Washington — A federal grand jury on Tuesday refused to indict six congressional Democrats who drew President Trump’s ire last year by taping a video telling members of the military that they must reject “illegal orders,” according to three sources familiar with the matter, including one within the Justice Department.
The Democratic lawmakers are the latest Trump foes that the Justice Department has sought criminal charges against, following former FBI Director James Comey and New York Attorney General Letitia James. After the lawmakers’ video was posted in November, the president called their comments “seditious” and demanded that they be “arrested and put on trial.”
The news of the declined indictment was first reported by The New York Times.
The Charges and the Law
Two sources briefed on the matter said the Justice Department sought to charge the lawmakers under 18 U.S.C. § 2387. This law carries a potential 10-year prison sentence for anyone who “advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military.” The law requires intent to “interfere with, impair, or influence the loyalty, morale, or discipline of the military.”
All six Democrats publicly condemned the move and applauded the grand jury’s decision. Senator Elissa Slotkin of Michigan said the president was seeking to “weaponize our justice system against his perceived enemies,” while Senator Mark Kelly of Arizona called it an “outrageous abuse of power.” Representatives Jason Crow of Colorado and Chris Deluzio of Pennsylvania also voiced their opposition.
Representatives Maggie Goodlander of New Hampshire and Chrissy Houlihan of Pennsylvania stated the grand jury “honored our Constitution” and delivered “good news for the Constitution,” respectively. Republican Senator Thom Tillis of North Carolina criticized the Justice Department’s actions and praised the grand jury.
Tillis wrote on X, “Political lawfare waged by either side undermines America’s criminal justice system… Thankfully in this instance, a jury saw the attempted indictments for what they really were.”
Recent Grand Jury Decisions
This proves highly unusual for grand juries to decline indictments, but the Justice Department has faced challenges with grand juries in recent months, particularly in politically charged cases. After a federal judge dismissed charges against Comey and James in Virginia, two different grand juries refused to re-indict James on bank fraud charges.
Kyle Boynton, a former federal prosecutor, said, “The attempt to indict these members of Congress is shocking… Every Justice Department attorney involved in submitting this indictment… has violated the rules of professional conduct.” Boynton added that no lawyer could reasonably conclude the lawmakers’ speech constituted a felony.
The attempted indictment stemmed from a 90-second video in which the six Democrats—all military veterans or former intelligence community members—told military personnel they “must refuse illegal orders.” The lawmakers said the video was prompted by proposals from Mr. Trump to use the military in ways they viewed as illegal, including his 2016 suggestion to kill the families of terrorists and his threat to send troops to Chicago.
Legal experts say members of the military are required to follow legal orders, but not illegal ones, and are required to disobey “manifestly unlawful” orders in certain cases. Defense Secretary Pete Hegseth argued the video “sows doubt and confusion — which only puts our warriors in danger,” while Mr. Trump accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!”
The lawmakers were notified a week after the video was posted that the FBI had opened an inquiry. Last month, most of the Democrats who appeared in the video said they received inquiries from the Justice Department, including interview requests from U.S. Attorney for D.C. Jeanine Pirro.
In Senator Mark Kelly’s case, the Pentagon attempted to downgrade his rank and retirement pay, accusing him of undermining the chain of command. Kelly sued, calling the move political retribution, and that case is still pending.
Frequently Asked Questions
What prompted the attempted indictment?
The attempted indictment stemmed from a video in which six Democrats told military personnel they “must refuse illegal orders,” prompted by proposals from President Trump to use the military in ways they viewed as illegal.
What law was the Justice Department attempting to use to charge the lawmakers?
The Justice Department sought to charge the lawmakers under 18 U.S.C. § 2387, which threatens a 10-year prison sentence for anyone who attempts to cause insubordination within the military.
What was the reaction to the grand jury’s decision?
The six Democrats publicly applauded the grand jury’s decision, while Republican Senator Thom Tillis praised the grand jury and criticized the Justice Department’s actions.
As the legal landscape continues to shift, what impact will this grand jury decision have on the relationship between the executive branch and members of Congress?
