The chief federal judge for the District of Columbia has ordered that the judiciary be notified when a grand jury rejects the Trump administration's attempts to indict defendants, following the failed effort to charge six sitting members of Congress over a social media video.
Judge James Boasberg said the rule applies when the effort to indict comes first as a grand jury investigation. He said it would be in place for 120 days but could become permanent.
Boasberg wrote the decision was "in furtherance of the interests of consistency and transparency."
"This court finds that notification should be provided to the duty magistrate judge whenever a grand jury fails to concur in an indictment, regardless of whether the defendant has already been charged,” he said.
The new policy, dated March 4, clarifies that even if a prosecutor decides to drop the case after a failed prosecution, the magistrate judge must be notified of the unsuccessful prosecution attempts.
Boasberg’s order requires that the grand jury foreperson “promptly and in writing report the lack of concurrence to the duty magistrate judge under seal,” and that those notifications be maintained in the confidential files of the clerk’s office.
Grand juries are a core part of America's system of government and recognized in the Fifth Amendment, which mandates that no person "shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
As NBC News first reported, the government was unable to convince a single grand juror that it had met the low probable cause threshold to indict the six Democrats featured in the social media video that upset President Donald Trump. The video advised members of the military and intelligence communities not to obey illegal orders.
In November, Trump accused the six Democratic lawmakers of "seditious behavior" and called for them to be "arrested and put on trial," for behavior "punishable by death." Days later, the FBI attempted to schedule interviews with the six lawmakers — Reps. Jason Crow of Colorado, Maggie Goodlander of New Hampshire and Chris Deluzio and Chrissy Houlahan of Pennsylvania, and Sens. Mark Kelly of Arizona and Elissa Slotkin of Michigan — none of whom choose to sit down with the bureau.
In February, attorneys from the office of Jeanine Pirro, the U.S. attorney for the District of Columbia — including a longtime associate and a former House Republican staffer — presented a case against the six lawmakers to a federal grand jury, which rejected the attempted indictment.
Boasberg's order also noted that, in a sealed memo, the government gave an opinion on whether the judiciary should be notified but didn't say what it was.
Pirro's office declined to comment. Politico first noted the order.
Boasberg also issued a scathing order blocking subpoenas Pirro issued to the Federal Reserve and Chairman Jerome Powell. Boasberg suggested the investigation was political.
“There is abundant evidence that the subpoenas’ dominant (if not sole) purpose is to harass and pressure Powell either to yield to the president or to resign and make way for a Fed chair who will,” he wrote.
Pirro attacked Boasberg last week as "an activist judge" and said the Justice Department would appeal.
When NBC News asked Pirro at a news conference Friday why some federal grand jurors seemed to be skeptical of the cases being brought by the U.S. attorney’s office, she responded that she was "willing to take a not guilty" and "willing to take a no true bill, because I’ll take all the crimes and put ‘em in.”
On Friday, her office dropped a case against a man who burned an American flag.
Trump issued an executive order meant to crack down on that constitutionally protected action. Boasberg had ruled that the man — facing two misdemeanors over alleged violations of federal park orders — is entitled to an inquiry over whether his prosecution had been for "allegedly illegal actions or for his constitutionally protected speech."
The grand jury system was first developed in England, and the handbook for federal grand jurors in the U.S. highlights the “celebrated English case involving the Earl of Shaftasbury” in 1681.
“Displeased with him, the crown presented to the grand jury a proposed bill of indictment for high treason and recommended that it be voted and returned,” the grand jury manual states. “After hearing the witnesses, the grand jury voted against the bill of indictment and returned it to the king, holding that it was not true.”
