Give members of the Trump Administration credit for at least one talent: they can always go lower than we can possibly imagine. Just when you think they have reached their nadir, they outdo even themselves.
Last month, I wrote about District of Columbia U.S. Attorney Jeanine Pirro’s baseless criminal investigation into members of Congress for participating in an online video in December. In the video, six senators and House members with military and national security backgrounds reminded service members of a basic proposition of military law—found in the Uniform Code of Military Justice—that service members have a duty to resist clearly illegal orders. The video referenced no specific order, but the timing suggested that it was prompted by the administration’s controversial airstrikes on alleged Venezuelan drug boats that lacked any apparent legal basis.
At the time, Trump castigated the video, calling it “SEDITIOUS BEHAVIOR, punishable by DEATH!” He added that “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” Of course, there is no crime on the books for speaking the truth.
Failing to recognize the irony of obeying an apparently illegal order herself, Pirro reportedly opened an investigation into the conduct of the lawmakers. Last month, Senator Elissa Slotkin and four House members said they had been contacted by Pirro as part of an “inquiry.” The video’s other participant, Senator Mark Kelly, was left for Secretary of Defense Pete Hegseth to toy with. Hegseth initiated an administrative action to strip the former Navy officer and astronaut of his pension and reduce his rank.
I was naïve enough to think that Pirro’s abuse of her power as U.S. Attorney was simply a shot across the bow—an effort to intimidate critics into silence. That conduct alone would be a violation of her duty as a federal prosecutor to support and defend the Constitution, which, of course, gives all citizens the right to free speech. It provides even more protection for members of Congress, who are protected under the Speech or Debate Clause from even being questioned outside of the congressional chamber regarding any legislative matter. It seemed that Pirro’s inquiry was designed to muzzle these six critics and anyone else who might be inclined to speak out against the administration.
Oh, how wrong I was. Instead, we learned last week that Pirro’s willingness to destroy DOJ norms was not limited to opening an investigation without the required predication of a credible allegation of a criminal offense. She went one giant step further and actually tried to charge them with a crime by directing one of her prosecutors to seek an indictment from a grand jury. Even that body of ordinary citizens could see that the proposed indictment was a sham, refusing to approve it.
But the grand jury’s wisdom is cold comfort in the face of Pirro’s appalling misconduct. Abbe Lowell, counsel for Rep. Jason Crow of Colorado, one of the House members who appeared in the video, called her effort to indict his client “a breathtaking and unprecedented level of prosecutorial overreach and misuse of power.” His words are no overstatement.
Of course, a person cannot be charged for doing something that is merely objectionable, or for holding an opinion that is contrary to the president’s view. An indictment must charge a violation of some criminal offense defined in a statute enacted by Congress. Convicting someone of a crime requires proving an unlawful act and the requisite harmful intent. We still don’t know precisely what statute prosecutors claimed the video violated. But going to a grand jury suggests they were pursuing a felony because misdemeanors don’t require grand jury review. Reporting indicates prosecutors considered offenses tied to influencing military loyalty or discipline, but the legal theory was plainly weak, enough that the grand jury refused it.
The power to indict another person is an awesome responsibility. It sets the wheels of the criminal justice system in motion and threatens to take away a person’s liberty, one of our most treasured rights. Recognizing the sensitivity of prosecutorial decision-making, DOJ’s Principles of Federal Prosecution, the agency’s policy manual, provides that criminal charges should be filed only where the attorney for the government believes that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” It is difficult to imagine any scenario where participation in this video would violate any federal statute.
I am not alone in my disgust over an administration that would punish anyone, let alone members of Congress, for simply reminding service members of their legal duties. Last week, a federal judge appointed by President George W. Bush issued an injunction blocking Hegseth from punishing Kelly for his role in the video. Finding that the Arizona senator had shown a substantial likelihood of success on the merits of his legal challenge, Judge Richard Leon wrote, “Defendants have trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.” Even for a judge who frequently disregards the judicial norm of avoiding exclamation points in his legal opinions, this one was extraordinary. “To say the least,” he wrote, “our retired veterans deserve more respect from their Government, and our Constitution demands they receive it!” Charging them with a crime for their free speech would be even more egregious.
One hopes that Judge Leon’s exclamation points serve as a wake-up call to American voters. Because we can’t expect the Trump Administration to refrain from sinking ever lower.
