The Trump administration has tried to use the criminal justice system to attack or intimidate political adversaries in all kinds of ways. It brought flimsy cases against former FBI director James B. Comey and New York Attorney General Letitia James (D), both of which have been thrown out. It took up a bogus criminal referral for Federal Reserve Chair Jerome H. Powell, which seems to have backfired politically.
But the news this week that prosecutors sought grand-jury indictments against six Democratic lawmakers over a political video stands out as the most flagrant abuse yet of the administration’s criminal-legal powers. This is the weaponization of the Justice Department against sitting members of the opposition party in Congress and an attempt to criminalize political speech plainly protected by the First Amendment.
The two senators and four House members recorded an online video in November suggesting that members of the military and intelligence services disobey “illegal orders.” The video prompted Trump to declare, “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”
No one in the Justice Department these days has the standing or courage to effectively talk the president down from self-defeating or lawless commands, so prosecutors tried to do Trump’s bidding. The FBI started investigating the lawmakers last year, and news broke on Tuesday that prosecutors in the office of U.S. Attorney Jeanine Pirro tried to charge them with felonies, only to be rebuffed by a D.C. grand jury. The government reportedly tried to use a law banning efforts to “interfere” with “the loyalty, morale or discipline” of members of the armed forces.
Whatever the scope of that law, it would obviously violate the First Amendment if it criminalized political speech urging members of the military not to break the law. The politicians were careful in the video not to urge disobedience of any specific order, but of illegal orders in the abstract.
While soldiers can ignore commands to do something obviously illegal, orders need to be presumed lawful for the chain of command to function. The video could be interpreted as inviting members of the military to second-guess their superiors, and that set off the Trump administration.
But political provocation isn’t a crime. Members of Congress need to be able to criticize the executive branch’s use of the military. The Constitution’s speech or debate clause gives them additional protection. Clearly part of the video’s insinuation was that the Trump administration had acted illegally by deploying the National Guard to U.S. cities or bombing alleged drug boats off Venezuela’s coast. Prosecuting members of Congress and potentially imprisoning them for their advocacy would chill such criticism.
Republicans in Congress made hay — understandably so — about the scope of the Biden Justice Department’s subpoenas for their phone records as part of the investigation into Jan. 6, 2021. Liberal legal mandarins mostly scoffed at those GOP complaints, which gives them less credibility to complain about this egregious executive attack on the legislative branch.
The grand jury’s rejection of the charges is a very rare occurrence and a testament to the preposterousness of the legal case. But it’s not necessarily a testament to the sturdiness of grand juries as a legal check. The District, where federal prosecutors sought the indictments, is the bluest in the country; a grand jury of a different political hue might have given prosecutors the go-ahead.
Trump’s abuse of the legal system in this case has accomplished nothing except embarrassment for his Justice Department and notoriety for his targets. But what goes around tends to come around, and don’t be surprised if a future Democratic administration tries a similar stunt against congressional Republicans with a friendly jury pool and greater effect.
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