'Playing cops and robbers like children'. Federal judge blasts DOJ for DC crime crackdown

( This story has been updated with details about the court proceedings)

WASHINGTON – Another federal judge in the nation’s capital has blasted the Justice Department for filing federal felony charges it couldn't convince a grand jury to approve, this time in the case of a man accused of threatening to kill President Donald Trump .

The failure to secure an indictment is another setback for Trump’s handpicked U.S. attorney for the District of Columbia, former Fox News host Jeanine Pirro , whose office has repeatedly disproved the axiom that a grand jury will indict even a ham sandwich.

“It's not fair to say they're losing credibility. We're past that now,” U.S. Magistrate Judge Zia Faruqui said of Pirro's office and the broader Justice Department during a Sept. 4 hearing for the accused man, Edward Alexander Dana, a person in attendance confirmed to USA TODAY.

“There's no credibility left,” Faruqui later said, according to that person.

In a court order later Sept. 4, Faruqui ordered Pirro's office to answer a series of questions about why it didn't dismiss the federal case sooner and what it is doing "to remedy what happened to Mr. Dana," who was taken into custody by Washington police officers Aug. 17 after allegedly damaging a light fixture at a local bar. He was kept in custody for nearly a week before the federal case ultimately was dropped.

Faruqui also blasted Pirro's office for bringing other recent cases in the District of Columbia in which prosecutors sought felony charges but grand juries refused to hand up federal indictments. He noted that Justice Department rules state that "the U.S. Attorney should only commence prosecution if she believes 'that the admissible evidence will probably be sufficient to obtain and sustain a conviction.'"

"Given that there have been an unprecedented number of cases that the U.S. Attorney dismissed in the past ten days, all of whom were detained for some period of time, the Court is left to question if this principle still applies," Faruqui wrote.

'We’re acting like this is all normal'

During the hearing, the judge was even more strident.

“We’re acting like this is all normal,” Faruqui told a federal prosecutor at the Sept. 4 hearing, according the person in attendance. The judge also accused Pirro's office of “playing cops and robbers like children.”

“What’s to prevent people from just getting rounded up off the streets?” the judge asked .

Tim Lauer, a spokesman for Pirro, confirmed that the office has dismissed the felony charges against Dana after the federal grand jury action and that it has filed misdemeanor charges in Superior Court.

Dana's defense lawyer, assistant federal public defender Elizabeth Mullin, said she could not comment on the case.

Dana initially was charged with attempting "to make threats to do bodily harm to the President of the United States," an employee of Bar Japonais and a Metropolitan Police officer after an altercation at the DC bar, court records show.

It is at the latest of at least five cases in which DC grand juries have declined to indict people on felony charges brought by prosecutors in Pirro’s office, according to legal experts who have been tracking the cases.

Pirro’s office has said it will charge federal felonies as aggressively as possible as part of Trump’s crime crackdown in the District.

In one especially high-profile case, prosecutors charged a DC man captured on video throwing a sandwich at a federal agent with a misdemeanor offense after  failing to convince a grand jury  to return a more serious felony indictment against him.

In another, a federal grand jury in DC refused to indict an Indiana woman accused of threatening to kill Trump. Nathalie Rose Jones, 50, of Lafayette, Indiana was arrested on Aug. 16 in Washington on charges that she made death threats against Trump on social media and during an interview with Secret Service agents.

More: Top Trump DOJ official spread false election claims as Fox News host but later reversed

In Dana's case, a police officer quoted him as saying he was intoxicated and that in the course of making other rambling statements – including singing in the back of a patrol car and claiming to be in the Russian mafia – he vowed to fight fascism even if it meant killing a president, court records show. Dana was unarmed.

'Hyperbolic rambling' didn't amount to criminal threat

According to an FBI affidavit filed in support of the felony case, "In the course of his threatening statements, DANA threatened to kill the President."

Specifically, Dana told a police officer, "I’m not going to tolerate fascism. ... And that means killing you, officer, killing the President, killing anyone who stands in the way of our Constitution," the affidavit states.

Mullin, told USA TODAY that prosecutors should have known that his "hyperbolic rambling" didn't amount to a criminal threat.

“A 15-year-old would know,” Mullin said. “It was obvious from the outset.”

It is extraordinarily rare for a grand jury to refuse to return an indictment after prosecutors bring evidence and witnesses before them.

According to ⁠ Bureau of Justice Statistics data from 2010, only 11 out of about 162,000 federal cases were not indicted, which means grand juries issued a "no true bill" just 0.0068% of the time. That means grand juries went along with prosecutors' requests to indict in more than 99.99% of federal cases.

“Threatening the life of the President is one of the most serious crimes and one that will be met with swift and unwavering prosecution. Make no mistake—justice will be served,” Pirro said in an Aug. 18 news release.

In Jones' case, Secret Service officials observed that Instagram user account “nath.jones” had posted threatening comments about the president of the United States from Aug. 2 to Aug. 9, the Justice Department said in the release. "The Instagram user called for President Trump ’s removal, labeled President Trump as a terrorist, referred to President Trump’s administration as a dictatorship, and stated that President Trump had caused extreme and unnecessary loss of life in relation to the coronavirus," the DOJ said.

But a grand jury refused to hand up an indictment on felony charges against Jones, her attorney said in a Sept. 2 court filing , the AP reported.

Judge says DOJ 'playing cops and robbers like children'

In Dana's case, Faruqui told Pirro's office that if it doesn't dismiss his federal case with prejudice − meaning it can't be refiled − and also expunge the record stating that Dana was arrested in the first place, "’it is then ORDERED to submit briefing as to why not," he wrote.

The White House said Sept. 4 that more than 1,800 people have been arrested since Trump's anti-crime crackdown started Aug. 7. Over 40 cases have been filed in district court, which hears the most serious federal offenses, including assault, gun and drug charges.

Contributing: Nick Penzenstadler , Aysha Bagchi

This article originally appeared on USA TODAY: Judge blasts Trump DOJ after another DC grand jury refuses felony case