“The threats to our Constitution aren’t just coming from abroad, but from right here right at home. Our laws are clear. You can refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.”
These were the reminders included in a video released last week by Senator Mark Kelly of Arizona, along with five other Democratic House members who also previously served in the military. Almost immediately after the video went out, President Trump issued statements on Truth Social characterizing the video first as “SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL” that should result in their arrest, then saying they should be “locked up” in a second post, and finally in a third post claiming that their conduct was “punishable by DEATH.” (Unhinged much?)
Trump’s minions wasted no time getting in line. Defense Secretary Pete Hegseth threatened Senator Kelly, a retired U.S. Navy combat pilot, with a court-martial based on “serious allegations of misconduct” for his participation in the video. FBI Director Kash Patel has apparently ordered an investigation into the remaining members of Congress, for…well, it’s not clear what for. In short, just when you thought things could not possibly get stupider, they did.
There is sooooo much to unpack here, so first things first: the law. Article 92 of the Uniform Code of Military Justice makes it a violation to fail to obey – wait for it – lawful orders. Which of course means that servicemembers are not obligated to follow unlawful orders, which is any order that violates the Constitution, U.S. law, international humanitarian law (the law of armed conflict, or LOAC), or the Geneva Conventions. Guess which branch of government is charged under the Constitution with promulgating rules and regulations for the armed forces? That’s right, Congress, under Article I, Section 8. So the allegedly “seditious” behavior of these legislators consisted of articulating a law passed pursuant to their constitutional prerogatives, laws that members of the military swear to uphold when they take the oath to serve.
Now let’s turn to sedition. The U.S. criminal code doesn’t have a crime of sedition per se, but rather for seditious conspiracy, which is a violation when “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” You can re-read that a few times, and I think you’d be hard-pressed to find that making a video telling military servicemembers to follow the law and uphold the Constitution fits that definition. (Conduct that involves storming the capital, threatening to hang the Vice President, and attempting to prevent a peaceful transfer of power would, on the other hand, fit the definition perfectly.)
With that all settled, let’s look at what could actually happen to these lawmakers. You might be surprised to learn that the military does have jurisdiction over retired members of the military: Article 2(a)(4) of the UCMJ explicitly confers jurisdiction over “retired servicemembers who are entitled to pay,” so they can be court-martialed without being recalled into active duty first. (Servicemembers are entitled to pay, meaning a military pension, after 20 years – servicemembers who are separated from the military but not eligible for a pension are not considered “retired.”) The military can also court-martial retired servicemembers for conduct that occurs after they leave service. Senator Kelly is the only one of the six who is retired, not separated, which explains why Hegseth has singled him out, and in theory he could be court-martialed.
But hauling someone into a military court is not that easy. Lt. Gen. Mark Hertling (ret.) tells me that any court-martial is preceded first by a formal inquiry. Gen. Hertling served as a “general officer court-martial convening authority,” or GCMCA in military-speak, and said that courts-martial are always preceded by an investigation to determine whether there is any basis for wrongdoing and the facts surrounding the case before it is put to trial. “It appears there’s no evidence of wrongdoing by those who made the tape,” Gen. Hertling told me, ”so no crimes are apparent. Additionally, if any GCMCA were pressured to conduct a trial by a senior civilian or military official, like the Secretary of Defense or Chief of Naval Operations, that would create something called ‘undue command influence,’ that would further taint any investigation or court procedure.” So it’s unlikely that Senator Kelly is in any real danger of being court-martialed.
What about the FBI investigation into the other members of Congress? Well, the Attorney General Guidelines, which govern FBI investigations, explicitly prohibit investigations “solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.” So at least one huge red flag here is that it appears that the AG Guidelines have been thrown out the window. Beyond that, it’s not clear where any so-called investigation could go. FBI cases need to have their basis in some kind of “predication” – an allegation or facts suggesting a violation of federal law or a national security threat. Here, there are none.
So what’s the endgame here? I think an area of psychological research called social identity theory provides an answer. Social identity theory is based on the idea that how we view information is based on our perceived identity when we receive it. We all have numerous, simultaneous identities: I am, for instance, a woman, Indian, a lawyer, a professor, and a child of immigrants. Depending on which of these “hats” is most salient to me at a given point in time, I will process and react to the same stimuli differently. For example, though federal judges are appointed by presidents with political agendas, actually sitting on a bench and wearing a robe can prime them to see a case through an objective lens – we’ve seen this manifest repeatedly with Trump-appointed judges in the last few months. I think the reason that the video is so threatening to this administration is that the lawmakers aren’t speaking to the military as legislators, but rather invoking their shared identity as a servicemembers – and in doing so, reorienting their loyalty to higher principles, and their oath to the Constitution, not a person. Ruh-roh! You can see how that could be a problem for Trump.
The ultimate goal of the threats against Senator Kelly and other members of Congress isn’t to actually create legal consequences – that just isn’t going to happen – but to intimidate others, particularly other retired and separated servicemembers, from speaking out. That’s because the biggest threat to a wannabe-authoritarian regime isn’t necessarily dissent from the opposition, but from people who are trusted – and former members of the military are exactly that, to those who continue to serve. The administration clearly wants to nip that threat in the bud. But my money is on the military: its bonds of loyalty to the Constitution, and to one another, are far stronger than Trump realizes.
