The 99 Percent Problem
Sol Wachtler, former chief judge of New York's highest court, once quipped that prosecutors could convince a grand jury to "indict a ham sandwich." He was being sarcastic. He shouldn't have been prophetic.
Today's federal grand juries indict in more than 99 percent of cases brought by prosecutors — a rate so astronomically high that it would make Soviet show trials blush. This isn't justice. It's bureaucratic theater designed to provide constitutional cover for prosecutorial power that the Founders would have recognized as tyrannical.
The Fifth Amendment's grand jury requirement was supposed to be the people's shield against government overreach. Instead, it's become the government's rubber stamp for political persecution.
What the Founders Had in Mind
When the Founders wrote "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," they weren't creating a procedural formality. They were establishing a constitutional firewall between government prosecutors and American citizens.
In 18th-century England, royal prosecutors routinely filed criminal charges against political opponents without any citizen oversight. The American grand jury system was designed to prevent this abuse by requiring ordinary citizens to review the government's evidence before any prosecution could proceed.
The grand jury was meant to be independent, skeptical, and protective of citizen rights against government power. Early American grand juries regularly refused to indict when they believed prosecutions were politically motivated or legally questionable. In some cases, grand juries issued public criticisms of government overreach rather than indictments.
How Prosecutors Captured the Process
Modern federal grand jury proceedings bear no resemblance to this constitutional vision. Prosecutors control every aspect of the process: what evidence jurors see, which witnesses testify, how legal standards are explained, and even whether defense attorneys can present contrary evidence.
Defense attorneys are banned from grand jury rooms. Defendants have no right to present their side of the story. Prosecutors can present hearsay evidence that would be inadmissible at trial. They can withhold exculpatory evidence that might lead to no indictment. They can present their case over multiple sessions, wearing down juror resistance through repetition and social pressure.
Most perniciously, prosecutors can shop for favorable grand juries by choosing which jurisdiction to file charges in, when to present their case, and which grand jury pool to use. Federal prosecutors in Washington D.C. — where the jury pool is overwhelmingly Democratic — have become particularly aggressive about bringing politically charged cases that would face more skeptical review in other jurisdictions.
Photo: Washington D.C., via jooinn.com
The Statistics Tell the Story
According to data from the Administrative Office of U.S. Courts, federal grand juries issued indictments in 99.993 percent of cases in fiscal year 2022. Out of 79,704 cases presented to federal grand juries, only 11 resulted in no indictment.
This rate has been consistent for decades, hovering between 99.96 and 99.99 percent annually. By comparison, trial juries — which hear evidence from both prosecution and defense — convict in approximately 83 percent of federal criminal cases.
The message is clear: when prosecutors control the information flow, they get the outcome they want virtually 100 percent of the time. This isn't citizen oversight of government power — it's citizen participation in government power.
Recent Political Cases Expose the Problem
The politicization of grand jury proceedings has reached new extremes in recent high-profile cases. Federal prosecutors have used grand juries to investigate political opponents, leak selective information to friendly media outlets, and create the appearance of citizen validation for prosecutions that serve partisan interests.
When prosecutors present only their side of complex political disputes to grand juries, they're not seeking citizen judgment — they're seeking citizen cover. The grand jury's constitutional purpose as a check on prosecutorial power is inverted into a tool for legitimizing prosecutorial power.
This problem transcends party lines. Both Republican and Democratic administrations have used grand juries to pursue politically motivated investigations that would face more rigorous scrutiny in open court proceedings with defense participation.
The Progressive Justification Misses the Point
Defenders of the current system argue that grand jury proceedings must be secret to protect witnesses and preserve prosecutorial effectiveness. They note that the grand jury's role is merely to determine whether probable cause exists for prosecution, not to determine guilt or innocence.
This defense fundamentally misunderstands the constitutional purpose of grand juries. The Founders didn't create a citizen review process to make prosecutors more effective — they created it to make prosecutors more accountable. The grand jury was supposed to be a meaningful check on government power, not a procedural formality that prosecutors navigate on their way to indictment.
The probable cause standard was meant to be applied by skeptical citizens with access to defense perspectives, not by citizens who hear only prosecution evidence presented in the most favorable light possible.
Reform Is Both Necessary and Achievable
Restoring the grand jury's constitutional function requires fundamental reforms to federal prosecution procedures. Defense attorneys should have the right to present evidence and witnesses to grand juries. Prosecutors should be required to present exculpatory evidence that might affect the indictment decision. Grand jury proceedings should include independent legal advisors who aren't employed by the prosecution.
Most importantly, federal judges should scrutinize grand jury proceedings more carefully, dismissing indictments when prosecutors have clearly manipulated the process to avoid meaningful citizen oversight.
Several states have implemented reforms along these lines, with measurable improvements in grand jury independence and more reasonable indictment rates.
The Constitutional Stakes
The grand jury's transformation from citizen shield to government rubber stamp represents a broader crisis in American constitutional governance. When constitutional safeguards become procedural theater, the rule of law becomes the rule of prosecutors.
Americans deserve a justice system where citizen oversight of government power is real, not performative. The Fifth Amendment's grand jury requirement was designed to ensure that ordinary citizens could protect their neighbors from prosecutorial abuse.
It's time to make that constitutional promise mean something again, because a grand jury that indicts everything is a grand jury that protects nothing.
