Grand Juries: No Longer A 'Rubber Stamp'

Summary

In our previous Alert on this topic, we discussed an early round of federal grand jury "no-bills," in which jurors declined to return indictments sought by prosecutors. What initially appeared to be isolated outcomes now looks more like the beginning of a pattern. Recent grand jury decisions refusing to indict in several high-profile political matters—including proposed charges against six Democratic lawmakers and New York Attorney General Letitia James—suggest a structural shift in the federal charging process. Taken together, these results indicate that, amid reports of weakened internal Department of Justice (DOJ) vetting for politically sensitive cases, grand juries are increasingly operating as a meaningful check on prosecutorial overreach, filtering questionable cases before a formal prosecution ever begins.

The Upshot

• Public reporting indicates that traditional review channels within the DOJ—particularly the involvement of the Public Integrity p—were bypassed in favor of decisions driven by political appointees. Where internal vetting weakens, grand juries appear more willing to perform that screening function themselves.
• The high historical indictment rate relied on prosecutors killing weak cases internally. By removing the gatekeeper, the DOJ is presenting cases to jurors that likely would have been declined by career prosecutors, resulting in rare "no-bills."
• The reported failures to secure indictments in both Norfolk and Alexandria, Virginia, undermine the idea that recent no-bills are confined to a particular political venue. Juror resistance to legally strained or politically inflected theories appears geographically broad.
• Grand juries are increasingly distinguishing between political disputes and criminal conduct. Where charging theories rely on novel interpretations of political speech, jurors are showing a willingness to find a lack of probable cause.

The Bottom Line

For defense counsel, the pre-indictment phase now presents a real opportunity rather than a passive interval. Early engagement and strategic presentation of exculpatory context may materially influence charging outcomes. In sensitive investigations, waiting for an indictment is no longer the only realistic posture.

Last fall, we examined a cluster of rare federal no-bills and asked whether the grand jury was reasserting its independence. This week's events suggest that question has been answered. The DOJ's inability to obtain indictments in multiple politically charged investigations reflects a recalibration in the balance between prosecutorial discretion and citizen review. The conventional wisdom that a prosecutor could indict a ham sandwich is increasingly difficult to sustain.

That familiar phrase was never an indictment of jurors—it was an acknowledgment of prosecutorial gatekeeping. Historically, federal prosecutors filtered cases through layers of internal review before presenting them to a grand jury. High indictment rates reflected institutional selectivity, not juror passivity. Data from the DOJ's Bureau of Justice Statistics consistently confirms this dynamic: in recent fiscal years (2020–2023), U.S. Attorneys' Offices declined to prosecute roughly 22% to 26% of referrals. The historical 99.9% indictment rate is therefore a product of survivor bias—it reflects only those cases that have already cleared the rigorous hurdles of internal review.

Recent reporting indicates that this gatekeeping function has been effectively dismantled. The Public Integrity p—historically mandated to oversee investigations of elected officials—has reportedly been stripped of its oversight role. The weakening of oversight has produced a predictable structural consequence: legally infirm theories—cases that career prosecutors might have declined internally, including those implicating the Speech or Debate Clause—are now reaching the grand jury unvetted.

These developments are not isolated to a single jurisdiction. The geographic spread of the recent outcomes reinforces this reading. Failures to secure indictments across multiple Virginia jurisdictions undermine the argument that grand jury resistance is a localized phenomenon tied to a particular jury pool.

The grand jury was designed as a buffer between the state and the citizen. For much of modern federal practice, that buffer was largely theoretical—prosecutorial self-restraint performed the same function. With the internal guardrails gone, the constitutional structure is reactivating. For practitioners, the consequence is immediate: the grand jury stage is no longer merely procedural. It is substantive, contestable, and—under current conditions—potentially decisive. With more active grand juries, in the event of an indictment, practitioners should be ready to seek transcripts of presentments to grand juries, as well as potentially seeking discovery of DOJ internal deliberations that may contain exculpatory material.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.