Newsmax's senior judicial analyst says Sen. Mark Kelly's speech is not seditious: “This is not sedition. This is not encouraging violence.”
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From the January 5, 2026, edition of Newsmax's Carl Higbie Frontline
CARL HIGBIE (HOST): I see no problem here.
ANDREW NAPOLITANO (SENIOR JUDICIAL ANALYST): Well, the problem here is a couple of things. One, in order to discipline Senator Kelly, he's got to be activated as Captain Kelly in the Navy. And then he can be subject to some discipline. And the Constitution prohibits activating members of Congress to active duty.
HIGBIE: So actually, I did some searching on that. It actually — it bestows the power onto the congressmen. If they are activated, it's their responsibility to step down from Congress. I don't think it prohibits them.
NAPOLITANO: Well, you know, this is not an area in which there's been a lot of litigation, and the language in the Constitution is a bit ambiguous. But it would be interpreted to protect Congress. Why? Because it's two separate branches. And the purpose of this is to make sure that no person has divided loyalties and is in two separate branches, the executive branch and the legislative branch at the same time. That's also the reason why we have the speech or debate clause, so that the executive branch, here the Secretary of War, cannot punish somebody who is in the legislative branch because of what someone in the legislative branch said about a political issue.
CARL HIGBIE: So DOD directive 1344-10 allows for short term activation, but requires, it requires the resignation from Congress if they are activated —
NAPOLITANO: It would be unconstitutional to require somebody to resignation from Congress. So we don't know how this is going to turn out, except it's going to end up in a federal court, and it may very well end up in the Supreme Court.
It is a profound issue of free speech. Can the executive branch punish someone in the legislative branch because of the exercise of free speech? The short answer is no.
HIGBIE: The short answer is no. But I think the real answer, because you are — even when you're an officer and you retire from duty, you know this —
NAPOLITANO: Yes.
HIGBIE: That you are still held to a standard of, you know, of higher character —
NAPOLITANO: Correct.
HIGBIE: And I believe that — there's a really easy case. Merriam-Webster - indictment — incitement of resistance to or insurrection against lawful authority. They did that.
NAPOLITANO: But, you know, this is not sedition. This is not encouraging violence.
HIGBIE: But that's not all sedition is.
NAPOLITANO: It's a legally accurate statement. You do not have to obey an illegal order. Now, if ever — I'll concede you this, if every enlisted person was deciding for him or herself what order is legal or illegal —
HIGBIE: That's the point.
NAPOLITANO: You'd have a serious problem on your hands. But if something is profoundly and clearly illegal, you step aside and say, I can't do it.
HIGBIE: So Cambridge Dictionary defines sedition — and I think this is what the DOJ is going after — language or behavior intended to persuade others to oppose their government.
NAPOLITANO: Well, that's not the federal definition in the statute. The definition in the statute is words encouraging violence to overthrow the government. There's no words in the — encouraging violence in the clip that you just ran. There's no words encouraging violence in any of it. It's all free speech.
HIGBIE: I see. I think we're going to have a really hard time with that —
NAPOLITANO: I'll tell you something we'll agree on. It's going to be a fascinating constitutional issue.
HIGBIE: Oh, a hundred percent.
NAPOLITANO: Speech and debate clause. You have this unique clause that most people didn't even know was there, that you can't be in two branches of the government at the same time.
HIGBIE: Right. But I see you and I disagree on that. I think that it's the duty of the congressman by taking the oath of becoming a soldier, they then are already accepted that they have to resign from Congress should they be recalled.
NAPOLITANO: I think it's the duty of the secretary of defense or the Secretary of War to wait until this person is no longer in Congress.
HIGBIE: Oh, see, I think it's the duty of the Secretary of War to bury that guy under the jail.