U.S. Sen. Elissa Slotkin, D-Mich. Stupid Is Not a Criminal Offense

The posting of a video urging members of the military to disobey “illegal orders” has generated public comment across the political spectrum. Some have called for criminal prosecution of the “Seditious Six.” Others have defended the two Senators and four Representatives and applauded their efforts to remind the troops of their duty to disobey illegal orders. The FBI has, reportedly, launched an investigation. The Pentagon announced it was looking into whether Sen. Mark Kelly, a retired Navy captain, should be recalled to active duty and face military discipline for his participation in the video.

Lost in most of the competing commentary is any detailed analysis of whether making and posting the video was a criminal offense as opposed to a juvenile and attention-grabbing political stunt intended to bolster the Democrat strategy of resisting everything Trump says and does and raise funds.

As a retired Naval officer, Mark Kelly is still subject to the Uniform Code of Military Justice and, theoretically, could be recalled to active duty to face military discipline. The discipline could range from administrative action, such as a letter of reprimand, to a general court-martial for violating Art. 134, UCMJ, insofar as it incorporates 18 U.S.C. § 2387 which punishes actions taken with an “intent to interfere with, impair, or influence the loyalty, morale, or discipline” or Art. 94, UCMJ, which punishes mutiny.

I say theoretically, because the Supreme Court has not directly addressed the degree and extent to which retired service members are subject to military jurisdiction. But complicating the issue with Sen. Kelly is that he is a sitting United States Senator. Serving on active duty as a Navy captain, however, makes him a member of the executive branch. The incompatibility clause of Art. I, Sec. 6, of the Constitution provides, “no person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” In other words Mark Kelly cannot be Senator Kelly and Captain Kelly, USN, at the same time.

The Supreme Court has not directly addressed this scenario, and Congress has acquiesced in members holding military commissions in the National Guard. An order recalling Sen. Kelly to active duty would, however, directly implicate the incompatibility clause and, no doubt, face an immediate lawsuit. It is doubtful the Senate would vote to expel Sen. Kelly to honor the incompatibility clause if he was involuntarily recalled to active duty. Sen. Kelly might seek injunctive relief from the courts to preclude his involuntary recall precisely because the recall would run afoul of the incompatibility clause.

The recall order would also seem to be picking a fight for no legitimate reason. If the contemplated disciplinary action is based on Art. 134’s incorporation of 18 U.S.C. § 2387, recalling Sen. Kelly to active duty just complicates the process. 18 U.S.C § 2387 applies to everyone. If a United States Attorney in the appropriate jurisdiction can secure a grand jury indictment against Sen. Kelly for violating that statute, the case would proceed just like any other federal criminal prosecution. Recall to active duty would not be required.

A court-martial for violating Art. 94, UCMJ, would require a recall to active duty because it does not apply to civilians. The elements of the offense, however, require the accused to either disobey orders himself, intend to overthrow lawful civil authority by conspiring with others to create a “revolt, violence, or other disturbance,” or fail to prevent a mutiny committed in his presence. The video, while misleading and odious, does not rise to the level contemplated by Art. 94. Perhaps Alvin Bragg or Letia James could fashion a charge under Art. 94 based on the video, but I doubt a military Judge Advocate would do so.

While Sen. Kelly is the only one of the six to be subject to recall into the military, the remaining participants in the video are, like Sen. Kelly, still subject to 18 U.S.C. § 2387. Should a United States Attorney with appropriate jurisdiction convince a grand jury that there is probable cause to believe they produced and posted the video with “intent to interfere with, impair, or influence the loyalty, morale, or discipline” of members of the military, they each could face indictment.

Complicating such a prosecution, however, is the requirement to prove beyond a reasonable doubt the specific intent to interfere, impair, or influence the loyalty, morale, or discipline of members of the military. The six participants in the video have publicly asserted their intent was merely to remind members of the military of their obligation to not follow illegal orders and they have specifically rejected accusations they were attempting to subvert discipline. Ultimately, this is a question for a jury, but experienced criminal litigators will agree that predicting how a jury would view this evidence is a crap shoot.

Like anyone else facing a prosecution under 18 U.S.C. § 2387, Sen. Kelly and his colleagues, would, no doubt, invoke their right to free speech under the First Amendment. All they did, the argument goes, is to remind members of the military of the well-established legal principle that “I was just following orders” is no defense to a criminal prosecution and that illegal orders must be disobeyed.

In addition to the First Amendment defense, these sitting members of the Senate and House, no doubt, will raise the speech and debate clause as providing immunity from prosecution. While the speech and debate clause clearly protects members from criminal prosecution for “legislative acts,” it does not shield personal or private acts from prosecution. The argument here will be that publishing the video was in furtherance of their congressional duties to oversee the military as members of the branch of government with the constitutional authority to make the rules governing the land and naval forces. The flip side is that the video was just a bit of political theatre that had nothing to do with any legislative act or responsibility. Time and the slow grinding of the wheels of justice will ultimately decide the issue, if a change of administrations doesn’t intercede and dismiss any pending actions before final resolution.

Other statutes mentioned by the commentariat that the video may implicate are 18 U.S.C. § 2383, which punishes one who “invites, assists, [or engages in] . . . rebellion or insurrection,” and 18 U.S.C. § 2384, that prohibits “seditious conspiracy” to overthrow the government “by force.” It seems a long shot to establish the video as one that invites, assists, or engages in a rebellion or insurrection. To be sure, some have argued that the video encourages the men and women of the armed forces to disobey the legal orders of their superiors, which is certainly detrimental to good order and discipline. Rebellion or insurrection are characterized by a rejection of the established authority. The weakness of that argument as applied to the video, however, is that the admonition was to refuse to obey “illegal orders.” The words used, as opposed to the interpretation some have urged, do not seem to cross the line. The standard for conviction in federal criminal cases is high for a reason. We do not want it to be too easy to deprive someone of their life or liberty. A conviction of violating 18 U.S.C. § 2383 is hardly a slam dunk.

The same must be said for a conviction under 18 U.S.C. § 2384. To convict under this statute the prosecution must prove beyond a reasonable doubt that the “seditious conspiracy” was furthered by force. Obviously, the video is devoid of any evidence of force or the threat of force.

While a criminal conviction of any of the video’s participants in my opinion is highly unlikely, it does not follow that the video was a legitimate or benign act for the salutary purpose of reminding members of the military of their obligation to refuse illegal orders.

To think that this video serves an educational purpose for members of the military reveals a fundamental misunderstanding of and a lack of respect for the men and women who are serving. Members of the military know that illegal orders must not be obeyed. They also know that orders are presumed legal unless a person of ordinary sense and understanding would recognize the order as illegal. Completely absent from the video was any attempt to provide a framework or guide for determining whether an order was illegal.

Reminding soldiers of their obligation to disobey illegal orders without providing illustrations, examples, context, and guidelines is a useless exercise, at best, and one that misleads them, at worst. Every training session members of the military receive on this topic always includes examples and illustrations of orders that a person of ordinary sense and understanding would find illegal. Lieutenant Calley’s order to murder civilian in My Lai and the atrocities for which members of the Nazi high command were prosecuted for in Nuremberg are the classic examples.

The speakers in the video also failed to caution their audience that they assume the risk of disobeying an order because they think it is illegal. The legality of the order will not be resolved until after the appellate process following a conviction for disobeying an order is completed. If the military courts conclude the order was legal, the punishment for disobedience can be quite severe. Reminding soldiers of their obligation to disobey illegal orders without informing them of the risks is setting them up for serious consequences.

Finally, the claim that these two Senators and six Representatives will “have their back” if members of the military get in trouble for disobeying an order is laughable. While the Senators and Representatives are members of a body that has responsibility for oversight of the military, individually the only authority they have is to cast a vote on a given bill. They cannot order the military to drop charges for disobedience against a soldier. They have no authority to reverse or overrule a military court’s decision that an order was legal and should have been obeyed. They cannot unilaterally set aside a demotion in grade, forfeiture of pay and allowances, or a punitive discharge.

The claim in the video that these six elected officials will have the back of members of the military who find themselves in trouble for following the shallow, misleading, and ill-advised advice in the video is the ultimate proof that this was not a serious effort to educate the troops. Rather, it was a juvenile, stupid, and transparent attempt at scoring political points against an administration they don’t like and have decided to resist at all costs. But there is no federal law against stupid and juvenile political stunts.

is a professor of law emeritus and a retired Army lawyer. As an Army lawyer, he served as chief of the Army Litigation Division and was responsible for defending the Army’s interests in civil litigation involving Army policies, programs, and operations.

This article was originally published by RealClearDefense and made available via RealClearWire.