DOJ fails to secure indictment in connection with Democrats involved in ‘illegal orders’ video

WASHINGTON — The Trump administration unsuccessfully attempted Tuesday to seek an indictment in connection with a video showing six Democratic lawmakers urging members of the military and intelligence agencies not to comply with illegal orders, three sources familiar with the matter told NBC News.

It’s unclear exactly how many lawmakers the Trump administration has attempted to indict or whether the failed attempt will be addressed in an upcoming court hearing.

The indictment, brought by the office of U.S. Attorney for the District of Columbia Jeanine Pirro, is the latest example of the Justice Department targeting Trump’s alleged political opponents. The government lawyers assigned to the case are political appointees and not career Justice Department prosecutors, according to a source familiar with the investigation.

A Justice Department spokesperson and a spokesperson for the U.S. Attorney’s Office did not immediately respond to a request for comment Tuesday evening.

The FBI had requested interviews with the six members of Congress who appeared in the video, which was posted on social media in November: Representatives Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chris Deluzio and Chrissy Houlahan of Pennsylvania, as well as Senators Mark Kelly of Arizona and Elissa Slotkin of Michigan.

The lawmakers, all of whom served in the military or intelligence services, said in the video that the Trump administration pitted members of the military and intelligence services “against American citizens.”

They then emphasized that officials can refuse illegal orders. “Now more than ever, the American people need you,” the lawmakers say in the video. “Don’t abandon ship.”

Under the Uniform Code of Military Justice, service members are required to obey only lawful orders and must refuse those that are clearly illegal.

Trump accused Democratic lawmakers on his social media platform, Truth Social, of “SEDITIOUS BEHAVIOR, punishable by DEATH!” » at the time. Legal experts largely agree that prosecuting members of Congress for their political speeches would raise serious concerns about the First Amendment.

In addition to First Amendment issues, the Constitution’s “speech or debate” clause grants lawmakers on Capitol Hill immunity from prosecution for actions taken in 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 Defense Secretary Pete Hegseth’s actions against Kelly following her 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 censor me and threaten to demote me, now it appears they tried to charge me with a crime – all because of something I said that they didn’t like,” Kelly said in a statement to NBC News Tuesday evening. “This is not how things work in America. Donald Trump wants all Americans to be too afraid to speak out against him. The most patriotic thing any of us can do is not back down.”

Several Democrats involved in the video, including Slotkin, previously said they would not cooperate with the Justice Department’s investigation.

“I hope this puts a definitive end to this politicized investigation,” Slotkin said on X Tuesday night. “But today wasn’t just an embarrassing day for the administration. It was another sad day for our country. Because whether Pirro succeeds or not isn’t the issue. It’s that President Trump continues to weaponize our justice system against his perceived enemies. This is the kind of thing you see in a foreign country, not in the United States we know and love.”

Under long-standing Justice Department policy, the Public Integrity Section would normally approve each step in an investigation of a sitting member of Congress, particularly in a matter involving considerations of freedom of expression and speech and debate. But the Trump administration dismantled the Public Integrity Section, removing controls intended to prevent the Justice Department’s powers from being abused for political purposes.

The administration has so far failed to indict other alleged political enemies. After a federal judge dismissed an initial indictment against 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 December 4 and once in Alexandria, Virginia, on December 11.

Under Pirro, a former Fox News host and longtime Trump friend, the U.S. attorney’s office also struggled to secure indictments and convictions, including when a jury acquitted a man who threw a Subway sandwich at a federal officer patrolling Washington on Trump’s orders.

It is very rare for federal grand juries to find that prosecutors did not meet the probable cause threshold for an indictment.