U.S. Lawmakers’ Video Urging Military to Refuse “Illegal Orders” Sparks DOJ Legal Challenge
By Michael Katz
Monday, February 16, 2026
An attorney for Sen. Mark Kelly (D-Ariz.) has warned the Department of Justice not to pursue a second 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 for Washington, D.C., Jeanine Pirro, Kelly’s attorney, Paul Fishman, stated that renewing efforts to indict Kelly, Sen. Elissa Slotkin (D-Mich.), Reps. Jason Crow (D-Colo.), Chris Deluzio (D-Pa.), Chrissy Houlahan (D-Pa.), and Maggie Goodlander (D-N.H.), would constitute “a remarkable abuse” of power.
Fishman emphasized that there is no factual or legal basis for such an investigation or prosecution, noting a federal grand jury in Washington, D.C., had recently declined to indict the lawmakers under a statute carrying a maximum 10-year prison sentence.
The statute applies to anyone who advises, counsels, urges, or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by military personnel. It requires intent to interfere with the loyalty, morale, or discipline of the military.
Similarly, an attorney for Slotkin, Preet Bharara, wrote a letter last week to Bondi and Pirro stating that continuing the prosecution would violate ethical duties and Justice Department policy.
All lawmakers served in the military or intelligence community. In November, they participated in a 90-second video released after President Donald Trump ordered the National Guard into U.S. cities to back his immigration enforcement efforts. The deployments were often over the objections of local leaders.
In the video, Kelly, Slotkin, and Deluzio repeatedly stated: “You can refuse illegal orders. You must refuse illegal orders.” They did not specify 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 military orders, Slotkin acknowledged she knew of no such orders.
President Trump accused the Democrats of “SEDITIOUS BEHAVIOR, punishable by DEATH!” on Truth Social. Vice President JD Vance claimed that if the president hasn’t issued illegal orders, then telling the military to defy the president is by definition illegal.
Fishman’s letter also cited a February 11 ruling by U.S. District Judge Richard Leon that blocked the Department of Defense from punishing Kelly for participating in the video. The judge granted a preliminary injunction, finding Kelly likely to succeed on his claim that the department’s actions constituted unconstitutional retaliation for protected speech under the First Amendment.
“The District Court’s reasoning applies with even greater force to criminal prosecution,” Fishman wrote. “Because Sen. Kelly’s speech is protected by the First Amendment, it cannot be the basis for a criminal charge.”
Newsmax contacted the Department of Justice for comment but did not receive a response.
