Grand Juries Aren’t ‘Nullifying’ Anything. They’re Doing Their Jobs.

Just because they’re often rubber stamps for prosecutors doesn’t mean they should be.

(Composite / Photos: GettyImages)

IN THE PAST SEVERAL WEEKS, grand juries in the District of Columbia and Los Angeles have rejected at least seven attempts by Donald Trump’s Department of Justice to secure felony indictments against defendants (almost all for assaulting federal officers). Numerous news stories regarding this phenomenon—and even law professors—have used the loaded and inaccurate term “nullification” to describe it. The administration’s apologists argue that the grand juries are acting lawlessly. Its critics mean to convey that the grand juries are rejecting abusive prosecutorial tactics.

But these recent grand jury actions are the opposite of nullification. They constitute affirmation of the grand jury’s historical function. As Justice Lewis Powell said: The grand jury, which is required by the Fifth Amendment for any felony indictment, is “deeply rooted in Anglo-American history.” Justice William Brennan wrote that it serves as a “bulwark for the individual citizen against use by officials of the powers of the Government in ways inconsistent with our notions of fundamental liberty.”

A grand jury cannot lawfully return an indictment unless it determines that “probable cause” exists for the alleged felony offense at issue. In the Supreme Court’s words: “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Put another way, a grand jury has a zone of considerable discretion to determine whether the evidence presented to it demonstrates the existence of probable cause for each element of the felony offense that the prosecutor wants to charge.

“Nullification” describes the decision of a trial or “petit” jury to reject the application of law altogether. Examples include refusals of American colonial juries to convict defendants under English law; refusals of juries to convict persons accused of violating the Fugitive Slave Act in the 1850s; and refusals to convict activists and protestors during the Vietnam War. Scholars and practitioners have long debated whether jury nullification is a socially desirable phenomenon. Does it undermine the rule of law by disregarding clearly applicable rules and standards? Does it advance the rule of law by telling prosecutors what is socially acceptable?

Whatever one’s view about jury nullification may be, it is a misnomer in the context of the grand jury. I practiced law actively for over 30 years. Most of my work involved the representation of federal criminal defendants and persons under investigation by the Department of Justice. When I was an assistant federal public defender, I had a single client whom a grand jury refused to indict (and I can’t recall any other lawyer I know having had even a single such experience until this year). Prosecutors wanted to indict my client for threatening to kill President Clinton because he walked up to an entry point near the North Portico of the White House and announced: “I want to kill the president.” He was about five feet tall, close to 70 years old, and had the longest white beard I have ever seen. He suffered from a severe mental illness and had spent years in psychiatric facilities. The grand jury presumably concluded that he lacked the mental state necessary to convict him of the offense—in other words, that probable cause did not exist—and declined to indict.

The recent cases in which federal grand juries have refused to indict almost certainly involved similar judgments by grand jurors. The case in which a grand jury refused to indict a defendant for making threats—in which a judge reportedly referred to the defendant’s “rantings”—may bear similarities to the case I had over 25 years ago. The grand jury’s refusal to indict the person who was videotaping ICE agents outside of the D.C. jail, in which the officer’s affidavit itself shows that law enforcement officers initiated physical contact, may have been because the grand jurors reasonably rejected the version of events it heard. In the case of “Sandwich Guy”—who was videotaped throwing a sandwich at a CBP officer and who deserves no lionizing—the grand jury may have rejected the charge for any number of reasons. It may have concluded, for instance, that the defendant didn’t commit an act “forcibly,” as the criminal statute at issue requires. As the Department of Justice itself tells us: “Whether the element of force, as required by the statute, is present in a particular case is a question of fact to be determined from all of the circumstances.” We don’t know the answers because we are not privy to the grand jury proceedings.

What we do know is that grand juries can exercise lawful discretion and reject efforts to secure indictments. There is no publicly reported reason to believe that the grand juries rejecting indictments in these cases have acted lawlessly. The most compelling evidence available to us is that Attorney General Pam Bondi (backed by a White House that seems to regard her as Donald Trump’s personal attorney) and U.S. Attorney Jeanine Pirro are on a lawless mission to politicize crime and turn citizens against each other.

These recent grand jury decisions appear to reflect the type of vigilant deliberation that grand juries are supposed to provide. Let’s take a moment to celebrate that at least one part of the system is working.