Attorney General Pam Bondi’s decision to open a grand jury investigation into Obama administration officials in connection with their investigation of Russian meddling in the 2016 presidential election is the latest brazen political stunt by a Justice Department that has completely lost its moral compass. A grand jury investigation is a critical first step of a criminal investigation, a powerful legal tool that often results in criminal charges. Launching a baseless criminal investigation against political enemies is a page out of the autocratic playbook. (Disclosure: My organization, Democracy Defenders Fund, has represented numerous former Justice Department lawyers and staff members targeted by the Trump administration over the past six months in other egregious circumstances.)
Bondi’s decision stems from National Intelligence Director Tulsi Gabbard’s absurd claim last month that Obama officials engaged in an attempted “coup” by manipulating intelligence assessments of Russian interference. Unsurprisingly in an administration in which the Justice Department and intelligence agencies subserviently do the president’s bidding, Gabbard’s claim predictably parrots an accusation Trump has raised since 2017: that Barack Obama colluded with the Russians.
Launching a baseless criminal investigation against political enemies is a page out of the autocratic playbook.
Grand juries are convened to receive evidence presented by prosecutors and to decide whether to formally charge people with serious federal crimes, as the Fifth Amendment mandates. Grand juries are inherently one-sided affairs. Prosecutors control the entire proceeding, serving as legal counsel to the grand jurors and determining what witnesses and other evidence the grand jury hears. No judge or defense attorney is present. The targets of grand jury investigations have no opportunity to cross-examine witnesses, object to evidence or present evidence of their own. And while a long-standing Justice Department policy instructs prosecutors to present substantial exculpatory evidence to grand juries, it is not legally required.
As a former New York appellate judge once quipped, a prosecutor could easily get a grand jury to “indict a ham sandwich.” An unscrupulous prosecutor could do far worse.
Grand jurors swear an oath to diligently and objectively evaluate the evidence, but what evidence will Bondi’s grand jury receive?
Special counsel Robert Mueller’s two-year investigation concluded Russian interference in the 2016 election was “sweeping and systematic,” leading to criminal charges against 34 people, including seven Americans and 26 Russians, and three Russian organizations. In 2020, a comprehensive investigation by a Republican-led Senate special committee found that the intelligence community investigation “presents a coherent and well-constructed intelligence basis for the case of unprecedented Russian interference.” And during his first term, Trump’s Justice Department appointed a special counsel to investigate the investigators, who found nothing to discredit Mueller’s work and spectacularly failed to validate Trump’s dismissal of the Russia investigation as a hoax.
Like the Mueller report, which lacked “confidence” that Trump “clearly did not commit obstruction of justice,” America should have no confidence that these undeniable facts will be presented to the grand jury.
It is not totally clear what crimes Bondi’s handpicked prosecutors will try to establish.
Gabbard described her criminal referral to Justice Department as a “treasonous conspiracy.” In common usage, “treason” is often invoked to describe any devious act of betrayal against the democratic and constitutional values of our nation. But in a criminal context, treason is narrowly defined as levying war against the United States or assisting those who do. That charge would be ludicrous. More likely, Bondi will focus on crimes such as obstruction of justice or misuse of classified information, scrutinizing any of the countless, subjective decisions made by intelligence officials about how they gathered and evaluated evidence.
By selectively compiling and distorting those decisions, a prosecutor could conceivably concoct a false narrative of criminality sufficient to persuade a majority of the grand jury to return an indictment. That is why it is absolutely essential that the attorney general is loyal not to the president but to the rule of law — without question.
Aa prosecutor could conceivably concoct a false narrative of criminality sufficient to persuade a majority of the grand jury to return an indictment.
This “ham sandwich” scenario is the first of Bondi’s winning outcomes. Most Americans do not understand how a grand jury operates, and so they would be likely to view an indictment as well-founded. But because grand jury proceedings are secret, there would be no way to know what information was selectively shown or strategically omitted. By controlling the narrative and manipulating the evidence, it is possible to make almost anyone look guilty, especially to a jury unfamiliar with the subject matter.
Many MAGA supporters would wholeheartedly agree, pointing to the Russia investigation or Trump’s criminal indictments as evidence. This, of course, is what Trump has claimed for years — incessantly complaining about witch hunts, hoaxes and political lawfare. But, as W. Clement Stone famously said, “truth will always be truth, regardless of lack of understanding, disbelief, or ignorance.” Here, the obvious truth is that there was no “treasonous conspiracy” — just public servants doing their patriotic duty to decipher the extent of Russian interference in our democracy. Second, even if the grand jury rejects Bondi’s shameless attempts to pervert the Russia investigation into a crime, it is a partisan win for the Trump administration. Much of Trump’s base loves the idea of going after his perceived political enemies, and there is little risk of alienating moderate voters, who tend to tune out the seemingly endless cycle of partisan bickering that has come to dominate national politics. Third, Bondi’s grand jury is a welcome distraction from the problems facing the administration. Recent polling shows Trump’s approval numbers at record lows for his presidency, with his immigration and tariff policies — centerpieces of his 2024 campaign — underwater. Last week, economic data showed the U.S. job market to be far weaker than expected. That prompted the president to fire the head of the Bureau of Labor Statistics after he called the economic data “rigged,” a move that drew opposition even from Republican senators. And the Epstein saga continues, with a clear majority of American — and of Republican — voters wanting the investigative files released. Bondi’s Potemkin village of a grand jury may be a political win for Trump, but it is a clear loss for the American public. It fuels a dangerous conspiracy theory that detracts from the real threat: a foreign adversary’s methodical plot to destabilize our democracy. It weaponizes the Justice Department to target Trump’s political enemies, turning the rule of law on its head. And it drags America one step closer to Orwellian autocracy — in which propaganda displaces truth, government rewrites history, and political dissent is threatened with criminal prosecution. Bringing us down that path is not treason in the legal sense, but it certainly betrays the fundamental values of American democracy.
Andrew Warren
Andrew Warren is senior counsel at Democracy Defenders Action. He previously was a prosecutor with the U.S. Justice Department and the elected district attorney in Tampa, Florida. 
