Angry Trump Humiliated as Effort to Prosecute Dems Backfires Again

Let’s start with some good news: Donald Trump’s efforts to jail his Democratic enemies have thus far mostly been marked by ham-fisted, buffoonish failure. The targeting of people like Senator Adam Schiff, former FBI director James Comey, New York Attorney General Letitia James, and six Democratic lawmakers who produced a video that displeased the angry, ailing despot have, for now at least, largely faltered.

Yet—after all, there’s always bad news in the Trump era—a dynamic has kicked in that is oddly helpful to him. Thanks to the knee-slapping, comic-relief-inducing nature of these failures, the authoritarian abuses underlying them risk being seen as less threatening than they actually are. That could potentially disarm us for the next round, which will surely come.

Case in point: Trump’s efforts to indict those six Democrats, who all spoke in a video posted late last year that warned military servicemembers and officials against carrying out illegal orders. After that video was posted, Trump raged that they were “traitors” who should be “ARRESTED AND PUT ON TRIAL,” leading the FBI to reach out to the lawmakers to set up interviews.

But last week, federal prosecutors failed to secure an indictment against the lawmakers, who include Senators Mark Kelly and Elissa Slotkin and four House members. Indeed, the grand jury unanimously rejected the indictment—a major embarrassment for Trump and Jeanine Pirro, the U.S. attorney in Washington, D.C., a central player in Trump’s efforts to prosecute his enemies. As NBC News’ Ryan Reilly notes, it’s rare for grand juries not to indict, so the inability to persuade even one juror represents a remarkable implosion.

Yet details of how this indictment came together should caution us against letting Trump and 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. 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.”

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.

Bharara hinted at all this in a letter to Pirro in early February. “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,” Bharara wrote.

Yet this whole process appears to have been considerably more corrupted than this letter’s lawyerly language suggests, as the sources recount.

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.

“They characterized the state of play as very preliminary—as very, very early,” one of the sources told me, speaking about the prosecutors. The U.S. Attorney’s office declined to comment on these claims.

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. Legal experts tell me it’s odd for prosecutors to fail to state any theory of criminal liability and then attempt an indictment anyway so quickly.

“That is irregular,” Kristy Parker, counsel at Protect Democracy and a former federal prosecutor, told me. “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.”

Meanwhile, Bloomberg reports that Pirro brought in two outsiders to prosecute the case against the Democrats, one of whom is a dance photographer who worked for Pirro decades ago. Together they have very little Justice Department experience, suggesting they may have been tapped to carry out cases that career prosecutors might be reluctant to attempt—special projects, as it were, for the benefit of the Audience of One.

The sum total of all this is jarring. “It seems at least to suggest that the prosecutors were not the ones calling the shots, and that what they thought they were doing got run over by their bosses,” Georgetown law professor Stephen Vladeck told me. “DOJ’s credibility depends on public faith that prosecutions are brought when the law justifies it, not when the political leadership of the administration demands it.”

Trump’s case against these lawmakers is absurdly weak. In declaring that members of the military are not obliged to follow illegal orders, the Democrats were merely stating what the law says. Despite Trump’s suggestion that this constituted an effort to foment military rebellion against the commander in chief, they didn’t even name any particular order that was supposed to be illegal. Also, the video is constitutionally protected speech to begin with.

In a hard-hitting assessment of the DOJ’s targeting of Trump’s enemies, Politico columnist Ankush Khardori notes that they’ve produced a string of embarrassing pratfalls. Those include the stalling-out efforts aimed at James, Comey, and Schiff, and even a baseless effort to prosecute Federal Reserve chair Jerome Powell, essentially for making Trump angry, which has backfired, sparking widespread criticism. The failed prosecution of Democratic lawmakers, Khardori writes, is Pirro’s “highest-profile flop to date.”

Yet the stakes here remain extraordinarily high. Anyone targeted in this way must sink enormous time and money into self-defense. This threatens to stifle dissent among lawmakers, institutions and prominent individual critics who might muzzle themselves rather than face investigation and potential prosecution. Indeed, it probably already has.

It’s easy to get seduced by the Keystone Kops vibe to all this. But these Keystone Kops continue to wield the enormous power of the federal criminal justice bureaucracy, and they have tethered it to the chaotic whims of a Mad King who thinks that being a Democrat who criticizes him is a prosecutable crime. That they’ve failed so far is heartening. But all indications are that Trump will continue demanding these prosecutions until one of them succeeds—or, possibly, until many more than one does.