Trump’s Illegal Orders: Sedition Claims and Grand Jury Refusal

In November 2025, six Democratic members of Congress with military or intelligence backgrounds posted a video reminding U.S. service members that they are not required to carry out unlawful orders. President Donald Trump called the video sedition punishable by death, and his Justice Department tried to indict the lawmakers. On February 10, 2026, a federal grand jury in Washington refused to return an indictment, and a separate attempt by Defense Secretary Pete Hegseth to strip Senator Mark Kelly of his retired rank was blocked by a federal judge two days later. The Trump illegal orders sedition episode produced no criminal charges and no military punishment, and the courts that reviewed it found the lawmakers’ speech protected.

What the Video Said

On November 18, 2025, Senators Elissa Slotkin of Michigan and Mark Kelly of Arizona, along with Representatives Jason Crow of Colorado, Maggie Goodlander of New Hampshire, Chris Deluzio of Pennsylvania, and Chrissy Houlahan of Pennsylvania, released a short video on social media. All six had served in the military or the intelligence community. Speaking to current service members, they said: “No one has to carry out orders that violate the law, or our Constitution. Know that we have your back… don’t give up the ship.” They described “threats to our Constitution” as coming “from right here at home” and urged troops to “refuse illegal orders.”¹

Senator Slotkin later described the video as a warning: if troops were asked to do something potentially illegal, especially against American citizens, they could consult a judge advocate general officer and push back.²

The Duty to Refuse Unlawful Orders Is Already Military Law

The core premise of the video is written into the Uniform Code of Military Justice. Under Article 92, service members are required to obey “lawful” orders. The qualifier matters: manifestly illegal orders are not covered by the duty to obey, and troops may refuse them.³

Researchers at the University of Massachusetts Amherst’s Human Security Lab surveyed 818 active-duty service members between June 13 and June 30, 2025. About 80% said they understood they had a duty to disobey illegal orders. Only 9% said they would “obey any order.” Roughly a quarter defined unlawful orders as those that are “obviously wrong,” “obviously criminal,” or “obviously unconstitutional.” The most commonly cited example of an order troops said they would refuse was “harming civilians,” named by 26% of respondents.⁴

Trump’s Sedition Accusations

Trump responded on November 20, 2025, with a series of posts on Truth Social. He wrote: “SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???” and “SEDITIOUS BEHAVIOR, punishable by DEATH!” He reposted another user’s message that read: “HANG THEM GEORGE WASHINGTON WOULD !!” In a separate post he wrote: “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand. An example MUST BE SET.”⁵⁶

White House press secretary Karoline Leavitt said the president was not calling for the execution of members of Congress, but argued the lawmakers had “conspired” to encourage troops to “defy the president’s lawful orders” and that their message was “very, very dangerous” and “perhaps is punishable by law.” The next day, on Fox News, Trump said: “I’m not threatening death, but I think they’re in serious trouble.”⁵

House Democratic leadership — Minority Leader Hakeem Jeffries, Minority Whip Katherine Clark, and Caucus Chair Pete Aguilar — condemned the posts as “disgusting and dangerous death threats” and said they were working with the House Sergeant at Arms and U.S. Capitol Police on security for the six lawmakers. Senate Minority Leader Chuck Schumer said from the Senate floor that the president was “lighting a match in a country soaked with political gasoline.”⁷

The Grand Jury Refused to Indict

The Justice Department moved to prosecute. The case was handled by the U.S. Attorney’s Office for the District of Columbia, then led by Jeanine Pirro, a former Fox News host. It was pursued by political appointees — special counsels Carlton Davis and Steven Vandervelden — rather than career prosecutors.⁸

Prosecutors sought charges under 18 U.S.C. § 2387, a statute covering sedition and subversive activities aimed at the armed forces that carries a maximum ten-year sentence.⁹ On February 10, 2026, a federal grand jury in Washington, D.C., rejected the request for an indictment. According to NBC News, prosecutors failed to convince a single juror that they had met the probable cause threshold.¹⁰ The New York Times reported that the grand jury “forcefully rejected” the attempt to criminalize the lawmakers’ speech.¹¹

Former U.S. Attorney Preet Bharara, representing Slotkin, said prosecutors “could not articulate any theory of possible criminal liability or identify any statute” that the lawmakers had violated. Defense attorneys Abbe Lowell and Paul Fishman called the prosecution a “breathtaking and unprecedented” abuse of power.⁸ Legal experts had noted from the outset that the video raised serious First Amendment questions and that the Constitution’s Speech or Debate Clause grants lawmakers immunity from prosecution for acts within the legislative sphere.¹⁰

After the grand jury’s rejection, Pirro’s office shelved the inquiry. The New York Times reported that although the case was inactive, the Justice Department could potentially attempt to reopen it elsewhere.¹² Pirro refused to say whether she had spoken with the president about the case and posted multiple messages on social media praising Trump during the investigation, including one stating that criminal cases were being brought “[u]nder the directive of @POTUS.”⁸

The Pentagon Went After Mark Kelly Separately

While the criminal case was pending, Defense Secretary Pete Hegseth opened a parallel track against Senator Kelly, a retired Navy captain, former combat pilot, and former astronaut. On January 5, 2026, Hegseth issued a formal letter of censure alleging that Kelly had undermined the chain of command, counseled disobedience, and engaged in conduct unbecoming an officer. Hegseth also began proceedings to reduce Kelly’s retirement rank and pay, citing 10 U.S.C. § 1370(f), which allows the secretary to reopen a retired grade determination for “good cause,” and alleging violations of Articles 133 and 134 of the Uniform Code of Military Justice.¹³¹⁴

Rachel VanLandingham, a retired Air Force lieutenant colonel and former judge advocate, said: “It’s just never been done.” Kelly’s own complaint stated that “a sitting Member of Congress has never been subject to military punishment based solely on his speech.”¹⁵ Kelly said publicly that the action was meant to send a message “to every single retired service member that if they say something he or Donald Trump doesn’t like, they will come after them the same way.”¹³

On January 12, 2026, Kelly sued in the U.S. District Court for the District of Columbia. Kelly v. Hegseth raised claims under the First Amendment, the Speech or Debate Clause, separation of powers, and the Administrative Procedure Act, arguing the censure was “subject to strict scrutiny because they seek to punish Senator Kelly based on the content and viewpoint of his speech,” and that he was a civilian member of Congress, not an active-duty officer.¹⁵

On February 12, 2026, U.S. District Judge Richard Leon granted a preliminary injunction blocking the Pentagon from reducing Kelly’s rank or pension. Judge Leon found that Kelly’s speech was “unquestionably protected” and that he was “likely to succeed on the merits” of his First Amendment claim. Leon wrote that Hegseth had “trampled” on Kelly’s rights and “threatened the constitutional liberties of millions of military retirees,” adding: “Hopefully this injunction will in some way help bring about a course correction in the defense department’s approach to these issues.”¹⁶ Hegseth appealed to the D.C. Circuit, where the case remained active as of mid-2026.¹⁷ The censure letter against the other five lawmakers was not reported to have produced parallel Pentagon action; the record covers Kelly specifically.

The Policy Dispute Behind the Video

The lawmakers made the video while federal courts were already finding the administration’s domestic military deployments unlawful. On September 2, 2025, U.S. District Judge Charles Breyer of the Northern District of California ruled that the deployment of National Guard troops and Marines to Los Angeles for law enforcement operations violated the Posse Comitatus Act, the 1878 statute barring the military from civilian policing.¹⁸

Breyer found that troops operating as “Task Force 51” had conducted raids on cannabis farms, set up traffic blockades alongside federal agents, and performed activities indistinguishable from civilian law enforcement. Bystanders “at multiple locations and even federal officials at trial were unable to distinguish Task Force 51 troops from federal law enforcement agents,” he wrote. He concluded that Trump, Hegseth, and the Department of Defense “violated the Posse Comitatus Act willfully” as part of a “top-down, systemic effort” to use the military to enforce federal drug and immigration laws, creating what Breyer called a “national police force with the president as its chief.”¹⁹²⁰ The Brennan Center noted it was the first time a court had issued an injunction to stop a Posse Comitatus Act violation. The administration appealed to the Ninth Circuit the next day, and Breyer stayed his order until September 12 to allow the appeal to proceed.²¹

The Supreme Court addressed a related deployment in Trump v. Illinois, decided 6-3 on December 23, 2025. The Court ruled that the president lacked authority to federalize 300 Illinois National Guard troops for deployment in the Chicago area. The administration had invoked 10 U.S.C. § 12406(3), arguing it was “unable with the regular forces to execute the laws” due to protests at an ICE processing facility in Broadview, Illinois. The majority held that “regular forces” refers to the active-duty military, and the administration had failed to show those forces were insufficient. The district court had found the administration’s account of conditions at the facility “not reliable” and warned of a “troubling trend” of officials “equating protests with riots.”²²²³

Those rulings are the practical context for the lawmakers’ message. They were not telling troops to ignore the president in general; they were telling them that specific orders, of the kind federal judges had already labeled unlawful, could be refused under existing military law. No court that reviewed the video treated it as sedition, and no court that reviewed punishment aimed at the speakers allowed that punishment to stand.

1
CNN. Democratic Lawmakers Urge Troops to Disobey Illegal Orders
2
FactCheck.org. Experts Say Democratic Video Not Seditious as Trump Claims
3
Office of the Law Revision Counsel. 10 USC § 892 – Art. 92. Failure to Obey Order or Regulation
4
The Conversation. 4 Out of 5 US Troops Surveyed Understand the Duty to Disobey Illegal Orders
5
BBC News. Trump Accuses Democratic Lawmakers of Seditious Behaviour
6
Government Executive. Trump Accuses Lawmakers of Seditious Behavior for Encouraging Troops to Refuse Illegal Orders
7
Politico. Trump Sedition Accusations Against Democratic Lawmakers
8
NBC News. Jeanine Pirro’s Office Shelves Pursuit of Democrats Over Social Video
9
BBC News. Grand Jury Declines to Indict Democrats Over Troops Video
10
NBC News. DOJ Fails to Secure Indictment of Democrats Involved in Illegal Orders Video
11
The New York Times. Grand Jury Rejects Trump DOJ Bid to Indict Democrats Over Illegal Orders Video
12
The New York Times. Pirro Inquiry Into Video by Democratic Lawmakers Shelved
13
The Hill. Hegseth Kelly Rank Reduction Fight
14
USNI News. Federal Law Could Limit Pentagon’s Punishment for Mark Kelly, Experts Say
15
First Amendment Encyclopedia. Mark Kelly v. Pete Hegseth
16
The Guardian. Judge Blocks Hegseth From Reducing Mark Kelly’s Military Rank
17
FIRE. Kelly v. Hegseth
18
NPR. A California Judge Rules That Trump’s Deployment of the Guard to LA Was Illegal
19
ABC News. Federal Troops in Los Angeles Unlawful, Judge Rules
20
Brennan Center for Justice. Court Finds Trump’s Use of Soldiers in Los Angeles Illegal
21
ABC7 Los Angeles. California Trump Administration Appeals Ruling on Troop Deployment in Los Angeles
22
Brennan Center for Justice. Trump v. Illinois: A Narrow Supreme Court Decision With Broad Implications
23
ACLU. ACLU Statement on Supreme Court Blocking President Trump’s Troop Deployment to Illinois