Is there enough to charge?

The most intriguing news last week was that a federal grand jury issued a 37-count indictment against former president Trump. The purpose of this note is not to take a position on the strength of the case. Rather, we will look at how the grand jury process safeguards the rights of a defendant. 

Federal felony charges can have devastating results. A conviction carries more than potential fines and jail time. It can also impact other individual rights such as the right to vote or the opportunity to obtain a security clearance. 

In our legal system, the seriousness of those impacts on individual freedom results in an added layer of protection for people charged with serious federal crimes. To put it simply, a defendant has THREE chances to win. 

A grand jury is a group of individuals, similar to a regular jury, that is selected from the general populace. It is not a politically appointed group. Their role is to examine evidence and testimony presented by the prosecutors and, on that basis, to recommend whether formal charges should be brought against a particular defendant. 

Grand juries are empaneled all the time and most of their work never receives media coverage. The reason is that many grand juries decide that there is simply not enough evidence to recommend an indictment. If the grant jury finds that evidence of a crime is lacking, the defendant wins without ever facing trial. 

The grand jury’s role, then, is to prevent the government from bringing charges to simply aggravate or penalize a defendant. The testimony and evidence that the grand jury receives is concededly one-sided. Its job is simply to look at evidence most favorable to the government and to see if there is enough evidence to warrant filing charges. In other words, the grand jury process prevents a “witch hunt” on a most basic level. 

Once charges are filed, there is a second chance for the defendant to win without going to trial. This is the pre-trial stage where the defense attorneys will argue that the charges should be dismissed from the outset. Dismissal can be granted for a variety of reasons including: the indictment was filed in the wrong court, the charges do not fall within the charged federal statute, or that the facts alleged in the indictment (when viewed most favorably to the government) do not provide enough evidence of a crime. If the judge dismisses the case at this early stage, the defendant once again wins. 

Finally, there is the trial. If the jury does not find that the government has proved its case beyond a reasonable doubt, the defendant wins. 

All of these procedural steps illustrate “due process” at its best. The systematic method of case preparation and presentation also answers the question of selective prosecution, or “why hasn’t so-and-so also been charged?” The straight-forward answer is that the prosecutor looks at the three stages where a defendant can win and decides not to waste time on those cases where success is not extremely likely.