A disingenuous argument is spreading that Special Counsel Robert Mueller chose to impanel a grand jury for his Russia probe, in Washington, D.C., to gain a tactical advantage due to the racial and political composition of the D.C. jury pool.
Alan Dershowitz fleshed out this claim Monday in The Hill, which he has repeated over and over on television for the last few days. Dershowitz's argument is highly misleading — as a practical matter, Mueller's options regarding where to impanel a grand jury were highly limited, and D.C. was the obvious jurisdiction for him to choose.
To hear Dershowitz tell it, Mueller chose to impanel a grand jury in D.C. in order to gain a "tactical litigation advantage" because D.C. jurors are "overwhelmingly Democratic." Dershowitz also suggests that the racial composition of a D.C. jury pool factored into Mueller's decision, without explaining how or why he believes it did.
Dershowitz admits that the political or racial composition of the grand jury doesn't matter, because he believes that grand jurors are "merely 23 chairs, with 23 puppets, who do whatever their puppet-master, the prosecutor, wants them to do." He's wrong on that point, as demonstrated by the refusal of grand juries in Ferguson and elsewhere to return indictments against police officers. But that is not the most significant problem with Dershowitz's argument.
Dershowitz's main argument is that Mueller is looking ahead to a potential jury trial, and a prosecutor would "prefer to have such a trial in D.C. than in Virginia." Dershowitz claims that the existing grand jury located in the D.C. suburbs in the Eastern District of Virginia — which reportedly was investigating former national security adviser Michael Flynn — could have been used by Mueller to investigate all crimes under his mandate.
That claim is almost certainly false. As any experienced criminal lawyer knows, a grand jury indictment will not hold up unless there is proper venue for that indictment where the grand jury is located. In simple terms, there has to be a substantial connection between the crime and the location of the indictment — not only is that a federal rule, but it's in the U.S. Constitution.
You can't indict someone in West Virginia for a crime committed in D.C. or New York, which is why Newt Gingrich's recent tweet suggesting that Mueller could have impaneled the grand jury in West Virginia was absurd.
Flynn worked at the Pentagon, which is located in the Eastern District of Virginia, in the suburbs of D.C. That's why a grand jury in that location was reportedly investigating him. But unless all of the crimes Mueller is investigating have a connection to eastern Virginia, he could not present indictments solely in that jurisdiction.
For that reason, even though Mueller has impaneled a grand jury in D.C., he may need to present evidence obtained in that grand jury investigation to a separate grand jury based in Manhattan if there are crimes that do not have a connection to D.C. but were committed instead at Trump Tower.
Why not pick Manhattan as the location for his grand jury, then? Over 86 percent of voters in Manhattan voted for Hillary Clinton, so it's not because it is a bad jury pool for Mueller.
We don't know for sure, but one reason may be that much of what he's investigating is tied to D.C. Another reason may be that while crimes he is investigating are connected to both Manhattan and D.C., Mueller and his team are based in D.C. Obviously it's easier and less costly to use a grand jury a few minutes away from your office instead of one over 200 miles away.
It is entirely possible that Mueller could have found a way to charge all the crimes he's investigating as a large-scale conspiracy connected in some way to Virginia. But at this stage we have no way of knowing whether he'll be able to do that, and he probably doesn't know either. If Mueller went out of his way to shoehorn events that occurred in D.C. and Manhattan into a single indictment out of Virginia, that would have been more unusual than his decision to impanel a grand jury in D.C.
At this stage, none of us know exactly what Mueller is investigating or what evidence he has. But there are good reasons to believe that many of the crimes he is looking at are connected to D.C. If the grand jury in D.C. ultimately returns an indictment charging a crime for which D.C. does not have venue, the defendant will be able to challenge that indictment in court.
Until then, there is no good reason to question the integrity of Mueller's investigation. Just like the last special counsel, Mueller has chosen to impanel a grand jury in D.C., where he's located. With scant information about the evidence he has or the crimes that he'll ultimately charge, it's irresponsible for Dershowitz to suggest that his decision was motivated by an improper purpose or a desire to gain a tactical advantage.
Renato Mariotti is a former federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney's Office in Chicago and he has prosecuted federal obstruction of justice cases. Follow him on Twitter @renato_mariotti.
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