The reports that Special Counsel Robert Mueller has impaneled at least one grand jury, and rumored more than one, to look into whatever he is looking in to is bad news for someone – maybe more than someONE.
The first sentence purposely does not indicate exactly what issues the grand jury will be dealing with. This is because no one knows. We can take up the media practice of assuming, conjecturing, hypothecating and, in many cases, hoping, but what Mueller is looking at is an unknown at this time
The grand jury process is one of the least known features of the American justice system – and for those who do understand it, the most potentially dangerous. We are the only nation outside of Liberia that has such an institution. Both in reality and perception, grand juries operate apart from many of the essential rights we have come to believe we have as citizens.
Generally, any prosecutor can get an indictment out of a grand jury. In a more colorful explanation, it is said that any a grand jury will indict a ham sandwich if requested by the prosecutor. One regional analysis in 2014 showed that the grand jury indictment rate was 99.99 percent. Indictment is often considered a “mere formality.” There are several reasons for that.
Despite the assurance of the United States Constitution to a fair trial and a right of self-defense, the grand jury is exclusively a prosecutor’s weapon. It is not a judicial trial even though jurors are presented with a highly sophisticated case against the person using carefully selected evidence and testimony. There is no opportunity for the target to present the counter case. In fact, the subjects of investigation and their attorneys are not even allowed to be present to hear the prosecution case.
Prosecutors a supposed to provide all evidence, even evidence favorable to the target subject. That is more a legal theory than a reality. It is more like getting all one’s information from only one spouse in a divorce case.
Then there is perjury. Next to vote fraud, perjury may be the least prosecuted crime in America. In virtually every trial, people lie under oath. Lying to a grand jury, or even in interviews by law enforcement agencies, is strictly enforced, however. Vice presidential aide Scooter Libby was convicted of lying to the FBI about accusations of which he was ultimately exonerated.
Not only is the presentation one sided, but the targets of prosecutors are up against enormous resources devoted solely to indict and convict. This is what prosecutors do, and they have at their disposal virtually unlimited time, funds and human resources to make their case – far more than even the wealthiest defendants could provide in their own defense. It is not the prosecutor’s role to seek justice, but to secure indictments and convictions at virtually all costs. It is the reason the justice system is plagued by “prosecutorial abuse.”
Unlike actual trials, the press and the public are barred from the proceedings. It is a secret process within a judicial system in which secret trials are an abhorrence. Grand jurors are not allowed to reveal any of the proceedings and the prosecutors will not. Only witnesses are constitutionally allowed to make public their own testimony if they so choose.
To the extent witnesses become known or choose to speak, the public may get some hints as to the purpose and the persons involved. Since the Mueller grand juries will deal with major public figures, it is likely that the public will get a peek into the proceedings.
Another reason the indictment level is so high is because of the decision threshold. Many understand that in actual criminal trials, the case must be proven “beyond a reasonable doubt” and civil cases proven on “the preponderance of the evidence.” That is why O.J. Simpson was acquitted of murder in the criminal case and determined to have killed his wife Nicole and Ron Goodman in the civil case where the lower standard applied.
A grand jury has even a lower requirement, “probable cause.” A grand jury indictment is not a conviction, but only an opinion that there is sufficient evidence to proceed with a trial. It does not determine that a person committed a crime, but only that they might have. To understand just how low this threshold is, it is the same basis upon which a police officer can enter your house if he has “probable cause” to believe it might reveal a crime.
The issues, the politics and the location of the Mueller grand jury also pose a unique problem for any potential targets in the Trump administration. This jury, most likely composed of up to 23 people, is seated in Washington, D.C. and that adds to Trump’s problem. It has been drawn from a pool of people who voted against Trump by a 91 to 4 percent margin and are arguably among the most ardent Trump haters. If it were a real trial, defendants could a request a change of venue and probably get it. But, a grand jury is not a trial.
This secret court is not without its critics for obvious reasons. It had been argued that the grand jury process violates the Fourth Amendments “illegal search and seizure” provision. It also tends to make a mockery of the Fifth Amendment protection against “self incrimination.” Although those persons targeted by a grand jury can refuse to comment based on their Fifth Amendment right, and they are then supposedly presumed to be yet innocent, such invocation will most surely lead to an indictment.
To become a target of a grand jury is to face the likelihood of indictment. Even if found not guilty on all charges in a subsequent trial, and that is often the case, the person has been dragged through a costly reputation damaging process. Though we profess a belief in “innocent until guilty,” that has no meaning with a grand jury. People can lose careers just due to indictment. It was resulted in divorces and financial ruin. Grand juries produce real punishment regardless of the guilt or innocence of the person.
It is almost a certainty that indictments will be issued by this grand jury. The only unknown at this time is against who and for what.