There was a curious moment this weekend when a member of Congress, Rep. Bill Pascrell (D., N.J.) called upon New Jersey Attorney General Gurbir Grewal to use a grand jury to investigate criminal charges against President Donald Trump and U.S. Postmaster General Louis DeJoy for “the subversion” of the upcoming election. From a Madisonian perspective, a member of Congress calling for a grand jury to investigate wrongdoing by a federal agency is like a NASA calling up NOAA to explore Mars. Pascrell is a sitting member in a house, controlled by his own party, with the constitutional authority of oversight over the postal service. Our system of separation of powers commits this question to the political branches rather than criminalizing political disputes.
A grand jury usually requires proof of an actual crime, not a future crime or the possibility of an unknown crime. The basis of this odd referral is a political struggle over additional funding that Trump says that he is willing approve as part of an overall agreement. I agree that the President’s prior statements on the postal service recklessly fueled concerns that he might use the agency to hinder mail-in balloting. However, Pascrell is calling for a grand jury to investigate what is currently a bargaining position in an ongoing appropriations fight. Such an approach would require half of the country to staff grand juries to handle the referrals from Congress.
Yet, Pascrell sent what he described as a “criminal referral” to Grewal:
“I call upon you to open a wide-ranging investigation of Trump’s actions to interfere in our elections and to empanel a grand jury for the purpose of considering criminal indictments for Donald Trump, U.S. Postmaster General Louis DeJoy … [who] are participating in … the subversion of New Jersey state elections…We do not have much time to prepare and our state, like others, will rely absolutely on the USPS’s efficiency. Amid this ongoing pandemic, the USPS will be the electoral heart and engine of New Jersey’s and America’s electoral machinery.”