Military law professionals say President Trump’s administration likely has no criminal charges available to use against the six Democratic lawmakers who, in an online video this month, told service members to refuse illegal orders from the commander in chief.
The experts did caution that Sen. Mark Kelly, Arizona Democrat, could be penalized, although probably not.
The responses come after Mr. Trump and Secretary of War Pete Hegseth labeled the group the “Seditious Six” and the president suggested last week in a Truth Social post that they were “traitors to our country” and “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,” the president posted.
Eugene Fidell, who teaches military justice at Yale Law School, says not so fast. He slapped the president’s shot as “harassment with real danger attached to it.”
Mr. Fidell, who served in the U.S. Coast Guard after graduating from Harvard Law School and founded the National Institute of Military Justice, called the whole thing a “silly mock investigation by the Pentagon.”
“One of the aspects of this whole exercise with regards to Sen. Mark Kelly, it raised why there is even court-martial jurisdiction over retirees,” Mr. Fidell said, noting it reveals a system open to “an abuse of exercise.”
Legal scholars say five of the six lawmakers are protected by the First Amendment, but since Mr. Kelly is a former member of the military, having served in the Navy from 1986 to 2011, he is subject to military court jurisdiction. That is where things could get dicey.
“I am not aware of any retired officer being recalled to active duty under circumstances like these,” said retired Air Force Maj. Gen. Charles J. Dunlap Jr., who teaches law at Duke University. “But it is true that retired officers who have retained their commissions remain subject to the Uniform Code of Military Justice. The UCMJ can criminalize speech that, for civilians, is fully protected by the First Amendment.”
Mr. Dunlap pointed to the 1974 case of Parker vs. Levy where the Supreme Court upheld a conviction for an Army doctor due to unbecoming conduct. He also noted that case involved an officer on active duty, not retired like Mr. Kelly.
Brenner M. Fissell, who teaches military and national security law at Villanova University, said a case against Mr. Kelly would probably be tossed.
“There are massive hurdles. … If you read the statute that they say he violated, he didn’t violate it. He said, ’Refuse unlawful orders.’ He didn’t actually encourage disobedience,” Mr. Fissell said.
Mr. Kelly has been accused of interfering with the “loyalty, morale, or good order and discipline of the armed forces,” according to the Pentagon, which cited a federal law prohibiting that sort of conduct, reported The Associated Press.
The Pentagon is investigating how to handle his actions, given he’s a retired naval captain.
Mr. Kelly has denied any wrongdoing and said the investigation is coming from “bullies.”
“If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work,” he said in a statement.
The other lawmakers are not subject to military court jurisdiction, so they have the First Amendment as a strong defense should any allegations be brought against them. Members of the military can indeed face punishment and prosecution if they follow unlawful orders.
In the 90-second video, the six encouraged military members not to follow unlawful military orders, though none of them could cite any unlawful orders coming from Mr. Trump.
Critics have said the video was a political stunt that could sow confusion.
“You can refuse illegal orders,” Mr. Kelly said in the clip, while other lawmakers in the video told service members to “stand up for our laws … our Constitution.”
