- - Wednesday, August 9, 2017

ANALYSIS/OPINION:

The grand jury is the prosecutor’s best friend: If he wants to get rid of a weak, unpopular or politically incorrect situation, he does a “slow roll” to the grand jury and then says, “Well, the grand jury refused to indict,” and shrugs his shoulders. The case — and whatever controversies are associated with it — simply goes away and the prosecutor washes his hands of it.

On the other hand, if he really wants to indict someone, he urges the grand jury to do it and most always it happens. This is why it’s often said (by both prosecutors and defense counsel) that a grand jury would “indict a ham sandwich” if the prosecutor wanted them to — this according to the infamous quote from New York Judge Sol Wachtler, who, ironically perhaps, was later himself indicted.

Conclusion: If, for whatever reason, Robert Mueller really wants indictments in the Russian interference investigations, he will get them. Likewise, if he doesn’t want them, they won’t happen. In short, and most of the time, the grand jury does exactly what the prosecutor wants it to do. Do politics and personal ambitions ever play a role in very high visibility criminal cases? What do you think?

As a footnote to this point, it’s probably not helpful — especially if you’re one of President Trump’s lawyers — that your client also fired the FBI director, even if the director should have been fired for the reasons spelled out in the deputy attorney general’s memo. Specifically, that FBI Director James Comey made prosecutorial decisions with regard to the Hillary Clinton investigations involving the mishandling of classified information — and as such violated basic Department of Justice protocols.

The next big deal: Recall that Mr. Comey wrote a bunch of memos that he later gave to a private party outside the Justice Department with the intention that the memos be leaked to The New York Times. It’s also reported that Mr. Comey related his conversations with the president to his senior people at the FBI — and that they also wrote memos. At some stage of this process, the memos themselves will become an evidentiary issue: Because Mr. Mueller, in order to establish that the president interfered with, or “obstructed” Mr. Comey’s investigation, must show that the memos themselves are credible evidence.

Now, how does Mr. Mueller do that?

Easy, and the very process for it explains the reasons for the memos in the first place. And, while this might not be a problem for Mr. Mueller and the grand jury — because many kinds of facts and testimony can be used to indict someone — it could be an issue in an actual trial.

You see, to actually use these memos at a trial as “evidence” to prove the facts stated in them, the memos would probably have to be admitted into evidence as an exception to the hearsay rule, called “past recollection recorded.”

Now we get to the “why” Mr. Comey and his crew really wrote lots of memos: Because they intended to get them into evidence to prove the facts they put in them, so the more memos the better. Not only that — the memo-writing process itself becomes a key part of how the case is put together.

In other words, how Mr. Comey describes his conversations with the president becomes critical, and if the memos are admitted into evidence the government can essentially prove its case with the evidence it created. The memos were written by government lawyers, some of them prosecutors like Mr. Comey, who know what the “elements of the offense” of “obstruction of justice” are. So we should assume that the memos will describe a “prima facie” case of it.

Finally, this is both a very high-visibility and a very political case. As a result, there will be thousands of hours of investigation and witness interviews. Typically, in such a complex case, a witness in the “small fish” category will be discovered to be in violation of some technical or minor offense — perhaps lying to an investigator, tax evasion or some other technical or regulatory infraction. This often creates the leverage the prosecutor needs to make a deal with the witness in exchange for incriminating testimony against the main targets of the investigation. These kinds of deals are made all the time and we can expect to find out about them as the case proceeds.

Considering all the above, can Mr. Trump, his family and associates get a fair shake in this town? Frankly, it doesn’t look like it — and this perception gets worse with every news cycle. This because the establishment media simply does not like the president, et al., and never will. Nor do several senior past and present high-level bureaucrats and also some very prominent members of Congress.

Why? It’s simple really: President Trump has knocked them off their power and influence perches, and they don’t like it.

• Daniel Gallington served in senior positions in the Department of Justice, the Office of the Secretary of Defense and as general counsel for the U.S. Senate Select Committee on Intelligence.

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