Six Democratic lawmakers are facing federal inquiries after they recorded a video urging military service members not to follow unlawful orders, a message President Trump alleged was “seditious.”
“Our laws are clear: You can refuse illegal orders. … You must refuse illegal orders,” said the Democrats, all of whom served in the military or worked for U.S. intelligence agencies.
Mr. Trump responded on Truth Social last week: “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”
Days later, the Pentagon said it was reviewing “serious allegations of misconduct” against one of the lawmakers, Sen. Mark Kelly of Arizona, and may recall the retired naval captain to active-duty status for “court-martial proceedings or administrative measures.” Defense Secretary Pete Hegseth later said that Kelly was the only lawmaker who falls under Pentagon jurisdiction since the others either worked for the CIA or didn’t retire from the military.
The other five lawmakers said Tuesday that the FBI had notified them of an inquiry. In a joint statement, four House members said the bureau asked the House and Senate sergeant at arms to arrange interviews with them.
The Democrats have stood by their statement and condemned Mr. Trump, and they’ve said they’re facing an uptick in threats. They argue the video’s goal was to bring attention to some uses of the military floated by Mr. Trump over the years that they view as illegal, like his 2016 suggestion to kill the families of terrorists or his threat — still legally contested — to send troops to Chicago.
Meanwhile, Hegseth has argued the video “sows doubt and confusion — which only puts our warriors in danger.”
Here’s what to know about the legal context:
What is seditious conspiracy?
Mr. Trump has also repeatedly referred to the lawmakers’ statement as “seditious behavior.”
Federal law defines seditious conspiracy as when at least two people “conspire to overthrow, put down, or to destroy by force” the U.S. government. It also covers those who conspire by force “to prevent, hinder, or delay the execution of any law of the United States,” or “to seize, take, or possess any property of the United States.” It’s punishable by up to 20 years in prison.
The most recent high-profile seditious conspiracy charges came in the aftermath of the Jan. 6, 2021, assault on the Capitol. Several members of the far-right Proud Boys and Oath Keepers were convicted of the crime for their actions during the riot, but Mr. Trump commuted their prison sentences hours after returning to office. Most riot defendants were charged with lesser offenses.
Beyond that, seditious conspiracy charges are not especially common. Some 15 years ago, federal prosecutors in Michigan used it for members of a militia group called the Hutaree who were accused of plotting a spate of violent attacks on police, but the seditious conspiracy counts were dismissed. And 30 years ago, Omar Abdel-Rahman — known as the “blind Sheikh” — was convicted of seditious conspiracy for a plot to bomb New York landmarks.
Pentagon cites military insubordination law
The Defense Department has appeared to zero in on a separate law that’s in the same chapter of the U.S. federal code, focused specifically on “activities affecting armed forces.”
In a message Monday vowing an investigation into Kelly, the Pentagon reminded retired service members that they are still subject to the law, known as 18 U.S.C. § 2387. Mr. Trump has also shared social media posts alleging the members of Congress violated that law.
The statute threatens a 10-year maximum prison sentence for anybody who “advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military.” The law requires intent to “interfere with, impair, or influence the loyalty, morale, or discipline of the military.”
Can the lawmakers be charged?
Some legal experts say it could be difficult to prosecute the six Democratic lawmakers on seditious conspiracy charges.
Mitchell Epner, a former federal prosecutor and partner at the law firm Kudman Trachten Aloe Posner, told CBS News the “No. 1 problem with this contention that the six members of Congress … committed sedition is: they didn’t use force.”
“If you do not use force — if you use trickery, if you use political persuasion — you are not committing sedition,” Epner said.
As for the law on trying to cause insubordination in the military, Dickinson believes the lawmakers’ statements don’t fit into that statute. She said the law sets a “very high intent requirement” because it specifies that defendants need to intend to impair the loyalty or morale of service members, which Dickinson said is “very difficult to prove.”
Lawful or unlawful orders?
Legal experts also point to the fact that the six Democrats encouraged service members to refuse to follow “illegal” orders — not lawful ones.
George Washington University law professor Laura Dickinson said the Democrats appeared to be correct on the law. She said members of the military must follow legal orders, but they aren’t required to follow unlawful ones, and in certain cases when orders are “manifestly unlawful,” they are required to disobey them.
She pointed to the case of Army Lt. William Calley, who was convicted of murder for his role in the My Lai massacre during the Vietnam War, despite arguing that he was following an order.
“This is not about ‘lay down your arms, we think this is an immoral war,'” said Jon Michaels, a law professor at the University of California, Los Angeles. “This is, ‘we think your commanding officer is giving you an [unlawful] directive. We think you know that, and we’re providing you some degree of political cover.'”
The Trump administration’s view is that the president hasn’t issued any unlawful orders. “They’re suggesting … the president has given illegal orders, which he has not,” White House press secretary Karoline Leavitt told CBS News chief White House correspondent Nancy Cordes.
“Speech and Debate” clause as defense
And the lawmakers may point to a clause in the Constitution that bars senators and representatives from being prosecuted for “Speech and Debate in either House.” That clause “most clearly applies when they are on the floor” of Congress, but it “arguably applies when they are referring to legislation,” said Dickinson.
A prosecution could also run into First Amendment issues, said Dickinson, who explained: “The Constitution sets a very, very, very high bar for the criminal prosecution of speech, and especially political speech.”
Investigation of the statements warranted?
F. Lee Francis, a Widener University law professor and former member of the Army’s Judge Advocate General Corps, believes an investigation into the statements could be warranted.
“I think any time you have military service members, especially those who are retired or active-duty, undermining the commander in chief, the president of the United States, that is something that would pose a terrible trend and could cost lives. It could injure our reputation. It could certainly have an effect on our national security,” said Francis. “So, I certainly think the DoD should be looking into things like this.”
But Dickinson said the threats of prosecution “could significantly chill speech.”
“I do not think they were misstating the law,” she said, “but regardless, they should be free to speak, and they should not be criminally prosecuted for speaking.”
