‘stunning’: Jeanine Pirro’s Failure To Indict Democrats Is A Big Deal

The administration’s use of the Justice Department to intimidate President Donald Trump’s political opponents and stifle dissent reached a remarkable new low last week, when federal prosecutors in the U.S. Attorney’s Office in Washington, D.C. tried and failed to prosecute six Democratic lawmakers who made a video urging military personnel to refuse to carry out illegal orders.

The disturbing stakes and implications of the effort were partially obscured by the clumsy execution of U.S. Attorney Jeanine Pirro and her prosecutors. A grand total of zero — zero — grand jurors agreed to return the proposed indictment. As a former federal prosecutor, I have never heard of this actually happening before.

Pirro also personally appointed the two prosecutors who worked on the case: One of them is a lawyer and dance photographer who had never worked in the Justice Department before last year, and the other is a former staffer for House Oversight Committee Chair James Comer (R-Ky.), who is not exactly famous for conducting competent and nonpartisan investigations.

“The average person doesn’t appreciate how stunning” it is for a grand jury to outright reject an indictment, as a former prosecutor in the U.S. Attorney’s office in D.C. put it to me. “The rules are skewed so heavily in favor of the prosecutor that it’s almost comical. But the public is essentially saying, ‘We do not trust you. We are skeptical of you.’”

In a statement, Pirro touted the office’s prosecutorial work, including efforts to curb homicides, and said she was focused on law, not politics. “As a prosecutor, my responsibility is to follow the law. Our system of justice allows grand juries and trial juries to review evidence and make their own decisions, that’s their function, that’s the way the system works,” she said. “All victims matter to us. We are about the law, and we are singularly focused; the passions of others, political and otherwise are irrelevant.”

Abigail Jackson, a White House spokeswoman, also sent in an unsolicited statement of support for Pirro that praised her efforts to bring down crime and aligned her closely with Trump: “U.S. Attorney Pirro has done an outstanding job executing on the president’s agenda.”

There was hope among some observers that Pirro might be able to restore stability to the office after the tumultuous and buffoonish tenure of Ed Martin, which resulted in a substantial hollowing out of the office’s rank and file. Pirro had worked as a top prosecutor as the Westchester County District Attorney, and despite her hyper-partisan television run as a Trump sycophant, she initially made some moves that were encouraging to career officials. The former prosecutor told me that Pirro had quietly reinstated a demoted Assistant U.S. Attorney who had worked on some of the Proud Boys and Jan. 6 cases.

Those days are long gone.

It is now clear that Pirro, like Attorney General Pam Bondi, is willing to use her power to try to intimidate and punish Trump’s political opponents — even if that means degrading herself, the office and DOJ, and wasting taxpayers’ money all at the same time. On top of that, Pirro has managed to antagonize federal judges in the district and racked up a long list of rebukes, which will only make it harder for her and her prosecutors to win in court in the future.

Through it all, Pirro is failing to win the indictments, let alone convictions, that Trump craves. She is stumbling not just by the traditional standards of a U.S. Attorney, but also by the Trumpian version.

The Trump administration’s abuse of the Justice Department to pursue Trump’s antagonists would probably be an even bigger story if they were succeeding instead of flailing. The department’s cases against former FBI Director James Comey and New York Attorney General Letitia James were borderline frivolous on the merits, but they got dismissed after a judge concluded that Lindsay Halligan, who was separately taken to task for serious prosecutorial errors before the Comey grand jury, had been illegally installed as the U.S. Attorney overseeing the cases in the Eastern District of Virginia. The DOJ tried to charge James on two more occasions, but grand jurors rejected those efforts.

Of course, Pirro had joined the pile-on against Trump’s adversaries even before last week’s case. In January, she opened a criminal investigation into whether Federal Reserve Chair Jerome Powell lied to Congress about renovations at the Fed’s D.C. headquarters. The investigation was roundly criticized as a pretextual effort to force Powell to lower interest rates, as Trump has been insisting. It is also blowing up in Trump’s face, with GOP Sen. Thom Tillis vowing to block Kevin Warsh’s nomination as Fed chair until the Powell investigation is resolved.

Pirro’s effort to indict the six Democratic members of Congress marks her highest profile flop to date, but it is far from the first. Remember Sandwich Guy? Pirro made a video mocking the man who threw a sandwich at a federal agent, then failed to secure felony charges from a grand jury before losing the fallback misdemeanor case altogether.

Judges have also repeatedly torn into prosecutors in the office during Pirro’s tenure.

In September, Magistrate Judge Zia Faruqui took the office to task for a series of major errors during what he described as a “rush” to charge individuals during the Trump administration’s takeover of the D.C. police department. He accused the administration of “playing cops and robbers, like children.”

Another judge noted during the same period that prosecutors were dropping cases at a surprisingly high rate, even after keeping defendants detained for days. “That’s not the way it’s supposed to work, and it has real-world consequences,” the judge said.

At the same time, as my colleague Josh Gerstein has reported, grand juries have rejected dozens of recent indictments by federal prosecutors in Pirro’s office. This is part of a broader trend across the country as grand jurors have rejected cases brought by Trump’s U.S. Attorneys, but it is not supposed to happen at all — much less become a regular occurrence.

Pirro’s tenure has taken a serious toll. “The D.C. USAO is losing its long-held respect from the courts and the public,” the former prosecutor in the office told me. “The judges do not trust the AUSAs to make good faith presentations in the most important cases, and the public now routinely refuses to issue indictments in the grand jury.”

Pirro has blamed judges and juries in D.C. for these setbacks, which has only made matters worse. Pretty much by definition, prosecutors have to be able to persuade these people with credible, legally sound and factually supported cases in order to be successful at their jobs. It solves nothing to blame them — except perhaps to offer the president a convenient scapegoat for her and her office’s own failures — and can only have the effect of antagonizing them further.

As a practical matter, the effort to prosecute the Democratic lawmakers barely made any sense. Even if Pirro’s prosecutors had managed to slip the case by a grand jury and secure indictments, there is virtually no way that a jury of 12 residents of D.C. — one of the most heavily Democratic jurisdictions in the country — would have unanimously convicted them of anything under the circumstances. On the merits, the whole effort was at best a waste of time and taxpayer money.

There is, of course, much more at stake — including freedom of speech, the right to engage in political dissent, the conduct of our military and the integrity of our political system.

We are fortunate, for those reasons, that Pirro failed in this case to use the Justice Department to prosecute Trump’s political opponents, but the fact that the administration keeps pursuing these politically motivated prosecutions is undeniably worrisome. When I previewed Trump’s coming revenge tour if he returned to the presidency, I noted that judges and grand juries might serve as some bulwarks against his efforts, but they can only do so much.

It is also possible that Pirro was well aware of how wrongheaded it was to try to indict the Democratic lawmakers. Perhaps she felt compelled to show Trump that she was pursuing his adversaries or was merely eager to show off for the audience of one.

Regardless, the state of her office continues to deteriorate. The prosecutor who previously served in the office described what remains as “a hollowed-out core of increasingly inexperienced and overworked D.C. AUSAs spending their time reviewing the Epstein files and wondering what their ‘red line’ for resignation is.”

“I think good cases aren’t being brought because people are either afraid or lack bandwidth,” they continued. “D.C. had one of the most prestigious U.S. Attorney’s offices in the country, and to see it become a shadow of itself in a year is sad.”