In President Trump’s second term, the Department of Justice has accelerated the pace of flimsy indictments against high-profile targets, including James Comey, the former F. B.I director, and Letitia James, the New York attorney general.
John Brennan, a C.I.A. director in the Obama administration who has criticized Mr. Trump, hasn’t been indicted, but he’s under investigation by the Justice Department. This week we learned of reports that even E. Jean Carroll, who won civil sexual abuse and defamation cases against Mr. Trump, may feature in a criminal investigation.
What these cases have in common is that they involve Mr. Trump’s perceived enemies. What the indictments have in common is that although they met the very low standard for bringing felony charges before a grand jury, it is very unlikely that those cases will meet the much higher standard for a later conviction at trial.
In an administration where prosecutors can be counted on to proceed in good faith — and to follow the Justice Department’s own rules — cases like these should be vanishingly rare. Right now, however, we can’t bank on that. All these examples have at least a whiff of prosecutorial vindictiveness.
But there is a way to fix this.
The problem results from the difference between the standard for obtaining an indictment, which is probable cause, and that for obtaining a conviction, proof beyond a reasonable doubt. Moreover, for indictments, probable cause need be found by only 12 of a quorum of 16 to 23 grand jurors, in contrast to the unanimity required for a guilty verdict at trial.
The Justice Department has an internal rule that, were it adhered to, would deal with this. It prevents prosecutors from seeking an indictment without first determining that the case can be won later at trial and on appeal. During my tenure at the department, I never sought or approved an indictment if the case being presented to the grand jury did not already meet that threshold. After all, you want to bring only cases that you are confident you can win — that is, unless your real aim is subjecting people to bogus charges.
This provision is a critical limitation on seeking abusive or weak indictments, but it is not a law. And if there is anything that Mr. Trump’s two terms have taught us, it is the need for enforceable laws to restrain executive action.
Under current law, people like Ms. James and Mr. Comey wind up suffering the public opprobrium of a criminal indictment, as well as the waste of significant time, energy and money to defend themselves against questionable charges. While they battle these cases, and even if they’re exonerated, the chilling effect of their being charged in the first place can be felt by countless others. On top of that, the American taxpayer is on the hook for the cost of all the work that the Justice Department puts in on cases that in any other administration almost certainly wouldn’t have been brought.
So what is the solution?
Congress can require that grand juries no longer be instructed that they can find a criminal charge based on mere probable cause. Instead, a higher factual standard, such as “clear and convincing” evidence — a standard sometimes applied in the civil law — should be necessary to vote in favor of a criminal charge. Such a law, modeled on the Justice Department’s internal guideline, would bridge the wide gap between the low-level burden that prosecutors have to meet for bringing an indictment and the highest burden under the law required for a criminal conviction.
Mr. Trump’s Justice Department could hardly validly complain about such a new law. Increasing the standard to obtain a grand jury indictment would not change what responsible prosecutors are already doing now. And the law would address what the acting attorney general, Todd Blanche, says he himself fears: Speaking this year at the Conservative Political Action Conference, he said, “Everybody’s afraid that the next administration, if we don’t win, we’re going to all be investigated and indicted.”
I was struck by this remark for a personal reason. During Mr. Trump’s first term, I worked on the team led by the special counsel Robert Mueller that investigated claims that Russia interfered in the 2016 election. Many of us assumed, correctly, that we would be subject to later investigation by the Trump administration. But we kept our heads down and did our work, guided by our highly principled special counsel.
Indeed, the investigation of the investigators came to pass: After Mr. Mueller delivered a final report in 2019, another special counsel, John Durham, led a yearslong investigation at the behest of Attorney General Bill Barr that generated a lot of furor but found no wrongdoing on the part of the Mueller team. In fact, he did not contest the basic findings of our investigation.
It was a vindication of the team and a win for the rule of law, but it hasn’t deterred the current administration from its spree of dubious inquests. The only thing that might change that is if Congress steps in and changes the law to raise the bar for initiating indictments.
Prosecutors will still need to meet the beyond-a-reasonable-doubt standard at trial. But by making it harder for charges to be brought on spurious accusations by the current or any future Justice Department, such a law would help thwart questionable investigations and indictments.
Some might contend that the refusals by grand juries to indict Ms. James, or the six members of Congress who last year urged service members not to follow unlawful orders, mean that reform is unnecessary — that we should leave it to grand jurors to sort this out, not raise the burden on prosecutors. Similarly, they may argue that trial juries should be the last fail-safe — that they should be the remedy for careless or fishy indictments.
That would still leave us with the problem of indictments being used as tools of retribution and intimidation. Not all grand juries have refused to indict under the current low standard: While the administration’s first case against Mr. Comey was dismissed, Mr. Blanche was able to get a grand jury to indict him based on his nebulous social media “86 47” seashells post. Even for people like Mr. Comey and Ms. James, who intimately know how the criminal process works and the judicial limits on prosecutorial power, it can be intimidating to have one’s life turned inside out. Add the inevitable doxxing and threats, and the pressure can be overwhelming.
Mr. Blanche knows all this. He should have no qualms about moving to a higher legal standard, unless he thinks the point is to put the squeeze on those whom Mr. Trump sees as adversaries. Congress can and should take this weapon away from the executive branch of any administration.
Andrew Weissmann teaches at the New York University School of Law and is the author of “Liar’s Kingdom: How to Stop Trump’s Deceit and Save America.”
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