The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Grand Jury Nullification in the District of Columbia?
Grand jurors in the District of Columbia thrice refuse to indict a defendant for felony assault of a federal officer. And it happened again and again.
Last week, the U.S. Attorney for the District of Columbia sought to indict Sydney Reid on felony charges of assaulting an FBI agent, in violation of 18 U.S.C. § 111.
Here are some of the allegations in the criminal complaint:
4.ERO Officer Vincent Liang gave instructions to REID to step back and allow them to complete the transfer of the two suspects. REID continued to move closer to the officers and continued to record the arrest. Officer Laing reiterated to REID that she could not get any closer. REID got in Officer Laing's face, and he could smell alcohol coming off REID's breath. After multiple commands to step back, REID tried to go around Officer Laing by going up the side steps and attempted to get in between the FBI Agents and the second suspect being transferred into their custody.
5.As REID was trying to get behind Officer Lang and impede the transfer of the second suspect by inserting herself between the second suspect and the agents, Officer Lang pushed REID against the wall and told her to stop. REID continued to struggle and fight with Officer Lang. Agent Bates came to Office Lang's assistance in trying to control REID. REID was flailing her arms and kicking and had to be pinned against a cement wall.
6.During the struggle, REID forcefully pushed Agent Bates's hand against the cement wall. This caused lacerations on the back side of Agent Bates's left hand as depicted below.
A federal magistrate found that there was probable cause to support the charge. Yet, on three occasions, a grand jury in the District of Columbia declined to indict. Instead, the U.S. Attorney filed an information for a misdemeanor violation of Section 111. A writer at MSNBC suggests that the grand jury's refusal to indict may be due to a weak cases being brought by the U.S. Attorney.
Since the failed indictment for Reid, there have been two more grand juries that failed to return a true bill.
It is possible that these juries are carefully attuned to the gradation between felonies and misdemeanors. May I suggest another possibility? Federal grand juries in the District of Columbia, made up (almost) entirely of critics of President Trump, are engaging in nullification of the Trump Administration's law federal enforcement efforts. I imagine this sort of active resistance will increase as more federal officers are fanned throughout the District of Columbia. The Capital likely seems something like this to D.C. residents:
Historically, at least, the concept of jury nullification was viewed as a popular check against tyrannical governments. I imagine an average D.C. resident who can take time off from work to serve extended periods of federal grand jury duty may see himself in that fashion.
During the Jack Smith saga, Trump argued that he could not possibly get a fair jury pool in the District of Columbia. I wonder if the same is true for cases brought by the Trump Administration?
