Whether it’s acting Attorney General Todd Blanche or any of the other contenders who wind up leading President Donald Trump’s Justice Department after Pam Bondi’s ouster, the DOJ still faces a crucial hurdle in its effort to use federal prosecution as a weapon on the president’s behalf: Americans.

One of the most remarkable stories of Trump’s second term has been grand juries rejecting some of the administration’s most politicized and meritless attempts to bring criminal cases. That stunning pattern has emerged in the failures to secure indictments against both prominent and everyday people.

We’ve seen it in the DOJ’s failure to secure charges in Washington against Democratic lawmakers who released a video urging soldiers not to follow illegal orders, after which the Republican president accused them in a social media post of “SEDITIOUS BEHAVIOR, punishable by DEATH!” Through their refusal to return an indictment earlier this year, grand jurors effectively said the politicians’ actions should not be punishable at all.

The quest to revive charges against New York Attorney General Letitia James has likewise faltered. The DOJ has appealed the dismissal of charges against her and former FBI Director James Comey, which a judge dismissed due to the illegal appointment of the Trump-aligned lawyer who brought the cases, Lindsey Halligan. The judicial dismissal serves as a reminder of the courts as a bulwark against revenge-based prosecutions, too. 

Everyday people on grand juries have also stood up for everyday people whom the Trump DOJ has sought to charge with assaults on law enforcement officers in Washington, Chicago and Los Angeles. Notable examples include sandwich thrower Sean Dunn, as well as Sidney Reid, whom grand jurors refused to indict a whopping three times. When prosecutors plowed forward to trial on misdemeanor charges against them (which didn’t require grand jury approval), Washington trial juries returned not guilty verdicts.

While prosecutors must clear a high bar at trial to prove charges beyond a reasonable doubt, the failure to get a series of cases off the ground is that much more remarkable, due to the low probable cause standard that governs at that preliminary grand jury stage. Or what is typically a preliminary stage. For the Trump DOJ, the grand jury has been the terminal stage in some big cases.

That so many cases have not cleared that low bar speaks to the lack of evidence that prosecutors are putting before grand juries in politicized cases. If meritorious prosecutions are not politically feasible for whoever will run the DOJ, then expect what were previously seen as rare rejections to continue.

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