Kelly attorney urges DOJ to drop talk of a second indictment after grand jury declines to charge

Sen. Mark Kelly’s attorney is telling the Department of Justice to stop circling for a second indictment.

In a Friday letter, Paul Fishman urged Attorney General Pam Bondi and U.S. Attorney for the District of Columbia Jeanine Pirro not to hand down another indictment against the Arizona Democrat, calling any such move “a remarkable abuse of the Department’s power.”

Fishman’s message was blunt: “There has never been any factual or legal basis for such an investigation or prosecution,” he wrote.

A grand jury passed, and a judge stepped in

The backdrop matters because the government has already taken a run at this. The source material states that a grand jury decided not to indict Kelly last week after being presented with facts from prosecutors.

The same source says U.S. District Judge Richard Leon blocked the Pentagon’s efforts to censure the senator and lower his retirement rank in the wake of a video.

Kelly and his legal team have argued that his comments in the video are protected by free speech as upheld by Leon.

The video that triggered the fight

According to The Hill, Kelly was in hot water with the Trump administration after participating in a video alongside five other elected officials urging soldiers not to follow “illegal orders.”

Fishman’s letter leans heavily on constitutional protection. He wrote:

“The District Court’s reasoning applies with even greater force to the more severe punishment of criminal prosecution.”

He continued:

“Because Senator 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.”

The net widens beyond Kelly

Kelly is not the only lawmaker caught up in this dispute. The source says Sen. Elissa Slotkin’s attorney sent a similar letter to Bondi and Pirro, following their attempts to prosecute her and Democratic Reps. Jason Crow, Maggie Goodlander, Chris Deluzio, and Chrissy Houlahan, who each appeared in the video.

Those details are thin on purpose, at least in the source material. No statute is named. No specific charge is listed. The only clear fact is that the legal push is being described as “attempts to prosecute” an effort tied to a specific video, and that at least one grand jury declined to indict Kelly.

Trump’s condemnation, and the Democrats’ warning siren

President Trump said those featured in the video were “traitors” and at the time accused them of “SEDITIOUS BEHAVIOR” that could be punishable by death, according to the report.

Kelly responded publicly by comparing the effort to criminally punish lawmakers for participating in the clip to foreign regimes.

At a press conference last week, Kelly told reporters:

“This did not happen in Russia or China. In Russia and China, we see these things."

He also said:

“This is the master alarm flashing for our democracy. It is threatening the very foundation of our system that we have a right to free speech to lawfully speak out and protest our government without fear of retaliation.”

What this fight is really about

This story is not simply about one senator’s legal posture. It is about whether political speech by elected officials, delivered in a video and aimed at soldiers, can be turned into a criminal case, even after a grand jury declines to indict.

Fishman’s letter stakes out the cleanest possible line: no “factual or legal basis,” and a warning that a second indictment would be “a remarkable abuse of the Department’s power.” Those are not casual words. They are the kind of words lawyers use when they want the record to reflect that they saw the train coming and told everyone to get off the tracks.

At the same time, the source material indicates this is not a dispute contained to a single office or agency. It includes DOJ leadership, the U.S. Attorney’s Office in the District of Columbia, a grand jury presentation, and Pentagon action that a federal judge blocked. That is a lot of institutional machinery for something the senator’s team insists is protected speech.

Now the question is what comes next: whether the department accepts the message that the first grand jury result should end the matter, or whether it presses forward into the second-indictment territory Fishman is warning against.

That is where power either restrains itself or tests its limits.