What Safeguards Exist Against Weaponizing Criminal Law for Politics

Last updated 2 hours ago. Our resources are updated regularly but please keep in mind that links, programs, policies, and contact information do change.

A federal grand jury in Washington, D.C. did something this week that almost never happens: they refused to indict. The target was six Democratic members of Congress. The charge prosecutors sought was 18 U.S.C. § 2387, a statute prohibiting advising insubordination in the military, though administration officials used sedition rhetoric to describe the conduct. The evidence: a video in which these lawmakers—all with military backgrounds—reminded service members that they can refuse unlawful orders.

Federal grand juries reject indictments in roughly one out of every 14,700 cases. This case was one of those rare rejections.

The refusal raises an uncomfortable question: What stops prosecutors from using criminal law as a political weapon? Based on this case, several safeguards that are supposed to prevent exactly this kind of overreach appear to have failed. The jury—ordinary citizens, not legal experts—ended up as the last line of defense.

The Lawmakers’ Statement on Military Law

In November 2025, Senators Mark Kelly and Elissa Slotkin, along with Representatives Jason Crow, Chrissy Houlahan, Chris Deluzio, and Maggie Goodlander, released a video addressed to military personnel. Their message was straightforward: “You can refuse illegal orders. You must refuse illegal orders.”

This reflects Article 92 of the Uniform Code of Military Justice. Military academies teach this principle. It dates back to the Nuremberg trials. The Army Field Manual spells it out. Following an unlawful order isn’t a defense if you’re prosecuted for crimes committed under that order—ask anyone who studied the My Lai massacre.

The lawmakers didn’t advocate force. They didn’t plan violence. They didn’t conspire with anyone to do anything. They explained existing military law on camera. That prosecutors characterized this conduct using sedition rhetoric—historically a charge that carried the death penalty—tells you something about how far the definition of criminal conduct can stretch when political motivation enters the picture.

When Federal Juries Refuse to Indict

Federal prosecutors enjoy what defense attorneys sardonically call the “ham sandwich” standard—prosecutors can indict almost anyone, the joke being they could indict a ham sandwich if they wanted.

So when a jury says no, something has gone seriously wrong with the government’s case or seriously right with the jury’s judgment.

Washington, D.C. grand juries have now refused multiple indictments in recent months. One involved a defendant accused of threatening to kill the president on Instagram, but the jury declined. Another involved someone who allegedly threw a sandwich at a federal officer. A third case involved alleged interference with immigration enforcement.

The Constitution requires that serious federal crimes need a jury’s approval before charges can proceed specifically to place citizens between the government and the accused. The people who wrote the Constitution wanted a “shield” against oppressive prosecutions. For most of modern history, that shield has been decorative. These refusals suggest it might still have some function beyond theater.

Constitutional Protections That Failed

Juries are supposed to be a last resort, not the first line of defense. Multiple other safeguards should prevent politically motivated prosecutions from ever reaching a jury.

There’s a constitutional rule that protects members of Congress from being prosecuted for their official speech. The Supreme Court has interpreted this broadly to protect Congress’s job of explaining things to the public—explaining matters of public concern to constituents. A video about military law and constitutional obligations falls squarely within that function. Prosecuting members of Congress for explaining the law to the public would destroy the clause’s purpose: preventing the executive branch from silencing congressional speech through prosecutorial threats.

Justice Department Rules and Oversight Mechanisms

Justice Department rules for prosecutors explicitly state that prosecutors should never be influenced by “the person’s race, religion, sex, national origin, or political association, activities or beliefs.” The rules further prohibit making prosecution decisions “for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” These rules exist because the Watergate scandal demonstrated what happens when prosecutors become political operatives.

The Justice Department created an office in 1975 to investigate when prosecutors break the rules. A team also reviews cases involving elected officials before charges could proceed.

According to recent analysis by legal experts at the Brennan Center, the Trump administration has deliberately shut down these oversight mechanisms. The team reviewing cases involving elected officials has been stripped of its review authority. Career prosecutors who might have declined to pursue legally questionable cases no longer have that opportunity—the cases go straight to juries.

Prosecutors have reportedly been instructed to “simply bring together new grand juries” if juries refuse to indict. This directly contradicts Justice Department policy requiring approval from higher-ups before resubmitting a case after jury rejection. It defeats the entire purpose of the jury as a check on prosecutorial power. If prosecutors can keep trying until they find a jury willing to indict, the safeguard becomes meaningless.

Judicial Safeguards After Indictment

Even after indictment, courts have tools to dismiss prosecutions that violate constitutional rights or reflect prosecutorial misconduct. Defendants can argue they were unfairly singled out while others who did the same thing weren’t charged, and that the selection was based on an unconstitutional factor like political affiliation or exercise of constitutional rights.

Another legal principle prevents prosecutors from retaliating against defendants for exercising constitutional rights by bringing or escalating charges. Prosecuting members of Congress for political speech opposing the administration would be a clear example of punishing someone for exercising their rights.

Defendants can move to dismiss on First Amendment grounds, arguing that the charged conduct is protected political speech that can’t be criminalized.

Prosecutors must give defendants evidence that could prove them innocent. Justice Department rules require this. If prosecutors failed to tell jurors that the lawmakers’ statements reflected established military law, that would violate Justice Department rules.

These judicial safeguards matter. But they only activate after someone has been indicted, arrested, and forced to hire lawyers and mount a defense. They don’t prevent the prosecution from being brought. They don’t prevent the reputational damage, the legal fees, the stress of facing potential decades in prison for protected political speech.

Comparing This Case to Actual Seditious Conspiracy

The Oath Keepers militia members who participated in the January 6 Capitol attack were convicted of seditious conspiracy in 2022. Those prosecutions involved evidence of weapons caches, tactical planning, coordination among militia members, and violence at the Capitol. The defendants had discussed using force to prevent the peaceful transfer of power. They had brought firearms to the Washington area. They had stormed the Capitol building. They had assaulted police officers.

The case against the six lawmakers involved none of that. No weapons. No violence. No planning of violence. No conspiracy. The video explained military law. The contrast illuminates how prosecutors characterized conduct far beyond what sedition statutes actually require or what the Constitution allows.

The administration apparently believes that explaining the law to military personnel constitutes sedition, while attempting to overturn an election through force does not. That’s not a legal judgment. It’s a political one.

Jury Shopping and Next Steps

Reports suggest the Justice Department may present the case to a different jury, attempting to override the first jury’s refusal. Justice Department rules discourage this practice and require approval from higher-ups, but supervisors have reportedly authorized it in other recent cases.

If prosecutors pursue this course, it would represent a deliberate effort to circumvent the jury’s constitutional function. The people who wrote the Constitution included the jury requirement specifically to prevent the government from prosecuting people when citizens believe the prosecution is unjust. Shopping for a different jury until you find one willing to indict defeats that purpose entirely.

If the Justice Department obtains an indictment from a subsequent jury, defense attorneys would file motions to dismiss based on the First Amendment, the constitutional rule protecting congressional speech, the principle that defendants can’t be unfairly singled out, and the principle that prevents prosecutors from punishing people for exercising their rights.

But the process itself becomes the punishment: legal fees, public accusations, the stress of facing potential capital charges for explaining military law. Even if the prosecution fails, it succeeds in demonstrating that opposing the administration carries severe personal costs.

Broader Pattern of Institutional Breakdown

This case doesn’t exist in isolation. It’s part of a broader pattern of institutional safeguards either failing or being deliberately dismantled. Legal experts at the Brennan Center have documented how the systems that check whether prosecutors are breaking the rules have been deliberately weakened. The office that investigates when prosecutors break the rules has been sidelined. The team that reviews cases involving elected officials no longer reviews politically sensitive cases. Career prosecutors who would have applied professional judgment to weed out weak or improper cases have been bypassed.

The result is that cases that would never have reached a jury under normal Justice Department procedures are now being presented directly to citizens with no legal training and no context beyond what prosecutors choose to provide. The jury was designed as a safeguard, but it was supposed to be one of several layers of protection. When all the other layers fail, asking ordinary citizens to stand alone against prosecutorial pressure is asking a lot.

That some juries are doing exactly that—refusing to indict in cases that appear politically motivated or legally unsound—is remarkable. It suggests that the constitutional design still has some resilience. But it also highlights how much we’re now depending on the judgment of twelve random citizens in a room, rather than on institutional checks and professional standards that should prevent these prosecutions from being pursued in the first place.

Implications for Fair Prosecution

For the justice system to work, prosecutors need to treat everyone fairly regardless of politics. When prosecutors can bring charges against elected officials for explaining military law, that principle is under serious threat.

The jury’s refusal to indict demonstrates that at least one constitutional safeguard still functions. Citizens, when asked to participate in a prosecution that appears unjust, can decline. That’s a profound exercise of civic responsibility and constitutional power.

But the fact that this safeguard was needed at all—that prosecutors would attempt such a prosecution, that internal Justice Department review processes failed to stop it, that the case reached a jury despite obvious constitutional problems—reveals how fragile the other protections have become.

Legal scholars have called for strengthening internal Justice Department oversight, reconstituting the supervisory role of the team that reviews cases involving elected officials, and implementing clearer policies restricting political considerations in prosecutorial decisions. Some have suggested that Congress should consider legislation requiring higher-level approval for prosecutions of elected officials or establishing additional procedural safeguards. Others argue that courts must exercise extra careful review when examining prosecutions that appear politically motivated.

These proposals matter only if the Justice Department and the administration respect them. Written policies only matter if someone enforces them. Oversight mechanisms only function if they’re allowed to function. Constitutional protections only work if courts are willing to enforce them and if prosecutors respect them.

When ordinary citizens become the last line of defense against prosecutors going too far, the system is already in trouble. The question isn’t whether this particular prosecution failed. The question is how many other protections will need to fail before the next one succeeds.

Our articles make government information more accessible. Please consult a qualified professional for financial, legal, or health advice specific to your circumstances.