Two fascinating stories about Trump and Mueller today. First, Alan Dershowitz, professor emeritus of Law at Harvard, opines that Mueller’s investigation of Trump is less of a threat to Trump than the prosecutions being conducted in the Southern District Court of New York. As to the Mueller investigation, Dershowitz advises Trump to, “Don’t fire, don’t pardon, don’t tweet and don’t testify.” Advice which Trump has already repudiated in two respects. Dershowitz expresses the view that he believes Trump has constitutional defenses to the Mueller investigation. With regard to the Southern District’s investigation of violations by the Trump organization of campaign finance laws, Dershowitz opines that it appears Trump has a viable defense in that the fault appears to lie with the misconduct of the organization’s treasurer, not Trump. Dershowitz’s continued defense of Trump, and his offering advice, confounds me.
The second story is a bit more mystifying. In 1956, a Columbia University professor, Jesus Galindez, known for his political activism, went missing and is believed to have been kidnapped, taken to the Dominican Republic and murdered. An attorney and author, Stuart McKeever, is investigating the disappearance and has filed a motion to have grand jury testimony relating to the disappearance, which by law is kept secret, released. The motion is being reviewed by the U.S. Court of Appeals as to whether the judge has the right to release the testimony. The Justice Dept. is opposing the motion. The bearing on Mueller’s investigation? Since Mueller’s investigation involves grand jury testimony, a ruling denying the motion could prevent the release of Mueller’s report. While the House Judiciary Committee could subpoena the report as part of a potential impeachment investigation, the Republicans control the House and would not do so. So, if the Court of Appeals denies the motion, it may prevent the release of Mueller’s investigation report, unless the Democrats win the House in November. Note: The Ken Starr report on President Clinton, which also contained grand jury testimony, was released by the House Judiciary Committee, which was then controlled by the Republicans. First, the Republicans holding up the nomination of Merrick Garland, and now this.
That is a good question. I believe it is forever, unless a motion to unseal the testimony for good cause is granted. I will acknowledge, however, that I practiced more civil law than criminal, and could be mistaken. Perhaps one of Prof. Wolff's readers who specializes in criminal law can give a more knowledgeable answer.
Apparently my proposed answer is correct. This according to "Access to grand jury information and material," https://www.rcfp.org/secret-justice-grand-juries/access-grand-jury-information-and-material:
Grand jury proceedings have been held in secret since the 1600s. The secrecy rule, adopted from England, has become an integral — some say essential — part of the American criminal justice system. There is no First Amendment right of public access to grand jury proceedings. Participants, except witnesses, are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.
The U.S. Supreme Court in 1979 identified several reasons for maintaining such secrecy. First, without the assurance of confidentiality, many prospective witnesses would hesitate to come forward willingly, knowing that the people against whom they testify would find out about it; second, those who did come forward would be less likely to testify “fully and frankly” because they would be vulnerable to retribution and inducements; third, people about to be indicted might flee, or try to influence individual grand jurors to vote against indictment; and finally, it protects those who are accused, but not indicted.
. . .
Records of federal grand jury proceedings remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury,” according to Rule 6(e)(6) of the Federal Rules of Criminal Procedure. It is left to the court to determine when to release such records.
So, this raises another interesting question: Can Mueller himself bring a motion to unseal the testimony on the basis, for example, that it is in the interest of the American people? And what would the Justice Dept. do in response to such a motion? And if the issue went to the Supreme Court, how would Justice Roberts (now considered the swing vote - we know how Justice Gorsuch would rule) rule?
Law can be very complicate, and is often intertwined with political considerations. It has always been so. Witness, for example, the trial for treason of Aaron Burr (wonderfully recounted in Gore Vidal's "Burr." And the political machinations behind the supreme Court's decision in Marbury v. Madison.
Two fascinating stories about Trump and Mueller today. First, Alan Dershowitz, professor emeritus of Law at Harvard, opines that Mueller’s investigation of Trump is less of a threat to Trump than the prosecutions being conducted in the Southern District Court of New York. As to the Mueller investigation, Dershowitz advises Trump to, “Don’t fire, don’t pardon, don’t tweet and don’t testify.” Advice which Trump has already repudiated in two respects. Dershowitz expresses the view that he believes Trump has constitutional defenses to the Mueller investigation. With regard to the Southern District’s investigation of violations by the Trump organization of campaign finance laws, Dershowitz opines that it appears Trump has a viable defense in that the fault appears to lie with the misconduct of the organization’s treasurer, not Trump. Dershowitz’s continued defense of Trump, and his offering advice, confounds me.
ReplyDeleteThe second story is a bit more mystifying. In 1956, a Columbia University professor, Jesus Galindez, known for his political activism, went missing and is believed to have been kidnapped, taken to the Dominican Republic and murdered. An attorney and author, Stuart McKeever, is investigating the disappearance and has filed a motion to have grand jury testimony relating to the disappearance, which by law is kept secret, released. The motion is being reviewed by the U.S. Court of Appeals as to whether the judge has the right to release the testimony. The Justice Dept. is opposing the motion. The bearing on Mueller’s investigation? Since Mueller’s investigation involves grand jury testimony, a ruling denying the motion could prevent the release of Mueller’s report. While the House Judiciary Committee could subpoena the report as part of a potential impeachment investigation, the Republicans control the House and would not do so. So, if the Court of Appeals denies the motion, it may prevent the release of Mueller’s investigation report, unless the Democrats win the House in November. Note: The Ken Starr report on President Clinton, which also contained grand jury testimony, was released by the House Judiciary Committee, which was then controlled by the Republicans. First, the Republicans holding up the nomination of Merrick Garland, and now this.
MS
ReplyDeleteIs there--so to speak--a statute of limitations on how long grand jury testimony must be kept secret? Forever? Etc.
Anonymous,
ReplyDeleteThat is a good question. I believe it is forever, unless a motion to unseal the testimony for good cause is granted. I will acknowledge, however, that I practiced more civil law than criminal, and could be mistaken. Perhaps one of Prof. Wolff's readers who specializes in criminal law can give a more knowledgeable answer.
Apparently my proposed answer is correct. This according to "Access to grand jury information and material," https://www.rcfp.org/secret-justice-grand-juries/access-grand-jury-information-and-material:
ReplyDeleteGrand jury proceedings have been held in secret since the 1600s. The secrecy rule, adopted from England, has become an integral — some say essential — part of the American criminal justice system. There is no First Amendment right of public access to grand jury proceedings. Participants, except witnesses, are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.
The U.S. Supreme Court in 1979 identified several reasons for maintaining such secrecy. First, without the assurance of confidentiality, many prospective witnesses would hesitate to come forward willingly, knowing that the people against whom they testify would find out about it; second, those who did come forward would be less likely to testify “fully and frankly” because they would be vulnerable to retribution and inducements; third, people about to be indicted might flee, or try to influence individual grand jurors to vote against indictment; and finally, it protects those who are accused, but not indicted.
. . .
Records of federal grand jury proceedings remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury,” according to Rule 6(e)(6) of the Federal Rules of Criminal Procedure. It is left to the court to determine when to release such records.
So, this raises another interesting question: Can Mueller himself bring a motion to unseal the testimony on the basis, for example, that it is in the interest of the American people? And what would the Justice Dept. do in response to such a motion? And if the issue went to the Supreme Court, how would Justice Roberts (now considered the swing vote - we know how Justice Gorsuch would rule) rule?
Law can be very complicate, and is often intertwined with political considerations. It has always been so. Witness, for example, the trial for treason of Aaron Burr (wonderfully recounted in Gore Vidal's "Burr." And the political machinations behind the supreme Court's decision in Marbury v. Madison.