A federal appeals court panel signaled on Thursday that it would not clear the way for Defense Secretary Pete Hegseth to punish Senator Mark Kelly, Democrat of Arizona, for warning active-duty service members not to follow illegal orders.
Two of the three judges on the panel that heard the case appeared likely to side with Mr. Kelly, a retired Navy captain and astronaut who has sued Mr. Hegseth, saying the defense secretary violated his free speech rights. That would be enough to uphold a federal judge’s ruling from February that the Trump administration had “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees” in seeking to penalize him for his comments.
The Justice Department had asked the U.S. Court of Appeals for the D.C. Circuit to overturn the lower court’s order. That ruling had temporarily blocked Mr. Hegseth from disciplining the senator for his remarks in a video released in November with several other Democratic members of Congress who served in the military or intelligence agencies.
“Our laws are clear,” Mr. Kelly said in the video. “You can refuse illegal orders.”
After President Trump accused Mr. Kelly of sedition and called for him to be hanged, Mr. Hegseth echoed the accusation, censured the senator and initiated a disciplinary procedure that could result in the reduction of his military rank and pension.
During Thursday’s hearing, Judge Florence Y. Pan sharply questioned the Justice Department’s contention that speech by military retirees that could undermine good order and discipline was not protected, and that Mr. Kelly could therefore only advise active-duty service members against following illegal orders if he voluntarily gave up his rank and pension.
“These are people who served their country,” said Judge Pan, who was appointed by President Joseph R. Biden Jr. “Many of them put their lives on the line, and you’re saying that they have to give up their retired status in order to say something that is a textbook example — taught at West Point and the Naval Academy — that you can disobey illegal orders.”
John Bailey, an administration lawyer, said Mr. Hegseth had concluded based on other public statements the senator made around the time the video was posted that Mr. Kelly was calling on active-duty service members to reject legal orders, which would violate the Uniform Code of Military Justice.
He called the senator’s statement in the video a “wink and a nod” for service members to disobey orders related to the deployment of National Guard troops in American cities and the deadly strikes on boats the administration says are trafficking drugs. Both were policies that Mr. Kelly, a member of the Senate Armed Services Committee, had denounced.
A lawyer for the senator, Benjamin C. Mizer, rejected that argument.
“The record is very clear that he didn’t say that,” Mr. Mizer said. He told the court that the “categories of unprotected speech are few and narrow.”
Two of the three judges on the panel, Judges Pan and Cornelia Pillard, appeared to agree and accept Mr. Kelly’s claim that he was restating a fundamental principle of military law, not encouraging service members to disobey orders.
“He never did say those words,” said Judge Pillard, an appointee of President Barack Obama, adding later that Mr. Kelly’s remarks were “an abstract statement of principle.”
The third judge on the panel suggested she was siding instead with the Trump administration, expressing open skepticism of the argument that Mr. Kelly’s speech as a retired officer was protected. Judge Karen L. Henderson echoed the administration’s claim that his remarks were a punishable violation of military law, particularly because Mr. Kelly’s message carried further weight given his position as a member of Congress.
“He’s a senator with a bully pulpit,” said Judge Henderson, who was appointed by President George H.W. Bush.
After the hearing, Mr. Kelly reiterated that he had merely been stating a principle of military law in the video and accused the administration of trying to squelch dissent.
“They’re trying to send a message to other retired veterans,” he said at a news conference outside a federal courthouse in downtown Washington. “If you say something that the president, or this administration, does not like, they’re going to come after you. The president is trying to silence us.”
Maj. Gen. Arthur Bartell, a retired Army officer who attended the hearing to support Mr. Kelly, said he was alarmed by the Justice Department’s arguments. General Bartell, a member of National Security Leaders for America, a nonpartisan group, said in an interview that he worried about the ability of military retirees to speak out against the government under Mr. Trump without fear of retaliation.
“What I served for was the right to be able to do that,” he said.
