In January, Kelly was accused of entering the Capitol and obstructing Congress, after a confidential source told the FBI he was posting on Facebook about the riot.
Prosecutors got his Facebook account, and found an apparent photo of him posing outside the Capitol building on the National Mall, according to arrest documents. But no photos were included of him inside the building, and investigators reasoned that messages he was sending about the siege were meant to show he was inside the Capitol, the arrest documents said.
“The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice,” prosecutors wrote in a filing on Tuesday.
The judge has not yet signed off on the case dismissal.
Kelly’s attorney declined to provide more information Tuesday.
The Justice Department for weeks has been indicating in court it was attempting to bring to a close several of the hundreds of Capitol riot cases, including Kelly’s. Typically, that means defendants would negotiate guilty plea deals to end their proceedings before a trial.
So far, only two Capitol riot defendants appear to have cut plea deals, with one becoming a cooperator against the Oath Keepers paramilitary group. A plea hearing is scheduled for another defendant Wednesday.
Earlier Monday, a Justice Department prosecutor indicated in court some Oath Keeper conspiracy defendants may have the opportunity to make plea deals in the coming months, after some of their lawyers had initial talks with prosecutors.