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On Thursday, President Donald Trump lashed out at six members of Congress, all with military and national security backgrounds, who publicly stated that members of our armed forces have a legal (and moral) duty to refuse to carry out illegal orders. They reminded the American public that people entering the armed services and national security services take an oath “to support and defend the Constitution.” They are obligated under U.S. law and international law not to commit war crimes, not to murder civilians, and not to commit crimes against humanity.
The president declared on Truth Social that the statements by these senators and representatives, all of whom are veterans of service to the United States, constituted “SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL” and that “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL,” asserting that their statements were “punishable by DEATH!” and that the government should “HANG THEM GEORGE WASHINGTON WOULD !!”
Oddly, the president believes that it is criminal to urge members of the armed forces or the intelligence community to uphold the Constitution, respect the oath they took, and obey the law. Never having served in the military, the president seems not to understand that those who risk their lives to defend our nation have a legal obligation to “refuse illegal orders,” as stated by Sen. Mark Kelly, a former naval captain (which is the equivalent of a colonel in the other services). The commander in chief seems to have something different in mind for the oaths of the service members under his command. It’s unclear what that is, but certain history comes to mind. In Nazi Germany, for instance, soldiers took a “holy oath” of “unconditional obedience to the Leader of the German Reich and people, Adolf Hitler, supreme commander of the armed forces.” Civilians took a similar oath. Our servicemen and women, by contrast, take an oath, not to any leader but to the law and the Constitution.
This is not the first time this president has accused people of “treason” or “sedition” when he disagrees with them. A short lesson on these terms is useful.
Treason is the only crime defined in the U.S. Constitution. Article III, Section 3 of the Constitution states that treason consists of an “overt Act” of “levying War against” the United States or “adhering to” the “Enemies [of the United States], giving them Aid and Comfort.” Speech is emphatically not an overt act. In England you could be tried for treason for declaring the king should be executed or even drawing a picture of a man hanging with the king’s name under the picture. It was called “constructive treason,” because there was no act, but courts construed such forms of speech to be treasonous. The Framers of the Constitution emphatically rejected the idea that speech or even advocacy constituted treason.
The representatives and senators who spoke out were not “levying War” against the United States. They were discussing public policy and existing law. They were not “adhering” to the “Enemies” of the United States, in part because our nation is at peace, there is no declared war, and we currently have no “enemies” in the legal and constitutional sense. One can commit treason today by physically attacking the nation or trying to overthrow the government.
Sedition, meanwhile, is an active assault on the government, an attempt to overthrow the government by force of arms. Again, this is not about mere words. In 1798 Congress passed a notorious sedition act, making it a crime to “print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States … or the President … with intent to defame the said government, or … Congress, or the said President, or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States, or to stir up sedition within the United States.” That law expired in 1801 and was never reenacted. President Thomas Jefferson pardoned everyone convicted under it, and Congress passed a law to remit the fines they paid. It is considered a disgraceful example of oppression. In 1918 a new law (often called the Sedition Act of 1918) criminalized “disloyal, profane, scurrilous, or abusive language” about the government, the flag, or the armed forces. Congress repealed the law in 1920, and President Woodrow Wilson pardoned almost everyone convicted under it.
One can commit sedition by overt acts—bombing a federal building, being part of a mob that attacks Congress, organizing to do so, or even publicly urging a crowd to do so. But criticizing the government is not sedition. It is free speech protected by our Constitution, and free speech is central to our democracy.
Our democracy is threatened when leaders, like the president, hurl inflammatory language—like “traitor,” “treason,” or “sedition”—at their opponents. It is neither treason nor sedition when members of Congress urge those in the military and in civilian service to obey the law and protect and defend the Constitution.
