The Emoluments Clause, Bribery, and President Trump

Like a previously unknown contestant on “The Apprentice,” the Emoluments Clause has been catapulted to stardom by Donald Trump. There has probably been more written about this obscure section of the Constitution in the past few weeks than in its entire previous 229-year history. Many people are saying that president-elect Trump’s foreign business holdings and relationships create a risk — or even a virtual certainty– that he will be embroiled in a constitutional crisis from day one of his presidency.

Some recent commentary has suggested the Emoluments Clause is basically an anti-bribery provision, but this is only partially correct. As a ban on public officials accepting gifts, the clause is indeed related to laws against bribery and conflicts of interest. But the Emoluments Clause differs from bribery in important ways, and those differences have significant implications for President Trump and his new administration.

I should note up front that everyone is sort of flying blind when it comes to the Emoluments Clause. There is basically no precedent concerning the clause and the Supreme Court has never interpreted it. We’ve also never had a president-elect with such extensive foreign business entanglements. For many questions about how the clause would apply to Trump, the most honest answer is, “we’re not entirely sure.” So with that caveat . . . .

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What Does the Emoluments Clause Prohibit?

The Emoluments Clause arose out of the framers’ fears about potential foreign influences on their fledgling country. Contained in Article I, Section 9, Clause 8 of the Constitution, it provides:

No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.

No one is concerned about Trump being granted an office or title from a foreign government, and no one is particularly worried about him receiving presents from Kings or Princes. The most relevant prohibitions are on the receipt of any “present” or “emolument” from a “foreign state.” An emolument is generally defined as a profit, fee, or compensation arising from an office or employment. “Present” presumably has its ordinary meaning of a gift, or something freely given without any strings attached.

Simply put, then, the clause prohibits government officials from accepting gifts or payments from a foreign government.

How Is the Emoluments Clause Related to Bribery?

The crime of bribery requires a quid pro quo. In exchange for something of value, a public official agrees to be influenced in the exercise of the powers of his or her office. Bribery is the quintessential corruption offense; the political process is corrupted because the public official acts not for the good of all but to benefit the person who is paying off the official.

In an op-ed in the New York Times, Professor Zephyr Teachout recently wrote that the Emoluments Clause is “essentially an anti-bribery rule.” Commentators at NPR and The New Republic have said the same thing. But this is not entirely accurate. When it comes to gifts from foreign states, the Emoluments Clause actually is far more sweeping than bribery because it does not require a quid pro quo. Even if the term “emolument” is read to imply compensation in exchange for a particular service (which is far from clear), the term “present” is far broader and contains no such implication.

Unlike bribery, the Emoluments Clause does not require that the public official agree to do anything in exchange for the gift. It doesn’t even require that the gift be linked to some particular official act, as does the federal gratuities statute. In this sense the Emoluments Clause is more akin to a simple gift ban, similar to those contained in most codes of ethics for government employees. It appears to guard against not only actual influence of public officials, as would occur with a bribe, but also the mere appearance of potential influence or divided loyalties that could be created by even a gift.

For a gift from a foreign government to constitute a bribe, President Trump would need to agree to perform some official act or be influenced in the exercise of his powers in exchange. But if a foreign government gave the President a present simply out of admiration, or out of hope that it might curry favor with the President, that would violate the Emoluments Clause even though it would not be a bribe.

In another sense, bribery is broader than the Emoluments Clause because it applies to private parties, not just to foreign states. So if a private foreign corporation or individual gave the President a gift in exchange for some exercise of his official power, that would be a bribe even though it would not violate the Emoluments Clause.

In short, there are many violations of the Emoluments Clause that would not be bribes, and many bribes that would not violate the Emoluments Clause.

Does the Emoluments Clause Apply to the President?

It’s not 100% clear – unlike some provisions of the Constitution, the clause does not specifically name the President and refers only to those holding an “office of profit or trust” under the United States. At least one commentator, Seth Tillman of Maynooth University in Ireland, argues that this and other historical clues suggest the clause was not intended to apply to the President.

But this appears to be a minority view. An “office of profit or trust” under the United States would logically seem to include the presidency. It would be quite strange if the framers did not intend the ban on potential foreign influence to extend to the highest office in the land, where such influences could potentially do the most damage.

Adam Liptak recently wrote in the New York Times about how a newly-elected President Obama sought legal advice from the Department of Justice concerning whether he could accept the Nobel Peace Prize without violating the Emoluments Clause. The DOJ Office of Legal Counsel, in its written opinion, considered it beyond debate that the presidency was “surely” an office of profit or trust under the United States. That seems correct.

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Does Bribery Apply to the President?

Yes. Trump made headlines last week when he told the New York Times that “the President can’t have a conflict of interest.” Federal criminal statutes related to conflicts of interest are contained in the 200-series of Title 18. It’s true that 18 U.S.C. § 202(c)  provides that a number of those laws – including the primary conflict of interest law, 18 U.S.C. § 208, prohibiting acts “affecting a personal financial interest” – do not apply to the President.

But this does not mean it is impossible for a President to have a conflict of interest. Hopefully Trump does not really believe he is free to pursue federal policies designed to benefit his personal financial interests. The universe of concerns about conflicts of interest is not encompassed by the federal criminal code; simply because something may not be a felony does not make it appropriate Presidential behavior. Indeed, the Emoluments Clause itself is plainly animated by a desire to avoid even a perception of potential conflicts of interest.

In any event, unlike the conflict of interest statutes, the President is not exempted from the federal bribery statute, 18 U.S.C. § 201. That law applies to any “officer or employee or person acting for or on behalf of the United States,” which certainly includes the President.

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How Could Trump Violate the Emoluments Clause?

Trump has numerous overseas business ventures and properties, as well as business relationships with many foreign entities. Once he is President, any business transaction with a foreign government that is anything less than completely arms-length could potentially violate the clause. If a foreign government gave him a sweetheart deal on a particular project, or purchased assets or paid rent at above-market rates, or pressured state-owned banks to give Trump favorable loan terms, those could be considered gifts or emoluments. A foreign government could also grant permits or approvals for Trump projects on more favorable terms or cancel investigations related to Trump deals, all of which could be considered financial benefits to Trump.

Some have suggested that even at fair market rates, any foreign government transaction with a Trump business — such as diplomats staying at the new Trump hotel in D.C. — would be payment for a service and therefore a prohibited emolument.

But there are a number of potential qualifications and loopholes. First, the clause only prohibits gifts from a “foreign state,” so gifts from a foreign private corporation would not violate the clause. Presumably a number of Trump’s overseas deals are with private companies and not with governments. (This is why President Obama ultimately was able to accept the Nobel Peace Prize money – the Department of Justice concluded that the prize was coming from a private organization, the Nobel Committee, that was sufficiently independent from the Norwegian government.)

A factual issue could arise concerning whether foreign corporations that are government owned or controlled would be treated as a foreign state for purposes of the clause. The answer should be yes if the clause is not to be completely undermined. (An analogous issue arises under laws such as the Foreign Corrupt Practices Act, where employees of state-controlled private corporations are often deemed to be “foreign officials.”) As Liptak reported, in the opinion for President Obama the Department of Justice noted it believes that corporations owned or controlled by a foreign government are presumptively foreign states for purposes of the Emoluments Clause. Whether this was true in any particular case would likely depend on the degree of state control.

Another issue could arise if a gift was given to the Trump Organization rather than to President Trump personally. Because corporations are generally considered distinct “persons” under the law, a gift to Trump’s corporation might not be considered a gift to the President. But because it is a privately-held corporation, arguably even a gift to the corporation should be deemed a gift to Trump. Some commentators recently argued that gifts to the Clinton Foundation should be considered gifts to Hillary Clinton for purposes of the Emoluments Clause – presumably the same analysis would apply to gifts to the Trump Organization.

A separate question could arise if the present was given to one of the Trump children, or one of their businesses. Assuming they are not holding an office in the new administration, such a gift would appear not to violate the clause. But particularly given the important role Trump’s family seems to play in his administration, the underlying concerns about outside influences and conflicts of interest would certainly still be present. This would seem to violate the spirit of the clause, if not the letter.

Finally, it appears that Congress could simply give Trump a pass on all of this. The Emoluments Clause provides that presents or emoluments may not be accepted “without the consent of Congress.” That suggests Congress could pass some kind of blanket permission for President Trump to pursue his businesses without worrying about the clause. How something like that would play politically would be another matter.

What Is the Remedy for a Violation of the Emoluments Clause?

There’s probably a reason there are no court cases interpreting the Emoluments Clause: most commentators think it is non-justiciable. In other words, no one would have standing to bring a lawsuit and a court would not be able to fashion a workable remedy. As Professor Jonathan Adler noted in the Volokh Conspiracy blog, if the clause is violated “the only remedies will be political.”

Political remedies include elections. If voters are upset by President Trump’s foreign entanglements they could toss him out of office in four years. Political remedies could also include hearings on Capitol Hill. Congress could issue sternly-worded resolutions of disapproval that Trump could dismiss with a Tweet storm. Congress presumably could pass legislation that would impose some restrictions consistent with the clause, although enforcing it would again be problematic.

Or political remedies could include impeachment.

Is Violating the Emoluments Clause an Impeachable Offense?

The Impeachment Clause, Article II, Section 4 of the Constitution, provides:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Although it’s not a crime, a violation of the Emoluments Clause most likely is an impeachable offense. The phrase “high crimes and misdemeanors” is generally understood to refer not to criminal law but to political violations and misconduct related to public office. Impeachment is a political process, not a criminal one. As Hamilton wrote in The Federalist No. 65, impeachable offenses “proceed from the misconduct of public men . . . from the abuse or violation of some public trust.”

That being said, the meaning of the phrase “high crimes and misdemeanors” is not completely settled. There was a lot of debate about it during the impeachment of President Bill Clinton. Clinton’s lawyers argued that “high crimes and misdemeanors” meant misconduct related to the exercise of public office. They maintained that Clinton’s behavior in his personal life did not meet that standard. Congress, of course, ultimately disagreed.

But a violation of the Emoluments Clause would be directly related to the exercise of Trump’s public office and his abuse of that trust. As such it should qualify as a “high crime or misdemeanor.” It would be strange indeed if the framers included the prohibition against emoluments but contemplated no possible remedy for its violation. The most logical remedy is impeachment.

And in the end, as then-Congressman Gerald Ford famously remarked, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” If Congress were to conclude that a violation of the Emoluments Clause was (or was not) an impeachable offense, there would be no real way to challenge that conclusion.

What Would Be the Remedy if Trump Committed Bribery?

If President Trump were to violate federal bribery law, the issue again would be the proper remedy. Whether or not a sitting President can be indicted is another question that was debated during the Bill Clinton investigation and has never been fully resolved. The Supreme Court did rule in the Paula Jones case, Clinton v. Jonesthat a President is not immune from civil litigation based on events that took place before he took office, but that is a different matter.

Indicting a sitting President raises far thornier issues. How would the President’s own Justice Department and Attorney General prosecute a criminal case against the President? Could the federal courts hear such a case without violating the separation of powers? What if a sitting President were convicted and sent to prison while still in office? And could a convicted President Trump pardon himself?

For all of these reasons, the better view is probably that a sitting President cannot be indicted for a crime. (This is also the official position of the Department of Justice.) The appropriate remedy for a President who commits criminal acts would once again be the impeachment process. In fact the Impeachment Clause (quoted above) specifically lists bribery as one of the grounds for impeachment.

If a President were impeached for bribery and removed from office, then presumably criminal bribery charges could be pursued against him or her as a private citizen. Article I, Section 3, Clause 7 of the Constitution provides that after removal by impeachment an official “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” But again, we are in uncharted waters.

The Bottom Line

The Emoluments Clause is far more sweeping than the laws against bribery, at least when it comes to gifts from foreign governments. Almost any transaction involving Trump businesses and a foreign state or state-controlled entity is going to raise questions about whether any improper emolument was involved, even if Trump did not agree to do anything in return.

For any violation of either bribery law or the Emoluments Clause, the likely remedy is impeachment, not a lawsuit or criminal charges. And for those who believe a Republican Congress would never impeach a Republican President, bear in mind that if Trump were removed from office that would leave us with: President Pence.

That might be an outcome many Republicans would find very desirable.

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In Defense of the Grand Jury (Part 3): Disclosure of Exculpatory Information

During the course of a grand jury investigation, a federal prosecutor may learn information favorable to the defense, perhaps even suggesting that the target of the investigation is innocent of any crime. What is the prosecutor required to do with that information – and perhaps more important, what should the prosecutor do?

In my earlier posts on the federal grand jury (available here and here), I discussed how the grand jury, whose proceedings take place in secret, is a frequently misunderstood and sometimes controversial institution. One source of controversy is the one-sided nature of a grand jury presentation.

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The grand jury generally hears only from the government. The prosecutor presents the witnesses, documents and other evidence and ultimately asks the grand jury to return an indictment if the evidence establishes probable cause. The defense has no right to call witnesses or otherwise present its case. There is no defense attorney to object, cross-examine, or offer contrary evidence. The defendant himself has no right to testify.

This one-sided nature of the proceeding may seem to run counter to our most fundamental concepts of justice. How can the grand jury possibly make the right determination if it only hears one side of the story? But this argument misperceives the grand jury’s function.

The grand jury is merely accusatory, not adjudicatory. Its purpose is not to decide guilt or innocence or to weigh both sides of the case but to determine whether there is sufficient evidence to justify bringing the defendant into court to answer the charges. As such, part of its historic function is to serve as a shield against executive power. The government cannot simply run into court and file criminal charges on its own; it must first convince a panel of citizens in the same community that there is a basis for those charges.

In making that determination the grand jury needs to find only probable cause that the crimes took place, not the far higher standard of proof beyond a reasonable doubt that would be required for conviction at trial. And unlike a trial jury, a grand jury does not need to be unanimous; only twelve out of sixteen jurors need to find probable cause in order to return an indictment.

Many of the procedural protections we associate with a trial do not apply in the grand jury. If they did, grand jury proceedings could quickly become bogged down with endless hearings and disputes about the evidence being presented. A grand jury is simply making a threshold determination about whether there is a basis to proceed. It is not supposed to be “trial #1,” where we litigate every dispute and evidentiary issue, to be followed later by “trial #2” where we do it all over again with a higher standard of proof.

Accordingly, the defense generally is not able to challenge the evidence being presented to the grand jury or to present evidence of its own. With few exceptions, any such matters have to wait until pre-trial court proceedings or the trial itself, once the grand jury investigation is over and the case is indicted.

But this system must acknowledge a major caveat: an indictment alone can be devastating. It’s not much comfort to tell a wrongly indicted defendant, “It’s okay, now you can present your side of the case and be found not guilty at trial.” Trial may come only after two years of delay, a million dollars in legal fees, and severe damage to the defendant’s family, business, and reputation. That “not guilty” verdict at the end, even if it comes, is not going to feel like much of a victory. Simply being indicted can ruin someone’s life.

This fact, in turn, highlights the critical importance of the prosecutor’s obligations in the grand jury. Prosecutors, of course, must do everything they can to avoid indicting the wrong people. A fundamental part of the prosecutor’s role is to ensure that the innocent do not suffer. This requires recognition of the gravity of the decision to return an indictment and the potential impact on the person being indicted. The prosecutor’s duty is not to “win” by securing an indictment by any means necessary, but to ensure that justice is done. In the grand jury, the one-sided nature of the presentation makes that duty all the more critical.

Given these obligations and the nature of the grand jury, what should a prosecutor do when she comes across information favorable to the defense during a grand jury investigation?

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The Supreme Court’s Answer: United States v. Williams

The Supreme Court confronted this issue in 1992 in United States v. Williams. Williams was indicted for bank fraud for allegedly misrepresenting the nature of some of his assets when applying for a loan. After he was indicted, he argued the prosecutor should have disclosed to the grand jury information demonstrating that he had always treated those assets the same way for his tax and other accounting purposes. This information, Williams claimed, would have demonstrated he did not misrepresent his financial position and lacked any intent to defraud the bank.

After a hearing, the trial court agreed with Williams that the prosecutor’s failure to disclose the information rendered the grand jury’s decision to indict “gravely suspect.” The court dismissed the indictment without prejudice (which would have allowed the government to present the case to a new grand jury, this time including the allegedly exculpatory information). The court of appeals agreed and upheld the dismissal.

Given the nature and history of grand jury proceedings, Williams did not claim in the Supreme Court that the Constitution itself required the government to present exculpatory evidence to the grand jury. But he argued the Court should create such a rule on its own, as part of its general supervisory role over the justice system, in order to ensure the fairness of grand jury proceedings.

A divided Supreme Court disagreed. Writing for a 5-4 majority, Justice Scalia discussed the historical independence of the grand jury, which is mandated by the Bill of Rights but is not textually assigned to any one of the three branches of government. As such, it functions as a “constitutional fixture in its own right.” Given the grand jury’s independence, he concluded, the Court does not have a general supervisory power that would allow it to create rules for grand jury proceedings.

The Court also relied on the role of the grand jury, which is “not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Williams’ proposed rule, the Court said, would effectively turn the grand jury into an adjudicatory body required to weigh both sides of the case. This would threaten to tie up grand jury proceedings in evidentiary hearings and disputes. It would also run counter to a long history of Court decisions refusing to scrutinize the adequacy of the evidence before the grand jury; such scrutiny would “run counter to the whole history of the grand jury institution.”

The Court concluded that if a rule requiring the disclosure of exculpatory information was good policy, Congress was free to enact a law requiring prosecutors to do so. The Court itself, however, declined to create such a rule on its own. Four dissenting Justices argued that a court should have the power to dismiss an indictment if the prosecutor withheld evidence that would “plainly preclude a finding of probable cause,” and that such a rule was necessary to limit potential prosecutorial misconduct.

Practical Challenges of Legally Mandating Disclosure

Congress has not taken the Williams Court up on the suggestion that it could pass a law requiring disclosure of exculpatory information. If Congress did so, enforcing such a requirement would raise a number of challenges. For example, what would happen when the defense and prosecution don’t agree over whether information is truly exculpatory? (Even the dissenting Justices in Williams agreed there was some doubt whether the proffered information really exculpated the defendant. If he treated the financial information the same way for tax and other purposes, might that not simply mean that he was a consistent crook?)

If the prosecutor didn’t agree that information proffered by the defense was exculpatory and declined to put it before the grand jury, what would be the remedy? Presumably the defense would file a motion with a judge and there would have to be a hearing. But reluctance to bog down grand jury proceedings with hearings and delays is precisely why the Court has consistently held that rules of evidence and procedure that apply during a trial do not apply in the grand jury. In a large, hard-fought white collar investigation, it would be easy to imagine the defense filing multiple motions concerning exculpatory information and potentially grinding the investigation to a halt.

In addition, it would be difficult to litigate such a motion while still preserving grand jury secrecy. How would the government demonstrate information was not truly exculpatory without being forced to reveal confidential information about the investigation? Even if the judge reviewed the papers in camera and did not disclose them to the defense, ruling on such a motion would require the judge to become enmeshed in the details and merits of the grand jury investigation to a degree completely contrary to the grand jury’s historically independent function.

Or suppose the prosecutor agrees that the information is potentially exculpatory, but it is contained in documents that are not self-explanatory. Does the defense then have the right to designate the witness who will explain the documents, to make sure they are properly understood? To write out the examination to make sure it is effective – or to conduct the examination itself? The same questions arise if the evidence consists of testimony from a witness: how does the defense ensure that the testimony is presented effectively without compromising grand jury secrecy? And if there are disputes about how to present the evidence, presumably a judge would again need to get involved.

In short, although creating a legal rule mandating the disclosure of exculpatory information may sound good in theory, it’s not difficult to see why the Court in Williams was reluctant to create such a rule, or why Congress has declined to do so.

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DOJ Policy and Prosecutor Best Practices

Simply because disclosure is not legally mandated does not mean it should not take place. The Department of Justice has recognized this in the U.S. Attorneys’ Manual, which provides that if the prosecutor is “personally aware of substantial evidence that directly negates the guilt” of the target, that evidence should be disclosed to the grand jury. USAM 9-11.233.

Of course, although policies in the U.S. Attorneys’ Manual provide important guidance to prosecutors, they do not create enforceable rights. The prosecutor may be subject to discipline for violating a rule, but a defendant cannot move to dismiss an indictment on that basis. Some might also argue that terms such as “substantial evidence” and “directly negates the guilt” leave a fair amount of wiggle room and that DOJ policy should require more fulsome disclosure.

But for the good prosecutor there are many sound reasons to disclose exculpatory information to the grand jury, whether or not the information is substantial enough to require disclosure under the DOJ policy.

The first reason is simply fairness: disclosing such information is the right thing to do. A good prosecutor has no interest in “hiding the ball,” misleading the grand jury, or giving even a perception that the grand jury process was unfair. The U.S. Attorneys’ Manual also provides that a prosecutor must be “scrupulously fair” in the grand jury and ensure that the grand jury is not misled. USAM 9-11.010. That may require disclosing even information that is only marginally or potentially exculpatory.

A prosecutor with a good case should have nothing to fear from disclosing potentially exculpatory information to the grand jury. After all, such evidence will undoubtedly come up at trial. If you as a prosecutor are so concerned about the information that you think it might result in the grand jury not finding probable cause, then how are you ever going to get a trial jury with the same information to find guilt beyond a reasonable doubt?

Indeed, if you’re a prosecutor and you have information you fear might cause the grand jury not to indict, then you shouldn’t be thinking merely about whether you should disclose that information to the grand jury. You should be thinking about whether you should pursue the case at all. Certainly if you have “substantial evidence” that “directly negates the guilt” of the defendant, you’d better stop and consider whether the investigation should proceed.

There also are sound tactical reasons to introduce exculpatory information in the grand jury. It allows the prosecutor to probe and explore the evidence completely, through examination of witnesses and possible additional investigation. A full review of the information may lead to additional evidence that further exonerates the defendant, or evidence that demonstrates the information is not truly exculpatory. It is better to explore those details in the grand jury than to wait and potentially be surprised at trial.

Presenting the evidence to the grand jury also allows the prosecutor to see how the grand jurors react to the evidence, to hear what questions they have, and to discuss the evidence with them. Again, all of that can be incredibly useful to guide further investigative efforts, prepare more fully for trial, or to decide that the case should not be indicted and the investigation should be closed.

It All Comes Down to the Prosecutor’s Responsibility

Critics of the grand jury may argue that we need a rule mandating the presentation of exculpatory evidence because most cases never make it to trial. An unscrupulous prosecutor could conceal substantial exculpatory information from the grand jury, thinking that he or she will be able to coerce a guilty plea once the case is indicted and the exculpatory information will never come to light.

There is no doubt, as I’ve noted in other posts in this series, that a prosecutor bent on misconduct can abuse the grand jury process, cause tremendous harm, and perhaps even indict a ham sandwich. But a legal rule that tries to regulate the type of evidence put before the grand jury is probably not the solution.  Good prosecutors are already going to consider themselves bound by DOJ policy and will want to disclose exculpatory information for the reasons I discussed above. Bad prosecutors who intend to abuse the process likely would find the rule easy to avoid. And the rule would raise all of the practical difficulties discussed above and fundamentally alter the nature of the grand jury.

Although concerns about prosecutorial misconduct in the grand jury are valid, the solutions need to focus primarily on the prosecutors themselves; on whom we hire to be prosecutors and how they are trained. Unless we do away with the grand jury entirely or fundamentally alter its centuries-old function, prosecutors in the grand jury are always going to have a great deal of autonomy and power. Given the one-sided nature of grand jury proceedings, it is particularly critical that prosecutors respect their obligations and recognize that with that great power comes great responsibility.

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Click here to read part one in this series, “The Guilty Ham Sandwich.”

Click here to read part two in this series, “Grand Jury Secrecy.”