Punishable by Death

On Nov. 20, in a social media post, the president accused six members of Congress of committing a crime “punishable by DEATH!” He also shared a supporter’s post that said “HANG THEM GEORGE WASHINGTON WOULD !!”

The Trump Administration denies that the president was threatening lives. It says the persons in question – two Democratic senators and four Democratic congressmen, all veterans of either the military or the intelligence community – posted a video in which they committed the crime of sedition, and, while the president claims those members of Congress are “in big trouble,” the White House says he is not calling for anybody to be killed. One hopes that message filters down to the president’s supporters, who are known to violently threaten, and sometimes go beyond threatening, anyone who displeases him. Chuck Schumer, the leader of the Senate Democrats, has accused the president of “lighting a match in a country soaked with political gasoline.” It’s not as if we can’t smell the fumes.

What is sedition? The term is often used alongside ‘treason’: sedition is speech which attempts to bring about the overthrow of rightful authority, while treason is action which attempts to bring about the overthrow of rightful authority. Since Americans have robust First Amendment rights, sedition is rarely prosecuted, but there are laws against it on the books.

What did those six members of Congress do? They released a video telling U.S. military personnel that, under the Uniform Code of Military Justice, they have both the right and the duty to disobey illegal orders. That statement is accurate. Article 92 of the UCMJ tells members of the military that they are required to obey lawful orders and to disobey unlawful ones.

How do we tell a lawful from an unlawful order? There’s obviously a large grey area. It is illegal to massacre peaceful villagers, but it is not illegal to cause the deaths of those same villagers by bombing a military target, or even a target mistakenly believed to be military. When innocent people get caught up in a war zone, some of them die, and we do not prosecute soldiers for, say, involuntary manslaughter. At the same time, we don’t want American military personnel to run around killing whomever they please. The rights that come with a uniform are hedged round with responsibilities.

It is inherently difficult to impose the rule of law on something as violent and chaotic as war, and for most of human history, no one even tried. For millennia, victorious armies raped, pillaged and slaughtered at whim. Serious attempts to alter that tradition began in 1864, with the passage of the first set of Geneva Conventions, which tried to codify laws of war and define the idea of a war crime, a phrase that first found its way into print in 1872.

Since 1864, the Geneva Conventions have been updated many times, most notably in 1949, after the Nuremberg Trials. Famously, Nazi defendants at Nuremberg contended that they were “only following orders,” but that defense was ruled invalid because some of those orders were so monstrous. For instance, when prisoners got off the train at Auschwitz, babies (because they were too small to work) were sometimes thrown into trenches of burning gasoline. For eight hours a day, with a lunch break, certain soldiers had the job of throwing babies into burning gasoline. Most of us probably don’t think those soldiers should have just done as they were told. But since directing people to disobey “monstrous” orders seems a bit subjective, we use the term “illegal.”

At present, it doesn’t seem likely that American military personnel will be ordered to behave like guards at Auschwitz, and it isn’t practical to expect a soldier in the field to pre-clear his orders with a lawyer. In the real world, the only orders a subordinate might push back against are ones that are obviously illegal – say, to machine-gun a huddle of unarmed civilians and dump them into a mass grave. But what about a situation that is less clear-cut? Is it legal to snatch people off the street and deport them to a hellhole without due process of law? Is it legal, under an emergency decree, for the National Guard to patrol a city which guardsmen can see at a glance is not experiencing an emergency? Is it legal to blow up a fishing boat that is alleged, without evidence, to be smuggling drugs? If you blow up that boat, and there are two survivors in the water, is it legal to launch a second strike to “kill them all”? If you are a low-ranking soldier or sailor, and the legalities are at all unclear, you are likely to shut your mouth and go along. That’s what almost everyone did when directed to torture prisoners at Abu Ghraib.

The six members of Congress who made the video have pointed out that all they did was “restate the law,” i.e. remind public servants that their duty to the law and the Constitution outweighs their duty to the chain of command. But of course there is a sub-text. There is a reason why those representatives bothered to make that video in the first place.

If a president wished to establish an authoritarian state, one of his first priorities would be to suborn the military. Where law and politics break down, power returns to its roots in violence, and the military is the institution that does violence best. Historically, the most common way to become a dictator has been through a military coup, which was why the Founding Fathers were so suspicious of the idea of a peacetime standing army. As James Madison said at the Constitutional Convention, “The means of defense against foreign danger have been always the instruments of tyranny at home.” His prime example was Ancient Rome, where governments were frequently overthrown by troops loyal to a single man.

The Founders’ concern left its mark. Throughout the nineteenth and early twentieth centuries, America built up its military during wars, then built it down again radically in peacetime. For decades, although we had the largest economy in the world, our military power was relatively underdeveloped: according to Time magazine, in the 1930s, the U.S. army looked to Europeans “like a few nice boys with BB guns.” World War II changed all that, and after it, because of the threat of the Soviet Union, we did not build down. Since then we have maintained the most powerful military on Earth, and have had to grapple with how to prevent it from becoming an “instrument of tyranny at home.”

Our most fundamental protection has been the tradition of civilian control. Both the Secretary of Defense – sorry, the Secretary of War – and the President outrank the Chairman of the Joint Chiefs of Staff, and deference to civilian authority is deeply engrained in American military culture. That’s how we’ve kept rogue generals from seizing power, as so many Roman generals did. But what if the rogue element is a civilian? What if he is the elected commander-in-chief?

President Trump is clearly worried about the 2026 midterm elections. In virtually every off-year election since 2024, his party has done extremely poorly, and his approval ratings have sunk significantly. If the Democrats take over either house of Congress, his life becomes considerably more difficult. That is why he is pushing Republican states to re-gerrymander their congressional districts, and why (in Louisiana v. Callais) conservatives are trying to gut the Voting Rights Act. What will happen if, in 2026, the president directs the armed forces to help him steal an election?

In his second term, this president has done many unprecedented things to increase his personal power. He has justified many of those things by declaring an “emergency” – a border “emergency” which justifies harsh anti-immigration measures; a trade “emergency” which justifies tariffs – because in times of emergency, we traditionally expand executive authority. What can we do if a president, to grab power, declares a bogus emergency? The answer, at least with this president, isn’t clear. The Congress could probably do something, but this Congress won’t. Federal judges have tried to do something, but the Supreme Court for the most part hasn’t had their backs. What do we do about a commander-in-chief who respects neither the spirit nor the letter of the law?

For now, no troops have been ordered to shut down polling places in Democratic neighborhoods – but what if that changes? For now, no troops have been ordered to fire on a No Kings rally – but what if that changes? In the current climate, neither scenario is unimaginable. If U.S. troops are given such orders, will they obey them?

That, I think, was why the six members of Congress made their video. They were urging the nation’s most basic units of power – citizens in uniform – to stand up for the rule of law.

~ STUDEBAKER (Studebaker@studebakerguy.bsky.com)