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In 2010, federal grand juries refused only 11 of 162,000 proposed indictments. That’s about 0.007 percent—roughly one in fifteen thousand. The system is designed to make indictments routine.
So on February 10, 2026, something happened that almost never happens in federal criminal cases: a grand jury said no.
Twenty-three ordinary citizens, gathered in Washington D.C. to hear evidence from federal prosecutors, refused to indict six Democratic members of Congress on charges of trying to overthrow the government. The lawmakers—Senators Elissa Slotkin and Mark Kelly, along with Representatives Chris Deluzio, Maggie Goodlander, Chrissy Houlahan, and Jason Crow—had released a video the previous November reminding military personnel they could refuse unlawful orders. President Trump had called for their execution. The Justice Department, led by U.S. Attorney Jeanine Pirro, had sought indictments that could have sent them to prison for twenty years.
Grand juries use a lower standard of proof than trials—showing something probably happened, not proving it beyond reasonable doubt. There’s a reason for the old joke that a prosecutor could get a jury to “indict a ham sandwich.”
The Video That Started Everything
The six lawmakers released their video in early November 2025. All of them had served in the military or intelligence communities—Kelly as a Navy captain and NASA astronaut, Slotkin as a CIA analyst who’d worked at the Pentagon.
The video’s message was straightforward: military members take an oath to the Constitution, not to any individual. And under military law, service members have both the right and the duty to refuse orders they know to be unlawful. This doctrine has been embedded in military law since at least the Vietnam War, when the My Lai massacre established that “I was following orders” isn’t a defense for war crimes.
“Our laws are clear,” Kelly said in the video. “You can refuse illegal orders.”
The video didn’t name Trump. It didn’t identify specific orders to refuse. It stated a principle of existing military law. But it came at a moment when reports indicated the Trump administration had undertaken military operations in the Caribbean and eastern Pacific that allegedly resulted in civilian casualties and raised questions about legal authority.
Trump’s response was immediate and incendiary. On Truth Social, he wrote that the lawmakers had committed “SEDITIOUS BEHAVIOR, punishable by DEATH!” He called them “traitors to our Country” who “should be ARRESTED AND PUT ON TRIAL.”
The federal sedition statute carries a maximum sentence of twenty years in prison, not death. When asked about this discrepancy, White House Spokesperson Karoline Leavitt clarified that Trump wasn’t literally calling for executions—though she stood by calling their conduct seditious.
What Sedition Means
The federal sedition conspiracy statute, found in federal law as Section 2384, makes it a crime for two or more people to conspire to “overthrow, put down, or to destroy by force the Government of the United States” or “to oppose by force the authority thereof.”
Notice what’s required: force. Not speech. Not criticism. Not even harsh disagreement with government policy. You have to conspire with others to accomplish something violent.
There’s a related statute that criminalizes advocating the overthrow of government by force or violence. But again: the advocacy must be directed toward violence. You can say the government is terrible. You can say it should be replaced. You can even say revolution would be justified. What you can’t do—legally speaking—is organize people to commit specific violent acts to make it happen.
This distinction became the battleground in Cold War prosecutions of Communist Party leaders under the Smith Act. In 1951, the Supreme Court upheld convictions in Dennis v. United States, finding that Communist organizing constituted a “clear and present danger.” But the Court gradually retreated from that position. By 1957, in Yates v. United States, it drew a line between abstract advocacy of revolutionary ideas (protected speech) and advocacy of immediate violent action (not protected).
Then came Brandenburg v. Ohio in 1969, which established the controlling standard we still use today: speech can be restricted only if it’s “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.”
Imminent. Likely. Those words do heavy lifting.
The six lawmakers’ video doesn’t come close to meeting the legal standard for when speech can be restricted. It wasn’t calling for immediate mutiny. It wasn’t identifying specific orders to refuse right now. It was restating existing military law about a principle—the right to refuse unlawful orders—that’s taught at military academies and embedded in the military’s official rules for courts-martial.
America’s Sedition Prosecutions
America’s experience with sedition prosecutions is not a proud one.
The Sedition Act of 1798 made it illegal to publish “false, scandalous and malicious writing” about the government. The Adams administration used it primarily to prosecute editors of opposition newspapers—Democratic-Republicans who criticized Federalist policies. At least twenty-six people were prosecuted. One was a sitting member of Congress, Representative Matthew Lyon of Vermont, who went to prison for publishing letters critical of President Adams.
The prosecutions backfired spectacularly. The convicted editors became folk heroes. In the 1800 election, voters swept the Federalists from power. They never recovered. President Jefferson pardoned everyone convicted under the act, and it expired when Adams left office.
Nearly 170 years later, the Supreme Court would write in New York Times Co. v. Sullivan that “the attack upon [the Sedition Act’s] validity has carried the day in the court of history” and that it violated “fundamental First Amendment principles.”
The twentieth century brought new sedition prosecutions during World War I and the early Cold War. Government officials used sedition charges to silence political opponents and suppress dissent during moments of national anxiety. The Supreme Court eventually imposed stricter limits on such prosecutions, recognizing that political speech—even radical political speech—sits at the core of First Amendment protection.
When seditious conspiracy charges have been brought in recent decades, they’ve involved planning for imminent violent acts. The 1990s prosecutions of Islamic militants who plotted to bomb New York landmarks. The January 6 cases involving Oath Keepers and Proud Boys who organized violent action to prevent the transfer of presidential power. Those involved concrete plans for specific violent acts, not videos discussing military law.
The attempt to prosecute six lawmakers for reminding soldiers about unlawful orders looks less like those and more like the Adams administration going after newspaper editors.
When Juries Push Back
Former U.S. District Judge John E. Jones III called the refusal “completely aberrational” in his nearly twenty years on the federal bench. Speaking to The Conversation, Jones said: “I don’t recall a single instance, during the almost 20 years I served as a U.S. District judge, when a grand jury refused to return a true bill, an indictment.”
But it’s been happening more often in Washington D.C. lately. Juries have refused to indict in multiple prosecutions brought by Trump administration lawyers—charges involving alleged threats against the president, immigration enforcement, various politically charged matters. One woman accused of making online threats against Trump was rejected by grand juries twice.
Jones thinks he knows why: “I think we now have entered a world where the Department of Justice has lost its credibility with the judiciary.”
That’s a remarkable statement from a federal judge. He’s saying that prosecutors have told enough demonstrable falsehoods in court that judges and jurors no longer trust what they’re being told.
Legal scholar Phil Andonian has suggested that jury refusals may reflect concerns about using the law to target political enemies and “doubt about the credibility of the underlying facts.” Jurors see what’s happening in the world around them. They read newspapers. They understand context. And when prosecutors present matters that look like political persecution rather than legitimate law enforcement, jurors can say no.
The Fifth Amendment’s grand jury requirement exists to put citizens between the accused and the government as a check on power. When jurors scrutinize what prosecutors are telling them and reject matters that don’t merit prosecution, the system is functioning as designed.
The Jeanine Pirro Problem
The prosecutor who sought these indictments wasn’t a career Justice Department lawyer. She was Jeanine Pirro, former Fox News host, appointed as U.S. Attorney for the District of Columbia in August 2025.
The Senate confirmed her on a party-line vote of 50-45. Her prosecutorial experience was limited. Her loyalty to Trump was not.
Under Pirro’s leadership, the U.S. Attorney’s Office pursued the sedition charges despite what appears to have been a weak legal foundation. The office also sought indictments in the other matters that juries refused—the alleged threats, the immigration charges, various politically charged prosecutions that kept getting rejected.
Senator Slotkin stated publicly that “Pirro did this at the direction of President Trump, who said repeatedly that I should be investigated, arrested, and hanged for sedition.” If true—and Trump’s public statements certainly support that characterization—it represents using prosecutors to punish political enemies, exactly what post-Watergate rules were designed to prevent.
In February 2025, the Attorney General issued a policy stating that prosecutors may not be “influenced” by a person’s “political association, activities, or beliefs” in deciding whether to prosecute. The sedition prosecution of six lawmakers—occurring after the president’s public demands and framed as response to their political speech—appears to violate that policy.
A Pattern of Political Prosecutions
The Protect Democracy project has documented numerous investigations and prosecutions brought by the Trump administration’s Justice Department against political opponents and critics, often preceded by direct statements from Trump calling for prosecution.
Former FBI Director James Comey. Former New York Attorney General Letitia James. Journalist Don Lemon. Lawmakers who criticized administration policies. The list goes on.
Some of these prosecutions have been dismissed by federal judges. In the Comey and James matters, a judge found that the interim U.S. attorney appointed to prosecute them had been unlawfully appointed in violation of constitutional rules about how officials are appointed and dismissed the indictments.
The administration’s track record in federal courts has been poor. One detailed study found that in 128 matters, the Trump administration won only five while losing 49, with 72 dismissed. That’s a loss rate that suggests federal judges have developed serious skepticism about the legal theories being advanced by administration lawyers.
The six lawmakers fit a pattern: political opponents who criticized administration policies and spoke out on matters the administration wanted silenced. Their video came in response to reported military operations that raised concerns about civilian casualties and potential legal violations. Instead of debating the policy merits, the administration chose criminal prosecution.
What Military Law Actually Says
Military law makes clear that while military personnel must obey lawful orders, they have no duty—indeed, they have an obligation to refuse—orders that are unlawful. Article 92 addresses failure to obey lawful orders. Article 90 addresses willful disobedience of a lawful command. But these provisions operate within a framework that presupposes some orders may be unlawful and should not be obeyed.
The military’s official rules for courts-martial specify that an order must “not conflict with the statutory or constitutional rights of the person receiving the order.” Military courts have consistently held that service members cannot be prosecuted for refusing orders that violate the Constitution or federal law.
The My Lai precedent from Vietnam established that military members cannot hide behind “I was following orders” when an order is clearly unlawful. Soldiers have an affirmative duty to refuse such orders. This principle has been embedded in military law and training for generations.
By reminding military members of this legal reality, the six lawmakers were stating established military law, not inventing seditious doctrine. The video was educational about existing law, not calling for revolutionary change.
First Amendment Protection for Political Speech
When the six lawmakers released their video, they were engaging in political speech on a matter of profound public concern. The question of whether military members have obligations regarding unlawful orders involves both constitutional law and military ethics—topics that sit at the core of First Amendment protection.
The Supreme Court has been protective of speech addressing fundamental questions about government power, military action, and the constitutional order. Even angry, provocative, or emotionally charged political speech receives substantial protection unless it crosses the line into incitement to imminent lawless action.
The legal standard for when speech can be restricted creates significant problems for any sedition prosecution based on the video. It wasn’t directed at causing immediate action. It didn’t identify specific orders to refuse. The audience was soldiers and intelligence officers trained in law and military regulations, not a mob being incited to violence. The video was released by sitting lawmakers speaking on matters of constitutional significance, which attracts stronger legal protection.
There’s also a constitutional rule protecting members of Congress, which shields them from being “questioned in any other place” regarding their speech or debate. While the video wasn’t technically a floor speech, the underlying principle—that prosecutors cannot easily silence lawmakers through criminal charges—suggested constitutional complexity in any prosecution.
When Senator Kelly filed a lawsuit challenging Defense Secretary Pete Hegseth’s efforts to censure and demote him for his speech, federal Judge Rudolph Contreras ruled that Kelly’s speech was “unquestionably protected speech” involving “matters of public concern” that are at the heart of the First Amendment. The same analysis would apply to the sedition question.
What Happens Next
The jury’s refusal provides temporary legal protection for the six lawmakers. Prosecutors would have a hard time bringing charges again, though reports indicate the Justice Department sometimes does that.
The refusal also signals to other prosecutors that juries may scrutinize matters involving political figures and political speech with particular care. That might cool some prosecutorial enthusiasm for aggressive charging in politically sensitive matters. Or it might not—the Trump administration has shown little inclination to moderate its approach based on legal setbacks.
Meanwhile, Kelly pursued separate legal action against Hegseth for the administrative punishments imposed on him as retaliation for the video. On February 12, 2026, a federal judge ruled in Kelly’s favor, finding that the military discipline violated his First Amendment rights and that Hegseth’s censure was likely to discourage the free speech rights of other retired military members.
Kelly’s victory in court, combined with the jury’s refusal to indict, represents a significant check on the administration’s efforts to silence the lawmakers through either criminal or administrative punishment.
But the fact that federal prosecutors felt empowered to seek sedition charges against sitting lawmakers for speaking on matters of constitutional significance is troubling. That President Trump felt able to publicly demand prosecution and execution. That the U.S. Attorney proceeded with charges after such demands.
The jury said no. Federal judges said no. The system worked, barely, this time.
The question is whether these institutional checks will prove sufficient as the Trump administration continues testing the boundaries between legitimate law enforcement and political persecution. The sedition matter will be remembered as a moment when ordinary citizens on a jury looked at what prosecutors were asking them to do and decided it was a bridge too far.
Twenty-three people who probably never expected their jury service to become historically significant made a decision that reaffirmed a basic principle: in America, you can still criticize the government, you can still remind people of their legal rights, and you can still speak out on matters of public concern without facing sedition charges.
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