A grand jury in Washington, D.C., on Tuesday declined to indict Sean Charles Dunn, a then-Justice Department employee who federal prosecutors allege committed a felony by assaulting a police officer when he threw a sandwich at a federal officer. Dunn is now set to appear in court on Sept. 4, at which point prosecutors can decide whether to present the matter to a grand jury again, amend it down to a misdemeanor or dismiss it outright.
These events suggest the old adage that a grand jury can indict a ham sandwich may no longer be true. In fact, grand juries are increasingly pushing back against the Trump administration, especially in politically charged cases. As a former public defender, I learned that stand-alone counts of resisting, obstruction, interference and assault on an officer (absent injury) often stem from bad arrests. Perhaps grand jurors are now starting to embrace this sentiment, as well.
Originally used by the English king to gather evidence against dissenters, the grand jury evolved into “a shield against arbitrary or oppressive action.”
The Fifth Amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Stated differently, anyone charged with a federal felony must be indicted by a grand jury.
The grand jury’s role as a buttress against the unrestrained exercise of government power is a core part of American history. Originally used by the English king to gather evidence against dissenters, the grand jury evolved into “a shield against arbitrary or oppressive action.”
A prime example is the case of John Peter Zenger, the dissident publisher whom the British crown tried to charge the with seditious libel for distributing works critical of New York’s royal governor. It was grand jurors who twice refused to indict. The grand jurors’ steadfast commitment to justice led the crown to circumvent the grand jury process altogether and charge Zenger by information.
This historical precedent showed the framers just how vital a safeguard the grand jury was. As the American Revolution inched closer, colonial grand juries, fed up with British subjugation, kept rejecting one prosecution after another. While much of the Bill of Rights was subject to robust debate among the framers, the Grand Jury Clause encountered no such resistance, because the framers, leery of resurrecting the tyranny they just fought against, well understood the need to prevent palpably unjust prosecutions.
Today, we’re seeing this power re-emerge. In the Central District of California, for example, U.S. Attorney Billy Essayli grew irate when grand jurors indicted only seven of 38 protesters after reviewing evidence contradicting the government narrative — suggesting that Immigration and Customs Enforcement and Border Patrol agents may have lied.
Similarly, in Washington, D.C., U.S. Attorney Jeanine Pirro has now made three unsuccessful attempts to indict Sidney Lori Reid on felony charges of assault on an FBI agent for an incident that took place during a protest against immigration agents — the same charge that (perhaps the same grand jury) just declined to indict Dunn on. Reid is now facing a misdemeanor count that doesn’t require the blessing of a grand jury to proceed. And I suspect in a matter of days we may soon see the same thing in Dunn’s case. D.C. residents, who now live in a city under siege by federal agents and armed National Guard troops, are rightly skeptical of the Trump Justice Department. I remain optimistic that grand jurors in D.C. will continue to thwart the regime by rejecting ill-conceived, politically motivated felony prosecutions. While the willingness of grand juries to reject the Justice Department’s gratuitous prosecutions is a significant win, it’s not the be-all, end-all. The Constitution’s text explicitly commands that “all” federal crimes must be tried by jury, and the Sixth Amendment underscores that command by repeating that “in all criminal prosecutions” the defendant has the right to a public trial by an impartial jury in the district where in the crime was committed. That last provision, known as the Vicinage Clause, was added precisely because the framers didn’t want jurors to be far removed from the cases they adjudicate. The framers envisioned jurors with similar lived experiences. Like me, many D.C. residents are fed up with the regime’s underhanded and extra-constitutional tactics. When these citizens get called for jury service, they have the opportunity to make their voices heard. Trial jurors, like grand jurors, serve as the conscience of the community, a bulwark against government oppression. Where grand jurors leave off, it’s incumbent upon trial jurors to step up and say no.
Mike Fox
Mike Fox is a legal fellow with the Cato Institute’s Project on Criminal Justice. 
