The Seditious Six

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.