Transition 2016

A Special Grand Jury for the DNC Hack

By Paul Rosenzweig
Tuesday, December 13, 2016, 11:45 AM

By now it seems clear, at a minimum, that the Intelligence Community has reached consensus that Russia was the source of the infiltration of the Democratic National Committee and the Clinton campaign that resulted in the release of damaging documentation in the latter part of the recent election.  With less certainty and clarity, at least a portion of the IC believes that the intent behind these acts was to influence the election in favor of the Republican candidate, Donald Trump.  Others take the slighly more benign view that the intent was simply to disrupt the election, discredit America and sow discord (a goal which has been amply realized, sad to say). 

In response to this, the President-Elect has called the claims ridiculous.  His disregard for the IC's assessment is, as General Michael Hayden says, "moving in the wrong direction."  Faced with this conflict the American public is left with a politicized debate in which critical values of electoral integrity may well be swamped by partisan concerns.  To their credit, senior Republicans have begun calling for Congressional inquiry -- though some (including me) may doubt whether even the most well-intentioned investigation will survive the crucible of electoral squabbling.  [And, to be clear, were the situation exactly reversed we would be right to be equally sceptical of congressional probity and impartiality.]  These concerns have lead at least two Democrat members to  propose the creation of an independent commission of inquiry outside of Congress.  The proposal's prospects  for passage are slim, I think

So here is another idea.  Title 18, USC section 3331, authorizes the Attorney General to call into session a "special grand jury" to examine criminal activity within a jurisdiction.  Though most frequently used to examine organized crime matters, such special grand juries have, in the past been used to examine broader issues of inquiry [I had tangential experience with one such special grand jury investigating a decade long environmental failure at an American nuclear processing facility.]  Not only can these single-purpose grand juries provide an investigative focal point using all of the extensive investigative powers of traditional grand juries, they have the happy ability to pubish (with court approval) reports on their findings that releate to misconduct, malfeasance, misfeasance and nonfeasance of government officials -- a category that is likely to be broad enough to encompass a  report on the Russian efforts to influence the American elections.

It would not, however, be enough for President Obama to direct the Attorney General to convene such a special grand jury of inquiry.  To generate as much confidence as possible in the ultimate result, he must also direct her to exercise her regulatory authority to appoint a "special counsel" to lead the inquiry.  As historical practice and precedent make clear, the special counsel may be appointed from within the current ranks of the Department of Justice or, at the Attorney General's discretion, from outside the Federal government.  The final step would be for the President and AG to select to lead the inquiry a prominent Republican who is not affiliated with the #NeverTrump wing of the party.

Of course, if President Obama were to do that before the transition, the incoming President and Attorney General could put an immediate end to the inquiry on their first day in office.  But I estimate that such a step would have far too high a political cost and that, as a result, we would wind up with an independent Republican-led grand jury inquiry that, in the end, could both uncover whatever criminality may have been involved in the Russian efforts and (within limits) make a report on its findings to the American public.  I confess their may be some legal problems with this approach that I've missed (and I'd welcome reader correction) but as far as I can tell it is a lawful approach

Our democracy will not rest easy while uncertainty hovers over it.  Nor will we be able to fix existing problems for the next go round unless whe know what they are.  As his last gift to the Nation (and I acknowledge that it will likely come at some political cost to him) President Obama should set in motion as comprehensive inquiry as he can manage.  The idea of a Republican-led special grand jury is one possible solution.