An attorney for Michigan Democratic Sen. Elissa Slotkin is urging the Justice Department to shut down an investigation into a viral video telling members of the military not to follow "illegal orders" after a federal grand jury in D.C. roundly rejected an attempt to indict her and five other Democrats.
"The grand jury has spoken, loudly, clearly, and unanimously," Preet Bharara, a former top federal prosecutor, wrote in the letter, citing an NBC News report that zero grand jurors thought that the Justice Department had reached the low "probable cause" threshold needed to indict. "Indeed, continuing to pursue this matter would violate clear ethical duties and Justice Department policy."
The letter is addressed to Attorney General Pam Bondi and U.S. Attorney for the District of Columbia Jeannie Pirro, and copies Carlton Davis and Steven Vandervelden, attorneys working for Pirro who tried to bring the case.
The prosecutors attempted to indict Slotkin and Sen. Mark Kelly of Arizona and Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chris Deluzio and Chrissy Houlahan of Pennsylvania.
A spokesperson for Pirro declined to comment on the letter.
In the November social media video aimed at members of the military and intelligence communities, the Democratic lawmakers pointed out that public servants can refuse illegal orders.
"Now, more than ever, the American people need you," the lawmakers say in the video. "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.
In the letter obtained by NBC News, Bharara writes that the grand jury's refusal to indict "cannot have been a surprise," since military members "have a duty not to follow unlawful orders, and reminding them of that duty is no crime." Politico first reported on the letter.
"The only responsible course is to respect the grand jury’s decision and immediately close the investigation of Senator Slotkin," Bharara wrote.
Pirro's office has not publicly stated whether they will attempt to bring the case before a grand jury again. Bharara's letter asks them to confirm that the matter is closed by the close of business on Friday.
If the Justice Department tries to bring the case before another grand jury, Bharara wrote, "Justice Department rules require ensuring that the grand jury understands the full weight of the exculpatory evidence here."
Bharara wrote that there was "evidence demonstrating that Senator Slotkin articulated the same, correct legal principles as the current atorney general, solicitor general, secretary of defense, and two Supreme Court justices."
Bharara said if they did seek an indictment, he'd mount a defense of vindictive and selective prosecution "given the president’s statements and the absence to our knowledge of any similar criminal charge ever being brought against anyone." A vindictive and selective prosecution argument would seek the dismissal of the case under the argument that it was driven not by the facts and the law, but by Trump's desire to retaliate against his Democratic opponents.
Vandervelden was previously a prosecutor in Westchester County, New York, where Pirro previously served as district attorney in the 1990s and early 2000s.
Davis worked as a GOP staffer on Capitol Hill under a string of Republicans: Rep. Darrell Issa of California, former Rep. Trey Gowdy of South Carolina, former Rep. Doug Collins of Georgia, Rep. Jim Jordan of Ohio and Rep. James Comer of Kentucky. He also briefly served as a federal prosecutor in the Eastern District of Virginia during the first Trump administration.
Pirro, a former Fox News host, praised both men in a statement, calling Vandervelden "one of the best prosecutors and best investigators that I have worked with in well over three decades in the criminal justice system" and saying that Davis "has been an investigator at the highest levels of our government."
