On the “Man Bites Dog” index rating newsworthy stories “Grand Jury Thwarts Prosecutor” ranks pretty high, and news and opinion coverage of District of Columbia grand jury refusals to hand up felony indictments in cases generated by the Trump administration’s federalized surge in the District has been extensive.
Few of the commentators have resisted the temptation to cite Sol Wachtler’s assertion that any minimally competent prosecutor can get a grand jury to indict a ham sandwich. All of the commentators seem to have taken some comfort from the grand jurors’ willingness to step up and frustrate Trumpian overreach. As Professor Paul Butler put it in the Washington Post, “Under Donald Trump and Jeanine Pirro, another word for “nullification” is “patriotism.”
But none of the commentators has confronted the reality that the District of Columbia’s trial jurors are structurally sealed off from any meaningful monitoring of the Trump surge.
Trump and Stephen Miller have not unleashed various National Guard units, the Secret Service, the U.S. Park Police, and U.S. Attorney Jeanine Pirro in order to investigate and prosecute the relatively complicated felonies that require grand jury assent. The new War on Crime in the District is not about supporting quality investigations in serious cases; it is about generating a vast quantity of chickenshit misdemeanors in which a District resident’s only role is as defendant and the real point is projecting power. These minor cases—public consumption of marijuana, carrying open containers, simple assault, petit larceny, helmetless scooter driving—are the easiest targets for the eager Trumpian forces. Their disposition is beyond local scrutiny.
Misdemeanor cases in the District where the penalty is not more than 180 days imprisonment can begin with a federal arrest, and be brought by the federal United States Attorney. They are not tried by a jury, but by a judge appointed by the President and confirmed by the Senate.
Defense lawyers anywhere will tell you that a trial-by-judge is effectively a slow plea of guilty but in the District, where 90 percent of the criminal defendants are Black, the issue is something more profound than the endemic bureaucratic desire to move the docket.
The comforting novelty of the grand jury “nullification” of Trumpian felony prosecutions should not obscure the fact that what we see here is the potential for what Caroline Elkins described in her magisterial review of colonialist justice in action Legacy of Violence: A History of the British Empire—here is the law used as a sword against the local people, and a shield for the officials who wield the sword.
This sword is not blunt. The “Not more than 180 days” threshold for jury trial rights in the District doesn’t confine the harms to trivial ones. In less than 180 days you can lose your job and accumulate a record that prevents you getting another. You can jeopardize your family and your public housing. You can be traumatized by the conditions in the D.C. Jail, and you can be stigmatized on the street. If you are on probation, that probation can be revoked. If you were not yet on probation, now you can be placed on it, and a new sword hung over your head.
And the shield? Read the D.C. Auditor’s report analyzing President Trump’s pardon (on the second day of his new term) of the Metropolitan Police officer convicted by a unanimous District of Columbia jury of murder in the second degree in the death of Karon Hylton-Brown and you will see all of the elements starkly displayed. There’s a reckless chase prompted by a trivial offense; a pointless death, then immunity from the consequences.
The District of Columbia grand jurors who rejected the felony indictments offered by U.S. Attorney Pirro did the right thing. They showed us why John Adams thought that representative government and trial by jury were the “hearts and lungs of liberty.” But their diligence should also remind us that Adams believed that without trial juries people will have "No other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds".
Adams isn’t alone in believing that; Donald Trump, Stephen Miller and Jeanine Pirro can see it too. As the District’s Mayor and Council measure appropriate cooperation with them, they’d better keep that fact in mind. The District’s grand jurors are in no position to confront this tide. There will be no trial jurors to come to the rescue.
Great piece. The DC law for misdemeanors is Dickensian.
And I expect the Trump regime to fortify it by bringing back workhouses to DC.
A shield for every community: Chicago, LA, Memphis, and every other city that would need protection from this Adminstration’s heavy (but blunt) sword they refer to as “Justice.”