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In fiscal year 2013, federal grand juries approved charges in 99.993 percent of cases—196,964 indictments out of 196,969 matters presented. The old legal saying holds that a prosecutor can get a grand jury to “indict a ham sandwich.”
On February 10, 2026, twenty-three ordinary people in Washington, D.C. did something that almost never happens: they told federal prosecutors no.
Prosecutors wanted to charge six Democratic members of Congress with sedition (encouraging people to rebel against the government). The evidence was a ninety-second video. In it, the lawmakers reminded military personnel they could refuse unlawful orders—a rule in military law since World War II. The grand jury declined to indict.
But something shifted in 2025 and 2026. Across multiple federal districts, grand juries started refusing to indict in politically charged cases. These refusals cluster around prosecutions where people suspected the charges were driven by presidential pressure rather than actual crimes.
How Grand Juries Work
Grand jury proceedings are secret by law. No judge presides. No defense attorney attends. Sixteen to twenty-three people sit with a prosecutor and whatever witnesses the prosecutor chooses to call.
Prosecutors control everything. Which evidence gets presented. Which witnesses testify. What legal instructions the jurors receive. Defendants don’t even know they’re being investigated until the indictment comes down.
This imbalance exists because grand jurors need only find “probable cause”—not proof beyond reasonable doubt, but enough evidence that a crime probably happened. Secondhand information that wouldn’t be allowed in a real trial is perfectly fine in a grand jury room. Evidence that contradicts the prosecution’s theory doesn’t need to be presented.
When U.S. Attorney Jeanine Pirro’s office presented the case against the six lawmakers, they had every structural advantage. They showed the video. They explained the statute prohibiting anyone who “advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty” in the armed forces. They likely emphasized that President Trump himself had called for the lawmakers’ arrest, suggesting they deserved punishment “punishable by DEATH.”
At least twelve of the twenty-three jurors voted no anyway.
What the Evidence Showed
The video was ninety seconds long. In it, the six lawmakers—all Democrats, all veterans—made a straightforward legal point: service members have both the right and the obligation to refuse clearly illegal orders.
They didn’t name Trump. They didn’t cite any specific order. They didn’t urge anyone to disobey any particular command. They restated doctrine that’s been part of military law since the Nuremberg trials established that “following orders” isn’t a defense for war crimes.
The Pentagon’s own regulations explicitly instruct service members of this obligation. The military’s legal code reflects it. Military leaders have affirmed it repeatedly. When the lawmakers said “you must refuse illegal orders,” they were quoting doctrine, not undermining it.
To prosecute this as sedition required the panel to believe that reminding soldiers of their legal obligations under military law would be a crime.
Jurors apparently found that theory unconvincing. Even accepting every fact the prosecutor presented, the conduct didn’t constitute a crime.
That’s a more sophisticated form of refusal than simple fact-finding. The panel was making a legal judgment: this shouldn’t be prosecuted, even if you can construct an argument that it technically fits the statute’s language.
Kyle Boynton, a former federal prosecutor, put it bluntly: “No lawyer, competent or otherwise, could have looked at the statute and concluded this plainly protected speech constituted a felony.”
The Pattern Across Districts
Throughout 2025 and into 2026, federal grand juries refused indictments in case after case that the government clearly prioritized.
In Washington, D.C., a panel declined to indict Sean Charles Dunn, a former Justice Department employee accused of throwing a sandwich at a Customs and Border Protection officer. The government pursued a misdemeanor charge instead. A trial jury acquitted him in November 2025.
In Los Angeles and Chicago, panels declined to indict protesters after prosecutors handling individual cases themselves had advised the facts fell short of probable cause. In one Chicago case, the alleged assault on a federal agent consisted of a “minor thumb injury.” Three successive D.C. panels refused to indict a protester accused of brushing an FBI agent’s arm during a scuffle.
In Virginia, a panel reviewing charges against former FBI Director James Comey declined to indict on one of three counts. In New York, panels twice refused to indict Attorney General Letitia James on mortgage fraud charges, even after the government presented the charges again following the first refusal.
When the government pursues politically charged cases—particularly cases targeting perceived opponents of the Trump administration—grand juries are increasingly saying no.
How the Government Responds
The Justice Department’s own manual is clear: once a panel returns a no-bill, “the same matter should not be presented to another grand jury” without approval from the responsible U.S. Attorney.
Reports from inside the Justice Department indicate that senior officials have instructed line attorneys to do exactly that—simply create new grand juries until one returns an indictment.
This practice violates the department’s own rules. If the government can keep presenting the same case to successive panels until one agrees to indict, the constitutional protection becomes meaningless. The protection transforms from a genuine check on power into a procedural hurdle that persistence can overcome.
In the Letitia James case, the government did exactly this—presented the charges again after the first refusal. In multiple other cases, prosecutors have pursued alternative charges or sought new panels after initial refusals.
Jeanine Pirro, the U.S. Attorney for D.C., is a Trump appointee and former Fox News personality. Her office has pursued multiple prosecutions that courts and grand juries have rejected. When criticized, she responds that her “responsibility is to follow the law” and that “the passions of others, political and otherwise are irrelevant.”
Her track record suggests something different: a pattern of ambitious prosecutions driven by political considerations, pursued despite weak facts, and rejected by the people asked to approve them. When the same office repeatedly brings cases that juries reject, it suggests either poor judgment about what constitutes prosecutable conduct or a willingness to pursue charges for reasons other than the strength of the case.
Who These Jurors Are
The twenty-three people who refused to indict the lawmakers weren’t legal experts. They were ordinary Washington, D.C. residents selected through a process designed to create a fair cross-section of the community—teachers, accountants, healthcare workers, small business owners, government employees, construction workers.
Washington, D.C. leans heavily Democratic. These weren’t partisan activists sabotaging legitimate prosecutions. They were people acutely aware that the charges appeared motivated by presidential pressure—Trump had explicitly and publicly called for the lawmakers’ arrest—rather than by judgment rooted in actual criminal conduct.
Judge Jones characterized their decision as reflecting a “fundamental sense of fairness.” He noted that the administration was “sending a message to millions of retired veterans that they too can be censured or demoted for speaking out.” These jurors apparently recognized this and refused to participate.
The pattern of refusals across Los Angeles, Chicago, Virginia, and New York suggests that resistance to politically motivated prosecutions isn’t limited to one jurisdiction. What’s striking isn’t that these jurors had special expertise or training. It’s that they recognized overreach when they saw it, even when presented by officials with impressive titles and institutional authority.
The Constitutional Power of Grand Juries
Grand juries possess what legal scholar Roger Fairfax calls an “absolute power to refuse to approve charges—despite probable cause that alleged criminal conduct has occurred.” They can refuse indictment because they disagree with the wisdom of prosecution, find the facts insufficient, or determine that the conduct shouldn’t be criminalized.
For decades, grand juries almost never exercised this power. But the power always existed. The Constitution doesn’t say grand juries must indict when the government asks. It says serious federal felonies require approval. That necessarily includes the power to withhold approval.
What’s changed isn’t the law. It’s that people are remembering they have this power and choosing to use it.
When the government knows that panels might scrutinize theories and refuse weak cases, behavior changes. Charges that would have been pursued routinely might be reconsidered. Legal theories that stretch statutes to reach protected speech might be abandoned before reaching a panel.
Or the government might do what it’s apparently doing now: treat refusals as temporary obstacles and keep trying until it succeeds.
This tension reveals a fundamental question about constitutional design. Does the institution serve as a meaningful check on power, or as a procedural formality? The answer depends less on legal principle than on whether the government respects refusals as final judgments or treats them as inconvenient delays.
What Happens Next
The six lawmakers avoided criminal prosecution. But Senator Mark Kelly faces separate disciplinary proceedings designed to reduce his rank and retirement pay—punishment that’s not criminal prosecution but still harmful.
This approach—criminal prosecution alongside punishment through government procedures—allows the president’s administration to inflict consequences on political opponents even when grand juries block the most extreme charges.
Whether the pattern of resistance continues depends partly on whether the government accepts these refusals as meaningful constraints. If it does, the institution works to limit government power. If refusals get treated as procedural annoyances to be overcome through persistence, the institution becomes a formality.
Current indications point toward the latter. The Justice Department’s internal accountability systems have been substantially weakened. The office that investigates prosecutors who break the rules has seen its authority limited. Federal appointees are ignoring state bar ethics rules.
Attorneys handling individual cases face minimal consequences for bringing weak cases to grand juries, even when their own colleagues have advised that charges can’t be justified. Everything encourages prosecutors to pursue the cases leadership wants pursued, regardless of legal merit, and worry about consequences later.
The Fragile Shield
What the lawmakers case reveals isn’t that the system works. It’s that the system can work, sometimes, when ordinary people find the courage to use power they didn’t know they possessed.
Twenty-three people in Washington, D.C. were asked to approve sedition charges against six members of Congress for reminding soldiers of their legal obligations. They were told this was a crime. They were presented with facts by officials backed by the full authority of the federal government, apparently acting on instructions from the president himself.
They said no.
That refusal came from what Judge Jones called a “fundamental sense of fairness”—the intuitive recognition that prosecuting political opponents for protected speech, no matter how creative the legal theory, isn’t what criminal law should be used for.
The constitutional design assumes that ordinary people, given power, will exercise it responsibly. The events of February 10, 2026 suggest that assumption might still hold. But the design also assumes that when people exercise that power, the government will respect their judgment.
That assumption is being tested in ways the framers probably didn’t anticipate. The panel that refused to indict the six lawmakers did its job. Whether that refusal means anything in the long run depends on whether the government accepts that people have the final word, or whether it simply keeps asking until it gets the answer it wants.
Six people who reminded soldiers of their legal obligations aren’t facing sedition charges. The broader pattern—refusals in D.C., Los Angeles, Chicago, Virginia, and New York—suggests that when prosecutors push too far, ordinary people recognize overreach and refuse to participate. That recognition doesn’t require legal training. It requires only the willingness to trust one’s own judgment about what’s fair.
Whether that willingness survives depends on what happens next. If the government respects these refusals, the institution retains meaning. If it treats them as obstacles to overcome through persistence, the protection becomes hollow. The twenty-three jurors who said no to sedition charges demonstrated that the power still exists. Whether it continues to matter depends on whether anyone in power cares that they used it.
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