Summary
The old adage that a prosecutor could get a grand jury to “indict a ham sandwich” has long symbolized the government’s near-total control over the charging process. For decades, the data confirmed that grand juries almost never declined to indict—transforming what was designed as a constitutional safeguard into a procedural formality. Yet a recent series of declinations by grand juries in politically charged cases across the country suggests a subtle but significant shift. These rare outcomes raise important questions about how the Department of Justice (DOJ) will reconcile its charging prerogatives with the grand jury’s function as a citizen check on government power.
The Upshot
- A “No-Bill” Remains a Statistical Rarity: Federal grand juries almost never decline to indict, making the recent series of declinations in high-profile cases notable both for their rarity and for what they may suggest about juror attitudes.
- A Pattern of Pushback: Recent no-bills in Chicago, Los Angeles, Washington, D.C., and elsewhere show a discernible pattern of skepticism toward prosecutions viewed as overreaching or thinly supported—especially in politically sensitive contexts.
- The End of the Rubber Stamp?: Prosecutors may no longer be able to treat the grand jury as a mere formality in cases that test the limits of public sentiment or evidentiary sufficiency. Whether this proves transient or enduring will depend on how the DOJ and the courts respond.
The Grand Jury’s Constitutional Role
Conceived in 12th-century England as a shield against the Crown and enshrined in the Fifth Amendment, the grand jury was designed as a civilian barrier between the state’s power and the individual’s liberty. Its function was not to determine guilt but to ensure that no one faced the ordeal of a criminal trial without a sufficient factual foundation. By empowering ordinary citizens to review the government’s evidence in secret, the institution was intended to preserve independence from political and prosecutorial influence.
Over time, however, this safeguard has eroded. What began as a citizen’s protection against arbitrary prosecution evolved into a process dominated by prosecutors, who control the witnesses, the evidence, and the narrative. With no judge or defense counsel present, the system is inherently imbalanced. It was this reality that led former New York Court of Appeals Chief Judge Sol Wachtler to famously remark that a prosecutor could persuade a grand jury to “indict a ham sandwich.”
That was not mere hyperbole—it was statistical fact. According to the Bureau of Justice Statistics, federal prosecutors’ dominance over the grand jury process has been nearly absolute. In fiscal year 2013, grand juries declined to indict in just five of 196,969 criminal matters concluded—an incidence rate of 0.003%. In 2014, 14 no-bills were recorded out of 170,161 matters (0.008%). In 2015, there were 19 out of 163,005 (0.012%), and in 2016, just six out of 155,615 (0.004%). For decades, federal grand juries have almost never said no.
A Pattern of Rejection
That dynamic is now being tested. As the DOJ has adopted a more assertive charging posture in politically sensitive cases, grand juries appear to be reasserting their independence. Most recently, a federal grand jury in Chicago declined to indict two protesters accused of assaulting federal agents outside a U.S. Immigration and Customs Enforcement (ICE) facility—a confrontation that ended with one agent sustaining a minor thumb injury after the protesters were shoved against a wall and allegedly “pushed back.”
Similar resistance has surfaced elsewhere. In Washington, D.C., three successive grand juries declined to indict a protester accused of brushing an FBI agent’s arm during a scuffle sparked by her filming of immigration officials. In another D.C. case, jurors declined to indict a former DOJ employee alleged to have thrown a sandwich at a federal officer during a demonstration. And in Los Angeles, multiple grand juries have declined to indict protesters after line prosecutors themselves advised that the evidence fell short of probable cause—a conclusion supported by video footage contradicting the government’s narrative. This skepticism has now extended beyond protest-related cases. In Virginia, a grand jury reviewing charges against former FBI Director James Comey declined to indict on one of three counts alleging false statements—a rare public rebuke of the DOJ’s charging discretion.
Looking Ahead
The recent no-bills are notable not only for their rarity but also for what they signify: A renewed insistence that even politically charged prosecutions must be grounded in demonstrable evidence rather than inference or optics.
How the DOJ responds may determine whether this marks an aberration or a genuine inflection point. Reports indicate that senior officials have instructed prosecutors to re-present declined cases to newly impaneled grand juries. While the Justice Manual permits re-presentation in limited circumstances (Section 9-11.120), routine reliance on that tactic risks undermining the grand jury’s independence and would likely invite criticism that the DOJ is seeking a preferred outcome rather than a just one.
Moreover, DOJ policy explicitly requires that when a prosecutor is “personally aware of substantial evidence that directly negates the guilt of a subject,” such evidence must be disclosed to the grand jury before seeking an indictment (Section 9-11.233). In the Comey matter—and perhaps others—it remains unclear whether exculpatory evidence was presented. Though perhaps not typically a focal point in crafting a defense strategy, counsel should, going forward, be diligent in determining—through motion practice—what was and was not presented to the grand jury, as well as in reviewing the grand jury’s overall role in the prosecution.
The attorneys in Ballard Spahr’s White Collar Defense and Investigations Group have extensive experience guiding clients through complex grand jury proceedings and can provide strategic counsel on all aspects of federal criminal investigations and defense.
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