An attorney for Sen. Mark Kelly, D-Ariz., is urging U.S. Attorney Jeanine Pirro and Attorney General Pam Bondi not to pursue an indictment for a second time against a group of lawmakers who participated in a video encouraging members of the military to ignore "illegal orders," according to a letter first obtained by NBC News.
The letter, sent Friday from Kelly's attorney Paul Fishman to Bondi and Pirro, warns the Department of Justice against attempting to go to a second grand jury to seek an indictment against the six Democratic lawmakers who participated in the video, saying "that course of action would be a remarkable abuse of the Department's power. There has never been any factual or legal basis for such an investigation or prosecution."
NBC News wasfirst to reportthat the Trump administration had failed to indict the lawmakers on Feb. 10, withno grand jurorsfinding that the Justice Department had reached the low probable cause threshold needed to indict.
The prosecutors attempted to indict Kelly and Sen. Elissa Slotkin of Michigan and Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chris Deluzio and Chrissy Houlahan of Pennsylvania.
An attorney for Slotkin alsosent a letter to Pirro and Bondi yesterday, saying, "The grand jury has spoken, loudly, clearly, and unanimously."
"Indeed, continuing to pursue this matter would violate clear ethical duties and Justice Department policy," Preet Bharara wrote in the letter.
The lawmakers have become a target of the Trump administration since they released a video in November telling military members, "You can refuse illegal orders," adding: "Now, more than ever, the American people need you. Don't give up the ship."
President Donald Trump previously accused the Democrats in the video of "SEDITIOUS BEHAVIOR, punishable by DEATH!" in a post on his social media platform Truth Social. It's not clear what charges the grand jury rejected during the DOJ's first attempt in February.
The letter from Kelly's attorney also cites a recent ruling by a federal judge that blocked the Department of Defense from punishing him for participating in the video as a reason why the Justice Department should not try to seek an indictment against him again.
"This Court has all it needs to conclude that Defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees,"U.S. District Judge Richard Leon wrotein his ruling blocking the Pentagon's attempt to downgrade Kelly's military retirement rank and pay.
Fishman cited the ruling in his letter, saying, "The District Court's reasoning applies with even greater force to the more severe punishment of criminal prosecution."
"Because Senator Kelly's speech is protected by the First Amendment, it cannot be the basis for a criminal charge," Fishman said. "And a grand jury properly instructed on the law could not conceivably conclude otherwise."
