The real story isn't that the grand jury rejected Trump's case

Donald Trump became the first former president to be convicted of felony crimes as a New York jury found him guilty of 34 felony counts. Seth Wenig/Pool via REUTERS/File Photo

After citizen rejection of a threatened federal prosecution, what all sides seem to accept is that the very attempt to bring criminal charges against six members of Congress for reminding the military and intelligence officers to question orders they believe illegal has been extraordinary.

The prosecution effort led by U.S. Attorney Jeanine Pirro after spurring from Donald Trump directly abridges free speech, ignores the responsibility of members of Congress to speak out, and the most obvious – that the actions by the six repeatedly what already is in the law and in military training codes. It is, as most informed critics say, more a reflection of a dictatorial regime than any understandable legal case.

What they do not agree on is whether the decision by a grand jury last week to reject any charges – as well as a separate judicial order halting Pentagon hounding of Sen. Mark Kelly, D-Ariz. – should end the matter. From all reports, Justice, which is silent on the matter, is seeking a new venue to try filing charges before a new grand jury.

Obviously, those inside the insular Donald Trump circle disagree basically with the rest of the world about whether there even is a problem here, never mind criminal charges. Trump himself had called for charges of sedition that could involve hanging for members of Congress to speak their mind in a video.

The basic tenet – that active-duty military and intelligence agents not only can, but are obliged by the law, their behavioral code and their oaths – to refuse orders they think are illegal is not at legal issue. What is at issue is that Trump does not like what these six say or the implication that Trump is issuing orders that could be considered "illegal."

But there is a lot still to sort about the why and how of the case and the dangers it represents for a Trump presidency now fully devoted to selectively prosecuting anyone who speaks or acts in opposition, in or out of office. We have the array of cases against former FBI Director James Comey, New York Attorney General Letitia James, an investigation of Fed Board Chair Jerome Powell, and more in cases that refuse to end.

The Grand Jury Said 'No'

Of course, the grand jurors did not appear publicly to explain the decision. What we know, from sources to news organizations, is that not one voted for indictment on a proposed felony crime that makes it illegal to "interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States," not the more serious sedition.

Not only is vocal Trump loyalist Pirro a political appointee, but the two prosecutors presenting the charges also were political appointees — Steven Vandervelden, a former colleague of Pirro in the district attorney's office in New York, and Carlton Davis, a former staffer for House Oversight Committee Chairman Rep. James Comer, R-Ky. When it came time to vote, none of the grand jurors agreed there was sufficient probable cause to charge any of the lawmakers with a crime. The point is that professional prosecution staff had distanced themselves from the case.

Unusual as it is for the Justice Department to be blanked – again – by a citizen grand jury that only hears the prosecution side of a case, that rejection should end it. Apparently not so in this case, since we are told that Justice is shopping for another shot at indictment of the six.

The six include Senators Kelly, former Navy captain, aviator and astronaut, and Elise Slotkin, D-Mich., intelligence officer, Representatives Jason Crow, former Army ranger from Colorado, Maggie Goodlander, Navy veteran from New Hampshire, Chrissy Houlahan, former Air Force officer, and Chris Deluzio, former Navy officer, both from Pennsylvania.

In Congress, many public and more private comments to journalists and one another, reflect anger and astonishment at Trump and Attorney General Pam Bondi for greenlighting criminal charges against fellow legislators who are paid to speak critically of any administration. This is the same Congress that just had aired outraged criticism about former Special Counsel Jack Smith collecting data to confirm that members of Congress had been taking phone calls from Trump during the Jan. 6 insurrection attempt.

Our politics specimen jar is in full undress that Trump thinks he can point to critics and have criminal charges appear evidence-free and immediately – with very real consequences for jail time for having an opinion.

The Mark Kelly Court Case

In the related Washington case, federal Judge Richard Leon, a George W. Bush appointee, blocked the Pentagon from moving to punish Mark Kelly over the video.

"This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees," Leon wrote in his opinion. "After all, as Bob Dylan famously said, 'You don't need a weatherman to know which way the wind blows.'"

War/Defense Secretary Pete Hegseth had ordered a retiree pay cut for Kelly but had threatened to reactivate him to face a court martial. It is unclear whether Hegseth will walk away. What is not addressed outside of remarks from Slotkin to television audiences is that these offices had been getting inquiries about legality of orders from active-duty troops, National Guardsmen, and intelligence officers about various tactical situations in which they increasingly are finding themselves.

Though none of the six specified any Trump orders as illegal, the follow-through "double tap" killings of surviving crewmen from drug raids in the Caribbean seem an obvious source of concern, just as the constant miscommunication and lack of operational rules of engagement for deployment to city streets in which American citizen protesters may be the enemy of the day.

Clearly, Trump, Homeland Security and the Pentagon want total, unconditional, unquestioned control of the military and paramilitary forces they are sending into these situations. The secrecy around what is told to Homeland Security's border police about tactics that include masking and anonymized deployment with protesters and migrants alike have made clear that there are open legal issues.

Kelly, Slotkin, Crow and legal authorities all have made the same point this week: The news was not that this grand jury rejected an absurd presentation for indictment. The news is that the Trump administration insists on bringing the cases, based on political whim.

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