Bulwark Takes
Bulwark Takes
February 12, 2026

Sen. Mark Kelly: Trump’s DOJ Couldn’t Get a Single Grand Jury Vote

Quick Read

Senator Mark Kelly details the Trump Justice Department's failed attempt to indict him and five other Democratic lawmakers for a video on unlawful orders, highlighting the constitutional crisis and chilling effect on free speech.
The grand jury's failure to indict was a statistical anomaly, with 99.997% of federal indictments succeeding.
Senator Kelly views this as a direct assault on the First Amendment and the separation of powers, with potential for ongoing legal threats.
The attempt has already created a 'chilling effect' on speech, particularly among retired military personnel, who fear similar repercussions.

Summary

Senator Mark Kelly discusses the recent revelation that the Trump Justice Department attempted and failed to indict him and five other Democratic lawmakers. The attempt stemmed from a video they released advising against following unlawful orders. Kelly reveals that a grand jury was impaneled but did not cast a single vote for indictment, a statistically rare occurrence. He emphasizes the severity of the situation, framing it as an attack on the First Amendment and the separation of powers, and expresses concern about the chilling effect on speech, particularly among retired military personnel. Kelly criticizes the lack of public outrage from many Republican colleagues and Speaker Mike Johnson's perceived ignorance on the matter, asserting that the administration will likely continue its efforts.
This episode reveals a direct attempt by a presidential administration to use the Department of Justice to silence political opposition, raising significant concerns about the rule of law, the separation of powers, and the fundamental right to free speech. The rarity of a grand jury failing to indict underscores the weakness of the prosecution's case, yet the attempt itself highlights a dangerous precedent for political weaponization of legal systems. The chilling effect on speech, particularly among retired military members, demonstrates how such actions can erode democratic principles beyond direct targets.

Takeaways

  • The Trump Justice Department impaneled a grand jury to indict six Democratic lawmakers for a video on unlawful orders, but the grand jury failed to secure any votes for indictment.
  • Historically, grand juries succeed in indicting 99.997% of the time, making this failure exceptionally rare.
  • Senator Kelly is also facing a separate attempt through the Defense Department to demote him and strip his pension for his speech as a retired service member.
  • The Senator believes the administration will not give up and that the situation represents an ongoing constitutional crisis.
  • There is a noted lack of public outrage from many Republican senators, despite some expressing private concerns.
  • Speaker Mike Johnson's initial reaction supporting the indictment attempt is dismissed by Kelly as 'clueless' and uninformed.
  • The actions have already had a 'chilling effect' on speech, with retired admirals and generals altering their public statements out of fear.
  • Senator Kelly asserts that this issue extends beyond the targeted lawmakers, impacting the free speech rights of all Americans and the integrity of government institutions.

Insights

1Failed Indictment Reveals Rare DOJ Setback

The Trump Justice Department's attempt to indict Senator Mark Kelly and five other Democratic lawmakers for releasing a video on unlawful orders failed to secure a single vote from a grand jury. This outcome is statistically highly unusual, as federal grand juries typically succeed in indicting 99.997% of the time, based on 2013 data of 165,000 federal indictments with only five being unsuccessful.

Senator Kelly states, 'From 2013, there were 165,000 federal indictments. There were five that were unsuccessful. That's 99.997% probability of success.' He also notes, 'NBC reported they didn't get any votes to indict us.'

2Chilling Effect on Free Speech, Especially for Retired Military

Senator Kelly asserts that the administration's actions, including the attempt to demote him and take away his pension as a retired service member for his speech, have already created a 'chilling effect.' He reports that retired admirals and generals have changed their public statements and actions due to fear of similar repercussions, impacting their willingness to speak out.

Kelly states, 'If they can go after me as a US senator who spent 25 years in the Navy and demote me and take away my pension for something that I've said, they can go after anybody. And I've heard from retired admirals and generals that they have already changed what they say publicly and what they do because of this. It has already chilled the speech of people who have spent their most of their adult lives defending this country.'

3Speaker Johnson Criticized as 'Clueless' and Presidential Proxy

Senator Kelly strongly criticizes Speaker Mike Johnson's initial reaction, which supported the indictment effort. Kelly describes Johnson as 'clueless,' suggesting he lacks understanding of the situation and has become merely a 'personal representative' of the president in the House, failing to act as an independent leader of the legislative body.

Kelly states, 'Sam, he doesn't he's clueless. He doesn't even understand. He apparently maybe he hasn't watched the video. He hasn't followed this. He should he should go and educate himself on this issue before he before he speaks out because what he said made no sense.' He later adds, 'He is not he's not functioning as a leader of that body... he is he is just you know there to uh echo what the White House says.'

4Call for Republican Action to Uphold Separation of Powers

Kelly emphasizes the critical need for Republican senators to publicly condemn the administration's actions, arguing that their private concerns are insufficient. He warns that the executive branch attempting to imprison legislative members fundamentally undermines the separation of powers and the ability of government to address national problems, setting a dangerous precedent for future administrations.

Kelly states, 'They need to like step up in a way that actually has has an impact and they need to tell the administration that you you are entering some, you know, dangerous waters here and we we could wind up in a constitutional crisis if they throw Alyssa Slackan and I and four House members in prison because of something we said.' He also notes, 'If the executive branch is trying to throw members of the legislative branch in prison. Like that's not good.'

Lessons

  • Recognize the extreme rarity and constitutional implications of a grand jury failing to indict, especially when political motivations are suspected.
  • Understand how executive actions against political opponents can create a 'chilling effect' on free speech, extending beyond direct targets to broader segments of society like retired military personnel.
  • Demand greater accountability and public condemnation from elected officials, particularly those in the opposition party, when executive overreach threatens democratic institutions and the separation of powers.

Notable Moments

The Trump Justice Department's grand jury failed to secure any votes to indict Senator Mark Kelly and five other Democratic lawmakers for a video on unlawful orders.

This event is statistically extraordinary, highlighting either an exceptionally weak case or a grand jury's strong rejection of politically motivated prosecution, preventing a severe constitutional crisis.

Senator Kelly reveals that retired admirals and generals have already changed their public speech due to fear of retaliation, following the administration's actions against him.

This demonstrates a tangible 'chilling effect' on free speech among a critical demographic, indicating that the threat of political weaponization of legal processes is already impacting public discourse.

Quotes

"

"They didn't get any votes to indict us. It's good to know that just some regular US citizens, you know, here I presume in Washington DC where they tried to do this, understand the Constitution better than the president."

Senator Mark Kelly
"

"From 2013, there were 165,000 federal indictments. There were five that were unsuccessful. That's 99.997% probability of success."

Senator Mark Kelly
"

"If they throw Alyssa Slackan and I and four House members in prison because of something we said, we then have a big problem."

Senator Mark Kelly
"

"If they can go after me as a US senator who spent 25 years in the Navy and demote me and take away my pension for something that I've said, they can go after anybody."

Senator Mark Kelly
"

"It has already chilled the speech of people who have spent their most of their adult lives defending this country, defending the Constitution, often going to war for American values, for our system of government that have risked their lives."

Senator Mark Kelly

Q&A

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