Accusations of "sedition" spark uproar. Here's what the law says.

Six Democratic lawmakers are facing national inquiries aft they recorded a video urging subject work members not to travel unlawful orders, a connection President Trump alleged was "seditious."

"Our laws are clear: You tin garbage amerciable orders. … You indispensable garbage amerciable orders," said the Democrats, each of whom served successful the subject oregon worked for U.S. quality agencies.

Mr. Trump responded connected Truth Social past week: "Each 1 of these traitors to our Country should beryllium ARRESTED AND PUT ON TRIAL."

Days later, the Pentagon said it was reviewing "serious allegations of misconduct" against 1 of the lawmakers, Sen. Mark Kelly of Arizona, and whitethorn callback the retired naval skipper to active-duty presumption for "court-martial proceedings oregon administrative measures." Defense Secretary Pete Hegseth later said that Kelly was the lone lawmaker who falls nether Pentagon jurisdiction since the others either worked for the CIA oregon didn't discontinue from the military.

The different 5 lawmakers said Tuesday that the FBI had notified them of an inquiry. In a associated statement, 4 House members said the bureau asked the House and Senate sergeant astatine arms to put interviews with them.

The Democrats person stood by their connection and condemned Mr. Trump, and they've said they're facing an uptick successful threats. They reason the video's extremity was to bring attraction to immoderate uses of the subject floated by Mr. Trump implicit the years that they presumption arsenic illegal, similar his 2016 suggestion to termination the families of terrorists oregon his menace — inactive legally contested — to send troops to Chicago.

Meanwhile, Hegseth has argued the video "sows uncertainty and disorder — which lone puts our warriors successful danger."

Here's what to cognize astir the ineligible context:

What is seditious conspiracy?

Mr. Trump has besides repeatedly referred to the lawmakers' connection arsenic "seditious behavior."

Federal instrumentality defines seditious conspiracy arsenic erstwhile astatine slightest 2 radical "conspire to overthrow, enactment down, oregon to destruct by force" the U.S. government. It besides covers those who conspire by unit "to prevent, hinder, oregon hold the execution of immoderate instrumentality of the United States," oregon "to seize, take, oregon person immoderate spot of the United States." It's punishable by up to 20 years successful prison.

The astir caller high-profile seditious conspiracy charges came successful the aftermath of the Jan. 6, 2021, battle connected the Capitol. Several members of the far-right Proud Boys and Oath Keepers were convicted of the transgression for their actions during the riot, but Mr. Trump commuted their situation sentences hours aft returning to office. Most riot defendants were charged with lesser offenses.

Beyond that, seditious conspiracy charges are not particularly common. Some 15 years ago, national prosecutors successful Michigan utilized it for members of a militia radical called the Hutaree who were accused of plotting a spate of convulsive attacks connected police, but the seditious conspiracy counts were dismissed. And 30 years ago, Omar Abdel-Rahman — known arsenic the "blind Sheikh" — was convicted of seditious conspiracy for a plot to weaponry New York landmarks.

Pentagon cites subject insubordination law

The Defense Department has appeared to zero successful connected a abstracted instrumentality that's successful the aforesaid section of the U.S. national code, focused specifically connected "activities affecting equipped forces." 

In a message Monday vowing an probe into Kelly, the Pentagon reminded retired work members that they are inactive taxable to the law, known arsenic 18 U.S.C. § 2387. Mr. Trump has besides shared social media posts alleging the members of Congress violated that law.

The statute threatens a 10-year maximum situation condemnation for anybody who "advises, counsels, urges, oregon successful immoderate mode causes oregon attempts to origin insubordination, disloyalty, mutiny, oregon refusal of work by immoderate subordinate of the military." The instrumentality requires intent to "interfere with, impair, oregon power the loyalty, morale, oregon subject of the military."

Can the lawmakers beryllium charged?

Some ineligible experts accidental it could beryllium hard to prosecute the six Democratic lawmakers connected seditious conspiracy charges.

Mitchell Epner, a erstwhile national authoritative and spouse astatine the instrumentality steadfast Kudman Trachten Aloe Posner, told CBS News the "No. 1 occupation with this contention that the six members of Congress … committed sedition is: they didn't usage force."

"If you bash not usage unit — if you usage trickery, if you usage governmental persuasion — you are not committing sedition," Epner said.

As for the instrumentality connected trying to origin insubordination successful the military, Dickinson believes the lawmakers' statements don't acceptable into that statute. She said the instrumentality sets a "very precocious intent requirement" due to the fact that it specifies that defendants request to mean to impair the loyalty oregon morale of work members, which Dickinson said is "very hard to prove."

Lawful oregon unlawful orders?

Legal experts besides constituent to the information that the six Democrats encouraged work members to garbage to travel "illegal" orders — not lawful ones. 

George Washington University instrumentality prof Laura Dickinson said the Democrats appeared to beryllium close connected the law. She said members of the subject indispensable travel ineligible orders, but they aren't required to travel unlawful ones, and successful definite cases erstwhile orders are "manifestly unlawful," they are required to disobey them. 

She pointed to the lawsuit of Army Lt. William Calley, who was convicted of murder for his relation successful the My Lai massacre during the Vietnam War, contempt arguing that helium was pursuing an order.

"This is not astir 'lay down your arms, we deliberation this is an immoral war,'" said Jon Michaels, a instrumentality prof astatine the University of California, Los Angeles. "This is, 'we deliberation your commanding serviceman is giving you an [unlawful] directive. We deliberation you cognize that, and we're providing you immoderate grade of governmental cover.'"

The Trump administration's presumption is that the president hasn't issued immoderate unlawful orders. "They're suggesting … the president has fixed amerciable orders, which helium has not," White House property caput Karoline Leavitt told CBS News main White House analogous Nancy Cordes.

"Speech and Debate" clause arsenic defense

And the lawmakers whitethorn constituent to a clause successful the Constitution that bars senators and representatives from being prosecuted for "Speech and Debate successful either House." That clause "most intelligibly applies erstwhile they are connected the floor" of Congress, but it "arguably applies erstwhile they are referring to legislation," said Dickinson.

A prosecution could besides tally into First Amendment issues, said Dickinson, who explained: "The Constitution sets a very, very, precise precocious barroom for the transgression prosecution of speech, and particularly governmental speech."

Investigation of the statements warranted?

F. Lee Francis, a Widener University instrumentality prof and erstwhile subordinate of the Army's Judge Advocate General Corps, believes an probe into the statements could beryllium warranted.

"I deliberation immoderate clip you person subject work members, particularly those who are retired oregon active-duty, undermining the commandant successful chief, the president of the United States, that is thing that would airs a unspeakable inclination and could outgo lives. It could injure our reputation. It could surely person an effect connected our nationalist security," said Francis. "So, I surely deliberation the DoD should beryllium looking into things similar this."

But Dickinson said the threats of prosecution "could importantly chill speech."

"I bash not deliberation they were misstating the law," she said, "but regardless, they should beryllium escaped to speak, and they should not beryllium criminally prosecuted for speaking."