In the last week there has been considerable speculation about whether former Deputy Director of the FBI Andrew McCabe will be indicted on charges of making false statements to investigators looking into his authorization of certain leaks to the press. His alleged lack of candor has been the subject of a lengthy DOJ Inspector General report, and news outlets have revealed that the U.S. Attorney in the District of Columbia is determined to seek an indictment. Also, that McCabe’s appeals to the Deputy Attorney General have been rejected.
As this drama unfolds, McCabe’s lawyers are raising the possibility that a D.C. grand jury has voted down a proposed indictment. That, if true, is significant for various reasons. First, a refusal to indict is exceedingly rare. The image of a ham sandwich comes to mind. Second, it is DOJ policy that refusals to indict are taken seriously and a decision to re-present a rejected indictment to the same or different grand jury requires the specific approval of the United States Attorney. Third, such a rejection suggests, in the minds of some, that the quest for indictment is unfair and unjust overreach.
As I discussed with Anne on the Insider podcast, I have my doubts about the breathless reporting. But all the hubbub about the rarity of grand juries rejecting indictments has reminded me of a story from my own experience, or more accurately, the experience of a colleague. It is the only memory I have as a line prosecutor of any occasion where a federal grand jury rejected a proposed indictment. Perhaps it provides some context and perspective. Allow me to share the story with you here, as described in my book, Doing Justice:
“When I was a junior prosecutor, a colleague of mine set about charging a man for escaping from prison. As I can’t remember his name, let’s call the escapee Harry. Here are the basic facts: Harry was incarcerated in a federal correctional facility after being lawfully arrested and duly convicted of a felony. One day he escaped from the prison. His escape was willful, and he was caught. There was no question about Harry’s state of mind. He was not on furlough, and no one accidentally finds himself outside the prison to which he has been assigned. Harry had no legal defense. That’s about as open-and-shut as a case gets. Escape from prison ordinarily is, and ordinarily should be, considered a very serious crime, and so my colleague dutifully proceeded to indict the case.”
Now let’s consider a fuller rendering of the facts: The facility from which Harry escaped was the Federal Correctional Institution at Otisville. Otisville is not Alcatraz; it is not Sing Sing. Otisville is a medium-security facility. The prison store is also a delicatessen and serves gefilte fish. There is an adjacent minimum-security camp, and this is where Harry was housed. Sometimes, as was true here, security is decidedly lax.
The open-and-shut case arrived on my colleague’s desk with incontrovertible evidence that Harry had escaped. Only he wasn’t really trying to escape. Not for good anyway. Poor Harry, who had been within the confines of Otisville for some period of time, snuck out of prison to satisfy the oldest of human needs. He slipped out for sex. With his wife. He was gone for just a few hours, and that very same night he tried to sneak back in. That’s right. After being home free—and after having achieved his conjugal purpose, successfully, we hope—he came back. That’s when the ever-alert guards at Otisville caught him, as he was creeping back onto the premises under cover of nightfall.
The legal analysis was simple bordering on self-evident. There was a clear statute. There was irrefutable proof. Indict him. I suppose the argument against the mitigating facts was this: if you steal $20 from a cash register and then later return it, you’re not off the hook. Presumably, that was the principle we were applying in deciding to charge Harry.
But guess what? The grand jury wasn’t having it. The grand jury, in its wisdom, refused to indict this particular ham sandwich. I didn’t think this then, but I do think it now: good for them.
There’s a valid argument that you want to deter escape. I handled some more serious escape cases myself as a prosecutor. But it seems in retrospect that this was the kind of case where the infraction could have been addressed through some punishment related to the conditions of confinement, withdrawal of privileges, not necessarily adding a felony conviction to a person who literally just strolled out of the prison compound, completely undetected, and then returned. This was not El Chapo or a character from The Shawshank Redemption digging a tunnel underneath the property to make his big getaway. Sometimes it’s fair and just for prosecutors to give someone a break.”
I cannot be sure, but it is my recollection that the U.S. Attorney way back then did not authorize going back to a new grand jury to take another bite at the apple. The office did the right thing, took its lumps, and spared hapless Harry. The end.
STAY TUNED LIVE TOUR
Stay Tuned is going on the road! Join Preet and guests for a night of fun and thought-provoking conversations in the following cities:
Denver | October 24, 2019
Shannon Watts, gun reform activist and founder of Moms Demand Action
Minneapolis | November 5, 2019
Jacob Frey, Minneapolis Mayor and civil rights attorney
Detroit | November 12, 2019
Dana Nessel, Michigan’s 54th Attorney General and long-time advocate of LGBTQ rights
Atlanta | December 4, 2019
Sally Yates, a veteran of the Justice Department who served as the Acting Attorney General, Deputy Attorney General, and U.S. Attorney for the Northern District of Georgia
IMPEACHING A JUSTICE
Newly revealed details about sexual assault allegations against Supreme Court Justice Brett Kavanaugh during his time as a Yale undergrad student have raised a host of questions about the sufficiency of the FBI’s 2018 investigation into his alleged misconduct and the appropriate response to the possibility that Kavanaugh lied during his confirmation hearings when he denied all accusations made against him.
On Saturday, The New York Times published an excerpt from a new book—The Education of Brett Kavanaugh: An Investigation—written by the Times’ Robin Pogrebin and Kate Kelly who report that “at least seven people” heard about an incident where during a “drunken dormitory party,” Kavanaugh, then a freshman, “pulled down his pants and thrust his penis” at a fellow classmate, Deborah Ramirez, “prompting her to sway it away and inadvertently touch it.”
Pogrebin and Kelly further report that Max Stier, a D.C.-based attorney who was Kavanaugh’s classmate at Yale, informed senators and the FBI that he witnessed Kavanaugh engage in similar behavior at a different drunken dorm party during Kavanaugh’s freshman year. The alleged victim of the harassment declined to be interviewed by the Times reporters and her friends say she does not recall the incident.
A spokesperson for Sen. Chris Coons confirmed on Monday that he wrote to FBI Director Christopher Wray on Oct. 2, 2018 requesting an “appropriate follow up” on the incident Stier reported, but that the FBI reportedly chose not to investigate it. The Bureau also did not interview any of the at least 25 people Ramirez’s lawyers flagged for the agents as potential sources of information.
Some lawmakers are now calling for an impeachment inquiry. Congresswoman Ayanna Pressley introduced a resolution on Tuesday asking the House Judiciary Committee to investigate whether Kavanaugh should be impeached. Committee Chairman Jerry Nadler has dismissed the idea, telling WNYC “we have our hands full with impeaching the president right now and that’s going to take up our limited resources and time for a while.” Meanwhile, Sen. Kamala Harris has suggested forming a task force, telling Nadler in a letter:
“I understand that the House Judiciary Committee has limited resources and many other responsibilities. However, in the past, congressional committees have dedicated resources and established structures to pursue serious cases of misconduct — including by creating a task force and retaining outside counsel to help lead impeachment inquiries.”
Many CAFE Insiders have asked: “How is a Supreme Court justice impeached?”
The procedure for impeaching a federal judge is the same as the procedure for impeaching the president. The process begins with the House Judiciary Committee, which holds hearings and if warranted, writes up charges known as articles of impeachment. Upon a majority of the Committee’s vote to approve the articles, the whole House debates and votes on them. If at least one of the articles gets a majority vote, the official is impeached and must stand trial in the Senate, presided over by the chief justice of the Supreme Court. If the Senate votes in favor of conviction by a two-thirds majority vote, the official is automatically removed from office.
In the Federalist Papers No. 65, Alexander Hamilton wrote about the inherent challenges the Senate faces when it takes on “judicial character as a court for the trial of impeachments.” Hamilton wrote:
“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
Another question raised by Insiders: “What qualifies as ‘high Crimes and Misdemeanors’”?
The power to impeach the president, the vice president, and “all civil Officers of the United States” — amongst them federal judges — derives from Article II, Section 4 of the U.S. Constitution, which calls for removal from office on “impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The meaning of “treason” and “bribery” are perhaps relatively straightforward, but what type of misconduct meets the “high crimes and misdemeanors” threshold?
Congress has given impeachment serious thought only 18 times since the Constitution was adopted, and in the 13 instances that involved impeachment of federal judges, the “high crimes and misdemeanor” charges varied from such behaviors as habitual inebriation and favoritism on the bench to making false statements under oath and using the office for financial gain. Only eight federal judges have been convicted and removed from office.
The only Supreme Court justice ever to be impeached was Samuel Chase in 1804, on the basis that he criticized President Thomas Jefferson’s policies before a grand jury in Baltimore. The Senate acquitted him the following year when none of the eight articles of impeachment secured the votes of two-thirds of the members.
Do the allegations against Justice Kavanaugh warrant an impeachment inquiry? Let us know what you think by replying to this email or writing to us at [email protected].
THIS WEEK ON STAY TUNED
Susan Hennessey is this week’s guest on Stay Tuned. She is the Executive Editor of Lawfare, a blog that covers legal and national security issues. She is also one of the narrators of Lawfare’s podcast, The Report, which tells the story of Special Counsel Robert Mueller’s investigation and will feature Preet in upcoming episodes.
In this sneak peek at the interview, Hennessey explains how Congress outsourced its oversight function to Mueller:
“Congress is supposed to do its own investigations. It is itself an investigative body. And what we saw is members saying, ‘Well, let’s just wait for the Mueller investigation. Let’s wait to see what Mueller finds,’ and essentially outsourcing its work to the executive branch…And on one hand you can understand why that’s completely rational for Congress to do. The executive branch is better at conducting investigations.”
Don’t forget to listen to this week’s episode. It drops this Thursday, September 19th.
Josh Campbell is a CNN law enforcement analyst and former FBI supervisory special agent who served as a special assistant to former FBI director James Comey. Follow @joshscampbell for commentary on legal and political stories making the headlines.
SCANDAL SURVERY: DONALD, BRETT, ANDY, FELICITY
If you haven’t already, listen to the latest episode of the CAFE Insider podcast: “Scandal Survey: Donald, Brett, Andy, Felicity,” and follow along with this transcript of Preet and Anne’s conversation.
*Please note, you may now manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.
That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.
— The CAFE Team
Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, David Kurlander, and Aaron Dalton