Thread by @DanielRAlonso

THREAD re @AWeissmann_'s op-ed in the @nytimes this morning and the backlash against the idea of putting #RogerStone in the #GrandJury. /1
nytimes.com/2020/07/14/opi…

Stone, of course, was convicted of lying to Congress and tampering with witnesses. These are very serious crimes for which people are prosecuted regularly by the Justice Department. /2

Weissmann points out that the federal judge who sentence Stone said he had been prosecuted for “covering up for the president." The obvious questions that he suggests a prosecutor or Congress ask if they subpoena him are "Why did you lie to Congress? And many others." /3

Now, Stone retains his 5th Amendment privilege against self-incrimination. But that's no obstacle in an ordinary case where prosecutors have already convicted someone - granting immunity at that point doesn't really hurt their case. And it extinguishes the 5th Amendment. /4

But as thoughtful commentators like @HarrySandick point out, an immunity grant requires approval from the Assistant Attorney General in charge of the Criminal Division, who of course reports to AG Barr. /5
law360.com/articles/12915…

That shouldn't be an obstacle, @AWeissmann_ tells us, as Barr reportedly opposed the commutation and called the prosecution itself "righteous." And in my own opinion, it *was* a righteous prosecution, Barr's shameful actions in DC District Court notwithstanding. /6

That said, I am skeptical, and I'm sure many others are as well, that Barr would allow the AAG to sign off on immunity for Stone. It would obviously set his boss off, and quite possibly get him fired. (Wrong as that would be.) /7

But Weissmann's idea itself is sound, and I think some of the reaction to it is by people who have not been investigative prosecutors. It is not done all that often, but it is an important tool that the law clearly authorizes. I've done it myself, and Weissmann cites examples. /8

The attacks that I've seen fall into two categories: (1) ad hominem, attacking Weissmann's ideas because of his supposed transgressions over a long career, and (2) misunderstanding of the investigative powers of the grand jury. /9

I'll reject number 1 because it's a distraction. The attacks add nothing to whether the fundamental idea of calling #RogerStone to the grand jury is sound. /10

The key substantive criticism I'm referring to, which shows a misunderstanding of the grand jury's investigative power, is from @JonathanTurley, writing on his own blog. /11
jonathanturley.org/2020/07/13/top…

Turley writes that "Grand juries usually come after an investigation finds probable cause for a crime." This is misleading, and ignores completely the well-recognized, centuries-old investigative powers of grand juries. /12

Not only is there no requirement that a grand jury come after an investigation finds probable cause, but the *entire question* before the grand jury is *whether* there is probable cause. /13

Sometimes, yes, there has already been an arrest and the grand jury is deciding whether to formally charge a specific person. Those proceedings usually take ten minutes. /14

But many 1000s of hours are spent each year by grand juries that are investigating but have nothing close to probable cause. The S. Ct. has said that "examination of witnesses . . . need not be preceded by a formal charge against a particular individual." /15

These long-term GJ investigations tend to be of #corruption, organized crime, narcotics trafficking, terrorism, and complex fraud. /16

Multiple times in my career I used grand juries to investigate exactly Stone's kind of crime: obstruction of justice and witness tampering. Why? Because a legal system is not worthy of the name if it can't protect against such abuses. /17

So how am I so sure that Turley is wrong? B/c the Supreme Court has called the #GrandJury "an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person." It is *designed* to ask questions. /18

Here is the Supreme Court's standard for grand juries: "It is a grand inquest, a body with powers of investigation & inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation or.../19

"...by doubts whether any particular individual will be found properly subject to an accusation of crime....[T]he identity of the offender, & the precise nature of the offense, if there be one... /20

"...normally are developed at the conclusion of the grand jury's labors, not at the beginning." That case is from 1919, & all criminal practitioners know that the principles are no less applicable today. /21

In fact, as recently as *last week*, in a case involving the President's challenge to a grand jury subpoena, the Chief Justice, writing for seven members of the Court, wrote: "In our judicial system, 'the public has a right to every man's evidence.'" /22

Why on earth is that not applicable to Roger Stone? When a witness falsely denies records of & communications about Wikileaks & a presidential campaign re hacked Russian records, it would be DOJ malpractice not to ask "Why?" /21

But according to Prof. Turley, "ethical prosecutors generally require more than an interest in finding out stuff." He's cited no rule of ethics that Weissmann has suggested DOJ violate, & he must know that why Stone lied, & what the truth really is, is more than just "stuff." /22

Bottom line: @AWeissmann_ is right as to what should be done, and that it is perfectly proper under the law. The political reality may be different, of course, but let's not pretend that the rules say this is not allowed. Do we know what Stone will say? No -that's the point. /end