Trump Triggers A Renaissance For Grand Juries

Grand juries — written off for decades as a pointless anachronism — are making a comeback under President Donald Trump.

“They have been resurrected,” said Thaddeus Hoffmeister, a defense attorney and University of Dayton law professor. “For a long time, many people have been questioning why we even have grand juries. Like, what's the purpose? …They don't do anything. They don't protect people. And then the last couple months, we start to see that, maybe the founding fathers were right about this.”

Grand juries have emerged as a major stumbling block for Trump’s drive to use the criminal courts to exact retribution on his perceived political foes.

Federal grand juries operate in near-total secrecy and decide whether prosecutors can bring a criminal indictment in the first place. Unlike trial juries, they don’t need to be unanimous; rather, a majority of their 16 to 23 members must agree to return an indictment. And their only job is to determine if the Justice Department has brought a plausible case — a relatively low standard which led to the cliche that prosecutors could get a grand jury to indict a ham sandwich.

But in the Trump era, grand juries are no longer a rubber stamp. ****Instead, they’ve become a headache for prosecutors trying to advance controversial Trump policies like mass deportations and militarizing law enforcement. Dozens of recent cases in Washington, D.C., have been met with so-called “no bills” — the shorthand for a grand jury declining to return a bill of indictment. And grand juries in other jurisdictions have turned down high-profile cases that Trump has prioritized.

“Suddenly, grand juries are on the radar screen in a way they haven't been in a very, very long time,” said Kevin Washburn, a law professor at University of California at Berkeley and an Interior Department official under former President Barack Obama.

Grand juries in Los Angeles, Chicago, Washington, D.C., and Alexandria and Norfolk, Virginia, have all rebuffed federal prosecutors recently.

Those rejections have derailed or impeded prosecutions of former FBI Director James Comey, New York Attorney General Letitia James, people accused of threatening Trump, and little-known activists accused of clashing on the streets with federal officials..

Critics who accuse Trump of politicizing the Justice Department have marveled at the trend.

“We are now realizing the power that we have as individual citizens,” said Liz Oyer, who served as pardon attorney under Obama and was fired by the Justice Department in March. “When we see things like grand juries voting not to return an indictment, it is an important reminder that we, the citizens, all have power to resist and push back and to save our democracy.”

An exceedingly rare phenomenon

For decades, federal grand juries hardly ever refused to indict.

“In my seven years, we never got what's called no-billed, or rejected, by a grand jury when we brought a case before them,” said former New Jersey Gov. Chris Christie, who was the top federal prosecutor in the state under former President George W. Bush.

“I can recall maybe one or two times in my whole career,” said Andy McCarthy, who spent 20 years as a federal prosecutor and was one of the lead prosecutors on cases stemming from the 1993 World Trade Center bombing.

Statistics bear out those claims. In 2016, the most recent year for which the Justice Department has published data, federal prosecutors concluded more than 155,000 prosecutions and declined over 25,000 cases presented by investigators. In only six instances was a grand jury’s refusal to indict listed as the reason for dropping the matter.

That number is so low, in part, because experienced prosecutors typically pick up on grand jurors’ doubts about a case and either address them or elect not to ask for a vote on an indictment.

“You never ask the grand jury to vote on an indictment, if you're a competent prosecutor, until you've taken their temperature about whether they have a problem with the case or not,” said McCarthy, who is now a columnist for National Review. “No one should ever get a no true bill.”

Some of the highest-profile rejections of the Trump administration came in cases handled by Lindsey Halligan, the former insurance attorney who was a member of Trump’s defense team but lacked any prosecutorial experience before he tapped her to seek the Comey and James indictments.

A grand jury rejected one of three charges Halligan proposed against Comey. She initially secured an indictment against James, but after a judge threw that case out , two grand juries voted down new indictments.

“This business of ours, you're supposed to know how to do the job. And Trump is appointing people that don't know how to do the job, have no experience doing the job,” said Michael Tigar, a former defense attorney and a critic of grand juries for more than half a century.

The administration also seems to be losing because it’s pushing for indictments in cases with weak evidence, and due to the unpopularity in some parts of the country of tough tactics against protesters and of policies like Trump’s crackdown on undocumented immigrants. and

U.S. District Judge Sparkle Sooknanan recently marveled at the “apparent prosecutorial machinations” at work, emphasizing the “unprecedented” actions prosecutors have taken to bring cases — even when grand juries have rebuffed them.

“Most troubling, prosecutors have rushed to charge cases before properly investigating them,” the Washington-based Biden appointee lamented.

Chafing at the resistance

Justice Department spokespeople did not respond to a request for comment, but the top federal prosecutor for Washington, D.C., U.S. Attorney Jeanine Pirro, has suggested some grand jury members are out of touch with the impact of crime in the city.

“There are a lot of people who sit on juries and and they live in Georgetown or in Northwest or in some of these better areas, and they don't see the reality of crime that is occurring,” Pirro said in August on “Fox News Sunday.”

Pirro also blamed that alleged indifference to crime for a grand jury’s refusal to indict  Justice Department paralegal Sean Dunn for throwing a Subway sandwich at a Customs and Border Protection agent during a street confrontation earlier that month.

“The grand jurors don’t take it so seriously. They’re like, ‘Eh, you know, whatever.’ My job is to try to turn that around,” Pirro said. “The fact that they're so used to crime, that crime is so normalized in D.C., that they don't even care about whether or not the law is violated is the very essence of what my problem is in D.C.”

The top federal prosecutor in Los Angeles, Bill Essayli, has also reportedly been exasperated by grand juries refusing to issue indictments in cases stemming from Trump’s immigration crackdown in southern California. At one point earlier this year, Essayli’s office had managed to secure indictments in less than a quarter of the felony cases it brought in connection with protests or immigration raids, the Los Angeles Times reported.

In one instance, Essayli was heard screaming over a speakerphone at prosecutors after a grand jury refused to indict a person accused of attacking federal law enforcement officers, the newspaper said, quoting anonymous federal officials.

In a statement, Essayli’s office took issue with the reports, but did not address specific cases.

“The previous — and false — reporting in other news outlets was based on rumor and a lack of understanding of how the federal criminal justice system works. We have obtained indictments in every matter in which one was sought,” the statement said.

Blast from the past

The Constitution’s requirement that a grand jury approve serious criminal cases was adopted as a safeguard against executive power and political prosecutions. The move stemmed from what many revolutionaries regarded as political trials instituted by British authorities.

If the recent grand jury rejections reflect some degree of political disagreement with the Trump administration’s goals, some lawyers say, that would be in keeping with the founders’ original intent.

“Those who are sensitive to what's going on in the world behave accordingly,” Tigar said.

And while trial jurors are supposed to be insulated from public opinion or pre-existing bias, federal grand jurors — who serve for up to 18 months and typically hear evidence about a slew of cases — don’t have the same requirements.

“There's probably more of the sense of the community that comes into the grand jury,” Washburn said.

Over the years, many lawyers have expressed doubts about the utility of grand juries. The chief judge of New York state, Sol Wachtler, famously quipped in 1985: “Any good prosecutor can get a grand jury to indict a ham sandwich.”

Fears of weaponization

The Trump administration’s troubles before grand juries in Washington, Chicago, Los Angeles and Virginia may have already prompted Justice Department officials to seek out friendlier terrain for politically charged cases.

Earlier this month, lawyers for former CIA Director John Brennan complained to the chief federal judge in south Florida that the Justice Department has engaged in “a classic case of forum shopping” for its investigation of a 2017 intelligence community assessment on Russia’s role in the 2016 U.S. presidential election.

In a letter to the judge, Brennan’s attorneys said DOJ appeared to be seeking to ensure that any disputes related to the grand jury investigation would come before Judge Aileen Cannon — the Trump-appointed jurist who threw out the federal criminal case charging him with hoarding classified documents at Mar-a-Lago.

Eroding secrecy

Federal court rules mandate secrecy for grand jury proceedings, but there are signs that tradition could be eroding.

Judges overseeing grand juries in Virginia have taken unusual steps in recent months to publicly record juries’ rejections of attempted indictments of James and the rejected charge against Comey. One of those judges also denied the Justice Department’s attempt to seal one of the rejected James indictments.

“The Court will not speculate why the grand jury disclosed the no bill in open court,” U.S. Magistrate Judge William Porter wrote. “The grand jury’s decision to make this no bill public serves the interest of transparency when an individual has already suffered the stigma of public criminal charges.”

Perceptions that DOJ is asking grand jurors to return politically motivated indictments could lead to more erosion of grand jury secrecy, experts say.

“If we trust federal prosecutors to obey these norms of independence and non-political action, then we can trust grand jury secrecy. But if the grand jury is just another side of politics, then we need more transparency,” Washburn said. “I will tell you this: There's going to be more transparency coming, because the trust is gone.”

Kyle Cheney contributed to this report.