The principal function of a federal grand jury is to investigate a suspected crime with an eye toward returning an indictment — a formal accusation of felony misconduct. In the alternative, a grand jury may file a “no true bill,” a formal finding that the prosecutor failed to show probable cause that the subject of the investigation committed a crime.
Sometimes, however, to vote yea or nay on a proposed indictment is not the grand jury’s only option. In certain situations, federal law authorizes a grand jury to file a report detailing its findings, even if criminal charges are not forthcoming. One such situation involves investigations of public officials. Instead of returning an indictment, a grand jury may issue a report that recommends an official’s removal from office.
These columns have lamented the Justice Department’s assignment of a prosecutor to investigate the president without specifying a crime or the factual basis for a criminal investigation. We’ve also observed that no indictable crime is required to trigger impeachment proceedings. Neither, we now note, is a provable crime a prerequisite for the issuance of a grand-jury report.
Thus, the question arises: Is Special Counsel Robert Mueller’s impaneling of a new grand jury in Washington step one in the impeachment of President Donald Trump?
By statute (Section 3333 of Title 18, U.S. Code), a grand jury’s report may address (my italics):
noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.
While the statute literally applies only to an appointed public officer, there is little doubt that a court would permit the issuance of a grand-jury report regarding an elected public officer, too. After all, such a report’s recommendation of removal from office would not be binding — a president may be removed only by the Constitution’s impeachment process. And the report’s disclosure of any public officeholder’s conduct would be deemed in the public interest: There is some academic debate about whether a president may be indicted while in office, so the grand-jury report might stand as the only public accounting of an official’s alleged misconduct.
The U.S. Attorney’s Manual, which guides Justice Department procedures, elaborates that the statute’s phrase “‘organized criminal activity’ should be interpreted as being much broader than ‘organized crime.’” It includes “any criminal activity collectively undertaken.” That could mean any conspiracy or any fraudulent scheme involving two or more people.
Note, moreover, that the law does not say that the public official must personally be guilty of criminal activity. Remember, we’re talking here about a situation in which the grand jury has concluded there is not enough evidence to charge the public official with a crime. What the statute says is that, to trigger a report, there must be (a) criminal activity committed by some group of people, and (b) “noncriminal misconduct, malfeasance, or misfeasance” committed by the public official that somehow relates to the criminal activity.
This noncriminal behavior must have been committed while the public official was “in office.” That is significant because the heart of the Russia investigation is the Putin regime’s interference in the 2016 election. To the extent there are suspicions and some indications of collusion between Trump-campaign officials and Putin-regime operatives, those occurred during the campaign. Trump was not in office at that time.
Nevertheless, since Trump took office in January, there have of course been obstruction allegations. Specifically, there are claims that the president interfered with the investigation of retired general Michael Flynn, who fleetingly was Trump’s national-security adviser. It is further alleged that Trump’s removal of FBI Director James Comey was intended to impede the Russia investigation.
I do not believe there is a legally sufficient case of criminal obstruction. Trump had legitimate power to exercise prosecutorial discretion in recommending against any further criminal investigation of Flynn. The president, furthermore, has the authority to dismiss the FBI director at any time — for any reason or no reason.
Obviously, I’m just a commentator here in the peanut gallery, and other commentators see things differently. But even if I am right that there is no crime, bear in mind that we are talking precisely about what a grand jury may do when there is no crime — i.e., when a public official has engaged in dodgy but noncriminal behavior that is somehow connected to criminal misconduct allegedly committed by others. Mueller could very well argue that this is Trump’s situation, and that it thus calls for a grand-jury report questioning his suitability for the responsibilities of the presidency.
Also consider this: We are talking about the grand-jury stage, not a trial. Mueller would not have prove beyond a reasonable doubt the facts said to justify issuance of a grand-jury report. He’d just have to argue that there is enough suspicious conduct on the part of the president and his associates to warrant a report.
On the matter of Comey’s dismissal, for example, Mueller could contend that Trump himself told Russian diplomats that his purpose for removing Comey was to ease the pressure on him due to the Russia investigation — even though Trump had caused the public to be told that Comey was fired for mishandling the Hillary Clinton e-mails investigation. Mueller could add that, in the aftermath of Comey’s dismissal, it was discovered that (a) Trump’s oldest son had arranged a meeting with Putin-regime operatives in hopes of obtaining information damaging to Hillary Clinton; and (b) when the New York Times learned about the incident, President Trump intervened by directing his son not to disclose that the reason for the meeting was to get dirt on Clinton (i.e., the president had his son deceptively represent that the meeting concerned American adoptions of Russian children).
The special counsel could conclude that none of this rises to the level of prosecutable obstruction. As president, Trump had the power not only to dismiss the FBI director but to downgrade — or even shut down — the counterintelligence investigation of Russia’s election meddling. Plus, it is not a crime to mislead the New York Times and its readers. Yet, the special counsel could also find that this behavior is in the nature of “conduct unbecoming” — maybe not indictable, but unsavory and abusive, especially on the part of a high public official. That, Mueller could reason, is why Congress empowered grand juries to issue reports.
Two other things to consider.
First, once a grand jury has a plausible basis to issue a report about the noncriminal misconduct of a public official, the statute places no real limits on what may be in the report. If, in addition to a public official’s conduct while in office, the grand jury has also been exploring his conduct before taking office, its report may include that misconduct. Nothing in the statute prevents it. The law’s only requirements are that the facts alleged must be supported by a preponderance of the evidence (i.e., not the higher criminal-law conviction standard of “beyond a reasonable doubt”), and the public official must have been given an opportunity to present any rebuttal evidence.
Here, we must again recall that, in contravention of the regulations that govern special-counsel appointments, the Justice Department did not issue a jurisdictional mandate describing the factual basis for a criminal investigation. Mueller was instead assigned to conduct the Russia counterintelligence investigation. Because that was not a criminal investigation, Mueller’s probe was not confined to specified crimes. As a practical matter, there are no limits to his investigative warrant, and thus no limits to what a grand jury might inquire into — and ultimately allege in a report.
Second, as we have also frequently noted (and as I elaborated on in Faithless Execution), the impeachment of a president need not be predicated on indictable criminal offenses.
The impeachment of a president need not be predicated on indictable criminal offenses.
Moments ago, in describing the kind of “noncriminal misconduct” that might be alleged in a grand-jury report, I referred to “conduct unbecoming.” That’s a military-justice offense from time immemorial, formally known as “conduct unbecoming an officer and gentleman” (although today it applies to female officers as well). It involves conduct that so damages the officer’s character — acts of dishonesty, indecorousness, lawlessness, and the like — that his capacity to function as an officer is severely compromised.
Did I mention that Bob Mueller is a heroic former Marine officer (if there is such a thing as a “former” Marine)?
The Constitution’s standard for impeachable conduct, “high crimes and misdemeanors,” is a concept more analogous to military justice than to penal law. It involves violations of an officeholder’s public trust, transgressions that call into question his fitness to wield power and carry out high responsibilities. High crimes and misdemeanors need not be felonies chargeable in criminal court; they include all manner of execrable episodes and abuses of power that cause us to question a public official’s fitness.
In other words, they are just the sort of thing you’d find in a report issued by a grand jury. Which means that a report issued by a grand jury could be just the sort of thing a special counsel might refer to Congress as the potential foundation for an impeachment case.
It is a long way from here to there, but don’t be surprised if that is where we’re headed.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.