The word “unprecedented” is getting a workout after a grand jury in Washington on Feb. 10, 2026, rebuffed an attempt by federal prosecutors to get an indictment against perceived enemies of President Donald Trump.
It began with an unprecedented video in November 2025 featuring six Democratic lawmakers alerting military and intelligence community members that they had the duty to disobey illegal orders. That enraged Trump, who in an unprecedented move said the lawmakers were guilty of sedition, which is punishable by death. The U.S. attorney for the District of Columbia, Jeanine Pirro, made the unprecedented attempt to indict the lawmakers. The final element in this drama – the federal grand jury’s rejection of Pirro’s request – wasn’t itself unprecedented. That’s because it’s only the latest in an unprecedented string of losses for the Trump administration before grand juries.
Dickinson College President John E. Jones III, a former federal judge, spoke with The Conversation politics editor Naomi Schalit about the role of grand juries, why a grand jury would not indict someone – and how all of this is a reflection of the administration’s remarkable loss of credibility with judges and the citizens who make up grand juries.
How does the grand jury process work?
The grand jury really dates back to before the Bill of Rights, but for our purposes it’s memorialized in the Fifth Amendment within the Bill of Rights. It is meant to be a mechanism that screens cases brought by prosecutors.
Ordinary citizens, not fewer than 16 or more than 23, have the facts presented to them by a United States attorney or assistant United States attorney. They must make a determination as to whether or not there is probable cause to believe that a crime has been committed. It is not the purview of grand jurors to determine guilt or innocence, but merely to determine whether there is probable cause sufficient to indict.
So that means that a prosecutor will come to a grand jury and present them with the facts that they have chosen to present them with. There’s no defense at that point, and the grand jury then, relatively routinely, says OK, “Indict that person,” or “Indict those people”?
That’s correct. It’s a very one-sided process. There are no defense attorneys present. There’s a court reporter, the grand jury, the United States attorney, and such witnesses as the United States attorney decides to call. While the target of a grand jury can endeavor to present witnesses, including themselves, that generally never happens because of the danger of self-incrimination. The grand jurors can ask questions of the witnesses, but the United States attorney can choose the evidence that it wants to present to the grand jury, and typically they present only such evidence as is necessary in order to establish probable cause that a crime has been committed.
Does the public know what is presented in a grand jury room by the prosecutor?
The grand jury proceedings are absolutely secret and they remain that way, unless a federal judge authorizes that they be unsealed. So in the case involving the six lawmakers, we don’t know what the prosecutor presented to the grand jury. We just know that the grand jury refused to return an indictment. As far as I know, we don’t even know what crimes were put before the grand jury, let alone what testimony was presented. What we do know is that in all six cases, the grand jury refused to vote in favor of the indictment that was requested by the United States attorney.
Why would a grand jury refuse to give the prosecutor what they want?
It’s unprecedented, although we now see a wave of grand juries pushing back against the government. I don’t recall a single instance, during the almost 20 years I served as a U.S. District judge, when a grand jury refused to return a true bill, an indictment. It just is completely aberrational. The grand jury would have to totally reject the whole premise of the case that’s being presented to them by the United States attorney because, remember, there are typically no witnesses appearing before the grand jury to dispute the facts. The grand jury is clearly saying, “Even accepting the facts you’re putting before us as true, we don’t think under these circumstances this case is worthy of a federal indictment.”
Can a prosecutor just try again?
They can return to the well, so to speak, and they did that in Virginia in the case of Letitia James. But it’s pretty perilous because, bluntly, it’s a way that a prosecutor can get their head handed to them twice.
Originally, as set out in the Fifth Amendment to the Constitution, the grand jury was supposed to be a vigorous and robust check against prosecutors simply charging people with crimes. But over time, it’s become far less than that. And there is the famous quote by Judge Sol Wachtler in New York that a grand jury can be made to “indict a ham sandwich.”
So to see a grand jury fail to return true bills multiple times over the past couple of months is remarkable and unprecedented. It occurs to me that what is happening here is kind of parallel to what’s taking place with the administration and federal judges. I think we now have entered a world where the Department of Justice has lost its credibility with the judiciary.
We’re seeing that time and again in appearances in court where judges simply don’t believe what U.S. attorneys are telling them, based on past demonstrable falsehoods that have been stated in open court. And now we see grand juries that are also doubting the credibility of federal prosecutors. And these grand jurors are not blind to what is taking place in the world around them.
I think that this is further polluted by the fact that the president of the United States, for example, in the case of the six defendants from Congress and the Senate, said that they had committed seditious acts – which is punishable by death.
Obviously, this tilts the scales and is fundamentally unfair because it is destroying the concept of due process of law. People notice what the president says, and I am happy to see that the average citizen serving on a grand jury has retained what I think is a fundamental sense of fairness, even in the face of a pretty stacked deck.
What does it mean if you have a court system, judges and the grand juries who do not have faith in the administration and its legal claims?
It’s a complete drag on our system of justice. For all of the time that I sat on the federal bench, I had great respect for the Department of Justice, and the department had tremendous credibility. They were straight shooters. The prosecutors who appeared in front of me were professionals. I didn’t always agree with their arguments, of course, nor did I agree with a few of their charging decisions, but I can tell you that not once did I see a federal prosecution in front of me that I felt strongly should never have been brought at its inception.
But we now have a system where, because of the whims of the president, the Department of Justice has become utterly weaponized against his perceived enemies, and that’s a gross misuse of our prosecutorial power at the federal level.
Also, if, for example, these members of Congress had been indicted, they’d have to lawyer up, they’d have to fight their way out. That would take a lot of resources.
So, yes, the judiciary can be a bulwark against improvident prosecutions. But that comes at a cost to the defendant, and it’s been said that the process itself is the punishment. I suspect that’s what the president wants; it’s the trauma that you put somebody through that can be almost as bad as being convicted. And, of course, there’s the reputational harm as well.
By John E. Jones III, President, Dickinson College
This article is republished from The Conversation under a Creative Commons license. Read the original article.
