Unpacking &quot;If they have a question for the lawyers, they&#39;ve got to go outside and the grand jurors can ask questions.&quot; from former US Fed. prosecutor I need help understanding in plain language the last few sentences of the following exchange between CNN's anchor Dana Bash and CNN's Chief Legal Analyst (and former federal prosecutor) Laura Coats in the July 28, 2023 Trump's lawyers have secret meeting with special counsel BASH: And Laura, how conclusive must the evidence be in a case like this to show intent? COATS: Well, an average case that's not under the microscope, but a case like this would be, the prosecutors must be able to prove their case beyond a reasonable doubt. They want the jury to -- the grand jury, remember (hearing from?) the actual trial jury -- They're talking about probable cause, probable cause that a crime has occurred and this person (has done) it. But in reality, it's beyond a reasonable doubt in the sense that 'can I really be successful in the courtroom with this?' The vote that's returned, whether it's a majority, whether it's a slim majority, whether it's unanimous, will be very, very telling. Well, remember, there's a reason why the lawyers for Trump want to talk to Jack Smith and prosecutors as opposed to Donald Trump himself. In a grand jury climate, it is the defendant alone or the witness alone who can go into the room. If they have a question for the lawyers, they've got to go outside and the grand jurors can ask questions. And so by the lawyers trying to have the meeting it's likely to suggest, 'Listen, we want to make sure that if this person would go before the grand jury, (he's chosen not to) that they are protected in some way.' That's for every single defendant, every single witness as well. Coats packs a lot of information into each sentence and speaks quickly, and the YouTube transcript is imperfect so I've added a few parentheticals. My confusion is with the line: If they have a question for the lawyers, they've got to go outside and the grand jurors can ask questions. Is &quot;they&quot; the grand jury? Is she saying that if the grand jury members have questions for Trumps lawyers, they (the grand jury) must leave the room and ask questions of Trump's lawyers in the hall outside the room or some similar &quot;unofficial&quot; location? I don't see how that fits with the next sentence: 'Listen, we want to make sure that if this person would go before the grand jury, (he's chosen not to) that they are protected in some way.' which seems to be from the point of view of Trump's laywers, not of the grand jury members. What is Coats' point here?
The witness can go outside and ask questions of the witness’ lawyers So if, for example, Mr Trump chooses to testify to the grand jury he goes in alone - no lawyers. If he wants to consult his lawyers he needs to ask to do, leave the room and consult them. If I were Mr Trump’s lawyer I would be worried that he wouldn’t know when he should do that.
This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions.
He will be thrown out of office (the "except in case of impeachment" clause means the president cannot immunize a person against impeachment); because he was pardoned by POTUS, he will not be charged of the crime that he was pardoned for – the prosecution does not get a chance to argue anything. They might however prosecute him for some other offense not covered by the pardon (if POTUS forgets a sweeping statement like "any and all crimes related to X"). I don't think a prosecutor is likely to try to argue that the Constitution means "the president cannot pardon a person who has been impeached".
How are such no-show-no-tell boundaries established They largely stem from the rules of evidence which are complicated, vary from state to state and knowing which is a big part of what litigation attorneys are paid for. Parties to litigation become aware of all the evidence/topics that their counterparts wish to broach in the courtroom well in advance — during discovery. They will usually disagree whether some bits and pieces can be presented to the jury. In this case the court will hold admissibility hearings — again, well in advance before the trial. Despite all the preparations, some of these disagreements arise during the trial, and then they are resolved in place by way of voiced objections. The attorneys and the judge talk about them using professional jargon of the rules of evidence — having themselves seen all the evidence in advance. does the jury get to know them No, the jury doesn't need to follow the professional talk. In fact, they should hear as little as possible of it — which is the reason why admissibility disagreements are resolved in advance as much as possible. If serious issues arise during the trial, the judge will ask the attorneys to speak to them in chambers — away from the jury. Or they will ask the jury to take a break while the professionals talk. The jury just needs to listen to the evidence that is allowed in, and disregard any evidence the judge say they have to. is this also in the public record somehow? It is in the court record. It may be accessible to the public if the court allows. If someone wishes to see the record they need to apply to the court, provide reasons and a judge will decide if anything can be released.
Double jeopardy in its usual sense wouldn't attach because impeachment is not a criminal proceeding, which is the only thing double jeopardy applies to (esoteric estoppel matters not withstanding). You might recall that OJ Simpson was tried and acquitted of murder in a criminal court, and then subsequently tried and found liable in a civil court for those murders. There was no double jeopardy protections of which he could avail himself. But the constitution says that the Senate shall have the sole power to try impeachments, so for the most part we can expect that whatever they say goes. So they can dismiss for any reason they desire, in principle. The impeachment of Senator Blount is one example: the House impeached him, and on the same day the Senate expelled him under their constitutional power to do so, and then dismissed the impeachment for lack of jurisdiction (arguing that Congress members cannot be impeached; the impeachment was otherwise still relevant after his expulsion because it could result in preventing him from gaining office again). The costs here are political: in your hypothetical situation with very strong evidence, if popular opinion turns too strongly in favor of conviction then refusal to do so may cost the Senators and their party in subsequent elections. Attempts to argue arcane technicalities might not save you at the ballot box. Under existing impeachment precedent (as well as Congressional rules precedents), the courts would be loathe to get involved by default. Though if the action was sufficiently egregious (not even superficially resembling what a judge might call a trial, say) maybe they would feel judicial intervention and action was warranted and justified. But that's purely speculative.
In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so.
Mueller was appointed under Title 28 of the Code of Federal Regulations, part 600, which provides at § 600.8(c), Closing documentation, that At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. The use of the word &quot;confidential,&quot; read along with § 600.9, indicates clearly that the disclosure of the report lies in the discretion of the Attorney General. Section 600.9 says: § 600.9 Notification and reports by the Attorney General. (a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action - (1) Upon appointing a Special Counsel; (2) Upon removing any Special Counsel; and (3) Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued. (b) The notification requirement in paragraph (a)(1) of this section may be tolled by the Attorney General upon a finding that legitimate investigative or privacy concerns require confidentiality. At such time as confidentiality is no longer needed, the notification will be provided. (c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.
Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.).