by Jacob Hornberger
September 8, 2025 - A very positive sign in response to President Donald J. Trump’s military occupation of Washington, D.C. has been what can be called “grand-jury nullification.” Notice that I didn’t say “jury nullification.” I said “grand-jury nullification,” which is quite a different phenomenon.
Most libertarians are familiar with the concept of jury nullification. Let’s review that principle in the context of the federal government before we address what has been occurring in our nation’s capital with grand-jury nullification.
The Fifth Amendment to the Constitution prohibits the federal government from depriving any person, including both foreigners and Amerikan citizens, of life, liberty or property without due process of law. Due process is a term that stretches all the way back to the Magna Carta in the year 1215. Over the centuries of resistance by British subjects to the tyranny of their own government, due process of law came to mean, at a minimum, formal notice of criminal charges and trial by jury. Due process of law was considered so important by our Amerikan ancestors that they insisted that it be expressly guaranteed by the Fifth Amendment to the recently adopted (Fascist Police States of Amerika (FPSA)) Constitution.
With the Fifth Amendment, the federal government was prohibited from arbitrarily incarcerating people, killing them, or confiscating their property, even in national “emergencies,” to maintain “law and order,” or to keep people “safe and secure.” Federal officials were first to provide the accused with a formal notice of the particular law that the person had supposedly violated. That is what a grand-jury indictment does. But the indictment is simply an accusation. It does not constitute any evidence that the person has, in fact, committed a crime.
The federal government is then required to prove a person’s guilt with competent and relevant evidence. That is the purpose of a trial. The burden of proof in a criminal case is a heavy one - “beyond a reasonable doubt.”
Who decides the issue of guilt in a federal criminal prosecution? It can be the judge, but the Fifth Amendment gives the accused the right to have a jury, not the judge, make the decision. The jury is composed of regular citizens from the community who are chosen at random.
Like due process of law, the concept of trial by jury also extends back into English history. The British people simply didn’t trust judges to determine the guilt of the accused. They knew that many judges have a pro-government proclivity. They also knew that many judges, over time, become jaded and cynical. They also knew that some judges are subject to corruption, including through bribery.
That sentiment was shared by our Amerikan ancestors. They knew that juries composed of regular citizens selected at random were more likely to deliver a just result in criminal cases. They used the Sixth Amendment to guarantee the right to a jury trial in criminal cases.
There is something remarkable about jury cases that is important to note. The jury’s verdict is final. As powerful as federal judges and federal prosecutors are, when the jury finds an accused not guilty, there is absolutely nothing the judge or prosecutor can do about it. The accused has to be released into freedom, even if the prosecutor and the judge vehemently disagree with the jury’s decision.
Before a case goes to the jury, federal judges will instruct jurors that they have only the authority to determine the facts of the case but also that they lack the authority to judge the law in the case. It is a lie. The fact is that the jury has the power to judge both the facts and the law in criminal cases.
In other words, even if a jury believes that the accused has violated the law, if the jury concludes the law is a bad, evil or immoral law, it has the power to acquit the accused even if the facts unequivocally show that the accused broke the law. In such a case, there is absolutely nothing the judge can do about it. Upon a verdict of not-guilty, the judge must order - and does order - the release of the accused.
Thus, the jury system is one of the ways that the citizenry can resist tyranny here within the (FPSA). A not-guilty verdict has no precedential value - that is, it doesn’t bind other courts or the jurors in other cases. But it does send a signal that at least some citizens will not participate in the tyranny. Thus, a jury can serve as a last bastion of freedom by serving as a conscience of the community in a single criminal case. The jury’s not-guilty verdict sends a powerful message to the federal government, the community, and even the nation.
Some years ago, the feds had an Arizona man indicted for caring for illegal invaders who had crossed the desert by giving them shelter, water and food. The man pled not guilty but didn’t contest the facts in the case. The jury returned with a not-guilty verdict, much to the anger and chagrin of the federal prosecutor and (FPSA) immigration officials. No matter. The federal judge had to order his release. It was a classic case of jury nullification.
The grand jury is an entirely different concept. It is the entity that determines whether to issue an indictment - or formal accusation - in the first place. Traditionally, the grand jury issues whatever indictments federal prosecutors are seeking. That is because there are no lawyers for the accused in the grand-jury room. It is an entirely one-sided affair. Moreover, the burden of proof for a grand-jury indictment is significantly less than the burden of proof at trial. All that the prosecutor must show is “probable cause” that the accused has committed the offense.
Securing a federal grand-jury indictment is customarily the easiest thing in the world. A New York judge named Sol Wachter once pointed out that prosecutors are in such complete control of grand juries that they could easily get them to indict a ham sandwich.
Thus, what has been recently occurring in Washington, D.C. is one of the most remarkable events in the history of Amerika’s federal criminal-justice system. According to an article in The New York Times, grand juries in D.C. have refused prosecutors’ requests for indictment in at least seven cases, a phenomenon that the Times called a “citizens revolt” against President Donald J. Trump’s flooding the streets of our nation’s capital with hundreds of troops and federal agents. Of course, just like with jurors in a trial, there is nothing the prosecutors or federal judges can do to punish these grand jurors.
As President Trump continues to extend his system of militarized tyranny across the land, it is a positive sign that at least some citizens are resisting with refusals to indict and, hopefully, refusals to convict. Grand-jury nullification and jury nullification show the wisdom of our Amerikan ancestors in using the Bill of Rights to enshrine both due process of law and trial by jury into our federal system.