Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Alex Wong Getty Images
Washington is all abuzz that Special Counsel Robert Mueller has empaneled a grand jury in furtherance of his investigation into whether or not Donald Trump's campaign colluded with Russia. In spite of the inevitable speculation this creates, its worth remembering that a grand jury is a powerful investigative tool, but not a criminal charge. So what is the significance of a grand jury convening?
A grand jury has the power to subpoena both witnesses and documents, such as bank records and phone records. Refusal to comply with a subpoena, which has the force of a court order, without a legal basis creates the risk of the subpoena recipient being held in contempt of court and subject to criminal or civil penalties.
Legal privileges, such as the Fifth Amendment privilege against self-incrimination, are a basis for a witness to refuse to testify. The only way to get around a legally applicable privilege would be to seek an order of immunity, which would protect the witness from criminal exposure and therefore render the Fifth Amendment inapplicable. Perhaps the most famous immunized witness in past independent counsel investigations is Monica Lewinsky; its easy to forget that former national security advisor Michael Flynns lawyer offered his testimony to the Senate Intelligence Committee if he received immunity, where anything said could not be used against him in a criminal proceeding. The Committee, perhaps anticipating a prosecutors eventual interest in Flynn, declined.
Moreover, certain evidence, such asyes, Mr. Presidenttax returns, are considered more private than others, and cannot be obtained via subpoena. Rather, Mueller would need to seek an order from a judge to obtain Trumps tax returns, a wiretap, or a pen register, for instance.
Unlike Congressional hearings, in which sworn testimony is public, grand jury investigations are secret by law. This secrecy rule is demonstrated by the fact that Muellers grand jury has apparently been working for several weeks, but was only reported in the media yesterday. Prosecutors, law enforcement, and grand jury members themselves are barred from discussing grand jury proceedings. The reasons for this are twofold: First, publicity can cripple an ongoing covert investigation; second, grand jury investigations are secret to protect subjects of an investigation who may or may not ultimately be charged.
Grand jury witnesses, however, are not subject to the secrecy rules. So any legal reports from the grand jury room will come from the witnesses.
Grand juries, like Congress, can issue subpoenas. Unlike Congress, they can vote to criminally indict the subjects of their investigations. The purpose of empaneling a grand jury is to gather and assess the weight of the evidence. It does not mean that there exists enough evidence to amount to proof beyond a reasonable doubt, which is the standard for a conviction, or probable cause, which is the standard the grand jury must find in order to vote to indict. Given the grand jury secrecy rules described above, there is no way for the public to know with certainty how much evidence Mueller has amassed, or its value in a criminal case. So the smart money wont bet on criminal charges by the mere fact of empanelment alone.
In summary, empaneling a grand jury is consistent with Muellers reputation as a lawyer and investigator: a meticulous and thorough officer of the court who is committed to accuracy and the rule of law. But the grand jurys existence doesnt amount to a criminal charge, and it definitely doesnt equate a criminal conviction. As were whipsawed by Washington, its worth taking a page from Muellers book, and following the evidence where it leads.
Juliet S. Sorensen is a clinical associate professor of law at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials (West Academic 2017).
See the original post here:
Why Robert Mueller's Grand Jury Isn't Really a Big Deal - Fortune
- Fifth Amendment - The Text, Origins, and Meaning of the ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- 5th Amendment - Revolutionary War and Beyond [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fifth Amendment to the United States Constitution ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Justices suggest public employees' testimony is protected [Last Updated On: April 29th, 2014] [Originally Added On: April 29th, 2014]
- HST 330 fifth amendment presentation - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Police not sure if Sioux City murder suspect invoked 5th Amendment rights [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Christie Ally Samson Refuses to Give Documents to Lawmakers [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- House votes to hold ex-IRS official in contempt [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- House votes to hold ex-IRS official Lois Lerner in contempt of Congress [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- House holds Lois Lerner in contempt [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- House votes to hold former IRS official in contempt [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- Articles about Fifth Amendment - Los Angeles Times [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- Former PA Chairman Samson Pleads Fifth - Video [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- GOP-led House votes to hold former IRS official in contempt [Last Updated On: May 12th, 2014] [Originally Added On: May 12th, 2014]
- No plans to arrest Lois Lerner, John Boehner says [Last Updated On: May 13th, 2014] [Originally Added On: May 13th, 2014]
- Im not going to testify: Witness pleads Fifth Amendment during Bangor triple murder trial [Last Updated On: May 13th, 2014] [Originally Added On: May 13th, 2014]
- Attorney: Defense told Corso will take Fifth [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Spokane County workers use Fifth Amendment in back-dating case - Thu, 22 May 2014 PST [Last Updated On: May 22nd, 2014] [Originally Added On: May 22nd, 2014]
- Shawn Vestal: County permit clerical mishap raises eyebrows - Fri, 23 May 2014 PST [Last Updated On: May 23rd, 2014] [Originally Added On: May 23rd, 2014]
- Sexual abuse measure could lead to wrongful convictions, attorneys say [Last Updated On: August 31st, 2014] [Originally Added On: August 31st, 2014]
- 5th Amendment - Laws.com [Last Updated On: August 31st, 2014] [Originally Added On: August 31st, 2014]
- Wildstein takes the 5th - Video [Last Updated On: August 31st, 2014] [Originally Added On: August 31st, 2014]
- Fifth Amendment (United States Constitution ... [Last Updated On: September 2nd, 2014] [Originally Added On: September 2nd, 2014]
- New bill a powerful tool to imprison sex offenders [Last Updated On: September 3rd, 2014] [Originally Added On: September 3rd, 2014]
- Cristin Milioti in The Good Wife - Julianna Margulies - Video [Last Updated On: September 4th, 2014] [Originally Added On: September 4th, 2014]
- Kansas Supreme Court: Grand jury violated man's Fifth Amendment rights [Last Updated On: September 6th, 2014] [Originally Added On: September 6th, 2014]
- Attorney Gwendolyn Solomon Petitions United States Supreme Court to Review Tenth Circuits Decision in Case of the IRP6 [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Texas man's conviction overturned because of Fifth Amendment violation [Last Updated On: September 10th, 2014] [Originally Added On: September 10th, 2014]
- Cop Says 'You Must Be Doing Something Wrong if You Invoke Your Rights' (Video) [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Public be damned Litchfield latest example [Last Updated On: September 14th, 2014] [Originally Added On: September 14th, 2014]
- Volokh Conspiracy: What the posse comitatus case might mean for the future of the exclusionary rule [Last Updated On: September 15th, 2014] [Originally Added On: September 15th, 2014]
- Fifth Amendment - Video [Last Updated On: September 15th, 2014] [Originally Added On: September 15th, 2014]
- Top 5 Constitution-Related Searches at FindLaw.com [Last Updated On: September 19th, 2014] [Originally Added On: September 19th, 2014]
- The Fifth Amendment Eminent Domain - Video [Last Updated On: September 19th, 2014] [Originally Added On: September 19th, 2014]
- Apple And Google Will Force A Legal Battle Over The Privacy Of Your Passcode [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Civics- The Fifth Amendment (Sarah Hutchinson) - Video [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Google and Apple Wont Unlock Your Phone, But a Court Can Make You Do It [Last Updated On: September 22nd, 2014] [Originally Added On: September 22nd, 2014]
- GOP fumes over Lerner remarks [Last Updated On: September 23rd, 2014] [Originally Added On: September 23rd, 2014]
- Assistant to DeKalb CEO Ellis invokes 5th Amendment 30 times [Last Updated On: September 23rd, 2014] [Originally Added On: September 23rd, 2014]
- GOP fumes as Lois Lerner talks to press but snubs Congress [Last Updated On: September 24th, 2014] [Originally Added On: September 24th, 2014]
- Cry us a river, Lois Lerner [Last Updated On: September 24th, 2014] [Originally Added On: September 24th, 2014]
- Can You Go to Jail for Refusing to Testify? [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- Fifth Amendment Projectb - Video [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- The Commander Cody Band - Take The Fifth Amendment - 8/5/1977 - Convention Hall (Official) - Video [Last Updated On: September 27th, 2014] [Originally Added On: September 27th, 2014]
- Joey Gallo Takes The Fifth Amendment - Video [Last Updated On: September 29th, 2014] [Originally Added On: September 29th, 2014]
- Batavia High School teacher John Dryden retires from school district [Last Updated On: October 3rd, 2014] [Originally Added On: October 3rd, 2014]
- Batavia High School teacher John Dryden retires [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- The Fifth Amendment Please Don't Leave Me Now - Video [Last Updated On: October 6th, 2014] [Originally Added On: October 6th, 2014]
- Man Denied Fifth Amendment While In Court Wearing Anti-Police Shirt, Still Won His Case (Video) [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Batavia teacher previously involved in Fifth Amendment dispute retires [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- INFORMUCATE: THE FIFTH AMENDMENT - Video [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Fairholme Funds Appeals Fannie Mae and Freddie Mac Verdict [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Code cases: Police want phone access, but some pass [Last Updated On: October 12th, 2014] [Originally Added On: October 12th, 2014]
- Fresno Police Officer violated fifth amendment at a dui checkpoint. part 2 - Video [Last Updated On: October 12th, 2014] [Originally Added On: October 12th, 2014]
- Property Rights | Century Law Group - Video [Last Updated On: October 20th, 2014] [Originally Added On: October 20th, 2014]
- Agents questioned, Askar takes the Fifth in Trombetta hearing [Last Updated On: October 21st, 2014] [Originally Added On: October 21st, 2014]
- Scott and Crist have heated and personal final debate before November election [Last Updated On: October 22nd, 2014] [Originally Added On: October 22nd, 2014]
- Detective dodges questions about allegations made during rape investigation [Last Updated On: October 25th, 2014] [Originally Added On: October 25th, 2014]
- Disciplinary hearing for SB officer moved to later date - Video [Last Updated On: October 27th, 2014] [Originally Added On: October 27th, 2014]
- Judge Rules Suspect Can Be Required To Unlock Phone With Fingerprint [Last Updated On: October 31st, 2014] [Originally Added On: October 31st, 2014]
- Virginia judge: Police can demand a suspect unlock a phone with a fingerprint [Last Updated On: October 31st, 2014] [Originally Added On: October 31st, 2014]
- Court rules: Touch ID is not protected by the Fifth Amendment but Passcodes are [Last Updated On: October 31st, 2014] [Originally Added On: October 31st, 2014]
- Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone [Last Updated On: November 1st, 2014] [Originally Added On: November 1st, 2014]
- Civil Rights and Civil Liberties - Fifth Amendment - Shh! The Right to Remain Silent - Video [Last Updated On: November 1st, 2014] [Originally Added On: November 1st, 2014]
- Your Fingerprints Belong To Us: Iphone Users Forfeit 5th Amendment - Video [Last Updated On: November 2nd, 2014] [Originally Added On: November 2nd, 2014]
- All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment - Video [Last Updated On: November 2nd, 2014] [Originally Added On: November 2nd, 2014]
- Log into Tax-News+ [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- Editorial: Applying the Fifth Amendment in the era of smartphones [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- Volokh Conspiracy: Virginia state trial court ruling on the Fifth Amendment and smart phones [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- Fingerprints: iPhone Users Forfeit Fifth Amendment. - Video [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- New ruling may affect police access to smartphones - Video [Last Updated On: November 6th, 2014] [Originally Added On: November 6th, 2014]
- Why the Constitution Can Protect Passwords But Not Fingerprint Scans [Last Updated On: November 7th, 2014] [Originally Added On: November 7th, 2014]
- Virginia state trial court ruling on the Fifth Amendment ... [Last Updated On: November 7th, 2014] [Originally Added On: November 7th, 2014]
- Is taking the fifth amendment a bad idea? - Video [Last Updated On: November 7th, 2014] [Originally Added On: November 7th, 2014]
- IT Security TV Show 4 November 2014 - iPhone Users Forfeit Fifth Amendment - Video [Last Updated On: November 7th, 2014] [Originally Added On: November 7th, 2014]
- the fifth amendment happy parody project song for connections - Video [Last Updated On: November 8th, 2014] [Originally Added On: November 8th, 2014]
- 13-year-olds murder conviction overturned [Last Updated On: November 11th, 2014] [Originally Added On: November 11th, 2014]
- Your Fifth Amendment Rights DO NOT Cover Biometrics - Video [Last Updated On: November 11th, 2014] [Originally Added On: November 11th, 2014]
- Philadelphia charter school officials pleaded Fifth 77 times [Last Updated On: November 12th, 2014] [Originally Added On: November 12th, 2014]