The juries fighting back against Trump's assault on the rule of law

A small glimmer of hope amid the darkness

Thanks for reading America Explained! Paid subscriptions are what keeps this newsletter a going concern, so please upgrade if you’re able to spare a few dollars or euros or whatever (I’m not picky!) a month to support independent journalism and to access all of our posts. And as always, students and educators can get a full subscription for free - just drop me a line.

In the United States, an indictment for a serious crime can usually only be bought after a prosecutor has convinced a jury that there is a case to answer. The need to convince this so-called “grand jury” is designed to provide an additional layer of protection against prosecutors abusing the justice system. Together with Liberia, the United States is one of the few countries in the world that still uses grand juries to screen prosecutions.

And in some cases at least, they seem to be providing one of the few effective pushbacks against Trump’s growing authoritarianism.

Nowadays we are used to thinking of the Supreme Court as the institution whose job it is to protect the integrity of the constitution against abuses. And given the current make-up of the Supreme Court, this is of course highly problematic.

But the authors of the constitution had a far broader view of how it would be protected. They viewed all of the checks and balances which exist in the U.S. political system as designed to prevent the emergence of a tyrant. If the president was becoming authoritarian, Congress could refuse to fund his government (Democrats are trying that right now; more in a future post). If Congress passed unjust laws, the president could refuse to enforce them. If an abusive prosecution managed to make its way to court, a jury could refuse to convict. And so on.

Grand juries were a key part of this system. If the president started abusing the criminal justice system to prosecute his enemies, grand juries would be there to prevent the prosecutions from happening in the first place. A president who, for instance, sent federal troops to occupy an American city in order to use it as a “training ground” would find that criminal prosecutions resulting from that occupation would fail to be authorized.

And in Washington, D.C. right now, that is exactly what is happening.

Since Trump began his military crackdown in D.C., nearly a dozen grand juries have rejected charges that prosecutors tried to bring against their fellow citizens. We don’t know what went on in the grand jury room - proceedings are secret - but we do know that it is incredibly unusual for a wave of rejections like this to happen.

Prosecutors usually don’t have much trouble securing grand jury indictments because they only bring strong cases and because the jurors never hear from anyone representing the defendant. Indictment rates in federal cases typically run at over 99%. This has led some people to dismiss the whole system as a sham. But it is clear that when push comes to shove - like right now - grand juries can use their power to stand up for the rights of others.

The ironic thing is that of any part of the criminal justice system, it is grand juries who best represent ordinary citizens - the people who Trump often claims to represent as he battles against “the elite”. Grand juries are completely outside of the regular court system and they are picked randomly for local citizens. If they are flexing their power, it is as pure of expression of popular and righteous disgust at the regime’s actions as you could imagine.

That hasn’t stopped the regime, of course. In one recent case in D.C., prosecutors failed to secure an indictment from a federal grand jury, so they empanelled another one in an overlapping jurisdiction and then managed somehow to persuade that one to return an indictment. This is highly unusual - a bit like holding an election and then re-running it with different voters when you don’t like the results. But what happened next was heartening - when the case got to trial, the judge overseeing it saw what had happened and threw it out.

These are minor victories in the face of the full scale of Trump’s authoritarian crackdown. But they are replicable elsewhere. Back earlier in the summer, prosecutors were also having trouble getting grand juries in Los Angeles to go along with the federal crackdown there. As Trump now sets his eyes on Memphis and potentially other cities, this is a legal, effective and righteous form of resistance which can hopefully inspire more like it.

It also ought to stand as a message to the Trump regime: the people don’t want what you’re selling, and they’re starting to make it known.

Thanks for reading America Explained! Paid subscriptions are what keeps this newsletter a going concern, so please upgrade if you’re able to spare a few dollars or euros or whatever (I’m not picky!) a month to support independent journalism and to access all of our posts. And as always, students and educators can get a full subscription for free - just drop me a line.