'If You Can Keep It': Grand Juries And The Justice Department

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0:36Since the start of his second term, President Trump has smashed in the Department of Justice into a tool he can wield against his enemies. Here's an exchange between a reporter and the DOJ's acting attorney general, Todd Blanche, in April. President Trump has made no secret of the fact that he wants to see his perceived political enemies prosecuted. So now that you're in this position, how are you going to balance that relentless pressure with this administration's promise to end the weaponization of this department? First of all, we have thousands of ongoing investigations and prosecutions going on in this country right now.

1:11And it is true that some of them involve men, women, and entities that the president in the past has had issues with and that believe should be investigated. That is his right, and indeed it is his duty to do that. So far, Trump has installed his personal lawyer as the top official. He's called the ranks of career prosecutors at the DOJ, and he's pressured U.S. attorneys into bringing cases against people he considers political enemies. In recent months, grand juries have acted as the last line of defense against the full weaponization of the justice system, refusing to indict in cases where the government hasn't shown probable cause that a crime has been committed.

1:50And as federal judges re-examine cases, some are uncovering instances of misconduct from the government's lawyers. The grand jury system was designed as a central piece of our democratic justice system as a check on the government's power to prosecute. I'm Jen White. You're listening to the 1A Podcast. For the latest installment of our weekly politics series, If You Can Keep It, we ask, what do recent high-profile grand jury proceedings tell us about accountability at the Justice Department? We'll answer that question and more right after this short break. Stay with us.

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4:08innovations that save lives and feed the world. ScienceDelivers.com Welcome back to the 1A podcast. Let's get into the conversation and meet our guests. Joining us from Pennsylvania is John E. Jones III. He's the president of Dickinson College. He's also a former chief judge of the U.S. Middle District Court of Pennsylvania. John, welcome to 1A. Great to be with you. Also with us, Barbara McQuaid. She's a law professor at the University of Michigan Law School. She's also the former U.S. attorney for the Eastern District of Michigan and the author of the forthcoming book, The Fix, Saving America from the Corruption of a Mob-Style Government.

4:46It's out tomorrow. Barbara, welcome back to the program. Thanks very much, Jen. Good to be with you and Judge Jones. And with us in studio is Mike Fox. He's a legal fellow at the Cato Institute's Project on Criminal Justice. That's a libertarian-leaning think tank. Mike, welcome to the program. Thank you, Jen. Good to be with you and the other distinguished guests. Well, we want to hear from you, too. If you've been on a grand jury before, what did it teach you about our legal system? And if you haven't, what actions or policies do you think would help shore up the public's faith in the Justice Department?

5:15Email us at 1a at wamu.org. Well, I don't know how many people really have an experience with a grand jury, so let's start with how that system works. Mike, what is a grand jury? Yeah, so in the federal system, the Constitution, the Fifth Amendment grand jury clause says that if you're charged with a felony, you have a constitutional right to a grand jury. I would also explain – so I was a state public defender in Colorado. Some states require the use of grand juries. Others do not. We did not use grand juries at all in the jurisdiction where I practice in Pueblo County, Colorado. But in the federal system and in the states that do use grand juries, what the idea is, is you have a body of citizens in the federal system.

5:56It's typically 23. And those people sit there to prevent cases that lack probable cause from ever moving forward. And that is important because historically it's been said grand juries can indict a ham sandwich. And we've seen that. We see all these cases just going through, going through, going through. And now we're starting to finally see grand juries act as the framers envision as this bulwark against injustice. And they're saying no. And that is exactly the way the system is supposed to function. Well, and John, how is a grand jury different from what's known as a petite jury, which is probably what people are more familiar with?

6:37Well, the grand jury, as Mike very cogently explained, consists of between 16 and 23 people. And essentially, the duty of the grand jury is typically to hear the evidence that the government has. They would generally not hear evidence from a target or from the defense and decide whether there is probable cause to believe that a crime has been committed. So the standard is lower, but there's still a standard for them to make a determination. And if they find that when the U.S. attorney presents the facts to them, then they issue what's known as a true bill, which is an indictment of a person or persons for crimes.

7:26That doesn't mean that they're guilty. It just simply means that they're going to be charged through the work of the grand jury, hauled into court, and then they either end up pleading guilty or they have the opportunity and the full right, the constitutional right, to go to trial. So the pedigree that you're talking about is the ultimate determiner of guilt or innocence. And, of course, that standard is beyond a reasonable doubt. Barbara, what role do federal prosecutors play in presenting a case to a grand jury? Well, federal prosecutors have kind of a dual role at the grand jury. They're both an advocate for their case, presenting evidence and asking the grand jury to return an indictment.

8:09But they're also the legal advisor for the grand jury. And that's where this presumption of regularity comes into play that we are seeing some judges finding perhaps is no longer to be applied to the Justice Department. One of the things a prosecutor will do, for example, is to advise the grand jury of the elements of the offense. They are there to answer any legal questions that might come up. It may be that the grand jury wants to know the legal definition of something. And that's where I think we have seen some of these issues come into play where judges have found improper conduct by members of the grand jury when they're improperly vouching for a witness, for example.

8:48When they are serving in that role as legal advisor, prosecutors are trained to keep it straight, to answer the questions. If there is something that is harmful to your case, you have to front that. And so that is part of being an officer of the court to handle that job objectively. Well, it's important to note that grand jury proceedings are private, meaning there's no judge or defense present during the hearing. So, John, what role do judges play in this process? The judges have, Jen, oversight responsibility for the grand jury. And generally, not much happens with that oversight responsibility day to day as the grand jury does its work.

9:31You end up taking the returns from the grand jury, which would be the true bills that are handed up typically by the U.S. attorney and the foreperson of the grand jury. Occasionally, there are instances where a judge gets involved when the grand jury is requesting information through subpoenas or other methodology, but those are fairly routine. However, what we've seen recently, as Barbara alluded to, are improprieties so grave that judges have had to get involved in very unprecedented ways. We had an instance very recently in Illinois where April Parry, the U.S. district judge, absolutely had to go back and have a grand jury transcript unredacted where it appeared that the United States attorney was trying to cover things up that took place in the grand jury room.

10:29Similar situation in Wyoming. As Barbara mentioned, you can't vouch, meaning you can't, you know, characterize the testimony of witnesses, you know, one above another and their credibility. We had in Wyoming, if I recall correctly, a United States attorney literally handing out his business card to grand jurors and telling them that they could contact him if they had any questions. These are really bizarre things that speak to, at minimum, a lack of professionalism and, at most, grossly inappropriate behavior. We'll dig more into those cases a little later. But, Mike, what role do prosecutors play in determining who serves on a grand jury?

11:15Yeah, well, so that's a great question. So just to clarify, we're talking about grand juries now, not petty juries. Prosecutors don't play a role. And that's precisely the issue that we're seeing, right? It's supposed to just be whoever happens to get grand jury services serving. And the problem that we've seen from what I understand in this case called the Broadview Six, which is a case came out of Chicago from Operation Midway Blitz. The government alleged that a number of people tried to box in an ICE vehicle outside the Broadway detention facility, and they prosecuted six people, but they ultimately dismissed discharges against two, kept four going.

11:52And from what I was able to ascertain, it seems like the government, i.e. the Department of Justice, was trying to curate the grand jury pool, meaning if they got me or someone who didn't trust the way the government was operating or didn't like what they were doing, they would just get rid of me, which in other words gives them a number of people who are what we would refer to as trained circus seals for the government. They're just going to do exactly what the corrupt U.S. attorney wants. And that is how I believe they ultimately got an indictment after three times of manipulating the process.

12:23And I think that's the reason that Judge Perry ultimately got involved, which led to the dismissal with prejudice. And dismissal with prejudice is like that rarely happens, like rarely. It makes me wonder then, Barbara, since grand jury proceedings happen privately, what irregularities might prompt a judge to look under the hood and even go so far as to dismiss a case outright? It's very rare, Jen. Part of it is the separation of powers and respect for the executive branch to bring cases. There is a portion of the grand jury transcript that is routinely turned over. That is the witness testimony.

13:03That gets turned over under court rules so that the defense can engage in a meaningful cross-examination of any witness who takes the stand at trial. But it's that colloquy between the prosecutor and the grand jury that ordinarily stays secret. And part of the reason for that is that it may be there are related investigations that are being discussed during that colloquy that are not part of this case, things that should be kept secret to protect the integrity of those investigations. And so it requires a showing of irregularity before the court will even look at those transcripts. In my 20 years as a federal prosecutor, I can't remember a single time when a judge looked under the hood to read those transcripts of that colloquy between the prosecutor and the grand jury.

13:52It would require a showing of something that so disturbed the judge to believe there was some irregularity to take a look at it. Well, let's pause here. Coming up, several federal judges have accused prosecutors of misconduct. That's just ahead.

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15:54Let's get back into the conversation. We're discussing the use of grand juries in the Justice Department under the second Trump administration. Dennis emails, Several years ago, I served on a grand jury in Montgomery County, Maryland for three months. Every Wednesday from 9 a.m. until we were finished, sometimes into the night, we heard every felony for that week. Mostly drug-related, but a few murders in government corruption cases. The drug cases were rarely ever found to be unindicable. We never heard from defense attorneys, and the prosecution often embellished the charge. Only police officers were there to speak other than prosecutors.

16:29We used our subpoena powers once, but overall, everything was a rubber stamp. Very interesting and eye-opening on how the system works. Well, at least three times since November, federal judges have accused federal prosecutors of misconduct. Most recently, as we noted, in Chicago, where six people protested outside an immigration detention facility in Broadview, Illinois. Four of them were expected to face charges of interfering with and conspiring to interfere with a federal agent. But a Chicago judge dismissed that case last month, citing federal prosecutors' misconduct and several grand jury errors.

17:03Barbara, this is a good place to pick up our conversation. What did the judge say the prosecutors did in that case? Well, there were several examples of misconduct that the judge found in that case. One was improper vouching for the witnesses. You know, that is to say, you can believe this person for reasons that have not been presented to you here in the grand jury room. There was also an instance of dismissing, as Mike discussed earlier, some of the grand jurors that they thought were unfriendly to the government's case. That is not a common practice. And then there was also conversations with individual grand jurors outside of the grand jury room.

17:42That is an absolute no-go. So the things you discuss about the case should occur only on the record in the grand jury room where everything you say is transcribed. And then what the judge found was most egregious about all of those things is when she asked for a copy of the transcripts because of concerns raised by the defense, the prosecutors initially had redacted the portions that would have revealed these examples of misconduct. She then asked for an unredacted copy. And what she said was what she was most alarmed by was the effort to cover up these acts of misconduct. And so I can't emphasize enough how unusual it is to engage in that kind of misconduct.

18:29Prosecutors get training. There are policies. And people go in as teams. I have seen many of my fellow prosecutors go in and prosecute a case. We're acutely aware that every word we speak is being transcribed on the record and could be reviewed by a judge. But in most every circumstance I was ever in in 20 years, we were scrupulously careful to avoid putting a thumb on the scale. The standard is only probable cause, just an effort to determine that there's sufficient evidence here to go forward. It's not something we've made up. It's not politically charged. There are facts here. And later it will be tested through the adversarial process with motions and with a jury trial and with cross-examination.

19:15But to just get past that initial probable cause stage, it is essential that prosecutors present the evidence in the case. And I'll tell you, it isn't just because you want to do things ethically and properly, though one hopes that you do, but you also want to battle test your case. You want to stress test it. Are there problems with this case? And if so, I'll pull the plug now rather than go through all of the time expense, humiliation for a defendant of a trial. If this case is a nonstarter or if the grand jury tells me they would like additional evidence about some aspect of the case that they find weak.

19:49Let me go get that and bring it before the grand jury and see if that satisfies. Well, it helps you find where there may be weakness in the case outside of the ethics. But, Mike, when we were talking about things like talking with individual grand jurors about the case outside of the courtroom or removing dissenting jurors from the proceedings, was this type of conduct happening before the current administration? Is there evidence that this is new? Yeah. So, you know, as Barbara said, I'm sure it has, but we don't know because all of what happens, mostly grand juries, operates sort of behind a shroud of secrecy.

20:26So my guess would be, of course, it has, probably on a lesser scale than we're seeing now. But a lot of what's been going on in the Trump Justice Department isn't new. It's just escalated. It's taken on new priority, new, you know, increased vigor, increased likelihood. But I would be shocked if these things hadn't happened in the past. And to get into why these things can happen, it's because there is absolutely zero way to hold prosecutors or any federal officials accountable. So they have every incentive in the world to be unethical and engage in illegal conduct to the extent that they don't have an ethical moral compass telling them to do the right thing.

21:03Well, when you say there's no ability to hold them accountable, I mean, there are things like law licenses that can be taken away from people if they're acting outside of ethical norms. So is this just because there is not enough transparency around the process? It seems like there's some accountability built in. Yeah, so that's a great question. So as far as internal accountability, the Justice Department has this office called OPR, the Office of Professional Responsibility. which I've referred to as a veritable graveyard where complaints of prosecutorial misconduct go to die. Largely what happens, they publish their reports annually that give no identifying information at all.

21:44They have no meaningful discipline mechanism. No one knows who these prosecutors are. The better way to hold them accountable would be to sue them personally, seeking civil damages. You can't do that because there's no statutory remedy to sue federal officials. And prosecutors, all prosecutors, state and federal, have absolute immunity. So even if you could sue them, they would be immune. So the case would be would not get very far. And your question about the state bar. Sure. State bars can and absolutely should disbar federal prosecutors when they engage in misconduct. The problem is they largely don't.

22:19It's been a, you know, grandfather or what do you call it? Unofficial practice that they sort of defer to OPR. But now we've seen and I wrote a comment to the Justice Department with my colleague arguing against this rule that wants to codify that longstanding practice, which basically would ask the state bars to wait until OPR does their investigation, at which point OPR will say, well, we don't have any findings. We have nothing for you. So back down. So largely, there is really no way at all to hold prosecutors accountable. I would make one very minor note. So one of the prosecutors in the Broadview Six case was detailed to Senator Durbin's office through the Judiciary Committee.

23:01When that came to Senator Durbin's attention, to his credit, he immediately removed her from his office. However, she's not an employee of Senator Durbin. She's an employee of the Justice Department. And to my knowledge, she's still employed by DOJ. Well, John, is there a role here for judges to play in holding prosecutors accountable when they find that they're acting outside of ethical norms and standards? Not only is there a role to play, but I think judges are playing that role. I might respectfully disagree with my co-panelist, Mike. I think my experience over 20 years in the federal bench is that U.S.

23:38attorneys, assistant U.S. attorneys conducted themselves with great rectitude and professionalism. Look, you know, you had fights in prosecutions occasionally when there was something that came up about not turning over evidentiary materials and things that happened post indictment. indictment. But I have never seen the kind of impropriety that we're seeing in front of grand juries ever, you know, in the time that I've been in the law. I don't think this is the norm. I think to the extent that it's happened before, and there's, you know, Mike is kind of making an assumption it may have happened before, I think that they would be outliers.

24:22And I attribute it to a couple of things, and judges are now watching this very closely. On the one hand, you have enormous pressure placed on United States attorneys and assist the United States attorneys to get indictments, regardless of whether or not, and this flies in the face of prior procedures in the Justice Department, regardless of whether or not there's reason to believe that they could get a conviction. Sometimes it is the process that is the punishment, and that seems to be the mantra of this Justice Department. They don't care necessarily whether somebody who's going to be convicted as an endgame.

24:58They do care whether they're put through the trauma of being indicted and having to fight their way out of the indictment in court. And the other thing is, this is amateur hour. You're getting U.S. attorneys, think Lindsey Halligan, for example, who have absolutely no experience, as Barbara said, typically they're very well trained, going into the grand jury rooms and doing things like misstating the law and grand jury procedures because they're doing the bidding, and I have to be blunt here, of a benefactor who simply wants somebody to get indicted. So judges, I think, are hypervigilant now in a way that they haven't been about grand jury and proprieties.

25:41It never occurred to me during the time I was on the bench that a grand jury transcript would be redacted, you know, by U.S. attorneys to hide something. Things like that, talking outside the room, as Barbara said. So I think we're in a new age here and not a good one. Well, this brings up this principle called presumption of regularity. For more than a century, it's given the government a major advantage in court. And I'd love for you you just explain that briefly and how that fits into this discussion? Well, the presumption of regularity is that people are going to play according to the rules, to be perfectly blunt.