Forty years ago, a young prosecutor was poised to indict a handsome, black hero cop for corruption offenses. Venue for the prosecution laid in two adjoining counties – one likely more racially friendly to the target. The young prosecutor sought authorization from the chief prosecutor to seek indictment in the “more white” county. “No,” was the rapid fire response. “We don’t play the game that way!” (The chief prosecutor, by the way, has since been a revered federal judge for over 30 years).
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By the time Special Counsel Robert Mueller was appointed, there was already a grand jury in place, in Alexandria Virginia, looking into the actions of former National Security Advisor Michael Flynn. Yet, in July, Mueller empaneled a grand jury in the neighboring Washington, D.C. Why, some have asked, would he impanel a second grand jury across the Potomac? Some have suggested the investigation has intensified, others say DC is more Democratic leaning, even though Hillary won Virginia by five points.
And then there is this . . .
There has been a recent dustup (to put it mildly) between Professor Alan Dershowitz and Congresswoman Maxine Waters. Waters accused Dershowitz of racism for having suggested that Mueller impaneled the D.C. grand jury, among other reasons, because if he brought indictments against the Trump crowd, Mueller would be more likely to convict them in D.C. where the population is approximately 47% black, compared to 23% in Alexandria. And Dershowitz responded to her accusation.
For openers, Dershowitz is not a racist. Period! Rather, he’s a commentator, and one willing (and inclined) to stick his neck out over controversial issues. And, here, he is indeed speaking reality. All things considered, most any prosecutor, holding a glass of wine in his hand – in vino veritas – who might seek indictments arising out of the current investigation, would acknowledge that he would prefer a trial jury made up of black Democrats, rather than white and perhaps, Republicans. And where the indicting grand jury sits is where the trial will ultimately take place. So make no mistake: Dershowitz’s suggestion is that Mueller chose a D.C. grand jury not because he wants a “more friendly” D.C. grand jury with which to indict. He’d likely get a grand jury to indict wherever he presents his case – that’s the nature of a beast that only hears one side of the story. His claim, rather, is that Mueller wants to indict in D.C. – if indeed he seeks to indict at all – because he wants to try his cases before D.C. trial jurors.
And Dershowitz, for sure, knows that the racial composition of a jury may indeed be critical. After all, he was part of the O.J. Simpson criminal defense team. There, District Attorney Gil Garcetti, one would believe for political reasons and in the wake of the Rodney King affair, decided to charge Simpson in downtown Los Angeles, rather than in the neighboring, more affluent and – yes – whiter, Santa Monica. Apparently, Garcetti did what most prosecutors would not have done – he wanted to show he could convict Simpson anywhere, with any jury. He was, in a word, wrong.
Now, the fact is that, in 1986 – eight years before Simpson – the U.S. Supreme Court denounced the practice of prosecutors of using their peremptory challenges to bump prospective jurors based on racial grounds. You see, prosecutors would often try to challenge black jurors potentially seated for a prosecution of a black defendant, believing a black juror would favor a black defendant (or a Jewish juror a Jewish defendant; a Russian juror – you get it). Prosecutors are no longer able to take that route, although truth be told, those who believe in the “old school wisdom” may continue to, surreptitiously, do just that.
But that is an aside – that practice is not Simpson; it is not Mueller either.
So where does all of this bring us in terms of Mueller impaneling his second grand jury? Probably nowhere. It is unsurprising that Mueller would want to have two juries – the second being in D.C. It may very well be that Mueller recognized that he has a better, more tangible, venue in D.C. which is the home of the Trump Administration. Maybe a D.C. grand jury was just plain closer to his office and thus more convenient (yes, prosecutors care about that). And, by the way, there were two grand juries – one in Little Rock Arkansas, and one in D.C. – when Bill Clinton was being investigated. And that had nothing to do with race.
Meaning, Dershowitz’s conjecture may be simply conjecture. The suggestion that Mueller chose the second grand jury for racial composition reasons – which incidentally, and despite the Supreme Court case, would not be improper under existing case law – really has no foundation, particularly given Mueller’s unparalleled track record of prosecutorial integrity. It may simply be that D.C. is a proper venue just as it was in Watergate. That said, former NSA head Michael Flynn purportedly made false statements which likely were made or submitted in D.C.
At bottom, we really don’t know for sure what’s going on in Special Counsel Mueller’s mind as to the purpose of impaneling a second grand jury – this time in D.C. Still, even without knowing that, we do know that his is a well-known “righteous” head. That said, it is unquestionable that the Mueller investigation is basically a “political” investigation, in the sense that potential actions of governmental bodies are likely at issue, viz. an election campaign for the presidency. Isn’t it then obvious that D.C., more than any other jurisdiction in the United States, would be the most likely venue for the investigation?
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Postscript and disclosure: the writer was the young prosecutor described at the outset of this piece. Although I firmly believe that Mueller’s D.C. grand jury empanelment has nothing whatever to do with race considerations, guess what happened – albeit forty years ago – when the presentation was made to the grand jury in the venue more sympathetic to the target.