Reports indicate that a grand jury might have unanimously voted down the proposed indictment.
The “Seditious Six” have prevailed.
A couple of weeks ago, we looked at the Trump Justice Department’s self-abasing attempt to indict six Democratic members of Congress in connection with a video in which they admonished American military personnel to resist complying with unlawful orders. At the time, media reports indicated a federal grand jury had rejected a proposed indictment in Washington, D.C., where Jeanine Pirro is the Trump-appointed, Senate-confirmed U.S. attorney.
Things turn out to be even worse than they originally seemed. The latest reports say the grand jury may have been unanimous in rejecting the indictment. If true, that’s humiliating.
There are up to 23 members of a grand jury. (A quorum of 16 is needed to consider cases.) A majority of twelve is necessary to approve an indictment. Grand jurors hear only the government’s side of the case (prosecutors are not even required to present exculpatory evidence known to them). And unlike a trial jury, which cannot find guilt absent proof beyond a reasonable doubt, the grand jury can indict based on the low standard of probable cause. (The standard is low because the grand jury’s constitutional function is to ensure that there is sufficient evidence to warrant having a trial, at which the accused gets the full array of due process protections. The grand jury does not try the case.)
Historically, a no true bill (the document the grand jury files with the court when it rejects an indictment) is rare in federal prosecutions. (I explained here why they should not happen, and I only recall two or three happening at the Southern District of New York U.S. Attorney’s Office in the nearly 20 years I was a prosecutor there.) Reportedly, however, they are becoming if not frequent occurrences then noticeably less uncommon ones in the District of Columbia. That deeply blue city that is implacably hostile to Trump is a place where the Trump administration has done some its edgiest law enforcement. (D.C. is also a federal city, so its grand juries hear many petty-crime cases that would not be federal crimes in the 50 states.)
I must say, though, that I have never heard of a unanimous no true bill. If a prosecutor in good faith believes a case is worthy of presentment to a grand jury, it seems inconceivable that a handful of grand jurors — or at least one — could not be persuaded to indict.
Grand jury proceedings are secret by statute, so we cannot know for sure what happened. There is no public record of the voting margin. The foreperson files a document with the clerk indicating how many grand jurors voted in favor of indicting, but that document is not public (unless the court orders its disclosure, which is rare). Consequently, even if a grand juror or two anonymously told a journalist that there had been a unanimous vote against an indictment, there would be no public record to verify that claim.
Whatever happened, it evidently convinced Pirro and Main Justice to drop the investigation of the six Democrats. Anonymous sources have confirmed to some outlets (such as CBS News) that prosecutors will no longer pursue charges against the lawmakers.
The Democrats’ video was an obnoxious exercise in anti-Trump preening for the party’s base — potentially disruptive given that (1) our exceptionally well-trained forces know that the Uniform Code of Military Justice (UCMJ) mandates obedience only to lawful orders, (2) the Democrats did not specify what particular, allegedly illegal orders they had in mind (the timing suggested it was the Trump Defense Department’s use of lethal force against ships in the Caribbean suspected of ferrying illegal drugs), and (3) since each of the six was a veteran of either the military services or intelligence agencies, they should uniquely have understood that sowing doubt in the minds of soldiers about their commanders’ presumptively valid orders could undermine military discipline.
That said, the video was not, as President Trump absurdly inveighed, evidence of “SEDITIOUS BEHAVIOR, punishable by DEATH!” Nor did it transgress the law against promoting military insubordination (Section 2387 of the federal penal code), a felony punishable by up to ten years’ imprisonment. There is no way prosecutors could prove beyond a reasonable doubt that, by reminding soldiers not to be lawless, the Democrats had somehow encouraged lawlessness. The First Amendment, moreover, protects even false speech in the nature of political dissent as long as it does not incite violence or lawlessness — and such incitement is virtually the antithesis of an admonition to not be lawless. Finally, as the six prosecution targets were members of Congress, it was an abuse of power for the executive branch to exploit the government’s law enforcement apparatus against them in the absence of a patent crime.
In the meantime, on February 12, Judge Richard Leon, a Bush 43 appointee to the district court in Washington, D.C., issued a preliminary injunction blocking Defense Secretary Pete Hegseth from downgrading or otherwise punishing Senator Mark Kelly (D., Ariz.) for his role in the video. Because he is a retired Navy captain, Kelly is subject to being recalled to duty and therefore still under UCMJ jurisdiction.
To repeat what I contended in the column linked above, the president’s inclusion of the armed forces in lawfare against his political enemies is perhaps the most alarming development of this sorry episode. That, coupled with the use of Justice Department enforcement processes against members of Congress, ensures that Democrats will turn up major heat if they win the November midterm elections and take control of the House at the start of next year.