Rep. Robert Garcia (D-California) questions witnesses during a House Oversight Committee hearing on Feb. 12. (Rod Lamkey/AP)
The top federal prosecutor in D.C. escalated his scrutiny of what he characterized as potential threats directed at billionaire Elon Musk and government workers, demanding information from a Democratic congressman who criticized Musk and telling his office he planned to prosecute anyone targeting public officials, according to documents obtained by The Washington Post.
In an all-staff email to prosecutors, interim D.C. U.S. attorney Ed Martin on Wednesday announced “Operation Whirlwind,” a new initiative to prosecute threats against public officials at all levels — a
problem that has escalated in recent years.
The email was obtained by The Post, as well as additional “letters of inquiry” sent by Martin to Rep. Robert Garcia (D-California) and Senate Minority Leader Charles E. Schumer (D-New York). Martin requested Garcia “clarify” statements regarding Musk on CNN last week and
stepped up a previously reported demand that Schumer explain statements about two conservative Supreme Court justices in 2020.
“Free speech has limits and threatening government workers crosses the line,” Martin wrote in the email, which he said came after he spoke the previous night with a senior Musk aide about threats against U.S. DOGE Service workers. “We will stop the storm of threats against officials at all levels.”
Legal analysts called Martin’s direct inquiries to lawmakers highly irregular and his discussion of investigative targets troubling. They criticized his overall approach as a test of the boundaries of free-speech protections.
“I’ve never seen anything like these letters from a U.S. attorney,” said Barbara McQuade, a former federal prosecutor and University of Michigan law professor. Prosecutors typically leave it to agents to investigate cases so they do not themselves become witnesses, and department policy is to neither confirm nor deny the existence of investigations to protect the reputations of uncharged subjects as well as to avoid tipping them off, she said.
“It seems like a fair inference that these letters are designed more to chill free speech than to seek clarification, as they purport to do,” McQuade said.
In the letter to Garcia, sent Monday, Martin requested that he “clarify” an incendiary statement on CNN after the congressman participated in the first House subcommittee hearing on Musk’s DOGE, which stands for Department of Government Efficiency.
“What the American public wants is for us to bring actual weapons to this bar fight,” Garcia said. “This is an actual fight for democracy.”
Martin’s letter to Garcia said the comment “sounds to some like a threat to Mr. Musk … and government staff who work for him. Their concerns have led to this inquiry. … We take threats against public officials very seriously. I look forward to your cooperation.”
Garcia told The Washington Post his office had not received the letter, but he would not let it deter him from speaking out.
“We will not be silenced,” Garcia said in a written statement, adding: “No reasonable person would view these comments as a threat, and it’s interesting that the letter was sent to The Washington Post, yet we have not received it. We are living in a dangerous time, and elected members of Congress must have the right to forcefully oppose the Trump Administration.”
Those on both sides of the aisle have decried threats to public officials in an increasingly rancorous political climate, with some blaming the heated rhetoric for last year’s two apparent assassination attempts against President Donald Trump while he was running for office and a 2022 hammer attack against the husband of then-House Speaker Nancy Pelosi (D-California).
Martin’s initiative carried a partisan edge, however, borrowing its title from language Schumer used five years ago.
Martin has written three letters to Schumer about his quickly walked-back statement in a March 4, 2020, rally that two of Trump’s recently nominated Supreme Court justices, Neil M. Gorsuch and Brett M. Kavanaugh, “have released the whirlwind, and … will pay the price” for a decision against abortion rights.
Calling Schumer’s failure to respond disappointing and “unacceptable,” Martin copied the Senate leader’s legal counsel by email to a Feb. 11 letter demanding an answer, saying, “Time is of the essence,” and “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law,” bold-typing the final six words.
Senate Minority Leader Charles E. Schumer (D-New York) speaks on the Senate floor on March 5, 2020. (Senate TV/AP) (AP)
Schumer’s office said it received Martin’s original letter Feb. 4, two weeks after it was sent. Schumer’s chief of staff, Michael Lynch, responded two days later, writing in part, “As Senator Schumer’s statement on the Senate floor confirmed, the comments were not a threat to physically harm any person.”
In that floor speech on March 5, 2020, Schumer expressed regret following rebukes from then-Senate Majority Leader Mitch McConnell (R-Kentucky) and Chief Justice John G. Roberts Jr. “I shouldn’t have used the words I did, but in no way was I making a threat. I never — never — would do such a thing,” Schumer said, while calling it a “gross distortion” to imply that he intended anything other than the court would face political and public opinion consequence.
While the statute of limitations for bringing federal charges is typically five years, legal analysts said Schumer’s quick retraction, the passage of time, and U.S. case law surrounding threats, free speech and congressional immunity would make any prosecution difficult in the next two weeks. The Supreme Court in a 7-2 decision in 2023 also raised the threshold for prosecuting “true threats.”
Legal analysts said Martin’s actions would be more credible but for his own actions in the three weeks since taking office and Trump’s long pattern of sowing falsehood-laden attacks and encouraging violence against political critics. Trump has made
more than 100 threats to prosecute or punish perceived enemies, according to NPR, including against former president
Joe Biden, senators, judges, members of Biden’s family and nongovernmental organizations, and has accused the media of being an “
enemy of the American people.”
Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” special counsel Jack Smith’s prosecutors argued in court filings, citing his “ability and willingness to use his influence and following on social media to target witnesses, courts, and Department employees.”
Scores of
criminal cases have been identified in recent years in which Trump was invoked in direct connection with violent acts, threats of violence or allegations of assault. Conservative figures have also been targeted, with charges brought against men accused of threatening or attempting to assassinate
figures such as Roberts, Kavanaugh and Trump.
Paul D. Kamenar, a conservative appellate and public policy lawyer, has complained that while the New York bar authorities declined his request to discipline Schumer for his remarks — citing the First Amendment free speech protections — they showed no such caution in disbarring Trump lawyer Rudy Giuliani last July for allegedly making “false and misleading statements” about the 2020 election.
Still, Martin’s politically charged rhetoric and selective recitation of threats in his office email provoked skepticism. A Trump “Stop the Steal” organizer and fundraiser who was present at the Capitol on Jan. 6, 2021, and
wrote on social media that it was “Like Mardi Gras in DC today: love, faith and joy. Ignore #FakeNews,” Martin told prosecutors that their office was “flooded with threats” for “help[ing] free the January 6th prisoners” pardoned by Trump.
“We are the guardians of federal workers,” Martin added. “You and I must do whatever possible to assure government work is safe for all involved. We must protect our cops, our prosecutors, our DOGE employees, the President, and all other government employees.”
Martin’s repeated pledges to assist Musk by investigating his allegations that some of his workers faced harassment have also drawn notice. On X, Musk had highlighted a string of menacing online posts about those working for DOGE, included users saying “Muskrat’s DOGE Henchmen have been identified,” “let’s drag their necks up by a large coil of rope” and “ … doing this type of thing to the American people should result in you fearing for your life, if you get to keep it.”
“If people are discovered to have broken the law or even acted simply unethically, we will investigate them,” Martin assured Musk in a Feb. 7 letter he posted on social media, adding “we will chase them to the end of the Earth to hold them accountable.”
Analysts said that statement was unusual for a federal prosecutor.
“A United States attorney has no jurisdiction to pursue people who have ‘simply acted unethically,’ let alone to go to the ‘ends of the Earth’ to do so,” said Stephen Gillers, a judicial ethics expert at New York University’s law school, adding that the Martin’s “ingratiating and self-promotional tone makes it read more like a job application than the customary way that nonpolitical federal prosecutors speak.”
