When can federal prosecutors bypass a grand jury and use information or charging via criminal complaint instead of indictment?
Executive summary
Federal prosecutors generally must seek a grand‑jury indictment for “capital or otherwise infamous” federal crimes under the Fifth Amendment, but the criminal complaint (and related magistrate‑judge process) is an established alternative at early stages or when a defendant is arrested; recent reporting shows prosecutors have sometimes used local (D.C.) grand juries or refiled via magistrate procedures after federal grand juries declined to indict (see [3]; [5]; p1_s1). Courts and commentators are now contesting when those workarounds are lawful — judges in at least two recent matters have flagged potential misconduct or departures from long‑standing norms [1] [2].
1. The baseline rule: indictments for serious federal crimes, complaints for initial charging
The Fifth Amendment requires a grand‑jury indictment for “capital, or otherwise infamous” federal crimes, so the traditional route for felony charging is an indictment returned by a federal grand jury [3]. Yet the federal charging system also permits prosecutors to file a criminal complaint and present probable‑cause evidence to a magistrate judge to obtain an arrest warrant or initial detention; that is a common, constitutionally recognized early step before an indictment is returned (available sources do not mention the full DOJ rules but the constitutional text and grand jury function are described in [6]3).
2. When prosecutors use complaints instead of indictments — routine vs. exceptional
Prosecutors routinely use complaints to arrest and hold suspects pending a grand jury; that practice is not new or controversial in ordinary cases (available sources do not mention routine DOJ policy manuals in detail beyond constitutional context in [6]3). What has become contentious in 2025 is prosecutorial tactics when a federal grand jury refuses to indict: reporting shows some prosecutors tried either to re‑present charges to a new federal grand jury, to secure indictments from a local D.C. grand jury, or to proceed via magistrate acceptance of a later‑filed charging document [4] [5] [6].
3. The D.C. workaround and the Boasberg ruling
A federal judge recently concluded that, in at least one D.C. case, the Justice Department could prosecute in federal court on charges secured from a local (D.C. Superior Court) grand jury after a federal grand jury had declined to indict — a decision that applied immediately to the defendant Kevontae Stewart and raised alarms about allowing federal prosecutors to “circumvent” federal grand juries [6]. Coverage stresses that the D.C. system is “unusual” and that the ruling could be read more broadly, though that expansion is disputed in other reporting [6] [5].
4. Judicial pushback and concern about norms
Several judges and commentators have criticized these tactics as breaking “decades‑long norms” or undermining the protective purpose of the federal grand jury; one magistrate judge said using a local grand jury after a federal panel rejected charges looked like forum shopping [5]. Other judges have pointed to potential misconduct or irregularities in how prosecutors presented cases to grand juries, ordering disclosure of grand‑jury materials in at least one high‑profile prosecution and finding “disturbing patterns” in the presentation [1] [2].
5. The Comey matter: procedural errors and consequences
In the prosecution of James Comey, prosecutors conceded the full federal grand jury never saw the final indictment, a fact that legal analysts call “highly problematic” and that has led judges to order production of grand jury materials and to question the prosecutor’s conduct; this episode illustrates how deviations from grand‑jury procedure can create grounds for dismissal or reversal [7] [8] [1]. Reporting emphasizes both the factual admissions by prosecutors and judicial skepticism [7] [1].
6. Competing perspectives: enforcement urgency vs. constitutional safeguards
The Justice Department’s apparent response to grand‑jury refusals — impanel new juries, use local panels, or refile charging documents — is presented by some as necessary to enforce federal law when career prosecutors struggle to secure indictments [4] [5]. Critics counter that repeatedly re‑presenting cases, forum shopping for friendlier panels, or bypassing federal grand juries erodes the Fifth Amendment check and risks politicizing prosecutions; judges and legal scholars have warned these tactics conflict with the Justice Manual and long‑standing practice [4] [5] [9].
7. Bottom line and what’s next
Available reporting shows prosecutors can and have used complaints, magistrate procedures, or local grand juries in ways that avoid a returned federal grand‑jury indictment — but courts are actively scrutinizing those moves and in some cases finding prosecutorial missteps or ordering disclosures [6] [1] [2]. Expect further litigation and possibly higher‑court attention to define where constitutional and Justice Department lines lie, because recent disputes pit enforcement urgency against constitutional grand‑jury safeguards [4] [5].
Limitations: this summary relies only on the cited contemporary reporting and legal commentary; available sources do not provide the full statutory text, DOJ internal guidance, or any later appellate rulings that may resolve these tensions (available sources do not mention later appellate outcomes).