In Trump’s Justice Dept., Failing in Court Might Be Better Than Bucking the Boss
"Thursday demonstrated an emerging reality for President Trump: Commanding the Justice Department is not the same as controlling the justice system.
Revenge, it turns out, is a dish best served with evidence.
On Thursday, federal grand jurors in Virginia rejected the Justice Department’s push to indict Letitia James, the New York attorney general, on mortgage-related charges for the second time in a week. It handed a humiliating loss to President Trump, who has publicly demanded the prosecution of enemies he has singled out for retribution.
It was a moment worth marking. Federal grand juries almost never decline to bring an indictment once, much less twice. Such rejections, known as “no true bills,” have been exceedingly rare, a misfire that often stigmatizes the prosecutors involved.
They are becoming more common, and accepted, in a department where face-planting in court might be preferable to facing down the boss.
The rejection in the James case was not the only notable legal rebuke that day of actions demanded by the White House. A few hours earlier, a federal judge in Maryland freed Kilmar Armando Abrego Garcia, dealing a blow to the department’s monthslong effort to prosecute and deport an immigrant in a test of Mr. Trump’s claim that he can expel whomever he wants, wherever and whenever he wants, with minimal or no due process.
“I think many of these cases are nationalized for the public and there is a pushback on Trump and his targeting of individuals,” said John P. Fishwick, who served as U.S. attorney for the Western District of Virginia from 2015 to 2017.
“This is a major shift,” he added.
Thursday demonstrated an emerging reality for Mr. Trump and his aide Stephen Miller, a driving force behind the maximalist approach to presidential power: Commanding the Justice Department is not quite the same as controlling the justice system.
Increasingly, federal juries and judges have rejected cases presented by the department for lack of sufficient supporting evidence, or because prosecutors committed major procedural or legal errors in their scramble to appease the White House.
In recent months, grand jurors in Washington spurned efforts to indict or ultimately convict anti-Trump activists: a woman who posted a threat against Mr. Trump on Instagram and, most famously, a Justice Department employee who tossed a sandwich at federal officers.
The prosecutors in the James case do not even hold the administration’s swing-and-miss record. That distinction appears to belong to Jeanine Pirro, the U.S. attorney in Washington, whose office failed three times to obtain an indictment against a woman who pushed an F.B.I. agent against a wall during a protest over the summer.
Even when Ms. Pirro’s subordinates changed course and moved forward on misdemeanor charges that did not require an indictment, a trial jury shut them down again, acquitting the woman altogether.
It is hard to know how many no-true-bill decisions have been rendered because grand jury deliberations are shielded by secrecy laws. But in cases brought in other citieswhere Mr. Trump has flooded the streets with federal officers, grand jurors have also declined to bring charges. In Los Angeles, a MAGA-aligned prosecutor failed to obtain charges against an activist who had protested the administration’s immigration enforcement.
Mr. Trump’s political appointees at the department have publicly lashed out at “activist” judges and groused about anti-Trump bias among jurors in the Democratic-dominated capital.
But there is also a sense inside the department, less openly articulated than tacitly understood, that the system provides a pressure valve for marginal cases — allowing prosecutors to prove they made a good-faith effort to execute the president’s orders, regardless of the outcome.
Nor is it entirely clear that successful prosecutions are the only goal. One top official, Ed Martin, who leads the so-called weaponization working group responsible for investigating those who investigated Mr. Trump, has suggested that naming and shaming targets is a legitimate end in itself.
If the president’s opponents have celebrated recent setbacks as a sign of his diminishing power, Mr. Trump does not seem to have gotten the memo. If anything, he has accelerated his use — or abuse, in the view of critics — of clemency powers to negate the verdicts of juries and judges on behalf of political allies.
And the Justice Department continues to investigate several high-profile Trump targets, including Senator Adam B. Schiff, a California Democrat. In recent weeks, the U.S. attorney in the Southern District of Florida has expanded a nebulous and far-reaching investigation into what the president’s most fervent loyalists have described as a “grand conspiracy” by officials in the Obama and Biden administrations to destroy Mr. Trump.
The Justice Department has a longstanding policy of not commenting on grand jury proceedings. But two people with knowledge of the situation said the White House was still pushing to indict Ms. James, and that Justice Department officials were considering other options to fulfill Mr. Trump’s demands. The people requested anonymity because they were not authorized to discuss internal deliberations.
Some of those pressing for Ms. James’s prosecution blamed the failure to secure an indictment on resistance from career prosecutors, and a judge’s ruling that Lindsey Halligan, the U.S. attorney for the Eastern District of Virginia, had been illegally appointed.
“Two grand juries didn’t ‘reject the evidence,’” wrote Sam Antar, a felon-turned-activist who has been among Ms. James’s most vocal critics. “They heard a presentation from the same career prosecutor who never wanted to bring the case in the first place. If you want a non-indictment, you present a non-case.”
Nonetheless, career prosecutors and Trump-appointed department officials who reviewed the evidence thought the case was far too weak to present to a grand jury. Ms. Halligan’s predecessor, Erik S. Siebert, found insufficient evidence to bring charges against her, and had raised similar concerns about a potential case against James B. Comey, the former F.B.I. director.
Mr. Trump forced him out, and hastily replaced him with Ms. Halligan, a former insurance lawyer with no prosecutorial experience. She quickly obtained indictments against Ms. James and Mr. Comey, before they were tossed out by a judge who ruled she had been illegally appointed.
The release of Mr. Abrego Garcia, which came after the White House vowed that he would never walk free on U.S. soil, capped an extraordinary 10-month legal saga that embroiled the Justice Department in countless hours of writing briefs and attending court hearings.
And in the end, the order letting him out of custody was based, at least in part, on an embarrassing technicality. The initial immigration judge who handled the case had never issued a formal order to remove him from the country, and the Justice Department had not bothered to check.
But the decision, issued by Judge Paula Xinis in Federal District Court in Maryland, also took the Trump administration to task for something much more serious: holding Mr. Abrego Garcia in immigration detention for months but never following through on its repeated promises to re-deport him. Judge Xinis found the administration’s failures particularly troubling because Mr. Abrego Garcia had agreed to be sent to Costa Rica but officials refused to let him go there, proposing instead to expel him to a series of African countries to which he had no ties.
Andrew Rossman, one of Mr. Abrego Garcia’s lawyers, hailed Judge Xinis’s ruling as an example of the court system doing what it was designed to do.
“Today’s decision granting Mr. Abrego Garcia’s release is a victory not just for one Maryland man but for everyone,” Mr. Rossman said on Thursday. “We’re gratified by the court’s ruling upholding due process and the rule of law.”
But the administration, taking the position it often has when rulings do not go its way, attacked Judge Xinis personally.
“The White House, the administration oppose this activism from a judge who is really acting as a judicial activist, which unfortunately we have seen in many cases across the country,” Karoline Leavitt, the White House press secretary, said.
The Trump administration has rarely been willing to live with adverse rulings, almost always pressing forward aggressively with appeals or other attempts to undo a negative decision.
In Mr. Abrego Garcia’s case, officials immediately fixed the lack of an order to remove him from the country by obtaining one overnight from an immigration judge.
Then the administration instructed Mr. Abrego Garcia to show up for an appointment with immigration officials on Friday morning — a move that so worried his lawyers that they convinced Judge Xinis to issue a new order forbidding the authorities from simply rearresting their client.
In the end, while their concerns were real, the consequences were less than dire. Mr. Abrego Garcia left his appointment without so much as a hitch.
Glenn Thrush covers the Department of Justice for The Times and has also written about gun violence, civil rights and conditions in the country’s jails and prisons.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump."
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