The FBI’s investigation into potential collusion between President Donald Trump’s campaign and Russia appeared to kick into higher gear with news this week that special counsel Robert Mueller had enlisted a federal grand jury in Washington as part of his efforts. The grand jury reportedly began working in recent weeks, issuing subpoenas for documents related to former national security adviser Michael Flynn’s business dealings.
The high-profile and intensely political nature of this investigation could put this grand jury under unusual pressure.
The panel is reportedly not dedicated to the Russia probe alone and could have other cases on its docket as it meets weekly ― or every other week ― until the completion of its term. Grand jury proceedings take place largely in secret, meaning the public will likely learn little about what the jurors are hearing.
But legal experts say the use of the grand jury suggests Mueller’s investigation is diving in deeper.
The duty of a grand jury is to decide if there is probable cause to pursue criminal charges. Grand juries have the power to issue subpoenas for documents and for witness testimony, which is delivered under oath without the presence of a defense attorney. Prosecutors can thus use grand juries to investigate more expansive matters. If or when the prosecutors think there’s cause for an indictment, they will ask the grand jury to vote.
A federal grand jury doesn’t need to reach a unanimous decision. Of the 16 to 23 Washington residents on the panel looking into possible collusion with Russia, only 12 need to vote yes to indict someone.
Grand juries differ from trial juries, or petit juries, in a few other substantive ways. Although courts do vet grand jurors, the individuals who sit on these panels don’t go through the extensive process of voir dire, in which lawyers and judges ask about their opinions and backgrounds to ensure they can serve impartially on specific cases.
“Grand juries line ’em up, file ’em in, sit ’em down and off you go, because grand juries often hear all manner of cases,” said Andrew Leipold, a professor at the University of Illinois College of Law and an expert in grand juries. “They might hear several cases in a day, a drug crime here, a gun possession there, a fraud case, and so it’s impossible really to sort of track the way you would with a trial jury what are your particular biases and what are your leanings about this and that.”
In Washington, which voted almost 91 percent for Hillary Clinton in November, the partisan makeup of the grand jury likely leans heavily against Trump.
The D.C. grand jury is one of at least two such federal panels examining the Trump team in the wake of the 2016 election. A grand jury in eastern Virginia, not far from Washington, has been looking into Flynn’s ties to foreign agents. That region of Virginia also leans heavily blue.
Additional grand jury subpoenas have reportedly been issued in connection with the June 2016 meeting between top Trump campaign officials ― including the president’s oldest son, Donald Trump Jr.; son-in-law Jared Kushner; and then-campaign manager Paul Manafort ― and a Russian lawyer with links to the Kremlin.
Although the identities of grand jurors are sealed to the public, there’s no reason to believe they aren’t a range of ordinary Americans.
“There will be some retirees, there will be some people with jobs, but like jury service everywhere, they get time off,” said Leipold.
But in a case of this magnitude, even ordinary people attract attention.
“The challenge in a high-profile political case is always confidentiality, keeping reporters from trying to figure out who the grand jurors are,” said Solomon L. Wisenberg, a Washington attorney who served as deputy independent counsel in the multi-branched investigation that ultimately looked into President Bill Clinton’s relations with Monica Lewinsky.
Reporters regularly staked out the federal courthouse on grand jury days in hopes of identifying jurors, Wisenberg recalled.
The federal rules that bind prosecutors and jurors to secrecy don’t apply to the witnesses who testify. There’s nothing keeping those individuals from telling the media or other potential targets of an investigation what they’ve been asked.
“If a witness comes out and says, ‘They’re asking me questions about Michael Flynn,’ that’s fine,” Leipold explained. “Or if he goes back to the president and says, ‘Here’s the six questions they asked me,’ there’s nothing improper about that.”
For this reason, Mueller’s team is likely proceeding cautiously as it decides which witnesses to call in what order and what to ask them, as well as which documents it seeks, Leipold said.
“A huge amount of the trouble that white collar and corporate and political criminals get into, it’s not so much what they do, but the way they react to the investigation.”
- Ken White, a Los Angeles defense attorney
The dynamic of witnesses who can talk, and prosecutors and jurors who can’t, can be twisted in another way.
“You can easily have a pro-defense witness who leaks something about the grand jury ― or doesn’t even leak ― and there’s a press story and the person under investigation says, ‘See, [the prosecution] is leaking,’” said Wisenberg.
Such a maneuver wouldn’t be without precedent.
“There were certainly strong, strong suspicions that President Clinton, when he was being investigated by a grand jury, would release information that was damaging to him and then claim it was leaked by the prosecutor’s office,” said Leipold.
President Trump has already made attempts to undermine Mueller’s work by claiming the special counsel’s team is filled with “Hillary Clinton supporters” who have embarked on a “witch hunt” to derail his presidency. He has also reportedly dispatched lawyers and aides to dig up any possible dirt that could be used as grounds to fire Mueller or oust members of his staff.
But short of mass firings, the investigation is going forward, legal experts say. And efforts to disrupt it could create additional problems in Trump’s circle.
“A huge amount of the trouble that white collar and corporate and political criminals get into, it’s not so much what they do, but the way they react to the investigation,” said Ken White, a defense attorney at Brown, White & Osborn in Los Angeles who writes on the law-oriented blog Popehat.
If witnesses before the grand juries end up lying under oath and obstructing justice, that could lead to serious consequences. They could also flip on their associates and reveal new and incriminating information. Either way, this is a particular dangerous phase for Trumpland, said White.
“Trump’s team is like a pack of blind drunks stumbling into a minefield here,” he said. “Unless they learn discipline very late in life very rapidly, I think they’re in real trouble.”
Matt Ferner contributed reporting.