President Donald Trump accused six
Democratic members of Congress of committing sedition, a claim that his
administration has stuck to amid a fierce national debate that began when the
lawmakers urged military and intelligence personnel to “refuse illegal orders.”
The
Democratic members, who are all veterans or members of the intelligence
community, shared a video online last week in which they accused
Trump’s administration of pitting service members against American citizens and
warned against orders that would violate the Constitution, reported the Philadelphia Inquirer.
The
lawmakers did not reference specific orders, but members have spoken against
strikes in the Caribbean and Trump’s deployment of the National Guard in
American cities — both of which have faced legal scrutiny — as cause for
concern.
Trump
first responded to the video with a string of posts on his social media platform, Truth
Social, calling for the lawmakers to be arrested and put on trial for sedition,
“punishable by DEATH,” and sharing posts against them, including one that
called for them to be hanged.
Two of the
members represent Pennsylvania: U.S. Reps. Chrissy Houlahan (D., Chester), an
Air Force veteran, and Chris Deluzio (D., Allegheny), a Navy veteran.
On Monday,
the Department of Defense announced that it would investigate Sen. Mark Kelly
(D., Ariz.), a former naval officer and the one veteran in the video who is
still obligated to follow military laws because he served long enough to become
a military retiree. The announcement threatened to call Kelly back to active
duty for court-martial proceedings.
On
Tuesday, a Justice Department official told Reuters that the FBI has requested
interviews with the Democrats who appeared in the video, which some of the
lawmakers publicly corroborated. The FBI declined to comment when reached by
The Inquirer.
As the
debate over the video escalates in the wake of Trump’s sedition accusation and
his administration’s actions, a rarely used charge and the intricacies of
military law have been thrown into the spotlight.
What is
sedition, and is it punishable by death?
Sedition
is an incitement of a rebellion or encouragement of attacking authority, or, in
other words, the intent to overthrow the government, according to legal and
military experts. When acting with others, it is called seditious conspiracy.
Members of
the Proud Boys and Oath Keepers were convicted of seditious conspiracy for the
attack on the U.S. Capitol on Jan. 6, 2021, but within hours of beginning his
second term, Trump granted sweeping pardons and commutations for those charged in
the riot.
For
civilians, sedition is a violation of federal law and carries prison time. It
is not punishable by death.
Active-duty
military, however, must follow the Uniform Code of Military Justice (UCMJ).
While the military law has overlap with civilian law, it is more expansive,
controlling, and strict, said Sean
Timmons, a Houston-based attorney specializing in military law who
previously served as an active-duty U.S. Army captain in the U.S. Army Judge
Advocate General (JAG) program.
“In the
civilian world you have a lot more defenses, and you have full First Amendment
protections,” said Timmons, a managing partner at Tully Rinckey PLLC. “Whereas
in the military, your First Amendment rights are quite limited.”
The
maximum punishment for active military is death, but it can be far lower, he
said.
Service
members must be on active duty to be prosecuted under the UCMJ, but the conduct
does not have to have taken place during active duty. This means that retirees
like Kelly can be recalled for active duty to face UCMJ prosecution over their
behavior while they were not on active duty.
What is an
illegal order?
Members of
Trump’s administration have pointed to the UCMJ rule that says members must
follow lawful orders and orders should be presumed to be lawful. Service
members can be punished for not following orders.
However,
military rules also prohibit service members from following orders that are
undoubtedly illegal — a point the lawmakers get at in their video — and they
can be punished for doing so.
But
whether orders are legal is supposed to be up to officers, not rank-and-file
members, Timmons said.
“If you
don’t comply, you could be charged with failure to follow orders and other
crimes,” he said.
The
exceptions (those obviously illegal crimes) would be war crimes like raping
prisoners, deliberating killing civilians without justification, or torture,
not day-to-day acts that would break the law, he explained.
Take the
example of burning down an enemy’s structure.
“If your
military unit says to burn it down because it’s part of the military objective,
that’s a lawful order, even though it’s an illegal act,” he said. “It’s a war
crime if it’s to burn down a daycare with kids inside.”
The boat
strikes in the Caribbean have been in a legal gray area, he said, but “if
your command says it’s legal, you’re supposed to execute.”
“The
military system is harsh, cruel, and unfair … but it’s the system we have in
place, and it’s designed that way to ensure discipline, obedience, and
compliance,” he added.
Did the
lawmakers commit sedition?
Claire
Finkelstein, founder and faculty director of the Center for Ethics and the
Rule of Law at the University of
Pennsylvania’s Carey Law School and an expert in military ethics, said
accusing the lawmakers of sedition “makes absolutely no sense, especially in a
case in which they’re just reminding servicemen of their obligation not to
follow illegal orders, which is a fundamental part of the UCMJ.”
“One has
to really work hard to fill in the blanks here,” she said.
Timmons
said five out of the six lawmakers have their freedom of speech to rely on as a
protection.
“Just
having divergent political views that the commander-in-chief doesn’t like, for
civilians, there’s no liability, there’s no repercussions,” he said.
That
doesn’t mean Trump’s administration cannot investigate them for “seditious
behavior” anyway.
Kelly, on
the other hand, was “on thin ice” by participating in a video that seems to
undermine Trump’s authority, he said, and it’s not “totally crazy” to argue he
engaged in seditious behavior under military law.
That being
said, prosecutors would have to prove that his intent was to “cause a revolt
within the ranks,” which would be “very hard,” he said.
“But could
they make him miserable and humiliate him and charge him? Yes,” he said.
“Is that
politically wise? Absolutely not. Is it reckless? Of course. But, technically,
can they do it? Yes,” he added.
What are
members of Trump’s administration saying?
White
House press secretary Karoline Leavitt told
reporters on Monday the White House supports the investigation into Kelly
and accused him of trying to “intimidate” active-duty members with the video.
“Sen. Mark
Kelly well knows the rules of the military and the respect that one must have
for the chain of command,” she said.
“You can’t
have a functioning military if there is disorder and chaos within the ranks,
and that’s what these Democrat members were encouraging,” she added.
In a
social media post on Monday, Defense Secretary Pete Hegseth called the
lawmakers the “seditious six.”
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