WASHINGTON (CN) - A federal judge appeared likely to side with Senator Mark Kelly in his challenge against Secretary of Defense Pete Hegseth's effort to demote the retired Navy captain in retaliation for comments urging military members to reject illegal orders. 

Senior U.S. District Judge Richard Leon, a George W. Bush appointee, seemed unconvinced by the Justice Department's argument that retired service members should be subjected to the same speech restrictions as active-duty soldiers.

"Extending speech limits to retirees have never been done before," Leon said in an exchange with Justice Department attorney John Bailey. "You're asking me to do something the Supreme Court nor the D.C. Circuit have done; that's a bit of a stretch, don't you think?"

Kelly, a Democrat representing Arizona and member of the Senate Armed Services Committee, spoke outside the E. Barrett Prettyman Courthouse following the hearing and said he was fighting for the First Amendment rights of all retired service members and Americans. 

"There's nothing more fundamental to our democracy than our freedom of speech and the freedom to speak out about our government, and that's what I'm fighting for," Kelly said. "A lot is at stake. I wore the uniform to defend this country and to defend the Constitution. Secretary Hegseth censured me and is now trying to demote me for things that I said and for doing my job as a United States Senator."

Leon grilled Bailey and his argument that Kelly could not claim his speech had been chilled because he has vowed to continue speaking. The senior judge noted that the chill was clearly on the millions of other retired service members, both in Congress and not.

Bailey suggested the military should be able to limit certain speech, even by retirees, if they "undermine military discipline and obedience" in the view of the military's top brass. 

Leon warned that claim could prevent veteran lawmakers from effectively doing their jobs, especially in Kelly's case as a member of the Senate Armed Services Committee.

Baily responded that the Pentagon has a valid interest in limiting speech to avoid a situation where "the military doesn't have control over its service members."

Benjamin Mizer, of Arnold Porter and representing Kelly, urged Leon to reject the government's efforts to hide its clearly retaliatory conduct behind military deference - a legal doctrine that courts generally cannot second-guess the military's judgment - and rule that it had clearly violated a sitting senator's First Amendment rights. 

The Justice Department has argued Kelly's argument cannot be heard in court yet, and he should instead plead his case before the Board for Correction of Naval Records and exhaust that process first. 

Mizer said any potential remedy via that process was already effectively exhausted, as any appeal would ultimately reach Hegseth's desk, who was clearly biased against Kelly.

"The secretary made it abundantly clear he's made up his mind," Mizer said. "No purpose would be served here by exhaustion."

He pointed to Hegseth's censure letter against Kelly, where he said "the tell" of his bias was that Hegseth singled out for punishment Kelly's statement that he would "always defend the Constitution."

Bailey argued that exhaustion was the only possible remedy, and Kelly could submit evidence there, ultimately providing a more extensive record for the court to later consider. 

Leon highlighted the fact the Justice Department could not cite a single case where courts have upheld speech restrictions on retired service members, adding that it seemed clear Kelly could bring his First Amendment claim without exhaustion.

"You don't need a weatherman to see which way the wind is blowing," Leon said, quoting from Bob Dylan's "Subterranean Homesick Blues."

The former Navy pilot and astronaut filed the 46-page lawsuit in the U.S. District Court for the District of Columbia on Jan. 12, challenging Hegseth's moves as a clear violation of the First Amendment, the speech or debate clause and the separation of powers.

Leon made clear Tuesday he wanted to avoid the "thorny thicket" of the speech and debate clause, indicating that if he ever addressed it, he would do so at summary judgment with a more extensive record.

In November, Kelly joined a group of other military veteran Democrats to warn U.S. service members that the Trump administration was threatening citizens' trust in the military and was actively violating the Constitution.

"Our laws are clear," the lawmakers say in the video. "You can refuse illegal orders. You must refuse illegal orders."

Michigan Senator Elissa Slotkin, Pennsylvania Representative Chrissy Houlahan and Colorado Representative Jason Crow were among the other Democrats who took part in the video. So far, the Pentagon has not publicly announced any disciplinary action against those lawmakers, but the FBI is reportedly investigating their conduct.

While speaking to reporters, Kelly said his case was another instance of the Trump administration attacking the First Amendment. 

"This isn't happening in isolation; since taking office, this administration has repeatedly gone after the First Amendment rights of many Americans," Kelly said. "That's not how we do things in the United States. In this case, we have the Constitution on our side."

Leon indicated he would rule by Feb. 11, allowing five days for Kelly or the government to appeal his decision before a deadline for Kelly to respond to the Department of the Navy's retirement grade proceeding and Hegseth's censure letter. 

Source: Courthouse News Service