The Justice Department’s efforts to prosecute President Donald Trump’s critics entered a new phase this week, when federal prosecutors failed to indict six Democratic lawmakers who recorded a video reminding military service members of their duty to refuse illegal orders.
Department lawyers, under pressure from the president, previously targeted several of Trump’s most outspoken foes, including former FBI director James B. Comey and New York Attorney General Letitia James. Both faced since-dismissed charges last year over alleged conduct unrelated to their political views.
But the case federal prosecutors put before a grand jury Tuesday — seeking to charge Sens. Mark Kelly (D-Arizona), Elissa Slotkin (D-Michigan) and four others over their 90-second video message — marked the first time the department has directly sought to classify critical speech from prominent Trump detractors as a crime.
Grand jurors roundly rejected the effort, The Washington Post reported. But legal observers and the lawmakers at the center of the probe have argued in the days since that the panel’s decision is almost beside the point.
“This is not a good news story,” Kelly, a retired Navy captain and astronaut, told reporters during a news conference this week. “This is a story about how Donald Trump and his cronies are trying to break our system to silence anyone who lawfully speaks out against them.”
The attempt to charge the lawmakers represents an evolution of the campaign that began last year with cases against James and Comey, said Brendan Nyhan, a professor of government at Dartmouth College.
“Prosecuting people for speech criticizing the president is in some ways even more dangerous,” Nyhan said, “especially given these are legislators acting in their public role and especially given that they were calling for the military and national security state to follow the law.”
Still, some Trump allies in Congress, including House Speaker Mike Johnson (R-Louisiana), defended the administration’s efforts. He told reporters that Slotkin, Kelly and the others “probably should be indicted.”
“Any time you’re obstructing law enforcement and getting in the way of these sensitive operations, it’s a very serious thing, and it probably is a crime,” he said.
The Justice Department’s criminal investigation into the lawmakers began after the video organized by Slotkin, a former CIA analyst, was posted online in November. In it, she and the others, all of whom served in the military or with intelligence agencies, reminded service members of their duty, spelled out in the Uniform Code of Military Justice, to resist unlawful directives.
“This administration is pitting our uniformed military and intelligence community professionals against American citizens,” the lawmakers said. “Our laws are clear. You can refuse illegal orders.”
The video did not single out any specific Trump administration policies. But Slotkin and Kelly, both of whom serve on the Senate Armed Services Committee, have sharply criticized the president for military strikes he authorized on alleged drug trafficking boats in the Caribbean Sea and Pacific Ocean and his decision to deploy the National Guard to cities run by Democratic officials.
The other lawmakers who participated in the video included Reps. Jason Crow, a former Army ranger from Colorado, and Maggie Goodlander, a Navy veteran from New Hampshire, as well as Chrissy Houlahan, a former Air Force officer, and Chris Deluzio, a former Navy officer, both from Pennsylvania.
Their video drew an immediate reaction from Trump, who demanded on social media that the lawmakers face prosecution for sedition and suggested they should even, perhaps, be punished with execution.
“SEDITIOUS BEHAVIOR, punishable by DEATH!” Trump wrote in one social media post soon after the video was posted. He said in another: “IT WAS SEDITION AT THE HIGHEST LEVEL, AND SEDITION IS A MAJOR CRIME.”
The messages echoed another Trump post from last year in which he, in a missive addressed to “Pam,” an apparent reference to Attorney General Pam Bondi, insisted the Justice Department move swiftly to prosecute Comey, James and others.
“We can’t delay any longer, it’s killing our reputation and credibility,” he wrote then, adding, “JUSTICE MUST BE SERVED, NOW!!!”
Within months, James was indicted on counts of mortgage fraud, while Comey was charged with lying to Congress. Both denied the accusations and their cases were later dismissed by a federal judge over technical issues with the appointment of the prosecutor who had charged them.
Slotkin, Kelly and the other lawmakers have maintained they did nothing wrong — even as top administration officials have accused them of using the video to encourage service members to take actions tantamount to mutiny.
Earlier this month, four of the lawmakers in the video disclosed that they had been approached by FBI agents and declined to give voluntary interviews to prosecutors.
“It was clearly, when our lawyers sat down with them, just about checking a box and doing what the president wanted them to do,” Slotkin said Wednesday. “Their heart wasn’t even in it.”
It is not clear whether the FBI took other steps to investigate. But on Tuesday, prosecutors under the supervision of D.C.’s U.S. Attorney Jeanine Pirro, a former Fox News host and staunch Trump ally, presented a case against the lawmakers to the grand jury.
Two political appointees led that presentation, according to two people familiar with the matter who spoke on the condition of anonymity to describe sealed court proceedings.
The prosecutors — Steven Vandervelden, a former colleague of Pirro’s in the district attorney’s office in Westchester, New York, and Carlton Davis, a former staffer for House Oversight Committee Chairman Rep. James Comer (R-Kentucky) — sought to charge the lawmakers with a felony crime that makes it illegal to “interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States,” the people said.
But when it came time to vote, none of the grand jurors agreed there was sufficient probable cause to charge any of the lawmakers with a crime, one of the people familiar said.
Spokespeople for the Justice Department and for Pirro have declined to comment on the matter in the days since. Amid that silence, the effort has drawn an impassioned response from Capitol Hill.
“The fact that they failed to incarcerate a United States senator should not obviate our outrage,” Sen. Brian Schatz (D-Hawaii) said during a heated session Wednesday in which Democratic senators implored their Republican colleagues to openly condemn the Justice Department’s actions. Senate Democrats held a special caucus meeting Thursday morning to further discuss the situation.
“They tried to incarcerate two of us,” Schatz said. “I am not entirely sure the United States Senate can survive this if we do not have Republicans standing up.”
Sen. Thom Tillis (North Carolina) has emerged as one of the few Republicans to publicly rebuke the department. He described the failed attempt to prosecute as exactly the type of weaponization of the justice system that the Trump administration has said it is fighting against.
“Political lawfare is not normal, not acceptable, and needs to stop,” Tillis wrote in a post to X.
At their news conference Wednesday, Kelly told reporters that he and Slotkin learned about the attempt to indict them Tuesday through media reports.
“If things had gone a different way, we’d be preparing for arrest,” Slotkin said.
Since then, lawyers for several of the targeted lawmakers have sent letters to Pirro and Bondi seeking assurances that the investigation is over and that prosecutors will not seek to indict them again. They’ve also instructed the department to retain all records of the investigation threatening potential legal action for violating the lawmakers’ free-speech rights.
In a separate suit filed by Kelly, a federal judge Thursday halted Defense Department efforts to formally censure the senator over his video remarks, saying the effort to do so “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.”
“The intimidation was the point — to get other people beyond us to think twice about speaking out,” Slotkin said Wednesday. “But the real question is if the president can do this to us — sitting senators — who else can he do it to?”
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