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People sometimes ask me whether I see any guardrails between President Trump and the dictatorship he has foreshadowed. With a docile Supreme Court and a cowering Congress, it is hard to see any.
At a Cabinet meeting last week, Trump said, “The line is that I’m a dictator, but I stop crime. So, a lot of people say, ‘You know, if that’s the case, I’d rather have a dictator.’”
Trump is seeking to solidify autocratic power by declaring spurious emergencies and falsely insisting that the country, despite the statistics, is wallowing in crime — and that he and he alone can solve the problem.
In seizing on the crime issue, Trump obviously wants to divert attention from the soft spots in his administration, such as the Jeffrey Epstein scandal, the wholesale firing of able personnel, rising prices created by his draconian tariffs and his failure to make peace in Ukraine.
Trump declared a crime emergency last month, deploying federal law enforcement agents and even 2,200 National Guard troops to supplement Washington’s 3,100-member police force and assist with immigration enforcement. The Guard’s questionable mission appears to include helping the National Park Service with trash removal and groundskeeping. A federal judge just held that his deployment of the Guard in Los Angeles was a violation of the Posse Comitatus Act, prohibiting use of the military for law enforcement purposes.
More than 1,000 arrests have followed in D.C., according to the White House. But are they good arrests?
The surge of federal muscle in D.C. is finding pushback in the city’s federal courts, where judges have admonished prosecutors for violating defendants’ rights and court rules, and grand juries have repeatedly refused to issue indictments.
For example, a federal magistrate judge said that an arrest in Northeast Washington had been preceded by the “most illegal search I’ve seen in my life” and that another arrest lacked “basic human dignity.”
D.C.’s top federal prosecutor, Jeanine Pirro, at Trump’s behest, ordered her prosecutors to throw the book at anyone arrested on criminal charges. But government lawyers recently came up empty-handed in a dubious assault case involving trivial scratches on the knuckle of a federal agent, with prosecutors failing to indict not once but three times.
Another grand jury refused to indict the now-famous “Sandwich Man.” Pirro came up empty-handed last week in the case of Sean C. Dunn, a former Department of Justice paralegal, whom she sought to send away for eight years for throwing a sandwich at an ICE agent on the streets of Washington. Dunn allegedly stood within inches of the officer, calling him and his colleagues “fascists” and shouting, “I don’t want you in my city!”
Grand juries have long been criticized as putty in the hands of the prosecutor. It is accepted as a truism among criminal lawyers that a grand jury would indict a ham sandwich if a U.S. attorney asked them to. Pirro’s prosecutors may be able to indict a sandwich, but they can’t seem to indict someone for throwing one.
Of course, Pirro is free to present her failed cases again to still another grand jury, but that may be politically difficult. “Runaway” grand jurors refuse to issue an indictment only in rare cases. The law requires them to find only probable cause that a crime was committed, the lowest evidentiary bar known to the law. But instances of “no true bills” (refusals to indict) have begun to proliferate since Trump took office. Grand jurors in Los Angeles have reportedly refused to indict people arrested for protesting the administration’s immigration enforcement actions.
And grand juries are only the first layer of guardrails in the criminal justice system, where they are followed by trial juries, and trial and appellate judges.
America inherited the grand jury system from England, which abolished the procedure in 1933. We can’t readily follow suit, since the Grand Jury Clause of the Fifth Amendment requires in the federal system a grand jury indictment for a “capital, or otherwise infamous crime.” The argument for the grand jury, typically consisting of 23 citizens drawn from the community, is that it breathes the “conscience of the community” into the accusatory process.
“It goes back centuries here,” explains my friend Joshua Rozenberg, a London-based legal analyst. “In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They’re people who actually knew the offenders, as we’d call them today, and could perhaps bring them to justice.”
Defense counsel is not present during grand jury proceedings, and the grand jury relies solely on information fed to them by the prosecutor.
What we are seeing around the country is a form of jury nullification, a brake on executive overreach. Jury nullification occurs when a grand or petit jury acquits a defendant despite believing he technically broke the law, often because the jurors disagree with the law’s fairness, morality or application in a particular case.
While not a legally sanctioned right and generally not encouraged by judges, triers of the fact can exercise this power by returning, in the case of a petit jury, a “not guilty” verdict, which cannot be overturned. This action serves as a check on the legal system, allowing juries to express moral disagreement with the law if they believe it unjust, discriminatory or overly harsh. Sometimes, a jury might feel the law, though valid in general, is misapplied or results in an unjust outcome for the defendant.
Jury nullification was prevalent during the pre-Civil War period. A classic example would be the acquittal of abolitionist defendants who aided escaped slaves.
A judge I knew acquitted, after a bench trial, two priests who had violated an injunction by protesting too close to an abortion clinic. The facts and the law were incontestable, and the Catholic judge was the target of significant criticism. But the acquittal stuck.
Jury nullification is an important check on government abuse of power. Today, it may be one of the few guardrails on democracy remaining in our legal system.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
