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What A Grand Jury Means For The Russia Investigation


We're going to dig further into what this grand jury means with Benjamin Wittes. He's editor-in-chief of the Lawfare blog. And he has been a vocal critic of President Trump. Ben, thanks for being back on the program.

BENJAMIN WITTES: Thanks for having me.

MARTIN: How do you read this move by special counsel Robert Mueller, calling for this grand jury? Does this mean the investigation is expanding? Or is this just a pro forma tool that is used?

WITTES: Well, so it is completely unsurprising. Mueller is running a complex investigation which has significant criminal elements. And when you run a complex, white-collar investigation, you really can't do it without a grand jury in the long run because the grand jury, which is a panel composed of up to 23 people whose job it is to collect evidence and decide whether or not federal prosecutors should bring indictments or - in particular cases, the grand jury is the instrument by which you can compel people's cooperation with an investigation. That is, compel them to testify or compel them to produce documentary material.

And so if Mueller is serious about this broad-based investigation that he has of collusion between officials associated with the Trump campaign and the Russians and associated activity, he would have to have a grand jury at some point. So it's not really surprising that he's done it, though it is dramatic.

MARTIN: The president's attorney, Jay Sekulow, was asked about this on Fox. Here's what he had to say.


JAY SEKULOW: With respect to the impaneling of the grand jury, we have no reason to believe that the president's under investigation here.

MARTIN: And just to be clear, we don't actually know otherwise, correct? Appointing the grand jury, calling for the grand jury is no indication that the president is under investigation.

WITTES: So I think, you know, the president and the people around him have made a sort of - have a peculiar fixation with the phraseology under investigation. And they love saying that the president is not under investigation. And the president himself in his interactions with Jim Comey was - you know, had a sort of obsession with this idea that he wasn't under investigation.

MARTIN: Although James Comey did indicate that the president wasn't under investigation.

WITTES: Correct. And I think, you know, to say - first of all, to say that somebody is not personally under investigation is not high praise. And when you're investigating a, you know, complicated tableau that involves a lot of people, you generally don't designate the targets of the investigation until quite late in the process when you have enough information to indict somebody or to seek an indictment. And so...

MARTIN: So you're saying you just don't know at this point.

WITTES: Well, what I would say is the organizations that Donald Trump led are certainly the subjects of a major investigation. And Donald Trump's personal conduct, at least with respect to the - his interactions with his FBI director are certainly the subject of an investigation.

And if what Mr. Sekulow means by that comment is that the president has not been formally designated as a target of the investigation, that's undoubtedly true at this point. I'm just not sure how significant a fact that is.

MARTIN: I want to draw attention to a letter you wrote, an open letter, to - addressed to Vice President Mike Pence that - you coauthored this. And it was urging him to prepare for office in a post-Trump era. The supposition there being that the president would be found guilty of something that would - or some circumstance would lead him to have to leave office.

You're a lawyer. You operate within the frameworks of the legal questions here. Are you jumping the gun? Are you getting ahead of yourself and not letting this process play out?

WITTES: So number one, I'm not a lawyer, actually.

MARTIN: I stand corrected.

WITTES: I'm a sort of fake lawyer.

MARTIN: (Laughter).

WITTES: But that said, I don't think I'm jumping the gun. My point is that - is not that - and this is a piece I wrote with my colleague Susan Hennessey. And our point is not that this is going to end in Trump's removal from office.

Our point is simply that if you are the vice president, you have to be considering that possibility at this point. And you have to establish yourself as an independent leader who's capable of picking up the pieces after this.

MARTIN: Benjamin Wittes is editor-in-chief of Lawfare blog. He is not a lawyer, for the record. He is also a senior fellow at the Brookings Institution. Thanks so much for joining us this morning.

WITTES: Thanks for having me.