Updated on: November 25, 2025 / 7:57 PM EST / CBS News
Six Democratic lawmakers are facing federal inquiries after they recorded a video urging military service members not to follow unlawful orders. “Our laws are clear: You can refuse illegal orders. … You must refuse illegal orders,” the lawmakers — all of whom served in the military or worked for U.S. intelligence — said in the video.
Former President Trump called the statement “seditious” on Truth Social, tweeting, “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” Days later, the Pentagon said it was reviewing “serious allegations of misconduct” against Sen. Mark Kelly of Arizona and said it may recall the retired naval captain to active duty for “court-martial proceedings or administrative measures.” Defense Secretary Pete Hegseth later said Kelly was the only lawmaker subject to Pentagon jurisdiction because the others either worked for the CIA or did not retire from the military. The other five lawmakers said the FBI notified them of an inquiry; four House members said the bureau asked the House and Senate sergeant at arms to arrange interviews.
The lawmakers have defended the video and condemned Trump, saying it was intended to highlight uses of the military they view as unlawful, citing past proposals by Trump such as killing terrorists’ families and threats to deploy troops domestically. Hegseth argued the video “sows doubt and confusion — which only puts our warriors in danger.”
What the law says
Seditious conspiracy
Federal law (18 U.S.C. § 2384) defines seditious conspiracy as when two or more people “conspire 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, or to seize U.S. property. Conviction can carry up to 20 years in prison. High-profile recent seditious conspiracy convictions followed the Jan. 6, 2021, attack on the Capitol, where leaders of the Proud Boys and Oath Keepers were found guilty. But seditious-conspiracy prosecutions are relatively rare; past uses include cases involving extremist plots and a 1993 conviction tied to a bombing plot.
Military insubordination statute
The Defense Department has pointed to a separate statute in the same chapter of the federal code that targets conduct affecting the armed forces. The Pentagon reminded retired service members they remain subject to 18 U.S.C. § 2387, which bans advising, counseling, urging, or in any manner causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty by military members. That law carries a maximum of 10 years in prison and requires intent to “interfere with, impair, or influence the loyalty, morale, or discipline of the military.”
Could the lawmakers be charged?
Legal experts say prosecuting the six lawmakers on seditious conspiracy would face hurdles. Mitchell Epner, a former federal prosecutor, noted a core problem: seditious conspiracy typically requires force. “If you do not use force — if you use trickery, if you use political persuasion — you are not committing sedition,” he told CBS News.
On the insubordination statute, George Washington University law professor Laura Dickinson said the law imposes a high intent requirement: prosecutors must show the speakers intended to impair military loyalty or morale, which is difficult to prove. Dickinson and other experts also stressed that the lawmakers urged refusal of “illegal” orders, not lawful ones. Military members must follow lawful orders but are not required to follow unlawful ones; in some cases, they are required to disobey “manifestly unlawful” orders. Dickinson said the lawmakers’ legal view appears correct.
Other defenses and concerns
Members of Congress could invoke the Constitution’s Speech or Debate Clause, which protects senators and representatives from prosecution for legislative speech and arguably could cover related public statements. The First Amendment also sets a high bar for criminalizing political speech, Dickinson noted.
Some legal and military experts believe an investigation is warranted. F. Lee Francis, a former Army JAG officer and law professor, said statements by retired or active service members that undermine the commander in chief could harm national security and morale, and merit DoD attention. But Dickinson warned that threats of prosecution could chill speech. Jon Michaels, a law professor at UCLA, described the lawmakers’ message as offering “some degree of political cover” when they believe a commanding officer’s directive is unlawful.
Administration response
The White House has said the president has not issued unlawful orders. White House press secretary Karoline Leavitt told CBS News, “They’re suggesting … the president has given illegal orders, which he has not.” Hegseth has argued the video risks putting troops in danger by sowing doubt.
Bottom line
Prosecutors face significant legal obstacles to charging the lawmakers with seditious conspiracy or military insubordination. Seditious conspiracy generally requires force; the military insubordination statute requires proof of intent to impair loyalty or discipline. The lawmakers and some experts contend their speech was legally grounded and protected; others say the remarks could merit review to protect military cohesion.