Mike Ioane - The Government's Fourth Branch

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:

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.'" [7]

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 due 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 damn 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 damn
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 knew
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, damn 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."