The significance of today’s news that Special Counsel Robert Mueller has impaneled or engaged a grand jury in the Russia probe cannot be overstated. Here’s why.
1. Grand juries don’t just investigate; they indict.
The US Constitution provides that nobody accused of a federal crime may be formally charged except by a grand jury — a group of up to 23 people who collect and weigh evidence and decide whether probable cause exists to charge somebody with a crime.
As to collecting evidence, grand juries are empowered to issue subpoenas, interview witnesses, and consider physical evidence. As to charging somebody with a crime, a grand jury decides both a) whether there is probable cause to believe that a crime has been committed, and b) whether there is probable cause to believe that the accused committed it.
In the grand-jury context, probable cause means that a reasonable person viewing the evidence would find it more probable than not that a crime was committed and the accused committed it. And this function (deciding whether to indict rather than merely investigating) is the primary function of a grand jury. This is from the US Attorneys’ Manual:
While grand juries are sometimes described as performing accusatory and investigatory functions, the grand jury’s principal function is to determine whether or not there is probable cause to believe that one or more persons committed a certain Federal offense within the venue of the district court. Thus, it has been said that a grand jury has but two functions—to indict or, in the alternative, to return a “no-bill.”
There’s an obvious reason why a grand jury’s function is not primarily investigative: by the time a grand jury is engaged, most of the investigating has already been done by law-enforcement agents and lawyers.
The bottom line is this: Mueller’s use of a grand jury means that we are (already!) well beyond the fishing-expedition phase of this investigation; the grand jury will decide whether there’s enough evidence to prosecute.
2. The grand jury will only hear Mueller’s side of the story.
There’s a saying among lawyers: You can get a grand jury to indict a ham sandwich. That’s because there is no opportunity in a grand-jury proceeding for the accused to rebut the evidence against him (although the US Attorneys’ Manual does “encourage” prosecutors to allow the target of an investigation to testify). A grand jury usually develops a close relationships with a prosecutor, and grand jurors usually do whatever a prosecutor wants them to do.
3. Grand juries are not impaneled or engaged unless evidence of criminality exists.
One of the most overlooked standards involved in the Trump-Russia matter is the standard for opening an investigation in the first place. As former FBI Director James Comey explained in Senate testimony, he wouldn’t have started the investigation without “credible evidence” of criminal wrongdoing.
So we already knew that, contrary to right-wing memes, some federal officials somewhere had already seen evidence of a crime. In case there was any doubt, that should now be gone. A federal prosecutor, as a matter of practice, simply does not impanel or engage a grand jury unless there is considerable evidence of criminality.
4. This grand jury might be focused on only one case.
There reportedly was already a grand jury impaneled in Virginia to supervise the Michael Flynn investigation. There would be no need to engage a new grand jury in DC unless somebody else was now a focus (and probable target) of the investigation.
Furthermore, the Wall Street Journal says this is a special grand jury impaneled to work up only this one case. Most grand juries are impaneled to consider multiple cases on a court’s docket.
UPDATE ON THIS POINT: The Wall Street Journal and the Washington Post differ a bit on this: the Journal says it’s a new grand jury specially impaneled just for this one case while the Post says it’s a normal grand jury that was impaneled to hear multiple cases but is now being used for this case as well. Either way, it’s a grand jury that Mueller wasn’t using before, and it is a DC grand jury rather than the Virginia grand jury that we already knew was impaneled and issuing subpoenas in the Michael Flynn investigation, so Mueller is now looking at potential new crimes committed in DC. (Ahem.)
5. Most importantly, interfering with this process would unquestionably constitute obstruction of justice.
I’ve blogged repeatedly about the following elements of obstruction of justice:
As to all Trump’s attempts to interfere with the investigation so far (firing the FBI Director, harassing Mueller with accusations of unethical behavior, etc.), there has been a question whether any of the investigations underway constituted a “pending proceeding” for purposes of obstruction.
There is no longer any doubt. A grand jury’s deliberation is unquestionably a pending proceeding, which means that any attempt to interfere with the investigation for corrupt purposes (i.e. to keep from getting indicted) from this point forward would unquestionably constitute obstruction of justice.
And that’s interesting, because with a grand jury impaneled, if Donald Trump is going to fire Bob Mueller (and thereby endeavor to influence a pending proceeding for corrupt purposes), time is running out.