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.