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The following, adapted for this blog post, represents excerpts from my upcoming book,
'We Don't Have to Wait for Elections! -
How to Hold Your Government Accountable on a Daily Basis'
Across the country, now more than ever, we often hear the rallying cry,
"We need to hold them accountable!"
"We need to hold them accountable to the Constitution!"
"We need to hold them accountable to their oath of office!"
When you ask most Americans, including tea party members, 912ers and most grassroots organizations, "How?", you usually hear only 1 answer with an unmistakable sense of frustration.
They each will sadly admit we have to wait every 2 years for an election and maybe, just maybe, if we knock on enough doors, make enough phone calls and raise enough money, then maybe, just maybe, we'll elect the right people, and maybe, just maybe, if enough of them are elected then maybe, just maybe, they'll be able to pass legislation that might, possibly, restore our natural God given rights as protected by the Constitution.
Personally, though, you can't convince me that in the "land of the free" where the founders of this country took incredible personal risk declaring independence from the King and fighting the world's mightiest military - you can't convince me they then created a government where the only way We The People can keep government power in check and provide our "consent of the governed" is by waiting every 2 years for an election?
What if I was to tell you that we the people could operate on an official capacity outside the branches of government and provide our "consent of the governed" on a daily basis?
What if I was to tell you that we the people could reach inside our government and root out corruption with indictments?
What if I was to tell you that even the Supreme Court, as recent as 1992, said, "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?"
What if I was to tell you that one of the most powerful tools We The People can use to check and balance the government is already in the Constitution?
Do you find this hard to believe? I certainly did.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury"
U.S. Constitution, 5th Amendment
Let's define a few terms in very simple language:
PRESENTMENT - A charge the grand jury brings on its own initiative. (More at Black's Law)
INDICTMENT - A charge brought to a grand jury by a prosecutor for approval. (More at Black's Law).
GRAND JURY - A group of citizens (25 by Common Law) that decides if the case before them, either by their own initiative and investigation or by a prosecutor, has sufficient evidence to call for a trial. (More at Black's Law, Magna Carta, Wikipedia).
The Fifth Amendment essentially says that the Grand Jury, which operates in secrecy and is made up of average every-day people, either by its own initiative or by a case brought forth by a prosecutor, either investigates a matter or looks at evidence presented to them and makes a determination as to whether or not there's enough evidence to send the accused to trial.
How does this address the issue of accountability?
When was the last time you heard about a Grand Jury, out of their own initiative, beginning an investigation without being called by a judge or a prosecutor?
Rule 7.2 in the Florida Grand Jury Instructions states, "The law provides that, if a grand juror knows or has reason to believe that an indictable offense triable in this county has been committed, the juror shall declare that fact to the other jurors for investigation. Individually, a juror may receive information but that information shall be reported immediately to the foreperson or the state attorney (or the statewide prosecutor) for investigation if it is of interest to the grand jury or relevant to its investigations."
Notice the instructions don't say that if a juror is made aware of an indictable offense "they may" or "they can" report it. It specifically says, "the juror shall declare that fact to the other jurors...".
This is a big deal!
This confirms that Grand Juries are able, by their own initiative, to investigate wrongdoings by government officials.
So why aren't they? Why aren't they looking into all the activity by the federal government outside the limits placed on them by the Constitution? Why aren't they investigating bribery by the federal government to local governments for special programs paid for by "federal money"? Why aren't they calling out local officials who award family members government contracts?
Why aren't We The People, through the Grand Jury, reaching inside our government and rooting out corruption like the founders intended?
Take a look at both the Florida Grand Jury Handbook and the Florida Grand Jury Instructions and notice how they carefully weave in and out of discussions about "presentments". By the simple fact that we very rarely hear about a Grand Jury investigating government corruption and unconstitutional activities out of their own initiative tells me this is something that's been purposefully buried.
"At common law, the presentment function was at least as important as the indictment; its inclusion in the Constitution shows its significance to the Framers."
Here are a few more very important excerpts from that same Yale Law Journal that talk about how the presentment function has fallen by the way side:
"The history of federal grand jury powers is the story of descent into confusion. In emphasizing the grand jury's function as a shield against government oppression, historians have glossed over its use as a sword. Before the Constitution, the colonies relied heavily on grand juries to perform accusatorial, administrative, and even legislative functions. Early federal grand juries remained spirited and regularly issued presentments. In the twentieth century, however, grand jury law became murkier, particularly with the passage of the Federal Rules of Criminal Procedure. Lawyers and judges now doubt the existence, let alone the extent, of the presentment power."
For all practical purposes, the Federal Rules of Criminal Procedure have abolished the grand jury's presentment power.
The Federal Rules of Criminal Procedure...which took effect in 1946, allegedly codified the existing common law practice respecting grand juries. But the Rules essentially subject the presentment power to the discretion of the court. Rule 6(e)(3), relating to grand jury secrecy, places great discretion in the hands of the judge and the government prosecutor.(52) According to the Rules, the grand jury cannot make any disclosure, including a presentment, without court permission. At common law, no such permission was necessary [emphasis mine] Yet the advisory committee's notes to the rule declare that it "continues the traditional practice of secrecy on the part of members of the grand jury . . ."(53) Rule 7, which governs indictment and information, makes no provision for presentments. The historical notes to the rule state: "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."
Wait a second. What?
They didn't amend the Constitution. Presentments are not illegal. All they did was merely refer to them as "obsolete" in a footnote.
What does the Supreme Court say about the Grand Jury?
In 1992 (notice I didn't reference some obscure year 150+ years ago), Justice Antonin Scalia wrote the majority opinion in US v. Williams. The following represents quotes from this ruling but I've removed all references and citing material so this can be read cleanly and without pause. For the full opinion including all reference material, visit this link.
"Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such "supervisory" judicial authority exists, and that the disclosure rule applied here exceeded the Tenth Circuit's authority."
"[R]ooted in long centuries of Anglo American history," 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.' "
"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.
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."
"The grand jury's functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. "Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury `can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.' "
"The grand jury requires no authorization from its constituting court to initiate an investigation,..."
"...nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day to day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses, and deliberates in total secrecy."
"Even in this setting, however, we have insisted that the grand jury remain "free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it."
"Recognizing this tradition of independence, we have said that the Fifth Amendment's "constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge'. . . ."
"Given the grand jury's operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury's evidence taking process, but we have refused them all, including some more appealing than the one presented today. In Calandra v. United States, supra, a grand jury witness faced questions that were allegedly based upon physical evidence the Government had obtained through a violation of the Fourth Amendment; we rejected the proposal that the exclusionaryrule be extended to grand jury proceedings, because of "the potential injury to the historic role and functions of the grand jury."
"In Costello v. United States, we declined to enforce the hearsay rule in grand jury proceedings, since that "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules."
Grand Juries Need To Stand Up!!
These are the facts:
- The Constitution of the United States exists.
- Before taking office, every elected official swears an Oath to protect and defend the Constitution.
- Government official needs to be held personally liable for every act they perform outside the limits placed on them by the Constitution.
- Our system of government, most notably the judiciary, is supposed to be based on the Common Law.
- The Grand Jury is a tool the founders gave We The People to reach inside government and root out corruption.
- The Grand Jury is not supposed to be controlled by the judiciary.
- The Grand Jury is supposed to be independent.
- The Grand Jury can begin investigations by their own initiative.
- The Supreme Court has already supported all of these facts.
Based on this initial research, there are 2 key action items:
- If you're on a Grand Jury, you need to call your grand jurors together and begin investigating corruption, fraud, abuse and any activity and/or votes that are outside the limits placed on government officials by the US Constitution (start with Article 1 Section 8).
- If you're not on a Grand Jury, you need to file formal complaints on all of the above mentioned criminal activities and send them directly to the Grand Jury foreperson, for their eyes only.
In addition to these key action items, however, I'm pleased to let you know there's a movement afoot, led by the National Liberty Alliance, to resurrect our Grand Juries and take them back from the judiciary.
Why? There are three key areas of the existing statutory/puppet Grand Juries of today that need addressed:
- How are they formed?
- What instructions are they given (verbally and in print)?
- What functions do they perform?
We've already discussed the functions they can and should perform, but we need to start at the beginning of the process as there are many problems with how they're formed and what instructions they're given.
Have you heard the phrase, "A prosecutor can indict a ham sandwich"? Simply stated, Grand Juries today are puppet grand juries as they only act on the whim of the judge or prosecutor. Grand Juries based on Common Law, however, are exactly what the founders intended.