Grand Juries And How They (Are Supposed To) Operate

In case you were wondering about the rules for how grand juries indict:

Rule 6(f) of the Federal Rules of Criminal Procedure provides: "An indictment may be found only upon the concurrence of 12 or more jurors." And Rule 6(c) emphasizes the requirement that 12 jurors shall "find" each indictment by its provision that the foreman "shall keep a record of the number of jurors concurring in the finding of every indictment * * *." The requirement of the Criminal Rules that every indictment must be "found" by at least 12 grand jurors is a further specification of the Fifth Amendment's command that " [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."1

In the Comey case, the indictment used to charge Coney was not presented to the grand jury, but only to the foreman and one juror. That is, in simplest terms, where the case stands now. And this 1969 D.C. Circuit Court opinion is one cited to the parties by the trial judge.

In the D.C. case, the grand jury voted to “present [the defendants] for GRAND LARCENY.” An indictment was drawn up (which, as required by law, states the evidence upon which the charge is based) and signed by the grand jury foreperson. It was not voted on by the grand jury, however.

We conclude then that Rule 6 requires the grand jury as a body to pass on the actual terms of an indictment. We are impelled to this conclusion largely by the constitutional principles of Bain, Stirone and Russell, which emphasize the right of the accused to be tried on an indictment which has in each material particular been approved by a grand jury. Thus it follows that the bringing of an indictment under the procedure followed in this case was error. It remains to discuss the question of prejudice flowing from the procedural error committed.

Which led to this:

The same considerations of efficient administration of justice do not apply to indictments to be brought in the future. Henceforth the United States Attorney is on notice that the indictment procedure followed in this case is defective. Because the test for prejudice is cumbersome and difficult to apply and, more important, because the application of it involves the kind of guesswork which the Supreme Court has disapproved, a flat rule requiring dismissal of indictments not found by 12 grand jurors will be appropriate in the case of indictments returned after the date of this decision.

The indictment was not fatally flawed in that case, but it would be going forward, IOW. This opinion puts the prosecutors on notice. The question will be: how does that apply to the Comey case, 56 years later in another circuit? Were they on notice? 

Comey’s going to argue they damned well should have been. EDVA is not in the D.C. circuit, but what’s the state of the law since 1969? Has Gaithersburg v U.S. been adopted elsewhere? Ty Cobb and Lisa Rubin seem to think so.

Interesting times. And again, the buck stops with Trump, for being such an absolute dumbass, and surrounding himself with dumbasses.