Trump’s grand jury trouble: Citizens increasingly resist DOJ’s attempts to indict

The old joke is that a prosecutor should be able to indict a ham sandwich, but the Trump Justice Department last year couldn’t win an indictment against the man accused of throwing a sandwich at a federal immigration officer.

That wasn’t an anomaly.

A new count by the National Association of Criminal Defense Lawyers suggests that federal prosecutors are facing increasing resistance from grand juries, which are refusing to hand up indictments in highly charged cases. Even when an indictment is secured, trial juries and judges are refusing to convict.

The association said it shows that average citizens are rejecting “federal overreach and novel prosecutorial theories.”

“What we are seeing in courtrooms from the Midwest to the coasts is a fundamental, righteous rejection of the idea that criminal law can be used as a tool for political retribution. Jurors are seeing through these ‘novel’ and transparently thin theories,” said Andrew Birrell, the group’s president.

Federal courts’ skepticism of President Trump’s executive actions, expressed in rulings in civil cases, has been thoroughly documented and decried by government officials from the attorney general on down.

The defense lawyers association says the criminal justice system’s resistance is just as noteworthy.

Grand juries are charged with screening prosecutors’ cases and deciding whether enough evidence has been presented to bring a felony charge. Traditionally, they have been considered a “rubber stamp” for prosecutors — thus the ham sandwich joke.

Over the summer, however, a grand jury in the District made waves by refusing to hand up a felony indictment against Sean Charles Dunn, a federal employee who was caught on video hurling a hoagie at an immigration agent. The Justice Department downgraded the charge to a misdemeanor, but a trial jury acquitted Mr. Dunn anyway.

The District, where U.S. Attorney Jeanine Pirro holds sway, popped up repeatedly in the National Association of Criminal Defense Lawyers’ data, hosting 15 of the 59 cases the organization is tracking.

That includes the case of Jan Carey, whom Ms. Pirro’s office indicted on charges of illegally burning a flag in Lafayette Park, near the White House. U.S. District Judge James Boasberg, a frequent Trump legal adversary, dismissed the case last month, saying the prosecution was vindictive.

Central California and Illinois ranked second and third, respectively, in the tracker’s case count.

The data showed 11 instances nationwide in which a grand jury failed to indict, or, in legal parlance, didn’t return a “true bill.” It lists five jury acquittals and two cases in which a judge ordered acquittal from the bench.

The Justice Department said in a statement that it is pursuing the cases it sees.

“We respect the judicial process and jurors’ role as impartial arbiters of evidence — regardless of what the results may be — and will not be deterred or distracted from keeping the American people safe,” the department said.

Mary Graw Leary, a former federal prosecutor and now a law professor at the Catholic University of America, said the Justice Department has all the advantages in a grand jury.

The standard for an indictment is probable cause, lower than the beyond a reasonable doubt of a trial jury; the vote doesn’t need to be unanimous; and the defense has no role to play, so there’s no “other side” presented. That makes failures to indict rare — and makes the Trump Justice Department’s experience stand out.

“The fact that there are so many times where under those conditions. you can’t get even that low standard is saying something profound,” she said.

Ms. Graw Leary said the numbers suggest a breakdown in trust between the citizens who make up a grand jury and the prosecutors bringing the cases. She said the departure — either from resignations or being forced out — of so many seasoned federal prosecutors is also likely taking a toll.

“You’re just seeing some incompetence because of the bloodletting,” she said.

John E. Jones III, president of Dickinson College and a former federal judge appointed by George W. Bush, said in an interview with The Conversation that the spate of refusals startled him.

“I don’t recall a single instance, during the almost 20 years I served as a U.S. District judge, when a grand jury refused to return a true bill,” he told the outlet.

He said the change reflects an unwillingness on the part of average citizens and, more broadly, federal courts to accept the Trump administration’s claims.

“I think we now have entered a world where the Department of Justice has lost its credibility with the judiciary,” he said.

The National Association of Criminal Defense Lawyers said its tally is an undercount.

It does not include the six sitting Democratic members of Congress whom Ms. Pirro attempted to indict for having taken part in a video urging U.S. troops not to follow illegal orders. Because no active case was ever established, it doesn’t qualify for the tracking tool.

The lawyers group suggested that the Justice Department is using deportation to try to short-circuit some criminal cases.

In one case out of Rhode Island, a Guatemalan man resisted being handcuffed and flailed his arms, knocking one officer to the ground and fracturing her leg, according to court documents. The man, Miguel Tamup-Tamup, managed to escape by slipping out of his shirt.

A grand jury did return an indictment in that case, but after a judge allowed Mr. Tamup-Tamup to be released on bond, the government had him deported. The judge then dismissed the criminal case with prejudice, suggesting “harassment” in the government’s handling.