This post is part of Challenging Precedent, a blog of the Stanford Center for Racial Justice examining race, law, and regulation in the Trump era.
In late September, federal prosecutors in Washington, D.C. appeared before a magistrate judge with an indictment against Kevontae Stewart, charged with unlawful firearm possession. What made it unusual was how they’d gotten it. Three days earlier, a federal grand jury had declined to indict Stewart. So prosecutors brought the same case to a local grand jury, which voted to indict. U.S. Magistrate Judge Zia Faruqui refused to accept the indictment, calling it “very unseemly” and “more than likely…unlawful,” while government attorneys argued they had acted within their authority. This confrontation is part of a broader pattern in the Trump Justice Department’s approach to prosecution: exploiting gaps between what prosecutors may have the power to do and what they have long chosen not to do.
The case began on September 17, when officers patrolling the predominantly Black Bellevue neighborhood in Southwest D.C. as part of President Trump’s crime-fighting initiative approached a parked car. According to the criminal complaint, officers smelled marijuana and observed the driver, Stewart, smoking what appeared to be a marijuana cigarette. When officers asked Stewart to get out of the car, he fled. During the chase, officers said, Stewart tossed a black handgun across the street. After detaining Stewart, officers retrieved the weapon and found cocaine base in his pocket. A records check revealed that Stewart had received an eight-year suspended sentence in February for a Maryland felony conviction, making it unlawful for him to possess a gun. On September 26, a federal grand jury considered this charge and declined to return an indictment.
That decision invoked a power with deep historical roots. Grand juries—panels of citizens evaluating criminal accusations—predate the Constitution and were enshrined in the Bill of Rights. The Fifth Amendment requires federal prosecutors to obtain a grand jury indictment for all felony offenses (unless a defendant waives this right). A grand jury hears evidence from prosecutors alone and votes on whether probable cause exists to charge. The institution stands as a check on prosecutorial power, meant to be, in the Supreme Court’s words, “security to the innocent against hasty, malicious, and oppressive prosecution.” (Wood v. Georgia)
But the reality is quite different. Federal grand juries indict almost every case that prosecutors present. In 2010, Justice Department research revealed that grand juries returned ‘no true bill’—refusing to indict—only 11 times out of 162,000 federal offenses. That rarity made the federal grand jury’s refusal in the Stewart case meaningful, or at least you’d think it should have.
Prosecutors do sometimes re-present the same charges to a new grand jury. The DOJ’s Justice Manual contemplates this possibility, though it requires the approval of the responsible U.S. Attorney. Instead of presenting the case to another federal grand jury, prosecutors in the Stewart case turned to a District of Columbia Superior Court grand jury. The government defended its decision by pointing to D.C. Code § 11-1916, which authorizes Superior Court grand juries to hear matters “regardless of whether an indictment is returnable in the Federal or D.C. courts,” and to a 1997 D.C. Circuit decision, United States v. Seals, that upheld that practice. Judge Faruqui wasn’t convinced and ordered briefing on whether the tactic was permissible. The government appealed to Chief Judge James Boasberg, who denied the government’s emergency request.
While the legal wrangling in Kevontae Stewart’s case continues, the prosecutors’ approach reflects a series of maneuvers by the Trump Justice Department that may remain within legal lines, but cross boundaries federal prosecutors have long avoided. To obtain New York City Mayor Eric Adams’ assistance in advancing the president’s immigration priorities, then-Deputy Attorney General Emil Bove directed federal prosecutors to dismiss sweeping corruption charges against Adams. Like the Stewart case, prosecutors may have had legal authority to act but the open exchange of prosecutorial favors for political cooperation broke with decades of Justice Department practice. In another D.C. case, prosecutors presented charges against Sydney Reid for assaulting an FBI agent to three separate grand juries, each time failing to secure an indictment. Rather than accept the initial decision, prosecutors kept trying and ultimately downgraded Reid’s charges to a misdemeanor only after the 30-day period given to them to indict the matter had passed.
Where past administrations erected boundaries between the White House and DOJ—particularly in the post-Watergate era—President Trump has openly directed the department to investigate and prosecute his political opponents. Such efforts recently culminated in the indictment of former FBI Director James Comey five days after the president publicly pressured Attorney General Pam Bondi to bring charges.
This shift is significant because, in the words of Attorney General and later Supreme Court Justice Robert Jackson, a federal prosecutor “has more control over life, liberty, and reputation than any other person in America.” The discretion they are afforded is immense and it is not hyperbole to suggest, as some legal scholars have, that “for all intents and purposes, prosecutors are the criminal justice system.” These powers come with special obligations. The Supreme Court recognized this in Berger v. United States, declaring that the government’s interest in a criminal prosecution “is not that it shall win a case, but that justice shall be done.”
When state and local prosecutors use their powers in ways that concern their constituents, voters can remove them from office, even if that accountability is imperfect. Federal prosecutors, however, don’t answer to voters. Congress should serve as a check, but a Republican-controlled House and Senate have shown little appetite for scrutinizing a Trump-directed Justice Department. Courts also regularly review prosecutorial decisions, but as the Stewart case illustrates, judicial oversight has limits, particularly when prosecutors claim their actions are lawful. The truth is that federal prosecutors have largely restrained themselves from pushing their authority to its legal limits, guided by professional principles rather than legal rules. But as the boundaries separating prosecution from politics are torn apart, those principles are collapsing.
Dan Sutton is the Director of Justice and Safety at the Stanford Center for Racial Justice.
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