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If there’s a legal term that dominates Donald Trump’s presidency, “due process” might be it. The public has come to know the term in connection with his administration’s various attempts to skirt the constitutional guarantee.
But it’s Trump-aligned criminal defendants benefiting from that legal protection in a new ruling out of Arizona. The ruling comes in a so-called fake electors criminal case brought by Arizona Attorney General Kris Mayes. Trump wasn’t charged, but his associates Rudy Giuliani, Mark Meadows, John Eastman and others were. They’ve pleaded not guilty.
The indictment cited the defendants’ alleged scheme to keep Trump in office despite his 2020 election loss to Joe Biden, which, prosecutors said, would’ve violated the will of Arizona voters. It’s one of several 2020 election–related cases brought by state prosecutors, which presidents can’t pardon away or get dismissed like federal cases.
The new ruling, filed Monday, was prompted by defense arguments that their rights were violated during the grand jury process. When that happens, judges can send the case back for a do-over.
The defendants argued that the state failed to properly instruct grand jurors about the Electoral Count Act of 1887, a law that defendants say helps their case. The state argued that, even though it didn’t give the full text of the law to the grand jury, relevant parts of it emerged during the process and so that should be good enough to move forward.
Siding with the defense, Judge Sam Myers observed that the ECA “was central to the Defendant’s claims that they were acting lawfully and without an intent to defraud.” The judge further noted that the state was aware that at least some of the defendants claimed their actions were authorized by the ECA.
“A prosecutor has a duty to instruct the grand jury on all the law applicable to the facts of the case,” Myers wrote in his brief order.
“Due process compels the prosecutor to make a fair and impartial presentation to the grand jury,” he added. “Because the State failed to provide the ECA to the grand jury, the Court finds that the defendants were denied a substantial procedural right as guaranteed by Arizona law,” he concluded.
The ultimate effect of Myers’ order is yet to be determined. Conceivably, the state could secure a new indictment while supplying the grand jury with the text of the law at issue. If doing so prevents prosecutors from moving the case forward, then so be it, though that outcome would be a bit surprising, given the degree to which the government controls the grand jury process — save for the rare judicial intervention, as happened here.
There’s the old saying that a prosecutor could indict a ham sandwich. Viewed through that lens, the judge essentially said the state forgot an ingredient, albeit one whose absence, the judge reasoned, was enough to ruin the meal.
But putting aside the relatively low bar to clear in the grand jury, it appears that Mayes wants to keep the case on track as is. The Washington Post, which noted that the initial grand jury presentation took weeks, quoted a spokesperson for the Democratic prosecutor as saying, “We vehemently disagree with the court, and we will file a special action to appeal the ruling.”
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