tag:theconversation.com,2011:/us/topics/grand-jury-13742/articlesGrand jury – The Conversation2023-08-15T03:31:12Ztag:theconversation.com,2011:article/2115822023-08-15T03:31:12Z2023-08-15T03:31:12ZFulton County charges Donald Trump with racketeering, other felonies – a Georgia election law expert explains 5 key things to know<figure><img src="https://images.theconversation.com/files/542726/original/file-20230815-6385-nfovfk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County Superior Court Judge Robert McBurney receives documents from court clerk Che Alexander on August 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1599897578?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p><em>An Atlanta, Georgia, <a href="https://www.ajc.com/politics/trump-18-others-indicted-for-trying-to-overthrow-2020-georgia-election/PQ3N2YBIDRDJFLJGFLEBZUWM6I/">grand jury indicted</a> former President Donald Trump on Aug. 14, 2023, charging him <a href="https://www.law.cornell.edu/wex/racketeering">with racketeering</a> and 12 other felonies related to his alleged attempts to overturn his 2020 election defeat in the state.</em></p>
<p><em>Eighteen of Trump’s allies and associates, including former Trump attorney Rudolph Giuliani and former White House chief of staff Mark Meadows, were <a href="https://www.documentcloud.org/documents/23909548-trump-georgia-criminal-indictment">also indicted</a> for racketeering and other felony charges for their alleged involvement in the scheme.</em></p>
<p><em>This marks <a href="https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html">Trump’s fourth indictment in five months</a> – and the second to come from his efforts to undo the election results that awarded the presidency to Joe Biden. Fani Willis, the district attorney of Fulton County, Georgia, <a href="https://www.atlantanewsfirst.com/2023/07/24/timeline-donald-trumpgeorgia-investigation/">started investigating</a> Trump’s involvement in this alleged scheme, as well as that of Trump’s colleagues, in February 2021.</em></p>
<p><em>In January 2021, one month before the investigation started, Trump <a href="https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html">placed a phone call</a> to Georgia Secretary of State Brad Raffensperger and pressed him to <a href="https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-a7b4aa4d8ce3bf52301ddbe620c6bff6">“find” enough votes</a> to overturn Biden’s win.</em> </p>
<p><em>The Conversation U.S. spoke with <a href="https://scholar.google.com/citations?user=AI_UyLUAAAAJ&hl=en">Anthony Michael Kreis</a>, a scholar of Georgia’s election laws, to understand the significance of the charges laid out in the <a href="https://www.documentcloud.org/documents/23909543-23sc188947-criminal-indictment">98-page indictment</a>. Here are five key points to understand about the precise nature of the charges and why <a href="https://www.nytimes.com/live/2023/08/14/us/trump-indictment-georgia-election#trump-georgia-rico-charges">racketeering is at the center</a> of them.</em></p>
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<a href="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two black cars that say 'sheriff' on it block off a street in front of a walk over that says Fulton County and nearby government buildings." src="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Police officers block off a street in front of the Fulton County Courthouse on August 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-sheriff-officers-block-off-a-street-in-front-news-photo/1614302634?adppopup=true">Joe Raedle/Getty Images</a></span>
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<h2>1. Racketeering is different from conspiracy charges</h2>
<p><a href="https://www.pbs.org/newshour/politics/why-georgias-rico-law-could-be-key-in-the-states-case-against-trump">With a Racketeer Influenced and Corrupt Organizations, or RICO, charge</a>, Willis presents a narrative that there were a large number of people involved in this case, but that they didn’t necessarily sit down at some point and over cocktails and say, “We are going to engage in this criminal act,” which would be a traditional conspiracy case. She is painting this picture of people winking and nodding and working toward this end goal of overthrowing the election, but without some kind of expressed agreement. </p>
<p>The Georgia RICO law allows her to rope in a lot of people who allegedly were involved with this kind of approach. </p>
<p>To be able to bring conspiracy charges, she would have to have an expressed agreement and a concrete act in furtherance of that conspiracy. And here there really wasn’t quite a plan – it is essentially a loose organization of people who are all up to no good. </p>
<h2>2. Georgia – and Willis – have used racketeering charges before</h2>
<p>Traditionally in Georgia, <a href="https://www.axios.com/2023/08/14/trump-georgia-rico-charges-fani-willis">RICO</a> has been used to prosecute people engaged in very violent kinds of activity – for street gangs and the Mafia, in particular. It has also been used in other contexts. </p>
<p>The most notable is the Atlanta public school cheating prosecution in 2015, when a <a href="https://www.washingtonpost.com/education/2022/02/01/atlanta-cheating-schools-scandal-teachers/">number of educators</a> were charged with manipulating student test scores. They wanted to make the public schools look better for various reasons. But they didn’t all know exactly what the other people were doing. </p>
<p>Willis <a href="https://www.jacksonville.com/story/news/2015/04/01/11-atlanta-public-schools-educators-convicted-racketeering-test/15657062007/">was the assistant district attorney prosecuting that racketeering</a> case. It’s a tool that she likes to use. And it is a tool that can be really hard for defendants to defend against. Eleven of the 12 defendants were convicted of <a href="https://www.usatoday.com/story/news/nation/2015/04/01/atlanta-schools-cheating-scandal-verdict/70780606/">racketeering in 2015</a> and received various sentences, including up to 20 years in prison. </p>
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<a href="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Fanni Willis looks straight ahead at the camera and sits at a wooden table." src="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fanni Willis, the district attorney of Fulton County, Georgia, is seen inside her office in September 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fani-willis-the-district-attorney-of-fulton-county-georgia-news-photo/1246123003?adppopup=true">David Walter Banks</a></span>
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<h2>3. Georgia law poses particular risks to Trump</h2>
<p><a href="https://law.justia.com/codes/georgia/2021/title-16/chapter-14/">Georgia’s RICO law</a> is much more expansive than the federal version of the law. It allows for a lot more different kinds of conduct to be covered. That makes it very easy to sweep people into one criminal enterprise and it’s a favorite tool for prosecutors. </p>
<p>And the punishments for violating the state’s RICO are harsh. There is a <a href="https://www.newsweek.com/donald-trump-rico-georgia-charges-fani-willis-1818509">minimum five-year sentence</a> for offenders, and there can be a lengthy prison sentence for any co-defendants, as well. </p>
<p>But it also introduces a new dynamic, which Trump might not be used to. There is a big incentive for people who are listed as co-defendants to cooperate with the state and to provide evidence, in order to escape punishment and secure favorable deals.</p>
<p>This is probably the biggest risk to Trump, and the likelihood that he would be convicted in Fulton County rests with this. The other people involved in this are not all household names, and presumably have families and friends and don’t want to go to prison. They may well find themselves in a position to want to give evidence against Trump. </p>
<p><iframe id="tYrfU" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/tYrfU/12/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>4. It’s ultimately about election law</h2>
<p>It looks like Georgia election law is taking a slight backseat to some of these other possible charges – of false swearing, giving false statements – which is not quite an election conspiracy, or election interference, which are distinct charges under Georgia law. </p>
<p>The important lesson here is that Willis is essentially bringing an election conspiracy charge under RICO, so it is an election law violation by another name. </p>
<p>What she is vindicating is not only the rights of Georgians to vote and have their votes counted. Willis is also preserving the integrity of the election system – to not have poll workers harassed, to not have people making false statements about the elections in courts of law, and to not have <a href="https://apnews.com/article/fulton-county-election-investigation-trump-georgia-fb5240cf854eb546b027f950646268c2">people tamper</a> with an election.</p>
<h2>5. This could influence future key elections</h2>
<p>Georgia has some serious contested elections <a href="https://ballotpedia.org/Georgia_elections,_2024">ahead in 2024</a> and 2026. And people need to have faith in the system, the process, as well as in the institutions and the people. Fani Willis has a very important goal here – which is to expose the wrongs for what they were, to show people what happened here and to what degree it was criminal, if she can prove that. It’s also about reassuring people that if others engage in this kind of conduct, they will be penalized.</p><img src="https://counter.theconversation.com/content/211582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Michael Kreis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fulton County District Attorney Fani Willis’ RICO charges against Trump are targeting election law violations, but by another name. The charges can result in a minimum five years in prison.Anthony Michael Kreis, Assistant professor of law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2106242023-07-28T01:27:39Z2023-07-28T01:27:39ZTrump faces additional charges – 4 essential reads to understand the case against him for hoarding classified documents<figure><img src="https://images.theconversation.com/files/539870/original/file-20230727-25-x9o6z4.png?ixlib=rb-1.1.0&rect=0%2C7%2C1678%2C1351&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Boxes containing classified documents are stored in a bathroom of Donald Trump’s Mar-a-Lago Club.</span> <span class="attribution"><a class="source" href="https://www.justice.gov/storage/US_v_Trump-Nauta_23-80101.pdf">Department of Justice</a></span></figcaption></figure><p>Former President Donald Trump was <a href="https://www.nytimes.com/2023/07/27/us/politics/trump-documents-carlos-de-oliveira-charged.html">indicted yet again</a> on July 27, 2023, by federal prosecutors. While many were anticipating an imminent indictment <a href="https://www.nbcnews.com/now/video/trump-lawyers-told-to-expect-an-indictment-on-charges-related-to-jan-6-189403717969">related to Trump’s actions on Jan. 6, 2021</a>, when a group of his followers violently stormed the U.S. Capitol in an attempt to disrupt the certification of Democrat Joe Biden’s election, <a href="https://int.nyt.com/data/documenttools/us-v-trump-nauta-de-oliveira-7-27/895d71fac28b2930/full.pdf">the new indictment</a> instead added to the charges Trump already faced for <a href="https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html">hoarding, mishandling and illegally sharing</a> presidential documents after he left office and refusing to return them.</p>
<p>The new indictment – called a “blockbuster” on CNN by former Manhattan prosecutor Karen Agnifilo – alleges that <a href="https://int.nyt.com/data/documenttools/us-v-trump-nauta-de-oliveira-7-27/895d71fac28b2930/full.pdf">Trump attempted to</a> “delete security camera footage at the Mar-a-Lago Club to conceal information from the FBI and grand jury” by telling a maintenance worker at the club to erase it. That worker, named in the indictment as Carlos De Oliveira, also faces charges now of obstruction in the new indictment.</p>
<p>The Conversation has published stories by experts on various aspects of the documents case and the unprecedented indictment of a former president. Here are a selection of them to provide background on the newly filed charges.</p>
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<a href="https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Bankers boxes are stacked ceiling high against a wall." src="https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=500&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=500&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=500&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=629&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=629&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539872/original/file-20230727-24380-wdeiuy.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=629&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Classified documents belonging to the U.S. government sit in bankers’ boxes at former President Donald Trump’s Mar-a-Lago Club.</span>
<span class="attribution"><a class="source" href="https://www.justice.gov/storage/US_v_Trump-Nauta_23-80101.pdf">Department of Justice</a></span>
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<h2>1. What are classified documents, anyway?</h2>
<p>Before he entered academia, University of Southern California international relations scholar <a href="https://theconversation.com/profiles/jeffrey-fields-282008">Jeffrey Fields</a> worked for many years as an analyst at both the State Department and the Department of Defense. He held a top-secret clearance and “frequently worked with classified information and participated in classified meetings.” </p>
<p>Fields explains that “classified information is the kind of material that the U.S. government or an agency deems sensitive enough to national security that access to it must be controlled and restricted.”</p>
<p><a href="https://theconversation.com/doj-probes-biden-document-handling-what-is-classified-information-anyway-197584">There are several degrees of classification</a>, he writes. “Documents related to nuclear weapons will have different classification levels depending on the sensitivity of the information contained. Documents containing information related to nuclear weapons design or their location would be highly classified.”</p>
<p>Such documents, writes Fields, “must be handled in a way that protects the integrity and confidentiality of the information they contain.” Want to know more? Fields helps you understand the different classification levels, and who gets to determine what levels each document is assigned.</p>
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Read more:
<a href="https://theconversation.com/doj-probes-biden-document-handling-what-is-classified-information-anyway-197584">DOJ probes Biden document handling – what is classified information, anyway?</a>
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<h2>2. Why is Trump being charged under the Espionage Act?</h2>
<p>The documents case rests on provisions of the Espionage Act, which, despite its name, covers a lot more crimes than just spying. </p>
<p>Loyola University Chicago’s <a href="https://theconversation.com/profiles/thomas-a-durkin-1370427">Thomas A. Durkin</a> and <a href="https://theconversation.com/profiles/joseph-ferguson-1370430">Joseph Ferguson</a>, attorneys who specialize in and teach national security law, write that “one portion of the act … does relate to spying for foreign governments, for which the maximum sentence is life imprisonment.”</p>
<p>More commonly, they write, as with the Trump investigation, “the act applies to the unauthorized gathering, possessing or transmitting of certain sensitive government information.”</p>
<p>A violation of the Espionage Act, then, <a href="https://theconversation.com/link-207373">does not require an intention</a> to aid a foreign power. And Democrats have violated the act: “Two recent senior Democratic administration officials – Sandy Berger, national security adviser during the Clinton administration, and David Petraeus, CIA director during the Obama administration – each pleaded guilty to misdemeanors under the threat of Espionage Act prosecution,” write Durkin and Ferguson. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trump-charged-under-espionage-act-which-covers-a-lot-more-crimes-than-just-spying-207373">Trump charged under Espionage Act – which covers a lot more crimes than just spying</a>
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<figure class="align-center ">
<img alt="White and brown lidded boxes sit on top of white stage that has gold ornamentation. Gold curtains hang in the back of the stage" src="https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539867/original/file-20230727-80595-1gtcha.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Boxes full of classified documents sit on top of an ornate stage inside the Mar-a-Lago Club’s White and Gold Ballroom.</span>
<span class="attribution"><a class="source" href="https://www.justice.gov/storage/US_v_Trump-Nauta_23-80101.pdf">Department of Justice</a></span>
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<h2>3. No president is above the law</h2>
<p>Trump has attacked the head of the Department of Justice investigations into his conduct, Special Counsel Jack Smith, as “deranged.” He’s declared that the previous indictment represented “weaponized” politics. After the new indictment was revealed, he told Fox News that it constituted “election interference at the highest level” and said the allegations were “ridiculous.” </p>
<p>But national security law scholar <a href="https://theconversation.com/profiles/dakota-rudesill-1448004">Dakota Rudesill</a>, who teaches at The Ohio State University, says the documents prosecution of Trump is <a href="https://theconversation.com/link-207970">lawful, constitutional, precedented, nonpartisan and merited</a>.</p>
<p>“Trump and his allies have argued that it is completely inappropriate for the former president to be charged,” writes Rudesill. “But no part of the Constitution, no statute and no Supreme Court precedent sets a former chief executive above the law.”</p>
<p>American history, Rudesill reminds us, “is replete with criminal charges against state officials, vice presidents – a former one during the founding era, and a sitting one in the 1970s – members of Congress and other prominent politicians.” </p>
<p>Rudesill’s essay walks readers through the charges Trump has made about the investigation – and the charges made by the investigators against Trump. </p>
<p>“Trump is right that his is inevitably a sensitive case because of his continued presence in the political arena,” Rudesill writes. “What he does not acknowledge is that maintaining the bedrock legal principle of equal justice requires avoiding twin hazards: politically motivated prosecutions and exempting elite politicians from the law.”</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/why-trumps-prosecution-for-keeping-secret-documents-is-lawful-constitutional-precedented-nonpartisan-and-merited-207970">Why Trump's prosecution for keeping secret documents is lawful, constitutional, precedented, nonpartisan and merited</a>
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<h2>4. The campaign will go on</h2>
<p>Despite the extraordinary circumstances of facing multiple criminal indictments, there’s nothing stopping Trump from moving ahead with his presidential campaign. </p>
<p>Article II of the U.S. Constitution <a href="https://theconversation.com/link-197677">sets forth very explicit qualifications</a> for the presidency: The president must be 35 years of age, a U.S. resident for 14 years and a natural-born citizen, writes legal scholar <a href="https://theconversation.com/profiles/stefanie-lindquist-518039">Stefanie Lindquist</a> of Arizona State University.</p>
<p>“In cases involving analogous qualifications for members of Congress, the Supreme Court has held that such qualifications form a "constitutional ceiling” – prohibiting any additional qualifications to be imposed by any means,“ she writes.</p>
<p>So, because the Constitution does not require that the president be free from indictment, conviction or prison, says Lindquist, "it follows that a person under indictment or in prison may run for the office and may even serve as president.”</p>
<p>That may be hard, Lindquist acknowledges. </p>
<p>“There seems no question that indictment, conviction or both – let alone a prison sentence – would significantly compromise a president’s ability to function in office,” says Lindquist. “And the Constitution doesn’t provide an easy answer to the problem posed by such a compromised chief executive.”</p>
<p>In other words, the country is in uncharted territory.</p>
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<em>
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Read more:
<a href="https://theconversation.com/trump-indictments-wont-keep-him-from-presidential-race-but-will-make-his-reelection-bid-much-harder-197677">Trump indictments won't keep him from presidential race, but will make his reelection bid much harder</a>
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<img src="https://counter.theconversation.com/content/210624/count.gif" alt="The Conversation" width="1" height="1" />
Former President Donald Trump was indicted on further charges over his hoarding of classified documents – and he has a new co-defendant in the case.Naomi Schalit, Senior Editor, Politics + Democracy, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1878162022-07-27T18:31:12Z2022-07-27T18:31:12ZHow do grand juries work? Their major role in criminal justice, and why prosecutors are using them to investigate efforts to overturn the 2020 election<figure><img src="https://images.theconversation.com/files/476340/original/file-20220727-25-kj5r0k.jpeg?ixlib=rb-1.1.0&rect=15%2C30%2C5116%2C3647&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Marc Short, former Vice President Mike Pence's chief of staff, testified in late July before a federal grand jury investigating the Jan. 6, 2021, assault on the U.S. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotPenceAide/aa1d4f3823a14054abbd910df622ebd9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=0">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p>Grand juries play a major role in the U.S. criminal justice system. And they’re very much in the news these days.</p>
<p><a href="https://abcnews.go.com/US/georgia-governor-testimony-fulton-county-election-probe-report/story?id=87425868">A grand jury in Fulton County, Georgia</a>, is looking into former President Donald Trump’s efforts to overturn the 2020 presidential election results in that state. Among the latest witnesses to give testimony to the grand jury was Georgia Gov. Brian Kemp.</p>
<p>In Washington, D.C., the U.S. Justice Department is in the middle of an <a href="https://www.washingtonpost.com/national-security/2022/07/26/trump-justice-investigation-january-6/">investigation into efforts to overturn the 2020 election</a>, and it is questioning witnesses before a grand jury as well. Most recently, <a href="https://www.wsj.com/articles/justice-department-questions-top-pence-aides-over-trump-bid-to-overturn-election-11658783628">two top aides to former Vice President Mike Pence were questioned</a> in that probe. </p>
<p>A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into <a href="http://www.judicialwatch.org/press-room/press-releases/judicial-watch-fbi-court-filing-reveals-grand-jury-targeted-hillary-clinton/">Hillary Clinton’s email server</a>, for example, but no one was charged with any crimes. </p>
<p>In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.</p>
<h2>Legal basis: Federal and state</h2>
<p>The <a href="http://constitution.findlaw.com/amendment5.html">Fifth Amendment to the U.S. Constitution</a> provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment. </p>
<p>In addition to considering whether individuals may have committed a crime, <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury">a grand jury can also be used by a prosecutor as an investigative tool</a> to compel witnesses to testify or turn over documents. <a href="https://www.washingtonpost.com/politics/special-counsel-mueller-using-grand-jury-in-federal-court-in-washington-as-part-of-russia-investigation/2017/08/03/1585da56-7887-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0041dedbde14">Reports</a> indicate that Special Counsel Robert Mueller used a grand jury for the latter when he investigated whether there was collusion between former President Donald Trump’s election campaign and Russia to influence the 2016 election.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bearded man in judge's robes sitting at a large desk, with the state seal of Georgia on the wall behind him." src="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476367/original/file-20220727-15-elzctq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fulton County Superior Court Judge Robert McBurney instructs potential jurors during proceedings to seat a special purpose grand jury in Fulton County, Georgia, May 2, 2022, to look into attempts to overturn the results of the 2020 election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/bd5b51f1f655406fa6b62ebfd189e0e9/photo?Query=grand%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5118&currentItemNo=7">AP Photo/Ben Gray</a></span>
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<h2>Makeup of a grand jury</h2>
<p>Grand jurors are usually chosen from the same jury pool as trial jurors. For a <a href="https://www.flmd.uscourts.gov/sites/flmd/files/documents/handbook-for-federal-grand-jurors.pdf">federal grand jury</a>, all U.S. citizens over the age of 18 living in the federal district court’s geographic jurisdiction are in the pool. </p>
<p>Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.</p>
<p>Next, prospective grand jurors are screened, usually through questionnaires. </p>
<p>To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.</p>
<h2>Work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. </p>
<p>In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a <a href="https://ago.mo.gov/docs/default-source/publications/courtprocess.pdf?sfvrsn=4">grand jury or at a preliminary hearing</a> before a judge. </p>
<p>When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson in 2014, the St. Louis County prosecuting attorney brought the <a href="https://theconversation.com/explainer-the-grand-jury-in-the-darren-wilson-case-and-beyond-34857">evidence to a grand jury</a> rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.</p>
<p>Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.</p>
<p>In some cases, like Mueller’s Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses. </p>
<p>Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">The work of a grand jury is required by law to be done in secret</a>, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified. </p>
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<a href="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=487&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=487&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=487&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=612&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=612&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=612&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Clinton in videotaped grand jury testimony Aug. 17, 1998.</span>
<span class="attribution"><span class="source">AP Photo/APTV</span></span>
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<p>In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when former President Bill Clinton testified before a grand jury during the investigation into Whitewater real estate investment and the affair with Monica Lewinsky, <a href="http://www.history.com/this-day-in-history/clinton-testifies-before-grand-jury">he went on national television</a> and announced that he had testified.</p>
<h2>Potential dangers</h2>
<p>The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present, and cannot question the evidence early in the criminal justice process. </p>
<p>As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, <a href="http://www.nytimes.com/1985/02/18/opinion/do-we-need-grand-juries.html">famously said</a> that a prosecutor could get a grand jury “to indict a ham sandwich.” </p>
<p>These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But in high-profile cases, like the Russia connection to the Trump presidency and possibly the current investigation into Trump’s efforts to overturn the election results in Georgia, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/the-grand-jurys-role-in-american-criminal-justice-explained-82197">a story originally published</a> on Aug. 7, 2017.</em></p><img src="https://counter.theconversation.com/content/187816/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Grand juries are meeting in Georgia and Washington, D.C., as part of investigations into attempts to overturn the 2020 presidential election. How do they work?Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1141662019-03-25T03:37:11Z2019-03-25T03:37:11ZHow Trump and Barr could stretch claims of executive privilege and grand jury secrecy<figure><img src="https://images.theconversation.com/files/265488/original/file-20190325-36270-wll63w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General William P. Barr, appointed by Donald Trump, has provided Congress with only a summary of Mueller's report.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/Search?query=barr+trump+nomination&ss=10&st=kw&entitysearch=&toItem=18&orderBy=Newest&searchMediaType=allmedia">AP Photo/Alex Brandon/Jose Luis Magana</a></span></figcaption></figure><p><a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.3eaad741bdb1">Attorney General William Barr’s letter</a> to Congress, delivered Sunday, purports to brief lawmakers about the Mueller report.</p>
<p>What it really does is set the stage for a battle royale with Trump and Barr doing everything in their power to keep secret the full report and, equally important, the materials underlying the report. They’re likely to fight Democrats in Congress, if not both parties, over the materials’ release. And while they’ll probably cite a range of reasons for their objections to revealing the report, they also share an expansive view of a president’s right to keep his discussions secret.</p>
<p>The public and Congress are unable to judge whether Barr’s conclusions are justified because Barr’s letter is mostly silent about the underlying Mueller report conclusions and evidence. This would be remedied in time if Barr were required to provide the full report and its supporting witness and documentary evidence. </p>
<p>But Trump and Barr each have tools to minimize the access of House investigations to the report and evidence. Despite the end of Mueller’s probe, those investigations continue: Democrat Jerrold Nadler, chairman of the House Judiciary Committee, made it clear on Sunday <a href="https://www.nytimes.com/2019/03/24/us/politics/trump-impeachment-democrats.html">that he plans to “move forward” with his committee’s investigations</a>, “into obstruction of justice, abuses of power, corruption, to defend the rule of law, which is our job.” </p>
<p>The key grounds for Barr and Trump to justify withholding of evidence are <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury secrecy</a> and <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege</a>. </p>
<h2>It’s been done before</h2>
<p>To be sure, these grounds for withholding, properly and narrowly applied, <a href="https://www.justice.gov/file/23246/download">have support in precedent</a>.</p>
<p>But I believe that Trump and Barr can be counted on to use every means available to overstate and exaggerate the degree to which these doctrines justify withholding this information from justifiable, duly-authorized House investigations. </p>
<p>I was <a href="https://www.judiciary.senate.gov/imo/media/doc/07-11-17%20Tiefer%20Testimony.pdf">special deputy chief counsel of the House Iran-contra Investigation</a> and <a href="https://ogc.house.gov/about/prior-general-counsels">acting general counsel of the House of Representatives</a> working with many major House investigations. I saw the tricks the executive branch can pull to withhold evidence. </p>
<p>And I saw the potential for the extreme extent that Trump and Barr could go to keep important materials secret.</p>
<p>Mueller’s investigation included presenting evidence to a grand jury. So let us start with the rule that attorneys, jurors and others “<a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">must not disclose a matter occurring before the grand jury</a>” – a rule that could be used to keep much of the Mueller report secret.</p>
<p>In its precise form, this covers “proceedings” of the grand jury. These “proceedings” are occasions when the jurors themselves meet and hear evidence in an investigation. Typically, in investigations of a president or those around him, “proceedings” encompass only a small fraction of the overall body of witnesses and documents. </p>
<p>Voluntary witnesses can be interviewed by the FBI and prosecutors, without the unnecessary trappings of the grand jury. Such witnesses need only attend “proceedings” to the very limited extent that the jurors themselves need to hear them in person to vote an indictment.</p>
<p>Similarly, <a href="https://crsreports.congress.gov/product/pdf/R/R45456">the documents accumulated in an investigation</a> are only to a very limited extent brought to the grand jurors themselves, as needed for indictment. Over 90 percent of the time, interview memos by the FBI and prosecutors, not grand jury transcripts and specific grand jury exhibits, record the witness and documentary information.</p>
<h2>Defining a ‘proceeding’</h2>
<p>But Barr can be expected to wield the much-deprecated <a href="https://www.judiciary.senate.gov/imo/media/doc/08-05-15%20Brian%20Testimony.pdf">“Midas touch” doctrine</a>.<br>
Like King Midas’ touch that turned everything into gold, the “Midas touch” doctrine turns everything indirectly and remotely having some attenuated whiff of a grand jury into walled-up “proceedings” of the grand jury. </p>
<p>For example, take the former national security adviser, Michael Flynn, who <a href="https://www.politifact.com/truth-o-meter/article/2018/dec/05/detailing-michael-flynns-turn-trump-mueller/">cooperated with Mueller’s investigation</a>.</p>
<p>Mueller surely has full FBI and prosecutors’ materials and interviews regarding what Flynn said about <a href="https://www.nytimes.com/2017/12/06/us/politics/michael-flynn-russia-sanctions-ripped-up-whistleblower.html">Trump’s opposition to sanctions for Russia</a>. Yet Barr’s letter says nothing of this, even though the actual Mueller report may include a full accounting of it. </p>
<p>Here’s what could then happen if Flynn even once spoke to a grand jury: Using the “Midas touch” doctrine, Barr – if he provides a version of the Mueller report to the public – could keep all of the evidence secret that Flynn provided to law enforcement. </p>
<p>And the public would not even know if this material was expunged.</p>
<h2>What Trump can do</h2>
<p>Executive privilege is the principle that the <a href="https://www.npr.org/templates/story/story.php?storyId=11527747">president can withhold specific kinds of information from the courts, Congress or others</a>. It similarly provides a potent tool for Trump to withhold much of the Mueller report. </p>
<p>Executive privilege cannot be used to shield evidence of crime. Since Barr wrote in his letter that <a href="https://www.nytimes.com/2019/03/24/us/politics/mueller-report-summary.html">Mueller would not exonerate Trump for obstruction</a> of justice, which is a crime, I believe executive privilege should not be used to shield Trump’s communications that relate to obstruction. </p>
<p>In its narrow form, <a href="https://www.lawfareblog.com/primer-executive-privilege-and-executive-branch-approach-congressional-oversight">executive privilege only applies to communications with the president and those who serve him as advisers</a>. </p>
<p>So even if Trump has left an evidentiary trail a mile wide showing his intent to snuff out the Mueller inquiry, I expect Trump will claim that is all behind a wall of executive privilege. </p>
<p>And, in the broadest interpretation, executive privilege could supposedly stretch far beyond the president’s own communications, down to lowly assistants and factotums who know about <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1035&context=jcl">“pre-decisional deliberations”</a> at any level, high or low. </p>
<p>In this interpretation, if there are intelligence agency deputies who contributed to the conclusion, contrary to the president, of the Russian threat, those deputies and their reports are all “pre-decisional deliberations” shielded by executive privilege.</p>
<p>Will the House of Representatives fight against Trump and Barr’s claims of privilege? </p>
<p>Of course. The Framers called the House the <a href="https://www.nytimes.com/1974/01/21/archives/grand-inquest-of-the-nation-abroad-at-home.html">“Grand Inquest” of the nation</a> for a reason.</p><img src="https://counter.theconversation.com/content/114166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Tiefer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The president and attorney general can try to keep the findings of Mueller’s investigation secret. They’ll likely use both the secrecy of grand jury proceedings and executive privilege to do that.Charles Tiefer, Professor of law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1118062019-02-18T13:08:27Z2019-02-18T13:08:27ZThe public may never see a report from Mueller’s investigation<figure><img src="https://images.theconversation.com/files/259165/original/file-20190214-1736-14ds33w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Will the public ever see a report from Special Counsel Robert Mueller?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/174784997?src=fddcud85MIapyBoGDVTgkw-1-95&size=huge_jpg">Shutterstock</a></span></figcaption></figure><p>Almost from the day of <a href="https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html">Robert Mueller’s appointment as special counsel</a>, the media and the public have expected that his investigation will end <a href="https://www.washingtonpost.com/outlook/2018/11/12/congress-made-starr-report-public-it-shouldnt-hide-muellers/?utm_term=.3a11eec47ebf">with a report to either the Congress or the public</a> or both. </p>
<p>I’m a <a href="https://dickinsonlaw.psu.edu/academics/faculty/resident-faculty/stanley-brand">law school professor who teaches</a> a course on the <a href="https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html">independent counsel, the predecessor of the special counsel</a>. </p>
<p>For eight years, I was the general counsel for the U.S. House of Representatives, the chief legal officer responsible for representing the House, its members, officers and employees in connection with legal procedures and challenges to the conduct of their official activities.</p>
<p>I believe that the public’s expectation that they will see a report from the Mueller investigation is unrealistic. That expectation appears to be based on a misunderstanding of the legal principles involved in making any such report available to anyone outside of the Department of Justice.</p>
<h2>Regulation reflects history</h2>
<p>The previous law creating special counsels – which has now lapsed – directed the special counsel to report to the House of Representatives <a href="https://www.law.cornell.edu/uscode/text/28/595">“substantial and credible information”</a> of impeachable conduct. </p>
<p>The <a href="https://www.govinfo.gov/content/pkg/CFR-2016-title28-vol2/pdf/CFR-2016-title28-vol2-part600.pdf">current regulation</a>, adopted during the Clinton administration, provides no such direction. </p>
<p>It says only that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report” <a href="https://www.law.cornell.edu/cfr/text/28/600.8">explaining the decision to either prosecute or not.</a> </p>
<p>The goal of those <a href="https://www.nytimes.com/2018/08/23/podcasts/the-daily/mueller-trump-congress.html">drafting the regulation</a> was to restore more control to the department over the special counsel after <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">what was seen as the excesses</a> of previous <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/e-policing.php">independent counsels in the Iran Contra</a> and <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">Clinton cases</a>.</p>
<p>Those excesses included overly broad and lengthy investigations such as <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal90-1113631#H2_3">the HUD Independent Counsel,</a> which took eight years to complete; expensive investigations, including <a href="https://www.politifact.com/truth-o-meter/statements/2018/may/23/donald-trump/mueller-probe-costing-20-million-donald-trump-says/">US$52 million estimated in one case</a>; and oppressive prosecutorial tactics, like <a href="https://www.washingtonpost.com/archive/politics/1998/02/12/lewinskys-mother-overcome-by-emotion-during-testimony/46ca3376-b1ed-4c99-8797-8c3e59198c61/?utm_term=.95ae9d32c086">subpoenaing Monica Lewinsky’s mother</a> to the grand jury.</p>
<p>Former Department of Justice official Neal Katyal, who drafted the regulations, has explained that returning a degree of control over the process to the Department of Justice would result in a restoration of the separation of powers balance between the executive branch and Congress in these cases. </p>
<p>“The special counsel regulations were drafted at a unique historical moment,” <a href="https://www.washingtonpost.com/posteverything/wp/2017/05/19/politics-could-still-block-muellers-investigation-i-know-i-wrote-the-rules/?utm_term=.2d93c5014dff">wrote Katyal in the Washington Post</a>. </p>
<p>“Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act…There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage.” </p>
<h2>Grand jury mum</h2>
<p>Perhaps more importantly, much of any “Mueller report” would almost inevitably reveal materials presented during the grand jury proceedings. Yet federal law dictates that <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury proceedings are secret</a>.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">There are exceptions</a>. Grand jury materials, for example, such as testimony and documents can be revealed in connection with a judicial proceeding at the request of the government, for state or Indian tribal law enforcement purposes, attorney disbarment proceedings or in connection with a violation of military criminal law. </p>
<p>But they can’t be revealed to Congress or the public unless under these exceptions. </p>
<p>The Department of Justice has vigorously opposed, in court, efforts by Congress to obtain such materials. In connection with the <a href="https://catalog.hathitrust.org/Record/010515417">congressional investigation of the E.F. Hutton</a> mail and wire fraud case in the 1980s, a <a href="https://fas.org/sgp/crs/misc/RL34197.pdf">congressional committee subpoenaed records</a> that had been reviewed by the grand jury and the Department of Justice filed an action to prevent disclosure.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">FBI Director James Comey gave a roundly criticized press conference in 2016 to discuss not filing charges against Hillary Clinton.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Clinton-Emails/f72a7276fe7b46b99723fe9ed51d53c3/134/0">AP/Cliff Owen</a></span>
</figcaption>
</figure>
<p>Grand jury records and prosecutors’ decisions about individual cases <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">are shielded from public view</a> to protect those who may have been investigated but not charged. </p>
<p>The press conference about <a href="https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system">the investigation into Hillary Clinton’s emails held</a> by former FBI Director James Comey in July 2016 was widely criticized by former Department of Justice officials and prosecutors of both parties for deviating from this policy. </p>
<p>Comey acknowledged he was departing from normal procedure. </p>
<p>“This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would,” said Comey. </p>
<p>Some critics have linked Hillary Clinton’s election defeat to the statements by Comey that Clinton was “extremely careless,” even though he determined she did not commit offenses for which she should be prosecuted. </p>
<p>Rod Rosenstein, the deputy attorney general, <a href="https://ig.ft.com/trump-comey-memo/">explained the policy best</a>. Comey “laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook case example of what prosecutors…are taught not to do.”</p>
<p>Given all these limitations, in the words of NYU professor and <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.biography&personid=19943">legal ethicist Stephen Gillers</a>, the prosecutor has two choices: “<a href="https://www.nytimes.com/2017/03/24/nyregion/bill-de-blasio-campaign-finance.html">Indict or shut up</a>.” </p>
<h2>Big exception</h2>
<p>Finally, there is the Watergate precedent. </p>
<p>The grand jury investigating Watergate prepared a sealed report, with <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.066fb6ee8270">assistance from special counsel Leon Jaworski</a>, and requested permission from the court to <a href="https://www.lawfareblog.com/watergate-road-map-and-coming-mueller-report">release it to the House Judiciary Committee</a>. </p>
<p>The committee had requested such a report as necessary for its impeachment inquiry into crimes Nixon was <a href="https://www.nytimes.com/1974/08/09/archives/the-case-against-richard-nixon-a-catalogue-of-charges-and-his.html">alleged to have committed related to the Watergate burglary</a>. </p>
<p><a href="https://www.casemine.com/judgement/us/59149695add7b049345e3e4d">The court determined</a> that Rule 6(e) permitted transmission to the House, despite its restrictions on disclosure and no unambiguous exception for disclosure to Congress. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=925&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=925&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=925&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1162&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1162&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1162&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. District Court Judge John Sirica, who ruled in 1974 that a grand jury report could be shared with a congressional committee investigating Watergate.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-Associated-Press-Domestic-News-Dist-of-/f5e03a41ed854e2f8e878ce35288603e/29/0">AP</a></span>
</figcaption>
</figure>
<p>Nixon did not challenge the decision. The public did not, however, see it for decades. It remained sealed until 2018, <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.51d2e844e2a7">when a judge released most of it</a> in response to a lawsuit. </p>
<p>The release of the Watergate grand jury’s report happened under a very narrow and specific set of circumstances related to a House committee’s impeachment investigation. It remains a serious legal question whether release to Congress of the Mueller grand jury’s deliberations would be barred by the law.</p>
<p>No such House proceeding is yet underway to determine whether the president should be impeached. And there are a lot of “ifs” that would apply were such a committee to request access to any Mueller grand jury report: Even if impeachment of Trump were to be considered by the House, if the committee requested grand jury records, if the grand jury wanted to provide the House with testimony and if a judge allowed it, it is unlikely that Trump would respond as Nixon did and fail to appeal the decision. </p>
<p>Of course, Congress could attempt to subpoena the report. That would undoubtedly produce prolonged litigation.</p>
<p>None of this is to say that the “Mueller report” will not ultimately see the light of day. </p>
<p>Rather, there are significant legal and procedural hurdles to overcome in making it public and no clear precedent which can be relied on to predict such an outcome.</p><img src="https://counter.theconversation.com/content/111806/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will the public ever see a report from Robert Mueller’s investigation of possible collusion between the Trump campaign and Russia? Maybe not. There are big legal hurdles to making it public.Stanley M. Brand, Distinguished Fellow in Law and Government, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/821972017-08-08T00:57:30Z2017-08-08T00:57:30ZThe grand jury’s role in American criminal justice, explained<figure><img src="https://images.theconversation.com/files/181296/original/file-20170807-9597-1imi1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special Counsel Robert Mueller.</span> <span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span></figcaption></figure><p>Grand juries play a major role in the U.S. criminal justice system.</p>
<p><a href="http://time.com/4887147/robert-mueller-grand-jury-donald-trump/">Special Counsel Robert Mueller</a> has called upon a federal grand jury to help him investigate Russia’s role in the 2016 election. It is a logical step in an investigation where there is some evidence that needs to be be gathered. Even before this grand jury, there was <a href="https://www.theatlantic.com/politics/archive/2017/06/mueller-michael-flynn-turkey/529011/">another grand jury impaneled</a> to look into business dealings and campaign contacts of President Donald Trump’s former national security adviser, Michael Flynn. The new grand jury widens the scope of the investigation, and it is likely focusing on others associated with the Trump campaign.</p>
<p>A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into <a href="http://www.judicialwatch.org/press-room/press-releases/judicial-watch-fbi-court-filing-reveals-grand-jury-targeted-hillary-clinton/">Hillary Clinton’s email server</a>, for example, but no one was charged with any crimes. </p>
<p>In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.</p>
<h2>Legal basis: Federal and state</h2>
<p>The <a href="http://constitution.findlaw.com/amendment5.html">Fifth Amendment to the U.S. Constitution</a> provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment. </p>
<p>In addition to considering whether individuals may have committed a crime, a grand jury can also be used by a prosecutor as an investigative tool to compel witnesses to testify or turn over documents. <a href="https://www.washingtonpost.com/politics/special-counsel-mueller-using-grand-jury-in-federal-court-in-washington-as-part-of-russia-investigation/2017/08/03/1585da56-7887-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0041dedbde14">Reports</a> indicate Mueller is using a grand jury for the latter.</p>
<h2>Makeup of a grand jury</h2>
<p>Grand jurors are usually chosen from the same jury pool as trial jurors. For a federal grand jury, all U.S. citizens over the age of 18 living in the federal district court’s geographic jurisdiction are in the pool. </p>
<p>Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.</p>
<p>Next, prospective grand jurors are screened, usually through questionnaires. </p>
<p>To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.</p>
<h2>Work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a <a href="https://ago.mo.gov/docs/default-source/publications/courtprocess.pdf?sfvrsn=4">grand jury or at a preliminary hearing</a> before a judge. </p>
<p>When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson, the St. Louis County prosecuting attorney brought the <a href="https://theconversation.com/explainer-the-grand-jury-in-the-darren-wilson-case-and-beyond-34857">evidence to a grand jury</a> rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.</p>
<p>Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.</p>
<p>In some cases, like the Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses. </p>
<p>Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.</p>
<p>The work of a grand jury is required by law to be done in secret, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified. </p>
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<a href="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=487&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=487&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=487&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=612&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=612&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=612&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Clinton in videotaped grand jury testimony Aug. 17, 1998.</span>
<span class="attribution"><span class="source">AP Photo/APTV</span></span>
</figcaption>
</figure>
<p>In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when President Bill Clinton testified before a grand jury during the investigation into Whitewater and Monica Lewinsky, <a href="http://www.history.com/this-day-in-history/clinton-testifies-before-grand-jury">he went on national television </a>and announced that he had testified.</p>
<h2>Potential dangers</h2>
<p>The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present and cannot question the evidence early in the criminal justice process. As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, <a href="http://www.nytimes.com/1985/02/18/opinion/do-we-need-grand-juries.html">famously said</a> that a prosecutor could get a grand jury “to indict a ham sandwich.” </p>
<p>These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But, in high-profile cases, like the Russia connection to the Trump presidency, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult.</p><img src="https://counter.theconversation.com/content/82197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What is a grand jury, who serves on it and what is it used for? A criminal law expert tells you everything you need to know.Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/793882017-06-14T20:52:09Z2017-06-14T20:52:09ZDid Sessions and Trump conspire to obstruct justice?<figure><img src="https://images.theconversation.com/files/173891/original/file-20170614-26091-12526vy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Jeff Sessions testifies before the Senate Intelligence Committee hearing.</span> <span class="attribution"><span class="source">AP Photo/Alex Brandon</span></span></figcaption></figure><p>Did Attorney General Jeff Sessions conspire with President Donald Trump to fabricate a false story about why former FBI Director James Comey was fired?</p>
<p>If the answer is yes, it could be grounds for criminal prosecution of either Sessions or Trump. And, it could be grounds for <a href="https://www.nytimes.com/2017/06/08/us/politics/obstruction-of-justice-trump-comey.html?mcubz=2">impeachment of the president</a>.</p>
<p>It is <a href="https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/html/USCODE-2011-title18-partI-chap73-sec1505.htm">a crime</a> to “corruptly” endeavor to <a href="https://www.lawfareblog.com/does-fbi-investigation-qualify-under-obstruction-justice-statutes-closer-look">impede a proceeding before a federal agency</a>. The law says, “corruptly means acting with an improper purpose… <a href="https://www.law.cornell.edu/uscode/text/18/1515">including making a false or misleading statement</a>.” </p>
<p>On May 9, President Trump fired Comey in a <a href="http://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/">terse five-sentence letter</a>. It said he was acting on the recommendations of Sessions and Deputy Attorney General Rod Rosenstein. Trump attached <a href="http://www.cnn.com/2017/05/09/politics/fbi-james-comey-fired-letter/">a letter from Sessions and a memo by Rosenstein</a>. The only basis for dismissal stated in the Rosenstein memo, and adopted by Sessions, was that the FBI director had mishandled the <a href="https://theconversation.com/in-getting-new-clinton-emails-did-the-fbi-violate-the-constitution-67906">inquiry into Hillary Clinton’s use of a private email server</a>.</p>
<p>However, critics have suggested <a href="https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html">the real reason Comey was fired</a> was to impede the FBI’s investigation of connections between the Trump campaign and Russia. That would mean Trump’s dismissal letter was a “false” or at least a “misleading” statement, and thus a “corrupt” action in violation of the law.</p>
<p>The most compelling reasons to suspect this are found in the president’s own words later that week. In an interview, Trump told NBC’s Lester Holt: “<a href="https://www.nytimes.com/2017/05/11/us/politics/trump-comey-showboat-fbi.html">I was going to fire Comey… regardless of recommendation</a>… [W]hen I decided to just do it, I said to myself, I said, ‘You know, <a href="http://www.nbcnews.com/nightly-news/video/pres-trump-s-extended-exclusive-interview-with-lester-holt-at-the-white-house-941854787582">this Russia thing with Trump and Russia is a made-up story</a>.‘”</p>
<p>Then, when Sessions appeared <a href="https://www.nytimes.com/2017/06/13/us/politics/jeff-sessions-senate-trump.html">before the Senate Intelligence Committee</a>, he <a href="https://www.nytimes.com/2017/06/13/opinion/jeff-sessions-gives-a-master-class-in-dissembling.html">refused to answer key questions about the firing</a>, claiming he owed a duty of confidentiality to the president. </p>
<p>As a <a href="http://clarkcunningham.org/Cunningham-LegalEthics.html">scholar of legal ethics</a> and the director of a national <a href="http://www.niftep.org/">institute on teaching ethics and professionalism</a>, I found Sessions’ evasion at the hearing about his May 9 letter to Trump suggests further evidence of a “corrupt purpose” for two reasons:</p>
<h2>1. Conflict of interest</h2>
<p>Sessions <a href="http://www.politico.com/blogs/2016-gop-primary-live-updates-and-results/2016/03/donald-trump-jeff-sessions-chairman-of-national-security-committee-220220">chaired the National Security Advisory Committee</a> for the Trump campaign. He thus had an ethical obligation to consider the possibility that he was or could become a subject of the FBI’s investigation.</p>
<p>On March 2, the attorney general, <a href="https://www.nytimes.com/2017/03/02/us/politics/jeff-sessions-russia-trump-investigation-democrats.html">under considerable outside pressure</a>, announced he would <a href="https://www.justice.gov/opa/pr/attorney-general-sessions-statement-recusal">recuse himself</a> “from any existing or future investigations of any matters related in any way to the campaigns for President.” However, Sessions incorrectly told the Senate Intelligence Committee that he had no further ethical obligation. He went so far as to say his obligation to recuse himself did not “<a href="https://apps.npr.org/documents/document.html?id=3863949-Attorney-General-Jeff-Sessions-Opening-Statement">interfere with my ability to oversee… the FBI</a>.” </p>
<p>The attorney general is the country’s top lawyer. According to mandatory ethical rules applicable throughout the country, lawyers are not supposed to provide advice if they have a <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html">conflicting personal interest</a>. The attorney general’s willingness to ignore his ethical obligations by advising that Comey be fired raises serious questions about whether he had a corrupt purpose in writing the letter used to fire Comey.</p>
<h2>2. An ongoing investigation</h2>
<p>Remarkably, neither Sessions nor Deputy Attorney General Rod Rosenstein supported their recommendation to dismiss Comey with any findings from Justice Department officials who usually investigate allegations of misconduct. The <a href="https://theconversation.com/the-fbi-with-great-power-comes-great-scandal-77606">only other time</a> an FBI director was outright fired was <a href="http://www.presidency.ucsb.edu/ws/?pid=46868">after a seven-month review</a> of a <a href="http://www.nytimes.com/1993/01/22/opinion/time-s-up-for-william-sessions.html?mcubz=2">161-page report</a> by the Justice Department’s <a href="https://www.justice.gov/opr">Office of Professional Responsibility</a>. </p>
<p>Neither Sessions nor Rosenstein acknowledged that Comey’s handling of the Clinton email matter <a href="https://theconversation.com/comeys-firing-may-end-other-investigations-into-2016-election-77532">was already being reviewed</a> by the Office of the Inspector General.</p>
<p>Of course, Sessions should not have offered the president any advice about firing Comey. But if competent advice were to be given, it surely should have addressed whether to defer the decision until the inspector general completed his work. Neither Sessions nor Rosenstein has yet explained why they omitted reference to the inspector general’s investigation, a failure that raises further doubts about the credibility of the memos they wrote for the president.</p><img src="https://counter.theconversation.com/content/79388/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Did the attorney general help create a false story on why Comey was fired? Sessions’ testimony to Congress provides no answers.Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics; Director, National Institute for Teaching Ethics & Professionalism, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348572014-12-01T20:36:15Z2014-12-01T20:36:15ZExplainer: The grand jury in the Darren Wilson case and beyond<p>Now that the grand jury has decided not to indict Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 18-year old man, there remain many questions about this grand jury and generally about the use of grand juries in the United States. </p>
<h2>The legal basis: federal and state</h2>
<p>The fact that twelve randomly picked impartial citizens played such a key role in the matter is a unique feature of the criminal justice system in the US.</p>
<p>The US Constitution and all state constitutions provide for grand juries. In federal criminal cases, federal grand juries consisting of sixteen to twenty-three members make all decisions to indict, and at least twelve grand jurors are necessary in an indictment, commonly called a “true bill.” </p>
<p>Provisions in state constitutions vary in terms of the size of grand juries. The Missouri Constitution calls for a twelve member grand jury, nine of which must concur in an indictment. </p>
<h2>The make up of the Ferguson grand jury</h2>
<p>Grand jurors in St Louis County are chosen from the same jury pool as trial jurors. A judge selects the grand jurors, and the judge tries to ensure that jurors are representative of the community. </p>
<p>The grand jurors who heard the case involving Michael Brown’s death were chosen in May, long before his death in August. </p>
<p>The judge chose nine white jurors and three African American jurors. Seven jurors were men and five jurors were women. They were from all parts of St Louis County, and the percentage of African Americans (25%) on the grand jury roughly equals the percentage of African Americans (24%) in St Louis County. The grand jury’s term was originally four months long – the normal term – but a judge extended the term in order for the grand jury to consider possible charges against Darren Wilson.</p>
<h2>The work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed. Probable cause means that there must be some evidence of each element of the offense. Most serious criminal cases usually begin with the prosecutor charging a person with one or more felonies. After the person is charged, the prosecutor has the option of bringing the case to the grand jury for the probable cause determination or to go before a judge for a probable cause determination through a preliminary hearing. </p>
<p>At a preliminary hearing, the accused is present along with his or her lawyer who can cross-examine witnesses. In the grand jury, however, only the prosecutor is present along with the grand jurors: both the prosecutor and the grand jurors can question each witness. </p>
<p>The grand jury process excludes the suspect and the defense attorney because it is not supposed to be a mini-trial but rather solely determine if there is some evidence to support felony charges. Like a preliminary hearing, it is a check on whether there is probable cause to support felony charges but is a secret proceeding that is usually much quicker than a preliminary hearing. </p>
<p>In St Louis County, prosecutors usually bring serious felony cases or cases with numerous witnesses to the grand jury rather than a preliminary hearing because a police officer who has investigated a case can summarize his or her findings and witness statements to present the case more quickly than at a preliminary hearing where witnesses would be examined and cross-examined.</p>
<h2>What happened in the Darren Wilson case</h2>
<p>In this case, the prosecutor did not bring charges against Darren Wilson. Instead, the prosecutor used the grand jury in an investigative role to determine whether to indict Darren Wilson. Under existing law, the prosecutor has discretion to proceed in this way. Unlike a regular grand jury hearing where a prosecutor presents just enough evidence to support probable cause, the grand jury heard all of the evidence that the prosecutor had on the case as it considered. </p>
<p>Using a grand jury in this way is unusual. Prosecutors go this route in cases involving possible excessive force by police or possible charges of corruption against elected officials. For example, a grand jury in <a href="http://www.huffingtonpost.com/2014/11/29/grand-jury-decision-eric-garner_n_6240348.html">New York City</a> has been investigating the chokehold death of Eric Garner by a police officer since September. In August, a grand jury in <a href="http://www.usatoday.com/story/news/nation/2014/08/15/grand-jury-indicts-texas-gov-rick-perry-/14138843/">Texas</a> indicted Texas Governor Rick Perry on two felony counts for abusing his official power and coercing a public servant in an effort to force a district attorney to step down after she was arrested on drunk-driving charges.</p>
<p>In St Louis, Darren Wilson was permitted to testify, and he injected the defenses of a justified use of force and self-defense. The testimony by Darren Wilson is very unusual, because normally the suspect or, if charges have been filed, the accused, does not have an opportunity to testify before a grand jury. Indeed, in <a href="http://www.law.cornell.edu/supct/html/90-1972.ZO.html">United States v. Williams</a>(1992), the US Supreme Court observed that the accused neither has a right to testify nor to have the prosecution present exculpatory evidence (favorable to the defendent) to the grand jury. </p>
<p>Like any other witness testifying before a grand jury, Darren Wilson was not permitted to have an attorney present. The transcript of his testimony indicates that he was permitted to tell his version of what occurred. There were few hard questions put to him by either the prosecutors or any of the grand jurors.</p>
<p>Before the grand jury began their deliberations, the prosecutors instructed the grand jury that to return an indictment against Darren Wilson they had to find probable cause that he committed an offense. They were also told that to indict they would have to find <em>no</em> probable cause that either he acted in self-defense or that his use of force was justified under the law. These instructions likely led the grand jury, who heard conflicting testimony about what occurred, to decide not to indict Darren Wilson.</p><img src="https://counter.theconversation.com/content/34857/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Now that the grand jury has decided not to indict Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 18-year old man, there remain many questions about this grand jury and generally…Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/346952014-11-27T00:22:39Z2014-11-27T00:22:39ZOnly in America: why Australia is right not to have grand juries<figure><img src="https://images.theconversation.com/files/65594/original/image-20141126-4250-nvhmh4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A grand jury decision not to indict a police officer over the shooting death of Michael Brown has sparked protests and questions over the system's efficacy.</span> <span class="attribution"><span class="source">EPA/Michael Reynolds</span></span></figcaption></figure><p>The idea of the grand jury is already familiar to many Australians through American television legal drama. But its profile just skyrocketed with a grand jury deciding <a href="http://www.theguardian.com/us-news/2014/nov/25/michael-brown-family-grand-jury-process-broken-violence">not to indict</a> policeman Darren Wilson over the shooting death of 18-year-old Michael Brown in Ferguson, Missouri. </p>
<p>But just how “grand” is the grand jury? And why doesn’t the system exist in Australia?</p>
<h2>History of grand juries</h2>
<p>A grand jury is composed of between 16 and 23 citizens who have the evidence against a criminal defendant presented to them by a prosecutor. The role of the grand jury is to decide whether to “indict” the defendant, which means decide if they should face trial or not. The grand jury can compel witnesses to appear, or require documents or physical evidence to be produced.</p>
<p>If a grand jury decides to indict, the defendant goes to trial before a “petit” or trial jury of 12 people, in the same way as they do in Australia. </p>
<p>While English in origin, the grand jury now exists only in the US. Even there only about half of the jurisdictions still use them. Grand juries arose during the time that criminal prosecutions were brought by private individuals and were intended to ensure that accusers did not have malicious motives.</p>
<p>As public bodies gradually took over prosecutions in the 19th-century, the role of the grand jury was either formally abolished or simply not used in most jurisdictions. The grand jury system was <a href="http://www.jstor.org/stable/3185314">implemented in some Australian colonies</a>, but has been used extremely sparingly.</p>
<h2>Criticisms of the grand jury system</h2>
<p>It fits well with the American sense of democracy to have citizens, rather than a public prosecutor, make the decision on whether a defendant should stand trial. </p>
<p>However, the American Bar Association and other groups have been calling for the abolition or <a href="http://grandjuryresistance.org/">reform of the grand jury system</a> long before the outrage at the Wilson case.</p>
<p>The main concerns about the process are that it is run by the prosecutor, no judge is involved, jurors are not screened for bias or suitability, the defendant is not present or represented, the prosecutors and grand jurors are prohibited from revealing what occurred, and transcripts of the proceedings are not made available. </p>
<p>The prosecutors or their superiors may also be seeking re-election on the basis of their “tough on crime” record, which can compromise the impartiality of the proceedings.</p>
<h2>How it is done in Australia</h2>
<p>In Australia, the decision on whether a defendant should stand trial for a serious offence is made by legal professionals, not private citizens. </p>
<p>While victims have the right to be heard on whether certain matters proceed, their opinion is only one of many factors that prosecutors take into account. Other members of the community are not involved at all in the decision to indict or not. </p>
<p>The decision on whether a trial should proceed in Australia is generally made in two parts. Prosecutors in the Office of the Director of Public Prosecutions assess the evidence and decide whether there is a “reasonable prospect of conviction” of the defendant. If they determine that there is, various forms of preliminary or committal hearings are heard in Magistrates Courts across the country. </p>
<p>Magistrates then play a role in determining whether the defendant has a case to answer and should face trial or not. This process is generally heard in open court and often reported in the media.</p>
<h2>Should Australia have grand juries?</h2>
<p>The differences in pre-trial processes between the US and Australia raise the question of whether grand jury decisions on whether to indict a defendant better reflect community standards than the Australian system.</p>
<p>In practice, the grand jury system does little to reduce the power of the prosecutor in determining who faces trial for serious offences. Under that system, the prosecutor is king. The presentation of the evidence is secret, one-sided and not subject to oversight in court. </p>
<p>The grand jury <a href="http://commdocs.house.gov/committees/judiciary/hju67333.000/hju67333_0.htm#91">has been called</a> the “lapdog”, “rubberstamp” and “total captive” of the prosecutor. A favourite phrase around US criminal courts is that a competent prosecutor can get a grand jury to <a href="http://www.athensnews.com/ohio/article-29817-can-you-actually-indict-a-ham-sandwich.html">“indict a ham sandwich”</a>.</p>
<p>Bureau of Justice statistics back up these views. At the federal level, grand juries <a href="http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/24/the-single-chart-that-shows-that-grand-juries-indict-99-99-percent-of-the-time/">indict 99.9%</a> of cases presented to them by the prosecutor.</p>
<p>The grand jury system does not provide the rigorous and open system of checks and balances that is needed to ensure that correct decisions are made on whether to prosecute individuals.</p>
<p>The Australian system of prosecutors and magistrates, independently assessing evidence outside the political environment, is the best safeguard of a fair criminal justice system.</p><img src="https://counter.theconversation.com/content/34695/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kellie Toole does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The idea of the grand jury is already familiar to many Australians through American television legal drama. But its profile just skyrocketed with a grand jury deciding not to indict policeman Darren Wilson…Kellie Toole, Lecturer in Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.