DC Grand Jury Refuses to Indict Over ‘Illegal Orders’ Video
An absurd matter has come to its rightful conclusion.
AP (“Grand jury refuses to indict Democratic lawmakers in connection with illegal military orders video“):
A grand jury in Washington refused Tuesday to indict Democratic lawmakers in connection with a video in which they urged U.S. military members to resist “illegal orders,” according to a person familiar with the matter.
The Justice Department opened an investigation into the video featuring Democratic Sens. Mark Kelly and Elissa Slotkin and four other Democratic lawmakers urging U.S. service members to follow established military protocols and reject orders they believe to be unlawful. All the lawmakers previously served in the military or at intelligence agencies.
Grand jurors in Washington declined to sign off on charges in the latest of a series of rebukes of prosecutors by citizens in the nation’s capital, according to the person, who spoke on the condition of anonymity because they were not authorized to publicly discuss the matter. It wasn’t immediately clear whether prosecutors had sought indictments against all six lawmakers or what charge or charges prosecutors attempted to bring.
Grand jury rejections are extraordinarily unusual, but have happened repeatedly in recent months in Washington as citizens who have heard the government’s evidence have come away underwhelmed in a number of cases. Prosecutors could try again to secure an indictment.
Spokespeople for the U.S. attorney’s office and the Justice Department didn’t immediately respond to requests for comment Tuesday.
The FBI in November began contacting the lawmakers to schedule interviews, outreach that came against the backdrop of broader Justice Department efforts to punish political opponents of the president. President Donald Trump and his aides labeled the lawmakers’ video as “seditious” — and Trump said on his social media account that the offense was “punishable by death.”
WaPo (“D.C. grand jury declines to indict six Democratic lawmakers“):
A federal grand jury in D.C. refused the Justice Department’s attempts to indict six Democratic lawmakers over their comments to military service members — the latest rebuke of the Trump administration’s push to prosecute the president’s foes, according to two people familiar with the matter.
[…]
It is exceedingly rare for grand juries to reject indictments, in part because prosecutors only need to convince a majority of grand jurors that there is a probable cause that a crime was committed — a relatively low threshold. But the Justice Department’s campaign to target President Donald Trump’s perceived adversaries has repeatedly been rebuffed by grand juries and judges, including in its efforts to prosecute former FBI director James B. Comey and New York Attorney General Letitia James (D).
[…]
The prosecutors had attempted to charge the lawmakers with a felony 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,” according to the two people familiar with the grand jury’s decision. They both spoke on the condition of anonymity to discuss secretive grand jury matters.
[…]
Prosecutors could try again to present the cases to grand jurors. But even if they secure indictments, the cases could face obstacles in court. A federal judge expressed concerns at an unrelated hearing last week that Defense Secretary Pete Hegseth could be violating Kelly’s First Amendment rights by imposing a formal censure over the social media comments and opening military demotion proceedings that could cut Kelly’s retirement benefits.
“This is an outrageous abuse of power by Donald Trump and his lackies,” Kelly said in a statement. “It wasn’t enough for Pete Hegseth to censure me and threaten to demote me, now it appears they tried to have me charged with a crime — all because of something I said that they didn’t like. That’s not the way things work in America.”
NYT (“Grand Jury Rebuffs Justice Dept. Attempt to Indict 6 Democrats in Congress“):
Federal prosecutors in Washington sought and failed on Tuesday to secure an indictment against six Democratic lawmakers who posted a video this fall that enraged President Trump by reminding active-duty members of the military and intelligence community that they were obligated to refuse illegal orders, four people familiar with the matter said.
It was remarkable that the U.S. attorney’s office in Washington — led by Jeanine Pirro, a longtime ally of Mr. Trump’s — authorized prosecutors to go into a grand jury and ask for an indictment of the six members of Congress, all of whom had served in the military or the nation’s spy agencies.
But it was even more remarkable that a group of ordinary citizens sitting on the grand jury in Federal District Court in Washington forcefully rejected Mr. Trump’s bid to label their expression of dissent as a criminal act warranting prosecution.
[…]
On Tuesday, prosecutors presenting the case sought to persuade the grand jurors that the lawmakers had violated a statute that forbids interfering with the loyalty, morale or discipline of the U.S. armed forces, according to one of the people familiar with the matter.
[…]
On Tuesday, prosecutors presenting the case sought to persuade the grand jurors that the lawmakers had violated a statute that forbids interfering with the loyalty, morale or discipline of the U.S. armed forces, according to one of the people familiar with the matter.
[…]
The case against the lawmakers was prompted by an online video organized by Ms. Slotkin, a former C.I.A. analyst who served multiple tours in Iraq. It did not mention any specific order or military scenario. But it was released as Mr. Trump was authorizing strikes against suspected drug boats in the Caribbean and considered deploying active-duty military troops to American cities to quell protests.
The lawmakers took turns reading a statement in which they cautioned that the “threats to our Constitution aren’t just coming from abroad, but from right here at home.”
“Our laws are clear,” said Mr. Kelly, a Navy veteran and former astronaut. “You can refuse illegal orders.”
I have so many thoughts on this.
First and foremost, while I’m generally not a fan of jury nullification, this is the reason we have grand juries. Citizens should not have to bear the incredible cost and stress of a criminal trial on frivolous charges.
As all of the reports note, the grand jury’s actions here are remarkable. Former judge Sol Wachtler famously declared that district attorneys could get grand juries to “indict a ham sandwich.” (Tom Wolfe popularized that saying in The Bonfire of the Vanities.) The threshold for indictment is low, and the deck is further stacked in favor of the prosecution because they choose which cases to present.
The idea that Members of Congress, who have substantial Constitutional duties with regard to the military, could be criminally prosecuted for making vague public statements about the right of service members to disobey unlawful orders is risible.
Beyond that, I don’t understand how the law in question,
§2387. Activities affecting armed forces generally
(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:(1) 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 or naval forces of the United States; or
(2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States-
Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
isn’t blatantly unconstitutional. While I’m aware of the ruling in Schenk v. United States, that case hinged on the fact that it was wartime. Even so, Brandenburg v. Ohio and other cases have significantly narrowed the ways in which governments and government officials can criminalize speech they deem dangerous.
As to the video itself, which I apparently never got around to blogging on, I found it foolish and unhelpful. At best, a generic statement telling members of the armed forces to disobey unlawful orders is confusing. At worst, this grandstanding could put those who follow suit in serious legal jeopardy.
If Kelly and company thought a specific set of orders—past or hypothetical—was illegal, they should have said so plainly. And called for hearings to bring the Secretary of Defense, Chairman of the Joint Chiefs, and other responsible figures before Congress to testify on the matter.
As I’ve noted in many posts over the years, “It’s Not the Military’s Job to Oppose Trump.” Granting that all of the institutional and structural barriers that we’ve discussed ad nauseam here make it very difficult, that’s the job of Congress, the courts, and even senior appointed officials in policymaking roles.
Beyond that, despite the mythology of the Nuremberg Trials, “Just Following Orders” is in fact a legal defense—and, indeed, the expectation to which members of the armed forces will be held—in all but the most egregious of circumstances. Indeed, even though “The Legality of the Maduro Raid” was extremely dubious, the fact that it was signed off on by the requisite officials who certify the legality of executive branch actions meant that those who carried it out are not only protected from prosecution but could have been prosecuted for refusing to carry out their orders.
So, to summarize: the video was unhelpful grandstanding, but Members of Congress—and American citizens, period—have the right to say unhelpful things that Presidents and their cabinets dislike. On that front, I agree with Kelly 100%.
You could not be more wrong. The power of the statement they made is demonstrated by the panicky response of the Trump regime. I guarantee you that Trump’s people contemplated using the military to enforce its will on the American people. I guarantee you they were ready for a hundred Kent States, a thousand Renee Goods and Alex Prettis. And I guarantee you they have back-burnered these fantasies. For now.
You still don’t understand who these people are, James. In your employment you rub shoulders with people who seem normal and civil and professional, but don’t be fooled into believing that they all share your moral rectitude. Under the right circumstances, with orders ringing in their ears, they’ll commit any crime. If you were a Jew you would understand that.
People have to speak out and speak up and keep repeating the truth in the face of government oppression. These public servants were doing what they are meant to do: defending the Constitution and the American way of life.
You keep saying this, but it is very much untrue. All combatants have a positive duty to disobey manifestly unlawful orders.
This is why all members of the armed services receive at least some training in international humanitarian law, in accordance with their rank and responsibilities.
Their responsibility extends beyond blindly accepting what a government lawyer says, as is rather obviously evidenced by the very fact that they receive some degree of independent training.
Which means that besides being factually wrong, your position is also logically incoherent.
The Taco so-called administration keeps failing to accept courts and juries deal in laws and facts, not on wild allegations and grievance.
@Michael Reynolds: My problem isn’t with Congress reminding people of their oath, but in the non-specific way in which they did it here. Surely that had some specific set of illegalities in mind? This was grandstanding for their supporters, not a direction to the armed forces.
@drj: Manifestly unlawful is indeed the standard, as noted in several linked pieces. But which orders are they claiming met that standard?
The grand jury rejection is just in time for Pam Bondi’s congressional appearance. What are the odds it becomes a topic of conversation. Among many others.
Reminder that Jeanine Pirro couldn’t get a grand jury to indict a guy who threw the ham sandwich.
@James Joyner:
Reminding people they took an oath, and what that oath says, is specific.
I’m sure they did, but it’s also possible that they didn’t think it made sense to limit it to just what was going on right at that moment. The administration has been fairly creative in what it considers appropriate use of force by the military.
What you have called “grandstanding” is what others would call “the absolute bare minimum that Congress could be doing to claw back its Constitutional authority as a co-equal branch of government.” Tomato, tomahtoe, I suppose.
@James Joyner:
For instance, the bombing of (alleged) drug boats as well as the shipwrecked survivors were/are manifestly illegal. But lawyers nonetheless approved these strikes (at least that’s what the government claims).
I’ve said this several times before. I don’t like hype or grandstanding, but that’s pretty much what politics consists of these days. I did not make it so. I have to live in this world, though.
One way of looking at it is that Mark Kelly is fighting the good fight, taking on the Trump Administration, engaging them in a staredown and baiting them into fights they can’t win. This shows them to be weak and encourages others to do something similar.
Another way to look at it is that Mark Kelly has recruited the Trump Administration into helping him run for president. Because they are fools enough to escalate a losing hand.
I think it’s possible to consider both of these to be truthful in some regard.
The struggle we are in at the moment is a political struggle much more than it is a legal one. We only have rule of law when the politics supports rule of law. So it is being fought with political tools (and with legal ones, of course).
We have seen SCOTUS decisions that were blatantly politically decided. Such as the “presidential immunity” which I recall you were very unhappy with.
I like rule of law. I don’t like hype and grandstanding. The current time is something I find unpleasant. I didn’t create it, I don’t really contribute to it. I’m swimming against the current, though.
@James Joyner:
This question itself shows Congress perhaps needs to ramp up their forewarnings against Trump’s criminality.
Trump, a pedophile, once said “I need the kind of generals Hitler had,” according to John Kelly — no resistance lib he. Trump called for the “termination” of the Constitution. He called for miltary tribunals against his political enemies. He incited a terror attack on Congress.
Federal courts across the country, including Republican appointees, were forced to block Trump’s deployment of US miltary domestically against the citizens of Portland, Los Angeles, and Chicago as unnecessary and illegal. Then last month, a majority of the Supreme Court declined to lift these restraints.
So there’s plenty in the public record to conclude Trump is a dangerous, lawless, neofascist thug who has misused the military before and would again. To not warn about this would be irresponsible; we cannot wait til immigrants are being shoved into ovens to run interference.
If Trump doesn’t want to hear counsel against illegal orders when he is in office, then he should not express admiration for Nazis, not call to destroy the Constitution, not illegally deploy troops against Americans, not send a mob to the Capitol to kill his VP, and not seek indictments against those who hurt his fee fees.
Trump’s unprecented indecency, inhumanity, and disrespect of his office makes unprecedented pushback necessary. Congress can’t grandstand loud enough against this treacherous orange pig.
Glad to see Sen. Tillis getting in on the act today, hope more Republicans join him, Kelly, Slotkin, and the others. Who, to Jay‘s point, have rather successfully put the commander-in-chief and his would-be Eichmanns on notice.
I remembered something that seems relevant. In “Band of Brothers” Lt. Winters is depicted, early on, as refusing to comply with the then-CO of Easy Company when he gave what appeared to be illegal orders, or rather threatened charges that were fabricated, so as to cancel weekend passes and get more training in.
Winters considered, and then told Sobel, his CO that he would have to court martial him. This prompted a chain of events that led to Sobel’s transfer away from Easy Company.
Here’s a clip of that episode.
I will grant you that this is film, not life. However, Winters was alive during filming and consulted. Sobel was also a real person. I expect that there is a fairly sound foundation of fact to what is depicted.
The point being that sometimes it’s better to take the court martial than to just go along with bullshit.
It’s also a great character beat for Winters, who can seem very mild-mannered, but who has a very strong competitive spirit as well as considerable tactical acumen. The film shows him thinking for a moment, where he seems to be gaming out the likely consequences before he tells Sobel to go ahead and court-martial him.