'If You Can Keep It': Grand Juries And The Justice Department

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Since the start of his second term, President Trump is smash in the Department of Justice into a tool he can wield against. his enemies. Here's an exchange between a reporter and the DOJ's acting attorney general, Todd Blanche, in April. President Trump has made no secret of the fact that he wants to see his perceived political enemies prosecuted. So now that you're in this position, how are you going to balance that relentless pressure with this administration's promise to end the weaponization of this department? First of all, we have thousands of ongoing investigations and prosecutions going on in this country right now. And it is true.

that some of them involve men, women, and entities that the president in the past has had issues with and that believe should be investigated. That is his right, and indeed it is his duty to do that. So far, Trump has installed his personal lawyer as the top official. He's called the ranks of career prosecutors at the DOJ, and he's pressured U.S. attorneys into bringing cases against people he considers political enemies. In recent months, grand juries have acted as the last line of defense, against the full weaponization of the justice system, refusing to indict in cases where the government hasn't shown probable cause

that a crime has been committed. And as federal judges re-examine cases, some are uncovering instances of misconduct from the government's lawyers. The grand jury system was designed as a central piece of our democratic justice system as a check on the government's power to prosecute. I'm Jen White. You're listening to the 1A podcast. For the latest installment of our weekly politics series,

if you can keep it, We ask, what do recent high-profile grand jury proceedings tell us about accountability at the Justice Department? We'll answer that question and more right after this short break. Stay with us.

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just as they've done for 40 years. Because clean air, clean water, and a healthy climate aren't political. They're fundamental. Learn more at selc.org. This message comes from NPR sponsors. Charles Schwab with its original podcast On Investing. Each week, you'll get thoughtful, in-depth analysis of both the stock and the bond markets. Listen today and subscribe at Schwab.com slash on investing or wherever you get your podcasts. Welcome back to the 1A podcast. Let's get into the conversation and meet our guests. Joining us from Pennsylvania is John E. Jay Jones III. He's the president of Dickinson College. He's also a former chief judge of the U.S. Middle District Court of Pennsylvania.

John, welcome to 1A. Great to be with you. Also with us, Barbara McQuaid. She's a law professor at the University of Michigan Law School. She's also the former U.S. attorney for the Eastern District of Michigan and the author of the forthcoming book, The Fix, Saving America from the corruption of a mob-style government. It's out tomorrow. Barbara, welcome back to the program.

Thanks very much, Jen. Good to be with you and Judge Jay Jones. And with us in studio is Mike Fox. He's a legal fellow at the Cato Institute's Project on Criminal Justice. That's a libertarian leaning thing tank. Mike, welcome to the program. Thank you, Jen. Good to be with you and the other distinguished guests.

Well, we want to hear from you, too. If you've been on a grand jury before, what did it teach you about our legal system? And if you haven't, what actions or policies do you think would help shore up the public's faith in the Justice Department? Email us at 1a at wamu.org. Well, I don't know how many people really have an experience with the grand jury. So let's start with how that system works. Mike, what is a grand jury?

Yeah, so in the federal system, the Constitution, the Fifth Amendment, grand jury clause says that if you're charged with a felony, you have a constitutional right to a grand jury. I would also explain, so I was a state public defender in Colorado. Some states require the use of grand juries. Others do not. We did not use grand juries at all in the jurisdiction where I practice in public county Colorado. But in the federal system and in the states that do use grand juries, what the idea is is you have a body of citizens in the federal system. It's to prevent cases that lack probable cause from ever moving forward. And that is important because historically it's been said grand juries can indict a ham sandwich.

And we've seen that. We see all these cases just going through, going through, going through. And now we're starting to finally see grand juries act as the framers envision as this bulwark against injustice. And they're saying no. And that is exactly the way the system is supposed to find. Well, and John, how is a grand jury different from what's known as a petite jury, which is probably what people are more familiar with? Well, the grand jury, as Mike very cogently explained, is consistent between 16 and 23 people.

And essentially, the duty of the grand jury is typically to hear the evidence that the government has. They would generally not hear evidence from a target or from the defense and decide whether there is probable cause to believe that a crime has been committed. So the standard is lower, but there's still a standard for them to make a determination. And if they find that when the U.S. attorney presents the facts to them, then they issue what's known as a true bill, which is an indictment of a person or persons for crimes. That doesn't mean that they're guilty. It just simply means that they're guilty.

they're going to be charged through the work of the grand jury, hold into court, and then they either end up pleading guilty or they have the opportunity and the full right, the constitutional right to go to trial. So the pedigree that you're talking about is the ultimate determiner of guilt or innocence. And, of course, that standard is beyond a reasonable doubt. Barbara, what role do federal prosecutors play in presenting a case to a grand jury? Well, federal prosecutors have kind of a dual role at the grand jury. They're both an advocate for their case, presenting evidence and asking the grand jury to return an indictment, but they're also the legal advisor for the grand jury. And that's where this presumption of regularity comes into play that we are seeing some judges' finding perhaps is no longer to be applied to the Justice Department. One of the things a prosecutor will do, for example, is to advise the grand jury of the elements of the offense. They are there to answer any legal questions that might come up.

It may be that the grand jury wants to know the legal definition of something. And that's where I think we have seen some of these issues come into play where judges have found improper conduct by members of the grand jury when they're improperly vouching for a witness, for example. When they are serving in that role as legal advisor, prosecutors are trained to keep it straight, to answer the questions. If there is something that is harmful to your case, case, you have to front that. And so that is part of being an officer of the court to handle that job objectively. Well, it's important to note that grand jury proceedings are private, meaning there's no judge or defense present during the hearing. So, John, what role do judges play in this

process? The judges have, Jen, oversight responsibility for the grand jury. And generally, not much happens with that oversight responsibility day to day as the grand jury. jury does its work. You end up taking the returns from the grand jury, which would be the true bills that are handed up typically by the U.S. attorney and the foreperson of the grand jury. Occasionally, there are instances where a judge gets involved when the grand jury is requesting information through subpoenas or other methodology, but those are fairly routine. However, what we've seen recently, as Barbara alluded to, are improprieties so grave that judges have had to get involved in very unprecedented ways. We had an instance in very recently in Illinois where April

Parry, the U.S. District Judge absolutely had to go back and have a grand jury transcript unredacted where it appeared that the United States Attorney was trying to cover things up. that took place in the grand jury room. Similar situation in Wyoming. As Barbara mentioned, you can't vouch, meaning you can't characterize the testimony of witnesses, you know, one above another and their credibility. We had in Wyoming, if I recall correctly, a United States attorney literally handing out his business card to grand jurors and telling them that they could contact him if they

had any questions. These are really bizarre things that speak to at minimum a lack of professionalism and at most grossly inappropriate behavior. We'll dig more into those cases a little later. But Mike, what role do prosecutors play in determining who serves on a grand jury? Yeah, well, so that's a great question. So just to clarify, we're talking about grand juries now, not pettit juries. Prosecutors don't play a role. And that's precisely the issue that we're seeing, right?

It's supposed to just be whoever happens to get grand jury services serving. And the problem that we've seen from what I understand in this case called the Broadview Six, which is a case came out of Chicago from Operation Midway Blitz. The government alleged that a number of people tried to box in an ICE vehicle outside the Broadway detention facility. And they prosecuted six people, but they ultimately dismissed charges against two, kept for going. And from what I was able to ascertain, it seems like the government, by i.e., the Department of Justice, was trying to curate the grand jury pool, meaning if they got me or someone who didn't trust the way the government was operating or didn't like what they were doing, they would just get rid of me, which, in other words, gives them a number of people who are what we would refer to as trained circus seals for the government. They're just going to do exactly what the corrupt U.S. attorney wants.

And that is how I believe they ultimately got an indictment after three times of manipulative. the process. And I think that's the reason that Judge Perry ultimately got involved, which led to the dismissal with prejudice. And dismissal with prejudice is like that rarely happens. It makes me wonder, then Barbara, since grand jury proceedings happen privately, what irregularities might prompt a judge to look under the hood and even go so far as to dismiss a case outright? It's very rare, Jen. Part of it is the separation of powers. and respect for the executive branch to bring cases, there is a portion of the grand jury transcript that is routinely turned over. That is the witness testimony.

That gets turned over under court rules so that the defense can engage in a meaningful cross-examination of any witness who takes the stand at trial. But it's that colloquy between the prosecutor and the grand jury that ordinarily stays secret. And part of the reason for that is that it may be, there are related

investigations that are being discussed during that colloquy that are not part of this case, things that should be kept secret to protect the integrity of those investigations. And so it requires a showing of irregularity before the court will even look at those transcripts. In my 20 years as a federal prosecutor, I can't remember a single time when a judge looked under the hood to read those transcripts of that colloquy between the prosecutor and the grand jury. it would require a showing of something that so disturbed the judge to believe there was some irregularity to take a look at it. Well, let's pause here.

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Let's get back into the conversation. We're discussing the use of grand juries and the Justice Department under the second Trump administration. Dennis emails several years ago I served on a grand jury in Montgomery County, Maryland for three months. Every Wednesday from 9 a.m. until we were finished, sometimes into the night, we heard every felony for that week. Mostly drug-related, but a few murders in government corruption cases. The drug cases were rarely ever found to be unindictable. We never heard from defense attorneys, and the prosecution often embellished the charge. Only police officers were there to speak other than prosecutors. We used our subpoena powers once, but overall everything was a rubber stamp, very interesting and eye-opening, on how the system works. Well, at least three times since November, federal judges have accused federal prosecutors of misconduct. Most recently, as we noted, in Chicago, where six people protested outside an immigration detention facility in Broadview, Illinois. Four of them were expected to face charges of interfering with and conspiring to interfere with a federal agent. But a Chicago judge dismissed that case last month, citing federal prosecutor's misconduct and several grand jury errors.

Barbara, this is a good place to pick up our conversation. what did the judge say the prosecutors did in that case? Well, there were several examples of misconduct that the judge found in that case. One was improper vouching for the witnesses. That is to say, you can believe this person for reasons that have not been presented to you here in the grand jury room. There was also an instance of dismissing, as Mike discussed earlier, some of the grand jurors that they thought were unfriendly to the government's case. that is not a common practice. And then there was also conversations with individual grand jurors outside of the grand jury room. That is an absolute no-go. The things you discuss about the case

should occur only on the record in the grand jury room where everything you say is transcribed. And then what the judge found was most egregious about all of those things is when she asked for a copy of the transcripts because of concerns raised by the defense. the prosecutors initially had redacted the portions that would have revealed these examples of misconduct. She then asked for an unredacted copy, and what she said was what she was most alarmed by was the effort to cover up these acts of misconduct. And so I can't emphasize enough how unusual it is to engage in that kind of misconduct. prosecutors get training. There are policies and people go in as teams. I have seen many of my fellow prosecutors go in and prosecute a case. We're acutely aware that every word we speak is being

transcribed on the record and could be reviewed by a judge. But in most every circumstance I was ever in 20 years, we were scrupulously careful to avoid putting a thumb on the scale. The standard is only probable cause, just an effort to determine that there's sufficient evidence here to go forward. It's not something we've made up. It's not politically charged. There are facts here. And later, it will be tested through the adversarial process with motions and with a jury trial and with cross-examination. But to just get past that initial probable cause stage, it is essential that prosecutors present the evidence in the case. And I'll tell you, it isn't just because you want to do things ethically and properly, though one hopes that you do. But you also want to battle test

your case. You want to stress test it. Are there problems with this case? And if so, I'll pull the plug now rather than go through all of the time expense humiliation for a defendant of a trial if this case is a non-starter. Or if the grand jury tells me they would like additional evidence about some aspect of the case that they find weak, let me go get that and bring it before the grand jury and see if that satisfies. Well, it helps you find where there may be weakness in the case outside of the ethics. But, Mike, when we're talking about things like talking with individual grand jurors about the case outside of the courtroom or removing dissenting jurors from the proceedings, was this type of conduct happening before the current administration?

Is there evidence that this is new? Yeah. So, you know, as Barbara said, I'm sure it has, but we don't know because all of what happens, mostly at grand juries, operates sort of behind a shroud of secrecy. So my guess would be, of course, it has probably on a lesser scale than we're seeing now. But a lot of what's been going on in the Trump Justice Department isn't new. It's just escalated. It's taken on new priority, new, you know, increased vigor, increased likelihood. But I would be shocked if these things hadn't happened in the past. And to get into why these things can happen, it's because there is absolutely zero way to hold prosecutors or any federal officials accountable. So they have every incentive in the war.

world to be unethical and engage in illegal conduct to the extent that they don't have, you know, an ethical moral compass telling them to do the right thing. Well, when you say there's no ability to hold them accountable, I mean, there are things like law licenses that can be taken away from people if they're acting outside of ethical norms. So is this just because there is not enough transparency around the process? It seems like there's some accountability built in. Yeah.

So that's a great question. So as far as, you know, internal accountability, the Justice Department has this office called OPR, the Office of Professional Responsibility, which I've referred to as a veritable graveyard where complaints of prosecutorialized conduct go to die. Largely what happens, they publish their reports annually that give no identifying information at all. They have no meaningful discipline mechanism. No one knows who these prosecutors are. The better way to hold them accountable would be to sue them personally, seeking civil damages. You can't do that because there's no statutory remedy to sue federal officials. And prosecutors, all prosecutors, state and federal have absolute immunity.

So even if you could sue them, they would be immune. So the case would be, would not get very far. And your question about the state bar, sure, state bars can and absolutely should disbar federal prosecutors when they engage in misconduct. The problem is they largely don't. It's been a, you know, grandfile or what do you call it, unofficial practice that they sort of refer to OPR, but now we've seen, and I wrote a comment to the Justice Department with my colleague, arguing against this rule that wants to codify that longstanding practice, which basically would

ask the state bars to wait until OPR does their investigation, at which point OPR will say, well, we don't have any findings. We have nothing for you. So back down. So largely, there is really no way at all to hold prosecutors accountable. I would make one very minor note. So one of the prosecutors in the Broadview Six case was detailed to Senator Dick Durbin's office through the Judiciary Committee.

When that came to Senator Dick Durbin's attention, to his credit, he immediately removed her from his office. However, she's not an employee of Senator Dick Durbin. She's an employee of the Justice Department. And to my knowledge, she's still employed by DOJ. Well, John, is there a role here for judges to play in holding prosecutors accountable when they find that they're active? outside of ethical norms and standards? Not only is there a role to play, but I think judges are playing that role.

I might respectfully disagree with my co-panelist. Mike, I think my experience over 20 years in the federal bench is that U.S. attorneys, assistant U.S. attorneys conducted themselves with great rectitude and professionalism. Look, you know, you had fights in prosecutions occasionally when there was something that came up about not turning over evidentiary materials and things that happened post indictment. But I have never seen the kind of impropriety that we're seeing in front of grand juries ever in the time that I've been in the law. I don't think this is the norm. I think to the extent that it's happened before, and Mike is kind of making an assumption

it may have happened before, I think that they would be outliers. And I attribute it to a couple things, and judges are now watching this very closely. On the one hand, you have enormous pressure placed on United States attorneys and assist the United States attorneys to get indictments, regardless of whether or not, and this flies in the face of prior procedures in the Justice Department, regardless of whether or not there's reason to believe that they could get a conviction. Sometimes it is the process that is the punishment. And that seems to be the mantra of this Justice Department. They don't care necessarily whether somebody's going to be convicted as an endgame. They do care whether they're put through the trauma of being indicted and having to fight their way out

of the indictment in court. And the other thing is, this is amateur hour. You're getting U.S. attorneys, think Lindsey Halligan, for example, who have absolutely no experience. As Barbara said, typically they're very well trained, going into the grand jury rooms and doing things like misstating the law and grand jury procedures because they're doing the bidding. And I have to be blunt here of a benefactor who simply wants somebody to get indicted. So judges, I think, are hypervigilant now in a way that they haven't been about grand jury and proprieties. It never occurred to me during the time I was on the bench that a grand jury transcript would be redacted, you know, by U.S. attorneys to hide something, things like that, talking outside the room,

as Barbara said. So I think this, I think we're in a new age here and not a good one. Well, this brings up this principle called presumption of regularity. For more than a century, it's given the government a major advantage in court. And I'd love for you to just explain that briefly and how that fits into this discussion? Well, the presumption of regularity is that people are going to play according to the rules to be perfectly blunt. And it also includes the duty of candor to the court and being honest. And we're seeing that violated again and again.

That's a big problem. And you see that when these grand jury issues bubble up and turn into brawls in the courtroom with the presiding district judges. because quite honestly, and I know this from my former colleagues, it's hard to believe, but in a year and a half of this administration, generally the credibility of lawyers working on the line for the Department of Justice has been completely eviscerated because of just lies that they've told to judges again and again. And that, again, flies in the face of the presumption of regularity.

And the system, you know, when that goes haywire, as my co-panelists know, then the system can't work the way it's supposed to. Marcia emails, I was the chair of a county grand jury in Cuyahoga County, Ohio. What impressed me was the integrity and intelligence of the prosecutors and the careful, responsible way the jury members discussed cases. Several cases were presented each day. Sometimes it was clear to us that prosecutors weren't pushing an indictment, but we did not true bill every case, no matter how the prosecutors, presented a case. We'd love to hear from you. If you've served on a grand jury, what was that experience like? Email us at 1A at wamu.org. Barbara, I just want you to take us inside the DOJ for a moment, because if there is pressure from the DOJ for attorneys to push certain cases forward, and then they

present us to a grand jury, see their work checked, if you will, by that grand jury, and or a judge. I mean, it seems like the attorneys here are caught in a difficult position that they're being pressured by the DOJ to move forward with cases that perhaps don't have enough evidence to get an indictment. Are you hearing from any colleagues or former colleagues who are describing what it's like inside that agency right now? Well, nothing other than what we're seeing in the public, in the public arena. And certainly we have seen the departure of a number of lawyers from the Justice Department. Of the 10,000 lawyers who ordinarily work at the Justice Department, 3,500 have left since January of 2025, whether through terminations, retirements, or

resignations. That's very unusual. Working at the Justice Department has always been considered a wonderful place to work. It's highly selective. People who, who go work there, you know, some leave to pursue greener pastures in terms of compensation, but many stay for their careers because they are such good jobs. I can't imagine what it must be like to feel pressure to indict a case from higher-ups. There was absolutely no effort to do that whatsoever when I was there. And I served through multiple presidential administrations, Democratic and Republican. And although the priorities may have changed, some president said we want to focus more on violent crime. Others said we want to focus more on financial

fraud. That's fine. And we focused resources on those things. And we were in alignment with the investigative agencies who would focus on those things and we would bring those cases. But there was never any conversation about any particular case, any individual case. Prosecutors reviewed those. And there is something called the principles of federal prosecution. It is part of the justice manual, the policy manual of the Justice Department that helps prosecutors understand how to exercise their discretion. And some of the cardinal rules are number one,

partisan politics may never play a role in bringing a case. And even though the standard before a grand jury is only probable cause, a prosecutor should not bring a case unless they believe that it is probable that the evidence is sufficient to obtain and sustain a conviction. That means able to prove it

beyond a reasonable doubt at trial and to win on appeal. So that standard seems to me that has been lowered in the current administration. If we've got what we're seeing in the Broadview Six case, in the James Comey case, in the Letitia James cases, where we've got evidence based on what's been revealed occurring before a grand jury, where there is an effort to go after people who are President Trump's political rivals and where he has directed the Attorney General to return these indictments. It's a very different Department of Justice than the one I served in for 20 years. Mark in New Orleans emails, I served as a four-person on a federal grand jury for 18 months

during Trump's first administration. The career assistant district attorneys were very professional and it was regular practice that when we asked questions, they would do more investigations and come back with a stronger case. However, we did have a case. that was clearly pushed by the DA of that district as it involved a client of his private practice. We all knew it was a favor case and it was eventually exposed and blew up. It wasted over eight months of our time and was a stain on the process. We have to take a quick break, but when we come back, more from you and our guests. Stay with us.

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So listen to the Fresh Air podcast from NPR and WHYYY. Welcome back to the Wen A podcast. Now, in May, a panel of three federal judges in Wyoming throughout indictments against nine people. That's after a deeper look into the grand jury proceeding showed that Trump appointed U.S. attorney Darren Smith exhibited, quote, deeply concerning misconduct. The charges included murder, firearm possession, and drug distribution, among others. The state has since refiled those charges after a new grand jury re-indicted the defendants. Defense attorneys were seeking to dismiss the original cases after the federal prosecutor told the grand jury that defendants were, quote, bad guys and murderers, among other comments.

Court records also show that during a break in the presentation, Smith handed out his business cards to members of the jury and invited them to reach out to him. Now, three days after the cases were initially thrown out and the Wyoming court filed an order about Smith's misconduct, he was confirmed by the U.S. Senate in an in-block vote, which groups together different companies. and here's what Rhode Island Democratic Senator Sheldon White House said about his confirmation. This guy should not be a U.S. attorney. And his confirmation should certainly not have been slipped in without disclosure of this order into an unblocked confirmation vote. I think the Senate was misled by that. Smith, the U.S. attorney in Wyoming, who presented the cases to the grand jury,

was given a clean slate after the findings of misconduct, which allowed him to refile the cases. and present them to a new grand jury, which again chose to issue new indictment. Mike, defense attorneys for these cases wrote in their motions to the court that the clean slate, quote, inadvertently rewards the United States Attorney's Office for an institutional cover-up. What's your read? Yeah, I think that's exactly right. I mean, I would have liked to have seen these cases. These indictments have been dismissed with prejudice, just like the ones in Illinois.

I understand they're more serious cases that probably weighed into it. But at the end of the day, that really shouldn't matter, right? the prosecution has a job to do, they have to do it ethically and follow the law. I would also note, I'm a former Senate committee staffer. I handled nominations on the Hill. And the advise and consent power the Senate has is supposed to be really, really an important power. And the idea that this gentleman, Darren Smith, was confirmed, is laughable.

And look, we shouldn't be doing nominations in block. We should be voting up and down every single person. If people don't want to do their jobs as a senator, then resign and find someone who will. but I also think I don't agree with Sheldon White House that the Senate was misled. There's nothing stopping senators from just voting no and block. You could put a bunch of people. You could put nine people who I love and agree with and add him. And I'm voting down all 10 of them because that is the way we are supposed to operate.

And the Senate, advise and consent power is supposed to be a check on misconduct. And instead, it's what I like to refer to as check party affiliation and vote, meaning that If you're a Republican and the Republican nominees, you always vote yes. If you're a Republican and they're Democrats, you always vote no. And it historically wasn't like that. That's sort of become a recent phenomenon, and it's really not good. Well, John, ultimately, the panel of judges in this case had the final say and whether the government would be allowed to refile the cases. And they chose to allow it.

What factors do you think they were weighing in making that decision? Well, it's a new grand jury. And I think under the circumstances, giving them a number. other bite at the apple was probably not the necessarily the wrong course. These are fact-specific inquiries. The problem here, though, the overarching problem is, is that, you know, you have ill-qualified people. And as, you know, my co-panelists know, generally, you know, U.S. attorneys come and go. They're appointed by presidents. They get confirmed or not, as the case may be. and they serve, you know, essentially during the A president's tenure, they leave and somebody else gets appointed.

Most of them don't go into a grand jury room. They just don't. They rely on the line prosecutors to go in the people who are professionals and really know the business well. You know, I have to question, you know, what's happening here? You know, is it showboating by U.S. attorneys? Is it pressure coming from Maine Justice, you know, to secure indictments? Is it just stupidity? You know, when somebody goes in and, as in this case, basically drags in sort of allegations about past behavior that they're murderers and so forth, this is like amateur hour.

And, you know, that's one of the problems here that we're seeing is that we have ill-equipped people, as I mentioned Lindsey Halligan before, you know, who are going in and presenting these cases. is this isn't the first time we've had perhaps not the best qualified U.S. attorney getting confirmed for better or worse, but generally they lean on their pros in the office. So that's a curious aspect of this case. Well, we got this email from Stephen who says the cliche about the grand jury being willing to indict a ham sandwich tells me that the process has been flawed for a long time. Why was it never fixed early on? And I'd love to hear each of your thoughts about it because it does raise this question of whether or not, the system worked as well as it was working because it did rely on people acting in good faith. And that when you remove that element, if you remove that assumption that people are acting in good faith,

that that sometimes exposes where there are weaknesses in our system. And Michael, come to you first because I think you shared the ham sandwich analogy first. Your thoughts? Yeah, so I actually wrote about a man named Sean Dunn, who was a former DOJ, who threw a sandwich at a Customs of Border Protection Officer last summer. And I believe three grand juries. I don't know if it was three separate grand juries or the same grand jury three times, declined to indict him.

So DOJ charged him with a misdemeanor and ultimately couldn't prove their case beyond a reasonable doubt and he was acquitted. There are numerous instances that I can talk about, a woman named Sidney Reed, who the government lied about her conduct. So these are where the government couldn't indict. So, I mean, I don't like the way the process works, which controlled by prosecutors and operates sort of in a shroud of secrecy. You know, there's multitude of reasons that I'm never going to be in Congress. But, man, if I could get to Congress, at the very least I want an Article III judge, an impartial judge, sitting over and watching the grand jury proceedings.

I'd even be open to letting defense counsel in there, right? There has to be some type of supervision. But even perhaps more importantly, is just this idea of holding process. prosecutors accountable. If Congress were to pass a bill, and actually we're talking about Sheldon White House before, Sheldon White House has a bill called the Bivens Act that would allow lawsuits against federal officials. That would be wonderful. Of course, that bill doesn't get rid of immunities. So the prosecutors would still have absolute immunity. So we need to get rid of that as well. But if we could break in and hold them accountable the same way you would

hold a doctor accountable who misdiagnoses someone, we'd make so much progress. I want to share this from Rick. He's the senior capital. correspondent for Michigan Public Radio who emails it might be useful to talk about prosecutors' unique responsibility, not just to vigorously pursue their case, but to ensure justice. Defense attorneys are expected to work on behalf of their clients. Prosecutors work on behalf of the people. If they come to the conclusion mid-trial that they've got it wrong, they have an ethical responsibility to drop the case. Barbara, just a little extra context there for this question of whether or not there are just basic reforms that would help the grand jury

process work more effectively and to the benefit of the American people. Yes. So, of course, prosecutors' job is to represent the people, federal prosecutors, the United States of America. Their job is not to secure convictions, but to see that justice is done. But like so many things that President Trump touches, everything Trump touches is destroyed. I worry that he has destroyed the grand jury system as we knew it. It is enshrined there in the Fifth Amendment as a protection for the public. And of course, the goal isn't to decide whether people are guilty, simply whether there's probable cause to take them to the next stage. But as we have seen here in the Trump administration, this DOJ, it seems to be this effort

of what Ed Martin, the former interim U.S. attorney in the District of Columbia, discussed as name and shame. I'm just going to punish you by indicting you even if I don't believe I have the evidence to obtain and sustain that conviction. So do you think there are certain reforms to my point about additional transparency? Your thoughts? Yeah. Now, it might require a constitutional amendment because of the separation of powers. However, I think there are things we could do.

One, for example, is, as he suggests, having a neutral court-appointed person in the courtroom to oversee the proceedings. If we can't trust prosecutors anymore to act as officers of the court, having someone there, whether it's an Article III judge or an employee of the court to serve as that legal advisor so that the prosecutor's focus is on their role as an advocate and there can be a neutral who is there to provide legal advice. I think we could require a higher standard of probable than probable cause of perhaps clear and convincing evidence. Andrew Wiseman, my former colleague, made that point in the New York Times recently. I also think that if we're talking about amending the Constitution, we could do what 42 states have now

done, 32 states have now done, which is to eliminate the grand jury and instead hold these kinds of hearings in public at a preliminary exam. Now, of course, that ignores the fact that the grand jury serves not only as a shield, but also as a sword, because one of the values of the grand jury is the ability to investigate cases in secret by giving people the secrecy to feel empowered to tell the truth when they might be fearful of the target of an investigation. So I think there are things that we could do to improve the way the grand jury works today, but it's a shame that it's come to this in the Trump administration. John, your thoughts. Well, I agree with my colleagues. I think that there are ways that we can

reform the process. I like the Weissman solution in particular that Barbara mentioned, which is the higher standard. I think that's probably something that we could look at that would be very much useful in the, you know, in grand jury practice. But I agree with Barbara that it's sad that it's come to this because, you know, we depend on the integrity, as I said earlier, and the professionalism of the United States attorney. And, you know, yes, it's easy to indict people. But generally, the United States attorney doesn't want to lose.

They don't want to lose cases. So they're not going to, in the normal course, we'll go back to the presumption. regularity, they're not going to want to just willy-nilly indict people so that they get their heads handed to them at the time of trial. That doesn't really work. Well, except for now. And as I alluded to earlier, you know, it's, well, name and shame, as Barbara said, or the process is the punishment. I don't think they care whether they get convictions at this point. I mean, does a reasonable observer think that James Comey's going to be convicted for photographing seashells? You know, I doubt it. I doubt it, but they managed to get that through a grand jury, you know, just to put him through the process.

And that's where we have a problem today. The here and now is what worries me. Yeah, there's reforms we can consider, but all of them require a big lift. We've got such a paralyzed political system at this point. Good luck with that. We're speaking of former federal judge John E. Jay Jones III. Barbara McQuaid, law professor at Michigan Law and Mike Fox with the Cato Institute. Winfred listening on WTSU and Alabama emails, I was on a grand jury in Monday,

Montgomery, Alabama. I served as faithfully as I possibly could every day for about two to three weeks. My take is that all the jurors are at the absolute mercy of the DA. It is solely up to the jurors and our very limited knowledge of the law to make decisions that will make or break someone's life. There were some absolutely frivolous cases that we threw out. What disturbs me the most is how uneducated most people are about everything. Most jurors never asked any questions, never asked for more information. They just accepted whatever the DA said. I don't have a salute. but somehow we've got to do better as a society. And Kathleen in Texas emails, I recently wrapped up my first experience serving on a grand jury.

I found the DA and her team professional in presenting cases to us. The cases were mainly drug-related with a few domestic violence cases thrown in here and there. I never felt pressure to indict anyone. In fact, from the first day of my jury service, the DA told us that she was in no hurry to fill up her docket with unnecessary cases. She said that she only wanted to push her the cases that were solid and clearly could be processed. She wasn't looking to rack up unsubstantial indictment. When we had questions regarding a case, DA and her team quickly were quick to explain the details of the case to clarify any confusion. So very different experiences there.

But briefly, and the minute we have left, we focus, if you can keep it on the latest political news and the stakes for our democracy. Mike, briefly, your thoughts about the stakes here. If judges and grand jurors lose faith in this process, what does it mean for our democracy and the public as well? Yeah. So thankfully we are starting to see judges and grand jurors push back. But in about 30 seconds, I just want to add jury trials, pettit juries, like the juries that decide whether someone's actually guilty of a crime, we've been lied to and told that all

those juries can do is decide if the government meets its evidentiary burden when the truth is those juries have also an obligation to prevent injustice. So when they get cases that they think are politically motivated, vindictive, select, things they think shouldn't be against the law or cases where there are someone's being prosecuted by a statute that shouldn't reach that conduct. Those jurors have an obligation to acquit regardless of what the evidence says. And if we keep judges, grand jurors, and jurors all fulfilling their constitutional obligations, I think we can push back and we can fight not just against Trump's DOJ, but against any other

who tries to go that route. Barbara, briefly, your thoughts in just a sentence or two? I think it's a shame that it's come to that, that we can no longer trust the presumption of regularity with the Justice Department lawyers. But we do have the ability to fix it. I think some judicial review of transcripts or presence in the grand jury room would give citizens the comfort that they need that the system is fair. And very briefly, John, the stakes here from your perspective. Numbers don't lie. And Barbara cited them earlier.

We're down thousands of people in the Department of Justice, one of the most coded positions in the federal government. and nobody wants to do it today or very few want to do it, and that speaks volumes. Well, that's John E. Jay Jones III. He's the president of Dickinson College. He's also a former chief judge of the U.S. Middle District Court of Pennsylvania. Also with us, Barbara McQuade, law professor at Michigan law and former U.S. attorney. Her new book, The Fix, Saving America from the corruption of a mob-style government, is out tomorrow, and Mike Fox, legal fellow at the Cato Institute's project on criminal justice. Thanks to you all. Today's producer was Lauren Hamilton.

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