‘Never been done’: Defense secretary’s unprecedented move to demote Sen. Kelly raises legal questions

PHOENIX — Defense Secretary Pete Hegseth’s plan to demote Democratic Sen. Mark Kelly from his retired military rank is unprecedented and possibly illegal, according to a leading expert on military law.

“It’s never been done—ever,” said Professor Brenner Fissell, vice president of the National Institute of Military Justice.

“You can only retroactively demote for misconduct that occurred before you retired… This is the first-ever case that I’m aware of where there’s an attempt to retroactively demote somebody for something they did after they were retired.”

Fissell said Hegseth is pursuing what’s known as a “retroactive grade determination.” 

The administrative review usually occurs after the discovery that an officer served improperly and then retired.

Kelly’s situation is “actually not contemplated in the law,” Fissell said. “It’s very unclear where (Hegseth) thinks he can get this authority from.”

The dispute centers on a video Kelly and five other congressional Democrats posted in November, urging service members to refuse illegal orders. 

Hegseth warned Kelly at the time that he could face court-martial for his role in the video.

President Donald Trump raised the stakes, invoking the death penalty for “seditious behavior.”

Hegseth’s formal censure of Kelly, announced Monday, marked a retreat from those grave threats, but could affect a wider number of retired service members.

According to a letter from Hegseth to Kelly’s attorney, the censure sets in motion an administrative process that could result in Kelly’s demotion from his retired rank of Navy captain. 

A demotion for the veteran combat pilot and former space shuttle commander would carry with it a cut in his pension benefits.

Hegseth says in his letter that from June to December of 2025, Kelly “engaged in a sustained pattern of public statements that characterized lawful military operations as illegal.”

“Your status as a United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces, Hegseth wrote.

Kelly went on the offensive against Hegseth and Trump after their initial reaction to the “illegal orders” video in November.

In the 24 hours after the censure, Kelly stepped up the counterattack with several national media appearances.

“They’re trying to intimidate all of us,” Kelly told Jon Stewart on “The Daily Show.”

“Don’t say something they don’t like. Especially for members of the military, retired members like me, keep your mouth shut, or they’re coming after you. They’re going to take away your pension. So this is much bigger than me.”

Kelly is also a prominent political target. 

He is among a large group of Democrats who could contend for the party’s presidential nomination in 2028. In 2024, he was vetted as a potential vice presidential running mate for Kamala Harris. 

Kelly’s election law attorney, Phoenix-based Roy Herrera, created a legal defense fund on Dec. 5. 

Kelly has hired former federal prosecutor Paul Fishman as legal counsel. 

The Hegseth letter says Kelly has 30 days to respond. The review process will be completed within 45 days. 

“What they did was choose an administrative route, which is basically cloaked from public view, but with an ultimate effect of essentially taking away from him his rank and his and his pension,”  said retired Maj. Gen. Steven Lepper, a former deputy Judge Advocate General for the U.S. Air Force and leader of the Former JAGs Working Group. 

The working group formed after Hegseth fired the judge advocates general for the Army, Air Force, and Navy—the services’ top lawyers – reportedly for not being “well-suited” to provide legal recommendations in line with the administration’s goals.

“The immediate reaction from the president and the secretary of defense essentially put a thumb on the scales of justice in this case,” Lepper said. 

“Any punishment that is given is, we believe, based upon unlawful influence.”

Hegseth’s letter said he will be the one to ultimately decide whether to punish Kelly, based on the recommendation of the Navy secretary

“There’s going to be substantial appeal rights (for Kelly),” Fissell said. “There’s a way that the senator can get into federal court.”

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