The Pentagon and the FBI Are Investigating 6 Legislators for Exercising Their First Amendment Rights
The Trump administration is desperately trying to criminalize a video noting that service members have no obligation to follow unlawful orders.
After six members of Congress posted a video reminding members of the armed forces that they are not obligated to follow unlawful orders, President Donald Trump said the legislators were "traitors to our Country" who should be prosecuted for "SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL." Whatever you think of that video, its production plainly did not qualify as treason or seditious conspiracy under federal law. Now Defense Secretary Pete Hegseth is trying a different tack, suggesting that Sen. Mark Kelly (D–Ariz.), a retired U.S. Navy captain, may have violated the Uniform Code of Military Justice (UCMJ) by participating in the video.
How so? "The only code provision that addresses mere speech," notes David Cole, former national legal director of the American Civil Liberties Union, is Article 88, which prohibits "contempt toward officials."
Theoretically, Kelly could be called back into service to face a court-martial on a charge of violating Article 88. But his conduct does not fit the terms of that provision, which applies to "any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present."
The supposedly "seditious" video alludes to Trump's controversial uses of the armed forces, including his domestic military deployments and his summary executions of suspected drug smugglers. "This administration is pitting our uniformed military and intelligence community professionals against American citizens," say the legislators, all Democrats with military or intelligence backgrounds. "Like us, you all swore an oath to protect and defend [the] Constitution. Right now, 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."
Kelly et al. note that "no one has to carry out orders that violate the law or our Constitution." While "Americans trust their military," they warn, "that trust is at risk." And although "we know this is hard," they say, "your vigilance is critical," and "we have your back."
The implication, of course, is that members of the armed forces might face situations in which they have to choose between following orders and adhering to the law. But the video does not get into specifics, and it never mentions Trump or anyone else by name, let alone refer to an official with "contemptuous words."
On Tuesday, Hegseth nevertheless instructed Secretary of the Navy John Phelan to investigate "potentially unlawful comments" that Kelly made in the video. "I am referring this, and any other related matters, for your review, consideration, and disposition as you deem appropriate," Hegseth says in his memo to Phelan. "Please provide me a brief on the outcome of your review by no later than December 10, 2025."
Notably, the memo does not cite any specific UCMJ provisions that Kelly might have violated. But Hegseth has suggested that Kelly might be guilty of sedition.
"The video made by the 'Seditious Six' was despicable, reckless, and false," Hegseth said in an X post on Monday. "Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of 'good order and discipline.' Their foolish screed sows doubt and confusion—which only puts our warriors in danger." While "five of the six individuals in that video do not fall under [military] jurisdiction," he added, Kelly "is still subject to UCMJ—and he knows that."
Although Hegseth may consider Kelly "seditious," the senator's participation in the video does not fit the UCMJ's definition of sedition. That provision applies to a service member who, "with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority."
The essence of Kelly's supposed offense is restating a well-established principle reflected in the UCMJ itself. Article 90 of the UCMJ authorizes punishment for a service member who "willfully disobeys a lawful command of his superior commissioned officer." Article 92 likewise requires obedience to "any lawful general order or regulation." But according to the Judge Advocate General's Operational Law Handbook, "soldiers have a duty to disobey" orders that are "manifestly illegal." Examples include intentional targeting of civilians, torture of prisoners, looting of property, and suppression of constitutionally protected protests.
The idea that Hegseth "can go after me under the Uniform Code of Military Justice," Kelly remarked during an appearance on Jimmy Kimmel's ABC talk show, "is kind of wild, because we recited something in the Uniform Code of Military Justice….It so ridiculous, it's almost like you can't make this shit up."
The attempt to treat the video as a crime is "right out of the playbook" of "authoritarianism," Kelly said. "That's what they do. They try to suppress speech."
Unlike Kelly, the other lawmakers who participated in the video are not subject to the UCMJ because they did not retire from the military with pensions. But Reuters, citing an unnamed "Justice Department official," reports that "the FBI has requested interviews" with all six legislators.
Those lawmakers clearly did not commit treason, which entails waging war on the United States or supporting its wartime enemies. Nor did they engage in a seditious conspiracy, which is defined as a plot involving the use of force to overthrow the U.S. government or oppose its authority. So what crime is the FBI investigating?
A Pentagon post on X suggested the video might have violated 18 USC 2387, which applies to someone who "advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States." But that crime requires an "intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States." And the UCMJ defines insubordination as willfully disobeying "a lawful order," while the video explicitly addressed "illegal orders."
Any attempt to criminalize the speech at issue here would be clearly contrary to the Supreme Court's First Amendment precedents. The Court's 1969 decision in Brandenburg v. Ohio held that even advocacy of illegal conduct is constitutionally protected unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so. Far from trying to incite "imminent lawless action," the legislators Trump wants to prosecute urged service members to "stand up for our laws" and "our Constitution," which they accurately said could require disobeying unlawful orders.
"Every one of us has First Amendment speech rights, and I think the president is infringing on those," Kelly said on Kimmel's show. "He is sending a pretty strong message: You do not want to cross him, and your loyalty should be to him. It should not. It should always be to the Constitution."
