MESSAGE
| DATE | 2015-12-27 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout-NYLXS] Federal Grand Jury - cont
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he Federal Grand Jury is the 4th Branch of Government
by Leo C. Donofrio, J.D.
January 22, 2009
About the Author
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
three legally unqualified presidential 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 a private closed-door
session. 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.
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:
"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."
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
I want to draw your attention to a law review article, 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."
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 the Advisory 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.
--
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
http://www.mrbrklyn.com
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
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http://www.brooklyn-living.com
Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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