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The jury refused to charge them.
What Grand Juries Are Supposed to Do
The Constitution requires that before the federal government can prosecute you for a serious crime, it must convince a group of randomly selected citizens that enough evidence exists to believe a crime probably happened. Not proof beyond a reasonable doubt. A reasonable chance that something happened—a standard that’s deliberately set low.
This requirement exists because the framers, fresh from experience with British tyranny, feared prosecutors might abuse their charging power to silence dissent or crush political rivals. The jury was meant to be a shield: people standing between government prosecutors and the accused.
For decades, that shield gathered dust. Federal prosecutors maintained sophisticated internal review procedures that killed weak cases long before juries ever saw them. A special unit called the Public Integrity Section, staffed by career prosecutors with no political appointment, specifically vetted cases involving elected officials to ensure charging decisions weren’t politically motivated.
Then juries began saying no.
The Video and the Charges
The video was posted publicly. It didn’t name Trump, identify any specific order, or do anything beyond restating existing law.
Military law (specifically Article 92 of the Uniform Code of Military Justice) makes it a crime to violate a lawful order—but the order must be lawful. Military education has long taught that service members have both the right and obligation to refuse orders they believe violate the law or Constitution.
Trump’s response came fast. “This is SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” he posted on Truth Social. He called them “TRAITORS!!!” who “should be ARRESTED AND PUT ON TRIAL” for conduct “punishable by DEATH.”
Within weeks, the FBI’s counter-terrorism division was contacting the six members of Congress. The Pentagon launched an investigation into Kelly, with Defense Secretary Pete Hegseth issuing a letter threatening criminal prosecution and suggesting Kelly’s retirement benefits should be reconsidered. Prosecutors in Pirro’s office opened an investigation.
The Legal Theory
The government’s case relied on a federal law that makes it a crime to encourage soldiers to refuse to follow orders or abandon their duty with intent to weaken soldiers’ willingness to follow orders. Maximum penalty: ten years imprisonment.
The theory required believing that restating what service members already knew—that they could refuse unlawful orders—somehow crossed into criminal interference with discipline. It required accepting that the First Amendment didn’t protect this speech. And it required believing the charges weren’t motivated by political considerations, despite the president’s public demands for prosecution and his inflammatory language about sedition and death penalties.
This statute was designed to prevent people from encouraging personnel to mutiny or desert. Not to criminalize civics lessons from former officers who happen to be Democratic senators.
But prosecutors brought the case anyway. After all, the standard prosecutors need to meet is deliberately set low.
The Grand Jury’s Decision
Pirro or one of her assistant U.S. attorneys would have presented evidence—likely including the recording itself, testimony from government agents, and documentary evidence. The prosecutor would have instructed jurors on the law’s elements and explained what they needed to find to return charges.
Jurors would have heard this one-sided presentation. They could ask questions, request additional evidence, or seek legal clarification. Then the prosecutor would leave the room, and jurors would deliberate in secret.
To secure charges, prosecutors needed at least 12 of the 16 to 23 jurors present to vote yes.
On February 11, 2026, the grand jury declined to return an indictment. The foreman reported to the court that the jury had issued a formal refusal to press charges.
The timing is notable. The next day, February 12, a federal court blocked Defense Secretary Hegseth’s effort to take action against Senator Kelly in connection with the video. The judge appeared inclined to rule in Kelly’s favor, suggesting the Pentagon’s effort violated his First Amendment rights.
A Pattern Emerging
Federal juries had been saying no with increasing frequency in recent months. Grand juries in Virginia had twice refused to charge New York Attorney General Letitia James on bank fraud charges. Multiple Virginia juries rejected prosecutions pursued by politically appointed U.S. attorneys.
Juries were increasingly distinguishing between political disputes and genuine criminal conduct, increasingly skeptical of prosecution theories that relied on novel interpretations of law or appeared to target defendants for their political views or protected speech.
When internal DOJ reviews that stopped weak cases before trial disappeared, juries stepped into their constitutional role. They became the last line of defense against prosecutorial overreach.
The First Amendment Problem
The recording didn’t direct any service member to refuse any specific order. It didn’t suggest Trump administration orders were unlawful. It didn’t identify any personnel and urge them to act. It was a generalized statement of law made by public officials with backgrounds in the armed forces, presented openly.
The case also implicated a constitutional rule that protects what members of Congress say in official duties from being used against them in court. The recording addressed constitutional and legal matters within Congress’s oversight authority regarding the armed forces. If the six members had made these statements in a Senate hearing or floor speech, those statements would have been absolutely protected from criminal prosecution.
The jury’s refusal to charge can be understood as an application of these First Amendment principles by citizens. When they heard prosecutors argue that a recording educating personnel about their legal rights constituted a federal crime, they apparently concluded this prosecution crossed a line.
Political Reactions
Democratic members of Congress demanded confirmation that the investigation had been closed.
Kelly called it “an outrageous abuse of power by Donald Trump and his lackies” and stated Trump “wants every American to be too scared to speak out against him.”
Republican reactions were muted. Senate Majority Leader John Thune said “the charges didn’t withstand the scrutiny of a jury. It was clear it was not going anywhere.” Two Republicans—Senators Thom Tillis and Lisa Murkowski—criticized the prosecution attempt. Most Republican members of Congress remained silent.
How Prosecutorial Power Changed
Historically, the Justice Department operated under the idea that prosecutors should decide cases on facts and law, not politics—charging decisions made based on law and facts, not political considerations or White House direction. This principle held because of institutional structures that insulated prosecutors from political pressure: career prosecutors with secure tenure, professional ethics rules, and bar disciplinary procedures.
The Trump administration’s dismantling of these safeguards revealed their fragility. Once the Public Integrity Section was gone, once career prosecutors were bypassed in favor of political appointees, once a U.S. Attorney who was a personal friend and political ally of the president was empowered to make charging decisions, the structural barriers to politically motivated prosecution collapsed.
The case illustrated what happens next: the president expresses a desire for prosecution, a politically appointed U.S. attorney obliges, prosecutors present a weak legal case to a jury, and only the jury’s refusal to charge prevents a politically motivated prosecution from proceeding.
Relying on jury refusal is an admission that formal institutional safeguards have failed. A better system would prevent politically motivated prosecutions from reaching juries at all.
But in the system we have, where those safeguards have been stripped away, the jury has stepped into the breach.
Historical Precedent
The jury goes back to 1215, when the Magna Carta established that neither the Crown nor its officials could exercise unilateral power over subjects. By the time the framers drafted the Fifth Amendment, they viewed the jury as a necessary barrier between government prosecutors and the citizenry.
The most famous historical example involves John Peter Zenger, a publisher in colonial New York charged in 1734 with criticizing the government (a crime at the time) for publishing criticism of the royal governor. A jury of New York citizens refused to charge him—an act of defiance against Crown authority.
The Zenger case became a foundational story in American law about the power of people to refuse to participate in political prosecutions. It directly influenced the framers’ decision to write the jury requirement into the Constitution.
For decades, that power lay dormant. Federal prosecutors maintained such sophisticated internal review that weak cases never reached juries.
Remove the gatekeeping, and the jury awakens.
What Remains Uncertain
Could prosecutors present the case again to a different jury? In principle, yes—prosecutors can try again after a jury refuses to charge if new evidence emerges. But a second attempt to charge the same defendants on substantially the same facts and legal theory would likely be viewed skeptically both by a second jury and by legal observers monitoring for abuse.
The FBI’s counter-terrorism investigation remained unclear in status. The six members had publicly refused to sit for interviews. The Justice Department didn’t immediately confirm whether the investigation had been closed.
Kelly’s federal lawsuit challenging the Pentagon’s effort to demote him continued, with the judge appearing skeptical of the government’s arguments.
The Jury as Last Line of Defense
Between 16 and 23 citizens appeared before a federal jury in Washington in February 2026 and decided they would not be parties to a political prosecution, no matter how much the president wanted it or how eagerly his appointed prosecutors brought the case.
Their refusal didn’t solve the larger problem of prosecutorial politicization. It didn’t prevent the investigation from happening in the first place. It didn’t restore the institutional safeguards that had been dismantled.
But it did prevent a crime that had not been committed from being prosecuted. And it provided a reminder that, at least in this constitutional moment, the people retain power to check government excess.
The jury is not a perfect protection. It’s a ragged and imperfect safeguard that depends on the wisdom and independence of people who have received little training and who operate under conditions of secrecy and prosecutorial control. In most cases, it doesn’t function meaningfully—prosecutors who have properly vetted cases obtain charges, as they should.
But when prosecutors, operating under political pressure and freed from internal institutional restraints, bring weak or legally dubious cases to juries, citizens can say no.
They did.
Whether that power proves sufficient over the longer term—whether the protection the framers built into the Constitution will hold up under sustained assault from an executive branch determined to weaponize criminal law—remains to be seen. But for six Democratic members of Congress who made a 90-second recording about law, and for anyone who cares about the space between political speech and criminal prosecution, the refusal matters.
It’s the difference between a system where prosecutors answer only to political appointees and a system where they must also answer to citizens. Between a justice system that serves executive power and one that serves the rule of law.
The framers designed the jury as a shield against tyranny. For decades, it gathered dust. Now, when internal safeguards have been dismantled and politically motivated prosecutions flow freely to juries, that ancient shield has awakened.
And it’s doing exactly what it was designed to do: people, checking prosecutorial power, one case at a time.
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