The Special Counsel, Robert Mueller, who is heading the investigation into Russia’s interference in the 2016 US election, and possible collusion with the Trump campaign, has impanelled a Grand Jury in Washington. This is a sign that the enquiry is growing in intensity and has reached a phase where people will be compelled to testify1. This is not a step taken if little of consequence has been uncovered in the investigation so far.
The 5th Amendment to the US Constitution states that “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger;…”2.
A capital crime is one which carries a maximum possible punishment of the death penalty, and an ‘infamous crime’ is one which is determined by the maximum punishment that may be imposed. Based on several precedents, this is determined to be in excess of a year2.
In the US, a Grand Jury usually has between 12 and 23 members and can serve for a sustained period and is generally under the supervision of a federal attorney or similar office-holder. It is an investigatory body and can hear evidence without involvement of the suspect or persons of interest3. Grand Jury hearings are also secret. No judge is present and proceedings are led by a prosecutor. A Grand Jury can compel a witness to testify, but the target of the investigation has no right to present a formal defence, but can request to appear to ‘tell their side of the story’. If, based upon the evidence presented to it, the Grand Jury decides that there is probable cause to believe that a crime has been committed, it can issue an indictment for that crime3.
There has been concern in Congress that Trump may attempt to sack Mueller, which is within his power, as it was to sack the director of the FBI, James Comey. To prevent this and to protect Mueller’s independence, legislation has been introduced in the Senate to make it more difficult for Trump to sack Mueller. The legislation would allow a special counsel such as Mueller to challenge the sacking, and this challenge would be heard by a three-judge panel. If the panel found no good cause for the sacking, the special counsel would immediately be reinstated1.
It seems there is a race between Trump being indicted for a crime or being removed under the 25th Amendment because of his inability to discharge the office of president. Impeachment will probably run a distant third. It is difficult to estimate how long the Grand Jury will take in its deliberations given that much of its information has been received from intelligence agencies and is therefore highly classified. I suspect that Trump will be gone long before any indictments are issued4, because his association with the Republican Party has done enormous damage to that party, and with the mid-term elections coming around in about 15 months they will want Trump to have faded from memory long before they have to face a very bolshie electorate. Even most of the average online trumpettes have stopped defending Trump, probably because they are too embarrassed to admit they voted for him, given the debacle that is the Trump administration.