United States Attorney General Pam Bondi and United States Secretary of Defense Pete Hegseth applaud President Trump as they attend President Trump”s State of the Union address in the House Chamber of the Capitol Building on Tuesday, February 24. (Photo by Aaron Schwartz/Sipa USA)(Sipa via AP Images)
After Secretary Pete Hegseth vowed online to “immediately” appeal the roadblock between the Department of Defense and further disciplinary action against Sen. Mark Kelly, D-Ariz., the DOJ has — a dozen days later — followed through.
The notice of appeal was brief and put the U.S. District Court for the District of Columbia on notice that the U.S. Court of Appeals for the District of Columbia has been asked to step in.
“Please take notice that all Defendants hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from this Court’s February 12, 2026 Memorandum Opinion and Order,” the docket said, 12 days after Senior U.S. District Judge Richard Leon smacked down the Defense Department, Hegseth, and President Donald Trump by extension for spearheading a campaign that “trampled on Senator Kelly’s First Amendment freedoms” while threatening the free speech rights of “millions of military retirees.”
It’s not yet clear how exactly the DOJ will attempt to pick apart Leon’s ruling.
Kelly and five other Democrats appeared in a video in November condemning Trump’s lethal boat strikes on alleged drug smugglers in international waters, with Kelly in particular telling service members “you can refuse illegal orders,” referring to the Uniform Code of Military Justice.
While Hegseth leapt into action to formally accuse Kelly of “undermin[ing] the chain of command,” “counsel[ing] disobedience,” and engaging in “conduct unbecoming an officer,” all while threatening a reduction in retirement rank and pay grade for the former Navy captain, Trump claimed the Democrats engaged in “SEDITIOUS BEHAVIOR, punishable by DEATH!” and said “each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”
The DOJ, particularly Trump ally U.S. Attorney Jeanine Pirro, tried to persuade a grand jury to satisfy the president’s call for punishment, but that effort failed across the board and has reportedly been abandoned — at least for now.
But while Hegseth has not abandoned his efforts to hold Kelly accountable, he has to contend with Leon’s preliminary view that Kelly is “likely to succeed on the merits” that the Trump administration unlawfully retaliated against the sitting senator for “unquestionably protected speech,” in violation of the First Amendment.
“Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” the judge said, blocking the inquisition. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”
Leon even hoped that Hegseth would make a “course correction” away from “trying to shrink” the First Amendment.
But in the immediate aftermath of the ruling, Hegseth mockingly posted on X that the injunction “will be immediately appealed.”
“Sedition is sedition, ‘Captain,'” the secretary said.
Valentine’s Day and Presidents Day immediately followed, but after a full business week and 12 days total, the Trump administration finally noticed an appeal of Leon’s ruling. In many instances, the DOJ has immediately or within hours noticed appeals on matters of pressing concern, but not in this case.
Like Hegseth, Kelly was on hand for Trump’s State of the Union address on Tuesday night. The senator said he would make an appearance to show he is not intimidated even though Trump “tried to have me arrested” for speech he didn’t like.
Just two weeks ago, Donald Trump tried to have me arrested because he didn’t like what I said.
So yes, I’ll be at the State of the Union tonight because he can’t intimidate me or stop me from doing my job. pic.twitter.com/9m2gV9izo7
— Senator Mark Kelly (@SenMarkKelly) February 24, 2026
“I’m going to be in that room tonight. I want him to look out and see me and to know this, that he and Pete Hegseth failed,” Kelly proclaimed. “He’s not going to intimidate me.”
