WASHINGTON, D.C. (ABC News) — The conflict between a group of Democratic lawmaker veterans and President Donald Trump has now become a federal investigation after the president called their message to U.S. military members to resist “illegal” orders “SEDITIOUS BEHAVIOR.”
But as federal investigators seek to interview the six Democrats, bringing up sedition charges has historically been difficult, based on the definition of the law.
Trump and his administration are targeting Sens. Elissa Slotkin and Mark Kelly, Reps. Maggie Goodlander, Jason Crow, Chris Deluzio and Chrissy Houlahan, all of whom served in the military or intelligence agencies.
The group put out a video on social media last week reminding military members about their oath of enlistment and their duty to not obey “illegal orders.”
“Don’t give up the ship,” they said.
Trump responded on social media calling the six Democrats “traitors” and arguing “they should be ARRESTED AND PUT ON TRIAL.”
“Their words cannot be allowed to stand — We won’t have a Country anymore!!! An example MUST BE SET,” Trump said.
On Monday, the Pentagon announced it would launch a “thorough review” into Kelly, and FBI Director Kash Patel said any bureau investigation would be “made by the career agents and analysts here at the FBI.”
Sedition is generally defined as any attempt to resist or disrupt the government; however, the federal criminal code has very detailed criteria.
The code defines “seditious conspiracy,” as two or more suspects conspiring “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
A conviction could lead to a maximum prison sentence of 20 years, along with a fine.
Separately, under the Uniform Code of Military Justice, a member of the armed services would be subject to mutiny or sedition charges under three conditions.
- A suspect who has the “intent to usurp or override lawful military authority, refuses, in concert with any other person to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny.”
- The suspect “with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition.”
- And the suspect “fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.”
Military members who are found guilty of sedition “shall be punished by death or such other punishment as a court-martial may direct,” according to the law.
The UCMJ, however, prohibits service members from following orders that are unlawful. Armed service members are obligated to refuse unlawful orders under military guidelines.
Seditious conspiracy has rarely been charged or prosecuted by federal courts given the legal threshold that must be passed.
However, seditious conspiracy charges were issued against some of the major organizers of the Jan. 6, 2021, riot at the Capitol.
In March 2022, Joshua James, a member of the far-right militia the Oath Keepers, pleaded guilty to seditious conspiracy charges for his role in the riot and was sentenced to three years of probation.
Oath Keepers founder Stewart Rhodes and chapter leader Kelly Meggs were found guilty of seditious conspiracy in November 2022 for their roles in the riot and sentenced to 18 and 12 years in prison, respectively.
In May 2023, Proud Boys leader Enrique Tarrio was convicted of seditious conspiracy, along with four other Proud Boys members Joseph Biggs, Zachary Rehl and Ethan Nordean. A fifth Proud Boys suspect, Dominic Pezzola, was acquitted on seditious conspiracy charges in the same trial but convicted on other charges related to his role in the riot.
The Proud Boys members who were found guilty on the seditious conspiracy were sentenced to prison sentences that ranged from 15- to 22-years in prison.
Just hours after he returned to office, the president issued an executive order that pardoned Tarrio and commuted the sentences of Biggs, Rehl, Nordean, Rhodes and Meggs to time served.
Greg Rinckey, former U.S. Army attorney and now founding partner at Tully Rinckey PLLC, which specializes in federal employment law, told ABC News Live Prime that there are several legal paths for the administration to take against Kelly, who has been retired for 14 years, but each pose legal challenges.
“There’s a whole slew of options here. It could range from a court martial recommendation, it could range to a grade determination board where they try and reduce the rank of Sen. Kelly…You could get a letter of reprimand,” Rinckey said.
“I do think this is going to present some problems to prosecute Senator Kelly for sedition,” he added.
