Secretary of War Pete Hegseth, following President Donald Trump’s lead, has accused six members of Congress who correctly stated U.S. law about service members carrying out illegal orders of “sedition.”
Hegseth initiated a review of Sen. Mark Kelly (D-AZ), the only lawmaker involved in the “illegal orders” video who is still required to follow the Uniform Code of Military Justice. The review, which Hegseth announced on Monday, will determine whether the retired Navy captain can face repercussions for accurately stating current U.S. law.
What is sedition?
Sedition is conduct or speech that incites individuals to rebel against the authority of the government. There are statutes outlawing “seditious conspiracy” in the U.S. Code as well as in the UCMJ.
U.S. Code 18 U.S.C. § 2384 defines a “seditious conspiracy” as “two or more persons … conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States or two 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.”
The UCMJ understanding of sedition differs from the routine court of law understanding, although both are infrequently used.
Article 94 of the UCMJ defines “sedition” as having the “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.”
What did the Democrats accused say?
Kelly was one of six Democratic lawmakers featured in the video, which the secretary called “a politically-motivated influence operation,” reminding U.S. service members of their obligation not to follow illegal orders.
“As veterans of various sorts, the Seditious Six knew exactly what they were doing — sowing doubt through a politically-motivated influence operation,” Hegseth said. “The [department] won’t fall for it or stand for it.”
The Arizona democrat is eligible to be recalled to active duty and then face a court-martial because he met the 20-year requirement to retire from the military, while four lawmakers also involved in the video did not serve in the military long enough to reach the retirement threshold. Sen. Elissa Slotkin (D-MI) served in the CIA, not the military.
Reps. Jason Crow (D-CO), Maggie Goodlander (D-NH), Chris Deluzio (D-PA), and Chrissy Houlahan (D-PA) also participated in the video.
“Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home,” Deluzio, a former Navy officer, and Crow, a former Army ranger and paratrooper, say in the video. Kelly then states, “Our laws are clear: You can refuse illegal orders.”
Crow then said that military members “must refuse illegal orders,” before the other lawmakers added, “no one has to carry out orders that violate the law or our Constitution.”
The Democrats did not reference specific operations in the video, but in subsequent comments, some have individually referenced both the president’s deployments of the National Guard to American cities, a decision that is currently being adjudicated in various courts of law, as well as the lethal strikes on alleged drug boats in the Pacific and Caribbean Oceans.
“Good order and discipline, the effectiveness of the U.S. military, and the security of Americans depend on military members rapidly implementing lawful orders,” Bradley Bowman, the senior director of the Center on Military and Political Power at the Foundation for Defense of Democracies, told the Washington Examiner. “That is obviously true, and not something that should be controversial. Anything that undermines the rapid implementation of lawful orders — or blurs the difference between lawful and unlawful orders — is dangerous.”
What repercussions do they face?
Geoffrey Corn, the director of the Center for Military Law and Policy at Texas Tech University’s law school, said Article 88, Article 133, and Article 134 of the UCMJ are the most likely provisions that could apply to Kelly’s case.
Article 88 forbids commissioned officers from using “contemptuous words” against officials of any branch of the U.S. government or any state government. Article 133 is about “conduct unbecoming an officer,” and Article 144 is more of a broad catch-all of more than 50 unique criminal offenses.
“Almost anything can fall into the nebulous of conduct unbecoming of an officer as long as it’s considered something that’s bringing dishonor or discredit to the military,” Sean Timmons, the managing partner at Tully Rinckey PLLC with a focus on military law, told the Washington Examiner.
Corn told the Washington Examiner that while he doesn’t think the video “was a wise move,” he also does not agree with Hegseth and the White House’s argument that correctly stating U.S. law amounts to “inciting disobedience.”
Neither Corn nor Timmons believes Kelly’s conduct rises to the rhetoric used by Hegseth and Trump.
Trump has said the video amounted to “SEDITIOUS BEHAVIOR, punishable by DEATH!” but later insisted he wasn’t “threatening them.”
Hegseth and Trump’s critical comments about the video could ultimately factor into Kelly’s defense, if he’s ultimately court-martialed, citing a doctrine known as unlawful command influence.
“Unlawful command influence is characterized by military courts as the mortal enemy of Military Justice,” Corn added. “The argument would be, it’s impossible to get a military jury that is not tainted by these statements. Because if you’re on a military jury, and the President has already said the senator is guilty and deserves severe punishment, how can you be impartial?”
The FBI and Department of Justice have contacted Capitol Police to schedule interviews with the six lawmakers.
Corn pointed to 18 U.S.C. § 2387 as a possible statute the DOJ could pursue against them, which makes it a federal crime to willfully interfere with the armed forces by distributing materials encouraging insubordination or refusal of duty.
PENTAGON ANNOUNCES ‘THOROUGH REVIEW’ INTO MARK KELLY OVER ‘ILLEGAL ORDERS’ VIDEO
The DOJ has been undeterred in targeting perceived enemies of the Trump administration.
The four House members involved in the video — Crow, Deluzio, Goodlander, and Houlahan — have released a subsequent joint statement accusing the president of “using the FBI as a tool to intimidate and harass Members of Congress,” adding, “No amount of intimidation or harassment will ever stop us from doing our jobs and honoring our Constitution.”
