After six congressional Democrats released a video advising members of the U.S. military and national security community to \u201crefuse illegal orders,\u201d President Donald Trump said the lawmakers should be tried in court for \u201cSEDITIOUS BEHAVIOR, punishable by DEATH!\u201d But legal experts told us this was not sedition and that the legislators were restating the law that only lawful orders must be followed.<\/p>\n
\u201cSedition is trying to overthrow the government with force or violence,\u201d Eric R. Carpenter<\/a>, a professor of law at Florida International University College of Law, said in an email to us. \u201cIn the video, the elected officials are just telling service members to follow the law. They are not telling service members to overthrow the government.\u201d<\/p>\n The White House later said that Trump didn\u2019t mean the Democrats should face the death penalty, but the press secretary argued that the video encouraged troops to defy the president.<\/p>\n Here, we cover what the lawmakers said, how Trump responded, and what legal experts have said about the video and the president\u2019s claims.<\/p>\n What\u2019s in the Video?<\/p>\n The 90-second video<\/a> was posted on social media and online on Nov. 18 and features Sen. Elissa Slotkin of Michigan, Sen. Mark Kelly of Arizona, Rep. Maggie Goodlander of New Hampshire, Rep. Jason Crow of Colorado, and Reps. Chris Deluzzio and Chrissy Houlahan of Pennsylvania. All are either military veterans or former intelligence officials.<\/p>\n In the video, the lawmakers state their credentials and remind members of the military and national security community that they swore to protect and defend the U.S. Constitution.\u00a0<\/p>\n \u201cRight now, the threats to our Constitution aren\u2019t just coming from abroad, but from right here at home,\u201d Deluzzio, a former Navy officer, and Crow, a former Army ranger and paratrooper, say, in turn. <\/p>\n Kelly, a former Navy captain, then says, \u201cOur laws are clear: You can refuse illegal orders,\u201d which Slotkin, once a CIA officer, repeats for emphasis. Crow then adds that military members \u201cmust refuse illegal orders,\u201d before the other lawmakers say \u201cno one has to carry out orders that violate the law or our Constitution.\u201d<\/p>\n The ad concludes with the members of Congress saying, \u201cDon\u2019t give up the ship,\u201d a reference to a last command attributed<\/a> to James Lawrence, a Navy captain, during the War of 1812.<\/p>\n The senators and representatives never mention a specific unlawful order they believe was given. But the New York Times reported<\/a> on Nov. 18 that Slotkin, who organized the video, \u201csaid that she had heard from active-duty troops who were concerned about the legality of strikes that have targeted people accused by the Trump administration of trafficking narcotics by sea.\u201d<\/p>\n \u201cSome wondered whether they could be held personally liable for the deaths, she said,\u201d according<\/a> to the Times. (We have written<\/a> that some legal experts have said the U.S. strikes on boats off the coasts of Venezuela and Colombia were \u201cnot lawful.\u201d)<\/p>\n In an ABC News interview<\/a> on Nov. 23, Slotkin said she was \u201cnot aware of things that are illegal\u201d that Trump has ordered the military to do. But she said \u201ccertainly there are some legal gymnastics that are going on with these Caribbean strikes.\u201d She also said she has concerns about \u201cthe use of U.S. military on American shores,\u201d and she noted that \u201cwe\u2019ve seen now the courts overturn\u201d Trump\u2019s \u201cdeployment of U.S. military into our streets,\u201d including in Washington, D.C.<\/a>, and Los Angeles<\/a>.<\/p>\n The video \u201cwas basically a warning to say, like, if you\u2019re asked to do something, particularly against American citizens, you have the ability to go to your JAG officer and push back,\u201d she said, referring to military lawyers known as judge advocates general<\/a>.<\/p>\n Trump\u2019s Response<\/p>\n Two days after the video was posted, Trump responded on social media, calling the Democratic lawmakers traitors guilty of sedition.<\/p>\n \u201cIt\u2019s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,\u201d the president wrote<\/a> on Truth Social. \u201cEach one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand \u2013 We won\u2019t have a Country anymore!!! An example MUST BE SET.\u201d\u00a0<\/p>\n In another post, he labeled<\/a> it, \u201cSEDITIOUS BEHAVIOR, punishable by DEATH!\u201d<\/p>\n He also amplified a post<\/a> from another user, who wrote, \u201cHANG THEM GEORGE WASHINGTON WOULD !!\u201d<\/p>\n His comments elicited a response from the six Democrats, who issued a joint statement<\/a> the same day.<\/p>\n \u201cWhat\u2019s most telling is that the President considers it punishable by death for us to restate the law. Our servicemembers should know that we have their backs as they fulfill their oath to the Constitution and obligation to follow only lawful orders. It is not only the right thing to do, but also our duty,\u201d they said.<\/p>\n White House Press Secretary Karoline Leavitt\u00a0clarified in a Nov. 20 press briefing<\/a> that Trump doesn\u2019t think the lawmakers should be executed. She said he only responded that way because members of Congress \u201cconspired together to orchestrate a video message\u201d encouraging members of the military and national security apparatus \u201cto defy the president\u2019s lawful orders.\u201d<\/p>\n \u201cThe sanctity of our military rests on the chain of command and if that chain of command is broken, it can lead to people getting killed. It can lead to chaos. And that\u2019s what these members of Congress who swore an oath to abide by the Constitution are essentially encouraging,\u201d she said.<\/p>\n But the Democrats said to \u201crefuse illegal orders\u201d \u2014 not \u201clawful\u201d ones. It\u2019s a crime to disobey \u201cany lawful general order or regulation,\u201d according to<\/a> the Uniform Code of Military Justice.<\/p>\n Carpenter told us there is a \u201cstrong presumption\u201d that military orders are lawful and must be followed by members of the military. \u201cThey refuse orders at their own risk,\u201d he cautioned.<\/p>\n He said that service members have a legal defense for any actions taken while they are following legal orders, but that defense doesn\u2019t apply if they are following unlawful orders. \u201cSo, the basic rule is, follow orders unless they are obviously unlawful.\u201d<\/p>\n Did the Lawmakers Commit Sedition?<\/p>\n As for Trump\u2019s sedition claim, generally, federal law<\/a> says that \u201cseditious conspiracy\u201d occurs when multiple people conspire to \u201coverthrow,\u201d \u201cput down,\u201d \u201cdestroy by force,\u201d \u201clevy war against\u201d or \u201coppose by force\u201d the U.S. government.<\/p>\n The penalty for seditious conspiracy is a maximum of 20 years in prison, a fine or both \u2013 but not death.\u00a0(Active-duty and certain retired members of the armed forces who commit \u201csedition,\u201d as defined by the UCMJ, may be punished by death, the military code says<\/a>.)<\/p>\n But legal experts in addition to Carpenter told us that the message in the Democrats\u2019 video does not amount to sedition.<\/p>\n \u201cTrump\u2019s efforts to cast this legal speech as seditious is nonsense,\u201d Victor M. Hansen<\/a>, a professor of law at New England Law in Boston, said in an email. <\/p>\n \u201cThese statements are not seditious or any evidence of a conspiracy,\u201d the former Army JAG officer said. \u201cSimply reminding service members of their legal rights and obligations is not criminal in any way.\u201d<\/p>\n \u201cIt is so far from seditious behavior,\u201d Berit Berger, a former federal prosecutor, said<\/a> in a Nov. 20 CNN interview, noting that sedition \u201cis a specific crime\u201d that \u201crequires advocating\u201d or \u201cplanning to overthrow the government through force.\u201d <\/p>\n For example, several people who plotted and participated in the Jan. 6, 2021, attack on the U.S. Capitol to prevent the transfer of presidential power were convicted<\/a> of seditious conspiracy.<\/p>\n Berger said sedition is rarely prosecuted and \u201cit\u2019s very hard to charge somebody with sedition based just on something they say\u201d since \u201cpeople have a right to criticize their government, to say things, even inflammatory things, that the government might not like.\u201d<\/p>\n Brenner M. Fissell<\/a>, a professor of law at Villanova University and vice president of the National Institute of Military Justice, told us that current law prevents the seditious conspiracy statute from being applied as \u201cbroadly\u201d as it was written. He pointed to the Supreme Court\u2019s 1969 ruling in the First Amendment case Brandenburg v. Ohio<\/a>.<\/p>\n \u201cUnder the Brandenburg test, speech would have to be intended to produce imminent lawlessness, and also likely to produce imminent lawlessness,\u201d he said. \u201cThe lawmakers\u2019 video would fail the imminence requirement, but it also does not advocate lawlessness \u2014 it is merely re-stating the military law\u201d that \u201conly lawful orders require obedience.\u201d<\/p>\n \u201cSo, the video is not sedition or seditious conspiracy,\u201d Fissell said.<\/p>\n Carpenter said that if an elected official \u201cis retired and an officer, then they could be prosecuted for conduct unbecoming an officer.\u201d But even that would be a \u201cstretch\u201d in this case, he argued, because \u201cthey were just telling service members to follow the basic legal structure.\u201d<\/p>\n Defense Secretary Pete Hegseth announced<\/a> on Nov. 24 that Kelly, the Arizona senator who retired as a high-ranking Navy official, is now under investigation for his participation in the video. <\/p>\n