When a Grand Jury Never Votes: What Federal Employees Should Learn
Federal employees know better than anyone: process matters. Whether it’s a performance-improvement plan, a disciplinary proposal, or an MSPB appeal, the government’s actions only hold when the rules are followed. That’s why the recent news about the Justice Department’s prosecution of former FBI Director James Comey is more than political noise—it’s a case study in how skipping steps can unravel an entire action.
Here’s the core issue: DOJ admitted that the final two-count indictment was never actually presented to the full grand jury. The grand jury rejected one of the original proposed charges—perfectly normal—but was never asked to consider the version that ultimately landed on paper. In criminal law, that’s not a small clerical error; it’s a structural failure. If a grand jury does not vote on the charges, the indictment rests on air.
For federal employees, the analogy is clear: it’s like a removal action where the agency never issued a proper proposal, then tries to finalize it anyway. MSPB would toss that immediately.
Why Misleading the Grand Jury Matters
The judge also found that the prosecutor—someone appointed after a career U.S. Attorney resisted political pressure—misstated basic constitutional rules to the grand jury. Two missteps stand out:
1. Suggesting grand jurors could hold silence against the accused.
That’s a Fifth Amendment violation so fundamental that most people without legal training know it instinctively. In agency terms, this is like telling a deciding official they can punish an employee for invoking their Weingarten rights.
2. Inviting grand jurors to “imagine better evidence” later.
A grand jury must evaluate the evidence presented—not hypothetical future discoveries. Allowing imagination to substitute for proof is the opposite of due process.
If you’ve ever had a supervisor rely on assumptions rather than facts—or had to challenge a flawed investigation—you understand why this matters.
The Evidence May Be Tainted, Too
Another problem: the prosecution relied on testimony tied to privileged attorney–client materials collected in a prior leak investigation. Standard DOJ practice treats privileged material like hazardous waste—isolated, sealed, and kept away from new cases. Here, agents dug through it anyway.
A federal judge called that “highly irregular” and a “radical departure” from DOJ norms. In federal employment terms, that’s like using inadmissible medical records or EEO statements to support discipline: once contaminated, the whole action becomes vulnerable.
Why This Case Should Matter to You
The case now faces multiple overlapping risks—an indictment never properly voted on, evidence with privilege problems, misstatements of law, and questions about the prosecutor’s own appointment. Any one of these could sink a prosecution. Together, they could erase the case entirely, especially given that the statute of limitations has likely expired.
This is not about defending or condemning Comey. It’s about the broader principle: when systems designed for fairness are twisted—whether for efficiency, pressure, or politics—trust erodes. Federal employees see this erosion before most Americans do.
A mindful approach reminds us to sit with two truths at once: accountability matters, and so does process. When either is sacrificed, everyone in the system becomes more vulnerable.
Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.