After the government’s raising the specter of prosecuting E. Jean Carroll, who is believed by some to have forced her evil vagina over Trump’s unwitting finger, for being unfamiliar with Reid Hoffman’s financial assistance in her lawsuit when she responded to a question in a deposition, atop the prosecutions, both failed and inchoate, of Tish, Jim, John, Adam, Jim (again), et al., Andrew Weissmann, who has now taken up residence in Michael Avenatti’s old dressing room at MSNBC, sees a problem.

In an administration where prosecutors can be counted on to proceed in good faith — and to follow the Justice Department’s own rules — cases like these should be vanishingly rare. Right now, however, we can’t bank on that. All these examples have at least a whiff of prosecutorial vindictiveness.

Wait, is he saying that the Department of Justice doesn’t carefully scan the answers to every question in every deposition in every case in search of potential perjury for prosecution, as if E. Jean Carroll is inexplicably special?

But there is a way to fix this.

What “this” is Weissmann talking about?

The problem results from the difference between the standard for obtaining an indictment, which is probable cause, and that for obtaining a conviction, proof beyond a reasonable doubt. Moreover, for indictments, probable cause need be found by only 12 of a quorum of 16 to 23 grand jurors, in contrast to the unanimity required for a guilty verdict at trial.

We’re all familiar with former New York Court of Appeals Chief Judge Sol Wachtler’s “ham sandwich” analogy. Is Weissmann suggesting that the process which he, as a federal prosecutor, enjoyed throughout his career without raising any doubts was always inadequate?

The Justice Department has an internal rule that, were it adhered to, would deal with this. It prevents prosecutors from seeking an indictment without first determining that the case can be won later at trial and on appeal. During my tenure at the department, I never sought or approved an indictment if the case being presented to the grand jury did not already meet that threshold. After all, you want to bring only cases that you are confident you can win — that is, unless your real aim is subjecting people to bogus charges.

So federal prosecutors, until now during Trump’s revenge tour, were so trustworthy and pure that they would never abuse the grand jury system to wrongfully indict anyone? All those pleas and convictions were the product of strong cases brought by honest prosecutors, and not the overwhelming weight of the government’s resources, jury bias and Draconian punishment? But I digress. So what, pray tell, is the solution?

Congress can require that grand juries no longer be instructed that they can find a criminal charge based on mere probable cause. Instead, a higher factual standard, such as “clear and convincing” evidence — a standard sometimes applied in the civil law — should be necessary to vote in favor of a criminal charge. Such a law, modeled on the Justice Department’s internal guideline, would bridge the wide gap between the low-level burden that prosecutors have to meet for bringing an indictment and the highest burden under the law required for a criminal conviction.

Wow. Weissmann leaped right over preponderance of the evidence, the normal civil burden, and went for clear and convincing evidence, meaning significantly more likely than not. Not that I’m against raising the standard, but when the grand jury only hears evidence from one side, and the grand jury gets its instructions from the same prosecutor who seeks the indictment, it’s hardly a stretch for grand juries to believe the evidence presented is overwhelming.

While I’m no fan of Weissmann for a variety of reasons, who wouldn’t want a way to fix this? But trial juries already convict despite the evidence falling short of beyond a reasonable doubt because burdens are vague and juries really don’t care for criminals all that much. In the grand jury, they hear only the prosecution’s witnesses, often presenting conclusory hearsay, that paints a clear and convincing picture of a criminal. There is an old defense lawyer saying, everybody is guilty until cross.

Cross. That’s what’s missing in the grand jury presentation. A higher burden of proof would be nice, but the likelihood of it producing any meaningful change in the outcome of a presentment is slim. But if the defense lawyer was allowed into the grand jury, was allowed to cross-examine the prosecution’s witnesses, was allowed to show the grand jurors the holes, gaps, failings and lies presented before without challenge, the entire dynamic of the one-sided grand jury process would shift on its axis.

Prosecutors will still need to meet the beyond-a-reasonable-doubt standard at trial. But by making it harder for charges to be brought on spurious accusations by the current or any future Justice Department, such a law would help thwart questionable investigations and indictments.

If you really want to fix the “ham sandwich” problem, and more relevant at the moment, the spurious investigations of Trump’s perceived enemies, the fix isn’t raising the burden of proof (which is still a good thing, even if inadequate to the task), but testing the prosecutor’s case by  subjecting the prosecutor’s witnesses to cross, rather than just trusting prosecutors to only do justice.