An attorney for Sen. Mark Kelly, D-Ariz., is warning the Department of Justice not to pursue a second indictment against his client, who, along with five other Democrat lawmakers, participated in a video urging military members to ignore "illegal orders."
In a letter to Attorney General Pam Bondi and U.S. Attorney for Washington, D.C., Jeanine Pirro, Kelly's attorney, Paul Fishman, wrote that a renewed effort to indict Kelly, as well as Sen. Elissa Slotkin, D-Mich., and Reps. Jason Crow, D-Colo., Chris Deluzio, D-Pa., Chrissy Houlahan, D-Pa., and Maggie Goodlander, D-N.H., would be "a remarkable abuse" of power.
"There has never been any factual or legal basis for such an investigation or prosecution," Fishman wrote, according to NBC News, which reported Saturday that it reviewed a copy of the letter.
Last week, a federal grand jury in Washington, D.C., declined to indict the lawmakers under a statute that carries a maximum 10-year prison sentence.
The statute applies to anyone who "advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military."
It requires intent to "interfere with, impair, or influence the loyalty, morale, or discipline of the military."
Preet Bharara, an attorney for Slotkin, wrote a similar letter last week to Bondi and Pirro, according to NBC News. Bharara wrote that "continuing to pursue this matter would violate clear ethical duties and Justice Department policy."
The lawmakers, all of whom served in the military or intelligence community, participated in a 90-second video in November after President Donald Trump ordered the National Guard into U.S. cities to back his immigration enforcement efforts.
In many cases, the deployments came over the objections of local leaders.
At several points in the video, Kelly, Slotkin, and Deluzio repeated the line: "You can refuse illegal orders. You must refuse illegal orders."
They never specified which orders were illegal. Goodlander joined Kelly in reminding viewers that "like us, you swore an oath to protect and defend the Constitution."
Pressed on whether Trump had issued any unlawful orders to the military, Slotkin acknowledged she knew of no such orders.
In a Truth Social post, Trump accused the Democrats of "SEDITIOUS BEHAVIOR, punishable by DEATH!"
In a post on X, Vice President JD Vance wrote that "If the president hasn't issued illegal orders, then members of Congress telling the military to defy the president is by definition illegal."
Fishman's letter also cited a Feb. 11 ruling by U.S. District Judge Richard Leon that blocked the Department of War from punishing Kelly, a former Navy pilot, for participating in the video.
Leon granted a preliminary injunction, finding Kelly is likely to succeed on his claim that the department's actions were an unconstitutional retaliation for protected speech.
"The District Court's reasoning applies with even greater force to the more severe punishment of criminal prosecution," Fishman wrote, according to NBC News.
"Because Sen. Kelly's speech is protected by the First Amendment, it cannot be the basis for a criminal charge. And a grand jury properly instructed on the law could not conceivably conclude otherwise."
Newsmax reached out to the Department of Justice for comment.
Michael Katz ✉
Michael Katz is a Newsmax reporter with more than 30 years of experience reporting and editing on news, culture, and politics.
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