Five congressional Democrats say they have received inquiries from the Justice Department after they appeared in a video message urging members of the military not to follow “illegal orders” — a move the lawmakers allege is political intimidation.
Democratic Reps. Chris Deluzio and Chrissy Houlahan of Pennsylvania and Maggie Goodlander of New Hampshire announced Wednesday that they had received inquiries from the Justice Department about the video. Democratic Sen. Elissa Slotkin and Rep. Jason Crow of Colorado also said the top federal prosecutor in D.C., Jeanine Pirro, reached out to interview them.
And last week, the Pentagon took steps to demote Democratic Sen. Mark Kelly of Arizona’s rank in the Navy and cut his military pension because of his appearance in the video. Kelly this week sued Defense Secretary Pete Hegseth in an attempt to block his demotion, arguing the move is unconstitutional.
The inquiries have stepped up the Trump administration’s scrutiny since the lawmakers first posted the 90-second, direct-to-camera video in November, which told military service members that they “must refuse illegal orders.” Last year, President Trump accused the six Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!” Several of the lawmakers were notified in November that the FBI had opened an inquiry into the video.
The lawmakers have pushed back against the administration and argued the Justice Department’s inquiries are politically motivated.
A Deluzio spokesperson said in a statement that “it’s obvious that this Administration is engaged in a harassment campaign against their political rivals,” and vowed that he “won’t be intimidated.” Houlihan argued they were targeted “not because we said something untrue, but because we said something President Trump and Secretary Hegseth didn’t want anyone to hear.”
Here’s what we know about the situation:
What did the Democrats say about “illegal orders”?
In the social media video, the congressional Democrats — all of whom are either military veterans or former intelligence analysts — accused the Trump administration of “pitting our uniformed military and intelligence community professionals against American citizens.”
They continued: “Our laws are clear. You can refuse illegal orders. … You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.”
The lawmakers didn’t specify what orders they had in mind, but Crow and Kelly expanded on their thinking in November interviews on CBS News’ “Face the Nation with Margaret Brennan.”
Kelly said he was concerned about prior statements by Mr. Trump that he believes show a willingness to use the military in illegal ways, including the president’s suggestions to kill terrorists’ families and — according to a former defense secretary — shoot protesters in the legs. Crow cited the president’s push to deploy the National Guard to Chicago.
The video also came out during a monthslong campaign of strikes on alleged drug-carrying boats in the Caribbean and Eastern Pacific and a military buildup in the Caribbean that culminated in a mission to capture Venezuelan President Nicolás Maduro.
George Washington University law professor Laura Dickinson told CBS News last month the Democrats in the video appeared to be correct on what the law says about illegal orders.
She said troops must follow legal orders, but they aren’t required to follow unlawful ones, and in certain cases, when orders are “manifestly unlawful,” they are required to disobey them.
She pointed to the case of Army Lt. William Calley, who was convicted of murder for his role in the My Lai massacre during the Vietnam War, despite arguing that he was following an order.
Trump alleges “seditious behavior”
President Trump and his allies lashed out at the Democratic lawmakers soon after the video was released. The president called it “SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL” and called for them to be “ARRESTED AND PUT ON TRIAL” in one Truth Social post.
Hegseth called the video “despicable, reckless, and false.”
“Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of ‘good order and discipline,'” Hegseth wrote on X in November. “Their foolish screed sows doubt and confusion — which only puts our warriors in danger.”
On Tuesday, Hegseth called Kelly “worried and cranky,” and said he “will be held to account.”
Mark Kelly faces military demotion
The only lawmaker to face concrete government action over the video so far is Kelly, who Hegseth said was eligible for punishment because he still receives a military pension.
Hegseth announced last week that the Pentagon would formally censure Kelly, who retired from the military as a captain, starting the process to reduce his rank and retirement pay.
The Pentagon had previously threatened “court-martial proceedings or administrative measures” against Kelly last year. It’s not clear if a court-martial is still on the table.
Democrats allege “persecution” and “intimidation”
Kelly responded to the military’s moves to demote him earlier this week by filing a lawsuit against Hegseth, accusing him of unconstitutional retaliation.
The 46-page legal complaint argued Kelly has faced “extreme rhetoric and punitive retribution” for exercising his First Amendment rights and carrying out his duties as a senator.
The other five Democrats have leveled similar criticisms. Several of the lawmakers have also said they faced an uptick in death threats after Mr. Trump began lashing out in November.
Slotkin, a former CIA analyst, released a video Wednesday alleging Mr. Trump was “using his political appointees at the FBI and the Department of Justice to follow through with his threats,” referring to it as “intimidation meant to get you to shut up.”
Crow told reporters Wednesday that the Trump administration was trying to “silence their political opponents and suppress dissent.”
“But we are members of Congress. We will do our duty,” said Crow, a former Army Ranger. “We took an oath to this country to enforce the law, and that is exactly what we are going to do, and we will not allow any president to intimidate us and threaten us and dissuade us from performing our duty and fulfilling our oath.”
Goodlander said in a statement: “It is sad and telling that simply stating a bedrock principle of American law caused the President of the United States to threaten violence against me, and it is downright dangerous that the Justice Department is targeting me for doing my job.”
What does the law say about charging the lawmakers?
Legal experts have told CBS News that criminally charging the Democrats could be difficult.
Mr. Trump has shared posts alleging the members of Congress violated a federal law that targets anyone 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.” That law carries a 10-year maximum prison sentence.
But Dickinson, the George Washington University law professor, told CBS News last year that law sets a “very high intent requirement” that’s “very difficult to prove.”
Charges of “sedition” could also prove difficult. Federal law defines seditious conspiracy as when at least two people “conspire to overthrow, put down, or to destroy by force” the U.S. government, or conspire by force to “prevent, hinder, or delay the execution of any law.”
That could run into roadblocks because the lawmakers didn’t use force, Mitchell Epner, a former federal prosecutor and partner at the law firm Kudman Trachten Aloe Posner, said last month.
“If you do not use force — if you use trickery, if you use political persuasion — you are not committing sedition,” Epner said.
Any potential prosecution could also run into First Amendment issues, and the Democrats could attempt to argue they are protected by a clause in the Constitution that bars lawmakers from being charged for “Speech and Debate in either House.”
“The Constitution sets a very, very, very high bar for the criminal prosecution of speech, and especially political speech,” noted Dickinson.
https://www.cbsnews.com/news/trump-administration-investigates-5-democratic-lawmakers-over-their-video-message-to-troops/
