Attorneys Surprised by Depth of Protester Grand Jury Problems

The full extent of a federal prosecutor’s misconduct revealed in grand jury transcripts from a case against Chicago-area ICE protesters surprised attorneys, who said it raised questions about the motivation for bringing charges—and the possibility of further irregularities in other cases.

While it’s premature to draw broad conclusions based on transcripts in one case, they said, more could be learned in coming days as defense attorneys fight for transparency into other matters handled by the same prosecutor.

The transcripts “were so much worse than what I had expected,” said Judith Miller, clinical professor of law in the University of Chicago Law School’s Federal Criminal Justice Clinic.

“They really raise the specter of either selective prosecution, which is absolutely unacceptable and unconstitutional,” she said, or “they raise questions about what happens regularly before the grand jury.”

The case against the protesters collapsed last month after Judge April Perry reviewed the unredacted transcripts and described the apparent misconduct from the bench. It’s triggered a credibility crisis in the Chicago US Attorney’s Office, where top prosecutor Andrew Boutros has struggled to contain the fallout.

The prosecutor who led the grand jury presentation, Sheri Mecklenburg, repeatedly “vouched” for the evidence in the case, putting her own credibility on the line to convince grand jurors about the strength of the evidence, the transcripts show. A week later, she abruptly excused a grand juror who was outspokenly skeptical about the case. And she admitted having had substantive conversations with grand jurors outside the jury room.

Boutros said he didn’t learn about the vouching and extraneous conversations until April, when he decided to drop the felony conspiracy charge. He dismissed the remaining misdemeanor charges in May after Perry said her trust in prosecutors had been broken.

Prosecutors late Thursday moved to dismiss charges in the Northern District of Illinois against two defendants in a fraud case after a judge called for an evidentiary hearing to examine similar allegations of misconduct by Mecklenburg. A third judge said she’d examine grand jury transcripts in a case Mecklenburg presented to a grand jury in 2019.

Mecklenburg lost her detail to the Senate Judiciary Committee last month after the misconduct allegations were made public. Through her attorney, Mecklenburg declined to comment.

Christopher Parente, an attorney for one of the ICE protesters, said in a statement this week the transcripts belie any Justice Department claims that grand jury indictments mean its “vindictive political indictments” have merit.

“This DOJ has violated the good faith foundation of the grand jury process to weaponize indictments and subvert the law,” said Parente.

Apparent Misconduct

Andrew Leipold, professor emeritus at University of Illinois College of Law, cautioned against making generalizations based on one case. The bigger problem for the prosecutors, he said, could be that they shielded the more damning parts of the transcript from the versions they initially submitted to Perry.

“That consciousness of, ‘Gee, this is at least embarrassing and improper, let’s not tell the judge even though the judge wants to see the transcripts’ — that might end up being the larger problem for them,” he said.

Though Perry’s summary of the apparent misconduct has been public for weeks, the depth of the improprieties was surprising, said Ric Simmons, a professor at Ohio State’s Moritz College of Law.

“The prosecutor went out of their way to essentially push the grand jury to get the indictment in this case,” Simmons said. And, he noted, grand jurors rejected the indictment the first time “even with the pressure and the inappropriate persuasive argument.”

Until recently, it was almost unheard of for grand juries to decline to indict. They’ve become more common in cities, including Chicago, which the Trump administration targeted for immigration enforcement or military deployments.

Mecklenburg went to the grand jury again a week later to present the case, but got significant pushback from at least one grand juror—whom she then invited to leave. Under federal rules of procedure, prosecutors don’t have the authority to excuse grand jurors, attorneys said.

It could be worth reconsidering the extreme secrecy that surrounds grand jury proceedings, Miller said.

“I did not think much about changes in the grand jury proceedings or changes in some of the secretive procedures, but I’m thinking about it now,” she said. “Maybe there are legal changes that need to happen for there to be less secrecy, which would have prevented problems like this from arising in the first place.”

Impartiality Question

Boutros said he called off the grand jury proceedings on Oct. 16, right after he learned of the grand jurors’ dismissal. The next week, he addressed multiple grand juries, asking if they could put their feelings aside and evaluate evidence impartially. Boutros’ office released his remarks last week in an unusual “special report.”

In a vacuum, there was nothing wrong with what Boutros told the grand jurors, Simmons said, but in context, it could look like he was putting a “thumb on the scale.”

“If I were a grand juror, it sends a clear message that the US attorney of the district thinks we’re doing something wrong and has to give us a correction,” Simmons said. The grand jury voted to indict later that day.

Grand juries who aren’t able to listen to evidence “impartially” are “a threat to the rule of law,” Boutros’ special report said.

But there’s also a school of thought, Leipold said, that grand jurors aren’t necessarily obligated to return an indictment even if they do find probable cause. Under that framework, grand juries must evaluate the evidence but also act as the “conscience of the community,” he said, and reject charges if prosecutors are bringing cases “they ought not to be bringing.”

“The government is taking the view that your job, grand jurors, is to decide have we given you enough evidence, and it’s not your business to worry about anything else,” he said. “A different view of the grand jury is yes, by golly, it is our business, standing as a buffer between citizens and the government.”

The case is United States v. Rabbitt, N.D. Ill., No. 1:25-cr-00693.