Senator Mark Kelly’s Attorney Appeals to Justice Department Against Potential Double Indictment

In February 2026, Senator Mark Kelly’s attorney, Paul Fishman, formally appealed to the Department of Justice (DOJ) urging officials not to pursue a second indictment against six Democratic lawmakers. The case centers on a 90-second video released in November 2025 by the lawmakers, which encouraged military personnel to refuse illegal orders. The video became a political flashpoint after President Donald Trump labeled the lawmakers as engaging in ‘SEDITIOUS BEHAVIOR, punishable by DEATH!’ on his social media platform. However, the DOJ’s attempt to indict the lawmakers faced a critical legal hurdle: a grand jury rejected the indictment, citing insufficient probable cause.

The Legal Basis for the Indictment

The DOJ’s initial attempt to charge the six lawmakers—Senators Mark Kelly (D-Ariz.) and Elissa Slotkin (D-Mich.), along with Representatives Jason Crow (D-Colo.), Maggie Goodlander (D-N.H.), Chris Deluzio (D-Pa.), and Chrissy Houlahan (D-Pa.)—rested on a federal statute prohibiting the counseling or causing of ‘insubordination, disloyalty, mutiny, or reversal of duty’ by military members. This law, codified under 18 U.S.C. § 784, has historically been used to address acts that undermine military discipline. However, the DOJ’s application of this statute to the lawmakers’ video has been met with skepticism, particularly regarding its alignment with First Amendment protections.

The grand jury’s rejection of the indictment, as reported by NBC News and The New York Times, marked a pivotal moment. The jury, composed of local D.C. residents, determined that the DOJ had not met the threshold for probable cause. This decision was echoed by Senator Slotkin, who stated on social media that the grand jury’s ruling affirmed the rule of law and that the case should not proceed. The rejection of the indictment has since been cited by legal analysts as a significant legal development, though no specific charges were publicly disclosed.

Constitutional Challenges and First Amendment Protections

At the heart of the legal battle is the tension between national security and free speech. Senator Kelly’s attorney, Fishman, argued in a letter to Attorney General Pam Bondi and U.S. Attorney Jeanine Pirro that pursuing a second indictment would constitute a ‘remarkable abuse of the Department’s power.’ He cited a recent federal court ruling by Judge Richard Leon, which blocked the Pentagon from punishing Kelly for his involvement in the video. The judge’s decision emphasized that Kelly’s speech, as a sitting senator, was protected under the First Amendment, stating that the government had ‘trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.’

Fishman’s letter further contended that the First Amendment shields political speech, even when it pertains to military conduct. ‘Because Senator Kelly’s speech is protected by the First Amendment, it cannot be the basis for a criminal charge,’ he wrote. This argument aligns with broader legal precedents, such as United States v. Alvarez (2012), which reinforced the Constitution’s protection of truthful political speech. However, the DOJ’s use of the 18 U.S.C. § 784 statute has drawn criticism for potentially conflating protected speech with criminal conduct.

Political and Legal Implications

The case has sparked a broader debate about the politicization of the DOJ. Critics, including some Republican lawmakers, have accused the Trump administration of using the legal system to target political opponents. Speaker of the House Mike Johnson (R-La.) publicly supported the DOJ’s efforts, stating, ‘Getting in the way of these sensitive operations is a very serious thing,’ but his remarks have been scrutinized for their lack of specificity. Meanwhile, Senator Kelly and his allies have framed the indictment attempt as an overreach by the executive branch, arguing that the DOJ’s actions violate the separation of powers.

The failed indictment has also raised questions about the role of the grand jury in safeguarding individual rights. Legal experts note that grand juries serve as a check on prosecutorial power, and their rejection of the DOJ’s case underscores the difficulty of prosecuting speech that, while controversial, does not meet the threshold for criminal conduct.

Future Legal Battles and Broader Context

While the DOJ’s attempt to indict the lawmakers has been halted, the case is far from over. Senator Kelly remains embroiled in a separate legal battle against the Department of Defense (DOD), which sought to demote him and reduce his military pension for his involvement in the video. A federal judge is set to rule on this matter soon, and the outcome could have significant implications for how the government balances military discipline with constitutional rights.

The broader context of this case reflects a growing concern about the intersection of political speech, national security, and judicial oversight. As legal scholars and civil liberties groups continue to monitor the situation, the case serves as a critical test of the First Amendment’s protections in an era of heightened political polarization. Whether the DOJ’s actions represent an abuse of power or a legitimate enforcement of national security laws remains a subject of intense debate, with implications that extend far beyond the six lawmakers at the center of the dispute.