WASHINGTON — The Trump administration tried and failed Tuesday to secure an indictment in connection with a video featuring six Democratic lawmakers urging members of the military and intelligence communities not to comply with unlawful orders, three sources familiar with the matter told NBC News.
It was not clear how many of the lawmakers the Trump administration tried to indict or whether the failed attempt will be addressed at a future court hearing.
The indictment, pursued by the office of the U.S. attorney for the District of Columbia, Jeanine Pirro, is the latest example of the Justice Department’s targeting Trump’s perceived political opponents. The government attorneys assigned to the case are political appointees, not career Justice Department prosecutors, according to a source familiar with the investigation.
A Justice Department spokesman and a spokesman for the U.S. attorney’s office did not immediately respond to a request for comment Tuesday night.
The FBI had sought interviews with the six members of Congress who appeared in the video, which was posted to social media in November: Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chris Deluzio and Chrissy Houlahan of Pennsylvania, and Sens. Mark Kelly of Arizona and Elissa Slotkin of Michigan.
The lawmakers said in the video that the Trump administration was pitting members of the military and the intelligence communities “against American citizens.”
They then pointed out that public servants can refuse illegal orders. “Now, more than ever, the American people need you,” the lawmakers say in the video. “Don’t give up the ship.”
Under the Uniform Code of Military Justice, members of the military are obliged to obey only lawful orders and must refuse those that are manifestly illegal.
Trump accused the Democratic lawmakers on his social media platform, Truth Social, of “SEDITIOUS BEHAVIOR, punishable by DEATH!” at the time. Legal experts broadly agree that prosecuting members of Congress for their political speech would raise serious First Amendment concerns.
In addition to the First Amendment issues, the “speech or debate” clause of the Constitution gives lawmakers on Capitol Hill immunity from prosecution for acts taken within the legislative sphere, a fundamental check on the constitutional separation of powers.
A federal judge in a separate case is expected to rule in the coming days on the legality of actions taken by Defense Secretary Pete Hegseth against Kelly over his participation in the video. Hegseth issued a formal letter of censure last month and is seeking to reduce Kelly’s retirement rank as a Navy captain.
“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,” Kelly said in a statement to NBC News Tuesday night. “That’s not the way things work in America. Donald Trump wants every American to be too scared to speak out against him. The most patriotic thing any of us can do is not back down.”
Several Democrats involved in the video previously said they would not cooperate with the Justice Department’s probe.
Under long-standing Justice Department policy, the Public Integrity Section would normally have to sign off on every step of an investigation of a sitting member of Congress, especially in a case with free speech and speech-and-debate considerations. But the Trump administration has dismantled the Public Integrity Section, eliminating checks meant to prevent the Justice Department’s powers from being abused for political purposes.
The administration has previously failed to indict other perceived political foes. After a federal judge dismissed an initial indictment of New York Attorney General Letitia James, the Justice Department failed to convince two separate federal grand juries that it had met the probable cause threshold: once in Norfolk, Virginia, on Dec. 4 and once in Alexandria, Virginia, on Dec. 11.
Under Pirro, a former Fox News host and longtime friend of Trump’s, the U.S. attorney’s office has also struggled to secure indictments and convictions, including when a jury acquitted a man who chucked a Subway sandwich at a federal officer patrolling Washington at Trump’s orders.
It’s very rare for federal grand juries to say prosecutors failed to meet the probable cause threshold for an indictment.
Fiona Glisson, Justin Goldman and Frank Thorp V contributed.
