THE GRAND JURY: The Use and Abuse of Political Power

After an appallingly spotty survey of the grand jury's historical origins, Clark follows the Nixon administration's attempts to make the Federal grand jury into an instrument of harassment. He shows, all too perfunctorily, how Nixon's Justice Department -- through its revamped and expanded Internal Security Division -- convened a sharply increased number of grand juries and then coordinated grand jury prosecutions around the country, Since not all of the evidentiary rules and Bill of Rights safeguards governing petit jury trial are required in grand jury proceedings, the grand jury is, from the prosecutor's point of view, ideal for getting around prohibitions against hearsay, forced self-incrimination, and even (for all practical purposes) double jeopardy: recalcitrant witnesses can be re-re-resentenced for repeated refusal to answer a single question. Guidelines for determining probability that a crime has been committed and for subpoenaing witnesses are haphazard in the extreme, and Federal prosecutors can go on fishing expeditions. Clark elaborates these abuses very sloppily; Mitchell, Kleindienst, and The Ultimate Enchilada deserve a really exquisite going over, not this captious, unsystematic, transparently smug tut-tutting about unenlightened politics. But he has some reasonable suggestions: modify the secrecy of Federal grand jury proceedings to avoid the contrasting dangers of clandestine high-handedness and prejudicial pretrial leaks (he sympathizes with Spiro Agnew's gripe on the latter subject). He suggests revising the rules of evidence to come closer to petit jury trial procedure, providing mandatory instruction by a judge, having the Federal prosecutor screen some cases before presenting them to a grand jury, and letting the grand jury itself initiate other cases. These ideas merit a sounder treatment established on a clearer jurisprudential basis.