Law enforcement and politics clash in the nation’s capital.

There is strange stuff going on in the District of Columbia courts. A magistrate judge has declined to accept the return of an indictment that the Justice Department obtained from a grand jury in a manner that may be unprecedented but appears (to me, at least) to be legal.

The U.S. attorney for Washington, D.C., is Jeannine Pirro, appointed by President Trump in May as the interim U.S. attorney, then confirmed by the Senate in August. It has been reported that Pirro’s prosecutors have repeatedly been rebuffed by grand juries, which have voted a number of “no true bills” — rejections of charges in indictments — since the president surged federal agents and the National Guard to the city.

I’ve previously explained (in connection with the Trump DOJ’s indictment of Jim Comey) that “no true bills” are unusual. Federal rules allow liberal use of hearsay in grand jury proceedings, the grand jury hears only the prosecution’s side of the story, and the standard for indictment — probable cause — is a low hurdle, particularly compared with the “beyond a reasonable doubt” standard that applies at a criminal trial. And unlike a trial jury, the grand jury need not be unanimous (or close to it) to approve an indictment — there are 23 members, a quorum of only 16 is necessary to have proceedings, and just 12 need to vote in favor of the charges proposed. (At trial, the 12 jurors must vote unanimously to convict.)

The bar is low in the grand jury because the stakes are not very high (though they are not unimportant — the Fifth Amendment requires an indictment for felony offenses). The grand jury is there simply to make sure there is enough evidence for the allegations to be transferred to a trial court; once it’s there, the defendant is showered in all the due process rights of the Constitution and the burden on prosecutors gets much tougher.

New York City was hardly a prosecutor’s paradise when I was there in prehistoric times, but things were less political than they are now. Back then, there was no real difference in how grand juries responded to cases when a Republican administration was in office as opposed to a Democratic administration.

Washington was always a more self-consciously political city than New York, but today it is a progressive haven unabashed in its loathing of Donald Trump. Crime is crime: It victimizes people in the community from which the grand jury is drawn, so one would think grand jurors could check politics at the door and just focus on the evidence presented; but the Trump Justice Department does not check its politics at the door, so maybe that’s having a negative effect.

I’m not there to observe what’s happening (no one is, since the proceedings are secret by law), but it would be naïve to think politics is not playing out in the grand jury room. Trump is president. Pirro is a national figure because of her Fox News tenure and prior career in law enforcement and politics. Of course, the actual cases are being presented, for the most part, by the same line prosecutors (many of them career prosecutors) who presented cases under the prior, Democratic administration. But I suppose Washington’s progressive Democratic orientation could make the grand jurors hostile based on who the bosses are.

Given the number of veteran prosecutors in D.C., I’m skeptical of suggestions that there is a training problem in Pirro’s office (although I stand by what I said in the above-linked post: I don’t understand how prosecutors get “no true bills” given that they can ask the grand jurors if they have problems with the case before asking them to vote on an indictment). I suspect that Washington features nonstop negative coverage of Trump’s deployment of the military and surge of federal agents; there is probably some negative public reaction to what, according to reports, is Pirro’s determination to bring the most severe charges prosecutors can conjure up even if the conduct at issue is not especially egregious. (Example: I would have no qualms about indicting an assault charge against a moron who threw a sandwich at a police officer, but the grand jury refused. Some people apparently saw it as overkill; and let’s not forget that Washington was the site of the Capitol riot — it would not be unreasonable for denizens of the city to wonder why the sandwich slinger was being charged after Trump pardoned hundreds of people who actually injured scores of police.)

In any event, the prosecutors are getting some “no true bills,” and now there is a controversial one.

Last week, the Washington Post reported on the case of one Kevontae Stewart, who sounds like a true model citizen. D.C. police and federal agents deployed in the Trump surge spotted him smoking pot behind the wheel of his Jeep – allegedly, of course. The car was idling but not moving. As the law enforcement team approached, he is said to have tried to flee but fell down and, somewhere along the line, threw a handgun across the street.

Pirro’s office tried to indict Stewart for being a felon in possession of a firearm. That sounds right to me – though, it is freely conceded, I know nothing about the case other than what’s been in the press. For some reason, the federal grand jury refused to indict.

But that’s not the end of the matter. As a number of us at NR have noted, Washington is unusual in that it is a federal city. Its legal system (including the U.S. attorney’s office) handles both of what would be separated into federal and state/local crime in other cities.

In addition to the federal court, where federal grand juries convene, Congress has allowed the city to have a municipal court system with its own grand juries (sitting in the D.C. Superior Court). As I understand the law, federal prosecutors may bring criminal cases to grand juries in either system. And while the federal cases are generally taken to federal grand juries, with the Superior Court grand jury usually reserved for local cases, there is apparently no law that prohibits prosecutors from seeking federal charges from the Superior Court grand jury.

That’s what Pirro’s office did. After they got a “no true bill” on Stewart’s case in federal court, they presented the case yet again, this time to the Superior Court grand jury. The second time was the charm, with the grand jury voting a true bill – i.e., the indictment was approved.

At that point, the prosecutors undertook to file the indictment in federal court. That is a pro forma proceeding, usually so uneventful that it is presided over by a magistrate judge – not a full-fledged Article III judge nominated by the president and confirmed by the senate; rather, a sort of referee with a highfalutin title who is hired by the federal district court to help the judges in various ways that lighten their workloads.

Based on a report in yesterday’s New York Times, Magistrate Judge Zia M. Faruqui has rejected the indictment – i.e., refused to accept it for filing in district court – because the process by which it was obtained seems not to have been used before. That’s not really a good reason for a magistrate judge to theatrically decline to perform his ministerial duty.

It appears that Faruqui is something of a diva. He’s a former federal prosecutor (I learn from an analytical piece he co-wrote at Lawfare), and with the Trump administration now running DOJ, he seems to enjoy tussling with prosecutors over their charging decisions. Is he burnishing his credentials for a judgeship in the next Democratic administration? Gee, I can’t imagine . . .

In any event, what matters most in the law is not whether something has been done before but whether there is a law that says it can’t be done in the here and now. In the coverage, I’ve seen no effort to cite such a law.

Here’s what we can confidently say: There is no double jeopardy prohibition against a subsequent indictment after a first grand jury has returned a “no true bill.” Double jeopardy prohibits a second trial on the same offense, not a second charge.

There would have been nothing improper if prosecutors had tried again with the same grand jury that initially rejected the indictment. And under D.C. law, it appears that the Justice Department could have gone to the local grand jury in the first instance and then filed the indictment in federal court; so I don’t see why there’d be a problem with doing that just because a prior federal grand jury had returned a “no true bill.” Given that there’s no double jeopardy issue, a first grand jury’s rejection, regardless of which grand jury it was, should have no effect on the validity of a subsequent grand jury’s approval of the charges.

Let’s think this through. Again, the Constitution mandates a grand jury indictment to protect an accused from being subjected to a trial unless there is reason to believe he may have committed a crime. That standard seems easily met if the reports about the case are accurate. If there is enough evidence – not to convict, but simply to call for a trial – then we should want the case transferred to a trial court promptly. Why? Because in the trial court, the defendant gets counsel, full due process rights, and an impartial judge. That judge will invite the defense – after it receives all relevant discovery – to make any pretrial motions to dismiss the indictment that might apply. Hence, if there is a fatal legal infirmity in the manner the case was indicted, it will be fully litigated; and if such a defense motion has merit, the indictment will be dismissed.

The magistrate’s transparently partisan “look at me here sticking it to Trump” routine is just preventing that (due) process from proceeding. Faruqui has grabbed some headlines for himself, but he is certainly not protecting the defendant by wasting everyone’s time. If there’s a problem with the indictment, let the actual judge on the case sort it out.