Democrats in illegal orders video defiant after DOJ's failed indictment attempt

WASHINGTON — Democratic lawmakers targeted by the Justice Department over a video they made informing service members of their obligation to reject illegal orders were leaving their options open Wednesday to pursue their own legal action to head off any further attempts at prosecution by the Trump administration.

An attorney for Rep. Jason Crow, D-Colo., sent a letter Wednesday to U.S. Attorney Jeanine Pirro demanding her office retain all documents connected with the attempted indictment — a type of letter that’s often a prelude to a lawsuit.

Crow’s letter follows a similar one last week from an attorney for Sen. Elissa Slotkin, D-Mich., who affirmed that she’s still considering a lawsuit and that she sent another letter to the Justice Department on Wednesday morning asking whether the department is dropping the issue after failing to indict her.

“Sitting down and taking it and being quiet doesn’t actually make you safer,” Slotkin said. “Going on offense seems to be the only way to get their attention. So I certainly reserve that right of keeping all those options open.”

Slotkin was speaking at a news conference alongside Sen. Mark Kelly, D-Ariz., after reports surfaced Tuesday evening that the Justice Department tried and failed to secure an indictment against them, Crow and three other House Democrats over their November social media video.

It’s unclear what crime the Justice Department was trying to charge the lawmakers with, and the lawmakers said they learned about the attempted indictment from media reports rather than communication from the department.

In the November video, Slotkin, Kelly, Crow and Reps. Maggie Goodlander, D-N.H.; Chrissy Houlahan, D-Pa.; and Chris Deluzio, D-Pa. — all of whom served in the military or intelligence community — told service members they “can” and “must” refuse illegal orders. The video did not specify which orders the lawmakers believe to be illegal. The Uniform Code of Military Justice says service members are only obliged to follow legal orders and can reject clearly illegal ones.

Video fallout

The video received little fanfare when it was first posted. But after it started drawing fire from conservative media, President Donald Trump lashed out at the lawmakers, calling them “seditious” and saying their actions should be “punishable by death.”

After Trump’s threats, the Pentagon opened an investigation into Kelly, who is still subject to the Uniform Code of Military Justice as a retired officer, and the Justice Department opened an investigation into all six.

The Pentagon investigation resulted in Defense Secretary Pete Hegseth moving to demote Kelly’s retirement rank and thereby cut his military pension. Kelly has sued and is awaiting an initial ruling from a federal judge on his request for an injunction.

While the lawmakers said Wednesday they were relieved a grand jury declined to indict them, they warned the attempt to prosecute them represents an erosion of democracy.

“This is the master alarm flashing for our democracy,” Kelly said. “It is threatening the very foundation of our system. That we have a right to free speech, to lawfully speak out and protest our government without fear of retaliation. That we have a Congress whose responsibility and obligation is to oversee and criticize when necessary the executive branch. That we have a Department of Justice that is independent and loyal to the Constitution, not to one man.”

The Democrats also called on more Republicans to speak out against the attempt to indict them.

In a social media post Wednesday, Sen. Thom Tillis, R-N.C., who is not running for reelection, said that “political lawfare is not normal, not acceptable and needs to stop.” By contrast, Speaker Mike Johnson, R-La., told reporters Tuesday that the six lawmakers “probably should be indicted.”

Asked whether he has any institutional concerns with the attempt to target lawmakers, Senate Majority Leader John Thune, R-S.D., said he thinks the grand jury decision should be the end of the issue.

“It looks like the grand jury came to their conclusion, which I trust our judicial system. That’s the conclusion they arrived at. I think that pretty much lays things to rest as far as I’m concerned,” Thune said.

Speaking on the Senate floor, Senate Minority Leader Charles E. Schumer, D-N.Y., also called on Republicans to speak out and vowed that his party “will not let this witch hunt go unanswered.”

“The American people deserve to know whether prosecutorial power was misused — abused — for political ends,” Schumer said.

‘Accountability’

Meanwhile, in the letter to Pirro, Crow’s lawyer called the Trump administration’s actions “chilling and indefensible.”

“What’s perhaps most surprising is not that your effort to secure a grand jury indictment failed, but that you even tried. Americans are paying attention to your gross abuses of power and demanding accountability,” the letter said.

The letter laid out Justice Department rules for pursuing charges, and special rules for pursuing charges against members of Congress, and said that continuing to pursue the case could be actionable. Crow will not be intimidated by the DOJ, the letter said.

“If these f----ers think that I’m going to back down, that they’re going to bully and intimidate me, they don’t know me,” Crow said Wednesday. “I went to war three times for this country as a paratrooper and an Army Ranger. I will never back down from my oath, and I’m going to continue to resist and continue to fight back against the rising tyranny.”

At a news conference later Wednesday alongside Houlahan, Goodlander and Deluzio, Crow declined to specify if he intends to file a lawsuit. The others were similarly coy about their plans and whether their attorneys have contacted the Justice Department as Crow’s have. But they all vowed a response.

“There will be accountability,” Deluzio said, “and they should be preserving documents and preparing for what’s coming.”

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(Michael Macagnone and Savannah Behrmann contributed to this report.)

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