Six Democratic lawmakers who previously served in the military or in U.S. intelligence recorded a video urging service members to refuse unlawful orders, touching off federal inquiries and a political firestorm. “You can refuse illegal orders. … You must refuse illegal orders,” the lawmakers said in the recording, which they say was meant to warn about uses of military force they view as unlawful.
Response and inquiries
Former President Donald Trump called the video “seditious” on Truth Social, writing that the participants were “traitors” who should be arrested and tried. The Pentagon said it was reviewing “serious allegations of misconduct” regarding Sen. Mark Kelly, a retired Navy captain from Arizona, and indicated it might recall him to active duty for court-martial proceedings or other administrative action. Defense Secretary Pete Hegseth later said Kelly was the only lawmaker under Pentagon jurisdiction because the other participants either worked for the CIA or did not retire from the armed forces.
The remaining five lawmakers reported that the FBI notified them about an inquiry. Four House members said the bureau requested that the House and Senate sergeants at arms arrange interviews.
What the lawmakers say
The lawmakers defended their message as a legal and ethical reminder, not a call to rebellion. They cited past proposals and statements attributed to former President Trump — for example, extreme measures discussed publicly in prior years and threats to use troops domestically — as the kind of scenarios their remarks were meant to address. Supporters say the video stressed that service members must disobey unlawful orders, a duty sometimes required when an order is “manifestly unlawful.”
Legal statutes under review
Two federal statutes have been cited in the debate. First, the seditious conspiracy statute, 18 U.S.C. § 2384, criminalizes conspiracies by two or more people “to overthrow, put down, or to destroy by force” the U.S. government, or by force to prevent, hinder, or delay the execution of any U.S. law. Conviction can carry up to 20 years in prison. Seditious-conspiracy prosecutions are uncommon; notable recent convictions followed the Jan. 6, 2021, attack on the Capitol involving leaders of extremist groups.
Second, the Defense Department pointed to 18 U.S.C. § 2387, a statute aimed at conduct affecting the armed forces. It prohibits advising, counseling, urging, or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty by members of the military. That law carries a maximum penalty of 10 years and requires prosecutors to prove intent to “interfere with, impair, or influence the loyalty, morale, or discipline of the military.” The Pentagon has reminded retired service members that they remain subject to this statute.
Legal obstacles to prosecution
Legal experts say charging the lawmakers under either law would be difficult. A former federal prosecutor, Mitchell Epner, emphasized that seditious conspiracy traditionally requires some element of force; political persuasion or exhortation that stops short of force generally does not fit the statute’s core elements.
On the insubordination statute, George Washington University law professor Laura Dickinson noted the high intent threshold: prosecutors must show the speakers specifically intended to impair military loyalty or morale. She and other experts also pointed out a key factual distinction in the lawmakers’ remarks — they urged service members to refuse unlawful orders, not lawful ones — and that military law already requires service members to refuse manifestly unlawful orders, which supports the lawmakers’ legal framing.
Constitutional protections and other defenses
Members of Congress may also invoke constitutional protections. The Speech or Debate Clause shields senators and representatives from prosecution for legislative acts and arguably could cover related public statements. The First Amendment also places a high bar on criminalizing political speech, which complicates efforts to prosecute controversial public statements.
Diverging views on whether an investigation is appropriate
Some experts say the matter merits review. F. Lee Francis, a former Army JAG officer and law professor, argued that statements from current or former service members that undermine the commander in chief could harm morale and national security and therefore warrant DoD attention. Others warn that aggressive threats of prosecution could chill speech by former service members and lawmakers discussing the lawfulness of orders. UCLA law professor Jon Michaels described the lawmakers’ remarks as providing “some degree of political cover” for service members who believe an order is unlawful.
Administration stance
The White House has publicly said the president has not issued unlawful orders. White House press secretary Karoline Leavitt said the video’s suggestion that the president has given illegal commands is unfounded. Defense Department officials, including Hegseth, have framed the video as potentially dangerous because it may sow doubt and confusion among troops.
Bottom line
Prosecutors face substantial legal hurdles to charging the lawmakers with seditious conspiracy or with violating the military insubordination statute. Seditious conspiracy usually requires a force element; the insubordination statute demands proof of intent to impair military loyalty or discipline. The lawmakers and several legal experts argue their message was legally grounded and protected speech; others contend the remarks could justify review to safeguard military cohesion. The controversy highlights the tension between protecting political speech and maintaining clear lines of military discipline and security.