8/18/17How does a grand jury function in Russia probe?
CONTACT: Phil Ciciora, Business and Law Editor
Andrew D. Leipold is the Edwin M. Adams Professor of Law at the University of Illinois and an expert on criminal law and the judicial process. Leipold, who also is the director of the Program in Criminal Law and Procedure at Illinois, spoke with News Bureau business and law editor Phil Ciciora about the use of grand juries in the investigation of Russian interference in the 2016 U.S. presidential election.
What is the significance of Robert Mueller, the former FBI director and current special counsel in the Russia probe, impaneling a federal grand jury?
Making use of a grand jury is a routine part of large investigations, so I would have been surprised if Mueller had not made use of one. Grand juries allow for the gathering of information, and to compel people to testify under oath in ways that prosecutors often can’t get otherwise. If a police officer or FBI agent asks a bystander on the street a question, or asks them to produce a document or other evidence, they don’t have to do it. But in grand jury proceedings, unless that person has some sort of privilege like their Fifth Amendment rights to silence, they have to answer questions and produce the requested documents. And if witnesses knowingly provide false information or a make a misstatement to a grand jury, that’s perjury.
Is an investigatory grand jury a way of putting witnesses “on the record”?
Yes, because witnesses are compelled to testify unless they have some privilege – the right not to incriminate themselves, or the attorney-client privilege, for example. It’s a great way for the prosecutor to lock in the witness’s statements under oath. Later, if the witness wants to change their story, it will be much harder to do so if they know there is a grand jury transcript that says something different.
Why don’t all witnesses just invoke their privilege against self incrimination, so they don’t have to say anything that might get them, or someone they care about, in trouble?
First, not all witnesses can plausibly claim that information they have might implicate them in a crime. Second, many witnesses want to be helpful, even if they are not happy about it. They are interested in making sure that people who commit crimes are caught, and take some comfort from the fact that grand jury proceedings are secret, so people may never learn what they said in their testimony.
Finally, if a witness does claim the Fifth Amendment privilege and refuses to testify, prosecutors can overcome that privilege by providing immunity to the witness from having their testimony used against them in a later criminal case. It’s a big step to immunize a witness, and prosecutors don’t do it very often. But for really important witnesses, prosecutors ultimately can make sure that they testify, whether they want to or not.
How does a federal grand jury differ from a state grand jury?
There are two main things that a grand jury does, whether it is state or federal: It investigates, and it passes judgment on whether there’s enough information to send the case forward to charge someone with a crime. Very often, the investigation function is minimal: Prosecutors present a summary of the evidence through police or other witnesses, the grand jurors vote on whether this is enough to send the case to trial, and then it is on to the next case. Unlike trial juries, grand juries in more routine cases can hear several cases in a single day. So especially in some state grand jury systems, there’s not a lot of probing or open-end investigating that goes on.
But in some larger federal cases – and the Mueller inquiry would be one of them – it’s really about the investigative powers of the grand jury. It’s about the ability to gather information and to subpoena documents that witnesses wouldn’t ordinarily disclose. Think of the Mueller grand jury more as “We don’t have all the information we need, so we’ll make use of the broad investigative powers of the grand jury.”
More so than in most cases, the Mueller investigation is almost certainly not sure where the evidence will lead and what the result will be. One bit of information leads to another and you just sort of have to follow your instincts about where the trail is likely to lead, which means you might well end up at a place that you did not imagine when you started the investigation.
There’s the old legal saw about how a prosecutor could get a grand jury to indict a ham sandwich. How easy is it for a prosecutor to get an indictment?
Prosecutors very rarely will seek an indictment from a grand jury and not get it. And so it’s important for the public to understand that it’s not about the grand jury. It’s about the prosecutor – in this case, Mueller. He’s making the decisions here. It’s unlikely that the grand jury would resist the direction that Mueller ultimately wants to go, whether it’s to indict or not to indict.
How conceivable is it that Mueller does all this work and then comes up empty?
It’s certainly possible, but it would be surprising, at least to me, if his final conclusion was that there was nothing there. I could imagine him saying that there was insufficient evidence to make a provable criminal case, which is a very high standard. Or that any violations are relatively minor and, in the exercise of prosecutorial discretion, he would recommend not pursuing an indictment. But it’s the beginning of the process, so it’s awfully hard to predict right now.
Editor’s note: To contact Andrew Leipold, call 217-333-1955 or email email@example.com.
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