Lawyers shocked Trump DOJ forged ahead with charges — but couldn’t name a violated statute

Jeanine Pirro at the 2022 Student Action Summit in Tampa, Florida on July 23, 2022 (Gage Skidmore/Flickr)

President Donald Trump and his MAGA allies, including Defense Secretary Pete Hegseth, were furious when six Democrats — including Sen. Mark Kelly (D-Arizona), a military veteran, and Sen. Elissa Slotkin (D-Michigan), a former CIA analyst — posted a video telling members of the U.S. military they are obligated to defy orders from Trump if they are blatantly illegal. Trump angrily attacked them as "traitors," demanding criminal charges and saying they should be "arrested and put on trial."

But on Tuesday, February 10, a federal grand jury decided against indicting them on charges being pushed by Trump allies in the U.S. Department of Justice (DOJ).

In an article published on February 18, The New Republic's Greg Sargent stresses that while the grand jury's decision is "good news," the "details of how this indictment came together should caution us against letting Trump and (federal prosecutor Jeanine) Pirro's pie-in-the-face antics distract from how grave an abuse of power this truly was —and continues to be."

"Here's what happened: After the FBI communicated with the Democratic lawmakers, prosecutors in Pirro's office reached out to them to follow up," Sargent explains. "Slotkin's attorney, Preet Bharara, directly asked prosecutors what statute the Democrats had allegedly violated to prompt the criminal inquiry, according to sources familiar with these discussions. The prosecutors could not name any statute, the sources told me. 'What is the theory of criminal liability?' is the question that was posed to the prosecutors, one source said, adding that 'no answer was forthcoming.'"

Sargent continues, "And so, when the news broke that Pirro had tried — and failed — to secure an indictment, this was particularly shocking to the lawyers, the sources said. That's because her prosecutors had failed to name any violated statute, yet they forged ahead with the effort to indict anyway. It has not been definitively confirmed what statute they used in that failed effort."

In a letter to Pirro in early February, Bharara wrote, "The prosecutors we spoke to in your office, though courteous, could not articulate any theory of possible criminal liability or any statute that they were relying on or that could have been violated."

But according to Sargent, the "whole process appears to have been considerably more corrupted" than the "lawyerly language" in Bharara's letter "suggests."

Sargent reports, "First, the failure to name a relevant statute when directly asked to do so by the lawyers for the accused suggests prosecutors didn't think a criminal prosecution was warranted or doubted there was probable cause to think the Democrats had committed a crime. In fact, one source familiar with these discussions tells me the prosecutors' general tone in them suggested they were making the sort of inquiry that normally comes at the very outset of the investigative process…. For the DOJ to seek an indictment so soon after conversations like those suggests something or other prompted the rush to indict, perhaps a word from on high that — let's go way out on a limb here — had little to do with facts and law."

Kristy Parker, a former DOJ prosecutor who now serves as counsel for the group Protect Democracy, told Sargent, "That is irregular. Typically, when someone is the target of a criminal investigation, it's unusual to dissemble with the target's lawyer about what the charges might be that close to an indictment. It's not how federal prosecutors are supposed to conduct themselves."

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