Mr. Mueller's Options, Short of Indictment
Matters before a federal grand jury not culminating in an indictment, by and large, remain secret. As Special Counsel Robert Mueller’s investigation of alleged Russian meddling in the 2016 election and other matters proceeds, the possibility exists that – for particular persons or entities – the evidence developed by his team falls short of the Department of Justice standard for seeking an indictment: “admissible evidence probably sufficient to obtain and sustain a conviction.”
But suppose Mr. Mueller’s team develops evidence that nonetheless is material to matters of national security or to non-criminal malfeasance? Obviously, this would be of great interest to the public and to Congressional committees investigating parallel and related matters. What are his options? I discuss this in my November 27, 2017 article for Law360, “Mueller’s Options, Short Of Indictment.”
My full analysis is here. In summary, at least three routes to some form of disclosure exist:
- a limited, common law exception to grand jury secrecy for issues of great public or community concern where the conduct reported falls short of a crime, but the public interest in the contents of a report outweighs the harm to any individuals;
- provision of information to a Congressional committee given the legislature’s constitutional power to impeach; and
- release of the information via a little-known statute, 18 U.S.C. § 3331 et seq., that permits top DOJ officials to request the impaneling of a “special grand jury” which may issue a report concerning “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.”
