Questions, and lots of answers, about federal grand juries

  • 8 August 2017
  • NormanL
Questions, and lots of answers, about federal grand juries

There's a bit of controversy in the air over special counsel Robert Mueller's multiple grand jury investigation into possible contacts between the Trump presidential campaign and the Russian government. Is this a fishing expedition? Can Mueller exceed his mandate and investigate whatever he wants? Why a grand jury, anyway? Aren't those unconstitutional?

Ken White offers us answers to these and many more questions about what, exactly, a grand jury is, what it does, and how the process works. To begin with...

A grand jury is a group of citizens brought together to determine whether to bring criminal charges against someone suspected of a crime. Here's how the Supreme Court described the grand jury and its origins in 1956:

The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge, and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings, the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And, in this country, as in England of old, the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.

So the Constitution requires grand juries?

It requires federal grand juries. The Fifth Amendment says "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . ." So, the Constitution requires that the federal government get an indictment from a federal grand jury before charging you with a federal felony.

How are they created?

So how are federal grand juries formed? I saw a bunch of headlines that Special Counsel Robert Mueller had impaneled a federal grand jury to investigate President Trump.

Those headlines are almost certainly misleading.

Here's how it works. The Unites States' federal court system is divided into 94 districts. Some states have multiple districts — here in California there are four. Some states have only one, and the District of Columbia has some. Each district has its own United States District Court and its own United States Attorney. Each district has its own grand juries.

In the early days of America, courts convened federal grand juries when needed. But now each district has a grand jury operating all the time, and most district have multiple grand juries. Federal grand juries tend to meet anywhere from once a week to once a month, so in big districts you'll have at least one grand jury operating every day of the week.

There are some federal laws allowing new grand juries to be impaneled for special purposes. But it's extremely unlikely that's what Robert Mueller did. Rather, most likely he just started to use an existing federal grand jury in the District of Colombia, one that already existed and was formed to hear a variety of cases. That's what he previously did in Virginia.

Who sits on a grand jury?

Federal courts select potential jurors from records of the voters in their federal judicial districts. Then the courts divide them into potential trial jurors and potential grand jurors.

The court then screens potential grand jurors to see if they are able to serve for the length of time required.

How long do federal grand jurors have to serve?

Commonly federal grand jurors serve for anywhere from a year to 18 months, meeting anywhere from once a week to once a month. It's a lot of time, which is why the court screens out the people who can't do it.

And the big question -- what does an investigative grand jury do?

It does whatever the prosecutors want it to do.

Federal prosecutors use investigatory grand juries to build cases over a long period of time. Practically speaking the grand jury is typically not an active participant in this process until the very end when it votes to indict; it's more of a bystander. The federal prosecutors decide whom to investigate, what documents to subpoena, what witnesses to call, and what to ask them. They decide the pace and the focus. Federal prosecutors may share very little with an investigative grand jury about whom they want to indict, how they plan to get there, and why any particular witness has been called or how that witness fits into the scheme of the case. The federal prosecutor may have a meticulous strategy, but generally the grand jurors are not in on it. Effective prosecutors may give brief summaries of the nature of the investigation and how a particular witness fits into it, but it's not mandatory. Federal prosecutors subpoena documents with grand jury subpoenas, but they rarely review those documents with the grand jurors or explain them or their significance — they just periodically call a federal agent as a witness and say "Federal agent, did we subpoena documents on behalf of this grand jury? Did you receive documents? Will you keep custody of them on behalf of this grand jury? Thank you."

Add to that the fact that an investigative grand jury may be hearing many different cases over their term. On a given day one prosecutor may take all of their time, but more commonly two or three or four prosecutors may be calling witnesses in different investigations. The grand jurors have notebooks, but they can't keep track of the cases in other ways, and practically speaking it would take a very unusual grand juror to keep track of all the different investigations and the flow of information and evidence and how it all fits together. I don't think I could do it, and I've been doing federal criminal law for 23 years.

(By the way, this is one of the few things that tends to disrupt the camaraderie of a U.S. Attorney's office — you have to sign up for grand jury time, and competition for the time can be fierce, and some prosecutors have bad habits like signing up for all the time for months just in case they have a witness they want to call, and so forth.)

Think of it, then, from the perspective of a federal grand jury on an investigatory grand jury. They don't have any training in federal criminal law. They don't know, until they're instructed at the time they're asked to approve an indictment, what the relevant federal criminal laws are or what the elements of those crimes are. Men and women in suits show up and call witnesses and ask those witnesses questions — often boring questions about dates and documents and such — but they have very little idea what the context is for those questions or how they connect with anything or how they build towards anything. Different men and women in different suits call witnesses and talk about documents from different cases, and it's all a blur.

There's a lot more information at the link. We urge you to click over, and give the entire article a read (it's both informative and funny).