Bulwark Takes - A Jury Said No. Mike Johnson Said “Probably.”

Episode Date: February 11, 2026

The DOJ tried to criminally indict six lawmakers for reminding service members to obey the Constitution, and a grand jury refused to go along. But even after the charges failed, Speaker Mike Johnson suggested they “probably” should have been indicted. JVL and Andrew Egger discuss what the failed prosecution says about Trump’s Justice Department, the resilience of juries, and the growing willingness of Republican leadership to flirt with red lines that once seemed unthinkable.

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BetMGM operates pursuant to an operating agreement with Eye Gaming Ontario. Hello, everyone. This is JVL here with my bulwark colleague, Andrew Egger, author of the Morning Shots newsletter. Hit like, hit subscribe, follow the channel. We got big news overnight where it turns out that the Department of Justice attempted to indict six lawmakers who had put together a little video saying, hey, just a reminder, if you are part of the U.S. Intelligence Committee or the armed forces, you have sworn an oath to not obey illegal orders. And the Department of justice attempted to secure criminal indictments against them and were rejected by grand juries. Andrew, there's a lot to talk about here. And if we wanted to start with the hopeful stuff,

we would talk about how it turns out that the criminal justice system is being way more resilient to authoritarianism than say like the university system or the business community or even normal politicians. We'll do that second. I'd like to start with the bad stuff, though. There are a bunch of people who have been sitting on the sidelines being like, well, I'm waiting to see if we cross any real red lines. It seems like an attempt to criminally prosecute opposition lawmakers for saying that

people should obey the Constitution might be a red line, even if it failed. Yeah, it's not a great situation. I mean, it really speaks to how insane this entire storyline around these six lawmakers has been that by some metrics, you might call this only the third most insane sort of development in this story. Right after they released that video, I'm sure you remember, Donald Trump had maybe his biggest, like, truth social bender of all time where he was retweeting calls for these people to be hanged. He was saying, you know, this is seditious conduct punishable by death. And then shortly thereafter, we got Secretary of Defense Pete Hegseth promising to open military

investigations into some of these people, the possibility of court martial. Yeah. So this is like the civilian justice department. Donald Trump's MOOCs in, you know, the civilian justice system taking their bite at the apple, also coming up pretty short here with the. involvement of a grand jury. I know you want to focus on the bad stuff first. The one thing that that really has struck me about this just real fast is like any institution that like has business before the president has been cowing and cucking all along. And it really is just this one,

I mean, like what a great system. Juries are, right? Just like a random representative sample of Shmose who it turns out have have more courage than like any elite institutions. that you might name right now. Same thing with people of Chicago. Same thing with people of Minneapolis. It turns out that normal Americans are the ones with guts. Not to jump ahead. We can do all the dark dour stuff first.

So let's do the dark and dour stuff. I'm a little concerned that nobody is freaking out about this this morning. Like the news came out. And the general reaction seems to be, they didn't actually get indicted. So no harm, no foul. I think that's wrong. that might be the reaction if it was like, well, he's just tweeting about trying to prosecute them. He didn't actually try to prosecute them, right?

That would also be bad. Again, that's like just the world we live in now where having the president of the United States talk about hanging people is now like, well, you know, he didn't really try to do it. Are you as freaked out as I am? Because I feel like this is a giant red line being crossed. and the fact that the jury didn't go along with it doesn't make it better. 100% it doesn't make it better. And it makes it clear that, you know, the president is not learning any lessons from, for instance, his failure to get criminal charges to stick against James Comey or against Letitia James.

I mean, like, this is a guy who's going to push every button on the dashboard to punish his enemies every time he can. He's got a whole apparatus of MOOCs who are willing to help facilitate those. And we're just past the point of internal checks on this stuff. And that's what's new. It's like every kind of yanking of the reins or pressing of the brakes on any of this stuff is coming from outside the system. It's coming from the moments where the Justice Department needs to go before a grand jury or needs to go before, you know, an outside judge or a criminal jury and, and, you know, prosecute this case and get their buy in on these things. But that's not everything in this government, right? I mean, when it comes to the criminal justice system specifically,

we have a lot of stuff baked in because, praise the Lord, the founding fathers and all the people since then have had a healthy cynicism about what governments might try to do to their people at various times, and they've created these sorts of pressure valves and things that are proving very helpful right now. But at the same time, we have a lot of stuff that's baked into the system that does not at all assume that everybody who is always wielding power will be doing so in at least a roughly honorable way or, you know, a first approximation of honorable behavior or that there will be political checks on this stuff. Like, for instance, I mean, just the law that they were trying to

prosecute these guys under. I mean, it's this statute that basically makes it a crime to, to, like, hurt the morale of the armed forces in some way. And I'm sure when you pass a law like that, I mean, there's all sorts of things that could imaginably be described as speech that hurts the morale, or like the good discipline of the U.S. armed forces that is obviously legal, obviously protected. So the fact that this exists under federal law carries with it remarkably optimistic assumptions about the way that, you know, the various U.S. attorneys will use these sorts of statutes. And what we have seen from Donald Trump over and over and over again is that any law, or any regulation that was passed with sort of the assumption in mind that like, oh, and this will be used sort of in an honorable way. He has repeatedly, you know, just been willing to try to

strain it to the breaking point. And this is just the latest example of that as well. So it's, it's not a, there's going to be some rebuilding and some, some, some reassessment of some kind of cozy assumptions around this kind of thing that is going to need to take place if we ever got the opportunity to do that later. Yeah, I mean, we should be so lucky. So you're, you know, this is a separate but related issue. Your friend, Nick Catojo, had a very good piece the other day about what is happening with just the staffing of the Justice Department and the turnover, because what we're seeing is we're getting mass resignations. I think it's like 14% of the attorneys have left already after one year.

And it's just because there are lawyers who simply refuse to do the illegal things or immoral things that the administration is demanding that they do. We had more of them happening in Minneapolis over the last week. And what Catocio says is like you're going to wind up with real destabilization because of this. So you can have all these job openings. You are not going to have. qualified people applying to fill them. You know, it used to be that these were gold star jobs that,

you know, top flight lawyers wanted. That's not going to be the case. You're going to get your Ave Maria law school. I just want to go and be part of MAGA showing up. People who just aren't very bright. They're going to wind up getting hired because it's going to be like with ice. Like we just got to throw bodies of the problem because otherwise everything isn't working here. And you're then going to have two big problems, Cotogio argues. The first is that the government is going to get very bad at prosecuting crimes. And this is a good thing if the crimes that's prosecuting are against opposition political figures. We would like them to be bad at that. But it's not a good thing if they're prosecuting crimes against criminals. Like there is still crime in the world.

I mean, for instance, in Minnesota, the welfare fraud cases, those things should be prosecuted. There is organized crime in the world that should be prosecuted. If the government no longer has the talent to successfully prosecute real crimes, that's bad. But the other problem, as you hollow out and you get all of these people in there who are total MOOCs, they are going to not be able to enforce. the administrative orders coming down to them from the judges, people who aren't really interested in doing that. And so what happens when you wind up in a world where the court can order something, order the government to do something?

And then the reality is like enforcing that order is all but impossible because you've got, again, you can force one lawyer in one case to do something. But you can overwhelm the system if you just have like lawyers everywhere, not doing what the judges tell them to do. And that they're like everything else Trump is breaking, this can't be fixed with another Democratic president, right? So you, you know, you get like a Democratic president or even a good liberalism loving, rule of law loving Republican president. Like Nikki Haley, you know, like what's she going to come in and fire all of these idiots who were stuffed in?

Like then you wind up at the same problem. You're short staffed. And how are you going to be able to recruit people to come in if they know that, Four years from now, their careers are over because they've got J.D. Vance or, you know, God knows who else running the Justice Department. I think you get dark real fast here about permanent damage being done to not just the institution that is the Department of Justice, but to the ability to enforce the rule of law at the federal level. Am I overindixing on this? No, I think we get really sick of telling different versions of this same story, which is good news. Another beneficial thing that was underpinning the whole system that we have sort of taken for granted our entire lives just vanish.

There's no real obvious way to put it back and we're all going to get to learn how important it was in retrospect. Being just sort of like a civil servant attorney for the federal government, one such thing, right? I mean, these are not people who get paid an astronomical amount of money, certainly not relative to what they could be making in private practice. They tend to go into these lines for these lines of work for reasons of civic-mindedness. That's the reason they're in the Justice Department in the first place, as opposed to, you know, just doing random corporate law at some firm somewhere. And if you get rid of sort of just like all of them immediately, it's not like you can even

just bring them back. It's not like, you know, three years from now. you can go get all those same people be like, sorry about that. Would you mind coming back into, I mean, like, first of all, you've ruined their entire, like their personal sense of kind of the rightness of their own choices for having done that in the first place, because by taking the high road in the past, they, in fact, just subjected themselves to this like Kafkaesque, uh, torture dungeon of a, of a line of work when they could have just been kind of happily cowtowing to Trump in, you know, white shoe law or something like that. The other element of it all is,

that in the meantime, it becomes difficult to tease out what is malice and what is incompetence, right? Like when you have this system that has been just kind of a well-oiled machine that has functioned, you have all these people who are in there for good reasons who want to hold the law up and who are determined to do that on kind of a professional level, like you can see the departures from that system happening in real time because they're resigning And because, you know, the, the Justice Department is openly out here advertising, hey, you know, if you really love Trump and have a lot of agree, please come work for us. Like, this will be great if you would do that.

We need some assistant U.S. attorneys real badly, and they're posting on X about all this. And this is all visible stuff, right? And in the meantime, you can kind of see the immediate term consequences, like in Minneapolis, where what you're talking about, you know, the judges just giving order after order after order, like, hey, you, ICE, don't actually have the ability to hold. hold on to this person anymore. You actually have to release them. And these orders are just going unheeded by dozens. And the stated reason why from these, you know, Justice Department slash ICE attorneys is, well, look, like, there's just too many of these. We're like overworked. We don't have

the ability to deal with all of this. And right now, in real time, you can draw the very obvious through line from the one thing to the other. Like, it's your fault that Mr. Donald Trump and all of your MOOCs. It's your fault that your people are so overworked that they actually cannot comply with these judicial orders even if they wanted to because you created the material conditions for this. But if this is still the material conditions several years down the line, we will end up in a situation where these sorts of things are not traceable to any specific human action other than the just kind of complete destruction of the system that has previously existed. And it will be like, you think this is bad in terms, at least we can like, at least we know where the buck stops.

You know, at least we can analyze it. At least we can say, like, here are the obvious reasons why these things are happening. They're doing it on purpose. They want it to be this way. A few years into all of this, if there is not some sort of heroic Herculane effort to just establish like ordinary baseline rule of lost stuff throughout these departments, it's going to just be like so systemically rotten that we will just have. It'll be hard even to talk about. Malicious incompetence is how I think of it. My concern is that the way to fix this, the only way to fix this, really, is to have the letter of the law spell out everything. And that's a recipe for disaster, right? You can't, the rule of law can't function when you have to say all of the things

out loud specifically, because then, I mean, it's just nobody, there isn't enough time of the day. So, for instance, like with ICE and Minneapolis, a reform of this would be that in these matters, it isn't just the Department of Homeland Security on the other end or the, or Immigration and Customs Enforcement on the other end. It is specific named individuals at every single layer, right, from the person who's the head of the agency, down to the person who's the head of the field office, down to the person who is the shift commander, down to their, their sergeant, down to the person who actually is in charge of processing paperwork. And their names are attached to these complaints so that they become criminally liable

if they don't obey court orders. And like, that's just not workable. It's not workable. You can't, you can't live like that. Okay. I told people we would do some good things. it's kind of amazing that these grand juries keep saying get the fuck out of here. I mean, there is a, you know, the old joke in this is that you can get a grand jury to indict a hand sandwich.

It is so hard to fail to secure grand jury indictments. It's so hard to do. I mean, I don't want to say you have to try not to because that's not true, but you have to be really bad at your job. or the evidence you present and the charges you are levying have to be so unbelievably unpersuasive to fail like this. And it keeps happening over and over and over and over. That's an amazing testament to like actual regular people in America. Yeah, yeah.

I mean, it's actually a great system. Juries are just a great system. It is in fact true that you are not going to get a better shape. from anywhere than a random representative sample of sort of like algorithmically selected whoever's. I mean, it's like there is a genius in that, right? I mean, this is the moment that we are living through right now that really does just show the genius of that, where it's like, in theory, you might get like more learned judicial outcomes if instead you only let lawyers on there.

If you only let this or that sort of like credentialed member of elite society participate. but it is exactly the credentialing bodies and is exactly the people who have, you know, these things to lose who are the most co-opted right now because Donald Trump will put the thumbs screws to anybody he can for any reason. And this is kind of his political genius is everybody knows that there's nothing too small, nothing too petty that he won't punish you over. So you just have to do what he wants all the time and just hope that that's enough. And it doesn't work on juries because he can't apply it at a population-wide level because there are no power centers to push on.

So it works. It's been nice. It's one good thing. I know about you, but I'm sort of waiting for MAGA to turn against the jury system. So Mike Johnson was doing a little walk and talk, and he was asked about this. And this is what he said.

I'm going to reserve comment on this until I review that. That's the first I've heard of it. I mean, look, I think that any time you're obstructing law enforcement and getting in the way of these sensitive operations, It's a very serious thing and it probably is a crime and, yeah, they probably should be indicted. But they were just reiterating the law that members of military should not have to obey illegal orders. Yeah, but I think they went further than that.

I think they were suggesting that they disobey the orders and I think that crosses a line. So it was very serious. I'm glad to do attention has been paid to it and I hope that they straighten up their eyes. Yeah, well, there it is. I think any time you're obstructing law enforcement and getting in the way of these sensitive operations, it's a very serious thing. And it probably is a crime. And yeah, they probably should be indicted.

So I guess he's not calling, he's just one man expressing his opinions, I guess. It's a free country. You're allowed to say that I think a jury reached the wrong conclusion, the wrong verdict. And the other hand, he is the Speaker of the House. And it seems like maybe a better thing to say would be, I myself would have reached a different conclusion, but I respect the process and the wisdom of the jury. I don't know.

Or the verdict of the jury? This is very far from isolated. You mentioned like MAGA starting to turn against the jury process. I mean, that has begun in a lot of these places. Like, if you look at, for instance, the killings of Alex Preti and Renee Good in Minneapolis, One insane element of many insane elements in those stories was the way that federal law enforcement kind of closed ranks around those officers did not let local and state investigations move forward at all. We later found out unsurprisingly that in addition to that, the federal

government was spiking its own internal investigations into those shootings and, you know, forbidding normal forensic analysis to go forward of what had happened. But I talked to maga friends of mine who work in the government who who who you know just had a very different take on that whole thing than I did so much so that like I felt like I was going insane at times but this was one of the elements was like well look I mean shouldn't it don't we actually have a good system for for going forward these should shouldn't the state investigation the local investigation be able to go forward shouldn't charges be able to be brought if that if they are warranted in these killings wouldn't wouldn't a jury be the best for them to tease the

these things out with evidence presented on both sides. And pretty uniformly, the response is, oh, yeah, like an ice agent could get a fair jury trial in a blue city. Well, sorry, most people live in cities. That's where a lot of the crime happens. There's jury trials there, too. Maybe you have a problem with, like, the political makeup of the jury pool in these various places, but there's still the only, like, really fair way human beings have ever devised to get to the bottom of these things. And I'm supposed to be like, I'm supposed to like nod along and say, oh, yeah, just because the pool would be predominantly democratic, we should just let, like, Christy Noem handle it and figure out what the right way to meet out justice is here. But this is not like an unheard of

thought. This is that this is actually like part of the way that these people process these sorts of situations. And I mean, it really does go down to the kind of fundamental war that Trump wages on on our system, which is not that that it's like him versus this sort of liberal system that pre-exists him that might have these problems that need, that need addressing in various ways, but which is, which is a system. It is, it is his contention that he makes to his people, that it's just the war of all against all, it's just us against them. It's red versus blue, shirts against skins, order against chaos and, and, and like the idea that he as the side of order and the side of the angels, like, could do damage to, like, the actual procedures

by which we pursue justice in this country and the institutions that have enabled us to do that for so long. Like, it doesn't even really compute for these people. Like, it's, like, a non-thought that you almost can't even get to lodge in their brains. Well, the good news is we're already 25% of the way through this term, and there's only three years left for the president to continue to wreak this damage on America. If you haven't done so, hit like, hit subscribe, follow the channel because we will we'll catalog all of it. We'll do it until till you're sick of it, as sick of it as we are. Good luck, America.