Juries Provide Critical Check on Trump’s Brand of Justice

The decision to charge someone with a crime is a momentous one. Yet under its current leadership, the Department of Justice appears to be shirking its duty to uphold the rule of law in making those calls, especially as it uses its vast resources to prosecute President Donald Trump’s perceived foes—sometimes after his public urging. This failure to exercise good faith judgment undermines trust in our criminal justice system.

Fortunately, another critical player has stepped up: the members of juries. Jurors considering criminal charges brought under the DOJ have provided a vital check on the Trump administration. Today, jury service is one of the most important actions ordinary Americans can take to protect the rule of law.

As the former chief justice of the Hawaii Supreme Court and a former assistant US attorney who served under presidents of both parties, I can state unequivocally that juries are the foundation of our adversarial system of justice. These 12 people, unbiased members selected from the community, have the immense responsibility to examine the evidence and determine the truth.

Finding the unbiased truth is no small task these days. But the justice system is designed to provide jurors with reliable evidence. In a criminal prosecution, such as those against protestors accused of assaulting immigration enforcement agents, prosecutors must prove their case beyond a reasonable doubt. And witnesses for the government are subject to cross-examination by the defense, which can also present its own witnesses.

The results so far should be a wake-up call for the Trump administration. The defendant accused of assault for throwing a sandwich at a Customs and Border Patrol agent in Washington, DC, was acquitted by a jury. And a Los Angeles Times review of federal criminal cases in Southern California showed the government had lost six out of six trials of protestors charged with assaulting or interfering with immigration enforcement agents—a once-unimaginable losing streak.

To be sure, not every trial involving ICE or Border Patrol has ended in an acquittal. But these verdicts signal that the system is working and the jurors upheld their duty to consider the evidence brought before them fairly, regardless of the heightened political pressure outside the courtroom.

Even more striking, federal grand juries have been declining to indict defendants in many such cases. Unlike jury trials, grand juries operate in secret, and the grand jurors only receive evidence presented by the prosecutor, without adversarial testing. The government’s burden of proof is much lower than at trial. Given these advantages, it has been said that a prosecutor could convince a grand jury to charge a ham sandwich.

But something extraordinary has been happening: Some grand juries have been declining to approve indictments. In Chicago, a federal judge noted in November 2025 that there had been at least three recent instances of grand juries refusing to indict, as opposed to none that he could recall since the early 2000s.

He characterized the recent trend as “virtually unheard of...until Operation Midway Blitz,” ICEʻs immigration enforcement operation in the city. And a DC grand jury recently declined to indict Sens. Mark Kelly (D) of Arizona, Elissa Slotkin (D) of Michigan, and four other Democratic lawmakers who participated in a video advising service members that they could refuse unlawful orders.

Failure-to-indict cases are extremely rare because federal prosecutors traditionally exercise self-restraint and discretion. This measured use of power is rooted in the presumption of innocence, and the recognition that an indictment itself is a stain on a person’s reputation, even if no conviction occurs. Unfortunately, that restraint has been eroded in the current DOJ, whose leaders appear eager to do the president’s bidding.

Again, many grand juries have indicted defendants in high profile prosecutions brought by the department. But the point is that the constitutional safeguards that depend on the willingness of ordinary people to serve on juries—both grand and trial—have worked, and jurors have risen to the challenge.

In these divisive times, the jury’s role of determining facts based on the evidence is more important than ever. It provides a litmus test for what is true so that the public can distinguish facts from spin—and builds confidence in the substance and future of our democratic institutions.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Mark Recktenwald served as chief justice of the Hawaii Supreme Court and as an assistant US attorney for the District of Hawaii. He is a member of Keep Our Republic’s Alliance of Former Chief Justices, which advocates for the rule of law and judicial independence.

Write for Us: Author Guidelines