Bob and Jack chat about a federal court’s preliminary injunction blocking the Defense Department’s attempt to reduce Senator Mark Kelly’s military retirement benefits, along with a grand jury’s refusal to indict six Democratic members of Congress, including Kelly, who in a video reminded service members of their duty to refuse unlawful orders. They discuss how Trump administration weaponization can be effective even with court losses, and debate possible reforms to limit politically motivated prosecutions of members of Congress, including Bob’s proposal for a court-appointed special counsel and an alternative that focuses on revising the substance of criminal statutes.
Mentioned:
“The Bad News in the D.C. Grand Jury’s Refusal to Indict Six Members of Congress” by Bob Bauer (Executive Functions, Feb. 12, 2026)
Thumbnail: President Donald Trump on Nov. 20, 2025 calls for the prosecution of lawmakers who urged service members to refuse unlawful orders. (Truth Social.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good morning, Bob.
Bob Bauer: Good morning, Jack.
This morning, we’re going to discuss actions taken by the Trump administration against six Democratic members of Congress, all former military or intelligence officials who are serving in Congress, and who produced a video in which they counseled that members of the U.S. military can or must refuse legal orders, which is a true statement of law.
The president had an allergic reaction to that and said that they should be arrested and put on trial. Subsequently, Secretary of Defense Hegseth criticized in particular Senator Mark Kelly, who is a retired naval captain subject to retirement benefits, saying that he acted illegally in trying to influence the chain of command and to influence discipline in the military, and suggesting that he could be subject to criminal actions, and also suggesting he could be subject to his retirement benefits being reviewed and perhaps reduced.
And then subsequently, DOD took that action against Senator Kelly to try to reduce his retirement benefits. Senator Kelly sued the Department of Defense, and yesterday Judge Leon issued a preliminary injunction enjoining those proceedings against him.
And also earlier this week, we learned that a grand jury in the District of Columbia refused to indict the six members of Congress who produced the video under — I believe — the statute that the U.S. Attorney in the District of Columbia had sought indictment for was 18 U.S. Code 2387, which talks about interference with the loyalty, morale, or the discipline of the military or naval forces.
So these were members of Congress speaking out in their capacities as members of Congress. The Trump administration tried to bring legal proceedings against them and failed on both counts.
Let’s start with Judge Leon’s decision yesterday, the injunction enjoining this Hegseth–DOD action. What do you think about it?
It’s a very strong opinion, strongly expressed. He doesn’t, by the way, review all of the defenses that Senator Kelly put forward. He didn’t really address the separation of powers questions or speech and debate questions.
He layered the fact that Senator Kelly is a sitting member of Congress in an opinion that was largely focused on his First Amendment rights as a retired serviceman. But it’s very difficult to see the opinion as anything but strong. By the way, it’s, as I said, strongly expressed. I lost count of the number of exclamation marks. He literally showers the government with contempt and does not see the issue as a close one.
Yeah, I didn’t think the exclamation marks were terribly judicious, but I agree the opinion was largely persuasive. There are a couple of difficult legal issues. The whole question of the scope of judicial review and the timing of judicial review over discretionary military actions like this is a little murky to me, and his analysis of that was pretty compressed.
There’s also an open question about — I have no doubt at the end of the day that this was retaliation for the exercise of First Amendment rights and that Senator Kelly will prevail at some point — but there’s also an open legal question about whether, let me just say that members of the military have significantly diminished First Amendment rights. So one question is whether, as a retired member of the military, still subject to military discipline, receiving military benefits, subject to being called up again, Senator Kelly — how much, if at all, are his First Amendment rights diminished?
And how is that impacted by the fact that he sits on the Armed Services Committee and the Intelligence Committee and is a member of Congress? These are all novel issues that will ultimately need to be worked out. But it’s an amazing rebuke, especially coming in the context of the grand jury refusal to indict — which almost never happens.
It’s so rare that a grand jury fails to indict. We’ve seen it a lot in this administration, but this was an especially noteworthy one.
It certainly was. There’s a report out that the U.S. attorney brought somebody onto the case who hasn’t practiced law for a number of years. I mean, we may be seeing again the effects — I’ll have to look into this a little bit more closely — but the effects again in this case of a Department of Justice that is thin on talent and having difficulty recruiting people who you would want to bring the cases that they care the most about.
But I think it’s troubling that they sought to bring the case at all. I mean, I want to go back to something the judge, as I said, layers into the opinion, but doesn’t put as much stress on it as I would have liked to see. And that is that Senator Kelly is a sitting United States Senator, and the administration threatened him and pursued him with legal action for fundamentally disagreeing with the administration — and disagreeing with the administration by articulating, as you point out, a point of law that is absolutely correct, as stated was absolutely correct.
That may not make any difference in some respects because perhaps they could have disagreed with each other about whether that point of law was correct. In this case, it clearly was. But I just think the attack on sitting members of Congress — the weaponization of the law against them over what is flatly a fundamental policy or legal difference — is an extraordinary expansion in the weaponization program of this administration.
Right. I mean, the civil case by the Defense Department over Kelly’s retirement benefits raised a lot of technical questions. I’m confident Kelly will prevail ultimately. But the criminal action against members of Congress, some of whom weren’t in the military, for stating an opinion about the legality of the Defense Department’s actions is — I’m not sure — I don’t think it’s actually going to fall within the speech and debate clause — but it can’t be the case that the administration can retaliate with criminal process against a member of Congress for offering opinions about the legality or even the prudence or whatever of the Defense Department’s actions.
And the fact that a grand jury wouldn’t indict is pretty good evidence of how thin the legal case was.
I could not agree more. It’s astonishing, as I said before, just remarkable that the case was brought. Remarkable that — and admirable that — the grand jury rejected it.
Let me ask you this, Bob. You said this is an extraordinary case of weaponization, and I agree. I mean, the president gave marching orders when he had this allergic reaction, and the U.S. attorney in the District of Columbia and the secretary of defense tried to execute those marching orders, and they both failed, at least as of today.
But one — someone might say, well, this is an example of failed weaponization. It didn’t work. The courts or the legal system rebuked both efforts, and therefore this is a victory against weaponization. I don’t think that’s your view, right?
No, I don’t. I think there’s — as I wrote in a piece yesterday — it’s good news and the bad news. The good news is the grand jury rejected it. The bad news is that the administration — and there had to have been lawyers in the administration who knew the case was weak — brought it anyway. And that suggests that they’re hell bent on pursuing these paths.
And we should never discount the costs of these kinds of cases being brought, even if they’re brought ultimately unsuccessfully. They target people. They put them to the expense of defending themselves. They have to deal with leaks in the press and the entire communications problem around looming criminal action against them. These are not costless.
And the message that the administration is sending is we are prepared to do this to our political enemies. I think that — that — that is extremely dangerous. There’s no reason to think that because they failed in this instance, they won’t attempt to do it again.
Right. And I want to emphasize that point. I mean, the impact of these cases, even if they fail, is not limited to the six Democratic lawmakers. What the administration is basically saying is we will use every tool at our disposal, and we don’t care if we win or lose in court. We’ll use every tool at our disposal to do harm to people who disagree with us.
And you know, Senator Kelly is retired and he’s got another salary and he’s going to be fine no matter what happens. But the impact of this goes beyond Congress. It goes throughout DOD. I think that they’re — I’m confident that this has a chilling effect on every action within DOD in terms of whether people are afraid to disagree over some matter. The lawyers who are offering legal advice, I’m sure, are impacted about this.
The deterrent effect is much broader, even if they lose, than these six, because it’s costly. It’s reputationally costly. It’s stressful, and people don’t like to go through this. So I think even though these cases failed, they’re like many things in the administration: they lose in court, but they might still win — and within their worldview of what counts as winning.
Absolutely. We’ve seen this in other areas — unrelated areas. I mean, they’re related in theme, but they involve not a conflict between Congress and the executive branch, but the executive branch and private organizations. The attack on the law firms — these executive orders were issued. They’re no longer being issued. There are no new ones after the wave, the first wave that the administration issued, but they were able to create a kind of interim environment in which it appears from the reporting large law firms are thinking hard about taking steps that could conceivably provoke the administration.
Now, maybe that period of time has passed because the administration appears to have moved on from these attacks on the law firms. But there’s no question there’s an intimidation factor. The administration is perfectly happy to generate, to put into play, even if it knows that ultimately it’s not going to win.
It's not going to win in court, but it can still win within the executive branch and even vis-à-vis Congress. You can imagine some members of Congress being intimidated at the margins by this.
Absolutely. Now, it is interesting, speaking of the grand jury rejecting the charges, it is interesting that in this instance we have heard Republican members — and not the ones from whom we hear dissent from time to time, but Republican members generally — expressing grave reservations about the steps that were taken against the six Democratic lawmakers. So that’s interesting. They recognize that this is a problem for everybody — Democrats and Republicans — and for the institution of the Congress as a whole.
So that may have some effect on the administration — that in this instance the president may not be able to rely on his own party to support him in this course of action.
But those steps — I mean, they didn't do anything about it. There was no pushback from Congress as an institution. I agree there were a few members on the Republican side who said this wasn't a good idea. But one would have imagined a much more robust reaction across the aisle from Congress at this pretty aggressive intrusion on congressional prerogatives.
Yes, but it's also possible that if there's a next round, the response will be more robust, especially in light of the grand jury. It’s so embarrassing to the Department of Justice, just turning those charges away, just rebuffing the government in the submission of those charges. And it may strengthen the hand of Republicans who say that, you know, they cannot support this and pressuring the administration to desist. Again, I'm speculating — maybe not.
So let’s talk about — in your piece yesterday, you proposed a reform. You talked about how bad this is from a separation of powers and free speech perspective in terms of congressional prerogatives. And you proposed a reform, not for now, but for later. After this administration, you proposed a reform to dampen the executive branch’s ability to bring a criminal action like they did — tried to bring — in the District of Columbia. Why don’t you just outline that?
Certainly. It seems to me that this is a category of criminal prosecution that the executive branch should not be able to proceed with in an unfettered fashion. So I proposed that the Attorney General of the United States be required to apply to the United States Court of Appeals — a division of the United States Court of Appeals — for the appointment of a special counsel in any case where they are targeting a sitting member of Congress.
Now, we know from United States that the Attorney General cannot — the executive, the president — cannot be dispossessed entirely of the power to exercise prosecutorial discretion, proceed with the prosecution. So the Attorney General would have the ultimate say. But at a minimum, the Attorney General would not be able to pick the lawyers who evaluate and ultimately decide whether to bring the case.
The court would appoint such a lawyer, presumably to appoint a lawyer that had the reputation and background that would suggest an independence of judgment — that would confront the administration over the merits or lack of merits of a particular prosecution.
Just to make this short, the special counsel would have to report to the Attorney General, but any steps that the Attorney General made to overrule a prosecutorial choice by the special counsel would have to be reported to the Congress. And in the end, if the special counsel recommends against prosecution, the Attorney General decides to proceed anyway, that too — that decision to overrule the special counsel — would have to be made known to the Congress.
And at that point, there’s nothing more that can be done by law. The ordinary operation of politics would have to do the work, and the administration would have to defend a prosecution that was brought in the face of a recommendation of the contrary by the special counsel.
But yes, it’s a little bit of a — it’s an echo of the independent counsel statute of old, but that statute was directed toward investigation of wrongdoing in the executive branch to try to introduce some independence in the executive branch prosecution, if you will, of itself. And this is different. This is an attempt to shore up the separation of powers and to protect the Congress from what we see the Trump administration doing right here.
It would seem to me that members of both sides of the aisle would have an interest in a reform of this nature.
So I disagree, not surprisingly. I don’t think it’s going to be fruitful to discuss much whether this proposal would be constitutional. I tend to doubt it. I would have doubted it before Trump v. United States. I especially doubt it after Trump v.United States, given what the Court said about the president in robust terms and in an extreme context about the president’s exclusive power over investigation and prosecution.
But setting the constitutional issue aside, I just don’t think it’s a good idea. And the reason I don’t think it’s a good idea is I just don’t think it’s — Congress has plenty of tools to protect itself that don’t require it micromanaging how the executive branch chooses lawyers and brings prosecutions, which I think is a bad idea. It could change the criminal laws. It could just fix the criminal laws. It could exclude Congress from whatever criminal laws it wanted. It could put conditions on the criminal laws for when they’re implicated. Congress also has a constitutional speech and debate clause that it can — to protect itself.
And moreover, one of the big problems with the independent counsel statute was that it politicized the courts. The courts got in the business. It was very controversial when the courts appointed Ken Starr to pursue Bill Clinton. And one of the things that were mentioned in the 1990s, when there was unanimous agreement that the independent counsel statute was terrible, was it had the impact of politicizing the courts.
So why wouldn’t it be better for Congress to stay within its lane of its Article I powers? You’re going to tell me this is an Article I power — but why wouldn’t it be better for them to simply change the criminal law that can apply to them?
It won’t do it for a couple of reasons. There are major collective action problems we’re all familiar with. We also know that we live in a system — and it doesn’t look like it’s going to change anytime soon — where we have a separation of parties rather than a separation of powers that seems to significantly diminish Congress’s interest in or ability to defend its institutional prerogatives. And I don’t think that we should leave it to Congress in this era of our politics to give up that kind of ground.
I think we should take steps to shore up Congress’s ability to protect itself and to provide it with incentives to protect itself. So I think that on paper everything you say is correct about Congress having the tools to respond, but it cannot be counted upon to use those tools. We probably should doubt that it will use those tools.
Also, the courts here have a much more limited role under my proposal than they did under the independent counsel statute. Here they’re limited to counsel selection. They don’t have any ongoing supervisory role. They were much more deeply enmeshed in the operation of the independent counsel statute. So I’m taking into account that experience. And I think in that respect, I think that the factor of politicized judicial involvement — or the risk of politicizing judiciary — is diminished.
And let me just close. I’m sure I won’t persuade you on this. I just set out in the piece the reasons why I thought there was constitutional space for affirming a reform of this kind. But we are in a completely different era now where, contrary to the concerns, for example, that Justice Scalia entered in his famous dissent in Morrison v. Olson upholding the independent counsel law, the risk of weaponization here is of a completely different order. And this is an anti-weaponization statute or reform. The one that I’m proposing is an anti-weaponization reform. And Justice Scalia was concerned that the independent counsel statute was a weaponization vehicle. So it’s the exact opposite. My reform would flip it into a completely different function. That’s how I see it.
I’ll say a couple of things, and I’ll give you the last word.
One, I think you can call it anti-weaponization, and I understand the differences with the independent counsel statute. Every one of these things — experience since Watergate has shown — that every one of these mechanisms to try to put a prosecutor with some distance from the attorney general has ultimately become very, very politicized and weaponized. And I think that would happen here too.
Second, the court’s decision to choose a lawyer is going to be massively controversial, and that will become politicized in the courts — even if they have no more ongoing role — that would become part of the political debate in ways that I think were terrible for courts back then, and I think would be now.
And third of all, I don’t understand a world in which — yes, separation of parties, not powers, which means it’s very hard for Congress to pass legislation — but I don’t understand a world in which Congress could pass legislation to do this statute that pretty clearly gets into the Article II business, would have the support in Congress — the bipartisan support in Congress — to do a reform of that type, but not do a reform of substantive criminal law.
I mean, basically, those are two separate options for Congress enacting statutes, and it seems to me that if Congress is worried about how the president might enforce criminal law against it, it should change the criminal law and not try to change the Article II process.
Well, before I respond, can I ask you one question? What kind of reform of the criminal law — if something had other tools they have to punish the executive for doing this — what other reform of the criminal law do you have in mind?
I mean, we don’t know quite what statute, but the statute that apparently — if it’s 18 U.S. Code 2347 — the statute could say this statute does not apply to members of Congress. So members of Congress are just not subject to the criminal prohibition about interfering with, impairing, or influencing the loyalty, morale, or discipline of the military. And any statute in which they thought that there was a chance of that happening, they could go through and act within their prerogatives to control the content of federal criminal law, to give themselves the space they think they need to be able to exercise their First Amendment rights.
And moreover — I mean, your proposal applies not just in weaponization cases, but it would apply in genuine cases of congressional corruption. Basically, you’re saying that in a real case of congressional corruption, that the Justice Department is going to have to be stuck with whomever the court says should prosecute that case. I just don’t think that is a good solution when Congress has more direct solutions.
Well, let me just — a few closing points about that. First of all, I’m totally open to statute-by-statute amendment to protect the Congress in circumstances like this. I’d have no objection to that. And if it turns out it’s easier for Congress to do that — which is a pretty thoroughgoing law reform project — than what I propose, then at least, you know, you and I share the same objective, and there’s a law reform that maybe we can agree on. So I’m totally fine with that.
Even public corruption cases in the past have been highly controversial. The administration can — any administration can — gin up a public corruption case under the very elastic theories of criminal liability that we have against a member of Congress that is 100 percent powered by political animus. And that has been a claim that, you know, maybe rightly or partially or wrongly, defendant members of Congress have made in the past — that they’ve been picked out for a particular charge because the administration is trying to take them out politically. And so I don’t see any problem with, as you put it, sticking the administration with a court-appointed lawyer in those circumstances.
I just think that what we are seeing now with this administration is a commitment to weaponization, as you point out, that is indifferent to the merits and is looking to achieve an intimidation factor that requires a radical rethinking of constraints on the executive branch, where it is trying to, in effect, dominate the United States Congress, where it’s trying to basically undermine the ability of the United States Congress to perform a critical constitutional checking function.
And we could say, well, when Donald Trump leaves, that’ll end. I don’t know that that’s the case. We see it, and we should respond to it in some way. But, by the way, I do like your suggestion of going statute by statute. I just wonder whether that — as I said — sort of thorough law reform project is more likely or less likely than what I propose. But I think it’s a perfectly good idea to address the problem that way, too.
Well, let's end on that note of semi-agreement.
Yes, it's good.
Thank you, Bob.
Thank you, Jack.
