Right to a grand jury (the fourth branch of government)

By Lt. Colonel Donald Sullivan (Ret)

The Fifth Amendment to the United States Constitution says, in part,

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...”

Although this amendment was originally written to restrict only the federal government, its mandates have today been imposed upon the several States as well by the “incorporation” doctrine of the arguably never properly ratified 14th Amendment. Whether we agree or not, this incorporation can be used in our favor when it comes to the grand jury and other “civil” rights.

The right to a “grand jury” – like most, if not all, of our other rights – has been “cunningly coerced” away from us. It has been lost to (and by) ourselves.

Like a thief in the night, the corporate government administratively “amended” the Constitution, stole our independent grand jury from us and replaced it with a new grand jury completely controlled by the judicial branch.

Whereas in the past the true grand jury was a sovereign body accessible to both the people (for presentments) and the State (for indictments), today only the U. S. Attorney, an AG or a DA may seek an indictment from the grand jury. We must receive permission from a government agent to get a complaint brought before the grand jury. Therefore, in a case where we perceive the State as being in violation of the law, we must ask the State to charge itself with a crime. This I have heard from them: “What? You expect us to investigate ourselves?

The grand juries of today are a mere shadow of what the grand jury is supposed to be. Like the legitimate French king who was kept in a tower and forced to wear a mask so his illegitimate twin brother could act as king, today’s usurpers are hiding the real power of the people behind a lie and presenting that deceit as “king.” Our true power is wasting in the tower of London, so to speak, in a mask, abducted from the hapless American public since shortly after World War II when taken by stealth. The corporate government stole that power of the people having resided in a grand jury from us right under our noses. The true grand jury is a birthright, an independent body not under the control of lying district attorneys and criminal judges in black dresses.

To this day, through our historical ignorance, we allow corporate employees masquerading as legitimate government agents to continue exercising oppression, power and control over us.

We may all one day serve as grand jurors in a federal or State court, in which instance this article intends to educate the reader regarding his true power as granted by the Constitution. That glory still exists in the Fifth Amendment despite its having remained incarcerated so many years by legislative fraud. The U. S. Supreme Court has confirmed and reinforced this power more than once.

The Constitutional power of “we the people” anytime sitting as grand jurors has remained subverted by a deceptive play on words since 1946 when the Federal Rules of Criminal Procedure were enacted. Repeat a lie often enough, and the lie becomes truth. Regarding the Fifth Amendment, a grand jury’s power to return “presentments” at its own initiative without reliance upon any U. S. Attorney, Attorney General or District Attorney to concur in such criminal charges need only reassert itself.

As nothing more than a small sleight of pen trick back in 1946 hid our power, just a few words can take it back. For those who are unfamiliar with the issue at hand, a proper overview is first necessary. So let me reintroduce that history, then you will grasp what went wrong and begin to understand how we go about correcting it.

Here, then, is the true history of a federal grand jury’s power.

Quoting from an article in the Creighton Law Review, Vol. 33, No. 4, 1999-2000, 821, “If It’s Not A Runaway, It’s Not A Real Grand Jury,” by Roger Roots, J. D:

“In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence. These fundamental powers allowed grand juries to serve a vital function of oversight upon the government. The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.”

An article appearing in American Juror, newsletter of the American Jury Institute and the Fully Informed Jury Association, cites famed American jurist Joseph Story:

“An indictment is a written accusation of an offence preferred to, and presented, upon oath, as true, by a grand jury, at the suit of the government. An indictment is framed by the officers of the government, and laid before the grand jury. Presentments, on the other hand, are the result of a jury’s independent action.

“A presentment, properly speaking, is an accusation, made by a grand jury of its own mere motion, of an offence upon its own observation and knowledge, or upon evidence before it, and without any bill of indictment laid before it at the suit of the government. Upon a presentment, the proper officer of the court must frame an indictment, before the party accused can be put to answer it.”

Back to the Creighton Law Review:

“A ‘runaway’ grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s ‘runaway’ grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact ‘runaways,’ according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.”

So it’s clear that the Constitution gives the grand jury power to instigate criminal charges, especially when its focus targets government oversight.

But something strange happened on our way from constitutional government to the present. A lie enacted by the legislative branch has eroded that power. The Fifth Amendment to the Constitution contains those exact same words quoted above, but, should you sit on a grand jury returning a “presentment” today, the prosecutor must sign it or the judge probably won’t allow those criminal charges you’ve brought to the court’s attention to stand, which sweeps them away. We can see that this is based on a legislative lie of epic proportions.

Mr. Roots weighs in again:

“In 1946, the Federal Rules of Criminal Procedure were adopted, codifying what had previously been a vastly divergent set of common law procedural rules and regional customs. In general, an effort was made to conform the rules to the contemporary state of federal criminal practice. In the area of federal grand jury practice, however, a remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely govern federal grand juries, denied future generations of what had been the well-recognized powers of common law grand juries: powers of unrestrained investigation and of independent declaration of findings. The committee that drafted the Federal Rules of Criminal Procedure provided no outlet for any document other than a prosecutor-signed indictment. In so doing, the drafters at least tacitly, if not affirmatively, opted to ignore explicit constitutional language.”

Quoting Rule 7 of the Federal Rules of Criminal Procedure (FRCP):

“An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment.”

No mention of “presentments” can be found in Rule 7. But they are mentioned in Note 4 of the Advisory Committee Notes on the Rules:

“Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts.”

The American Juror published the following commentary with regards to Note 4:

“[W]hile the writers of the federal rules made provisions for indictments, they made none for presentments. This was no oversight. According to Professor Lester B. Orfield, a member of the Advisory Committee on Rules of Criminal Procedure, the drafters of Federal Rules of Criminal Procedure Rule 6 decided the term presentment should not be used, even though it appears in the Constitution. Orfield states [22 F.R.D. 343, 346]:

“ ‘There was an annotation by the reporter on the term presentment as used in the Fifth Amendment. It was his conclusion that the term should not be used in the new rules of criminal procedure. Retention might encourage the use of the run-away grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney. It has become the practice for the United States Attorney to attend grand jury hearings, hence the use of presentments have been abandoned.’ ”

That’s a fascinating remark: “Retention might encourage the grand jury [to] act from their own knowledge or observation.” God forbid! They have the nerve to put on the record that they intended to usurp our Constitutional power, a right the founding fathers in their incredible wisdom intended for us to keep: vigilance against tyrannical government.

Looking for a spin term that would cast aspersions on this powerful right, the one they adopted was “runaway grand jury,” which simply indicates a Constitutionally mandated grand jury, aware of and legally exercising its power to closely monitor the federal beast, as in checks and balances.

Unable to insert that bald-faced lie into the Constitution, they created their statute and then repeated it. Scholars went on to echo them; and today, as it stands, they’ve lied the grand jury effectively into the role of a submissive puppet serving the U. S. Attorney, States’ Attorney Generals and local DAs.

The American Juror publication gives a very relevant commentary:

“Of course, no statute or rule can alter the provisions of the Constitution, since it is the supreme law of the land. But that didn’t prevent the federal courts from publishing a body of case law affirming the fallacy that presentments were abolished. A particularly egregious example:

“ ‘A rule that would permit anyone to communicate with a grand jury without the supervision or screening of the prosecutor or the court would compromise, if not utterly subvert, both of the historic functions of the grand jury, for it would facilitate the pursuit of vendettas and the gratification of private malice. A rule that would open the grand jury to the public without judicial or prosecutorial intervention is an invitation to anyone interested in trying to persuade a majority of the grand jury, by hook or by crook, to conduct investigations that a prosecutor has determined to be inappropriate or unavailing.’ ”

What is the result? That prosecutor may simply declare investigating seditious acts of government officials “inappropriate” or “unavailing,” the judge then dismissing any grand jurors pursuing such investigations. Consequently, corrupt government officials see few natural enemies and go about their seditious business unimpeded.

By the way, they made a rule to take care of runaways, too, in 1946; Rule 6 (g):

“At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the juror excused.” Now judges can throw anyone off a grand jury, or even dis-impanel a grand jury entirely, merely for exercising its discretion.

Most of the discussion about Note 4 to Rule 7 of the FRCP takes for granted that the common law use of “presentments” (as codified in the Fifth Amendment) became “illegal” in 1946 through this act. That is entirely false. Note 4 does not forbid the further use of presentments, although they chose the words carefully to make it appear that’s what the legislative branch intended.

The key word in Note 4, “obsolete,” just means “outmoded” – “not in use anymore.” But it does not indicate “abolished” or “illegal.” And therein lies their big lie. The legislature knew it could not directly overrule the Constitution, especially with something so clearly worded as the Fifth Amendment, which grants to the people this power of long and noble purpose in criminal jurisprudence. But those members of the federal beast’s legislative branch sought more power to protect themselves from oversight by “we the people” in their vampire-like thirst for more governmental control, inserting this insidious Note 4 and hoping scholars and judges would play along with their ruse; or, in the alternative, that it would at least appear legally viable.

Let’s listen to some authoritative legal resources discussing Note 4.

Susan Brenner, The Voice Of The Community: A Case For Grand Jury Independence:

“Finally, federal grand juries’ subservience to prosecutors was exacerbated when the federal system eliminated the use of presentments, which allowed a grand jury to bring charges on its own initiative. Now, federal grand jurors cannot return charges in the form of an indictment without a prosecutor’s consent. Elimination of the presentment demonstrates the historical trend towards elimination of proactive features in the grand jury system.”

Did Brenner fall for the lie, or cleverly further it by stating, “[T]he federal system eliminated the use of presentments”? The federal system did no such thing. Note 4 simply said the use of presentments was “obsolete.” First of all, Note 4 is not a law in itself. It is a Note to a law. This law as written has nothing to say on presentments, whereas the Constitution does. Then the FRCP are enacted and make no mention of presentments, nor could they legally ban presentments. No administrative enactment regarding procedure can overthrow the Constitution.

Presentments fell into disuse, or became obsolete, when grand jurors neglected their power and let them grow ever more rare; so that, in 1946, the legislative branch seized upon the moment and made this bothersome oversight of its actions appear to vanish by merely waving its magic wand over the Constitution.

Mr. Root got it wrong in the Creighton Law Review as well:

“Before the Federal Rules of Criminal Procedure, which made independently- acting grand juries illegal for all practical purposes, grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.”

The FRCP did not make it “illegal for all practical purposes.” That’s patently false. I don’t know if Mr. Root, and/or Susan Brenner, were acting as the magician’s assistants, but otherwise how could these educated scholars demonstrate themselves so incredibly ignorant of Constitutional law? If enough people repeat that lie, does that make it the truth?

Luckily, we have it on good authority, the Supreme Court, that the lie has no legal effect. Justice Powell, in U. S. v. Calandra, 414 U.S. 338, 343 (1974), stated:

“The institution of the grand jury is deeply rooted in Anglo-American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action. In this country, the Founders thought the grand jury so essential to basic liberties that they provided in the Fifth Amendment that federal prosecution for serious crimes can only be instituted by ‘a presentment or indictment of a Grand Jury.’ Cf. Costello v. U. S., 350 U.S. 359, 361-362 (1956).”

Antonin Scalia effectively codified this unique independent power into the hands of all citizens sitting as federal grand jurors. In discussing that power and unique independence granted to the grand jury, the United States Supreme Court, in U. S. v. Williams, 504 U.S. 36 at 48 (1992), Justice Scalia, delivering the majority opinion of the court, laid down the law of the land:

“‘[R]ooted in long centuries of Anglo- American history, Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ‘is a constitutional fixture in its own right.’ [T]he grand jury is an institution separate from the courts, over whose functioning the courts do not preside.” U. S. v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70 (1977).

I submit to you that this passage sets the stage for a revolutionary new context necessary and Constitutionally mandated to “we the people,” the fourth branch of the government of the United States. For, besides the legislative, executive, and judicial branches, there is a fourth branch, the grand jury, and “we the people,” when sitting as grand jurors, are, as Scalia quoted in U. S. v. Williams, “ a constitutional fixture in [our] own right.” That is exactly what the grand jury is, and has been from the start.

Finally, to seal the deal, Scalia hammered the point home:

“In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. U. S., 361 U. S. 212, 218 (1960); Hale v. Henkel, 201 U. S. 43, 61 (1906); G. Edwards, The Grand Jury, p. 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See U. S. v. Calandra, 414 U.S. 338, 343 (1974); FRCP. 6(a). [504 U.S. 36, 48]”

Thus, the Constitution of the United States, as interpreted by the Supreme Court, gives rise to a fourth branch of government, the grand jury. We the people have been charged with oversight of the government in our roles as grand jurors. Yet, we have lost this right and the power it grants us. We wring our hands and lament, “What can we do? There is no hope,” when the answer lies right before our eyes.

At this critical time in American history, we must, for the protection of our constitutional republic, take back our power and act as powerful as the other three branches of government.

The law is on our side. We the people have the right and power under the Fifth Amendment of the Constitution to charge this government with crimes by returning presentments – regardless of whether the U. S. Attorneys or the federal judges agree with us. As the U. S. Supreme Court has so brilliantly stated, we are the “buffer between the Government and the people.”

We don’t have to ask the other three government branches’ permission to rein in the government – such will never come anyway – but need merely to exercise our “lost right” of the people’s grand jury, and then take back our government from its corporate facades and those employees, a.k.a. agents, who do their bidding.

All that’s wanting is persistence and determination. The Founders ventured their lives, fortunes and sacred honor to win freedom for themselves and their posterity. Should we risk any less?

The First Freedom