| Last week, under questioning from Federal District Judge Michael Nachmanoff, prosecutor Lyndsey Halligan admitted that the indictment of James Comey on which her office is proceeding was never seen by the grand jury, only its foreperson. Halligan is trying her first criminal case, having been appointed to her current position because Donald Trump had difficulty finding experienced attorneys in the Justice Department willing to pursue the Comey prosecution, given its weakness and Trump’s vindictive motive for demanding that it be brought. Thus, it was predictable that Halligan would make rookie mistakes. Whether this particular error will doom the prosecution of Comey remains to be seen. |
| If the indictment was insufficient, that could be dispositive, because the statute of limitations for the crimes of which Comey stands accused has run. That might not prove fatal, however, because the full grand jury did see an earlier version of the indictment, which contained a charge it rejected. It might be possible for Halligan to present that earlier version and avoid a statute of limitations violation. |
| To be sure, there are two other reasons the Comey prosecution might fall apart. Most fundamentally, Comey argues forcefully that the case against him is malicious—a result of Trump’s longstanding animosity and retaliation for Comey’s criticisms of Trump. Comey also contends that Halligan was not properly appointed as interim U.S. Attorney. If he succeeds in that argument, then neither the original nor the substitute (foreperson-only) indictment would be valid, and it would be too late to go back for a new one. |
| That would be a just result, but it would also be fortuitous, depending, as it does, on the fact that Halligan took the Comey case to the grand jury so close to the expiration of the statute of limitations period. In the normal course, a flawed grand jury indictment can be cured by securing a new one. |
| While that might be sensible where the flaw involves a mere technicality, the law allows a do-over even when the issue is substantive. If a grand jury fails to indict because its members conclude that there is not probable cause to believe that the accused committed the crime in question, a prosecutor can go back to the grand jury or impanel a new one and try again. And again. And again, ad infinitum. |
| Wait. Doesn’t that violate the Fifth Amendment’s Double Jeopardy Clause? The short answer is no. In the 1920 case of United States v. Thompson, the Supreme Court stated that a grand jury’s failure to indict does not preclude the presentation of the same charges to a grand jury a second time. Why not? Thompson and the other cases offer two overlapping rationales. |
| First, the Supreme Court has held that a defendant is not in “jeopardy” until a trial commences. As the Court put it in the 1975 case of Serfass v. United States, citing a long line of prior cases, jeopardy “attaches” when a jury is impaneled (or, in a bench trial, when the first witness is sworn). Second, those same cases hold that a grand jury is an investigatory body, not an adjudicatory one. And because an indictment is merely an accusation, it does not place the accused in jeopardy. |
| Yet it makes little sense to give prosecutors carte blanche to repeatedly bring the same charges to a grand jury, even after they are rejected. |
| The Purpose of the Grand Jury Provision of the Bill of Rights |
| A familiar adage holds that a competent prosecutor can lead a grand jury to indict a ham sandwich. The adage encapsulates a number of key advantages that prosecutors have in grand jury proceedings: Unlike in a trial, where the prosecution must prove guilt beyond a reasonable doubt, a grand jury indictment is based on mere probable cause; by contrast with the requirement of a unanimous verdict at trial, an indictment requires only a simple majority of the grand jurors; and defendants at trial have a right to cross-examine witnesses and present their own evidence at trial but lack such rights before the grand jury. Thus, the grand jury dice are heavily loaded in favor of indictment. |
| Nonetheless, in recent months, grand juries in Washington, D.C. have refused to indict some people charged with crimes arising out of President Trump’s heavy-handed deployment of National Guard troops and other federal officers. Such refusals appear to be based on some combination of the weakness of the underlying cases and grand jurors’ disapproval of the deployments. Regardless of the exact reasons, they show that grand juries can and sometimes do serve as a form of protection against overzealous prosecution. |
| But the grand jury’s protection against unjust prosecutions can only function if its decisions have some weight. Current constitutional jurisprudence—under which prosecutors can try, try, and try again until they find a grand jury in which 12 out of 23 members are willing to indict—makes a mockery of the grand jury right enshrined in the Fifth Amendment in text directly preceding the Double Jeopardy Clause. |
| To be sure, the Justice Department Manual restricts the ability of a prosecutor to seek an indictment after a grand jury has rejected the charges. But all that the Manual requires is that the decision to try again must be approved by high-ranking Justice Department officials. In the second Trump administration, that will typically mean a decision by a political appointee acting out of loyalty to Trump, not based on a sober assessment of the facts and the law. Moreover, the Manual sets out internal policy guidelines. They lack the force of law. |
| Accordingly, to make the Grand Jury Clause of the Fifth Amendment effective in our current circumstances would require that the Supreme Court revisit the precedents deeming its neighbor—the Double Jeopardy Clause of the Fifth Amendment—completely irrelevant to grand jury proceedings. |
| In so doing, the Court need not and should not say that the Double Jeopardy Clause applies in exactly the same way to the grand jury as it does at trial or even that it literally applies at all. If the prosecution discovers new evidence of a defendant’s guilt after an acquittal at trial, that’s simply too bad: the Double Jeopardy Clause forbids a new trial. However, in most jurisdictions, newly discovered evidence can be the basis for a second presentation to a grand jury after a prior grand jury rejection of the charges. That makes sense because the burden on the accused of a second grand jury proceeding is much less substantial than a second trial. While repeated grand jury proceedings simply in the hope of a different outcome are excessive and inconsistent with a conception of the Grand Jury Clause as a protection for the accused, newly discovered evidence can tip the balance in favor of law enforcement. |
| One difficulty with my proposal is that it is arguably unfaithful to the original understanding. U.S. courts in the early Republic frequently cited English authorities (like Blackstone and Hale) for the view that a grand jury finding of “ignoramus” (or in current usage, “no bill”) did not preclude a subsequent effort before another grand jury. Some even allowed subsequent presentations to the same grand jury without any new evidence. |
| However, while that might have been the original understanding of the Fifth Amendment’s Grand Jury Clause, it does not follow that it was the Clause’s original meaning. Some judges have taken the view that a second grand jury may consider a proposed charge only if there is substantial newly discovered evidence. That approach makes sense of the fact that the Grand Jury Clause is found in the Bill of Rights because it protects an individual right against government overreach. The dominant view, by contrast, makes the Grand Jury Clause less of a valuable right and more of a technical nuisance. |
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