Two essential components of democracy are free speech and the rule of law. In Donald Trump’s America, both principles are being sacrificed, often in ways that appear designed to consolidate political power.
In recent weeks, the Justice Department has reportedly launched criminal investigations into targets ranging from Federal Reserve Chair Jerome Powell to Minnesota Governor Tim Walz. In Minnesota, six federal prosecutors resigned after DOJ directed them to investigate not the ICE agent who shot and killed motorist Renee Good, but her widowed wife. The probes follow the failed indictments of two of Trump’s nemeses, former FBI Director James Comey and New York Attorney General Letitia James. What these targets all have in common is the president’s wrath.
One of the latest subjects of criminal investigation is Elissa Slotkin, a U.S. Senator from my home state of Michigan. Slotkin is a former CIA analyst who served three tours of duty in Iraq. According to Slotkin, she received a request for an interview from the office of District of Columbia U.S. Attorney Jeanine Pirro. Slotkin’s purported “crime”? She appeared in an online video in which she and other members of Congress stated—accurately—that the Uniform Code of Military Justice requires service members to refuse illegal orders. The video did not mention any specific orders, but it was released amid mounting controversy over the administration’s lethal strikes on suspected Venezuelan drug-trafficking boats that lacked any apparent legal basis. Trump blasted the video, calling it “SEDITIOUS BEHAVIOR, punishable by DEATH!” He added:“Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.”
Four other lawmakers who participated in the video, all former members of the intelligence community or military, also say they are under investigation. The probes come one week after Secretary of Defense Pete Hegseth announced administrative action against another participant in the video, Sen. Mark Kelly, a retired Navy captain and astronaut, to reduce his rank and rescind his pension.
It is far from clear what crime, if any, Pirro’s team is investigating. While politicians may toss around the word “sedition,” the relevant statute that prohibits seditious conspiracy requires the use of force. Members of the Oath Keepers and Proud Boys were convicted of seditious conspiracy for their conduct on January 6, 2021, where prosecutors proved they used physical force to block the certification of the presidential election.
Nor is it a crime to simply restate the law. Slotkin and her colleagues’ comments stand in stark contrast to Trump’s efforts to interfere with the 2020 election results. Some critics of Special Counsel Jack Smith’s prosecution have argued that the indictment violated Trump’s First Amendment rights. But Trump was not charged for claiming, falsely, that he had won the election. He was charged for the crime of conspiracy to defraud the United States by interfering with the lawful administration of government.
Identifying the federal offense at issue matters because, under DOJ policy, criminal investigations require predication, that is, a credible factual allegation that a crime has been committed. It is not enough to do something “wrong” or something the president dislikes. To constitute a crime, conduct must violate some act of Congress. In addition, predication cannot be based solely on First Amendment protected activity. That policy came in response to abuses of the FBI in the 1960s and 70s, when civil rights activists and Vietnam war protesters were targeted for their politics. Under the governing guidelines, investigators can’t go on a fishing expedition in hopes of stumbling across some criminal activity just because the president dislikes someone. That’s why it is improper to open a criminal investigation against a member of Congress or anyone else based on protected speech about unlawful orders.
Instead of a legitimate law enforcement operation, this investigation, like so many others, appears to fit a now familiar pattern: vengeance against critics and intimidation of those who might consider opposing the president’s actions. Even if the prosecutions are doomed to fail, the mere announcement of an investigation can inflict harm on its target. Just being investigated for a crime brings a cloud of suspicion, emotional stress, disruption of daily life, and the expense of legal fees.
And, in today’s world of internet trolls, an investigation can also invite harassment. Slotkin said last week that after Trump’s accusation, she has received more than 1,000 death threats, her parents were swatted, and her siblings require police presence outside their homes. As Slotkin noted, anyone who disagrees with Trump, “becomes an enemy, and he then weaponizes the federal government against them. It’s legal intimidation and physical intimidation meant to get you to shut up.” Slotkin’s experience helps explain why so many law firms have chosen to keep their heads down or even capitulate to Trump’s demands rather than fight him in court.
But Slotkin has vowed to keep speaking out. The rest of us should learn from her example, lest we lose the priceless freedoms we enjoy. As Pulitzer Prize-winning journalist Chris Hedges recently argued in his Substack newsletter, using prosecution to silence critics is a tactic common to authoritarian regimes. In the Soviet Union, dissidents were charged with manufactured crimes. Alexander Solzhenitsyn wrote in The Gulag Archipelago that it was easy to brush off the defendant who proclaimed his innocence, until it happened to you: “Since you aren’t guilty, then how can they arrest you? It’s a mistake!” Not a mistake. A strategy.
Regardless of one’s political views, free speech and the rule of law are essential to maintaining the kind of freedom on which our country was founded. As Slotkin has said, “Our core values are worth fighting for, and, right now, speaking out against the use of power is the most patriotic thing we can do.”
