October 29, 2025
Praise Be Thee, Grand Jury
The Founding Fathers built into the Constitution of the United States a check against overzealous and unwarranted prosecutions: A grand jury of citizens must find probable cause that a crime was committed before the government can charge a person with a serious offense.
This bar to would-be kings misusing criminal law to enforce their rule through politically motivated prosecutions nonetheless has its limitations. Government attorneys who serve as prosecutors are the only people allowed to present evidence to grand jurors or instruct the grand jurors on the applicable legal requirements. Further, the evidentiary standard for approving charges is “probable cause,” a much lower threshold than proof beyond a reasonable doubt, as required to convict a person for the crime charged. Consequently, grand juries historically rarely vote against the government’s request to approve a criminal charge.
But this trend may be shifting.
This year, citizens serving on federal grand juries in Los Angeles, Washington, DC, and Chicago have repeatedly refused to approve felony charges against people arrested for alleged interference with Immigration and Customs Enforcement (ICE) and other federal law enforcement officers. In Los Angeles, the Trump-appointed United States Attorney repeatedly failed to convince grand jurors to return felony charges against people protesting ICE immigration sweeps in June. Similarly, the District of Columbia United States Attorney’s Office has often been rebuffed by grand jurors as it sought to charge protestors with felony assaults (punishable by eight years in prison) whenever a protester comes into physical contact with a federal law enforcement agent. In one highly publicized case, a DC grand jury refused to indict a sandwich-throwing protestor for felonious assault of a federal officer. And in a second notable case, the United States failed to obtain grand jury approval on three different occasions for a felony indictment of a woman arrested after scuffling with the agents outside the D.C. jail and failed to convict her of even a misdemeanor assault. Recently, a Chicago grand jury refused to indict a husband and wife with felony assault on federal officers. The woman, ordered to retreat outside an ICE detention facility during a protest, allegedly shoved the agents, after which her husband allegedly charged the officers, demanding they release his wife. Despite prosecutors seeking felony indictments of both, the grand jury refused to go along.
But federal grand juries have not limited their pushback to protesters being charged with felony assault and interference with ICE. In D.C., a federal grand jury recently refused to approve an indictment against an individual for being a felon in possession of a gun. The individual had fled police who approached his vehicle and allegedly dropped a gun on the ground during the pursuit. Although the U.S. Attorney thereafter secured an indictment from a local Superior Court grand jury, a federal magistrate declined to accept that indictment.
Federal grand jury proceedings are conducted in secret, masking the reasoning behind a grand jury’s decision to vote a “no bill,” meaning the grand jury declined to indict. But it appears that grand jurors are skeptical about the evidence prosecutors are presenting about the interactions between citizens and federal law enforcement officials. In dozens of cases in both Los Angeles and the District of Columbia, prosecutors have been forced, often when confronted with videotapes of these interactions, to reduce felony charges to misdemeanors or dismiss charges altogether. The same grand jury skepticism appears to be operating in Chicago and may find purchase elsewhere, as federal authorities attempt to charge almost every encounter between a protester and federal officer as a felony.
Whatever the reasons, we should all be grateful that grand jurors are taking their responsibilities seriously and not simply rubber-stamping indictments presented by prosecutors. The Founding Fathers included the grand jury clause in the Constitution’s Fifth Amendment to ensure that citizens exercise oversight on the executive branch when it is seeking to try a person for crimes that subject them to imprisonment. The grand jury acts as an important independent check on arbitrary and politically biased enforcement of criminal law. This independent check is proving vitally important in this fraught moment in which we find ourselves.
Steven Salky represented clients in both prosecutions and civil enforcement proceedings brought by the United States and its agencies for thirty-five years as an attorney in the Washington DC office of Zuckerman Spaeder LLP, prior to retiring from the firm in 2019.