Dershowitz: Mueller chose D.C. for his grand jury knowing jurors are likely to be anti-Trump

Feels like a miscalculation by Mueller. Grand juries are typically so compliant with the prosecution that, as the saying goes, they’ll indict a ham sandwich if he asks them to. (Except if the “ham sandwich” is a cop who’s been charged with a crime stemming from excessive force. That’s the one case where grand jurors tend to become sticklers about probable cause.) A heavily Democratic grand jury in D.C. may be more likely to follow Mueller’s lead than a bipartisan grand jury in Virginia, but how much more likely, realistically? If the answer is “only marginally” then the special counsel is handing Team Trump a heavy weapon with which to attack his integrity in exchange for an insignificant procedural advantage.

“I missed the statute requiring grand juries to locate in cities where investigated politicians or staff are most popular,” retorts David French. Fair enough, but (a) there was already a grand jury empaneled in Virginia investigating Mike Flynn that Mueller could have used for the broader Russiagate probe and (b) empaneling a second grand jury in a deep blue district plays into the White House’s hands politically by feeding the “partisan witch hunt” narrative that Trump has been pushing. Trump and his aides have emphasized Mueller’s friendship with Comey and the donations to Democrats that lawyers on his team have made (never mind the president’s own donations to Democrats over the years) to frame the Russiagate investigation as a Democratic hit on a Republican president. Now here’s Mueller “gaming” the indictment process by choosing a district where the GJ’s likely to be heavily Democratic too. Even Dershowitz, a liberal (who nonetheless spends much of his time defending Trump’s legal prerogatives these days), thinks he’s stacking the deck. Mueller would have been better off taking his chances in Virginia to deny his critics ammo with which to further delegitimize the probe.

Relatedly, read Andy McCarthy’s column today on what the true purpose of the grand jury might be in this case if the president’s a target. Grand juries do more than just indict people; federal law specifically authorizes them to issue reports on their findings even absent an indictment detailing “noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.” If Mueller can show probable cause that criminal activity was undertaken by two or more people and that Trump committed noncriminal malfeasance while in office that was related to it, the grand jury report could be offered to the House of Representatives as the basis for a “recommendation of removal” from office — i.e. impeachment. Would Trump nudging Comey to go easy on Flynn qualify as noncriminal misconduct, assuming Mueller can show Flynn was engaged in criminal activity involving at least one other person? We may find out.