August 4, 2017

About grand juries

Politico - Only a grand jury can issue an indictment, which is the only way that someone can be charged with committing a felony pursuant to the U.S. Constitution. Merely impaneling a grand jury does not mean that Mueller will ultimately seek an indictment, although most grand jury investigations do result in someone being indicted. When a prosecutor does seek an indictment, one is almost always returned by the grand jury – hence the old saw that a grand jury would “indict a ham sandwich” if asked.

A grand jury, which consists of 16 to 23 people, is an important tool that allows prosecutors to issue subpoenas that require people to produce documents and other evidence. Subpoenas can also be used to compel people to testify under oath before the grand jury. You can expect Mueller and his team to issue many subpoenas in the months ahead.

Because grand jury subpoenas are an important prosecutorial tool, typically a grand jury is impaneled at the very beginning of an investigation, not at the end. Indictments are usually sought at the very end of an investigation, after all of the witnesses are questioned and all of the documents are obtained. So despite all the punditry on cable news, there’s no suggestion here that Mueller is closing in on any particular target, such as the president. In all likelihood, he’s just getting started.

The work that grand juries do is secret, which means that grand jurors—who are ordinary citizens chosen at random and vetted by the federal district court—cannot share what is happening before the grand jury. Federal rules also prevent prosecutors from disclosing what happens before the grand jury. But those same rules permit witnesses to disclose what happened, and people who receive grand jury subpoenas are usually not prohibited from disclosing their contents. That means that we will likely continue to hear media reports about witnesses and documents sought by Mueller and his team, as we did on Thursday.

One quirk of grand juries could be significant. When a witness testifies under oath before the grand jury, no one else is permitted to be present other than the prosecutor and the grand jurors. The witness is not even allowed to have a lawyer present, and the normal rules of evidence that limit questioning in a trial do not apply.

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