The Fake Debate Over Mueller's Grand Jury

Contrary to what Sean Hannity and Alan Dershowitz may say, political scandals at the White House get heard and resolved in Washington. It was true in Andrew Johnson's time, and it was true in Richard Nixon's time, and in Bill Clinton's time, and today.

August 8, 2017

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

Cross-posted from Esquire.

In his zeal to defend the due process rights of President Trump and his tribunes, Harvard Law School Professor Alan Dershowitz seems to have forgotten the most basic rules governing federal grand juries. A day after word leaked that Robert Mueller is using a Washington, D.C.-based grand jury to help him investigate the Trump team's ties to Russia, Dershowitz was telling radio listeners that Mueller has "stacked the deck" against Trump by using a panel in a jurisdiction with a predominance of Democratic voters.

The direct quote from Dershowitz, offensive on so many different levels, is that Washington is "always solidly Democratic and has an ethnic and racial composition that might be very unfavorable to the Trump Administration." The implication, of course, is that neither a grand jury nor a trial jury in the nation's capital would be fair to any Trump-related defendant in a case brought by Mueller. Dershowitz further described the move as "tactical," as if Mueller had much choice in the matter.

Dershowitz's cynical theory would make perfect sense if the White House were in Tennessee, West Virginia, South Dakota, or any other jurisdiction where support for Donald Trump runs high. If that were true, Mueller's choice to rely on a D.C.-based grand jury would indeed be an example of the type of tactical forum-shopping Dershowitz alleges here. But of course the White House isn't located in the heart of Trump country. It is located in the city where the central offices of the federal government are located, where many of the witnesses Mueller wants to question live or work and, not for nothing, where the Russian Embassy is housed.

A grand jury sitting in Washington, D.C., is precisely where any reasonable federal prosecutor would take an investigation that has so many D.C. characters and so much D.C.-based evidence at its core. That is not just a good idea, or a practically logical or politically convenient one. It is a position endorsed by federal law and policy. Every federal prosecutor knows (and Dershowitz should know, too) what the U.S. Attorneys Manual states on the question: "a case should not be presented to a grand jury in a district unless venue for the offense lies in that district."

What that means is that if there were crimes committed by Trump officials (past or present) in the District, a grand jury sitting in the District should hear the evidence. Rather than cynically expanding the field, as Dershowitz suggests, what Mueller's use of a D.C.-based grand jury tells us is that his investigators so far have uncovered evidence that leads them to think they need to keep Washington open as a venue from which an indictment may come.

We already know that Mueller's team has been using a federal grand jury in Alexandria, Virginia. With D.C., that marks two such venues to subpoena documents in the federal investigation of Michael Flynn, the former member of Trump's national security team. Whether the special counsel will continue to use two grand juries, or now focus on one, is an open question. For the record, Alexandria also voted overwhelming for Hillary Clinton in the last election. Is it, too, now suspect as a grand jury venue under Dershowitz's suspect grand jury test?

The professor's lame attempt to cast Mueller's decision as a "tactical" one would be bad enough on its own for what it says about Dershowitz's perspective these days. His is a sorry late chapter to a remarkable life in the law. But over the weekend, Dershowitz's theory gave legal cover to people like Sean Hannity and Newt Gingrich to suggest to their minions that a D.C.-based grand jury is going to be inherently biased. The idea, consistent with the president's own comments, is to pre-taint Mueller's work (and by extension the grand jury's work) before the first indictment is handed up.

So where would Gingrich and Dershowitz like Mueller to take his investigation? Which grand jury would they like him to use? Washington, D.C., is too "urban" and Democratic, evidently. Meanwhile, Alexandria is another one of those suburban communities whose voters are turning away from Republican candidates. New York? One can only imagine what Gingrich and company would say about potential grand jurors there. New Jersey, where the president now lingers on a long vacation? Gov. Chris Christie would be the first to say there is little or no nexus between the Garden State and the Russia probe, wouldn't he?

The American people (and Congress) ultimately will judge President Trump. But all the president's men, and all the president's women, will be judged according to federal rules of practice and procedure. Trump brought this burgeoning election scandal with him to Washington, D.C., when he won the election and has done nothing since to alleviate its potential to morph into a series of criminal cases. Political scandals at the White House get heard and resolved in Washington. It was true in Andrew Johnson's time, and it was true in Richard Nixon's time, and in Bill Clinton's time, and today.

Instead of pretending that Mueller is doing something out of the ordinary here, instead of contending against all legal precedent that the District isn't the proper venue for an investigation into an administration's alleged wrongdoing, Dershowitz should use his extraordinary powers of spin to make another kind of argument. How about this one: What better way for the Trump administration to drain the Washington swamp then by allowing grand jurors in Washington, itself, to help determine whether and to what extent this White House is guilty of political corruption that undermined a presidential election?
 
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