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Inspector General and Grand Jury Independence

Inspector General and Grand Jury Independence

Friday, 15 March 2019 04:01 PM Current | Bio | Archive

The Grand Jury and the Inspectors General share a unique independence within the U.S. Government.

The Handbook for Federal Grand Jurors gives a concise history of the independence of the Grand Jury with a specific example of a grand jury exercising this independence in the American colonies predating our Declaration of Independence and our Constitution.

The current Justice Manual (JM), formerly United States Attorneys’ Manual (USAM), states “the grand jury is an independent body.”

Gregory Fouts tells us in his article “Reading the Jurors Their Rights: The Continuing Question of Grand Jury Independence” the judges charge to the grand jury includes “under the United States Constitution, the Grand Jury is independent.”

The Supreme Court has repeatedly acknowledged this independence of the Grand Jury.

Justice Black, in 1960, writing the opinion for the court in Nicholas A Stirone v. United States affirmed that the Grand Jury acts independently of prosecutors and judges.

In United States v. John H. Williams Jr., Justice Scalia, in 1992, writing for the majority, again reaffirms the Grand Jury’s functional independence from the judicial branch. Although the dissenting opinion sees the investigative function as an extension of the courts it also admits, “A grand jury is clothed with great independence in many areas.”

John Jay, our first Chief Justice of the Supreme Court, in his 1777 "Charge to the Grand Jury" included principles that govern the independent deliberations of the Grand Jury: “I presume it will be unnecessary to remind you that neither fear, favor, resentment, or other personal and partial considerations should influence your conduct. Calm, deliberate, reason, candor, moderation, a dispassionate and yet a determined resolution to do your duty, will, I am persuaded, be the principles by which you will be directed.”

But are these no less than the principles of independence that govern the actions of the Offices of the Inspectors General?

The official web site of The Council of the Inspectors General on Integrity and Efficiency (CIGIE) under FAQs states “Yes, IGs are independent.” It further states that “IGs look independently at problems [and] can perform independent investigations of allegations.”

The basis for these claims comes from The Inspector General Act of 1978, As Amended (IG Act).

The IG Act states the purpose of establishing the OIGs: “in order to create independent and objective units …to conduct and supervise audits and investigations.” The act further lists the “Duties and responsibilities; report of criminal violations to Attorney General…conduct, supervise, or coordinate relationships between such establishments and other Federal agencies… with respect to…prevention and detection of fraud…the identification and prosecution of participants in such frauds.” The IG Act further delineates the law enforcement powers of the IGs to conduct criminal investigations; it also specifically designates an independent counsel “reporting directly to the Inspector General or another Inspector General.” Would this counsel not be considered an “attorney for the US government?”

Should the independence of the Inspectors General be reinforced with statutory language allowing them direct access to the independence of a Grand Jury?

The rules of Federal Rules of Criminal Procedure (Fed. R. Crim. P.) authorize “an attorney for the government” to present before the Grand Jury. These are defined but not limited to the Attorney General, Assistant AG, US attorney or Assistant US Attorney. It also authorizes “any other attorney authorized by law to conduct proceedings under these rules as a prosecutor.” Doesn’t it seem that the IG counsels are “an attorney for the government” and authorized to conduct proceedings under these rules as a “prosecutor” within the IG Act establishing one of the duties and responsibilities of the IG as “identification and prosecution of participants in such frauds?”

Should Congress clarify and fortify the impartiality of the Inspectors General by specifically authorizing an Inspector General to petition the Chief Judge with cognizance over a Grand Jury to allow the IG’s statutory counsel as an “attorney for the government” to independently present findings of criminal investigations to the independent Grand Jury to safeguard and solidify the intended independence of the Inspectors General?

John M. DeMaggio retired after 30 years of service as a Captain from the U.S. Naval Reserve Intelligence Program. He holds a Bachelor’s of Science in Forensic Science from John Jay College and a Master’s of Science from Whiting School of Engineering, Johns Hopkins University. Privately consulting in counterterrorism, forensic science, and investigations, he also conducts international counterterrorism training, having retired as a Special Agent in Charge and serving as Co-chairman, Investigative Support and Forensic Subgroup, TSWG, developing interagency counterterrorism technology. He is also an op-ed contributor for The Hill. He previously published “Mitigation of Terrorist Effects on Victims’ Motivation” in U.S. Army Counterinsurgency Center Colloquium. To read more of his reports — Click Here Now.

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The Grand Jury and the Inspectors General share a unique independence within the U.S. Government.
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Friday, 15 March 2019 04:01 PM
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