The most significant conclusion we can draw from news that a grand jury has been impaneled by Special Counsel Robert Mueller is that the so-called Russia investigation, officially, is a criminal investigation.
The purpose of a grand jury is to investigate a factual transaction or series of transactions to determine whether criminal charges should be filed. That makes it categorically different from a counterintelligence investigation. The latter, we have noted many times, is an information-gathering exercise geared toward understanding and thwarting the intentions and actions of foreign powers.
There is no need for a grand jury in a counterintelligence probe.
All that said, the fact that there is a criminal investigation does not mean charges are imminent, or indeed that they will ever be filed. There are virtually no limits on the investigative powers of the grand jury. Under our law, a grand jury may conduct a probe simply to satisfy itself that no crimes have been committed. That is to say, there is no evidentiary threshold that must be crossed before a grand jury can begin investigating. Contrast that with, for example, a search warrant or an eavesdropping warrant; those investigative techniques may not be used unless a court has first been satisfied that there is probable cause to believe a crime has been committed.
It is frequently observed that grand-jury proceedings are secret. That is not quite accurate. The obligation of secrecy applies to the grand jurors and government personnel who examine witnesses and collect evidence through subpoenas. But subjects of the investigation, witnesses, and their lawyers are under no duty to remain silent — even though it is usually a good idea to do so, since statements can be used as evidence. Of course, there are often government leaks. Putting that inevitability aside, though, it is worth noting who is permitted to speak and who is not. Media coverage of an investigation tends to rely on the people most at liberty to discuss it. That means coverage skews in favor of lawyers for the subjects, who obviously have a motive to minimize the prosecution’s proof.
The principal advantage of the grand jury for prosecutors is the ability to issue subpoenas to compel testimony and the production of documentary or other physical evidence. No investigation of any complexity can be advanced without this capacity. When I say “advanced,” I do not mean a progression toward the filing of criminal charges — at least not necessarily. An investigation should be a search for the truth, which means getting to the bottom of what happened, regardless of whether crimes can be proven.
Thus, the fact that we now have a grand jury does not mean a crime has been committed, much less that the filing of charges must be imminent. Still, the impaneling of a grand jury is a highly significant development. Prosecutors do not seek the assistance of the grand jury’s subpoena power, and do not contemplate presenting evidence to a grand jury, unless they see a realistic possibility of filing criminal charges.
On that score, we should be mindful, and certainly Special Counsel Mueller should be mindful, that this is no ordinary criminal investigation.
Having spent many years in law enforcement, most of them as a prosecutor, I can attest that criminal investigators are presumptuous. Because of the premium our society places on the rule of law, prosecutors tend to think that nothing could be more important than their investigations and prosecutions. It was not until I worked on national-security investigations — many years into my career as a prosecutor — when it dawned on me that some things (e.g., protecting life-saving intelligence methods and sources) might be more vital to the public interest than my cases.
The ability of the president to carry out his awesome responsibilities is critical to our governance and security. Prosecutors need to be sensitive to this. That does not mean a president should be cut any breaks if serious violations of law have occurred. But it does mean the president should not be under a cloud unless there is a good reason for it. Moreover, the public should be informed about whether the president is under investigation.
Prosecutors never want to give out information about their investigations. The less that is publicly known, the easier it is to interview witnesses, determine whether they are being truthful (rather than mimicking what they’ve heard in the press), and bring the investigation to an efficient conclusion. So the desire for secrecy is understandable, and in most instances it is desirable. Nevertheless, I believe it is secondary — decidedly so — in this case.
As we’ve many times noted, Mueller was appointed special counsel in an irregular manner. The regulations that require a description of the basis for a criminal investigation were not followed. The Justice Department told the public that this was a counterintelligence investigation; thus, neither the American people nor the people implicated in the investigation were given notice that crimes were suspected, much less what particular crimes and who the suspects are.
President Trump and the American people should be told whether he is suspected of criminal wrongdoing.
That is intolerable now that we are formally in a criminal-investigation mode.
To be clear, I am not suggesting that the special counsel should be barred from investigating any crimes he reasonably suspects at this point. Nor do I mean to imply that the president is entitled to more favorable legal standards than any other American would be. But in the higher interest of his capacity to function as president and our capacity to hold our political representatives accountable, President Trump and the American people should be told whether he is suspected of criminal wrongdoing and, if so, what wrongdoing.