Chief judge in DC admonishes Pirro's office to be civil in court
Chief U.S. District Judge James E. Boasberg admonished U.S. Attorney Jeanine Pirro’s staff to remain civil in court proceedings, expressing concern Friday about an escalating dispute between prosecutors and a federal magistrate judge who has repeatedly criticized President Donald Trump’s law enforcement surge in the capital.
“It would be in everyone’s interest to turn the temperature down,” Boasberg said as Pirro sat in the front row of the courtroom gallery.
The fracas began when the magistrate judge, Zia M. Faruqui, declined to accept an indictment this week, saying it was probably unlawful because of the unusual tactics that prosecutors had used to obtain it. A prosecutor in Pirro’s office responded in a sharply worded, 18-page filing that accused Faruqui of bloviating from the bench and ignoring the law.
Boasberg held a hearing Friday on an emergency request from prosecutors to intervene in the case, but he ultimately directed them to wait for Faruqui to issue a final ruling by the end of next week before seeking to appeal.
Before adjourning the hearing, however, Boasberg had terse words for Pirro and her staff. The judge said that he sometimes grew frustrated with judges when he was a prosecutor handling homicide cases, which he described as more serious than the gun and assault charges that have proliferated during Trump’s surge.
“There were plenty of cases where judges ruled against me. … But I never would have filed a pleading accusing a judge of bloviating, as you have done in yours,” Boasberg told Assistant U.S. Attorney Jonathan R. Hornok, the chief of the criminal division in the U.S. attorney’s office. The judge said lawyers have an ethical and professional responsibility to be civil to one another and to the court.
Pirro declined to take questions from a reporter after the hearing. Her spokesman, Timothy Lauer, said in a statement: “We respectfully await the judge’s decision on the merits of this issue. The United States Attorney’s Office stands by its briefing in this matter.”
Faruqui has condemned police and prosecutors’ tactics since Trump in August ordered a surge of federal law enforcement in the nation’s capital. In remarks from the bench and written rulings, Faruqui has described law enforcement officials as trampling people’s rights by charging dozens of felonies only to dismiss or downgrade the weaker cases days later, after the defendants spent time in jail.
Pirro, in turn, has defended her policy of seeking the maximum possible charges for those arrested in Trump’s surge—even as D.C. federal grand juries have rejected multiple indictments in an unprecedented show of resistance over the past two months. Pirro has pushed back on Faruqui’s criticisms in increasingly sharp terms, labeling him an “activist judge” who is soft on crime.
Before Trump’s surge, grand juries almost always approved indictments upon prosecutors’ request. Without a grand jury’s approval, prosecutors cannot file felony charges punishable by more than one year in prison.
In a recent case, a federal grand jury declined to indict Kevontae Stewart, what’s known as a “no bill” in legal parlance. Prosecutors then got the same indictment approved by a local grand jury, in D.C. Superior Court, and asked Faruqui to accept it. He refused and instead requested legal briefs from prosecutors and defense attorneys on what to do.
“No one has ever, after a no bill, gone to Superior Court and then brought a case here,” Faruqui, a former D.C. federal prosecutor, said in court last week, according to a transcript. “The good guys play by the rules. That’s what they are there for.”
Stewart was arrested in Southwest Washington last month after D.C. police and federal agents on Trump’s task force spotted him smoking marijuana in an idling Jeep, according to a police affidavit. He attempted to run away, then fell down and tossed a handgun across the street, according to charging documents.
The federal grand jury that first heard the case declined to indict Stewart on a felony charge of being a felon in possession of a firearm. In an effort to salvage the case, prosecutors in Pirro’s office then sought to take advantage of the District’s unique legal system. Federal prosecutors may file charges under D.C.’s local criminal code or under federal law. They may also seek indictments from grand juries in U.S. District Court or D.C. Superior Court, although typically federal charges go to district court and local charges to superior court.
“After receiving a true bill from that local grand jury, prosecutors sought to return the federal indictment in federal court,” Faruqui said in a written order. “At a minimum, this is very unseemly; more than likely, it is unlawful. Not to mention, this only deepens the growing mistrust of the actions of prosecutors.”
At Friday’s hearing, Boasberg called the move to seek a federal indictment from the local grand jury “an exceedingly rare practice over the last decades.”
“It’s unusual, and I can’t say I’ve ever heard of it,” Boasberg said. “I’m not sure it’s so improper for a judge to seek briefing on something he’s not certain of.”
Another federal district judge, Sparkle L. Sooknanan, took Pirro’s office to task in a written opinion this week that echoed many of Faruqui’s criticisms. She referenced Stewart’s case as an example of “apparent prosecutorial machinations.”
“Just this week, prosecutors attempted to return a grand jury indictment from the Superior Court of the District of Columbia in this court after a federal grand jury refused to return an indictment,” Sooknanan wrote about the dueling grand-jury decisions in Stewart’s case.
Pirro’s office pointed to a provision of D.C. law that states: “A grand jury serving in the District of Columbia may take cognizance of all matters brought before it regardless of whether an indictment is returnable in the Federal or District of Columbia courts.” Hornok wrote in a court filing that Faruqui violated judicial conduct rules by making “disparaging” comments about prosecutors in the presence of the local grand jury’s foreperson this week, and argued that the judge may have harmed the government’s chances of getting indictments in other cases.
“Magistrate Faruqui’s actions are legally unsupported, are inflammatory, have already interfered with and tainted the community’s grand juries, and show a clear bias against the Government that is not based in rational or objective facts,” Hornok wrote in a court filing Thursday. He added that “Judge Faruqui’s bloviate first and consider the law later approach is just the latest example of his demonstrated prejudice against the U.S. Attorney and the Trump administration.”
The prosecutor argued that taking a federal case to a local grand jury “is entirely lawful, has been accepted by Magistrate Faruqui’s colleagues without incident, and has been used for over thirty-five years.” Faruqui said he had consulted other judges and none could recall seeing the local grand jury being used as an “end run” after a federal grand jury rejected an indictment.
“It has never happened in this district,” Faruqui said in court last week, according to the transcript, adding that prosecutors “forum-shopped and went to another grand jury to have them bring back their case.”
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