Creators: Jury Nullification -- An Expression of Discontent with Government

Matthew T. Mangino
CREATORS
November 11, 2025

Jurors play a prominent role in the criminal justice system. Although few cases go to trial — statistically as few as four defendants in 100 — jurors wield the same power as legislators and judges.

Being a juror is a form of democratic participation, applying and interpreting the law through the lens of the community's values and experiences, and acting as a check on government power.

Traditionally, the role of a juror is portrayed as merely the "finder of fact." Juries make crucial decisions on the credibility and believability of witnesses — they decide the facts. A trial judge determines and instructs jurors on the law, which the jury must follow. Through the determination of facts and the application of the law, decisions of guilty or not guilty are to be made.

However, it is not quite that simple.

Beyond determining the facts, a juror's conscience is also a protected element of the justice system. The act of jury nullification — when a jury returns a verdict of not guilty despite its belief that the defendant is guilty of the crime charged — is the final check on governmental power.

That check on power has grown so much more important at a time when the president of the United States is ignoring limits on executive power.

In 2004, conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of jury nullification. He wrote, "(The jury) right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary."

Jury nullification is taking hold in places like Washington, D.C. Recently, over a period of three weeks, grand juries in Washington rejected three separate efforts by federal prosecutors to obtain an indictment against persons accused of felony assault against federal agents.

A grand jury rejecting an indictment is extraordinary. A grand jury needs only to find probable cause that a crime has been committed to move forward. Robert Morgenthau, a longtime Manhattan district attorney, said he could get a grand jury to indict a ham sandwich.

According to The New York Times, the pattern of failure to obtain indictments "(I)ndicated that the ordinary people called upon to sit on grand juries were pushing back against efforts by prosecutors to harshly charge fellow citizens who had encountered law enforcement officers on the streets."

Something similar happened in Los Angeles recently as federal prosecutors struggled to obtain indictments against protesters arrested during demonstrations against federal immigration actions. Justice officials told The Los Angeles Times that prosecutors have struggled to get several protest-related cases past grand juries. In some cases, prosecutors reduced charges against defendants to misdemeanors after repeatedly falling short at the grand jury level.

Then there is Kendall Diaz, who was found "not guilty" of assaulting a U.S. Border Patrol agent in Spokane, Wash.

Diaz was arrested by federal immigration agents, accused of elbowing an ICE agent in the eye during a struggle in his own front yard. While the agent emerged from the encounter with a black eye, it appeared the jury, which reached a verdict in less than two hours, determined that Diaz's conduct, although captured on video, was not an intentional assault.

Last week, a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of assaulting a federal officer. Dunn became the symbol of defiance when he hurled a sub sandwich that hit the chest of an agent wearing body armor. He went to trial, admitting he hit the officer to divert his attention from fleeing protesters.

Jurors are, in a sense, speaking for their fellow citizens. They are challenging the government's overreaching, overcharging and overzealous prosecution of protesters who were expressing their displeasure with the government.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Autocracy Watch Day 10: An authoritarian creates a cult of personality

 The New York Times, NO. 10

An authoritarian creates a cult of personality. Trump has.

Emperors and kings often glorified themselves by displaying their portraits everywhere. The American tradition has rejected that kind of hagiography for living presidents. Our leaders haven’t needed to puff themselves up this way, until now.

Huge banners with Mr. Trump’s face hang from government buildings. He posts memes in which he wears a crown, including an A.I.-generated video that depicted him defecating on protesters. He held a lavish military parade on his birthday. At televised meetings, members of his cabinet gush sycophantic praise. He announced the creation of a meme coin with his likeness. To celebrate the country’s 250th birthday next year, the Treasury Department plans to put his face on a physical coin.

The Bottom Line
The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.

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Autocracy Watch Day 9: An authoritarian tries to take over universities

 The New York Times, NO. 9

An authoritarian tries to take over universities. Trump has started to.

Authoritarians, recognizing that universities are hotbeds of independent thought and political dissent, often single them out for repression. Mr. Putin and Mr. Erdogan have closed universities. Mr. Modi’s government has arrested dissident scholars, while Mr. Orban has appointed loyalist foundations to run universities.

A signature policy of Mr. Trump’s second term has been his attack on higher education. He has cut millions of dollars of research funding, tried to dictate hiring and admissions policies and forced the resignation of the University of Virginia’s president. It is a sustained campaign to weaken an influential sector home to many political progressives who do not support him — and to many young people, who typically form the crux of anti-authoritarian protest movements.

The Bottom Line
Because the federal government finances so much academic research, it has considerable power over universities. Initially, some universities seemed as if they might simply submit to Mr. Trump’s demands. More recently, several showed more willingness to resist, rejecting a proposal that would have rewarded them financially for adopting Trump-friendly policies.

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Autocracy Watch Day 8: An authoritarian controls information and the news media

The New York Times, NO. 8

An authoritarian controls information and the news media. Trump has started to.

Democratic governments prize accurate information as a guide to decision-making. Authoritarians seek to suppress inconvenient truths.

Mr. Trump has sought to manipulate government information in several ways. He fired the head of the Bureau of Labor Statistics after the agency reported disappointing job growth this summer. He shut down federal data collection efforts related to climate change, presumably because the information might encourage people to take action.

He has also taken steps to control the media, both traditional forms and new ones. He arranged for the sale of TikTok from a Chinese company to investors with ties to his political allies. He pushed Congress to end funding for public radio and television. He extracted multimillion-dollar payments from ABC, Paramount (which owns CBS), YouTube and Meta to settle baseless claims that he has been treated unfairly, and he is pursuing lawsuits against The New York Times and The Wall Street Journal. All of these moves are meant to reduce coverage that does not parrot his views.

The Bottom Line
In place of an independent and free press, Mr. Trump evidently hopes to create a shadow ecosystem willing to promote his interests and talking points.

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Autocracy Watch Day 7: An authoritarian vilifies marginalized groups

 The New York Times, NO. 7

An authoritarian vilifies marginalized groups. Trump has.

Authoritarians tend to demean minority groups, trying to turn them into a perceived threat that provides a justification for a leader to amass power. Mr. Trump has repeatedly suggested that marginalized groups are responsible for the nation’s problems.

Immigrants have topped his list. Mr. Trump has blamed them for destroying communities and his administration has tried to dehumanize them by posting mocking videos of shackled immigrants. In response, many Latinos have stopped speaking Spanish in public and started carrying their passports to prove citizenship.

He has vilified transgender Americans and barred them from military service. He has fired women and people of color from leadership posts and ended programs that promote workplace diversity. His administration has attempted to erase aspects of Black history, including by removing books on slavery and segregation from military libraries and pressuring Smithsonian museums to minimize those subjects. At the same time, he has suggested that white people and Christians are victims, which echoes the autocratic habit of claiming that majority groups are in fact oppressed.

The Bottom Line
Mr. Trump is borrowing from the autocrats' playbook by suggesting that some citizens are legitimate and others are second-class.

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Autocracy Watch Day 6: An authoritarian declares national emergencies on false pretenses

 The New York Times, NO. 6

An authoritarian declares national emergencies on false pretenses. Trump has.

Authoritarians often curtail democracy by declaring an emergency and arguing that the threat requires them to exercise unusual degrees of power.

Mr. Trump’s recent predecessors were not perfect on this issue. They sometimes declared questionable emergencies. He has gone to another level. He has used manufactured emergencies to sidestep Congress and impose tariffs, deregulate the energy industry, intensify immigration enforcement and send the National Guard into Washington. Chillingly, he has claimed that a Venezuelan gang invaded the United States to justify the killing of foreign civilians in international waters, in defiance of U.S. and international law.

The Bottom Line
Mr. Trump’s willingness to kill people without due process, through the blowing up of boats that American officials could instead stop and search, represents one of his most extreme abuses of power. It raises the prospect that he may expand the use of emergency power to other areas, including domestic law enforcement.

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Creators: SCOTUS Wants to Hear More on Chicago Troop Deployment

Matthew T. Mangino
CREATORS
November 4, 2025

The U.S. Supreme Court has agreed to hear a significant case for the future of America's democracy. In the case of Trump v. Illinois, the Court will decide whether the president can federalize and deploy the National Guard in Illinois and Chicago.

Early last month, officials in Illinois, particularly in Chicago, filed a federal lawsuit to block the federal government's plan to deploy National Guard troops within the state. A federal district court judge in the Northern District of Illinois issued a temporary restraining order on Oct. 9, 2025, prohibiting the Trump administration from federalizing and deploying the National Guard within Illinois.

In Los Angeles and Portland, federal district judges issued similar orders blocking troop deployment after determining that protests did not rise to the level of a rebellion and that local law enforcement officials currently were capable of enforcing the law, but the U.S. Court of Appeals for the Ninth Circuit stayed the orders.

The Northern District of Illinois found the Trump administration had "made no attempt to rely on the regular forces before resorting to federalization of the National Guard," and it had not contended "(nor is there any evidence to suggest) that the president is incapable with the regular forces of executing the laws."

The Trump administration argued there is "no reason to believe that courts can, or should, second-guess the President's conclusion" that military force is needed to suppress an emergency. "(T)his case," the brief argues, falls in the heartland of unreviewable presidential "discretion." According to the SCOTUSBlog, even if judicial review is permissible, the government says, a court must be "highly deferential" to the president's decision.

The Seventh Circuit Court of Appeals upheld the district court's order finding insufficient evidence of a rebellion and that the administration was unlikely to succeed at trial. The Trump administration appealed to the U.S. Supreme Court, requesting an emergency stay to allow the Illinois deployment to proceed. The high court did not stay the order but agreed to hear the case.

With a ruling pending, the Supreme Court requested supplemental briefs from both parties on a specific legal question: how the term "regular forces" in 10 U.S.C. 12406, the law relied on by the Trump administration to deploy National Guard troops, should be interpreted and how that interpretation affects the application of the law.

Congress first delegated its constitutional power to activate state militias to the president through the Militia Act of 1792. Congress renewed that delegation of authority in the Militia Act of 1795. The 1795 Act was a precursor to the Militia Act of 1903. Like Section 12406, the 1795 Act contained a predicate "invasion" condition: "(W)henever the United States shall be invaded, or be in imminent danger of invasion ... , it shall be lawful for the president of the United States to call forth such number of the militia ... as he may judge necessary to repel such invasion."

According to Democracy Docket, "The (Supreme Court's) question appears to stem from an amicus brief filed with the Supreme Court by Martin Lederman, a former DOJ deputy assistant attorney general who's now a professor at the Georgetown University Law Center."

Lederman argued that "regular forces" does not refer to federal law enforcement — ICE, FBI, border patrol— but rather the armed forces within the "Department of War," formerly the Department of Defense.

Lederman noted, according to Democracy Docket, that throughout U.S. history, and specific legal history of 10 U.S.C. 12406, "regular" was often used as a shorthand for the Army — "the regulars" — as opposed to the state militias that evolved into today's National Guard.

The argument goes, since the Trump administration never sent members of the armed forces to assist ICE in Chicago, we do not know if the administration could determine that it was unable to execute federal law with "regular forces" as required by Section 12406 and "therefore lacked the authority to federalize members of the Illinois Guard, Lederman asserted."

With the Supreme Court's new briefing schedule, we can expect a decision as soon as the end of the month.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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