DC Grand Jurors Reject Charges & Chief Justice Okays FTC Firing

0:02This is Bloomberg Law with June Grasso from Bloomberg Radio. Chief Justice John Roberts is allowing President Trump to remove a member of the Federal Trade Commission, the latest in a string of high-profile firings allowed by the Supreme Court for now. Rebecca Kelly Slaughter, the FTC's only Democrat, had briefly returned to her job after a federal appeals court ruling in her favor last week. Roberts' order, which came with no explanation, nullifies that decision at least until the full Supreme Court decides how to handle the case. He set a September 15th deadline for Slaughter's lawyers to respond to the Justice Department's request to keep the commission out of her job while the legal fight over the merits plays out.

0:55My guest is constitutional law professor Harold Krent of the Chicago-Kent College of Law. The FTC Act says a president can remove commissioners only for cause, such as inefficiency or neglect of duty. There was no cause here. So why did the chief justice allow Trump to remove slaughter for now? Well, there's two possibilities. And the first is that despite the fact that the Supreme Court has upheld the validity of the precedent in the FTC case, Humphreys Executive, which was decided almost a century ago, the court has been chipping away at it. And this might signal that the time for chipping away at it may be over.

1:38And the court is now ready squarely to face it and overrule it. That's theory one. Theory two is that in all of these removal cases, we've never seen a court order reinstatement. And obviously reinstatement intrudes more dramatically into the president's authority than just an order to pay back pay, as in the Humphreys executor precedent itself. So the second possibility is the court thinks that even if they will continue to abide by the Humphrey's executive president, that it's just too much to order reinstatement. And that, of course, then, however, would allow the president to appoint somebody else, another Democrat.

2:20And, you know, in that sense, there would be no real change in terms of the balance of the political parties. He would have to appoint someone who is a Democrat? Yeah. Under the terms of the act, there's supposed to be five members of the FTC and no more than three of whom can be of any one political party. So this is a temporary order by the chief justice. So will you explain what happens next? Because it's the chief justice who handles all the emergency appeals from D.C. Correct. And so it's a matter of will the government want to keep the litigation going? presumably it will, and so this stay would then attach as long as the executive branch queues to its deadlines in terms of then filing for writ of certiorari, giving time for the court to then decide the case, and alternatively, the court could go for rehearing en banc, and that would take some time as well.

3:20So depending on what the executive branch does, This won't get resolved anytime soon, but it could get resolved this Supreme Court term. Is the chief justice saying this is an emergency? No, it's an emergency state. There's in the so-called shadow docket, what the court has been doing more and more is taking a look at the equities to determine whether there should be interim relief imposed pending, you know, exhaustion of appeals, pending a full resolution on the merits. So it's looking at simply the question of a kind of likelihood of success on the merits as well as balance of the equities. So it's similar to a traditional injunction standard, but it's done obviously in a very informal way, and we don't have the benefit of an opinion.

4:08In May, when the Supreme Court allowed Trump to remove members of the National Labor Relations Board and the Merit Systems Protection Board, all the justices voted. Yeah, so there is a termination that can be made by the court whether to have signed opinions in the so-called interim relief or interim docket as opposed to just an order of the court. And so through some kind of behind-the-scenes negotiations, they decide who wants to think this is important enough to write an opinion, who is content with just having an administrative order. So there is no firmly entrenched tradition as to whether any kind of written order will ensue.

4:51And the same thing is even true for denials of certiorari. Sometimes some of the justices want to state their own opinion about why the court should have granted certiorari. So there's still discretion left in these sort of non-marish decisions as to who will write an opinion and why. Is this decision by the chief justice any more consequential than the court letting Trump remove members of the NLRB and the Merit Systems Protection Board? It may be slightly more consequential merely because this is the Federal Trade Commission, the very same commission that was involved in the Humphrey's executive precedent some 90 years ago.

5:33But to me, I'm not surprised. I don't think court observers were surprised because either two reasons that animate the chief justice's action and the conservative court. Obviously, one is that they do want to determine whether or not to get rid of Humphrey's executor once in fall because there's not much left. And then secondly, I think it is a question that's been unanswered in terms of the balancing of the equities. Should a court in equity, as an equitable remedy, order the president to take somebody back who doesn't want? Would you say there's a zero percent chance that Humphrey's executor is going to last through this upcoming Supreme Court term or are the odds better than that?

6:18I would think negligible is probably the right way to frame it. Certainly, I think the odds will be strong backing the fact that Humphrey's executor will be overturned. But there might be some way of keeping Humphrey's executor, even in ruling against FTC Commissioner Slaughter, because of the fact that the FTC really is a different animal than it was in 1935. that has vastly more power, vastly more personnel. And so the court could try to limit the older case to a different kind of agency, which almost doesn't exist anymore. The FTC is different. The Federal Reserve Board is certainly different.

6:59And right now, Trump is trying to push out Federal Reserve Governor Lisa Cook. Does this decision indicate anything about that? Well, the court in the prior case that you alluded to suggested that there's something different about the Fed. Politically, of course, there's something different about the Fed. What is different from a constitutional perspective is harder to understand. But the court there wanted to have some kind of groundwork to suggest that maybe they would rule differently in the case of the Fed than they would even with respect to the FTC. So I do think that there is some chance for differentiation.

7:36I mean, do you think that the mortgage fraud allegations of something that happened before she was a Fed governor, do you think that those are sufficient if there is a for-cause removal? We don't have a lot of cases on this. I do think that there's some precedent that would suggest that some kind of former, some kind of strong evidence or plausible evidence of fraud is inconsistent with such a responsibility of honor and respect in the U.S. government. but we don't have a lot of judicial precedent on what cause means, but I guess I'm a little more sympathetic with the government than some editorials that I've seen because, you know, I think that you wouldn't want to have an officer in the United States if it could be, if it's shown, which it has to be in this case, but if there was a showing that there was, you know, some kind of moral qualms about the individual exercising in a position of trust and trustworthiness.

8:40But in any event, in any case, that will end up at the Supreme Court. I think the Supreme Court is going to be busy, and I hope that they have no desire to take a lot of vacations because the cases are just piling up, and even the court knows they're important, and they're going to take time. In all these removal cases, it's been the six conservative Republican appointees versus the three liberal Democratic appointees. What happens when a Democratic president comes in and wants to fire people on these independent boards? Is the Supreme Court going to reverse itself? I don't think the Supreme Court would be that brazen.

9:19I think that the Supreme Court might, at the corners, interpret things a little differently, depending upon who's in president. They certainly would take different cases depending upon who's president. They would operate their sort of interim or shadow docket differently. But I don't think that they would overrule cases which they decided during the Trump term just because they favored a Democratic successor. Thanks so much, Hal. That's Professor Harold Krent of the Chicago-Kent College of Law. You've probably heard the much repeated saying that prosecutors have so much influence on grand juries, they can get them to indict a ham sandwich.

10:01Well, maybe not if that prosecutor is a D.C. federal prosecutor trying to get a grand jury to indict someone overthrowing a salami sandwich, a wrap salami sandwich at that. Jeanine Pirro, the U.S. attorney for D.C., bragged about charging the man who threw a Subway sandwich at an ICE officer with a felony of assaulting a federal law enforcement officer. And then he took a subway sandwich about this big and took it and threw it at the officer. He thought it was funny. Well, he doesn't think it's funny today because we charged him with a felony. Assault on a police officer. And we're going to back the police to the hilt.

10:44So there, stick your subway sandwich somewhere else. Well, apparently, the grand jury didn't get Piero's joke. and the D.C. U.S. Attorney's Office didn't get their felony indictment against Sean Charles Dunn. They've now charged him with a misdemeanor of simple assault, which doesn't require a grand jury indictment. That reduced the possible sentence from eight years down to one. It's extraordinarily rare for a grand jury to refuse to return an indictment, But the same scenario has played out at least seven times in five cases since Trump ordered a surge in patrols by federal agents and troops in D.C., according to the Associated Press.

11:31Joining me is former federal prosecutor Robert Mintz, a partner, McCarter and English. Bob, people know the basics of the workings of a jury, even if they haven't been on one, because it's depicted so much in the movies and on TV. but less so about the workings of a grand jury. So tell us about the grand jury. A grand jury proceeding is necessary whenever prosecutors are seeking to bring a felony charge. Under the Fifth Amendment, there is a requirement for capital or otherwise infamous crime to go before a grand jury, which in the federal system is between 16 and 22 citizens, in order to establish probable cause to bring the charge.

12:16What that means is prosecutors have to essentially present their case to the grand jurors in order to bring the indictment. And what goes on in the grand jury is entirely controlled by prosecutors. It's a presentation in which only the prosecutor is present. The defense lawyer is not allowed inside the grand jury. The defendant does not get a right to testify before the grand jury. It's really the prosecutor asking questions of witnesses who may summarize interviews and other evidence that they've gathered and allow for hearsay to be presented to the grand jury to establish whether or not there is probable cause to bring that charge.

12:57Now, bear in mind that probable cause is a very low bar. It only means that there is a reason to proceed with the case and that the prosecutor is able to get an indictment and then that case will go to trial. But prosecutors can only bring a case that they believe that a reasonable jury can convict down the road. And the standard of trial is beyond a reasonable doubt. So getting an indictment in front of a grand jury is usually a very easy task for prosecutors and is exceedingly rare for prosecutors to present a case to a grand jury and not have the grand jury return an indictment. Has that ever happened to you?

13:37I was a prosecutor for 10 years, and I never had a single instance in which the grand jury refused to indict. And while I was in the office, I think it only happened about one time. So it is very, very rare. And it's rare for a couple of reasons. Number one, prosecutors only bring cases where they believe there is strong evidence. Because, again, the case has to go beyond the charging stage. prosecutors have to believe that they can ultimately convince a jury of proof beyond a reasonable doubt, which is the highest standard we have in our legal system. And so in order to be able to satisfy that standard, there certainly has to at least be probable cause, which is the very lowest standard we have in order to bring the charges.

14:22The other reason is that prosecutors are very selective in which cases they bring, and they tend to bring cases in which there is overwhelming evidence, then they believe that they'll be able to gain that conviction at trial. Otherwise, prosecutors can decline to bring the case or they can bring different charges that would be easier for them to prove at a trial. And whereas at trial in a criminal case, the jurors have to be unanimous, in a grand jury, they don't have to be unanimous, right? No, that's exactly right. A criminal trial does have to be unanimous verdict. In order to get what's called a true bill or have grand jurors return an indictment, you only need 12 of those grand jurors to vote in favor of the indictment.

15:03So there have reportedly been seven times in the last few weeks where the grand jury in D.C. has refused to return an indictment. So the U.S. attorney's team tried to secure an indictment against one woman for felony assault against a federal agent. But three separate grand juries refused to return an indictment against her. She was eventually charged with assaulting, resisting or impeding officers. It's very unusual. In order to sustain a charge of assaulting a federal officer, prosecutors have to show that the federal officer faced a fear of death or serious bodily injury. And it does carry a penalty of up to eight years in prison.

15:48So it's very unusual for grand juries to be faced with a potential charge of assaulting a federal officer and not return an indictment. There really are two possible reasons why that happened. And again, what goes on in a grand jury is entirely secret. So we don't really know what their reasons are. And when a grand jury decides not to return a true bill or not to return an indictment, they don't have to give any reasons and don't give any reasons. it's simply a vote that either is 12 in favor of indictment or not 12 in favor of indictment. So at the end of the day, we don't really know the grand jury's reasoning, but we can surmise that it's really one of two things.

16:31Either prosecutors hadn't made out their case for probable cause, which is a very low standard. It only means that it allows the case to move forward to trial, that there is evidence that a crime has been committed and that the individual who prosecutors are seeking to charge have committed that crime. Or the other reason is something called jury nullification, which really happens at trials more than it happens in front of grand juries. And what happens there is that sometimes jurors will hear a case and jurors may actually believe that the prosecution has met its burden of proof, but for other reasons, decide that they are not going to vote for a conviction.

17:12That's something called jury nullification. And it generally happens when there's some feeling among jurors that there's been some overreaching by prosecutors or some improper conduct by prosecutors. Once again, the jury system, just like the grand jury system, is entirely secret. And prosecutors, as a general rule, never find out why jurors vote a particular way unless there is some alleged impropriety in the jury process. But otherwise, there's no way of knowing why jurors vote a particular way. All they will know is at the end of the day, the jurors did not vote in favor of conviction. And sometimes it happens because jurors simply believe that there's something improper about the charge, about the nature of the prosecution, about the way prosecutors handle the case.

18:03And so even though prosecutors may have met the burden of proof, the jury may decide not to convict. It really is kind of an act of civil disobedience by juries. And it very rarely happens, but it does happen on occasion. You heard Piro saying, we're going to back our police to the hilt. And a lot of these cases that we've been talking about involve assaults of some kind on law enforcement. For example, the guy who threw the subway sandwich at the federal officer. And there was another case where a guy was accused of swinging his arms at a park police officer. So is this likely the grand jury's saying they're overcharging these cases?

18:50Well, we don't really know why grand juries are refusing to return indictments here, But I think it's a fair assumption that the grand jurors are looking at these charges and deciding that either there is no probable cause, which seems unlikely. The more likely conclusion I think we can reach here is that the grand jurors are deciding that prosecutors are overcharging, that they're looking at the body camera evidence so they can see exactly what went on here and asking themselves, themselves while that may have been improper, while the defendant may have touched a federal officer, while they may have acted improperly, did they really assault them?

19:29Were they really intending death or serious bodily harm? And it may well be that grandeurs are putting themselves in the shoes of the defendant and saying, what would I do in that circumstance where maybe I was very upset, where maybe the defendant is placed in a situation where they felt that what was going on by the National Guard or by federal officers was somehow improper. And again, touching of a federal officer or in any way impeding what's going on in terms of federal officers trying to conduct their business is improper. But the question is, does it amount to assaulting a federal officer or is really some lesser charge more appropriate?

20:10I think what we can conclude here is that in those instances, grand jurors believe that prosecutors were overcharging those cases and that while the conduct may have been inappropriate, it didn't rise to the level of assaulting a federal officer. Is a grand jury considered sort of a safeguard against prosecutorial overreach? The concept of an indictment is enshrined in the Fifth Amendment. So even going back to the founding of this country, there was always a concern about the government being able to bring charges on its own. And that's why we have this concept of the grand jury where they hear evidence and prosecutors have to convince those grand jurors who are just like any other jurors out there.

21:00They are randomly selected and then they are questioned and then they're made a part of this grand jury. And all they do is hear evidence for possible charges. And it goes on for about a year and a half while they sit and hear these cases once a week. But they are put in place pursuant to the intent of the framers of the Constitution to act as a buffer between the government and decisions to charge citizens. And that's why in every case in which a federal felony is charged, and that means if the defendant is facing possible imprisonment of more than a year, that's what constitutes a felony, that has to go before a grand jury, and a grand jury has to agree that that case should proceed to trial.

21:44And in most of these cases, it seemed that what happened is they dropped the charges to misdemeanors. What do prosecutors have to do to charge a misdemeanor? A misdemeanor does not require an indictment. Therefore, it does not have to go before a grand jury because the penalty for misdemeanor is up to one year in prison. And it does not meet that definition of an infamous crime, as is stated in the Fifth Amendment. So prosecutors can bring those charges directly, but you still ultimately have to go in front of a jury and get a conviction here. So it does allow prosecutors to skip the indictment phase.

22:22They can bring those charges directly, but they still have to go before a regular jury in order to get a conviction. And also a federal magistrate has criticized the D.C. U.S. attorney saying that people are being held in jail while the U.S. attorney is trying to get these indictments from a grand jury. Again, this is really very unprecedented because usually indictments are given very freely. There's the famous quote from Judge Saul Walkler, who was a judge in New York State for many years and said the prosecutors have such complete control over grand juries that they could get them to indict a ham sandwich.

23:03And that really is pretty much the case because of the way prosecutors control that whole proceeding. So it's very unusual for prosecutors to have to go in front of a grand jury multiple times in order to try to get an indictment. And all the while that's happening, the defendant is remaining in jail. What is also extremely unusual is for the U.S. attorney in Washington, D.C., Janine Pirro, to get into such a public dispute with a sitting magistrate judge where she is calling him out by name. and the magistrate judge is so openly critical of the U.S. Attorney's Office, a place where he formally worked as an assistant U.S.

23:42attorney, we rarely see that kind of public display between prosecutors and judges. Generally, there is a level of trust that judges have in the federal government, and particularly with regard to the U.S. Attorney's Office. In my experience, having been a federal prosecutor for 10 years, judges did show a degree of deference to federal prosecutors when they brought evidence to the judge in order to obtain a search warrant, for example, in order to obtain a wiretap. All of that is presented to the judge ex parte, which means presented to the judge only by prosecutors. There's no defense involved.

24:21And so to a certain degree, judges have to take what prosecutors are presenting to them at face value before they approve a search warrant or before they approve the placement of a wiretap. And they do that based upon years of having built up a certain level of trust between prosecutors and judges in which judges have been able to rely on representations that the U.S. Attorney's Office has made about certain facts. And when there comes a time where judges are no longer trusting, it really does throw sand into the gears of the justice system because judges do have to a certain extent rely on the good faith and the truth of prosecutors when they make certain assertions in court.

25:05And if that doesn't happen, it really slows the system down and it makes it much more difficult, not only for defendants to get fair trials, but also for prosecutors to move their cases forward. So it's going to be interesting to see going forward where this tension between judges and prosecutors continues to escalate or whether it returns to a state where there is a greater degree of trust between prosecutors and the federal judiciary. I mean, in this administration, we also have the U.S. Attorney General calling out judges by name, so it's not restricted to the D.C. U.S. Attorney. And also just to note that this is the same courthouse where hundreds of Trump supporters were charged and often convicted by juries with joining the mob's attack on the U.S.

25:56Capitol on January 6th of 2021. But Trump used his clemency powers to erase those cases. One of the things I think we'll see from defense counsel here is trying to raise the defense of selective prosecution. And what that really means is arguing that a similarly situated defendant was handled differently by the government. And they may point to the January 6th rioters whose convictions were ultimately dismissed and whose charges were ultimately dismissed and say that that's really the same thing as the assault charges that are brought here to try to point out that there's a selective enforcement going on here.

26:34Now, I think that in the end of the day, that probably won't work because there are some material differences between January 6th and these prosecutions that I think the government will be able to raise. For example, I think we can expect prosecutors now to argue that these assault charges are being brought as part of an ongoing public safety emergency, whereas January 6th was a single one-time event, and the facts are different than what we're seeing right now. But I do think that that argument will be raised by the defense, and it's possible that when these cases get in front of a jury, that the defense will try to draw a parallel between the January 6th rioters and the individuals charged with assaulting federal officers in these circumstances and try to play on jurors' concept that there is some inequity here or that the prosecution has overreached and even charging these people with assault in the first place.

27:32It'll be interesting to see if any of these cases get pleaded out and don't even go to trial. Thanks so much, Bob. That's Robert Mintz of McCarter & English.

28:07were reasonable. Joining me is Bloomberg legal reporter Eric Larson. Eric, tell us about this particular verdict and the trial. So this decision was for a trial in E. Jean Carroll's lawsuit focused solely on defamation. So when she made her initial allegations about Trump in 2019, Trump, of course, responded with remarks that she says defamed her. And so that was the central element in this particular lawsuit. And the reason it gets a little confusing sometimes is that there was another lawsuit that she filed after that under a New York state law that just temporarily lifted the statute of limitations for victims of sexual assault to file civil lawsuits against their accused attackers.

28:55So she filed, she was actually the first person to file a lawsuit under that law. Then there was a totally separate trial that she also won. And that resulted in a$5 million damage award in a sex abuse and defamation case. And this one today is strictly about that earlier defamation lawsuit. So Trump had argued that the damages were unreasonably excessive. What did the Second Circuit find about that? Well, they just flat out disagreed. They said that the damages were reasonable, as they put it, quote, in light of the extraordinary and egregious facts of the case. So they looked at the facts and made their own determination about the seriousness of the conduct.