Former federal prosecutor James D. Zirin on Tuesday lambasted Donald Trump for failing to clear a legal hurdle deemed so easy by the legal profession that it is the subject of a famous joke.
Writing for The Hill, Zirin said that Trump is coming off of "a bad week" after a grand jury in Washington D.C., declined to level criminal charges against six Democratic lawmakers who took part in a video reminding military members of their obligation to ignore illegal orders. Despite Trump declaring the video "SEDITIOUS BEHAVIOR, punishable by DEATH," in a social media post, the jury found that there was no probable cause to charge the Democrats under a law that targets individuals who "interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.”
Zirin spent three years as an assistant U.S. Attorney in Manhattan years ago, and said that during his time in the office, grand juries had already become somewhat infamous as a "rubber stamp" for the government's legal pursuits. He shared a famous joke about them, which claims that "a prosecutor could get a grand jury to indict a ham sandwich," due to the threshold for an indictment being low and because prosecutors do not have to share conflicting evidence during the grand jury process.
Even with this low legal bar, Trump's administration has, for months now, been dealing with a trend of grand juries refusing to sign off on its desired criminal charges. Former judge Jon E. Jones III called the idea "aberrational" and "unprecedented" in the world of law. Zirin, conversely, said that grand juries have "frequently" declined indictments since Sol Wachtler coined the "ham sandwich" joke in the 50s, even if it is remarkably rare in modern times.
"A grand jury has great power. It is one of the few institutions that can tell the government to go to hell," Zirin explained. "If a grand jury fails to indict, a criminal prosecution cannot proceed. Of course, prosecutors are free to present the evidence again to another grand jury if they do so within the statute of limitations."
He later added: "Although the bar is so low that grand juries almost always return the indictment the prosecutor desires, the Trump administration’s vengeful attempts to harass his political opponents have been so shockingly anti-democratic that grand juries have repeatedly refused to go along."
Both the most recent slate of failed indictments and the headline-grabbing failure to indict a man for throwing a sandwich at a law enforcement official have occurred under the jurisdiction of Trump's U.S. Attorney for Washington D.C., former Fox News host Jeanine Pirro. Her office's escalation in charges has also been accused of clogging the city's court system, with sources close to the matter calling it a "nightmare" and a "real mess" last summer.
