Trump’s sedition threat against members of Congress is unconstitutional | Opinion
Truthful speech is protected by the First Amendment and should not be the basis for accusing people of sedition, let alone threatening the death penalty. This seems obvious, but on Thursday, Nov. 20, President Donald Trump responded to a video by six members of Congress by posting: “SEDITIOUS BEHAVIOR, punishable by DEATH!”
What did the members of Congress do to deserve this threat of capital punishment? They posted a 90-second video on social media that spoke to members of the military and intelligence communities about their oath to the Constitution. The part of the video that drew Trump’s ire was this remark: “This administration is pitting our uniformed military and intelligence community professionals against American citizens. ... Our laws are clear: You can refuse illegal orders. ... No one has to carry out orders that violate the law or our Constitution.”
The law is clear that everything in these statements is accurate and truthful. Service personnel take an oath to uphold the Constitution and are instructed that they must disobey manifestly illegal orders. Article 92 of the Uniform Code of Military Justice, dealing with failing to obey orders, states that members can only be sanctioned for disobeying lawful orders. And service members are generally obligated to not follow orders that are “manifestly unlawful.” Similarly, the Department of Defense Law of War Manual, Section 18.6.1, explicitly states that service members must obey only lawful orders and must not obey orders violating the law of war.
White House Press Secretary Karen Leavitt criticized the members of Congress, saying, “They are literally saying to 1.3 million active-duty service members to defy the chain of command — not to follow lawful orders.” But that is not at all what the members of Congress said. They were careful in their words to simply state the law: members of the military are not required to — and should not follow — illegal orders.
Accusing members of Congress of sedition and treason and calling for them to be sentenced to death is unheard of in the United States. Sedition is the crime of plotting or inciting the overthrow of the government. Seditious conspiracy — planning the overthrow of the government — is a federal crime. But speech criticizing the government, or encouraging people to follow the law, is protected by the First Amendment and cannot be a basis for conviction and punishment.
In 1798, Congress passed the Alien and Sedition Act, which made it a federal crime to falsely criticize the government or government officials. Opponents of President John Adams were prosecuted and convicted under this law. Thomas Jefferson ran for president in 1800, in part on a promise to repeal this law and pardon those convicted under it. After his election, this is exactly what occurred.
Many years later, in New York Times Company v. Sullivan (1964), the Supreme Court explained that the Alien and Sedition Act was inimical to the First Amendment and had been declared unconstitutional in the “court of history.”
The Trump presidency requires that we think about the guardrails of democracy. He is using the military in unprecedented and illegal ways: to engage in domestic law enforcement in cities in violation of the Posse Commitatus Act and to destroy boats without notice in violation of international law. It is why it is important to remind members of the military that they should not follow illegal orders.
This is not the first time that Trump has talked of using the military in illegal ways. During his 2016 campaign, Trump suggested having the military torture people and kill terrorists’ families. When it was posited that troops would not follow such illegal orders, Trump responded: “If I say do it, they’re gonna do it.”
In 2018, Trump’s first Secretary of State, Rex Tillerson, said publicly after his departure that Trump had repeatedly tried to do illegal things. In 2019, Homeland Security Secretary Kirstjen Nielsen resigned after clashing with Trump over his repeated desires to do things she thought might be illegal.
It is in this context that it is understandable that members of Congress and others feel the need to remind those in the military that their oath is to the Constitution — not to a particular president. That is not sedition. It is speech that is unquestionably protected by the First Amendment.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
This story was originally published November 25, 2025 at 6:00 AM with the headline "Trump’s sedition threat against members of Congress is unconstitutional | Opinion."