WASHINGTON, D.C. (Philadelphia Inquirer) — 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.
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.
While Democrats denounced the president’s rhetoric, Houlahan was dismayed by a lack of support from congressional Republicans.
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.
