After six congressional Democrats released a video advising members of the U.S. military and national security community to “refuse illegal orders,” President Donald Trump said the lawmakers should be tried in court for “SEDITIOUS BEHAVIOR, punishable by DEATH!” But legal experts told us this was not sedition and that the legislators were restating the law that only lawful orders must be followed.
“Sedition is trying to overthrow the government with force or violence,” Eric R. Carpenter, a professor of law at Florida International University College of Law, said in an email to us. “In the video, the elected officials are just telling service members to follow the law. They are not telling service members to overthrow the government.”
The White House later said that Trump didn’t mean the Democrats should face the death penalty, but the press secretary argued that the video encouraged troops to defy the president.
Here, we cover what the lawmakers said, how Trump responded, and what legal experts have said about the video and the president’s claims.
What’s in the Video?
The 90-second video was posted on social media and online on Nov. 18 and features Sen. Elissa Slotkin of Michigan, Sen. Mark Kelly of Arizona, Rep. Maggie Goodlander of New Hampshire, Rep. Jason Crow of Colorado, and Reps. Chris Deluzio and Chrissy Houlahan of Pennsylvania. All are either military veterans or former intelligence officials.
In the video, the lawmakers state their credentials and remind members of the military and national security community that they swore to protect and defend the U.S. Constitution.
“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 turn.
Kelly, a former Navy captain, then says, “Our laws are clear: You can refuse illegal orders,” which Slotkin, once a CIA officer, repeats for emphasis. Crow then adds that military members “must refuse illegal orders,” before the other lawmakers say “no one has to carry out orders that violate the law or our Constitution.”
The ad concludes with the members of Congress saying, “Don’t give up the ship,” a reference to a last command attributed to James Lawrence, a Navy captain, during the War of 1812.
The senators and representatives never mention a specific unlawful order they believe was given. But the New York Times reported on Nov. 18 that Slotkin, who organized the video, “said that she had heard from active-duty troops who were concerned about the legality of strikes that have targeted people accused by the Trump administration of trafficking narcotics by sea.”
“Some wondered whether they could be held personally liable for the deaths, she said,” according to the Times. (We have written that some legal experts have said the U.S. strikes on boats off the coasts of Venezuela and Colombia were “not lawful.”)
In an ABC News interview on Nov. 23, Slotkin said she was “not aware of things that are illegal” that Trump has ordered the military to do. But she said “certainly there are some legal gymnastics that are going on with these Caribbean strikes.” She also said she has concerns about “the use of U.S. military on American shores,” and she noted that “we’ve seen now the courts overturn” Trump’s “deployment of U.S. military into our streets,” including in Washington, D.C., and Los Angeles.
The video “was basically a warning to say, like, if you’re asked to do something, particularly against American citizens, you have the ability to go to your JAG officer and push back,” she said, referring to military lawyers known as judge advocates general.
Trump’s Response
Two days after the video was posted, Trump responded on social media, calling the Democratic lawmakers traitors guilty of sedition.
“It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” the president wrote on Truth Social. “Each one of these traitors to our Country 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.”
In another post, he labeled it, “SEDITIOUS BEHAVIOR, punishable by DEATH!”
He also amplified a post from another user, who wrote, “HANG THEM GEORGE WASHINGTON WOULD !!”
His comments elicited a response from the six Democrats, who issued a joint statement the same day.
“What’s most telling is that the President considers it punishable by death for us to restate the law. Our servicemembers should know that we have their backs as they fulfill their oath to the Constitution and obligation to follow only lawful orders. It is not only the right thing to do, but also our duty,” they said.
White House Press Secretary Karoline Leavitt clarified in a Nov. 20 press briefing that Trump doesn’t think the lawmakers should be executed. She said he only responded that way because members of Congress “conspired together to orchestrate a video message” encouraging members of the military and national security apparatus “to defy the president’s lawful orders.”
“The sanctity of our military rests on the chain of command and if that chain of command is broken, it can lead to people getting killed. It can lead to chaos. And that’s what these members of Congress who swore an oath to abide by the Constitution are essentially encouraging,” she said.
But the Democrats said to “refuse illegal orders” — not “lawful” ones. It’s a crime to disobey “any lawful general order or regulation,” according to the Uniform Code of Military Justice.
Carpenter told us there is a “strong presumption” that military orders are lawful and must be followed by members of the military. “They refuse orders at their own risk,” he cautioned.
He said that service members have a legal defense for any actions taken while they are following legal orders, but that defense doesn’t apply if they are following unlawful orders. “So, the basic rule is, follow orders unless they are obviously unlawful.”
Did the Lawmakers Commit Sedition?
As for Trump’s sedition claim, generally, federal law says that “seditious conspiracy” occurs when multiple people conspire to “overthrow,” “put down,” “destroy by force,” “levy war against” or “oppose by force” the U.S. government.
The penalty for seditious conspiracy is a maximum of 20 years in prison, a fine or both – but not death. (Active-duty and certain retired members of the armed forces who commit “sedition,” as defined by the UCMJ, may be punished by death, the military code says.)
But legal experts in addition to Carpenter told us that the message in the Democrats’ video does not amount to sedition.
“Trump’s efforts to cast this legal speech as seditious is nonsense,” Victor M. Hansen, a professor of law at New England Law in Boston, said in an email.
“These statements are not seditious or any evidence of a conspiracy,” the former Army JAG officer said. “Simply reminding service members of their legal rights and obligations is not criminal in any way.”
“It is so far from seditious behavior,” Berit Berger, a former federal prosecutor, said in a Nov. 20 CNN interview, noting that sedition “is a specific crime” that “requires advocating” or “planning to overthrow the government through force.”
For example, several people who plotted and participated in the Jan. 6, 2021, attack on the U.S. Capitol to prevent the transfer of presidential power were convicted of seditious conspiracy.
Berger said sedition is rarely prosecuted and “it’s very hard to charge somebody with sedition based just on something they say” since “people have a right to criticize their government, to say things, even inflammatory things, that the government might not like.”
Brenner M. Fissell, a professor of law at Villanova University and vice president of the National Institute of Military Justice, told us that current law prevents the seditious conspiracy statute from being applied as “broadly” as it was written. He pointed to the Supreme Court’s 1969 ruling in the First Amendment case Brandenburg v. Ohio.
“Under the Brandenburg test, speech would have to be intended to produce imminent lawlessness, and also likely to produce imminent lawlessness,” he said. “The lawmakers’ video would fail the imminence requirement, but it also does not advocate lawlessness — it is merely re-stating the military law” that “only lawful orders require obedience.”
“So, the video is not sedition or seditious conspiracy,” Fissell said.
Carpenter said that if an elected official “is retired and an officer, then they could be prosecuted for conduct unbecoming an officer.” But even that would be a “stretch” in this case, he argued, because “they were just telling service members to follow the basic legal structure.”
Defense Secretary Pete Hegseth announced on Nov. 24 that Kelly, the Arizona senator who retired as a high-ranking Navy official, is now under investigation for his participation in the video.
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