other Democratic lawmakers reminded service members that “you can refuse illegal orders.” Hegseth had sent Kelly a letter of censure on Jan. 5.
Judge Pillard pressed Justice Department lawyer John Bailey on the central factual claim, that Kelly had urged troops to disobey lawful orders: “I mean, this is really basic,” she said. “You are not disagreeing that the video at issue that is the fulcrum of this case, Senator Kelly never says the words disobey lawful orders, right? I mean, that's uncontroversial. I understand you have a whole theory, but he doesn't say that, right?” According to Law&Crime, the DOJ lawyer began, “Not in isolation, expressing,” before agreeing the judge was “correct.”
Judge Pan noted “the secretary saying that he meant to say the complete opposite of what he did say,” adding: “It would be, I think, astounding for us to just credit that unconditionally and not even address it when you rely on Parker v. Levy and Parker v. Levy is factually so different.” The government's case rests mainly on Parker v. Levy, a 1974 Supreme Court decision upholding the punishment of an active-duty officer; Pan and Pillard stressed that Kelly is retired, and Pan called refusing illegal orders “a textbook example taught at West Point and the Naval Academy.” Judge Henderson was more sympathetic to the government, noting that Kelly is “a senator with a bully pulpit.” Courthouse News reported that the panel signaled it would likely side with Kelly.
Trump had accused Kelly and the other five lawmakers of “SEDITIOUS BEHAVIOR, punishable by DEATH!” U.S. Attorney Jeanine Pirro opened a criminal investigation of the six, which ended in grand jury no-bills in February 2026, days before Leon's ruling. Kelly is a sitting U.S. senator; 73 former admirals, generals and service secretaries filed a brief supporting him.
Correction (October 2, 2026): an earlier version of this entry dated the argument to Thursday, May 8, 2026; the argument was on Thursday, May 7, and the date field has been corrected. It said Judge Pan called the secretary's interpretation “astounding”; Pan said it would be astounding for the court to credit that interpretation unconditionally, and her words are now quoted in full. It said the grand jury declined to indict Kelly alone; the no-bills covered the investigation of all six lawmakers. We removed claims no source in this entry supports: that Hegseth tried to recall Kelly to active duty for a court-martial, that this was the first modern attempt of its kind, that refusing illegal orders is law dating to the Nuremberg trials, and that Navy Secretary John Phelan was removed partly over the Kelly directive.