In the past month or so, federal prosecutors in Washington have been repeatedly embarrassed as nearly a dozen grand juries have rejected their efforts to secure indictments against people caught up in President Trump’s plan to use federal troops and agents to crack down on local crime.
As unusual as all of this has been, there was a new and even more unusual twist to their setbacks this week: On Monday, a magistrate judge pre-emptively refused to accept an indictment after learning that prosecutors had performed what he described as an “end run” around the normal course of justice. After failing to secure an indictment from a federal grand jury, prosecutors took the federal charges to a local grand jury, which returned an indictment.
In a scathing order filed in Federal District Court in Washington, the magistrate judge, Zia M. Faruqui, told prosecutors that he had never heard of such of thing, saying that what appeared to be an example of grand jury forum shopping had broken “decades-long norms and the rule of law.”
“At a minimum, this is very unseemly,” Judge Faruqui wrote. “More than likely, it is unlawful.”
The U.S. attorney’s office in Washington did not immediately respond to a request for comment.
Judge Faruqui, who once worked as a prosecutor in the office, has had extremely harsh words for his former colleagues several times in recent weeks. He has accused them of overcharging people ensnared in Mr. Trump’s local crime initiative and bowing to pressure to bring criminal cases at the expense of protecting defendants’ legal rights.
But the judge appeared to be particularly shocked by the grand jury switch-up, saying it had further eroded the traditional bonds of trust — known in legal jargon as the presumption of regularity — that courts have long conferred on government lawyers.
“This only deepens the growing mistrust of the actions of prosecutors,” Judge Faruqui wrote. “That is a sentiment that was once unthinkable, but the irregular is now the regular.”
Grand jury failures have occurred not only in Washington, where Mr. Trump has deployed the National Guard alongside a large number of federal agents, but also in Los Angeles, where he has used both troops and agents to help with immigration arrests. An influx of federal forces is now set to arrive in Memphis, raising questions about whether it, too, could result in similar problems with grand juries returning indictments against defendants caught up in the surge.
His rebuke came in the case of a man named Kevontae Stewart who was arrested on Sept. 17, after local and federal authorities approached him as he sat in a parked car on Forrester Street in Southwest Washington and smelled what they described as “the odor of burnt marijuana emanating from the vehicle,” according to a criminal complaint issued in the case.
When the officers asked Mr. Stewart to get out of the car, he immediately took flight, dropping a black pistol to the ground and trying to dispose of it, the complaint asserted. The officers, it said, ultimately caught up with Mr. Stewart and found in one of his pockets a bag containing a substance that tested positive for cocaine.
On Friday, however, prosecutors informed the court that a federal grand jury had declined to indict Mr. Stewart on charges of being a felon in unlawful possession of a firearm. Because of the secretive nature of grand juries, it is impossible to know why the grand jurors did not want to charge Mr. Stewart with the felony weapons charge.
Still, it is extremely unusual for grand juries not to go along with prosecutors and return indictments — or at least it was in Washington until a few weeks ago. But what happened next in Mr. Stewart’s case was, in some sense, even more unusual: Rather than trying to indict him again in front of another federal grand jury, prosecutors took his federal charge to a local grand jury in Superior Court and eventually secured the indictment they failed to get the first time.
Legal experts say that prosecutors have at times used Superior Court grand juries to return indictments on federal charges, but only under exigent circumstances. The practice happened somewhat frequently during the coronavirus pandemic, for example, when it was difficult for members of grand juries to safely sit together on a regular basis.
But Judge Faruqui found the practice highly unusual, especially because the use of the Superior Court grand jury happened only after prosecutors had failed to get an indictment from a federal grand jury.
“Typically, when a federal grand jury refuses to return an indictment in a case, either the government takes the message as a warning to go no further or, hopefully in only the rarest of cases, presents the indictment again to another federal grand jury,” he wrote.
“To this judge’s knowledge, what has never happened before is doing an end run around the federal grand jury completely,” he went on. “Yet that is what has happened today.”
As a curative measure, Judge Faruqui asked prosecutors to file him papers by Friday effectively explaining their actions and telling him whether he even had the legal authority to accept an indictment on federal charges from a local grand jury.