Vitality of grand jury proceedings

Dear Readers, The Government is not allowed to draw up charges in secret and arrest people.  The Fifth Amendment makes this explicit – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …”

Not every crime is “capital” or “infamous.”  For example, a grand jury presentment is not required for misdemeanor charges.  This is why the Subway sandwich man was tried on misdemeanor charges, whilst the grand jury returned a “no bill”, a draft indictment (rejected it).

A “capital” crime typically means one subject to the possibility of life in prison (or death).  There might be a range of charges from murder to rape to some robberies that carry this theoretically harsh sentence.  Hence, these types of charges surely require an indictment presentment.

The grand jury process is special, as the proceedings are bathed in secrecy.  It takes a court order to remove this protection.  This is why there are requests by the Government to “unseal” the results of the Epstein grand jury; you need judicial approval to do this.

The prosecutor acts as the legal guide for the grand jury, typically comprised of 16 to 23 citizens.  He or she “presents” the case to the jurors and answers their legal questions.  Except in the rare case of a certain class of those accused (like law enforcement officers acting in their official capacity), the grand jurors only hear from the witness and the evidence a prosecutor wants them to hear, allowing that jurors can ask questions of witnesses and ask to hear from witnesses.

To secure an indictment, you only need to have a majority of jurors agree on a “true bill” (approval) for an indictment.  The vote is behind closed doors as a whole body of jurors present, signed by the foreperson, transmitted to a judge for review, and, only then, formally filed into the court record.

In attempting to follow the political whims of President Trump, acting U.S. Attorney for the Eastern District of Virginia, Lindsay Halligan, has brought a theatre comedy to federal grand jury proceedings.  She has no criminal law, let alone prosecutorial experience, and clearly no idea what she was doing.

Erik Siebert was initially appointed to this post by President Trump.  This is a “confirmable” position requiring Senate consent.  Presidents have a 120-day period to appoint a U.S. Attorney before the nominee has to clear the Senate confirmation process.  At the expiration of 120 days, district court judges from the circuit fill the slot through a judicial interim appointment.  Assuming that the nominee is acceptable to them, the President’s initial selection seamlessly serves while the Senate gears grind.

This is exactly what happened with Mr. Siebert.  His presidential appointment expired while his nomination was working its way through the Senate, and the district court judges reappointed him.  However, Mr. Siebert would not indict James Comey, President Trump pitched a fit, and he resigned.

On the eve of the statute of limitations running to indict James Comey, President Trump appointed Ms. Halligan to the post, who rushed to secure an indictment.  She was the sole attorney in the grand jury room and the sole attorney who signed off on the indictment…. except, oops, President Trump no longer had the authority to make this appointment because he had already used up his 120-day interim authority.

Clueless, she apparently advised the grand jury (wrongly) that Mr. Comey would have to explain his congressional testimony at trial – this is barred by the 5^th Amendment’s self-incrimination protection.  The grand jury refused to indict on all three charges in the draft indictment.  To fix this, she drafted a second indictment to be“true billed,” but may have only presented it to the foreperson and one other grand juror.  And then gave both indictments to the judge.

Mr. Comey contested Ms. Halligan’s authority as acting U.S. Attorney.  Judge Cameron McGowan Currie, a district court judge from outside the circuit (South Carolina), was assigned the task of adjudicating this motion.  Judge Currie tossed the indictment, finding the appointment violated federal statute and the Constitution’s “Appointment Clause.”  This rendered the indictment a nullity and may be forever dead.

Prosecutors so control a grand jury, it is often labeled a rubber stamp.  Even so, it is an important artifact of our country’s founding and a reflection of grievances from colonial rule.  Recent events demonstrate how vital 16 to 23 common citizens can be in imparting fairness.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

A. James Rockefeller  478-953-6955    ajr@rockefellerlawcenter.com       Word count (including byline): 800