Judge Jeanine Pirro speaking with attendees at the 2022 Student Action Summit at the Tampa Convention Center in Tampa, Florida. (Image: Gage Skidmore / Creative Commons)
President Donald Trump is rumored to be furious and considering firing US Attorney Jeanine Pirro over her decision not to pursue a criminal case against Olympian David Hearn — and her possible attempt to save face could “spectacularly backfire,” according to one legal expert.
“Last week, WaPo reported that a “special grand jury” has been empaneled in D.C.,” Lawfare’s Anna Bower wrote on X on Monday. “Could U.S. Attorney Jeanine Pirro use that grand jury to release a damaging report against Trump’s critics?”
Bower added, “If that’s her galaxy-brain plan, it’s not a very good one.”
In her Lawfare analysis on special grand juries, Bower pointed out that “turning one loose to investigate purported crimes can, on occasion, spectacularly backfire.” A specialized tool created through the Organized Crime Act of 1970 to make it easier for prosecutors to address complex organized crime cases, special grand juries are like regular grand juries in that they both operate in secrecy and are empowered to subpoena documents, require testimony and issue indictments. They are also mandatory to be empaneled every 18 months in judicial districts with over four million people, although they can be used under distinct circumstances in smaller districts as well. Special grand juries can also be convened for up to 36 months, twice as long as regular grand juries.
Perhaps most notably, special grand juries are allowed to issue a public report at the end of their time, which regular grand juries cannot do. According to Bower, this makes them less potent as a political weapon against Trump’s critics.
“Beyond the statutory limitations, the practical realities of this particular special grand jury make the idea of using its report as a political weapon look even less plausible,” Bower wrote. “A report can only be submitted with the concurrence of a majority of the grand jurors. And this is, after all, a D.C. grand jury. Pirro’s office has already had a remarkably difficult time persuading D.C. jurors to go along with some of its more politically charged prosecutions.”
She added, “And the judge who will likely decide whether any report becomes public is hardly a pushover. That task would fall to Chief Judge James Boasberg, who has already had occasion to criticize Pirro’s use of grand jury powers. Earlier this year, he quashed subpoenas issued in Pirro’s investigation of Federal Reserve Chair Jerome Powell, concluding that the government had produced ‘essentially zero evidence’ of a crime and that the subpoenas were issued for an improper purpose."
Overall, this caused Bower to conclude that if Pirro is convening a special grand jury in the hope of pleasing Trump by continuing to pursue his political adversaries, she may be making a serious mistake.
“All of which is to say: If Pirro’s objective is simply to conduct a long-running criminal investigation, a special grand jury may give her a useful tool,” Bower wrote. “But if the objective is to manufacture a public document condemning Trump’s political enemies, the tool looks considerably less formidable. The statute was not written to give prosecutors a mechanism for publishing accusations they cannot otherwise persuade a grand jury to charge.” Ultimately “if you give a grand jury the opportunity to speak, you cannot count on it to tell the story you want it to tell.”