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Opinion Members’ video raises issues of sedition and free speech Congress Blog | 13 minutes ago

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Members’ video raises issues of sedition and free speech

Last Nov. 18, six members of Congress — all Democrats and all former military or intelligence veterans — posted a 90-second video in which they urged active military personnel to not obey illegal orders.

The six members included Sens. Mark Kelly (D-Ariz.) and Elissa Slotkin (D-Mich.), and Reps. Jason Crow (D-Colo.), Chris Deluzio (D-Pa.), Maggie Goodlander (D-N.H.), and Chrissy Houlahan (D-Pa.).

They knew exactly what they were doing. Although the video was not explicit about what illegal orders they had in mind, it is generally understood they were incensed by President Trump’s decisions to bomb alleged drug-running boats in the Caribbean and to deploy National Guard troops in American cities to help round-up illegal immigrants. 

Article 92 of the Uniform Code of Military Justice makes clear that service members must obey lawful orders or face potential serious punishment, including court martial. The article also makes clear that members of the armed forces may not only refuse to obey a manifestly illegal order, but have a duty to do so. The courts have held that for an order to be considered manifestly illegal, the unlawfulness must be clear and obvious, such as targeting civilians.

The six video contributors were quite aware that their social media posting would likely anger Trump. Two days later, on Nov. 20, the president lashed out at the lawmakers, saying they should be arrested and tried for sedition: “TRAITORS!!! LOCK THEM UP?????.” In a subsequent post the president left no doubt as to where he stood: “SEDITIOUS BEHAVIOR, punishable by DEATH.”

Trump’s outrage was quickly absorbed by his loyal lieutenants at the departments of Justice and Defense. At Justice, U.S. Attorney for the District of Columbia Jeanine Pirro convened a grand jury to indict the six members for their conduct. Due to grand jury secrecy, the specific charges were not made known, even to the accused members. In short order, though, the 20-person grand jury rejected Pirro’s request for an indictment.

Meantime, the Department of Defense was going full bore on investigating and punishing Kelly, but not the other five members. As Secretary of Defense Pete Hegseth explained, Kelly was the only one of the six who had “formally” retired and therefore was subject to being recalled to duty and punished, even though his alleged offenses occurred after his retirement.

On Jan. 5, Hegseth issued a “Secretarial Letter of Censure” to Kelly, based on a determination that he had exhibited conduct that is “prejudicial to good order and discipline in the Armed Forces…and [is] unbecoming an officer.”

Although the Defense secretary downplayed the seriousness of the censure letter as “a necessary process step” to proceedings that could lead to Kelly’s demotion in rank and retirement pay, it is clear from the Code of Military Justice that censure is, in fact, already a finding of guilt and form of punishment.   

In the censure letter Hegseth elaborated on numerous instances in which Kelly had been critical of administration policies, and accused “me and senior military officers of war crimes and to frame resistance to lawful orders….”

Hegseth concluded his censure letter by informing Kelly of his “right to submit a written rebuttal. … However, you do not have a right to appeal this administrative action.” After receiving a recommendation from the secretary of the Navy, Hegseth said a determination would be made as to whether Kelly’s rank as captain would be reduced, and, with it, his commensurate retirement benefits.

Kelly circumvented the meaningless rebuttal that would go nowhere other than into his personal file, and instead filed in the U.S. District Court for D.C. his motion that the censure be blocked. On Feb. 12, U.S. District Court Judge Richard Leon, an appointee of former President George W. Bush, blocked the Pentagon’s censure, based primarily on grounds that Kelly’s free speech rights had been violated: “This court has all it needs to conclude that defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.”  

Hegseth appealed the ruling on Tuesday. Interestingly, Kelly did not emphasize in his own defense his immunity as a senator from being questioned in any other place for any “speech or debate” relating to his official duties in Congress. Moreover, Judge Leon did not highlight that constitutional shield members of Congress enjoy.

While that additional argument may have some bearing on appeal, Leon and Kelly wanted to make clear that the more important issue is in protecting all Americans from government retribution for their public utterances.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).   

Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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