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What are the basic underpinnings of a federal grand jury? In the excerpt from the National Constitution Centers Interactive Constitution, Paul Cassell and Kate Stith lookat their origin as related to the Fifth Amendment.

The first part of the Fifth Amendment reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger

Cassell, a University of Utah law professor, and Stith, from the Yale Law School, explained the presence of Grand Juries in the Constitution, in a common interpretation of the Fifth Amendment:

The first of the criminal procedure clauses requires that felony offenses infederal courtbe charged by grand jury indictment. (A grand jury is a panel of citizens that hears evidence that the prosecutor has against the accused, and decides if an indictment, or formal criminal charges, should be filed against them.)

This is one of only a few provisions of the Bill of Rights that the Supreme Court has not held to apply to the states through the Due Process Clause of the Fourteenth Amendment (the others being the Third Amendments protection against quartering of soldiers, the Sixth Amendments requirement of trial in the district where the crime was committed, the Seventh Amendments requirement of jury trial in certain civil cases, and possibly the Eighth Amendments prohibition of excessive fines).

That the Court has been reluctant to apply the grand jury requirement to the states is unsurprising. While the origins of the grand jury are ancientan ancestor of the modern grand jury was included in the Magna Cartatoday, the United States is the only country in the world that uses grand juries. In addition to the federal government, about half the states provide for grand juriesthough in many of these there exist other ways of filing formal charges, such as a prosecutorial information followed by an adversarial but a relatively informal preliminary hearing before a judge (to make sure there is at least probable cause for the charge, the same standard of proof that a grand jury is told to apply). As early as 1884, the Supreme Court held that the grand jury is not a fundamental requirement of due process, and Justice Holmes lone dissent from that judgment has been joined by only one Justice (Douglas) in the intervening years.

Recent scholarship has upset the previous understanding that the grand jury was from its inception venerated because it was not only a sword (accusing individuals of crimes) but also a shield (against oppressive or arbitrary authority). In its early incarnation in England, the grand jury was fundamentally an instrument of the crown, obliging unpaid citizens to help enforce the Kings law. Over the centuries, the idea of a citizen check on royal prerogative became more valued. By the time of the framing of our Constitution, both the grand jury (from the French for large, in sizetoday grand juries are often composed of 24 citizens), and the petit jury (from the French for smalltoday criminal trial juries may be composed of as few as six citizens) were understood, in both Britain and the colonies, to be important bulwarks of freedom from tyranny.

Few in the modern era would espouse such a view. The former Chief Judge of the New York Court of Appeals (that states highest court) famously remarked in recent years that because prosecutors agents of the executive branchcontrol what information a grand jury hears, any grand jury today would, if requested, indict a ham sandwich. While this is a useful exaggerationthe Supreme Court has held that federal grand juries need not adhere to trial rules of evidence, or be told of evidence exculpating the defendantfew prosecutors, fortunately, are interested in indicting ham sandwiches! Rather, the greatest advantage grand juries now provide (at least in federal courts, which are not as overburdened as state courts) is allowing the prosecutor to use the grand jury as a pre-trial focus group, learning which evidence or witnesses are especially convincing, or unconvincing.

At least in federal court, grand juries are here to stay. The institution is written into the Fifth Amendment too clearly to be interpreted away. Moreover, neither pro-law enforcement forces (for obvious reasons) nor allies of those accused (because occasionally grand juries do refuse to indictin the legal parlance, returning a no true bill) have reason to urge their abolition through amendment of the Constitution.

You can read more from Cassell and Stith on the Fifth Amendment, and matters of debate from different perspectives, at our Interactive Constitution at: goo.gl/dsDFKb

Filed Under: Fifth Amendment

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Interactive Constitution: Grand Juries and the Fifth Amendment - Constitution Daily (blog)

Special counsel Robert Mueller (L) arrives at the U.S. Capitol for closed meeting with members of the Senate Judiciary Committee June 21, 2017 in Washington, DC. Alex Wong Getty Images

Washington is all abuzz that Special Counsel Robert Mueller has empaneled a grand jury in furtherance of his investigation into whether or not Donald Trump's campaign colluded with Russia. In spite of the inevitable speculation this creates, its worth remembering that a grand jury is a powerful investigative tool, but not a criminal charge. So what is the significance of a grand jury convening?

A grand jury has the power to subpoena both witnesses and documents, such as bank records and phone records. Refusal to comply with a subpoena, which has the force of a court order, without a legal basis creates the risk of the subpoena recipient being held in contempt of court and subject to criminal or civil penalties.

Legal privileges, such as the Fifth Amendment privilege against self-incrimination, are a basis for a witness to refuse to testify. The only way to get around a legally applicable privilege would be to seek an order of immunity, which would protect the witness from criminal exposure and therefore render the Fifth Amendment inapplicable. Perhaps the most famous immunized witness in past independent counsel investigations is Monica Lewinsky; its easy to forget that former national security advisor Michael Flynns lawyer offered his testimony to the Senate Intelligence Committee if he received immunity, where anything said could not be used against him in a criminal proceeding. The Committee, perhaps anticipating a prosecutors eventual interest in Flynn, declined.

Moreover, certain evidence, such asyes, Mr. Presidenttax returns, are considered more private than others, and cannot be obtained via subpoena. Rather, Mueller would need to seek an order from a judge to obtain Trumps tax returns, a wiretap, or a pen register, for instance.

Unlike Congressional hearings, in which sworn testimony is public, grand jury investigations are secret by law. This secrecy rule is demonstrated by the fact that Muellers grand jury has apparently been working for several weeks, but was only reported in the media yesterday. Prosecutors, law enforcement, and grand jury members themselves are barred from discussing grand jury proceedings. The reasons for this are twofold: First, publicity can cripple an ongoing covert investigation; second, grand jury investigations are secret to protect subjects of an investigation who may or may not ultimately be charged.

Grand jury witnesses, however, are not subject to the secrecy rules. So any legal reports from the grand jury room will come from the witnesses.

Grand juries, like Congress, can issue subpoenas. Unlike Congress, they can vote to criminally indict the subjects of their investigations. The purpose of empaneling a grand jury is to gather and assess the weight of the evidence. It does not mean that there exists enough evidence to amount to proof beyond a reasonable doubt, which is the standard for a conviction, or probable cause, which is the standard the grand jury must find in order to vote to indict. Given the grand jury secrecy rules described above, there is no way for the public to know with certainty how much evidence Mueller has amassed, or its value in a criminal case. So the smart money wont bet on criminal charges by the mere fact of empanelment alone.

In summary, empaneling a grand jury is consistent with Muellers reputation as a lawyer and investigator: a meticulous and thorough officer of the court who is committed to accuracy and the rule of law. But the grand jurys existence doesnt amount to a criminal charge, and it definitely doesnt equate a criminal conviction. As were whipsawed by Washington, its worth taking a page from Muellers book, and following the evidence where it leads.

Juliet S. Sorensen is a clinical associate professor of law at Northwestern Pritzker School of Law. She is the co-author of Public Corruption and the Law: Cases and Materials (West Academic 2017).

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Why Robert Mueller's Grand Jury Isn't Really a Big Deal - Fortune

Xconomy New York

After days of deliberation, a New York jury Friday afternoon found Martin Shkreli guilty of securities fraud.

According to a report from CNBC, the jury in the civil case said that Shkreli is guilty on three of eight counts, two of which are securities fraud and the other conspiracy to commit securities fraud. Shkreli, according to the CNBC report, could face up to 20 years in prison upon his sentencing. Shkreli was charged with conspiracy for bilking investors in his New York-based hedge funds, MSMB Capital Management and MSMB Healthcare, and looting his own biotech firm, Retrophin (NASDAQ: RTRX), to cover investments gone wrong at MSMB.

Those actions took place from 2009 to 2014, according to the government. Shkreli left Retrophin in September 2014, and the company filed suit against him soon after. Many of those allegations lined up with the charges filed by the Securities and Exchange Commission against Shkreli and his lawyer, Evan Greebel, in late 2015.

By then, Shkreli was running a new company, Turing Pharmaceuticals, and had gained worldwide notoriety as the pharma bro for raising the price of pyrimethamine (Daraprim), an off-patent drug often used by people with HIV to ward off parasitic infections, from $13.50 to $750 a pill. Shkreli compounded the backlash by taunting his critics and showboating on social media.

Shkreli left Turing after his arrest. He also got the boot from KaloBios Pharmaceuticals (NASDAQ: KBIO), a Bay Area biotech that Shkreli and allies had grabbed in a hostile takeover. Under Shkreli, KaloBios had designs to buy a drug for Chagas disease, which is endemic to Latin America, and raise its prices to levels comparable to hepatitis C drugsthat is, in the neighborhood of $80,000 a year.

At a Congressional hearing on drug pricing in early 2016, Shkreli pleaded the fifth amendment, invoking his Constitutional right not to testify. Afterwards, he insulted the committee members on Twitter.

Shkrelis abrasive personality factored into his trial, as well. After calling the prosecution junior varsity in comments to reporters, and taking to Twitter under an alias (he had been permanently banned under his own name for harassing a reporter), the federal judge presiding over the case issued a gag order on Shkreli.

Before Shkreli, Gilead Sciences (NASDAQ: GILD) and its hepatitis C drugs were the focal point for industry critics, but his notoriety seemed to galvanize public opinion against high drug prices. Shkrelis Turing and other pharma price-gougers, such as Valeant Pharmaceuticals (NYSE: VRX) and Mylan (NASDAQ: MYL), maker of the Epi-Pen anti-allergy injection, took turns in the shame spotlight. When President-elect Trump said in January that drug companies were getting away with murder, the die seemed cast. Washington was prepared to take on the thorny problem of drug pricing, the industrys lobbying muscle be damned.

It hasnt happened. A draft of a presidential executive order on drug pricing that has circulated this summer seems to benefit drug companies, not rein them in.

There is no word yet when a final order is due, or if one is even coming. But Eli Lilly (NYSE: LLY) CEO David Ricks said last week on a conference call that he expects one in the second half of 2017. In the wake of the Republicans failed effort to repeal the Affordable Care Act, a.k.a. Obamacare, Democrats have plugged their own agenda, including drug-price controls. Sen. Bernie Sanders (I-VT) unveiled his own plan this week.

Alex Lash is Xconomy's National Biotech Editor. He is based in San Francisco.

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Report: Martin Shkreli Faces Prison Term After Fraud Conviction - Xconomy

Newspaper Yeni Sz, closely aligned to the government, made the outlandish claim on the front page of its daily newspaper.

Carrying the provocative headline "Turkey can occupy Europe within 3 days, the move is the latest in a political spat between Ankara and Berlin.

Turkey has been vying to join the EU for more than a decade, with official negotiants to become a member dragging into their 12th year.

President Recep Tayyip Erdogan attempted to use the migrant crisis as a bargaining chip, striking a deal with Brussels over the crisis in exchange for political sweeteners, which included kick-starting their membership bid.

GETTY

But relations have turned sour with the EU, in particular Germany, and the two countries have been engaged in a public spat over the past few months.

The papers absurd claims appear to be a no more than a childish dig at Berlin, as it is a feat unlikely to be achieved.

Despite the outlandish statement, the paper attempts to back up its declaration by building their theory on a thesis of the American political scientist George Friedman, founder of the geopolitics institute Stratfor.

GETTY

The paper said: "Friedman said the Turks could defeat Germany in one afternoon and France in one hour, if they have the courage to fight.

If you believe the international research institute Gallup, that asked people if they would fight for their country, then the Europeans have already taken out the white flags in the event of a war.

"Germany is abandoned by its citizens. If we start in the morning, we can have our evening prayer in Bellevue Castle.

Getty Images

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A police officer talks with the soldiers involved in the coup attempt after they surrendered

The Turks could defeat Germany in one afternoon and France in one hour

Yeni Sz

The paper references a two-year-old survey which reportedly gaged how likely citizens were to fight for their country.

They pointed towards the results which said 18 per cent of Germans would fight for their country, compared to 29 per cent of the French and 27 per cent of the British.

GETTY

The barmy jingoism is not far off statements Mr Erdogan himself has made.

In April he described Europe as a "centre of national socialism.

That same month he called the EU a continent that is rotting in every which way.

GETTY

And he also made reference to going to war with the EU, saying in another interview: "If you continue to behave like this, not a single European will be able to securely take a step on a road anywhere in the world by tomorrow.

The bitter row between Germany and Turkey has seen relations steadily deteriorate.

Recently Berlin issued new travel warnings for tourists visiting the country, and foreign minister Sigmar Gabriel said he could no longer guarantee investment in Turkey following accusations made by Mr Erdogan.

The president accused German companies of colluding with the man he views as his political enemy - and who he suspects was behind the failed coup last year - Fethullah Glen.

And in a painful move for Ankara, Mr Gabriel added he would discuss with other EU leaders the prospect of reviewing pre-accession funds being offered.

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'Germany in three days and France in one hour' Shock threat to EU from Erdogan backers - Express.co.uk

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How Erdogan's Identity Project is Shaping Turkey's Schools - World Politics Review