There are virtually no limits on the investigative powers of the grand jury. Under our law, a grand jury may conduct a probe simply to satisfy itself that no crimes have been committed. That is to say, there is no evidentiary threshold that must be crossed before a grand jury can begin investigating. Contrast that with, for example, a search warrant or an eavesdropping warrant; those investigative techniques may not be used unless a court has first been satisfied that there is probable cause to believe a crime has been committed.
.. Media coverage of an investigation tends to rely on the people most at liberty to discuss it. That means coverage skews in favor of lawyers for the subjects, who obviously have a motive to minimize the prosecution’s proof.
.. Prosecutors do not seek the assistance of the grand jury’s subpoena power, and do not contemplate presenting evidence to a grand jury, unless they see a realistic possibility of filing criminal charges.
.. Having spent many years in law enforcement, most of them as a prosecutor, I can attest that criminal investigators are presumptuous. Because of the premium our society places on the rule of law, prosecutors tend to think that nothing could be more important than their investigations and prosecutions. It was not until I worked on national-security investigations — many years into my career as a prosecutor — when it dawned on me that some things (e.g., protecting life-saving intelligence methods and sources) might be more vital to the public interest than my cases.
.. Prosecutors never want to give out information about their investigations. The less that is publicly known, the easier it is to interview witnesses, determine whether they are being truthful (rather than mimicking what they’ve heard in the press), and bring the investigation to an efficient conclusion. So the desire for secrecy is understandable, and in most instances it is desirable.
.. The Justice Department told the public that this was a counterintelligence investigation; thus, neither the American people nor the people implicated in the investigation were given notice that crimes were suspected, much less what particular crimes and who the suspects are.
That is intolerable now that we are formally in a criminal-investigation mode.
.. But in the higher interest of his capacity to function as president and our capacity to hold our political representatives accountable, President Trump and the American people should be told whether he is suspected of criminal wrongdoing and, if so, what wrongdoing.
Why Mueller’s use of a grand jury confirms what we already knew
The grand jury has the subpoena power that prosecutors need to compel reluctant witnesses to testify under oath. Grand jury subpoenas are also how prosecutors gather documents such as bank records, emails and corporate papers from entities or people who might not produce them voluntarily.
.. But someone who receives a subpoena to testify or produce documents is not bound by those secrecy rules. They are free to disclose — to the media or to anyone else — that they received a grand jury subpoena or testified in the grand jury. It may be that someone who just received a subpoena contacted a reporter and that has resulted in the “breaking news” stories.