Hegseth's move to demote Kelly raises legal questions
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U.S. Sen. Mark Kelly on Capitol Hill in December. Photo: Chip Somodevilla/Getty Images
Military legal experts are questioning Defense Secretary Pete Hegseth's plans to demote U.S. Sen. Mark Kelly's military rank — with one calling it "dead on arrival."
Why it matters: The administrative action is a lesser punishment than the Trump administration's previous threat to court-martial Kelly, but it could drastically reduce Kelly's pension.
- Hegseth said on X that he issued a formal Letter of Censure, warning: "If you continue to engage in conduct prejudicial to good order and discipline, you may subject yourself to criminal prosecution or further administrative action."
Catch up quick: Kelly's clash with the Trump administration stems from his participation in a November video with five other Democratic lawmakers, reminding military and service members they could disobey unlawful orders.
- President Trump immediately called the video "SEDITIOUS BEHAVIOR, punishable by DEATH," and the Pentagon opened a military investigation into Kelly.
The intrigue: The administrative process Hegseth initiated, called a retirement grade determination proceeding, typically occurs before an officer's retirement.
- According to federal code, officers are retired in the highest rank "served satisfactorily," which in Kelly's case was captain. That rank determines a retired officer's pension.
- There are only a handful of reasons that a retirement rank can be reconsidered, including if new information comes to light about an officer's service or if a military branch secretary determines "good cause exists to reopen the determination of retired grade."
What they're saying: Eugene Fidell, a senior research scholar at Yale Law School, told Axios Phoenix that Hegseth's effort to demote Kelly is "dead on arrival" and questioned the legality of the censure, too.
- Fidell, a military law expert, said the military can only use misconduct committed while an officer was actively serving to determine retirement grades. Kelly retired in 2011.
- Besides, Kelly's video statement is free speech that does not constitute misconduct, Fidell added.
What we're watching: Fidell predicted that if Hegseth moves forward with Kelly's demotion, a judge will throw out the case and award Kelly attorney fees, to be paid with taxpayer dollars.
- The legal expert called Hegseth's actions an attempt "to trash up the entire U.S. military legal system."
- The Department of Defense sent a link to Hegseth's initial social media post when about the legality of the process.
What's next: Kelly has 30 days to submit a response to the proceedings, and the retirement grade determination process will be completed within 45 days.
The bottom line: Kelly called Hegseth's pursuit of disciplinary action "un-American" and politically motivated to "send the message to every single retired servicemember that if they say something [Hegseth] or Donald Trump doesn't like, they will come after them the same way."
Go deeper: Hegseth goes after Mark Kelly's rank over "seditious" video