Grand juries are a mysterious presence in
our polity. Most people have a sense of what a trial is, but the function of
the grand jury isn’t always appreciated.
A grand jury isn’t some sort of trial
before the trial, making an initial finding of guilt or innocence. Rather it “is
the function of the grand jury to determine whether the evidence presented in a
specific case is sufficient to establish probable cause to believe that a crime
was committed and that a specific individual committed the crime.” [1] “A finding of
probable cause is proper only when the evidence presented to the grand jury, without
any explanation being offered by the accused, persuades 12 or more grand jurors
that a federal crime has probably been committed by the person accused.” [2] “The grand jury
is not to weigh evidence to determine guilt or innocence.” [3]
For this reason, “exculpatory evidence
will rarely be presented to a grand jury. Because the grand jury’s function is
limited, the prosecutor has no duty to present evidence in his possession which
tends to negate guilt….Further, an accused has no right to be called as a
witness before the grand jury that is considering his or her indictment…, and
he or she has ‘no right of cross-examination, or of introducing evidence to
rebut the prosecutor’s presentation.’” [4]
The nation is now about to embark on
President Trump’s Senate impeachment trial; and Senate Republicans have been
saying that the House managers shouldn’t be allowed to allowed to call
witnesses, but “should proceed with the evidence they used to impeach Trump in
the House.” [5]
Moreover, they have been echoing “the White House line that the House
impeachment hearings violated Trump’s right to due process, despite the fact
that the president refused to allow his lawyers to participate in those
sessions.” [6]
And now Senate majority Mitch McConnell has “unveiled ground rules on Monday
for President Trump’s impeachment trial that would attempt to speed the
proceeding along and refuse to admit the evidence against the president
unearthed by the House without a separate vote.” [7]
It really is up to the Senate how it
conducts its impeachment trials, and the argument cannot be made that
impeachments should be handled exactly like indictments. But it is hard to make
the case that impeachments, being quasi-criminal in nature, should be handled
nothing like indictments.
The House of Representatives, having “the
sole Power of Impeachment,” [8] stands in the
place of a grand jury; the Senate, having “the sole Power to try all
Impeachments,” [9]
stands in the place of a trial court. Now it would be preposterous if a trial
court refused to let the prosecution call any witnesses because it should have
made its entire case in front of the grand jury; or limited the prosecution
witnesses to only those who testified in front of the grand jury. The purpose
of the impeachment hearings in the House wasn’t to obtain a conviction on the
impeachment, but to form the impeachment charges. But Senate Republicans are
claiming that the House should have gained testimony sufficient for a
conviction before the Senate trial took place; and that while President Trump
was obstructing its efforts.
If the Senate decides not to allow
witnesses, there is nothing to be done. It has that power. But it should be
known by all that the arguments for the Senate to act in that manner are
utterly bogus, and outright disingenuous.
