Sen. Mark Kelly’s attorney on Friday asked DOJ officials to abandon any effort to return to a grand jury and pursue criminal charges over a November video in which several Democrats advised service members to refuse “illegal orders.” The letter from Paul Fishman was directed to U.S. Attorney Jeanine Pirro and Attorney General Pam Bondi after a February 10 grand jury declined to indict the lawmakers. Fishman warned that seeking a second indictment would be an extraordinary misuse of prosecutorial authority and argued that First Amendment protections bar criminal charges for the speech at issue. The appeal cites a recent federal ruling that blocked the Department of Defense from penalizing Kelly for his participation in the same video.
Key takeaways
- Paul Fishman, representing Sen. Mark Kelly, sent a letter on Friday urging DOJ officials not to pursue a second grand jury in the matter.
- A grand jury on February 10 declined to return indictments after prosecutors sought charges tied to a video urging service members to refuse “illegal orders.”
- Prosecutors had sought to indict six Democrats: Sen. Mark Kelly, Rep. Elissa Slotkin, Rep. Jason Crow, Rep. Maggie Goodlander, Rep. Chris Deluzio and Rep. Chrissy Houlahan.
- Fishman called a renewed prosecution “a remarkable abuse of the Department’s power,” asserting there was never a sound factual or legal basis for criminal charges.
- A federal judge, Richard Leon, recently blocked Pentagon action to downgrade Kelly’s military retirement, a ruling Fishman says reinforces the First Amendment defense.
- Former U.S. Attorney Preet Bharara, writing on behalf of another lawmaker, said the grand jury’s unanimous decision should end the matter.
- President Donald Trump publicly denounced the lawmakers’ video on Truth Social, using the phrase SEDITIOUS BEHAVIOR, punishable by DEATH!, heightening the political stakes.
Background
The controversy began after a video released in November encouraged members of the U.S. military to refuse orders they believed to be illegal. Several Democratic lawmakers appeared in that clip; prosecutors later investigated whether the remarks could amount to criminal conduct. The Trump administration’s Justice Department convened a grand jury and sought indictments, but on February 10 no jurors found the probable cause threshold required to charge the lawmakers, according to reporting.
The group targeted by prosecutors spans both chambers of Congress and multiple states: Sen. Mark Kelly of Arizona, Rep. Elissa Slotkin of Michigan, Rep. Jason Crow of Colorado, Rep. Maggie Goodlander of New Hampshire, and Reps. Chris Deluzio and Chrissy Houlahan of Pennsylvania. The effort to pursue criminal charges followed public attacks from senior political figures and intensified debate about the boundaries between political speech and criminal conduct involving the military.
Main event
On Friday, Fishman formally wrote to U.S. Attorney Jeanine Pirro and Attorney General Pam Bondi, urging them to refrain from attempting a second indictment. Fishman warned that seeking another grand jury would be unprecedented and improper, arguing that the earlier proceeding already tested the evidence against the lawmakers and failed to meet the low bar of probable cause. He insisted that Kelly’s speech is protected by the First Amendment and therefore cannot serve as a basis for criminal charges.
The February 10 grand jury outcome was first reported by NBC News and prompted public responses from counsel for other lawmakers. Preet Bharara, representing Rep. Elissa Slotkin in a separate letter, emphasized that the grand jury’s unanimous reaction should foreclose further pursuit and raised ethical and policy concerns about continuing the probe. Prosecutors originally sought indictments against six lawmakers, but officials have not publicly detailed which statutes or specific charges were at issue in the grand jury proceedings.
Fishman’s letter also cited a federal court decision by U.S. District Judge Richard Leon that barred the Department of Defense from downgrading Kelly’s military retirement rank and pay because of his participation in the video. Fishman argued the court’s reasoning that the Pentagon violated Kelly’s First Amendment rights applies even more strongly to criminal prosecution, which would carry far greater penalties. The DOJ has not publicly described its next steps, and Fishman urged that the Department instead respect the grand jury result and the court’s ruling.
Analysis & implications
Legally, the crux of the dispute centers on the intersection of military statutes, criminal law, and the First Amendment. Criminal charges tied to speech about military obedience require clear evidence that the defendants intended to provoke unlawful action and that the speech created a concrete and imminent risk, standards that are difficult to satisfy when the statements are political and directed to a broad audience. Fishman and others argue the grand jury’s failure to indict reflects that evidentiary gap.
Politically, the episode highlights tensions between accountability for rhetoric about the military and the risk of weaponizing the criminal justice system for partisan ends. A renewed prosecution could intensify perceptions that DOJ decisions are politically motivated, especially given public pressure from high-profile political figures. Conversely, supporters of the investigation contend that messaging encouraging disobedience of orders to the military merits scrutiny because of potential risks to discipline and national security.
Institutionally, the case raises questions about prosecutorial ethics and departmental policy. DOJ guidance discourages using grand juries or prosecutions for improper political purposes; legal advisers and watchdogs will likely scrutinize any attempt to convene a second grand jury as inconsistent with those norms. Absent new, materially different evidence, defense lawyers and constitutional scholars predict courts would be skeptical of a subsequent attempt to criminalize the same speech.
Comparison & data
| Event | Date | Outcome |
|---|---|---|
| Video release urging refusal of “illegal orders” | November | Public statement by lawmakers; subject of DOJ review |
| First grand jury review | February 10 | No indictments returned |
| Pentagon attempt to downgrade Kelly retirement | Ruling by U.S. District Judge Richard Leon (recent) | Blocked by the court |
The table summarizes the sequence of public events central to the dispute: the November video, the February 10 grand jury that produced no indictments, and a recent federal court order that limited Pentagon discipline against Senator Kelly. Together these milestones frame counsel arguments and DOJ decisionmaking, with the grand jury finding forming a particularly important factual pivot.
Reactions & quotes
Continuing to pursue this matter would violate clear ethical duties and Justice Department policy, and the grand jury has spoken, loudly, clearly, and unanimously.
Preet Bharara, attorney for Rep. Elissa Slotkin
Bharara’s note emphasized that the grand jury’s unanimous decision should signal the end of prosecutorial efforts and warned of ethical problems if DOJ continued. His framing links the legal result to broader questions about the appropriate use of investigatory resources and the Department’s duty to avoid politically charged prosecutions.
The District Court’s reasoning applies with even greater force to the more severe punishment of criminal prosecution.
Paul Fishman, attorney for Sen. Mark Kelly
Fishman invoked Judge Leon’s order blocking the Pentagon’s retirement action for Kelly to bolster his constitutional defense. He argued that a civil or administrative sanction found faulty by a federal judge should make criminal charges even less tenable, given the heavier burdens and consequences involved.
SEDITIOUS BEHAVIOR, punishable by DEATH!
Donald Trump, Truth Social post
President Trump’s public denunciation of the lawmakers escalated public attention and politicized the matter further. Legal analysts note that inflammatory rhetoric from political leaders complicates the environment but does not change the evidentiary or legal standards governing grand jury decisions and criminal prosecutions.
Unconfirmed
- Which specific criminal statutes or counts the prosecutors proposed in the February grand jury were not publicly disclosed and remain unconfirmed.
- Whether DOJ leadership will definitively decline any future attempt to convene a second grand jury is not yet publicly confirmed.
- Internal DOJ deliberations about evidence sufficiency or new investigative leads that might prompt renewed action have not been made public.
Bottom line
The letters from Sen. Kelly’s counsel and other defense lawyers, together with the February 10 grand jury outcome and a federal court decision limiting Pentagon discipline, create significant legal and practical obstacles to renewed criminal prosecution. Absent new, persuasive evidence that changes the legal calculus, a second attempt to secure indictments would face steep evidentiary and constitutional hurdles and could provoke accusations of politicized enforcement.
For readers monitoring the broader implications, this episode underscores how disputes over political speech, military discipline and prosecutorial discretion can converge into high-stakes legal fights. The Department of Justice’s next public steps, if any, will shape debates about the use of criminal process in politically charged contexts and whether internal safeguards against abuse of charging power are effective.
Sources
- NBC News — News reporting (original coverage and document reporting)