Sedition Claims and Military Law: What the Probes of Six Democratic Lawmakers Mean

Six Democratic members of Congress—many with military or intelligence backgrounds—are facing federal inquiries after releasing a video urging service members to refuse orders they believe are unlawful. Their message, "You can refuse illegal orders... You must refuse illegal orders," was denounced by former President Trump as "seditious," and prompted a Pentagon review and separate contacts from the FBI to some lawmakers.

What sparked the investigations

The video prompted a sharp political reaction. On social media, Mr. Trump called for arrests and trials. The Defense Department announced it was reviewing "serious allegations of misconduct" related to Sen. Mark Kelly of Arizona and said it may consider recalling the retired naval officer to active duty for court-martial or administrative action. Pentagon officials later clarified that Kelly alone falls under Pentagon jurisdiction because the other lawmakers either worked at the CIA or left military service without retiring.

Separately, five other lawmakers said the FBI had notified them of inquiries; four House members said the bureau requested that interviews be arranged with the sergeants at arms of the House and Senate. The Democrats have defended the video, condemned Mr. Trump’s rhetoric, and reported a rise in threats directed at them.

What is seditious conspiracy?

Federal law defines seditious conspiracy as when two or more people conspire to "overthrow, put down, or to destroy by force" the U.S. government, or to use force to prevent, hinder, or delay the execution of U.S. law, or to seize U.S. property. The crime carries a maximum sentence of 20 years in prison. High-profile prosecutions in recent years include some Jan. 6 defendants, and convictions under this statute remain relatively uncommon outside extreme cases.

Pentagon cites a military insubordination statute

The Defense Department has pointed to a different criminal statute, 18 U.S.C. § 2387, which addresses activities affecting the armed forces. That law makes it a crime—punishable by up to 10 years—to "advise, counsel, urge, or in any manner cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty" by military personnel. Crucially, prosecutors must prove intent to "interfere with, impair, or influence the loyalty, morale, or discipline of the military," a high evidentiary bar.

How likely are criminal charges?

Legal experts say criminal prosecutions face substantial legal hurdles. Seditious-conspiracy charges typically require the use of force or a clear plan to use force—elements not present in a political video advising troops about unlawful orders. Similarly, the military-insubordination statute requires proof of specific intent to undermine military discipline, which lawyers say would be difficult to establish for political speech that warns service members about illegal commands.

Lawful vs. unlawful orders

Scholars note the lawmakers explicitly urged refusal only of illegal orders, not lawful ones. Military law requires service members to obey lawful orders but does not shield criminal acts committed pursuant to unlawful orders. In extreme cases—so-called "manifestly unlawful" orders—service members are obligated to refuse. Legal commentators cite historic examples, such as convictions after the My Lai massacre, to illustrate that following a manifestly illegal command is not a blanket defense.

Constitutional and free-speech defenses

The lawmakers may assert several legal protections. The Constitution’s "Speech or Debate" clause shields members of Congress from prosecution for legislative acts and related speech, and could be invoked depending on context. First Amendment protections for political speech also create a high threshold for criminal prosecution. Taken together, these constitutional safeguards complicate efforts to prosecute elected officials for public political statements.

Should the statements be investigated?

Observers disagree. Some legal and national-security experts argue that a review is warranted if retired or active service members publicly undermine the commander in chief in ways that could endanger troops or national security. Others warn that aggressive threats of prosecution risk chilling legitimate political and legal speech and that the lawmakers' public warning about illegal orders does not, on its face, amount to criminal conduct.

What to watch next

Key developments to follow include whether the Pentagon formally recalls Sen. Kelly to active duty, whether the FBI pursues interviews or referral for prosecution, and whether any prosecutor brings charges under either the seditious-conspiracy statute or the military-insubordination statute. Any such actions will likely prompt immediate constitutional and First Amendment challenges and a robust public debate over the limits of political speech and oversight of the military.

Related developments: public responses by the implicated lawmakers, continued debate in Congress and the media, and broader discussions about civil-military relations and the legal limits of presidential authority.