Terry Schwadron

Aug 6, 2017

4 min read

Calling that Grand Jury

Terry H. Schwadron

Aug. 6, 2017

Disclosure by The Wall Street Journal that Special Counsel Robert S. Mueller III is convening a federal grand jury to probe influence on the 2016 election and possible Trump finances drew a collective gasp. It seems an important step towards prosecutions that may touch deep inside Team Trump.

After all, it is confirmation that there is a real investigation now under way, not a fake-news “witch hunt,” that it concerns possible criminal crimes, and that, despite any spinning, appointment of a grand jury is a significant escalation of the probe. On the other hand, reaching out to a federal grand jury is pretty much a must in such a white-collar investigation as a tool to subpoena documents, evidence and sworn testimony.

For his part, the President used the occasion to further demean any investigation as political in nature and not aimed at him, to say nothing of being a waste of time. His lawyers sounded somewhat more circumspect, recognizing that this is no time to provoke a pretty formidable team of federal investigators and prosecutors.

A few news outlets tried to offer explanation: Calling a grand jury is not announcement of charges or even targets; rather, it is one tool among many that prosecutors can use. It does signal that this investigation is rather more near the beginning than the end, and that the already exhausting public discussion of all-things-Russia will go on for months. A grand jury generally uses between 16 and 23 people chosen through the jury process and approved by a federal court, whose group examination of documents and witnesses is guided by prosecutors. Meanwhile, Mueller also asked the White House for documents about Michael Flynn, the former national security adviser who quit, and dealings in Turkey.

I’m struck by the distance between Team Trump and Team Mueller. I would not expect that the President suddenly would grow fearful about an investigation that looks as if it is about to roam into Trump finances, but I would expect a touch more humility, even from this egocentric boaster of a president. Just as Congress has insisted in its overwhelming votes for sanctions against Russia for attempts at interfering in the election, the grand jury announcement is a marker of seriousness. Instead, Mr. Trump just seems to try to use these events as fuel for insulting generalizations.

I believe nothing short of actual criminal charges will bring about a recognition that there are important, legal limits to what this President feels he can do and say about it.

Of course, as he told his West Virginia campaign rally this week, most Americans may or may not care about Russian interference in the election. But polls and Congress suggest otherwise. Indeed, it seems a rare bipartisan point of agreement that Americans hate the idea that a foreign power, Russia in particular, organized efforts to try to tilt the elections. Getting to the truth of these matters seems a pretty central concern.

Instead, Team Trump has organized a ton of activities, speeches, tweets and surrogates to distract attention from all-things-Russia, and, indeed, is showing at least mixed messages to Russian leadership about wanting a better relationship and pursuing the mandated economic sanctions at the same time. It is what allows that stubborn 30–35% of Americans who are Donald Trump’s base to continue comfortably in denial about any official wrongdoing.

Meanwhile, Mueller’s group is appropriately and resolutely silent about its work, as is normal for prosecution investigations.

The investigation now includes a look at whether President Trump obstructed justice by firing FBI Director James B. Comey, as well as deep dives into financial and other dealings of former national security adviser Michael T. Flynn and former Trump campaign chairman Paul Manafort.

The Washington Post noted that it was unclear why Mueller chose to use a grand jury panel in the District, although there are practical reasons to do so. The special counsel’s office is located in Southwest D.C. — much closer to the federal courthouse in the city than an earlier grand jury called in Alexandria, Va., concerning matters involving General Flynn. Mueller also had previously worked in the U.S. attorney’s office in D.C., giving him some familiarity with the courthouse and the judges. The Post said experts they talked with said that Washington would be the appropriate place to convene a grand jury to examine actions taken by Trump since he became president and took up residence at the White House. Many of the potential crimes Mueller’s team is investigating would have occurred in the District, such as allegations that Trump aides or advisers made false statements in disclosure records or lied to federal agents. The Post has previously reported that Mueller is investigating whether the president tried to obstruct justice leading up to his firing of Comey.

The calling of the grand jury is important, but not unexpected step in this investigation.