Trump Says Legislators Committed Treason by Noting That Soldiers Are Not Obligated To Obey Unlawful Orders
The president's authoritarian response to a video posted by six members of Congress, who he says "should be arrested and put on trial," validates their concerns.
In a video message posted this week, six Democratic legislators with military or intelligence backgrounds remind members of the armed forces that they are not obligated to follow unlawful orders. That point is legally uncontroversial. It is also freshly relevant in light of the various questionable ways in which President Donald Trump has deployed the military—especially his summary executions of suspected drug smugglers in the Caribbean and eastern Pacific.
Trump's characteristically over-the-top reaction to the video—which described its production as "SEDITIOUS BEHAVIOR, punishable by DEATH!"—confirms the importance of remembering that soldiers and other public servants have a duty higher than obedience to the president's whims. Trump's response also highlighted his tendency to portray criticism of him as a state crime, which reflects his disregard for freedom of speech as well as his narcissism.
The video features Sen. Elissa Slotkin (D–Mich.), a former CIA officer; Sen. Mark Kelly (D–Ariz.), a former astronaut and U.S. Navy aviator; Rep. Chris Deluzio (D–Pa.), also a former naval officer; Rep. Maggie Goodlander (D–N.H.), a former intelligence officer in the U.S. Navy Reserve; Rep. Chrissy Houlahan (D–Pa.), a former Air Force officer; and Rep. Jason Crow (D–Colo.), a former Army Ranger. They mention those backgrounds while delivering a simple message to "members of the military" and "the intelligence community" who "take risks each day to keep Americans safe": "Our laws are clear. You can refuse illegal orders."
The video criticizes the Trump administration for "pitting our uniformed military and intelligence community professionals against American citizens," saying: "We know you are under enormous stress and pressure right now. Americans trust their military, but that trust is at risk."
The legislators note that "like us, you all swore an oath to protect and defend [the] Constitution." They add that "no one has to carry out orders that violate the law or our Constitution." Although "we know this is hard," they say, "your vigilance is critical," and "we have your back."
The video does not get into specifics. But Trump's domestic military deployments, including his use of National Guard troops and Marines, are legally controversial and create situations in which service members might have to decide whether they should follow orders that violate the Fourth Amendment or the First Amendment. And his unprecedented policy of blowing up boats believed to be carrying illegal drugs, which so far has killed 83 people in 21 attacks, is blatantly at odds with longstanding principles of criminal justice and the traditional military distinction between civilians and combatants.
After that campaign began on September 2, Georgetown University law professor Marty Lederman noted that the first strike "appears to have violated several legal prohibitions," including homicide provisions of federal law and the Uniform Code of Military Justice (UCMJ). "Regardless of which laws might have been broken," Lederman wrote, "what's more alarming, and of greater long-term concern, is that U.S. military personnel crossed a fundamental line the Department of Defense has been resolutely committed to upholding for many decades—namely, that (except in rare and extreme circumstances not present here) the military must not use lethal force against civilians, even if they are alleged, or even known, to be violating the law."
Given the obvious problems with deciding to kill criminal suspects in cold blood instead of intercepting and arresting them, Lederman wondered: "Why did military personnel agree to such a dubious order?" He considered several possible explanations, each of which he viewed as problematic or unsatisfying. But as far as the allegedly "SEDITIOUS" video is concerned, the important point is that Lederman, for good reason, took it for granted that military personnel had a choice.
"As the Judge Advocate General Handbook explains, subordinates in the military chain of command must presume, in the ordinary course, that orders of superiors in the lawful chain-of-command are themselves lawful," Lederman wrote. "Even so, in a 'rare' case where 'an order seems unlawful,' the subordinate should 'not carry it out right away, but [should] not ignore it either.' She should, instead, 'immediately and respectfully seek clarification of that order'; and if, after receiving a clarification (or after being informed that no clarification is forthcoming), a reasonable person 'would recognize the wrongfulness of the act or order, even in light of a soldier's general duty to obey, then the order is "manifestly illegal," and soldiers have a duty to disobey it.'"
In other words, military personnel not only "can refuse illegal orders"; they have an obligation to do so. Lederman also cited The Commander's Handbook on the Law of Naval Operations, which similarly recognizes an exception to the general rule that "an order requiring the performance of a military duty to act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate." The handbook says that inference "does not apply to a patently illegal order, such as one that directs the commission of a crime." The first example it offers—"an order directing the murder of a civilian [or] a noncombatant"—is clearly relevant to Trump's bloodthirsty anti-drug strategy.
Trump has tried to justify that strategy in various ways: by conflating drug smuggling with violent aggression, by describing the men whose deaths he has ordered as members of "foreign terrorist organizations," by asserting a "noninternational armed conflict," and by preposterously claiming that "we save 25,000 lives" with each boat that is destroyed (which would add up to more than half a million deaths supposedly prevented so far). These arguments have been widely rejected by experts on the law of war.
Trump's policy is "so manifestly unlawful that in any other administration, including Trump's first, if anyone had even dared to propose it, virtually any and every attorney who got wind of it, across the government—and many non-lawyer officials, too—would have immediately dismissed it as obviously out-of-bounds," Lederman wrote. "It wouldn't have been a close call, and therefore it wouldn't have required any detailed memoranda or extended debates."
Consistent with that take, NBC News reported this week that Marine Col. Paul Meagher, the judge advocate general at the U.S. Southern Command in Miami, "expressed concern" that the boat strikes "could amount to extrajudicial killings" and "therefore legally expose service members involved in the operations." Although "the opinion of the top lawyer for the command overseeing a military operation is typically critical to whether or not the operation moves forward," NBC News says, Meagher's opinion "was ultimately overruled by more senior government officials, including officials at the Justice Department's Office of Legal Counsel."
The story mentions another possible indication of dissent within the military: "The head of Southern Command, Adm. Alvin Holsey, plans to step down after less than a year in a job that typically lasts about three years. Holsey announced in October that he will depart next month."
In this context, a reminder that service members are not just allowed but obligated to disobey "manifestly illegal" orders seems timely and appropriate. But Trump thinks it is "SEDITIOUS" and merits severe punishment.
"It's called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL," he wrote on Truth Social on Thursday. "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."
Later, Trump added: "This is really bad, and Dangerous to our Country. Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???"
Trump deploys accusations of treason as recklessly as he threatens to yank broadcast licenses, and both habits reflect his intolerance for speech that offends him, which he thinks should be (or already is) illegal. He either does not know or does not care what the crimes of treason and seditious conspiracy actually entail.
An American is guilty of treason when he "levies war" against the United States or "adheres to their enemies, giving them aid and comfort within the United States or elsewhere." A seditious conspiracy is a plot 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."
The video that upset Trump plainly does not fit either of those definitions. Yet during a briefing on Thursday, White House Press Secretary Karoline Leavitt suggested that it might.
"This morning, President Trump accused six Democratic lawmakers of seditious behavior punishable by death," a reporter noted. "Just to be clear, does the president want to execute members of Congress?"
Leavitt replied "no" but then proceeded to imply that Slotkin et al. had engaged in criminal activity. "You have sitting members of the United States Congress who conspired together to orchestrate a video message to members of the United States military, to active-duty service members, to members of the national security apparatus, encouraging them to defy the president's lawful orders," she said.
Right out of the gate, Leavitt misrepresented what the video says. It is explicitly about "illegal orders," not "the president's lawful orders," and its message jibes with what the UCMJ says about the duties of service members. Examples of "unlawful orders" that should not be obeyed include intentional targeting of civilians (ahem), torture of prisoners, looting of property, and suppression of constitutionally protected protests.
"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," Leavitt warned. "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."
This "radical message from sitting members of Congress," Leavitt said, "could inspire chaos and it could incite violence and it certainly could disrupt the chain of command….That is a very, very dangerous message, and it perhaps is punishable by law. I'm not a lawyer. I'll leave that to the Department of Justice and the Department of War to decide."
Since lawyers in those agencies are busy concocting arguments aimed at transforming murder into self-defense, I will save them some time by pointing out that the legislators' video is not, in fact, "punishable by law." Under the Supreme Court's 1969 decision in Brandenburg v. Ohio, even advocacy of illegal conduct is constitutionally protected unless it is both "directed" at inciting "imminent lawless action" and "likely" to have that effect. Far from trying to incite "imminent lawless action," Slotkin et al. urged service members to "stand up for our laws" and "our Constitution," which they accurately said could require disobeying "illegal orders."
Is that observation apt to cause "chaos" by "disrupt[ing] the chain of command," as Leavitt claims? Probably not, since the video merely highlights a principle that is already incorporated into the UCMJ. Service members are not likely to casually deem orders unlawful, since they would have to back up that defense when charged with violating Article 90 of the UCMJ, which applies to anyone who "willfully disobeys a lawful command of his superior commissioned officer," or Article 92, which requires obedience to "any lawful general order or regulation."
Trump thinks any order he issues is ipso facto "lawful," which is obviously not true. He also thinks reiterating a longstanding principle of military law is (or should be) illegal. His predictably authoritarian response to the video validates the concerns of the legislators who produced it.