An impeachment attempt just got more likely.
An impeachment attempt just got more likely.
T he Justice Department’s outrageous indulgence of President Trump’s demand that it prosecute Democratic members of Congress — in blatant violation of separation-of-powers principles and his oath to execute the laws faithfully — assures what was already highly likely: The president will be impeached promptly if Democrats retake control of the House after the November midterms, an outcome his abuses of power have also made highly likely.
That will be the legacy of yesterday’s reported failed attempt by the Trump Justice Department to criminally charge the “Seditious Six,” as the Democrats in question were labeled by Trump supporters — egged on by our unhinged chief executive, who inveighed (on social media, of course), “SEDITIOUS BEHAVIOR, punishable by DEATH!”
Assessing that the proposed indictment was abusive lawfare rather than bona fide law enforcement, a grand jury in Washington, D.C., rejected it — voting a no true bill.
We discussed this story back in late November. The six Democrats with military and intelligence experience, led by Senators Elissa Slotkin (Mich.) and Mark Kelly (Ariz.), insufferably reminded our armed forces that they are not required to carry out illegal orders — indeed, are forbidden from doing so. As these lawmakers well knew, our highly trained military need no such reminders.
Transparently, the video was intended to make a political point (probably about the president’s lawless lethal strikes against boats suspected of ferrying drugs in the Caribbean, although that went unmentioned). The messaging was firmly within a tradition of ambitious moderate Democrats: Ring the anti-Trump chimes of the party’s progressive base, but assure the broad middle of the public that they favor national security that’s vigorous but guided by the rule of law. After all, the 2028 campaign is just over the horizon.
I described the video as “craven but legally unimpeachable.” Since the half-dozen Democrats studiously avoided citing any specific order claimed to be unlawful, the video was unhelpful at best; arguably, it was harmful because it could cause confusion and thus undermine force discipline. Potentially disruptive, however, is not the same as criminal.
Stating something that is incontestably true and expressly reflected in the Uniform Code of Military Justice — soldiers are bound to obey only lawful orders — is protected political speech under the First Amendment (which even protects political speech that is false, as President Trump can attest). Moreover, while it was fair game for administration officials and their congressional allies to publicly rebuke the six Democrats for potentially sowing dissent in the ranks, it was intolerable — impeachable — for the president to unleash the government’s law-enforcement apparatus against members of Congress in the absence of some patent crime. Here, there was no crime at all.
And this, of course, is not a one-off. More even than capricious tariffs, the president’s signature policy is bullying lawfare — the tin-pot dictator-style exploitation of law-enforcement power to punish political enemies and scapegoats and to settle old scores. And no, the fact that lawfare was practiced against him does not excuse it since lawfare threatens our justice system’s legitimacy, which is vital to a flourishing, free republic.
There was no plausible justification for the proposed indictment. It reportedly alleged a violation of Section 2387 of the federal penal code, which criminalizes the urging of “insubordination, disloyalty, mutiny, or refusal of duty” of armed forces personnel. The statute, like other World War I–era overreach by the Constitution-resistant administration of Woodrow Wilson, could not withstand the last six decades of Supreme Court free speech jurisprudence.
Under the Court’s seminal 1969 precedent, Brandenburg v. Ohio, government may punish speech only if it is both directed to inciting imminent lawless action and likely to incite such action. The president presumably knows this because, as I pointed out a number of times (see, e.g., here), it is the reason the Biden Justice Department, despite its zealous efforts, could not indict him for incitement based on the provocative Ellipse speech that immediately preceded the Capitol riot.
In fact, Trump’s speech was far closer to the line of prosecutable, criminal incitement than the six Democrats’ video. Although he did pay lip-service to the need to remain peaceful, Trump, as president, encouraged a mob to swarm the Capitol, Congress’s turf, to disrupt the execution of Congress’s constitutional duty to ratify the results of presidential election. By comparison, the six Democrats merely said something that, while unhelpfully promiscuous, was inarguably true. Only in Wonderland could admonishing soldiers that they should not act lawlessly be interpreted as inciting imminent lawless action.
The president’s disregard for settled constitutional principle is exacerbated by his affront to separation of powers. A president has no business indicting, threatening to indict, or attempting to indict members of Congress who have committed no crimes — over a policy dispute. As congressional Republicans must know — if they have any memory of their prior pose as guardians of our constitutional framework and of the Article I branch’s institutional prerogatives — it is the end of liberty if the executive can paralyze Congress by threatening it with prosecution.
And here, as I pointed out back in November, Trump roped the Defense Department into the lawfare onslaught by inducing it to commence punitive administrative action against Senator Kelly, a retired Navy captain who can be recalled to duty and thus remains under UCMJ jurisdiction. Nothing is more of a threat to our constitutional order than a president who draws the armed forces into his abuses of power.
Republican members of Congress should be ashamed of themselves for abiding President Trump’s lawfare — particularly those who, not content with silent acquiescence, affirmatively joined in the smears. Particularly noxious were the echoes of Trump’s preposterous allegation that the six had engaged in sedition. As I’ve explained (being one of the few former or current federal prosecutors in America to have successfully prosecuted a seditious conspiracy case), sedition is a treasonous offense that, under both civilian and military law, requires forcible resistance to the government. The six Democrats did not come close to any such thing.
Obviously, Democrats will not abide the lawfare, and their prior commission of it will not nullify their authority to exact retribution when they are next back in power. For a time, it seemed possible that Democrats would realize that their lawfare strategy had put Trump back in power, exactly what they were trying to avoid. Maybe they’d have abandoned it because it does more harm than good. But such reform was contingent on Trump’s rejection of lawfare; instead, he has embraced it with reckless abandon.
Democrats will respond to the president’s attack on them by impeaching him. The progressive base will accept nothing less, and at this point congressional Democrats will not need convincing.