Last April, in a rather bold move, New York District Attorney Alvin Bragg indicted former President Donald Trump with nearly three dozen felonies relating to hush money payments prior to his time in office.
And in June, Trump was again indicted by a grand jury on 37 federal charges relating to his handling of classified documents. This was the first time a former U.S. president had ever been charged on the federal level.
Conservatives were astonished at how Bragg managed to pull off a seemingly political maneuver against a prominent right-wing opponent. They also, quite rightly, questioned the integrity of the Justice Department.
Trump supporters clamored on social media that Bragg was “Soros-funded” and that America had become a “banana republic.” Less partisan influencers began to nitpick at the criminal justice system, honing in on the grand jury process.
As the old adage goes, a prosecutor could get a grand jury to “indict a ham sandwich.” Yes, it’s that easy. The prosecutor is the sole presenter of evidence and legal advisor to the grand jury.
The bar to proceed to a criminal indictment is much lower with a grand jury than in an actual criminal trial. The grand jury is only required to show probable cause—not proof beyond a reasonable doubt. And a simple majority of a grand jury is all that is needed to secure an indictment, unlike a trial jury which requires a unanimous vote to convict.
The overall indictment process differs from state to state and jurisdiction to jurisdiction.
Grand jury proceedings are tools that lead to indictments; however, the protections guaranteed to defendants, which entitle them to a speedy trial under the Sixth Amendment, do not apply until the grand jury has voted to indict.
The manipulation of the grand jury process can force the accused to sit in jail, sometimes for months, until his or her case is presented and voted on. The bloated bureaucracy of the criminal justice system can often prolong a trial from being held for years.
Former Republican politician and chief judge of New York’s Court of Appeals, Sol Wachtler, told CNN, “A grand jury is an almost entirely one-sided process.. . . Close to every time a prosecutor seeks an indictment from a grand jury, he or she will get an indictment from the grand jury.”
During these proceedings, typical court rules do not apply, as they are not adversarial in nature. There is no judge to arbitrate in the grand jury. The accused may not be aware of any investigation or that the matter is being presented to the grand jury.
The level of counsel to a person testifying to the grand jury in state proceedings varies by jurisdiction, too. In federal grand jury proceedings, defense attorneys are not even permitted to be present.
Whether federal or state, the prosecutor essentially controls what the grand jury hears and does not hear, regardless of the quality of such evidence, even if it is merely hearsay.
The prosecution’s power over grand jury indictments is not simply limited to criminalizing defendants, either.
Recently on Long Island, 16 out of the 19 police officers allegedly involved in the 2021 beating of Christopher Cruz and the conspiracy to cover up the brutality were granted immunity by former Suffolk District Attorney Tim Sini, according to Frederick Brewington, the attorney representing Cruz in the civil suit. Following the indictment of two officers on misdemeanors, the judge dismissed the charges citing the grand jury proceeding as insufficient—that was purposeful by Sini, and such actions to protect law enforcement are relatively common.
Politics aside, prosecutors’ endgame is to “win” their prized conviction. It’s a sad reality but just a fact, as their occupation is a career in convicting.
The National Registry of Exonerations reports there have been an astounding 3,300 exonerations since 1989, with the falsely accused having lost nearly 30,000 years in prison. The registry does not include the exorbitant amount of money lost in legal fees, either. The acquitted tend to proceed with civil litigation throwing the eventual financial burden upon the taxpayer.
The problem all stems from the prosecutors and their pursuit of career gains over fair and impartial justice. Partisanship has crept into the process, too. The New York Post reported Bragg downgraded 52 percent of felonies to misdemeanors—a 23 percentage-point drop from his predecessor.
The New York DA echoed the professed sentiments of Black Lives Matter, including his push for a more “equitable” system. In doing so, he has obscured his duties to pursue so-called criminal justice “reform.”
Prosecutors, not limited to those at the Justice Department or Alvin Bragg, are driven by agendas, whether it is for their own career gains or simply politics. The grand jury indictment process must be reevaluated to minimize such abuses, especially now that the lead Republican presidential candidate has been indicted.
The precedent for future criminalization by this poorly understood and “rigged” system will take shape now over the course of the next few years. This is not just about Donald Trump but about the American people.