A question in need


A question in need of an answer.

Numerous recent press reports have stated that the term of the current Plame grand jury, having been extended once, cannot be extended again. Thus, if Fitzgerald is not done with his investigation tomorrow, he must impanel a new grand jury.

But tomorrow’s big Times piece says Fitzgerald is “likely to extend the term of the federal grand jury beyond its scheduled expiration on Friday.”

Does the Times just have the terminology wrong? Do they actually mean to say he plans to impanel a new grand jury? Is some very short extension of this grand jury actually possible, notwithstanding earlier reports to the contrary?

TPM counts quite a few lawyers among its readership. And this should be a fairly straightforward question for people who are familiar with the federal court system. Who can clear this up for us.

Late Update: Perhaps this is part of the explanation. Yesterday on NPR’s All Things Considered, Professor Daniel Richman of Fordham Law School was asked to explain what grand juries do. Here was the exchange …

BLOCK: First, though, some explanation about the role of the grand jury. Daniel Richman is a former federal prosecutor in New York and now a professor at Fordham Law School. He says federal grand juries have two functions.

Professor DANIEL RICHMAN (Fordham Law School): One is to investigate, which many grand juries really don’t do much of, but special grand juries can be expected to do a lot of. The other is to screen, to determine whether the government has met its burden of having sufficient evidence to pursue a case formally before a court.

It’s a little unclear from the context in what way he’s using the word ‘special’. But the DOJ Criminal Resource manual contains a section on impaneling “Special Grand Juries”. And this resource guide at the University of Dayton website makes the following distinction about the terms federal grand juries can serve (emphasis added) …

Federal grand juries are of two types–regular and special. Regular grand juries sit for a basic term of 18 months, but that term can be extended up to another 6 months, which means their total possible term is 24 months. Special grand juries sit for 18 months, but their term can be extended for up to another 18 months; a court can extend a special grand jury’s term for 6 months, and can enter up to three such extensions, totaling 18 months.

Several TPM Reader lawyers have written in to say that Fitzgerald’s grand jury is just such a “special grand jury”. And if that’s so it would seem that he has a good deal more latitude to seek extensions — specifically, a year’s more latitude — than we’ve been led to believe. Others tell me that it’s a six month extension and that’s it.

USCourts.gov describes the difference between the two sorts of grand juries like this …

Today, there are two main types of grand juries: regular and special. A federal judge officially convenes both types of grand juries, though a prosecutor (someone from a U.S. Attorney’s office) actually conducts the proceedings. Regular grand juries are called to decide whether or not a prosecutor has presented enough evidence that a crime has been committed. Regular grand juries are convened for a period of 18 months, but may be required to sit as long as 24 months.

Special grand juries are called to investigate a particular crime, usually one that is of some importance. Special grand juries are convened for a period of 18 months, and may be extended for six month intervals for a total of an additional 18 months.

If you’re knowledgable on this subject and have more to add please drop me a line.

Even Late Update: Another question. Did Fitzgerald a new grand jury in January 2004 when he took over the case? This brief from the case says the following (emphasis added) …

In late December 2003, the Attorney General recused himself from the investigation, and delegated his authority in connection with the investigation to Deputy Attorney General James B. Comey as Acting Attorney General. Id. at 4a, 192a-193a. Deputy Attorney General Comey, in turn, appointed Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, as Special Counsel, and delegated full authority concerning the investigation to him. Ibid. The grand jury investigation began in January 2004.

That last passage is courtesy of TPM Reader SB.