By Barbara McQuade / Bloomberg Opinion
There can be a fine line between free speech and illegal threats. However, some political statements in the crosshairs of Washington’s top federal prosecutor are not a close call.
According to reports, Ed Martin, the interim U.S. attorney for the District of Columbia, has launched “Operation Whirlwind” to investigate threats against public officials. As part of the program, Martin is sending some people letters seeking “clarification” of statements they’ve made. While prosecuting true threats is a laudable goal, the weak legal basis for his inquiry suggests that this effort is more about chilling political speech than protecting the public.
Martin, whom President Trump nominated last week to serve as the permanent U.S. attorney in Washington, reportedly sent letters to Democratic Sen. Chuck Schumer of New York and Democratic Rep. Robert Garcia of California.
Martin also posted two letters to Elon Musk on social media promising the support of his office. In one letter to Musk, Martin said he would take legal action “against anyone who impedes your work or threatens your people,” referencing Musk’s role as head of Trump’s Department of Government Efficiency. While Martin certainly has the authority to bring criminal cases for genuine threats, merely “impeding” someone’s work is not a crime unless it violates a federal statute.
In a second letter to Musk and his DOGE colleague Steve Davis, Martin wrote, “If people are discovered to have broken the law or even acted simply unethically, we will investigate them.” In boldface type, he added, “We will chase them to the end of the Earth to hold them accountable.” Of course, a federal prosecutor has no authority to take action against conduct that is simply unethical. And publicly promising to use the powers of his office to support a particular individual undermines a federal prosecutor’s duty to approach his work without fear or favor.
The name of Martin’s operation appears to come from a statement Schumer made at a March 2020 abortion rally; nearly five years ago. Schumer told the crowd that Supreme Court Justices Neil Gorsuch and Brett Kavanaugh “have released the whirlwind, and you will pay the price. You won’t know what hit you if you make these awful decisions.” Schumer’s statement was ill-advised in today’s political climate, to be sure, and he apologized for it the very next day. But it falls far short of the legal standard required to cross the criminal line. Martin, who has never served as a federal prosecutor at any level, has followed up with two subsequent letters to Schumer, demanding answers.
Similarly, Martin’s letter to Garcia sought clarification for statements he made during a cable television interview in which he referred to Trump as a “d*ck.” Garcia said, “What the American public wants is for us to bring actual weapons to this bar fight. This is an actual fight for democracy.” Again, Garcia showed poor judgment in using such incendiary words, but they are far from criminal.
As a former U.S. attorney, I find these letters highly unusual and extremely inappropriate. Typically, federal investigations are conducted by law enforcement agents under the supervision of prosecutors, who then make charging decisions. Prosecutors are trained to refrain from conducting direct fact-finding to avoid becoming witnesses in the cases they may later prosecute. If information is sought for a criminal case, agents may conduct a voluntary interview with a subject or serve them with a subpoena to compel them to appear before a grand jury. A letter from the U.S. attorney is not on the usual menu of investigative techniques.
In addition, Department of Justice policy prohibits prosecutors from confirming or denying the existence of a criminal investigation because public disclosure may compromise the case or harm the subject’s reputation. Thus, posting the Musk letters on social media would breach that protocol.
While First Amendment protections are not absolute, they receive great deference in our democracy to permit the people to speak out against their government. For example, the Supreme Court has held that to punish speech for inciting violence, the government must prove that a defendant intended to produce “imminent lawless action” and that the speech was likely to produce that result. According to former Special Counsel Jack Smith’s report, because of this very high standard, he considered but rejected charging Trump with inciting insurrection for urging rally-goers on Jan. 6 to “fight like hell.”
Another type of prohibited speech are threats. To be prosecutable, the Supreme Court requires statements to amount to a “true threat.” As Supreme Court Justice Elena Kagan explained in a 2023 opinion, “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow.” True threats, she wrote, are “serious expressions conveying that a speaker means to commit an unlawful act of violence.” Protecting victims from true threats is important because they put people in fear of violence and cause corresponding disruptions in their lives.
The statements referenced in Martin’s letters fall far short of the level of illegality on their face. Vague comments that one has “released the whirlwind” or that Americans want Democrats to “bring weapons to a barfight” do not amount to crimes. They fail to meet the incitement standard that requires intent to cause imminent lawless action and a likelihood that such action will result. Nor do they amount to true threats to convey that the speaker means to commit an unlawful act of violence.
What, then, is the purpose of Martin’s missives? In light of Trump’s vows of retribution against his political opponents, one possibility is that the letters are part of an effort to effectuate those promises. Posting letters on his social media account suggests that Martin is more interested in intimidating people than investigating crimes. One foreseeable consequence of Martin’s letters is that they will deter political speech criticizing the Trump administration.
During the last administration, former Attorney General Merrick Garland was blasted by Republicans on the Senate Judiciary Committee for issuing a memo directing U.S. attorneys to work with state and local law enforcement officials to investigate “a disturbing spike” in threats of violence against local school officials. Republicans characterized the memo as an effort to treat parents like “domestic terrorists” despite no use of that term in the memo. Garland did not comment on specific cases or seek “clarification” of any particular statement. He simply directed his prosecutors to strategize the best way to protect public officials from threats and violence. In my view, that is an appropriate use of prosecutorial discretion and communication of priorities. Nonetheless, GOP members of the Judiciary Committee accused Garland of chilling the free-speech rights of parents. Republican Sen. Tom Cotton of Arkansas told Garland he “should resign in disgrace.”
When the time comes for Martin’s confirmation hearing before the same committee, let’s hope its members still care about protecting free speech from government overreach.
Barbara McQuade is a professor at the University of Michigan Law school, a former U.S. attorney and author of “Attack from Within: How Disinformation Is Sabotaging America.” ©2025 Bloomberg L.P., bloomberg.com/opinion.
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