The boy who cried wolf
Every child knows the fable. The boy cries wolf for fun, the villagers come running, there is no wolf. He does it again. The third time the wolf is real, and nobody comes.
The Trump Justice Department is living that fable, and the villagers are federal grand juries.
Grand juries are supposed to be pushovers. New York’s chief judge Sol Wachtler famously said a good prosecutor could get one to indict a ham sandwich. The numbers back him up. In 2016, the last year the Justice Department published the figures, federal prosecutors concluded more than 155,000 prosecutions. A grand jury refusing to indict was the reason for dropping a case exactly six times.
Six, against more than 155,000 prosecutions. So when grand juries start saying no again and again, in case after case aimed at the president’s enemies, something real is going on.
Last Friday, at a hearing on the latest Comey case, Judge Trevor McFadden, a Trump appointee, said it better than I can: “It turns out ham sandwiches are harder to indict these days.”
The scorecard
Last November a judge threw out the indictments of former FBI Director James Comey and New York Attorney General Letitia James. The prosecutor who brought them, Lindsey Halligan, had been unlawfully appointed. The dismissals were without prejudice, so DOJ could try again.
It did. It went back to a grand jury in Norfolk for Letitia James. No. It went to a grand jury in Alexandria. No again.
In February a Washington grand jury refused to indict six Democratic lawmakers over a video telling service members they must refuse illegal orders. Last week another Washington grand jury refused to indict Cassidy Hutchinson, the former White House aide whose January 6 testimony the president has never forgiven.
Then there is Comey. In April a grand jury in eastern North Carolina did indict him, over an Instagram photo of seashells spelling out “86 47”; that case is still pending. Now he has been charged a third time in thirteen months. This time the department didn’t go to a grand jury at all.
The runout clock workaround
The third Comey case is over an alleged 2016 leak, and the ten-year statute of limitations was about to run out. A grand jury might have said no, and there was no time to find out. So in October prosecutors filed a criminal information instead.
An information is a charging document signed by the prosecutor alone. For a misdemeanor, that’s enough. For a felony, the Fifth Amendment requires an indictment unless the defendant waives it, which defendants routinely do in plea deals. Comey hasn’t waived anything. A “waiverless” information can’t take him to trial and will be dismissed. The prosecutor knows that.
DOJ’s theory is that filing the information before the deadline counts as charging him in time. The dismissal will come either from the court or because an indictment replaces it. And DOJ is counting on that dismissal. A federal law serves as a safety net: if a charge filed in time is thrown out after the deadline has passed, prosecutors get six months to bring a new indictment. Comey’s lawyers say DOJ can’t have it both ways. An information that could never be a valid felony charge can’t stop the clock either. In their view, nothing was filed in time, and the case is dead.
It isn’t a settled question. Courts have split on it, notably when prosecutors used the same move while grand juries were shut down during COVID. But if DOJ’s trick works here, any federal felony deadline could quietly get six more months, whenever a prosecutor wants them. Judge McFadden hasn’t ruled, though at Friday’s hearing he seemed to lean toward Comey’s reading.
Either way, DOJ hasn’t escaped the villagers. At most it has bought time, and whether it bought any is now before the judge. Prosecutors are now trying to get a Washington grand jury to indict Comey anyway, and McFadden declined to stop them. He is waiting to see what it does. If it says no, the deadline fight is moot. If it indicts on the 2016 leak, DOJ still has to convince him the information stopped the clock. It has to win twice. Prosecutors hinted at a way around that: they told the judge the alleged conspiracy may have run into April 2017, which could put some charges inside the deadline without the information at all. And the first win has to come from the same courthouse whose grand juries turned the department away twice this year.
Why: the filter was ripped out
The ham sandwich line is half true. Grand juries rubber-stamp because they almost never see a weak case. Career prosecutors kill weak cases inside the building, long before a grand jury hears about them. The Justice Manual tells them not to charge unless the evidence will probably win a conviction at trial, a far higher bar than the probable cause a grand jury needs. The six-in-155,000 number is mostly a measure of that internal filter, not of juror gullibility.
This administration removed the filter. The president publicly said he pushed out the U.S. attorney in Virginia for not prosecuting Comey, and told the attorney general to install Halligan, a former personal lawyer with no prosecutorial experience. Days later she presented the Comey case to a grand jury herself.
There’s a personal reason career prosecutors balk. It’s their name on the indictment, not the president’s. Bar ethics rules forbid a prosecutor from bringing a charge they know is not supported by probable cause, and a lawyer who signs a baseless case risks a bar complaint and the law license that is their livelihood. So an administration that wants these cases has to find lawyers willing to put their own names and licenses on them.
The Hutchinson case shows it in miniature. Lying to Congress is normally a job for the U.S. attorney in Washington, Jeanine Pirro, whose office had already lost a string of these fights. DOJ leaders never offered it to her. They handed it to the Civil Rights Division under Harmeet Dhillon, a unit built to enforce anti-discrimination law. That’s where it died.
When the cases that used to die in a career prosecutor’s inbox walk straight into the grand jury room, some of them die there instead. The grand jury becomes the only filter left.
Why: you can’t pick your jury, and you can’t shop for your town
Trial juries are screened. Lawyers question them, strike the ones they don’t like, and ask what they’ve read. Grand juries get none of that. Names are drawn at random from lists built mainly from voter rolls, checked for citizenship, age, residence and English, and sworn in for a term of up to 18 months. Each panel hears whatever cases come its way. Nobody asks a grand juror what she thinks of the president.
And the government can’t simply shop for a friendlier town. The Constitution generally requires a crime to be charged where it was committed. Testimony to Congress, January 6, a White House aide: that means Washington, D.C., where Trump got about 6.5 percent of the vote in 2024.
Now do the arithmetic. A federal grand jury has 16 to 23 members, and an indictment needs 12 votes no matter how many show up. With 23 in the room, 12 skeptics make an indictment impossible. With 16, five are enough.
These jurors read the news. They know the president demanded these prosecutions by name, on social media, before any evidence was presented. Disliking Trump doesn’t make a juror vote no; the same panels indict drug dealers and fraudsters every week. But a juror who knows the president demanded the prosecution has reason to scrutinize the evidence hard. If the evidence is weak, that scrutiny is enough.
It isn’t only the president’s enemies. Washington grand juries also refused to indict ordinary people swept up in last year’s federal surge, including a man who threw a sandwich at a federal agent. When jurors smell overreach, the ham sandwich gets harder to indict.
The bench is losing faith too
Judges have their own version of the villagers’ trust. It’s called the presumption of regularity: absent clear evidence otherwise, a court assumes government lawyers are telling the truth and acting in good faith. It is why defense claims of vindictive prosecution almost never win.
That presumption is cracking. ProPublica found more than 40 cases since Trump returned in which judges explicitly questioned it, including judges appointed by Republicans. In the Abrego Garcia deportation case, Judge Paula Xinis told the government, “You have taken the presumption of regularity, and you’ve destroyed it.” In one survey of legal experts, only one in five said the government still deserves it; among the federal judges surveyed, just 41 percent.
That matters for the cases still alive. Comey is arguing vindictive prosecution, and the president’s own posts demanding his prosecution are Exhibit A.
The wolf that’s real
The administration has an answer: these are sound cases sunk by partisan juries in deep-blue cities. Venue is real; a D.C. panel is not a cross-section of America, and the one grand jury that did indict Comey sat in North Carolina. But that story doesn’t explain why the government needed an unlawfully appointed prosecutor to bring the Comey and James cases in the first place, or why it is now skipping the grand jury entirely.
None of this means the targets walk away whole. A no-bill, a grand jury’s refusal to indict, can come after months under investigation and legal bills that can run to six figures. For an administration that wants its critics to think twice, the process may be the point. And the audience isn’t only the target. Every official weighing whether to cross the White House is watching what even a no-bill costs. The grand jury can’t stop that punishment. It can only refuse to send the case to trial.
The Fifth Amendment requires a grand jury before any serious federal charge, precisely so citizens can stand between the government and the people it wants to punish. For decades that safeguard looked ceremonial. It turns out it was just waiting for a reason.
The real cost comes later, when this department finally brings a case with real evidence and has to ask citizens to believe a boy who has already cried wolf a dozen times.
Sources
Trump triggers a renaissance for grand juries (2016 DOJ figures)
Washington Post: Comey charged a third time, by criminal information
Philadelphia Inquirer: Survey of legal experts on the presumption