It’s so rare for a federal grand jury to reject an indictment that it happened just five times in the fiscal year 2013, according to the Bureau of Justice Statistics. Five times. Nationwide. Out of more than 165,000 cases.
That’s 1 out of every 33,000 cases. In percentage terms, it’s 0.003 percent.
Yet President Donald Trump and his Justice Department have now managed to achieve this remarkable feat in both of his signature attempts at exacting legal retribution against his foes.
First came the grand jury rejecting 1 of 3 charges against former FBI Director James Comey in September — apparently the most significant charge — and only narrowly agreeing to bring the other two. Then the indictments against Comey and New York Attorney General Letitia James were thrown out because a judge ruled the prosecutor was illegally serving. After the Justice Department managed to find another prosecutor who would try to re-indict James, a grand jury on Thursday said no thanks. It rejected the charges.
The Justice Department is signaling it might press forward and try to indict James again.
But at this point, this whole retribution exercise is going quite poorly for the administration and appears increasingly likely to backfire on Trump.
His campaign has long suffered from a very significant and important deficit — and that’s the actual evidence.
Try as Trump’s allies might to justify this as a lawfare tit-for-tat after his four indictments when he was out of office, the mortgage fraud allegations against James and the perjury allegation against Comey appear rather flimsy — much flimsier than the charges against Trump were, certainly. Even some conservative legal scholars have scoffed at the evidence.
(The classified documents charges against another Trump foe, former national security adviser John Bolton, appear more serious. But the investigation was undertaken by the Biden administration, and Trump didn’t play such a role in orchestrating the charges.)
What’s more, the political nature of this effort is on another level. While Trump and his allies have baselessly claimed then-President Joe Biden was behind Trump’s indictments, Trump’s role in orchestrating these indictments has been rather shameless and very much out in the open, for all to see.
This is just a very different animal — no matter how much certain people try to both-sides it all.
The situation is reinforcing how Trump has truly weaponized the justice system.
It’s well-established that the Trump administration struggled to find prosecutors who would even present these cases to grand juries. CNN has even reported that Trump-loyal top DOJ officials, including Attorney General Pam Bondi, resisted the cases.
Ultimately, with the statute of limitations expiring on the Comey charges, Trump forced out the US attorney. Apparently the best way to get the charges brought quickly enough was to install Lindsey Halligan — who, as the judge who later disqualified her noted, had “no prior prosecutorial experience.”
What followed was a debacle in which the question seemed less whether the Comey case would get thrown out than for what reason. Among the problems was Halligan’s bizarre handling of securing the indictment. It was a pick-your-poison of potential failure before Halligan’s illegal appointment sunk both it and the James case.
But many of those problems remain and could loom large if the administration manages to secure another indictment in either or both cases.
What’s more, to the extent the administration just keeps bringing these charges, it could reinforce another reason for judges to potentially dismiss them: selective or vindictive prosecution.
Which brings us to the other key element here: public perception. It’s not just judges who might reason that the evidence of legal misconduct is growing; it’s also the American people.
The American people, after all, already seem to regard these cases with quite a bit more skepticism than they ever did Trump’s indictments.
A recent poll from Marquette University Law School showed Americans said by a 55 percent-45 percent margin that the indictments against Trump had been warranted, but by a 58 percent-42 percent margin that the charges against Trump’s foes were not justified.
This echoed earlier polling that suggested Americans were quite skeptical of the Comey and James cases — in a way they simply never were about Trump’s indictments in real time. Americans were also much more likely to view the Comey and James cases as being political.
These situations aren’t apples-to-apples. And that’s not just in courts of law; it’s true in the court of public opinion too.
So if you’re Trump, what do you do with that?
His inclination right now seems to be to do whatever he can to make a point and to cause the likes of Comey and James legal headaches. If nothing else, maybe that’s enough of a warning to others who might come after Trump, lest they find themselves in similar situations.
But at this point, it’s somewhat doubtful that either James or Comey will have to contend with a trial. And even if they did, how could a jury ever unanimously convict them under the much higher standard of evidence? After the administration has struggled to get grand juries — who don’t need to be unanimous and only need to agree there is probable cause — to indict?
And that’s to say nothing of the apparent problems this is causing internally for the administration. Not only do these failed indictments appear to be dividing the Justice Department, but CNN reported recently that a grand jury in Maryland was probing the handling of another mortgage fraud allegation against a Trump foe — Democratic Sen. Adam Schiff of California — led by Federal Housing Finance Agency Director Bill Pulte and the Justice Department official Ed Martin. The probe appears to center on whether someone impersonated a federal agent and illegally shared grand jury materials.
Imagine if the most significant charges to come from this effort are against the investigators themselves.
At some point, one has to wonder whether the Justice Department will fear this leading to a succession of embarrassments for it and the administration. Because that’s the trajectory this is on.
Some DOJ officials appear to have tried to warn Trump that this wouldn’t work out. But he seems undeterred, at least so far.
