Has Trump's retribution campaign been derailed (for now)?

Summary

Americast – “Has Trump's retribution campaign been derailed (for now)?”

Date: November 26, 2025
Hosts: Sarah Smith, Anthony Zurcher, Marianna Spring (BBC News)

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Episode Overview

This episode tackles the latest developments in Donald Trump’s highly publicized campaign to prosecute political adversaries, particularly focusing on the recent dismissal of cases against former FBI Director James Comey and New York Attorney General Letitia James. The Americast team explores the implications of these legal roadblocks for Trump’s broader “retribution” agenda, how technicalities derailed key indictments, what this means for future prosecutions, and the ongoing weaponization of law enforcement for political ends.

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Key Discussion Points & Insights

1. The Dismissal of Trump’s Cases Against Comey and James

[01:08–03:36]

• Opening Quote: James Comey reacts defiantly to the legal developments:

  “A message has to be sent that the President... cannot use the Department of Justice to target his political enemies. I don’t care what your politics are. You have to see that as fundamentally un-American and a threat to the rule of law...”
  – James Comey [01:08]

• Technicality Behind Dismissal:

  • The indictments were voided because the US attorney leading the prosecution, Lindsey Halligan, was not lawfully appointed; she lacked Senate confirmation ([03:36] Anthony).
  • The ruling: interim appointments are limited to 120 days; repeated or back-to-back interim appointments would let administrations bypass confirmation indefinitely, which “cannot be the law” ([04:42] Sarah).

2. Origins and Merits of the Charges

[07:28–12:15]

• Comey Case:

  • Accused of making false statements to Congress and obstruction, linked to the Russia investigation—precipitated by Trump’s long-standing grudge ([07:50] Anthony).
  • Case timing aimed to beat the five-year statute of limitations, but legal validity was questionable ([09:53] Sarah).

• Letitia James Case:

  • Indicted for alleged bank fraud relating to a mortgage application, seen as retaliation for her successful prosecution of Trump’s business empire ([11:22] Sarah).
  • Similar mortgage fraud claims raised against other Trump critics—suggesting a wider strategy of probing adversaries ([12:15] Anthony).

• Social Media Dimension:

  • Trump’s calls for “justice” in these cases, and celebratory or conspiratorial messaging among Trump supporters on X (formerly Twitter), amplify the sense of politically motivated prosecutions ([10:33] Mariana).

3. Political Ramifications and Legal Ironies

[13:18–15:17]

• Judicial Precedent:
  • Ironically, Trump’s own legal team previously used similar arguments (about improper appointment) to attempt to dismiss charges against Trump—now used against him ([14:14] Sarah).
• Vindictive Prosecution Claims:
  • Lawyers for Comey and James argue these cases are politically motivated “vindictive prosecu-tions”—but substantive testing of these arguments was sidelined by the procedural ruling ([15:17] Sarah).
• White House Response:
  • Press Secretary Caroline Levitt defends Halligan’s qualifications and signaled an intent to appeal ([18:08]).

4. Broader “Retribution” Strategy and Its Limits

[16:13–17:42]

• Both administration officials and their critics see these prosecutions as part of a sustained Trump policy of targeting enemies (“retribution”).
• The administration remains publicly undeterred—even stating they will continue the pursuit despite dismissals ([16:13] Mariana, quoting Pam Bondi).
• Historical context: Watergate-era reforms aimed to separate politics from the DOJ—contrasted with Trump’s open blending of the two ([20:34] Sarah).

5. Fallout and New Fronts: The Mark Kelly Situation

[21:29–25:34]

• After the Comey/James setbacks, Trump’s team launched a new probe seeking to court-martial Democratic Senator (and former astronaut) Mark Kelly, based on a video where he and other veterans urged troops to refuse illegal orders ([21:29] Mariana).
• Trump labeled this “seditious” and “punishable by death” before the White House walked his comments back ([22:50] Sarah).
• Debate over whether such actions (court-martialing a senator for speaking constitutional truths) are legitimate, or part of escalated “lawfare” strategy ([24:05] Sarah, Anthony).

6. Social Media, Public Abuse, and the Judiciary

[18:32–19:31]

• Judges and legal actors become targets of online abuse—rhetoric from Trump and supporters heightens real-world risks ([18:32] Mariana).
• Not a new Trump tactic; history of attacking the judiciary throughout his campaigns ([18:44] Anthony).

7. Big Picture: The Future of Lawfare in American Politics

[25:34–27:28]

• The hosts agree this pattern of “lawfare”—using legal systems as tools of political warfare—shows no sign of stopping, even as cases are dismissed ([25:34] Mariana/Sarah).
• Targets (Comey, James, Kelly, et al.) are publicly vowing not to back down ([26:12] Sarah, [25:34] Mariana).
• Risks include unintended consequences and public backlash.

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Notable Quotes & Memorable Moments

• James Comey’s Defiance:

  “I know that Donald Trump will probably come after me again. My attitude's going to be the same. I'm innocent, I am not afraid, and I believe in an independent federal judiciary.”
  – James Comey [01:08]

• On Legal Irony:

  “One of the things... that was brought up in court was the case in which Judge Aileen Cannon in Florida... that was used as a precedent in this case to say, if your prosecutor authorities have not been properly appointed by the president, then the case falls, which is quite entertaining.”
  – Sarah [13:18]

• On Lawfare's Endurance:

  “What we would describe as lawfare doesn’t look like it’s ending anytime soon, and that even things like what’s gone on with Comey and Letitia James won’t put Donald Trump off this approach.”
  – Mariana [25:34]

• Sen. Mark Kelly’s Response to Legal Threats:

  “If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work. I’ve given too much to this country to be silenced by bullies who care more [about] their own power than protecting the Constitution.”
  – Mark Kelly (quoted by Mariana) [25:34]

• Anthony sums up risks:

  “This also illustrates some of the pitfalls possibly of trying to prosecute your enemies... Unintended consequences... a risk of moving ahead with this Mark Kelly investigation as well.”
  – Anthony [26:40]

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Key Timestamps

• [01:08] – James Comey's statement
• [03:36] – Dismissal explained: Halligan’s appointment issue
• [07:28] – Recap of charges against Comey & James
• [09:53] – Statute of limitations & rush to prosecute
• [11:22] – Letitia James mortgage fraud context
• [13:18] – Legal irony: Trump’s own arguments used against him
• [15:17] – Vindictive prosecutions
• [16:13] – Trump team signals they will continue pursuit
• [18:08] – White House Press Secretary Caroline Levitt’s statement
• [19:31] – Listener question: Watergate & parallels
• [21:29] – New “lawfare” front: Mark Kelly court-martial probe
• [25:34] – Mark Kelly’s public response
• [26:12] – Future of lawfare in US politics

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Tone and Style

• The episode maintains the BBC’s characteristic balance—clear, direct, and analytical, with a touch of wryness and incredulity at some of the more absurd or ironic twists.
• The hosts at times convey exasperation or dark amusement, especially around the technicalities derailing major political cases.

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Conclusion

This episode provides a comprehensive exploration of the stalling of Trump’s legal “retribution” campaign—probing its causes, convoluted legal mechanics, political motives, and what these events signal for American democracy going forward. The hosts emphasize that while this roadblock is significant, the strategy of pursuing political enemies through the justice system is likely to persist and escalate.

Anyone wishing to understand the latest in how legal battles shape—and are shaped by—America’s political conflicts will find this edition of Americast both accessible and essential listening.

Transcript

[Podcast Host]

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[James Comey]

This case mattered to me personally, obviously. But it matters most because a message has to be sent that the President of the United States cannot use the Department of Justice to target his political enemies. I don't care what your politics are. You have to see that as fundamentally un American and a threat to the rule of law that keeps all of us free. I know that Donald Trump will probably come after me again and my attitude's going to be the same. I'm innocent, I am not afraid, and I believe in an independent federal judiciary. The gift from our founders that protects us from a would be tyrant.

[Sarah (BBC Washington Bureau)]

That was the defiant message from Donald Trump's longtime political foe, the former director of the FBI, James Comey. Donald Trump had vigorously pursued criminal cases against him and against the New York Attorney General, Letitia James. But yesterday both of those cases were dismissed in court. We have talked frequently before about Donald Trump's long retribution campaign and his second term. Well, it may have hit a roadblock. For now at least. Welcome to americast.

[BBC News Announcer]

Americast americast from BBC News.

[Anthony (BBC Washington Bureau)]

When Donald Trump calls, they say, yes, sir, right away, sir. Happy to lick your boot, sir.

[Sarah (BBC Washington Bureau)]

We are the sickest country in the world.

[BBC News Announcer]

Oh dear. Are you worried that billionaires are going to go hungry? Of course the President supports peaceful purchase.

[Mariana (BBC London Headquarters)]

What a stupid question.

[Anthony (BBC Washington Bureau)]

Are you still talking about Jeffrey Epstein?

[Sarah (BBC Washington Bureau)]

Hello, it's Sarah here in the BBC's Washington bureau.

[Anthony (BBC Washington Bureau)]

And it's Anthony right next to Sarah here in Washington D.C. and it's Mariana.

[Mariana (BBC London Headquarters)]

In the worldwide headquarters of AmericasT in London.

[Sarah (BBC Washington Bureau)]

We're talking to you just before 10 o' clock in the morning on Tuesday here in the United States. So it's just before three in the afternoon for Mariana in the uk and we're going to be talking about whether or not Donald Trump's much voice plan to exact retribution on so many of his political adversaries and enemies has come to a grinding halt, or at least run into some pretty significant problems, because a U.S. judge, a federal judge, has just dismissed the charges that the Trump administration brought against both the FBI director, James Comey, and the New York Attorney General, Letitia James, two of the people Donald Trump had been most focused on going after in this second term. And it's run into real problems, hasn't it, Anthony?

[Anthony (BBC Washington Bureau)]

Yeah. And I guess you could could say that this was dismissed on a technicality. It wasn't on the merits of the case. It was on the fact that Lindsey Halligan, who was a US Attorney who was prosecuting this case, had not been lawfully appointed by Donald Trump. I think if people followed this case, they may remember that there was a great amount of turmoil leading up to those indictments where the U.S. attorney who was in that position before allegedly refused to bring charges. There may have been a memo written within the U.S. attorney's office, a declination memo, it's called, saying that they didn't have grounds to bring the charges. He resigned, was fired, if you ask Donald Trump, and then Halligan was appointed. And this all turns on whether Halligan was legally appointed because US Attorneys have to be confirmed by the US Senate and she hadn't been yet. So the question is, was she acting in an acting capacity? Did she have the ability to bring these charges? And a judge looked at it and said no. And that is why both of these prosecutions, at least for now, have fallen apart, because the person who brought the indictment wasn't there legally.

[Sarah (BBC Washington Bureau)]

Yeah, it's really interesting that this is the technicality it's fallen apart on. So there'd be huge amount of criticism of Lindsay Halligan, who had never prosecuted anything before she was brought in to do these cases. You know, these really experienced prosecutors in the Justice Department saying there just wasn't enough evidence to bring these charges. And then within, what was it, about three days or something of being appointed, she's managed to come up with an indictment that takes it to a grand jury. There was criticism that she had handled that process wrongly, but that wasn't adjudicated on the end. It was simply the fact that the judge said, look, you had an interim U.S. attorney, and you're allowed to have that for 120 days. But he resigned or was fired. You can't then have another interim who can serve for 120 days because then you could just have another one and another one and another one, and then you'd never actually have to get Senate confirmation about it. In fact, what she said was the implications of a contrary conclusion are extraordinary. It would mean the government could send any private citizen off the street, attorney or not, into the grand jury room to secure an indictment. As long as the attorney general gives her approval after the fact. That cannot be the law. So that's why these cases were thrown out on this particular technicality. But, Marianna, we don't know yet, do we, whether this is actually the end of Donald Trump trying to go after James Comey and Letitia James.

[Mariana (BBC London Headquarters)]

Well, exactly, Sarah. The White House has come out to say, and they told the BBC this, the facts of the indictments against Comey and James have not changed, and this will not be the final word on this matter. And as we know, Donald Trump has quite ferociously gone after, certainly James Comey and also Letitia James on Truth Social across social media, calling them guilty as hell. And then he also said justice must be served now with three exclamation marks and all capitals. So it doesn't feel like he's about to suddenly say, oh, okay, fine, let's all move on with this. But what can he actually do?

[Anthony (BBC Washington Bureau)]

Well, I guess they could find a way to legally appoint Halligan to the job. She would have to be confirmed by the House, by the Senate. This actually isn't the first time that the Trump administration has run into this problem. Alina Haba, who was another one of Donald Trump's personal lawyers, like Halligan, was named to a New Jersey U.S. attorney's office, and a judge there said, no, you can't do that, threw that out. So this is something they're running into repeatedly when Donald Trump tries to get folks that he wants who are sympathetic to his calls for prosecution, sympathetic to his outlook on the Justice Department and not getting them in there. I mean, it's a complicating factor for all of Donald Trump's legal agenda, prosecutorial agenda, but it's not necessarily the last word.

[Sarah (BBC Washington Bureau)]

We should probably just go over what it was that they were being accused of, what it was that James Comey and Letitia James were being indicted for as we explore whether or not these charges might be revived. So you had James Comey, former FBI director, who was, he was in post Anthony, wasn't he when Donald Trump came into office the first time? So he inherited James Comey and fell out with him pretty quickly.

[Anthony (BBC Washington Bureau)]

Pretty quickly about the Russia investigation. There was that revelation of the dossier that Comey came up to Donald Trump and told him about between when Donald Trump won in November of 2016 and when he took office in January of 2017. That kind of got them off, I suppose, on the wrong foot. This dossier had a lot of allegations based on rumors and other things that had been pulled together about Donald Trump's connections to the Russian government and possible blackmail or evidence that the Russians may have had that would have put Donald Trump in a less than flattering light. That led to a clash with James Comey and ultimately Donald Trump very early in his first presidential term, firing James Comey after telling him that he needed to drop this Russia investigation.

[Sarah (BBC Washington Bureau)]

It's funny, I can't hear anybody talk about it without assuming it's just the Russia, Russia, Russia investigation, because that's what Donald Trump says every single time. Yeah. So that's how they fell out. But what they managed to get an indictment on, because they just combed through everything looking for anything they could possibly charge him with, basically, didn't they? And what they came up with was charges of making false statements to Congress and obstruction of justice related to a time that James Comey appeared in front of the Senate Judiciary committee in Sept. Sept. 2020 and he was questioned about the FBI's handling of two investigations, the Russia, Russia, Russia one and one about Hillary Clinton's use of a private server. And he denied, I think, wasn't it? He denied authorizing anybody to leak information about these investigations. And the accusation was, no, no, no, you did authorize somebody to leak that information. So you were lying in front of Congress. But I think the problem with that, though, isn't it is the date of that committee hearing, September 2020. James Comey's lawyers argue there's a five year statute of limitations on that, and that has passed. So if, you know, no matter who they can find to prosecute this case, they'll say it's out of time.

[Anthony (BBC Washington Bureau)]

Yeah, it passed at the end of September and he was indicted before that, literally, I think a day or two before the statute of limitations expire. But the question.

[Sarah (BBC Washington Bureau)]

That's what the hurry was about getting Lindsey Halligan into that job in the first place.

[Anthony (BBC Washington Bureau)]

Exactly. And so now whether it's too late now to indict him again, I think it's kind of up to the judge and whether the Fact that this was thrown out on technicality gives the US Another six months or so to bring charges. But it was an interesting case to begin with, and legal experts say it was kind of a tenuous case about not directly on the Russia investigation, not on Comey's handling of it. It was just about this one instance in testimony where he may or may not have contradicted some other testimony saying that he did authorize this leak.

[Mariana (BBC London Headquarters)]

It's worth saying on that point, Anthony, that so many people on X, for example, just as you say, have been kind of clinging to these indictments, particularly in the MAGA influencer world, very active social media accounts saying, look, this is the moment where these corrupt frauds will be shown for what they are. And exactly like you say, talking all about the Russia hoax, as they call it, you know, these allegations of foreign interference, Russian interference in the election in 2016, and what Trump says were kind of false accusations leveled at him. And they are not best pleased at all that these charges have been dropped, which they see as just more evidence of this huge conspiracy to cover stuff up. And, you know, it's not just about Comey. It's obviously also about Letitia James. What's that again, Sarah? So remind me what she was indicted on.

[Sarah (BBC Washington Bureau)]

Yeah, well, so she is the Attorney General of New York, still is, who was charged with bank fraud and making false statements to a financial institution, which was basically around about a mortgage for a home that she bought in Virginia, which is why the case was being tried there, using a mortgage. And it was over whether or not this was a second residence and whether or not she intended to rent it out. And if she had properly declared all of that on her mortgage application. The reason Donald Trump was going after her, though, is because she's the Attorney General of New York who brought the charges against the Trump Organization in a case that the Trump Organization lost last year and had a huge multimillion dollar civil fraud judgment against the real estate empire with consequences as well for Trump family members who weren't allowed to be directors, wasn't the company directors in New York anymore. And a huge fine. I can't remember what it was, can you, Anthony?

[Anthony (BBC Washington Bureau)]

A massive fine. Hundreds of billions of dollars, if I remember correctly. And, yeah, it does seem like that is why she became a target. And if these mortgage fraud charges sound familiar, it's because she's not the only one who has had these allegations lobbed at her. Lisa Cook, who is the Fed chair or the Fed board member that Donald Trump fired, was fired on the Grounds of also allegedly making false claims about a mortgage application for a second home. Adam Schiff, the senator from California who presided over one of the impeachment hearings against Donald Trump, he is being investigated, although not indicted. And there's another Congressman Eric Swalwell in California, another big Donald Trump critic who is being investigated for the same thing. And these are all kind of being spat out by the housing authority within the Trump administration. And one guy who is saying, and going through all these files and saying, look, maybe they put the wrong numbers down here. Maybe they were trying to misrepresent it to get some sort of a modest tax savings.

[Sarah (BBC Washington Bureau)]

So that's a case which, well, certainly hasn't run out of the statute of limitations. So they would need to, they need to get another indictment, wouldn't they? So they would need to persuade another grand jury that there were grounds to at least take this to trial. And who knows whether or not they will go ahead with that. There's some ironies, I think, in the judgment that's had both of these cases thrown out. I don't know if you noticed, Anthony, one of the things that was brought up in court was the case in which Judge Aileen Cannon in Florida throughout the Mar A Largo documents case, when Donald Trump's lawyers were arguing, well, this case was brought by special investigator Jack Smith and he was not properly appointed by the president, therefore he had no locus to bring the case in the first place. The case must be thrown out. And the very Trump favorable Judge Aileen Cannon threw it out. Well, that was used as a precedent in this case to say, if your prosecutor authorities have not been properly appointed by the president, then the case falls, which is quite entertaining.

[Anthony (BBC Washington Bureau)]

Yeah, there is a certain amount of irony to that. And special prosecutors, independent counsels like Jack Smith had been around for decades and no one had ever tried to throw them out before. But Eileen Cannon did find this as grounds to do it, rather surprisingly, I think, to a lot of legal experts. But. And now it's coming around back to bite Donald Trump in a kind of an unexpected way. You alluded to this, but we do should also mention that Donald Trump had this post on Truth Social where he explicitly said that Letitia James and James Comey and Adam Schiff should all be indicted. And there is now some question about whether that was an accidental. That was a message he sent to Pam Bondi that was supposed to be private, and he accidentally posted it on his True Social account. But the connection between Donald Trump calling this out, saying that they're guilty as hell, and they need to be prosecuted. And then the indictments passed down from Pam Bondi to this U.S. attorney happened in a matter of days, hours almost.

[Sarah (BBC Washington Bureau)]

And that's actually a reason why lawyers for both James Comey and Letitia James have been claiming that this is what you would call a vindictive prosecution, that it's for political reasons, that Donald Trump wanted to bring it, and things like that. Truth social post are brought up during those arguments, but that hasn't been tested yet by a judge because the judge threw these cases out on this procedural grounds that the U.S. attorney hadn't been properly appointed. So the question of whether or not you can prove that they're vindictive prosecutions and have them dropped as a result of that, we don't know yet. I guess if Letitia James or if either of them come back to court, that will be argued again, and it.

[Anthony (BBC Washington Bureau)]

Looks like it might. Pam Bondi, shortly after the cases were thrown out, made a statement saying that they planned on continuing this case. This is her.

[BBC News Announcer]

I'm gonna keep going on this. I'm not worried about someone who has been charged with a very serious crime. His alleged actions were a betrayal of public trust.

[Mariana (BBC London Headquarters)]

So it's interesting because, you know, you've got the people around Trump very, very clearly asserting that they do not plan to let this go. And you've even got, you know, Comey himself, for example, said, you know, I know that Donald Trump will probably come after me again. Matthew's going to be the same. I'm innocent. And Letitia James posted on X saying, I'm heartened by the victory, grateful for the president's support. I remain fearless in the face of these baseless charges. I mean, all of the suggestion here is that everyone sees this as part of an ongoing strategy, if that's the right word, that this is how Donald Trump is using the Justice Department to target the people with whom he has a problem. I mean, clearly there's a bit of a stumbling block, a bit of a bit of a blockage here, which is getting in the way of that. Do you think it would be fair to describe it as quite a concerted strategy, Sarah? And to what extent has that strategy now been slightly upended?

[Sarah (BBC Washington Bureau)]

Definitely. I mean, because there's all the cases where they're looking into political adversaries for mortgage fraud that Anthony listed. And then you can look at other instances where, say, John Bolton, Donald Trump's former national security adviser, having the FBI sent in to raid his home and office looking for classified documents. And that's not the only example of law enforcement being used against people that Donald Trump has said that. I mean, and that's the thing. He doesn't make any secret about it. He says, I will be your retribution, I will be your vengeance, and I will go after these people. And then. But the thing is, you do tend to see it then happening.

[Mariana (BBC London Headquarters)]

And as ever, when these kinds of legal cases are unfolding, it's often the case that the White House, Donald Trump, decide to take aim at the people involved in the process. That might be the judge, it might be the jury, and they become the focus. And the White House was really quick to respond in this case to Judge Cameron Curry dropping the case against Comey and James, specifically mentioning Curry, here was what White House Press Secretary Caroline Levitt said on Monday.

[Caroline Levitt (White House Press Secretary)]

I know there was a judge who is clearly trying to shield Letitia James and James Comey from receiving accountability, and that's why they took this unprecedented action to throw away the indictments against these two individuals. But the Department of Justice will be appealing very soon. And it is our position that Lindsey Halligan is extremely qualified for this position, but more importantly, was legally appointed to it.

[Mariana (BBC London Headquarters)]

And a lot of this stuff, as you can imagine, fuels a huge amount of online hate and abuse targeting the judges and various other people, other people involved here. I mean, they kind of become wrapped up in all of the drama. Anthony.

[Anthony (BBC Washington Bureau)]

Yeah, and a standard playbook for Donald Trump. This goes back a decade. If you remember during the campaign in 2015, there was a judge investigating him. He dismissed him as a Mexican judge because he had a Hispanic background. And going through all of the various indictments against Donald Trump between his first term and his second term, he blasted the judges there. The one in New York that was presiding over his hush money payment case, he would constantly disparage as being biased against him. So this is not something new, but it does, as I think you're picking up, does direct a lot of hate and anger and the potential for violence direct against the judiciary, which is not in keeping with the way the US Judicial system has traditionally operated.

[Sarah (BBC Washington Bureau)]

Now, we've had a question in from an anonymous listener saying US Judge District Judge Cameron Curry has dismissed the criminal indictments against former FBI Director James Comey and New York AG Letitia James after finding that the former Trump attorney, Lindsay Halligan, was not lawfully appointed. The question is, what does this mean for the Attorney General, Pam Bondi, whom we heard from just a couple of minutes ago, should she be reminded that although Richard Nixon was not sent to jail, his attorney general was. Good point, Anthony.

[Anthony (BBC Washington Bureau)]

John Mitchell, reference. Yeah. Watergate it is. Donald Trump has immunity from anything he does does as president in the line of his official duties, which is kind of a vague standard, has been tested, but it seems to give him a lot of protection. Anyone below him, including Pam Bondi, wouldn't have those kind of protections, although there hasn't been any allegations of illegality from her yet. I mean, the question is whether she's making these appointments and Trump's making these appointments legally. But that isn't criminal. That is just, you know, kind of a procedural thing.

[Sarah (BBC Washington Bureau)]

Yeah. Although, I mean, Watergate does come up and you hear Richard Nixon being mentioned more and more often because there was a clear separation, wasn't there, between the administration, the people working out of the White House for the president and the Justice Department established after Watergate to try and make sure that there wasn't political interference with justice. And that's what Donald Trump has just ridden a coach and horses through, hasn't he, in the last few months?

[Mariana (BBC London Headquarters)]

Yeah.

[Anthony (BBC Washington Bureau)]

And, you know, we've talked about this before, but the thing that got Richard Nixon on the Watergate tapes was his talking about influencing the Justice Department and prosecuting his enemies and investigating his enemies and seeking the IRS on them. And here with Donald Trump, he just comes right out and says it. He says it on Truth Social, he says it in public. And there's not the kind of up in arms outcry across the board from Republicans and Democrats about this. This is just the way Donald Trump operates.

[Mariana (BBC London Headquarters)]

Now, we mentioned this on Monday, actually, but it's worth sort of chatting about it in a little bit more detail. So after Monday's double defeat for the administration in terms of these cases, they launched a new probe into potential court martial of Democratic Senator Mark Kelly from Arizona, who is a retired US Navy captain and former astronaut. And they've talked about him being a possible Democratic presidential candidate last year. Now, the Pentagon said, they said on Monday that they're investigating him for, quote, serious allegations of misconduct less than a week after, after he took part in this video with five other lawmakers who were also ex service members that repeatedly urged the military and intelligence community to refuse illegal orders. And this is what triggered Donald Trump to say that maybe people like this could be punished by death. Although he later said that's not what he was saying. This is the video.

[BBC News Announcer]

Americans trust their military, but that trust is at risk.

[Anthony (BBC Washington Bureau)]

This administration is pitting our uniformed military and intelligence community professionals against American citizens like us. You all swore an oath to protect.

[Ulta Beauty Advertiser]

And defend this Constitution.

[Anthony (BBC Washington Bureau)]

Right now, the threats to our Constitution aren't just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders.

[BBC News Announcer]

You can refuse illegal orders.

[Anthony (BBC Washington Bureau)]

You must refuse illegal orders.

[Mariana (BBC London Headquarters)]

No one has to carry out orders.

[BBC News Announcer]

That violate the law or our Constitution.

[Anthony (BBC Washington Bureau)]

We know this is hard.

[Sarah (BBC Washington Bureau)]

Yes. It was in response to that video that Donald Trump had been posting that this is seditious and treacherous behavior. And he in one post say that seditious behaviour was punishable by death. But then the press secretary definitely said that he was not calling for the death penalty for any of these elected lawmakers. But they have come up with a sort of roundabout way to try and punish Senator Mark Kelly.

[Anthony (BBC Washington Bureau)]

Right. Mark Kelly is a retired captain, as Marianna noted, and that means that he could be, in theory, called back to active duty by the Department of Defense, Department of war, whatever you want to call it. But Pete Hagseth has since come out and said that that's exactly what he wants to do in order to have him face either a court martial or some sort of administrative punishment for undermining troop morale or violating universal code of military justice in some sort of way. So in theory, they found a way that they could bring him back, put him before some sort of judicial proceedings and punish him. Although you're picking a fight with a Navy captain, a war hero, a decorated astronaut, that is. I'm not sure that the Trump administration really wants to lean into that, but they are. At least Hagseth seems to be willing to try it right now.

[Sarah (BBC Washington Bureau)]

And what they were saying in that video, which was you can refuse illegal orders, in fact, you must refuse illegal orders if you give them, if you're a service person. That's true. I mean, that is just a constitutional fact. So can you court martial somebody for pointing out the truth?

[Anthony (BBC Washington Bureau)]

I guess I would say this. This clip of this video that we saw doesn't just do that. It is undermining morale somehow. But, yeah, at West Point, the U.S. military Academy has a plaque that says you have an obligation not to heed any kind of orders that are illegal. When anyone in the military, anyone in public service, in government service, is sworn into office, they take an oath to defend the consequences Constitution of the United States and uphold it. And that is not upholding allegiance to one man, that is to defend the laws. And so you have to make an interpretation of what is a valid order and what isn't in order to fulfill that oath. So it would be certainly quite a scene if Mark Kelly back In his captain's uniform. He posted on social media a picture of all the medals he won in his Navy dress uniform. You know, has to show up and defend himself in front of a prosecution by Pete Hegseth, who actually technically was lower ranking officer when he was in the military compared to Kelly. So it's gonna make for a fascinating case if this goes forward.

[Mariana (BBC London Headquarters)]

It's interesting as well. I mean, you made that point, Anthony, about Kelly posting all of his various military accolades. And he was really punchy on X. He said, if this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won't work. I've given too much to this country to be silenced by bullies who care more own power than protecting the Constitution. So, I mean, I guess the kind of big picture point here is that what we would describe as lawfare doesn't look like it's ending anytime soon and that even things like what's gone on with Comey and Letitia James won't put Donald Trump off this approach. Would that be a fair conclusion to reach?

[Sarah (BBC Washington Bureau)]

Yeah, I mean, that's certainly what the administration have been saying, is that they intend to pursue this. And every single one of these people who've been targeted by the administration, of course, as we've been saying, have, have given public responses saying that they won't be intimidated, they won't be bullied and they won't back down and they intend to fight this on principle. And also because they say they haven't done anything wrong, so they shouldn't be punished for anything. Which, I mean, it probably sets the tone for the next few months, if next few, if not next few years, of how this is likely to continue to play out.

[Anthony (BBC Washington Bureau)]

Senator Ruben Gallego, who's also a senator from Arizona, also part of that video, had a post on X directed at Pete Hegseth and it was FU and your investigation. So I think, yeah, not backing down is a good way of describing it. And I think this also illustrates some of the pitfalls possibly of trying to prosecute your enemies, trying to bring cases against them. We saw what has happened now with Comey and Letitia James. Unintended consequences. I think that is a risk of moving ahead with this Mark Kelly investigation as well. And it is, you know, this is kind of saber rattling right now. We'll see if they actually try to do this because it would be kind of a long, convoluted process and you cannot guarantee where the public will land on this and how it all will end up.

[Sarah (BBC Washington Bureau)]

It's hard to imagine that this is the last time that we're going to be talking about lawfare or the attempts from the administration to go after and to prosecute some of their adversaries. So I'm sure we will return to that, but we should probably leave it there for today. Thank you so much for listening and we'll say bye.

[Anthony (BBC Washington Bureau)]

Bye, bye, all.

[Sarah (BBC Washington Bureau)]

Bye.

[Mariana (BBC London Headquarters)]

Ameracast.

[BBC News Announcer]

Ameracast from BBC News.

[Podcast Host]

Well, look, thanks for listening all the way to the end of today's AmericasT. You are now officially an AmericasT. It is, of course, a ride, a wild ride, navigating the US News, particularly in the era of Trump. But you have made it. If you have a comment, a question about the things we've talked about or anything at all actually, get into touch with us. The email is americastbc.co.uk. the WhatsApp is 033-01-239480. We answer your questions every single week, actually, on the podcast, so keep them coming. You can join the online community as well on Discord. The link is in the podcast description on your app. We will be back with another podcast very soon. So until then, see you later. Bye.

[Mariana (BBC London Headquarters)]

America is changing, and so is the world.

[Sarah (BBC Washington Bureau)]

But what's happening in America isn't just a cause of global upheaval. It's also a symptom of disruption that's happening everywhere.

[Mariana (BBC London Headquarters)]

I'm Asma Khalid in Washington, D.C. i'm.

[Sarah (BBC Washington Bureau)]

Tristan Redman in London, and this is the Global story.

[Mariana (BBC London Headquarters)]

Every weekday, we'll bring you a story from this intersection where the world and America meet.

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