Why are prosecutors issuing “reports”?
The role of prosecutors in the American system of justice is to investigate crimes and indict alleged criminals. Normally, their investigations are kept confidential until they are ready to charge.
We have seen that process played out endless numbers of times. That is not to suggest that the prosecutorial process in America is flawless – or even as good as it should be. I have often criticized the process as being too political, too arbitrary and too dangerous. I have especially been critical of the God-awful Grand Jury system.
As bad as all that is, I have become increasingly concerned about the popularity of a new twist on prosecution. That is the issue of condemnatory “reports” without actually filing charges. This is one of those bipartisan corruptions of the justice system. Two prime examples involve former Governor Andrew Cuomo and former President Trump.
The Cuomo case
As rumors and charges of sexual misconduct arose, New York State Attorney General Letitia James announced the launching of an investigation. She later announced the results. It was very damning – accusing Cuomo of all sorts of inappropriate actions against women – staffers and gals he met on the campaign trail. As the details played out in the news media, there was heartfelt testimony from victims – even tears.
But something was missing – an indictment. James was not charging Cuomo with any crimes based on her report. So, what was the point of it?
Many times, prosecutors attempt to NOT inveigle the innocent – at least those they do not intend to charge at the time. That is why you get code words like “person A” or “co-conspirator B.” Other names are simply omitted from the indictments and related comments by the prosecutor. The tradition is that if you are not indicting, there is nothing to say – no accusations … no innuendoes.
But that was not the case with Cuomo. The AG’s report had only one purpose – to besmirch Cuomo’s name in public … in the court-of-public opinion. Even more disturbing, the report was ordered and issued by a woman who had expressed an interest in running against Cuomo for Governor.
Underscoring the unfairness and the evil of James “report” is the fact that those who could have indicted Cuomo did not believe there was sufficient evidence to do so. They dropped the charges. What James had produced was a political document that sounded like an indictment, but was not. It violated the very concept of a person being “innocent until PROVEN guilty”—a standard the media violates a lot these days.
The Trump case
Recent top-of-the-hour reports dealt with Fulton County, Georgia District Attorney Fani Wills requesting and getting the empaneling of a SPECIAL Grand Jury to investigate Trump’s actions in connection with the Georgia 2020 election results. In the leftwing court-of-public opinion, the former President is indicted and guilty of attempting to overturn the Georgia results by pressing the state’s Secretary of State Brad Raffensperger to “find “11,000 assumedly nonexistent votes to flip the outcome.
Whether Trump was asking to find votes he believed were illegal – and should have been tossed — or to create illegal votes to put him over is at the core of the controversy. The point of this commentary, however, is not to prejudge that case, but to look at the reality of the District Attorney’s actions.
You will note that I emphasized the word “special” above. That is because there is an important difference between a typical Grand Jury and a SPECIAL Grand Jury. The major distinction is that a Special Grand Jury does not — repeat, NOT — have the power to indict. They can only issue … a report.
That’s right. They can subpoena witnesses. They can review “evidence” – but only what the prosecutor provides. There is no opportunity for a defense. (By the way, that is the fundamental flaw of the Grand Jury system – which only America and Liberia have.)
So, why empanel a Special Grand Jury when the prosecutor could have called for a regular Grand Jury – or even investigated and indicted on her own? There seems to be only one reason, Willis was not confident that she could get an indictment and conviction. Maybe she does not want to go to trial. The Special Grand Jury, however, will hand her a one-sided document that has political value in the court of public opinion.
We have heard calls for election reform and police reform, but arguably the most important reform in America might be prosecutorial reform. More about that in a future commentary.
So, there ‘tis.