Lawfare Daily: What’s So Special About a Special Grand Jury?

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Do you know how hard it is? Do you know how hard it is to use your own rules? With K-E from AVS. All those things happen in the district of Columbia. So, in order to indict that case and have, you know,

have it be one that is going to sustain a motion to dismiss, you would have to do it in the district of Columbia. It's the Law Fair podcast. I'm Benjamin Wittis, editor in Chief of Law Fair,

here with Senior Editor and a Bower.

If you are a Jeanine Piro and if you are worried about your job and if this is about harassing the presidents' enemies, this is a way to say, "Look, boss, I'm doing something." Today we're talking grand jury's, some of them are ordinary, some of them are special.

We're talking about the special kind. There's one in the district of Columbia right now.

“And a Bower, why are we talking about special grandjuries?”

We're talking about special grandjuries because they're so special then. No, we're talking once again about special grandjuries because there's news, according to the Washington Post, that Jeanine Piro has impannled a special grandjury in Washington, DC. And what makes a grandjury a special grandjury

rather than a regular grandjury? Do they sit around with T.R.s because they're special? No, they don't sit around with T.R.s because they're special. Special grandjuries are a product of a 1970 law called the Organized Crime Control Act. This was a law that was enacted around the time

that you can, if you think back, it's the time right after the 1968 presidential campaign Nixon ran on this war on crime, platform. There's a lot of concern about organized crime at the time. And so this bill is enacted, Nixon signs it into law in 1970, and it includes things like the modern Rico statute that was geared towards

prosecuting organized crime, mob bosses, but it also includes a section devoted to special grandjuries. And that's now codified in 18 USC 33312333. And those provisions, in many ways, don't really make special grandjuries that distinct.

In many ways they're very similar to an ordinary grandjury. It's made up of 18 to 23 people who are selected from the district to serve for a period of time on the grandjury. One of their main responsibilities is to decide whether or not to indict cases. So it's in many ways very similar to ordinary grandjuries service,

“but there's two key distinctions here that actually make a special grandjury special.”

One is tenure, a regular grandjury usually is in paneled for a maximum of 18 months with the ability of the judge to then extend that service by six months if the public interest requires it. Meanwhile, a special grandjury, again, usually in paneled for 18 months, but that can be extended up to 36 months. So they can continue to serve for a much longer

cases that are going to take a much longer period of time where it's convenient for prosecutors

to have the same grandjurers investigate this one case, for example, or a series of maybe related cases about a very complex issue. So that is one of the main differences. I'm still waiting for the tiaras. Yeah, you are. Well, here's the tiara part that I would say really makes a special grandjury special. And that's the fact that special grandjuries under the statute have the ability to submit a report at the end of their service, and depending on whether the

court allows it, that report can be made public. And that's really special, Ben, if you know anything

about how grandjuries typically work and the rules of grandjury secrecy under federal law,

“typically the work of a grandjury is kind of remain secret. And so it's unique in and of itself”

that we have the statutory mechanism for a grandjury to issue a public report, which is kind of consistent in some ways with the history of of grandjuries where at common law they did often issue reports or had the power to do so or presentments or presentments, but that is now pretty much died out in the federal system. And so the fact that there is this limited statutory mechanism for issuing report is special and not only is it that you have the power to issue the

report, but the report doesn't have to be about just criminal conduct that the grandjury found. It also can be about non-criminal conduct. Although there's a lot of limitations on exactly

“what the grandjury can write under the statute and whether or not it ends up becoming public.”

Yes, so we're going to talk about that in a moment, but why would Janine Piro want a special grandjury in Washington? I mean, there isn't a lot of discussion of there isn't a lot of reporting about what the special grandjury is looking at, but we all seem to assume that it is somehow related to the so-called grand conspiracy. What do we know and what do we, what is it reasonable to assume even if we don't know? Yeah, so I should say the outset that we really don't know exactly

why it is that Janine Piro wants to in-panel this special grandjury and use that tool and there's not a lot of reporting, as you've mentioned, on the exact reason why or the subject matter that this grandjury will look at. But what we do know is that there is a grandjury that has been in paneled in Florida, in this other district of Florida, that has apparently been looking at this so-called grand conspiracy case. My colleague, Molly Roberts, has done a lot of work on really,

you know, describing the contours of what this so-called conspiracy is, but it's basically the kind of

big prosecution that Trump supporters have always kind of imagined would be like the one

that's brought against all of Trump's perceived enemies that spans kind of from the Russian investigation up to the special counsel prosecutions of Trump that it would insnare, you know, Akomi, Brennan, Jack Smith, all of these perceived adversaries in this purported plot that they had to get revenge against Trump and to violate his constitutional rights. That's the theory of the grandcinspiracy case. We do know that a grandjury's in-paneled in Florida that appears to be looking at

that so-called grand conspiracy, but we also know that it doesn't seem like Florida is the place where jurisdiction and venue would be sufficient to actually indict a case there. Because none of the relevant conduct took place in Florida, assuming that there is a grand conspiracy, which is itself a ridiculous assumption, the only part of that conspiracy that took place in Florida was that Jack Smith indicted Trump there. And that the Mara Logo search occurred there,

“but other than that, you know, all of the key events through Russian investigation,”

testimony before Congress, all of those things that people imagine were part of this so-called

and have, you know, have it be one that is going to sustain a motion to dismiss,

you would have to do it in the District of Columbia, or presumably you would. So the ideas that maybe we can speculate that this special grand jury might be part of that grand conspiracy investigation, and now it's being led by Piero's office instead of the office of the Southern in the Southern District of Florida, Jason Keonies. But we don't know Ben, this could very well be a special grand jury that's dedicated just to some of the most high profile controversial

cases that Piero wants to go after. Keep in mind, this news is coming at a time when

she has been the subject of criticism from Trump for her failures to prosecute cases that he

“think should be prosecuted, including most recently the reflecting pool case. And so I think that,”

you know, she seems to be under additional pressure to bring some of these cases that the president has in his prosecutorial agenda. And we also know from the reporting that one of her top deputies, Steve Vandervelden, is going to be the person overseeing this special grand jury. And I think that that is important because Vandervelden, who some people might remember as a former dance studio photographer, but also was a deputy of Jeanine Piero back in her days as the

Westchester DA. He is someone with a history in his time as a federal prosecutor working with Piero, who has handled some of these controversial cases. For example, he handled the failed grand jury indictment of six members of Congress who made a video in which they encourage members of the military to refuse unlawful orders. So this is a guy who seems to not have qualms about taking some

“of these more controversial cases. And I think that that's why it's important to point out that”

he's the one who will be apparently leading this special grand jury. And are there any dancers on the special grand jury? We don't know. We don't know who is on this special grand jury, but I'm I will say, Steve Vandervelden, if you look at his photography, it's actually pretty good. So if there are any dancers who are taking advantage of the synergies here. Well, I think it's appropriate that a grand conspiracy should have a special grand jury to investigate it, not just a regular grand jury.

So I'm curious, you know, this is not the first time we have run into special grandjuries

in our various four days in the Trump administration and its larger cinematic universe. One of your early pieces for law fair was a deep dive on the Georgia special grand jury law, which allowed Fanny Willis, the Fulton County DA, to do a special grand jury investigation of the post election events in 2020. The term special grand jury here can be a little bit misleading because the federal statute and the Georgia statute are nothing like. And so for people who remember

“the special grand jury investigation in Fulton County, how should we expect this one to be different?”

Well, yeah, so actually there are some similarities between the special grand jury in Georgia and the special grand jury under federal law, but it's very important to keep in mind that these are distinct systems with distinct statutes under Georgia law and many state laws. These actually follow these special grand jury statutes because Georgia's not the only state that has a special grand jury statute. In many instances, these states enacted special grand jury

statutes after the federal special grand jury statute was enacted. So there's some often commonalities between the two, one being that as in the federal system in Georgia special grand jury sits for a long, can sit for a longer period of term is used for complex investigations. Also has a report writing function. We actually end up seeing the grand jury report in Georgia, which recommended

distinctions is that a special grand jury cannot indict. Whereas in the federal system, you can use

“a special grand jury both for its report writing function and its indictment function. And in fact,”

under the federal system, your DOJ policy is that you're not supposed to use a special grand jury just to write, just to have it write a report. You know, you're supposed to use it for a legitimate investigative ends. But in the Georgia system, as I mentioned, this was kind of a big subject at the time, was like, why is it that this, this tool doesn't have the power to indict and it had to do with

a unique wrinkle of Georgia law and Georgia case law. So ultimately, all that that grand jury could do

was issue this report with recommendations for indictment and then ultimately, Fannie Willis had to bring that case against Trump and eventually 18 others to a different grand jury who then indicted the

“case. And as we all know that that case, ultimately was dismissed in the wake of a scandal”

regarding Fannie Willis's relationship with special prosecutor Nathan Wade. With hundreds of models, human rights agents, high-resistant activities and integrated security,

they don't have to protect themselves.

They don't have to protect themselves. How would KI and her family revolutionize? With KI from AVS? We're still in the middle of the day. A grand conspiracy that it may be the subject of the special grand jury,

we have a president who is very keen to have his political enemies indicted.

And we have a U.S. attorney and her deputy,

who have not shied away from cases in which there are reasons for reasonable people to doubt the integrity of the cases. Though, to be fair to Genie and Piero, none of the most politically controversial, go after Trump's political enemies are here in the district. They're mostly in Eastern District of Virginia, North Carolina.

And we don't know of any obvious pattern of misconduct that would normally give rise to a special grand jury. There's no, like, you know, organized crime ring that, you know, we know the feds to be investigating in Washington, D.C., the blank family that, you know, we know there's a task force for in the U.S.

attorney's office. So, I mean, is it inappropriate of me to say,

“there's really no legitimate explanation for this turn of events?”

The only question here in my mind is is this, you know, some manifestation of a grand conspiracy investigation, or alternatively, is this the go after the president's foes and help me keep my job Genie and Piero grand jury. But there's no world, or is there in which there is some

wholly legitimate reason for D.C. to have a special grand jury right now, going after, you know, this blank pattern of conduct. If there is, I am not aware of it. So, I will say the statute under federal law

So, one is that in judicial districts that have more than four million people, there's actually a standing special grand jury. So, think like cities like New York, there will be a standing special grand jury. So, in those districts, it's not that uncommon because federal law requires that there be a special grand jury and, you know, usually they'll look at more complex cases.

That kind of thing related subject matter, but they're always operating.

But D.C. is not one of those districts. It is not a district that has more than four million people. So, special grandjuries are much more rare. I am not aware of the last time that a special grand jury was used in D.C. Although it may, there may have been one operative during the Trump investigations,

or some of the January six investigations.

“And I think a lot of the old special councils and independent councils would have special”

grandjuries associated with them. I'm pretty sure, for example, the Ken Star investigation had a special grand jury attached to it. Yeah, and you can find examples in other districts of times when there have been complex investigations and they've used a special grand jury. So, it's not that it's unheard of for a special grand jury to be operative in one of these

districts that has less than four million people.

But it is unusual. And here we know that that is the mechanism of the statute under which Piro has gone again, because D.C. does not have more than four million. And under that arm of the statute, all that's required is for the prosecutor essentially to certify that they need a special grand jury.

“So, at a base level, there's not much that you have to show.”

You just have to make this certification, and then a special grand jury can be impandled. So, we just don't have the information about the why of it all. But I will say that not only is there the benefit of the longer term of service and the longer tenure, but there's been some speculation that perhaps the report writing function is something that's appealing to Piro.

Again, though, as we can maybe discuss, it's actually a quite limited reporting function. Yeah. So, let's talk about that. Let's say you're Janine Piro, and you're rubbing your hands with Glee, because now you get a mechanism by which you can write the grand conspiracy report. And even if you can't do the indictments, because, you know,

probable cause and all that, you can fold everything you can't do into an indictment into a report, and this is a mechanism to do that.

“What's wrong with that idea if that's what's animating Janine Piro?”

Yeah. So, the statute sets out two categories of information that a grand jury can submit a report about. And neither of them present a very obvious mechanism for Piro to use this report writing function as a way to kind of publicly criticize Trump's adversaries and stuff all this information and that she maybe couldn't get into an indictment. So, for example, one of the categories allows the grand jury to write a report about general conditions of criminal activity in the

district. Now, the statute then specifies that if the grand jury is writing about these general crime conditions in the district, that aspect of the report cannot mention an

individual named person. So, they basically can kind of describe generally, you know, criminal

activity in the district, but they can actually say, and this guy, Jack Smith, was a part of that. You're not allowed to name a person. So, that's-- But could you do, as part of general conditions, criminal activity, there was a grant conspiracy against Donald Trump, and it began in, you know, the dawn of time, and it has continued through the present, and it has involved people from the intelligence community and certain

directors of the FBI and certain directors of the CIA, right? Like, "How much could you couch a general narrative account of your theory of the case under the rubric of, you know,

and that decision deciding how much would be allowed would be up to the judge who looks at this

“report and examines the grand jury minutes, and as a part of deciding whether to release it to the”

public, the judge has to decide on a preponderance of the evidence that the what's in the report is supported by the facts. So, unless you actually have facts that support on a preponderance of the

evidence standard, the idea that there is a grand conspiracy in the first place, then those things

that you've just mentioned aren't going to pass muster. The second point is that even to get to a point then where the judge is reviewing this to decide whether the facts actually support what's in the report, a majority of the grand jurors have to agree to actually submit this report. Like, it's not like a special counsel report where the special counsel and his team are writing it.

“It is an actual grand jury, it's a product of the grand jury, and obviously the prosecution”

as the legal advisor of the grand jury likely will have some role in helping draft a report,

but it's ultimately up to a majority of the grand jury to decide whether to submit this report,

whether they agree with its conclusions and facts. And this is a DC grand jury. We've already seen many times over in the past two years that DC grandjuries are not exactly pushovers when it comes to doing what the government wants it to do. There's many high-profile examples, including the example I gave earlier of the failed indictment of members of Congress who took part in a video campaign to encourage members of the military to refuse illegal orders, a grand jury refused to indict.

“There's also the Sandwich guy. Sandwich guy. Yeah, there's all kinds of examples of this in DC”

that it suggests to me that a DC grand jury isn't exactly going to be an easy mark in terms of crafting this generalized narrative, even if it doesn't name individual persons in which they want to issue a report suggesting that there was this grand conspiracy of people who were doing

organized criminal activity to get Trump. I just don't see that happening. The second thing that a

grand jury can do in terms of issuing this report under the statute is also not to me an obvious way in which Piro would be able to issue a report criticizing some of Trump's enemies. So under that prong of the statute, you can issue a report about non-criminal activity and you can name individual specific people. But there's a whole lot of limitations. So one, for example, is that the non-criminal misconduct or malfeasance has to be in some way connected to a broader pattern

of organized criminal activity. And that's so that immediately tells you like, for example, if the prosecution wanted the grand jurors to issue a report about uh, drone powers alleged mishandling of the renovation project at the federal reserve, then it couldn't just be, oh, he didn't handle this well. It would have to be, drone power, you know, mishandled this renovation project in the context of some larger organized crime. Does that make sense? So that's the first

limitation. Second limitation is that the misconduct, the non-criminal misconduct that's alleged in the report about a named person has to be about someone who is an appointed public officer or employee. Now, that means that immediately the people who are excluded are elected public officials, so people like Latisha James, Alvin Bragg, any members of Democratic members of Congress, who might be some of Trump's adversaries, anyone who is kind of a target who's an elected

public official, wouldn't be allowed to be the subject of this element of the report. On the other hand, all the deep state people would be well, not so fast. There's a part of the report, an additional part of the statute that says not only does this

about a public appointed official or employee, but it has to be, you have to be making these claims about this person as a basis for their removal or disciplinary action. And to me, that suggests that the statute actually is envisioning this to be applying to current officers or employees of the United States, not former officer or employees of the United States, because what would be the

“point of suggesting removal from office or disciplinary action if they're no longer in office?”

So you're basically now it's only useful for Jerome Powell.

Yeah, basically it only be, because that excludes, if it is, if I'm correct, and it is only about current officers or employees, then that would exclude your Jack Smiths, that would exclude your Anthony Fauci, that would exclude all these former officials who are known to be the perceived adversaries and targets of the president. So really, you've only got your Jerome Powell basically. Yeah, and individual people who haven't been fired yet, I suppose.

All right, let me give you one hypothetical scenario for the use of the special grandeur,

“that I think is bullet proof against everything you've just described, which is harassment.”

It doesn't require a report. You don't need to indict people, but you have a three-year sitting thing that can issue subpoenas, that can haul people in for interrogation, that can, once they've been hauled in, prosecutors can ask them questions, the same question, 14 times in different ways, and then prosecute them for any minor discrepancy in the way they answer. Like having a grand jury is a very good way to have a sort of targeted

campaign of harassing your opponents. And so what about that? It's not, it's really about creating a forum in which to do mischief. Yeah, that's absolutely right, although I would say, that's no different from what a regular grand jury can do. So insofar as people are focused on why a special grand jury, it's not clear to me why you would use a special grand jury if your goal is just to harass, because you can harass targets or subjects if you're investigation using

a regular grand jury too. Okay, but this brings me back to your point about, is this a Jeanine Piero, let me keep my job, which is you announce a special grand jury, and that is a signal to the president. We now have a three year forum for, you know, pin-pricking and needleing and harassing your opponents, isn't that great? Yeah, it's certainly a way to, perhaps if you are Jeanine Piero and if you are worried about your job and if this is about harassing the

president's enemies, this is a way to say, look, boss, I'm doing something. I certainly could see

“that being the case. However, I think that Jeanine Piero would be wise to remember that”

grandjuries don't always do what you want them to do, and especially when you give a grand jury

the opportunity to tell a story, if she does get to the end of this process and they do want to issue a report. A grand jury is not always going to be reliable for telling the story that you want it to tell. All right, so I want to talk about that, and I think you have a specific grand jury in mind when you say that, but before we get to it, I want to pause over the question of who's going to be supervising this grand jury, because on the one hand, the grand jury is an instrument

of the prosecution. On the other hand, the grand jury is actually an instrumentality of the court, and the supervisor of the grand jury is the chief judge of the court, which in this case is not the administration's favorite person to litigate in front of. So remind us who the chief judge

or any grand jury for that matter? Yeah, so the chief judge in the district of Columbia is Judge

“James Bozberg, and Judge Bozberg might be familiar to folks as the judge who has been in on”

going, I mean, I would call it battle almost with the administration over the administration's conduct related to the alien enemies act case. That's the JGG case. He initiated proceedings to try to hold government lawyers in contempt or government officials rather. It has been through several cycles of appeal now, but as a result of that ordeal, Judge Bozberg has been the subject of many attacks from the administration. He also earlier this year, Kwash Sapinas, that were issued in the

investigation of the Federal Reserve Board and Jerome Powell related to that renovation project.

He found in doing so that the subpoenas were not issued for a legitimate investigative end that the administration produced zero evidence essentially in trying to issue those subpoenas. So James Bozberg has certainly no pushover himself either, and he is the person who is typically

“in charge of overseeing grand jury matters in the district of Columbia. And that's important”

because as we've discussed, Ben, the judge here holds a very important role. So what happens when the grand jury writes a report that it wants to issue at the end of its service is that it submits

this report to the judge who's overseeing the matter presumably, that would be Judge Bozberg.

And the judge is then tasked with reviewing the report to make sure that it meets the statutory requirements for publication. So that means he has to look and say, oh, so this report, it is about the non-criminal misconduct of a public official as a basis for their removal or it is about generalized crime conditions in the district and it doesn't name someone specific. Those two things we just discussed. And as I mentioned in doing so, he has to not only look at

whether that report meets those conditions but also find that the facts by looking at the grand jury minutes that were revealed in the course of the investigation support the things that are in the report on a preponderance of the evidence standard. So it's Judge Bozberg who's going to be looking at this, I certainly do not think that he is going to be someone who is going to rubber stamp whatever it is that a grand jury wants to do, particularly if it's things that aren't supported

by the evidence that they've heard. I will also just add that another role that the Chief Judge plays with respect to all grandjuries, not just special ones, is that you bring disputes about motions to quash about what gets presented to the grand jury who has to testify to the Chief Judge. And he has shown in the Jerome Powell case that he's perfectly willing to quash subpoenas to

“grandjuries and he is a skeptical eye. And so I think you have to imagine not only that you've”

got 23 Washingtonians who are not likely to be the most receptive to grand conspiratorial or related or other Trump conspiracy theories but you also have a district judge supervising them who is the opposite of island canon in that regard. And exactly the way people were worried about whether she would end up supervising the grand jury in Fort Pierce. You know, you have the opposite effect here. Yeah. And I think it's also worth mentioning beyond the role of the judge.

The statute itself also envisions and creates some really robust due process protections for the people who might be named as individuals in a report. And I'm particularly thinking about a report that is issued under the the section of the statute saying you can issue, you can name people accusing them of non-criminal misconduct. Under that section of the statute there's a whole bunch of different rules around like even if the judge does accept the report for a publication

the report has to be served on the people who might be named in it. They then get an opportunity

an appendix to the report. There's also then a period of time in which everything remains sealed so

“that the person who is named can seek review or appeals. So there's all kinds of different”

due process protections including a provision as well that allows the accused to the opportunity to have their own witnesses or themselves testify before the grand jury. So there's all kinds of things that are baked into the statute that just don't make it an obvious way for Jeanine Piero to weaponize it. Well so that brings us to the situations in which a special grand jury's have backfired on the prosecutors who convened them. I know of only one modern grand jury report

under the special grand jury law. Lots of special counsel reports, lots of independent council reports, inspector generals report, but grand jury reports as such are super rare and if you're

“my age they're sort of synonymous with the words rocky flats. So what is the what was the rocky”

flats grand jury and should it be a cautionary tale to Jeanine Piero here? Yeah so this was the last known occasion that I'm aware of that a special grand jury tried to issue a report under the special grand jury statute and this grand jury in Colorado was in panel to look at environmental crimes that allegedly occurred at the rocky flats nuclear plant the federal nuclear plant. It spent years

investigating this ultimately the investigation ended with the prosecution reaching a corporate plea

agreement which really made the grand jury's mad. They were not happy with the way that this case ended because they thought that a more people should have been indicted. They had this whole slate of charges of people that they wanted to indict. So what they did is they actually got out the prosecutors manual basically and tried to draft their own indictments. That's something that we used to call a "presentment" where the grand jury could write up their own thing on their

own initiative. But "presentments" are not listed as a formal charging document under the federal rules now. So they are mentioned explicitly in the fifth amendment to the constitution. Right but the "presentment" power has now despite that died away and so they tried to issue these indictments on their own initiative. That didn't fly with the judge. But they also tried to issue a report in which they criticized the justice department and the justice department's handling of the case.

The judge ultimately did not accept this report for publication under the special grand jury statute

finding that it didn't meet the statutory requirements that we've discussed. But the judge did eventually issue a very heavily redacted version of the report. But all of this led to like several scandals, multiple rounds of litigation been in which the grand jurors hired their own lawyer. They tried to get grand jury secrecy rules lifted so that they can reveal what they thought was the truth about what happened in the way that the Justice Department has handled it. There were

congressional investigations. One point the judge ordered an investigation into whether the

grand jurors were violating grand jury secrecy rules. Ultimately no one was ever prosecuted. But

the grand jury for person wrote a book called "The Ambushed Grand jury," which I read parts of now, that is about basically criticizing the Justice Department and accusing it of a cover up.

“So I think what the history of the Rocky Flats grand jury shows is that you can't always count”

on a grand jury to do what you wanted to do. So in that way there are occasions when a special grand jury can spectacularly backfire on the prosecution. We're going to leave it there and a bower special grand jury correspondent for Laugh Fair. Thank you for joining us today. I suspect we will have further discussions about this special very special grand jury in the months to come and I for one want them all to have T.R.S. The Laugh Fair podcast is produced by the Laugh Fair

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