Threat to Prosecute Lawmakers for Speech Is Scary (and Probably Unconstitutional)

“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic … and that I will obey the orders of the President of the United States and the orders of the officers appointed over me,” according to law.

Military and intelligence community members were recently reminded of this oath when, on Nov. 18, six members of Congress released a direct-to-camera video, telling service members that they “can refuse illegal orders.”

In response, the president unleashed a spate of social media posts calling for the lawmakers to be jailed, charged, and even executed. He subsequently doubled down on his threats of arrest and prosecution.

With a U.S. Department of Justice willing to pursue political prosecutions, another round of charges is almost certainly coming. The question is whether the Constitution’s protections will hold.

Read more from litigators David L. Axelrod and Isabella Salomão Nascimento in their op-ed in The Philadelphia Inquirer. (Subscription may be required.)