On February 10, the Trump administration tried but failed to get a grand jury to indict six Congressional Democrats for telling our troops not to obey unlawful orders — even though telling people not to obey unlawful orders is speech protected by the First Amendment.
As Andrew McCarthy noted in The National Review,
The Justice Department’s outrageous indulgence of President Trump’s demand that it prosecute Democratic members of Congress — in blatant violation of separation-of-powers principles and his oath to execute the laws faithfully — assures what was already highly likely: The president will be impeached promptly if Democrats retake control of the House after the November midterms, an outcome his abuses of power have also made highly likely.
That will be the legacy of [the] failed attempt by the Trump Justice Department to criminally charge the “Seditious Six,” as the Democrats in question were labeled by Trump supporters — egged on by our unhinged chief executive, who inveighed (on social media, of course), “SEDITIOUS BEHAVIOR, punishable by DEATH!”
Assessing that the proposed indictment was abusive lawfare rather than bona fide law enforcement, a grand jury in Washington, D.C., rejected it — voting a no true bill.
We discussed this story back in late November. The six Democrats with military and intelligence experience, led by Senators Elissa Slotkin (Mich.) and Mark Kelly (Ariz.), …. reminded our armed forces that they are not required to carry out illegal orders — indeed, are forbidden from doing so….Stating something that is incontestably true and expressly reflected in the Uniform Code of Military Justice — soldiers are bound to obey only lawful orders — is protected political speech under the First Amendment (which even protects political speech that is false, as President Trump can attest)….
There was no plausible justification for the proposed indictment. It reportedly alleged a violation of Section 2387 of the federal penal code, which criminalizes the urging of “insubordination, disloyalty, mutiny, or refusal of duty” of armed forces personnel….
[But] under the [Supreme] Court’s seminal 1969 precedent, Brandenburg v. Ohio, government may punish speech only if it is both directed to inciting imminent lawless action and likely to incite such action….the six Democrats merely said something that, while unhelpfully promiscuous, was inarguably true. Only in Wonderland could admonishing soldiers that they should not act lawlessly be interpreted as inciting imminent lawless action….
Earlier, the Defense Department took punitive administrative action, in violation of the First Amendment, against Senator Mark Kelly for telling troops not to follow unlawful orders. Its harassment of a retired soldier for speaking his mind may discourage people from signing up for the military, lest they lose their free speech rights even after they retire from the military. The harassment of Kelly could thus harm military recruitment. Requiring people to follow the Republican Party line — even after they retire! — would be a huge disincentive for Democrats to join the military. About two-fifths of the military is Democratic-leaning.
