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Bob Mueller and for Whom the Bells Toll

Grand Jury Room
Bob Mueller and for Whom the Bells Toll

Can Trump be indicted by Bob Mueller? Learn about the law controlling that here.

It was just revealed that Justice Department Special Counsel Robert Mueller convened a grand jury in connection with his investigations into the 2016 presidential election. Its existence was disclosed not by a press release from Mr. Mueller, but by the issuance of grand jury subpoenas to several people.  Immediately the media “experts” a.k.a. talking heads, began to claim the case had moved into the “next stage” and that grand juries are empanelled only when prosecutors are close to bringing criminal charges.  The subsequent clamor on social media from supporters and detractors of the president has become intense and often vile.  All of this speculation and reaction is quite premature and not based in law or reality.

Now for the facts, hard as they may be for some to comprehend. A grand jury is simply a body of citizens who review evidence, whether from witnesses or documents, issue subpoenas ad testificandum to compel people to testify, or duces tecum, to produce documents.  In the federal legal system the grand jury is composed of 16 to 23 persons who can sit for up to 18 months and may hand up indictments (“true bills”) if 12 or more members concur.  They can also issue special reports that don’t yield criminal charges, but level critiques and/or make remedial proposals.  Only prosecutors, court reporters, federal marshals and witnesses may be present while these grand juries are reviewing evidence, although in some state legal systems, defense lawyers may sit in on proceedings, but not speak.  Grand jurors are allowed to question witnesses, although a prosecutor can reject any such query.  A witness is permitted step out of the grand jury room to confer with their counsel about any question posed.

Once all evidence has been given or examined, the prosecutor will sum up his case and “recommend” what actions or actions he or she thinks are appropriate. While grand juries normally follow prosecution suggestions, sometime they don’t.  They may refuse to indict, or they may indict when it’s clear the government is not seeking  charges (the “runaway” grand jury), or they may decide just to issue a special report. Nobody but the jury members may be present during their deliberations. All indictments are presented to a federal judge assigned to the matter, for review of legal sufficiency.  An indictment cannot be based solely or mostly on hearsay, and judges can dismiss all or part of a true bill.  A federal grand jury witness, once finished, can legally reveal to the world, his or her testimony.  Under federal rules only the officials assigned to the case or in the room during proceedings, and the grand jurors, are barred from disclosing what happened therein.

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In the various federal districts, grand juries sit regularly, sometime daily depending on volume of cases, and listen to matters presented by different U.S. prosecutors. In very complex investigations a special grand jury may be seated to hear only that case.  Grand juries enable prosecutors to issue subpoenas for documents and people, with severe contempt penalties for non-production or refusal to appear and testify.  It is an investigative tool and where one has been empanelled for a special counsel like Mr. Mueller, it does not mean that criminal charges are close, but only that documentary evidence and witnesses are needed and the government requires compulsory process to bring them before the grand jury.

Grand jury witnesses may exert their 5th Amendment privilege and refuse to answer questions or produce documents. However when this happens prosecutors usually obtain limited immunity for them to satisfy the mandates of the Constitution. Such “use” immunity is often limited to preclude charging them with a crime based upon what they say or produce, but occasionally with crucial witnesses, “transactional” immunity will be given.  That is essentially a guarantee they will not be prosecuted for a specific matter under the grand jury’s scrutiny. Of course any witness who lies about a material fact to a grand jury can be charged with perjury as a felony.

At this relatively early stage of a complex special investigation involving the president, it is extremely unlikely for the grand jury to vote on anything. But they will be issuing a lot of subpoenas and hearing many witnesses, so some idea of what is going on is bound to become public.

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The question of whether Mr. Mueller has the power to ask for an indictment of President Trump, assuming evidence of criminal behavior (such as obstruction of justice) is adduced, is not clear. However as the president is the head of the Executive Branch, within which the Justice Department operates, and has an unlimited constitutional pardon power which many legal scholars believe includes the right to self-pardon, he is likely not subject to criminal charges while in office.  However Mr. Mueller can ask the grand jury to generate a special report, which can then be turned over in due course to the House of Representatives, for them to determine if impeachment is warranted.  Presidential pardon power does not extend to any such proceedings in the Congress.

What will happen, going forward is mere speculation at this time, but Mr. Mueller, a decorated combat-wounded Vietnam Veteran (Marine Corps officer), a U.S. Attorney in both California and Massachusetts, an Assistant U.S. Attorney General in charge of the Justice Department’s Criminal Division, a Deputy U.S. Attorney General, and the longest serving F.B.I. Director (after J. Edgar Hoover), has worked for presidents Reagan, Bush 41, and Bush 43. His record of service is both enviable and impeccable and his integrity and competence has never been questioned until recently, by the likes of Sean Hannity and, sadly, President Trump.

It seems pellucid that when the Special Counsel’s investigations are completed, his recommendations and grand jury actions will be fair, non-partisan and wholly based on law, not politics. It is Robert Mueller, not the supporters and detractors of Donald Trump, who will have the final say on this lingering issue of who did what, lawfully or not, in the 2016 presidential elections and any other matters his investigations may uncover.  This is the Special Counsel’s mandate under the Memorandum of Appointment issued by Acting Attorney General Rod Rosenstein, and he will carry it out diligently and faithfully, as is has been his wont in every aspect of his almost 50 years of service to the Nation.

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Martin Schwartz
About Martin Schwartz 13 Articles
Martin Schwartz was a N.Y. police officer, a U.S. Treasury Special Agent (criminal investigator) attached to the U.S. Customs Service, an assistant district attorney in NYC, a special assistant U.S. Attorney in the Southern District of New York (Manhattan) and a special counsel to the U.S. Department of Justice. He is now a writer with prior published work in the N.Y. Times, U.S. News & World Report, U.S.A. Today and Newsday, and a consultant to law enforcement.
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