WASHINGTON — The Trump administration tried and failed on 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 attempted to indict, or if the failed attempt will be addressed in a future court hearing.
The indictment pursued by the office of U.S. Attorney for the District of Columbia Jeanine Pirro is the latest example of the Justice Department targeting the president’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 for the District of Columbia 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 that 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; along with Sens. Mark Kelly of Arizona; and Elissa Slotkin of Michigan.
In the video, the lawmakers said the Trump administration was pitting members of the military and 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, on his social media platform Truth Social, accused the Democratic lawmakers 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.
Several Democrats involved in the video recently said they would not cooperate with the Justice Department’s probe into the video.
Under longstanding Justice Department policy, the Public Integrity Section would normally have to sign off on every step of an investigation into a sitting member of Congress, especially 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 they 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 personal friend of Trump, the U.S. Attorney’s Office for the District of Columbia 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 the city at Trump’s orders.
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