//  5/21/18  //  Commentary

It’s been just over a year since Robert Mueller was appointed to conduct an investigation into, among other things, possible collusion between the Russian government and the Trump campaign in the 2016 election.  One year in, the President and those close to him have made no secret of the fact that they want this investigation to end, and speculation has been building that the President might try to fire Mueller.

If President Trump thinks that firing Mueller would automatically bring his year-long investigation to an end, he ought to think again.  As my colleague Ashwin Phatak and I discuss in a new Issue Brief, the grand jury impaneled to assist in the Mueller investigation could, with the approval of the judge who impaneled it, Chief Judge Beryl Howell, continue with at least some of its critically important work even in the event that Mueller were fired. 

Below is an excerpt from the Issue Brief’s Introduction (with footnotes omitted), and the full Issue Brief is available here.

* * *

The Founders enshrined the grand jury in the Fifth Amendment to the Constitution, providing that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”  At the time of the Founding, grand juries enjoyed “broad powers,” and they often operated independently of prosecutors, engaging in their own investigations and issuing their own reports detailing their findings.  In carrying out these functions, early grand juries were “akin to . . . modern-day blue ribbon commissions and special prosecutors called to investigate in areas where regular government officials may have conflicts of interest.”  As James Wilson said, the grand jury “may suggest publick improvements and the modes of removing publick inconveniences: they may expose to publick inspection, or to publick punishment, publick bad men, and publick bad measures.”

Although federal grand juries today work at the behest of federal prosecutors and rarely if ever exist or perform work without a prosecutor’s close oversight and direction, no legal rules prohibit a modern grand jury from engaging in the independent investigation and reporting typical of earlier grand juries.  In fact, courts have recognized that the Federal Rules of Criminal Procedure do not, except when expressly indicated, take away the powers traditionally enjoyed by grand juries.  Nor do they eliminate the traditional discretion of district courts to determine when it is appropriate to disclose grand jury materials.

Given the potentially broad powers of the grand jury, and the discretion enjoyed by the district court judge overseeing the grand jury, it is significant that Mueller’s firing would not, in and of itself, result in the discharge of the grand jury impanelled at his request.  Under the Federal Rules of Criminal Procedure, only the district court judge who impaneled the grand jury can discharge it, and she enjoys broad discretion in determining whether and when to do so.  Further, while Mueller’s firing would prevent the grand jury from continuing to issue indictments and would, as a practical matter, limit its ability to engage in investigative activities, it might still be able to take action that could advance Mueller’s work.  Most significantly, the grand jury could, with the approval of the district court, prepare a report that could be disclosed either publicly or to Congress.  Such a report could potentially shed critical light on what Mueller’s investigation has thus far uncovered.

This Issue Brief explores these possibilities in detail.  First, it describes the history of the grand jury’s role from the time of the Founding, explaining that for most of its existence, the grand jury exercised far more investigatory, accusatory, and reporting power than it does today.  Second, it describes the modern legal framework, explaining why modern federal grand juries exercise much less independence than they previously did, but noting that they still retain some important common law powers, including reporting powers.  Third, it describes two important recent examples of grand juries that authored reports that were eventually released, at least to some parties.  Fourth and finally, this Issue Brief discusses the extent to which something similar could happen with the grand jury in the Russia investigation. 

Though there are few precedents for a modern grand jury taking such independent action, we are already in uncharted territory.  If the President were to fire the individual at the helm of an investigation into crimes allegedly perpetrated by him and his associates, the grand jury—exercising its traditional role—may be the last bulwark to ensure that the investigation gets completed and justice is done.  Even if practical obstacles prevented the grand jury from continuing its investigation, a report detailing what the Mueller investigation has thus far uncovered could meaningfully advance the ongoing investigation.  This possibility highlights that firing Mueller, while politically treacherous and deeply disruptive to the rule of law, may not even produce the outcome the President desires—a complete end to the ongoing Special Counsel investigation. 

 


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