by Leo C. Donofrio, J.D.
January 22, 2009
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About the Author
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Mr. Leo Donofrio is a semi-retired New
Jersey attorney who brought a case in 2008 against the New Jersey secretary
of state for allowing threelegally unqualifiedpresidential candidates to be placed on the
general election ballot in that state. This case was reviewed and dismissed
by the Supreme Court of New Jersey, and then was reviewed by all nine
justices of the U.S. Supreme Court in aprivate
closed-doorsession. At least five of the nine U.S. Supreme Court
justices felt that this case should not be heard in a public session of the
Court.
In addition to being a prominent legal
scholar and essayist, Mr. Donofrio is also a nationally known chess
champion, poker champion and musician.
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All of us may one day
serve as grand jurors in federal court, and I hope this article will educate
the reader to his/her true power as granted by the Constitution. For that
power, despite having been hidden for many years behind the veil of a
legislative fraud, still exists in all of its glory in the 5th Amendment to the
Constitution. The US Supreme Court has confirmed and reinforced that power.
So please, copy this
report and paste it far and wide. It is not spin. It is not false. It is not
for sale, it is not copyrighted by me, so paste and quote it freely. This
report is the truth and we need truth, now, more than ever.
The Constitutional power
of "we the people" sitting as grand jurors has been subverted by a
deceptive play on words since 1946 when the Federal Rules of Criminal Procedure
were enacted. Regardless, the power I am going to explain to you still exists
in the Constitution, and has been upheld by the United States Supreme Court
despite the intention of the legislature and other legal scholars to make our
power disappear with a cheap magic trick.
Repeat a lie with force
and repetition and the lie becomes known as truth. In the case of the 5th
Amendment to the Constitution, the power of the grand jury, to return
"presentments" on its own proactive initiation, without reliance upon
a US Attorney to concur in such criminal charges, has been usurped by an
insidious play on words.
Most of this article is
going to quote other scholars, judges and legislators as I piece together a
brief but thorough history of the federal grand jury for your review. But the
punch line is my personal contribution to the cause:
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"Investigating seditious acts of government officials can be deemed
inappropriate or unavailing by the prosecutor, or the judge can dismiss the
grand jurors pursuing such investigations. Consequently, corrupt government
officials have few natural enemies and go about their seditious business
unimpeded."
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UNITED STATES CITIZENS
SITTING AS FEDERAL GRAND JURORS ARE THE FOURTH BRANCH OF THE UNITED STATES
GOVERNMENT.
My input into this vital
fight is no more than the analysis of a few carefully used words. It only took
a small sleight of pen back in 1946 to hide our power, and it won't take more
than a few words to take that power back. But a proper overview is necessary
for most of you who are unfamiliar with the issue at hand. So let me provide
you with some history and then we'll see what went wrong and how to correct it.
HISTORY OF FEDERAL GRAND JURY POWER
"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."
The 5th Amendment:
"No person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury."
An article appearing in American Juror, the newsletter of the American Jury Institute and the Fully
Informed Jury Association, citing the famed American jurist, Joseph Story,
explained :
"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 intended to give the grand jury power to instigate criminal
charges, and this was especially true when it came to government oversight. But
something strange happened on the way to the present. That power was eroded by
a lie enacted by the legislative branch. The 5th Amendment to the Constitution
still contains the same words quoted above, but if you sit on a grand jury and
return a "presentment" today, the prosecutor must sign it or it
probably won't be allowed to stand by the judge and the criminal charges you
have brought to the court's attention will be swept away. And the reason for
this can be found in 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.[86] In general, an effort was made to conform the rules to the
contemporary state of federal criminal practice.[87] 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."[88]"
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 theAdvisory Committee Notes on the Rules:
"4. 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
statement: "Retention might encourage the grand jury [to] act from their
own knowledge or observation." God forbid, right America? The nerve of
these people. They have the nerve to put on the record that they intended to
usurp our Constitutional power, power that was intended by the founding fathers,
in their incredible wisdom, to provide us with oversight over tyrannical
government.
And so they needed a
spin term to cast aspersions on that power. The term they chose was,
"runaway grand jury," which is nothing more than a Constitutionally
mandated grand jury, aware of their power, and legally exercising that power to
hold the federal beast in check, as in "checks and balances."
The lie couldn't be
inserted into the Constitution, so they put it in a statute and then repeated
it. And scholars went on to repeat it, and today, as it stands, the grand jury
has effectively been lied into the role of submissive puppet of the US
Attorney.
The American Juror publication included 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?
Investigating seditious acts of government officials can be deemed
inappropriate or unavailing by the prosecutor, or the judge can dismiss the
grand jurors pursuing such investigations. Consequently, corrupt government
officials have 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.
Now let me add my two
cents to this argument:
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 5th Amendment) was made
"illegal" in 1946 by this act. Nothing could be more false. Note 4
does not contain language that makes the use of presentments
"illegal," although it had chosen its words carefully to make it
appear as if that is what the legislative branch intended. But let's look at Note
4 again:
"4. 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 key word is,
"obsolete." Obsolete means "outmoded,", or "not in use
anymore", but it does not mean "abolished" or
"illegal." And therein lies the big lie. The legislature knew it
could not directly overrule the Constitution, especially with something so
clearly worded as the 5th Amendment, which grants a power to the people which
has a long and noble purpose in criminal jurisprudence. But the federal beast
legislative branch sought more power to protect themselves from the oversight
of "we the people," and in its vampire like thirst for more governmental
control, it inserted this insidious Note 4 in the hope that scholars and judges
would play along with their ruse, or in the alternative, their ruse would
appear to be legally viable.
Let's look at some
authoritative legal resources which discuss 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. (N35) Now, federal
grand jurors cannot return charges in the form of an indictment without a
prosecutor's consent. (N36) 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 did she cleverly further it when she said, "[T]he federal system
eliminated the use of presentments?" The federal system did no such thing.
Note 4 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, and the law as written,
does not have anything to say about presentments. You see the leap Brenner has
made? The Constitution provides for "presentments", then the FRCP are
enacted and the Rules therein do not mention presentments, nor do they ban
presentments, and if they did, such a ban would be unconstitutional, since an
administrative enactment regarding procedure can not overrule the Constitution.
Regardless, it's
irrelevant, since the FRCP does not mention "presentments." Note 4
simply states that "presentments" allowed for in the 5th Amendment of
the Constitution have become "obsolete", or outmoded, which is not to
say that they were "eliminated." Shame on you Susan Brenner. You know
darn well that the Constitution can only be changed by an official Amendment to
it. Nothing can be "eliminated" from the Constitution by an
administrative note.
The use of presentments
had become obsolete because the grand jurors were not aware of their power. So
the use of "presentments" became more and more rare, and then in 1946
the legislative branch seized upon the moment to make this power disappear by
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
assistant, but I can't imagine how these educated scholars could be so
incredibly ignorant of basic Constitutional law. Give me a break.
But if enough people
repeat the lie, the lie appears to be the truth.
But we have it on good
authority, the Supreme Court, that the lie has no legal effect.
Justice Powell, in United States v. Calandra, 414
U.S. 338, 343 (1974),
stated:
"The institution of the grand jury is deeply rooted in Anglo-American
history. [n3] In England, the grand jury [p343] 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. United States, 350 U.S. 359,
361-362 (1956). The grand jury's historic functions survive to this day. Its
responsibilities continue to include both the determination whether there is
probable cause to believe a crime has been committed and the protection of
citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S.
665, 686-687 (1972)."
The Note 4 lie is smashed on the altar of the U.S. Supreme Court,
"The grand jury's historic functions survive to this day." Take that
Note 4!
Antonin Scalia
effectively codified the unique independent power of the Fourth Branch 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 United States v.
Williams, 504 U.S. 36 at 48 (1992), Justice Scalia, delivering the 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.'"
United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica,
159 U.S. App. D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert.
denied, 434 U.S. 825 (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. Besides, the Legislative, Executive, and
Judicial branches, I submit that there is a fourth branch, THE GRAND JURY, and
"we the people? when sitting as grand jurors, are, as Scalia quoted in US
v. Williams, " a constitutional fixture in its own right." Yes, darn
it. That is exactly what the grand jury is, and what it was always intended to
be.
Scalia also stated, that
"the grand jury is an institution separate from the courts, over whose
functioning the courts do not preside." Id.
And 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. United States, 361 U.S. 212, 218 (1960); Hale v.
Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 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 United States v. Calandra, 414 U.S. 338, 343 (1974);
Fed.Rule Crim.Proc. 6(a). [504 U.S. 36, 48] "
This miraculous quote
says it all, "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." 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.
And at this critical
time in American history, we must, for the protection of our constitutional
republic, take back our power and start acting as powerful as the other
branches of government.
The law is on our side.
So please spread this knowledge as far and wide as you can. We the people have
the right and power under the 5th Amendment of the Constitution to charge this
government with crimes by returning presentments regardless of whether the US
Attorneys or the federal judges agree with us. As the Supreme Court has so
brilliantly stated, we are the "buffer between the Government and the
people."
Take the reins America.
Pass it on. The Fourth Branch is alive and kicking.