Fighting fascism one grand jury at a time

A federal grand jury is a kind of kangaroo court. Twenty-three citizens are summoned to a courthouse to hear evidence presented by prosecutors who are seeking to indict someone for having committed a crime. Listen to this: There is no judge present. The evidence is presented by prosecutors. The attorney for the person charged with a crime is not allowed to be present in the room with the grand jury, nor is the defendant’s attorney allowed to present evidence. If the defendant chooses to appear before the grand jury, he or she is not allowed to have a defense attorney present. If the defendant wants to consult with a lawyer during the time of the grand jury appearance, the defendant must leave the grand jury room and talk the lawyer in the hallway outside. The grand jury is allowed to consider the defendant’s request to meet with the lawyer as a factor in its decision whether or not to indict.

Prosecutors need only present evidence supporting probable cause that the defendant has committed the crime. It takes only a majority, 12 of the 23 grand jurors, to vote to return an indictment – a “true bill” in legal terms. A unanimous vote of the grand jury isn’t necessary.

Does that sound fair to you?

In defense of the grand jury system, it is not a trial, where a jury must find that a defendant is guilty beyond reasonable doubt and vote unanimously to convict. And the grand jury itself consists of the defendant’s peers – ordinary citizens vote on the evidence presented. The grand jurors bring with them the experience of living where the crime is alleged to have been committed, and grand jurors have been exposed to whatever news coverage there has been of the defendant and his or her crime. So, in a sense, the grand jury represents the community in the process. The prosecution represents the government.

The federal government in Washington D.C. and Los Angeles, California, has been having some serious problems when grand juries have been empaneled to hear evidence of crimes for which the Department of Justice is seeking indictments. The most famous example of what might be called a recalcitrant grand jury recently was the case of Sean C. Dunn, a former Justice Department paralegal who was charged with felony assault for throwing a Subway sandwich at a Customs and Border Patrol agent on the street. Dunn yelled at the agents, “Why are you here? I don't want you in my city," and called them fascists before throwing the sandwich at the agent’s chest. The agent was wearing a bulletproof vest at the time of the incident.

Dunn was arrested at the scene after a brief chase and charged with assaulting the federal agent. The U.S. Attorney for the District of Columbia took the case to a grand jury and presented video evidence showing Dunn throwing the sandwich. An agent testified to the grand jury that Dunn had said, "I did it. I threw a sandwich," when questioned later.

The grand jury voted “no true bill,” a refusal to indict Dunn for the crime of assaulting a federal agent. Jeanine Pirro, the U.S. Attorney, was forced to reduce the charge against Dunn to a misdemeanor.

Two more cases had to be dismissed after a D.C. grand jury had refused to issue federal indictments. Both cases involved persons who had allegedly made threats against President Trump. Evidence was presented to the grand jury that they were emotionally disturbed or had intellectual disabilities and mental illness.

The L.A. Times reported recently that the U.S. Attorney had attempted to indict anti-ICE protesters for various offenses after protests in Los Angeles. The grand jury returned only seven felony indictments against 38 protesters who were charged by the U.S. Attorney with felonies. The charges were either dismissed altogether or reduced to misdemeanors.

Legal experts have expressed astonishment that there have been so many instances of grand juries refusing to indict suspects charged with federal crimes by the Trump Department of Justice. Barbara L. McQuade, a former U.S. attorney in Detroit who teaches at the University of Michigan Law School and appears regularly to discuss legal matters on MSNBC, told the New York Times, “I have seen this maybe once or twice in my career of 20 years, but this is something different. It is exceedingly rare for any grand jury to reject a proposed indictment because ordinarily prosecutors use discretion in only bringing cases that are strong and advance the interests of justice,” McQuade said. “My guess is that these grand jurors are seeing prosecutorial overreach and they don’t want to be part of it.”

Grand juries have been used against protesters before, most famously by the highly politicized Nixon Department of Justice. The case of the Gainesville Eight was infamously brought against members of the Vietnam Veterans Against the War who were marching to Miami to protest at the 1972 Republican Convention. Nixon and his henchmen were prepared for demonstrations that had been scheduled by the Yippies and other left-wing organizations, but they thought the VVAW had more credibility with the public because its members were all veterans of the war in Vietnam and they frequently appeared wearing parts of their combat uniforms.

So the Nixon DOJ arranged for the arrest of eight VVAW leaders in Gainesville during the march. A hastily arranged grand jury indicted them with conspiracy to disrupt the Republican convention, and they were held in jail so they were not able to continue their march and be present for the demonstrations. A year later, after a lengthy and highly publicized trial, a jury in Florida took only four hours to acquit them. Evidence was presented at the trial, but not to the grand jury, that members of the Nixon gang that broke into the Democratic Party headquarters in the Watergate complex had been involved in infiltrating the VVAW and framing the eight defendants for planning violence at the convention.

In the case of the Gainesville Eight, it was a regular trial jury that saw through the government’s overreach in its eagerness to indict the VVAW leaders. In the D.C. and Los Angeles cases, it is grand juries that are seeing through the DOJ’s eagerness to overcharge defendants, inflating small offenses into serious felonies in an attempt to intimidate citizens who oppose the administration.

Jeanine Pirro, a former Fox News host, has criticized the citizens of Washington for being too liberal in not being willing to bring the indictments she has sought. Pirro went – where else – on Fox News to assert “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 Trump DOJ may be running into a problem of their own making with their attempts to abuse the grand jury process. They are bringing indictments in blue cities against protesters whom the citizens of those cities pretty much agree with. If they trying to indict protesters in Jackson, Mississippi, or in Little Rock, Arkansas, grand juries in those places might buy their bullshit.

But those aren’t the cities Trump is trying to intimidate. Now he says he’s going into Chicago and Boston with increased ICE raids and the National Guard. He’s probably not going to have much success there, either.

Fascism is turning out to be more complicated than Trump and his minions thought. It turns out that the people have a voice, and they don’t like it when Trump tries to rig the justice system against them. They’re standing up to Trump’s authoritarian impulses, one grand jury at a time, and good on them.