No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …
— Amendment V, United States Constitution
Two hundred and fifty years since the nation’s founding, and almost as many since the adoption of the Bill of Rights, the role of the grand jury in the American criminal justice system continues to spark debate. Recently, scrutiny of the grand jury and renewed calls to strengthen it as a bulwark against government overreach have grown more intense as courts have determined that federal prosecutors have engaged in misconduct in seeking indictments. Although the calls to amend and improve the grand jury process are not new, the Department of Justice’s (DOJ) recent practices make plain the need for changes that will ensure fairer outcomes, impose accountability, and protect the rule of law.
As outlined below, three targeted changes to Rules 5, 6 and 16 of the Federal Rules of Criminal Procedure would give courts and defense counsel the necessary tools to verify that prosecutors have instructed grand juries correctly with respect to the law, and to hold them accountable when they have not. These proposed reforms would require disclosure of the complete grand jury transcript to the court in every indicted case, give defendants access to the legal instructions delivered to the grand jury, and require prosecutors to confirm on the record that the legal instructions they provided to the grand jurors were legally accurate.
The Federal Grand Jury
The grand jury is an institutional unicorn. Not a part of the legislative, executive, or judicial branches, it is, as the Supreme Court has noted, a “constitutional fixture in its own right.” As U.S. District Judge William Ray recently observed, the grand jury “operates under the auspices” of federal district courts, which summon and select individuals to serve as grand jurors and receives the grand jury’s “work product” in the form of indictments and, simultaneously, the grand jury “is an independent entity in many respects.”
Federal grand juries are composed of 16 to 23 individuals who hear testimony and receive evidence in presentations orchestrated by federal prosecutors. The proceedings are not public and are governed by strict secrecy rules. No judge is present, nor is counsel for witnesses or for any target of an investigation. The grand jury conducts its business without judicial oversight and its work “is generally free of judicial review.” Prosecutors alone are responsible for marshaling the evidence for the grand jurors and instructing them on applicable laws.
After presenting evidence, prosecutors ask the grand jurors to vote on whether the evidence establishes probable cause – is it more likely than not – that an individual has committed the crimes the government is seeking to charge. If at least 12 grand jurors concur that probable cause exists, an indictment is issued (also called issuing a “true bill”) and the criminal case begins. If fewer than 12 concur, the indictment does not issue. Save for rare instances when a defendant waives indictment, the federal government cannot charge an individual with a felony absent grand jury approval. At its core, the grand jury’s ultimate purpose is “to help the prosecutor indict valid criminal charges.”
Grand Juries and the Trump DOJ
The Trump Justice Department’s use of the grand jury process to target the administration’s perceived adversaries under aggressive charging theories has brought the grand jury back into the public eye in two distinct, yet interrelated ways. First, grand juries have taken the highly unusual step of refusing to approve proposed indictments. Second, where the DOJ has secured indictments, courts have taken the extraordinary step of dismissing indictments due to misconduct by DOJ attorneys in the grand jury proceedings.
Refusing to Indict
In pursuing individuals the president has publicly singled out as targets, the DOJ has sought indictments that grand juries, even in non-adversarial proceedings with no defense counsel present, have found wanting. Presented with proposed indictments, grand juries have refused to issue true bills.
The DOJ’s high-profile failures to secure indictments have come in districts across the country. In the Eastern District of Virginia, federal prosecutors made two unsuccessful attempts to indict New York Attorney General Letitia James on charges of mortgage fraud. In Washington, D.C., the U.S. Attorney was unable to secure an indictment for six federal lawmakers for calling on members of the armed services and intelligence community not to comply with unlawful orders. Additionally, DOJ’s efforts to target individuals protesting government action have been turned back across the country, with grand juries declining to return indictments against individuals in Washington, D.C., Chicago, and Los Angeles. Remarkably, in one instance when faced with a grand jury’s refusal to indict a protester, the U.S. Attorney in Los Angeles is reported to have directed his prosecutors to ignore DOJ’s policy and re-present the indictment even if they did not believe the case could be won at trial.
As grand jury proceedings are not open to the public and the transcripts of those proceedings are typically sealed, the total number of instances where a grand jury has rejected DOJ’s proposed charges in recent years remains unknown. Aggregate numbers in state courts are similarly difficult to calculate, as jurisdictions typically do not systematically track no true bills. Nonetheless, DOJ’s recent failures have been remarkable precisely because, historically, such refusals have been extremely rare. The DOJ’s Bureau of Justice Statistics last published nationwide aggregate data about the number of “no true bill” votes by grand juries for the 2016 fiscal year. In that year and the three that preceded it, the number of instances in which grand juries issued no true bill was extraordinarily small, occurring in less than 1 out of 25,000 cases in the last year the totals were reported.
- 5 out of 196,969 concluded criminal matters (0.003%) (FY 2013)
- 14 out of 170,161 concluded criminal matters (0.008%) (FY 2014)
- 19 out of 163,005 concluded criminal matters (0.012%) (FY 2015)
- 6 out of 155,615 concluded criminal matters (0.004%) (FY 2016)
Dismissed Indictments – DOJ Misconduct in the Grand Jury
Additionally, in recent months, federal judges in various districts have determined that federal prosecutors engaged in misconduct in grand jury proceedings and, as a result, have taken the extraordinary step of dismissing pending indictments. While, as noted above, courts do not oversee the day-to-day operations of grand juries, judges have the authority and duty to dismiss indictments obtained in violation of a defendant’s constitutional rights.
In November 2025, U.S. District Judge Cameron Currie dismissed indictments against former FBI Director James Comey and Attorney General Letitia James because the individual who presented the cases to the grand jury, Lindsey Halligan, had no lawful authority to do so. Notably, although the Comey indictment was dismissed due to Ms. Halligan’s lack of authority, the magistrate judge who examined the grand jury record found additional instances of misconduct, including: (1) misstatements of the applicable law and (2) the filing of an indictment that was never presented to the grand jury. In May 2026, federal prosecutors in Chicago dismissed misdemeanor charges against protesters in the wake of a hearing before the Honorable April Perry. At the hearing, Judge Perry’s inquiries revealed multiple instances of misconduct by prosecutors during the grand jury proceedings, including conducting inappropriate “off the record” contact with individual grand jurors, removing a grand juror who dissented from deliberations, and improperly vouching for the strength of the government’s evidence.
Also in May 2026, a three-judge panel of federal district court judges dismissed nine grand jury indictments, which charged a variety of crimes, due to misconduct by the U.S. Attorney for the District of Wyoming before the grand jury. The court determined that the U.S. Attorney for Wyoming effectively tainted the grand jury by improperly characterizing the defendants as “murderers” (although only one of the indictments charged murder) and vouching for the strength of the evidence against them. The judges also found that the government had eroded the independence of the grand jury when the U.S. Attorney handed out his business card and invited the grand jurors to reach out to him. Finding that the government’s “misconduct began with some of the first words spoken to the grand jurors by the U.S. Attorney” and that the “misconduct continued to permeate the proceedings,” the court dismissed the indictments that the grand jury had returned.
Increasing Oversight and Accountability
Calls to reform the grand jury process are not new. In 2000, the National Association of Criminal Defense Lawyers (NACDL) published ten proposed reforms in its “Bill of Rights for the Federal Grand Jury,” noting that grand jury reform efforts had been pending for decades with relatively few changes. Broadly speaking, the proposed changes have focused on three categories of changes: (1) having the grand jury impose a more rigorous standard of review; (2) additional controls on the type of evidence the grand jury can (or must) receive; and (3) strengthening oversight of legal instructions the grand jury receives.
There is no need to repeat here the well-documented proposals with respect to the first two categories. Andrew Weissmann, a law professor and a former senior DOJ official, recently articulated a proposal to codify a “higher factual standard” that would allow grand juries to issue indictments only where they found “clear and convincing” evidence (as opposed to mere probable cause) that a crime had occurred. Similarly, the NACDL and others have advocated reforms to the type of evidence a grand jury can consider. Proposals include barring prosecutors from introducing evidence that the government knows would be inadmissible at trial and requiring prosecutors to disclose evidence that would tend to exonerate the target of the indictment.
Yet the reforms of the applicable standard of review and governing evidentiary issues will only be impactful if there is a meaningful oversight mechanism to ensure that government attorneys are complying with the law. As noted above, in the past year, courts have determined that DOJ’s prosecutors acted improperly in a myriad of different ways, from providing incorrect instructions on the law and impermissibly “vouching” for the caliber of the evidence to dismissing skeptical grand jurors and providing judges with misleadingly redacted transcripts. As federal judges feel compelled by events to set aside the long-held belief that federal prosecutors can be trusted to be taken at their word, the need to impose mechanisms that embody President Ronald Reagan’s admonition to “trust, but verify” has never been greater.
Individual district courts have started to take steps to increase grand jury transparency:
- In March 2026, the Chief Judge of the U.S. District Court for Washington, D.C. issued a standing order requiring the grand jury foreperson to inform (in writing) the duty magistrate judge when the grand jury fails to return an indictment. The duty magistrate judge must, in turn, promptly inform the district’s Chief Judge.
- In May 2026, the U.S. District Court for the Northern District of Illinois amended its local rules by adding LCR 6.2.1, which requires the grand jury’s foreperson to report in writing when the grand jury does not return an indictment against a defendant for whom a criminal complaint or information has been filed. A redacted copy of the report will ultimately be filed on the public docket.
- In July 2026, the U.S. District Court for the District of Massachusetts proposed changes to its local rules which would (1) require the government to disclose to a defendant any instance in which the grand jury had not returned a true bill, and (2) require the grand jury’s foreperson to report in writing when the grand jury does not return an indictment against a defendant for whom a criminal complaint or information has been filed. The government is required to provide a copy of this report to the defendant and defense counsel, if and when a complaint or information charging the defendant is unsealed.
While the changes initiated by individual district courts are important steps towards transparency, this is an area where a uniform national approach should be adopted. Three amendments to the Federal Rules of Criminal Procedure (the “Rules”) would be easily implementable steps to ensure that grand juries are being properly instructed and to hold government attorneys accountable for their conduct.
- Rule 6, which governs the grand jury, should be amended to require the disclosure, in every indicted case, of an unredacted copy of the entire grand jury transcript to the district court and magistrate judges assigned to a criminal matter. This would enable the court to review the government’s interactions with the grand jury and the sufficiency of legal instructions provided to the grand jury. Requiring production of the complete transcript would prevent the government from making selective redactions and, more generally, disincentivize government attorneys from having any inappropriate communications with grand jurors.
- Rule 16, which governs the parties’ discovery obligation, should be amended to require that, as part of pre-trial discovery, criminal defendants receive grand jury minutes that reflect the legal instructions (and any other commentary or recommendations) provided to the grand jury by the government’s attorney. This will enable defense counsel to provide well-informed advice to their client as to whether or not there is a basis to challenge the validity of a grand jury proceeding.
- Rule 5 should be amended to provide that, at the first post-indictment proceeding when both the prosecutor and defense counsel are present, the court will issue a written and oral order (i) confirming the prosecutor’s discovery obligations relating to grand jury proceedings and (ii) requiring the prosecutor to confirm on the record that the grand jury was provided with legally correct instructions prior to commencing its deliberations. Such an amendment would track recent precedent. In 2020, Congress passed the Due Process Protections Act, which amended Rule 5 by requiring each court, at the parties’ initial appearance, to issue an order reminding the government of its duty to disclose exculpatory information consistent with its obligations under Brady v. Maryland.
Conclusion
A system predicated on customs and best practices is doomed to be viewed with suspicion when those playing a leading role have repeatedly demonstrated a willingness to disregard those norms. The grand jury is a venerable institution that, in recent times, has risen to the occasion to serve as a check on unrestrained government not because of how the system is designed, but in spite of it. We should now take steps to strengthen the grand jury as an institution by giving the courts and defense counsel additional tools to serve as a much-needed check on prosecutors’ authority.
