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Washington — A federal grand jury on Tuesday refused to indict six congressional Democrats who drew President Trump’s ire last year by taping a video telling members of the military that they must reject “illegal orders,” according to three sources familiar with the matter, including one within the Justice Department.
The Democratic lawmakers are the latest Trump foes that the Justice Department has sought criminal charges against, following former FBI Director James Comey and New York Attorney General Letitia James. After the lawmakers’ video was posted in November, the president called their comments “seditious” and demanded that they be “arrested and put on trial.”
The news of the declined indictment was first reported by The New York Times.
CBS News has reached out to the Justice Department for comment.
Two sources who were briefed on the matter told CBS News the Justice Department sought to charge the lawmakers under a criminal statute known as 18 U.S.C. § 2387.
That law threatens a 10-year maximum prison sentence for anybody who “advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military.” It requires intent to “interfere with, impair, or influence the loyalty, morale, or discipline of the military.”
All six Democrats publicly condemned the move and applauded the grand jury.
Sen. Elissa Slotkin of Michigan said the president was seeking to “weaponize our justice system against his perceived enemies,” while Sen. Mark Kelly of Arizona called it an “outrageous abuse of power.” Rep. Jason Crow of Colorado wrote in a statement, “Don’t Give Up the Ship,” and Rep. Chris Deluzio of Pennsylvania said “I will not be intimidated for a single second.”
Meanwhile, Rep. Maggie Goodlander of New Hampshire said the grand jury “honored our Constitution” and Rep. Chrissy Houlihan of Pennsylvania called the grand jurors’ refusal to indict “good news for the Constitution.”
Republican Sen. Thom Tillis of North Carolina criticized the move by the Justice Department and praised the grand jury for declining to charge the lawmakers.
“Political lawfare waged by either side undermines America’s criminal justice system, which is the gold standard of the world. Thankfully in this instance, a jury saw the attempted indictments for what they really were,” he wrote on X on Wednesday morning. “Political lawfare is not normal, not acceptable, and needs to stop.”
It is highly unusual for grand juries to decline indictments, but the Justice Department has struggled with grand juries in recent months, especially in politically charged cases. After a federal judge tossed out the federal charges against Comey and James in Virginia, two different grand juries refused to re-indict James on bank fraud charges.
“The attempt to indict these members of Congress is shocking, more so than the indictments of James Comey and Letitia James. It is not enough that the grand jury declined to indict. Every Justice Department attorney involved in submitting this indictment for the grand jury’s consideration has violated the rules of professional conduct, including supervisors,” said Kyle Boynton, a former federal prosecutor who also advised lawyers at the department on professional conduct rules for the Office of Professional Responsibility.
“No lawyer, competent or otherwise, could have looked at the statute and concluded this plainly protected speech constituted a felony,” Boynton added. “Because the Justice Department’s Office of Professional Responsibility will do nothing, the District Court should immediately begin an inquiry into this misconduct and make appropriate referrals to the DC Bar.”
Tuesday’s attempted indictment stemmed from a 90-second video in which the six Democrats — all of whom are military veterans or former intelligence community members — told military personnel that they “must refuse illegal orders.”
The lawmakers said the video was prompted by a series of proposals by Mr. Trump to use the military in ways they view as illegal, like his 2016 suggestion to kill the families of terrorists or his threat to send troops to Chicago. The video also came amid a monthslong campaign of U.S. strikes against alleged drug-carrying boats that some congressional Democrats have argued is illegal.
Legal experts say members of the military are required to follow legal orders, but they aren’t required to follow illegal ones, and in certain cases, when orders are “manifestly unlawful,” they are required to disobey them.
But Defense Secretary Pete Hegseth argued the video “sows doubt and confusion — which only puts our warriors in danger.” Meanwhile, Mr. Trump accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!”
A week after the video was posted, the lawmakers were notified that the FBI had opened an inquiry into the matter. Last month, most of the Democrats who appeared in the video said they received inquiries from the Justice Department, including interview requests from U.S. Attorney for D.C. Jeanine Pirro in some cases.
In Kelly’s case, the Pentagon attempted to downgrade the retired Navy captain’s rank and retirement pay, accusing him of undermining the chain of command. Kelly sued Hegseth over the move, which he called an act of political retribution. That case is still pending.
The effort to indict the lawmakers has drawn stiff criticism from Democrats. Sen. Adam Schiff of California, a longtime Trump foil, wrote on X Tuesday that the six members of Congress were merely “stating the obvious” in their video about illegal orders.
“That the DOJ would even contemplate such an action demonstrates what a repressive regime is now running this country,” Schiff said.
House Speaker Mike Johnson, a Louisiana Republican, told reporters late Tuesday the Democrats “probably should be indicted.”
