We know that a grand jury in Washington refused to indict sandwich thrower Sean Dunn. But we don’t necessarily know why.
It’s a stunning result with serious implications no matter what motivated the rejection. Yet, what those implications are, exactly, could depend on the rationale for refusing to approve a felony charge against the man who became a folk hero in D.C. amid the Trump administration’s federal crackdown in the nation’s capital.
Looking at this formally, the answer to why a grand jury would decline to return an indictment is simple: It means prosecutors failed to show probable cause that Dunn committed a felony when he threw food at a federal agent. Given the ease and frequency with which prosecutors usually secure indictments, that would make the failure both rare and embarrassing in a high-profile arrest that was touted by the administration. But it would also make it a straightforwardly technical one — that is, a legal failing to satisfy the elements of the crime under the applicable legal standard.
But something bigger may have been at play: jury nullification. That’s when jurors believe that prosecutors have proved the technical elements of the case but, nonetheless, the jury renders a moral objection by way of a not guilty verdict (or in the case of a grand jury, a “no true bill”).
To put the question one way: Did grand jurors think the government did a bad job, or a bad thing?
To put the question one way: Did grand jurors think the government did a bad job, or a bad thing?
At first glance, Dunn’s case might seem like the latter, a more profound statement from the people of D.C. to the administration. But there’s also the more prosaic possibility that grand jurors simply applied the law to the facts and found the government came up short.
Of course, both aspects could be in play. Perhaps the grand jurors didn’t consciously decide or voice their decision in one particular way or the other. Deliberations are secret, and jurors don’t have to explain themselves to prosecutors or anyone else.
Importantly, we have more than Dunn’s case to go on in analyzing this phenomenon. There’s the even more shocking recent failure of D.C. prosecutors to get an indictment against Sidney Reid a whopping three times. She was initially charged under the same federal assault statute as Dunn. After striking out in the grand jury, prosecutors reduced her case to a misdemeanor, which doesn’t require grand jury approval.
Let’s assume for a moment that grand jurors in both the Dunn and Reid cases just thought there wasn’t enough proof to charge them with felonies. The known facts of both cases certainly allow for that possibility. Through that lens, the message to prosecutors is that they need to more carefully evaluate the quality of cases they bring.
But if the message is that the people of D.C. are declining to approve charges despite the evidence presented to them, that’s something that should worry prosecutors even more.
Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.








