While conservative talking heads are sticking to their condescending scripts, smugly declaring the impossibility of indicting a sitting president, Robert Mueller’s potential impact may be being overlooked in a major way. Don’t get me wrong—grand juries almost always return indictments, and I would love to a few hurled at the Trump family and all its enablers. But indictments aren’t the only thing a grand jury can produce – and in 45’s case, the other possibilities might be just as devastating.
Under 18 U.S. Code § 3333, a grand jury can, instead of indictment, submit a report to the court. And we’re not talking about a term paper here, folks. The grand jury can submit a report, “concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organize criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.”
What “disciplinary action”? You guessed it. Impeachment. That’s pretty much the only one that unquestionably works for a sitting president.
Sidebar: here’s where some wiseass points out that President Trump is not “an appointed public officer,” but is rather an elected one. To that, I say, “Please.” If the grand jury, after hearing evidence, recommends impeachment in an official report, the appointed v. elected distinction is not going to save Trump or anyone else.
The grand jury might very well sift through Mueller’s evidence and return an official recommendation that Trump be removed from office based on his being involved with “organized criminal activity.” And don’t get confused thinking that we need some Corleone-level crime syndicate; under the statute, “organized” essentially means any conspiracy or any fraudulent scheme involving two or more people. Don’t take my word for it – see for yourself under the DOJ guidelines.Those guidelines go on to clarify the weight and context of grand jury reports:
“The wording and the legislative history of 18 U.S.C. §§ 3332(a) and 3333(b)(1) indicate that a special grand jury should not investigate for the sole purpose of writing a report; the report must emanate from the criminal investigation.”
In other words, a grand jury report, while not serving the same function as an indictment, is still a document having significant legal weight. On a scale from 1 to 10, where 10 is an indictment and 1 is a night on the couch binging Netflix, a grand jury report is like an 8. The DOJ guidelines explain that the wrongdoing that is the subject of a grand jury report “must, to some degree, involve willful wrongdoing as distinguished from mere inaction or lack of diligence on the part of the public official.”
And there – in just four little letters – lies a face-saving lifeboat for the Republican party. In order for the grand jury to issue the report, the wrongdoing must be very serious. Functionally, a grand jury report would take the matter of starting impeachment proceedings completely out of the hands of Congress, just as an indictment essentially removes discretion from the hands of police. After all, what choice would Congress have but to draft Articles of Impeachment following an official grand jury report of near-criminal wrongdoing? A grand jury report could work as the ultimate scapegoat for House Republicans. I can see the TV appearances now: “it wasn’t our choice – we were merely following through on what the grand jury directed us to do.” What better way for the GOP to rid itself of its orange albatross without shouldering the full responsibility for firing the fatal shot?
This is a good time to point out a couple of things: 1) the grand jury report is not statutorily limited as to scope; and 2) the “high crimes and misdemeanors” necessary for impeachment are not limited to criminal offenses. That means the potential for the grand jury to start some trouble is nearly unlimited. Last week, my LawNewz.com colleague Rachel Stockman wrote about three reasons Trump should be very concerned that Mueller impaneled a grand jury. She’s right. Let’s just make a possible grand jury report as the prelude to impeachment reason number four.
This is an opinion piece. The views expressed in this article are those of just the author.
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