D.C. Residents Have Found a Subversive New Way to Fight Trump’s Takeover

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Over the past few weeks, something extraordinary has unfolded in the District of Columbia: Grand juries have refused to indict at least five individuals facing prosecution by the Trump administration. It is difficult to overstate the rarity of such defiance. Federal grand juries return indictments in the overwhelming majority of cases, about 99.9 percent^[2], according to the best estimates. The prosecution controls every aspect of the proceedings, while the defendant has no opportunity to object or present their case; there’s a reason lawyers joke^[3] that a grand jury would indict a ham sandwich. It is historic, and quite possibly unprecedented, for federal prosecutors to face so many rebukes in such a short span of time. What we are witnessing is not just a repudiation of D.C.’s U.S. Attorney, Jeanine Pirro. It is a humiliation.

Grand jury proceedings are secret, so it is impossible to know exactly why jurors declined to indict in these five cases. But it’s not hard to guess why. Each failed prosecution was transparently motivated by partisan anger toward opponents of Donald Trump and his agenda. Each weaponized the criminal code against a dissident who opposed the regime’s agenda, inflating a minor act of disobedience into a felony offense. And in every instance, a group of D.C. residents saw through the charade, refusing to legitimize political retribution dressed up as law enforcement.

For nearly a month, the president has staged a hostile “takeover^[4]” of the District, flooding the streets with federal police, masked immigration agents, and National Guard members. Because they lack the protections of statehood, Washingtonians have few concrete means of fighting back. Grand juries are one of them. And they have begun to wield that power to frustrate Trump’s attempt to criminalize dissent.

The most important thing to understand about this spate of non-indictments is how unusual it is. Grand juries are almost universally seen as a constitutional formality that pose no real threat to the government’s pursuit of a criminal charge. The Fifth Amendment requires federal prosecutors to obtain the “indictment of a grand jury” for almost any felony offense, but the deck is stacked against the defendant in every conceivable way. Prosecutors present an entirely one-sided version of the case, which the defendant cannot address or rebut. There is no judge present, and all kinds of material forbidden at trial—including hearsay and illegally obtained evidence—may be presented. Grand juries range in size from 16 to 23 members, but unlike a trial jury, unanimity is not required: Just 12 members^[5] must “concur” to return an indictment. The grand jury is such a feeble safeguard that it remains one of few protections in the Bill of Rights that the Supreme Court has never applied^[6] to the states^[7], finding that it is not essential^[8] to due process. (Today, half the states^[9] don’t require one.)

Given these limitations, it is no surprise that grand juries almost always find “probable cause” to indict, a standard much lower than “beyond a reasonable doubt” required to convict at trial. Prosecutors fail to secure an indictment in about 0.1 percent of cases^[10] or fewer^[11], according to most recent reporting from the Bureau of Justice Statistics. And they can try again^[12] if they fail. The Framers intended the grand jury to serve as a bulwark^[13] against unjustified or exaggerated criminal charges, empowering citizens to veto prosecutorial overreach. For most of American history, though, it has served as a rubber stamp for the government.

Yet in D.C. today, it appears that grand jurors are flexing their constitutional authority to swat down politicized charges. Take the grand jury who refused to indict^[14] Sean Dunn, who threw a Subway sandwich at a federal officer in protest of the paramilitary occupation. (“Fuck you! You fucking fascists! Why are you here? I don’t want you in my city!” Dunn screamed.) Pirro, the U.S. Attorney, charged him with felony assault on law enforcement. In theory, the facts fit the crime^[15]; as Dunn himself admitted^[16] to the police: “I did it. I threw the sandwich.” The grand jury, however, declined to find probable cause for the offense. Its decision forced prosecutors to downgrade the charge to a mere misdemeanor, which is not subject to a grand jury veto but carries far lighter penalties.

A similar story played out in the case of Sidney Lori Reid. According to police, Reid placed herself between immigration agents and an individual whom they were attempting to arrest. During the incident, Reid “forcefully pushed” one agent’s arm, prompting prosecutors to charge her^[17] with felony assault on law enforcement. But a grand jury declined to find probable cause for the indictment—not once, not twice, but three separate times^[18]. “The U.S. attorney can try to concoct crimes to quiet the people,” her lawyer declared^[19], “but in our criminal justice system, the citizens have the last word.” Pirro’s office has downgraded the charges to a misdemeanor.

Then there is the case of Alvin Summers, whom federal officers pulled over near the National Mall. The officers claimed^[21] that Summers tried to “speed-walk” away from them; prosecutors then charged him with the felony offense of resisting or impeding federal law enforcement. A grand jury rejected the charges^[22]. Pirro’s office also targeted Nathalie Rose Jones after she traveled to D.C. to protest Trump at the White House. Jones consented to a search, had no weapons, and attested that she sought to demonstrate peacefully. Yet prosecutors charged her^[23] with the felony offense of threatening the president, whom she called^[24] a “terrorist.” A D.C. grand jury found no probable cause^[25] to indict her. Similarly, Pirro’s office charged Edward Alexander Dana with making a death threat against Trump while in police custody. The grand jury refused to indict^[26] him, too.

In some of these cases, the accusations may have been so frivolous that grand jurors genuinely found the evidence insufficient for an indictment. That alone would be remarkable, since prosecutors get to present the facts in a way that’s maximally damning to the defendant and insist that factual disputes be sorted out at trial. But in other cases, like Dunn’s, it appears that the grand jury simply engaged in nullification—finding the charges so unjust that they refused to indict despite the existence of probable cause. Grand juries may decline to indict for any reason, including a desire to send a message^[27] of disapproval to the government about its prosecutorial priorities. We may never know for certain if that’s what happened here since grand jurors are sworn to secrecy^[28]. It is difficult, though, to draw any other conclusion in light of the emerging pattern.

If that is indeed what’s happening in D.C., it has few if any parallels. Trial juries engage in nullification^[33] much more frequently, acquitting a defendant because they believe^[34] the prosecution to be unjust. But grand jury nullification, while permitted, is almost unheard of. The closest precedent may be the situation playing out in Los Angeles, where U.S. Attorney Bill Essayli evidently failed to secure^[35] indictments against individuals protesting ICE this summer. That apparent repudiation of the Trump administration is also striking—but those failed charges all stemmed from the same demonstrations, suggesting that grand juries are expressing dissatisfaction with a specific crackdown on free speech. In D.C., grand juries seem to be nullifying charges that stem from a variety of unrelated incidents, pointing toward a broader resistance to Trump’s attacks on home rule^[36].

Pirro is understandably frustrated by this trend. “The system here is broken on many levels,” she griped in a statement. “Instead of the outrage that should be engendered by a specific threat to kill the president, the grand jury in D.C. refuses to even let the judicial process begin. Justice should not depend on politics.” But it is Pirro’s own politicization of “justice”—key to Trump’s broader persecution of the District—that has spurred well-justified pushback from grand juries. Washingtonians who decline to rubber-stamp Pirro’s dubious charges have not “broken” the system. They’re making it work exactly as the Constitution envisions.^[37]

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