If tried by court-martial , senator accused of ‘seditious behavior’ would be deprived of several constitutional rights |
The Department of Defense in late November 2025 announced that it would investigate U.S. Sen. Mark Kelly, a retired Navy captain and NASA astronaut, for what Secretary of Defense Pete Hegseth has called seditious behavior. The threat of investigation came after Kelly and five other Democrats, all with military backgrounds, released a video reminding U.S. service members they can disobey illegal orders issued by the Trump administration.
“No one has to carry out orders that violate the law, or our Constitution,” the lawmakers said, without specifying the orders the U.S. service members may have received. “Know that we have your back … don’t give up the ship.”
In response to the video, President Donald Trump accused the lawmakers of “seditious behavior” that could be “punishable by death.”
Sedition is a federal crime, but as a military law scholar who served as a judge in the U.S. Air Force, I believe the Democratic lawmakers articulated a correct view of military law. That is, service members subject to the Uniform Code of Military Justice have a duty to not obey unlawful orders.
There are several unique features to military law that have no analog to civilian criminal law, and if Kelly were court-martialed he would be deprived of several fundamental constitutional rights.
In a civilian criminal trial the government normally has the burden of proof on all matters. But in a court-martial, a service member who argues that an order is unlawful has the burden of proving its unlawfulness. And the Supreme Court, in its 1827 opinion in