(WASHINGTON) — The Justice Department’s failure this week to convince a grand jury to hand up an indictment against six members of Congress is the latest stumbling block faced by prosecutors as they seek to rebuke the administration’s perceived political opponents.
The U.S. attorney’s office in Washington, D.C., was unable to secure an indictment against six congressmembers after President Donald Trump called for them to be arrested and tried for posting a video on social media telling military service members that they could refuse illegal orders, sources said Tuesday.
Following a classified briefing on the deadly strikes on alleged drug boats in Latin America, Sen. Mark Kelly, Sen. Elissa Slotkin, Rep. Maggie Goodlander, Rep. Jason Crow, Rep. Chrissy Houlahan, and Rep. Chris DeLuzio, all former members of the military and intelligence community, posted a video in November telling current members that — per the Uniform Code of Military Justice — they should refuse to carry out unlawful orders.
“Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL,” Trump posted to social media in response to the video on Nov. 20.
Prosecutors under U.S. Attorney Jeanine Pirro sought to convince a grand jury to indict the six lawmakers, but the panel did not comply.
It is exceedingly rare for a grand jury to not indict after prosecutors have made their presentation. In fiscal year 2016, the most recent year for which figures are available from the DOJ’s Bureau of Justice Statistics, the DOJ sought federal charges against 69,451 felony defendants — and in only six cases did a grand jury return a vote of no bill, indicating a refusal to indict.
Yet the current Justice Department has faced this outcome several times in recent months while attempting to prosecute perceived foes of the president’s agenda.
“This is pretty rare for a prosecutor to want an indictment and not get one,” University of Illinois Professor Andrew Leipold, an expert on the federal judiciary system, told ABC News. “The most obvious answer is that the government is being aggressive in prosecuting federal crimes, and grand juries are simply not in agreement.”
Vice President JD Vance has said that any such actions are “driven by law and not by politics.”
After a federal judge in November dismissed the cases the Justice Department had brought against former FBI Director James Comey and New York Attorney General Letitia James, the DOJ again sought an indictment of the New York AG.
The move came after U.S. District Judge Cameron McGowan Currie ruled that that the appointment of Trump’s handpicked interim U.S. attorney, Lindsey Halligan, was unconstitutional and that Halligan acted in an “unlawful” and “ineffective” manner when she brought charges of making false statements against Comey and mortgage fraud charges against James.
Ten days after Judge Cameron’s ruling, a federal grand jury in Norfolk, Virginia, refused to indict James on the same charges when the Justice Department attempted to refile the case, according to sources.
A second grand jury in the Eastern District of Virginia’s Alexandria branch then rejected the charges when the DOJ attempted to file the case for a third time.
“This unprecedented rejection makes even clearer that this case should never have seen the light of day,” James’ attorney, Abbe Lowell, said in a statement.
Last August, D.C. prosecutors failed to secure an indictment against a man accused of throwing a sandwich at a Customs and Border Protection agent after video of the confrontation went viral and provoked an all-out public relations blitz from the White House and Justice Department touting his arrest and the federal assault charge against him.
Sean Charles Dunn was arrested on charges of allegedly throwing a Subway sandwich at a CBP agent who was patrolling with Metro Transit Police in northwest Washington on the night of Aug. 9, amid the Trump administration’s deployment of National Guard troops in the capital.
“You f—— fascists! Why are you here? I don’t want you in my city!” Dunn is alleged to have shouted at the CBP officer before allegedly throwing the sandwich, which struck the officer in the chest.
Prosecutors similarly failed to convince a federal grand jury in D.C. to indict a woman who was accused by the government of assaulting an FBI agent during an inmate swap with U.S. Immigration and Customs Enforcement.
The U.S. attorney’s office was unable to secure an indictment against Sidney Reid despite making three separate attempts, according to court records.
ABC News’ Alexander Mallin and Katherine Faulders contributed to this report.
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