Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: "well, citizens on the grand jury thought that there were grounds to issue a subpoena."
In fact, hell no, or if you prefer, bless your heart, no.
Let's talk about how federal grand jury subpoenas actually work. These days the U.S. Attorney's Office prints them from fillable pdfs. Given that we were still typing them when I left the USAO in 2000, they probably achieved this technical benchmark in 2012 or so. Assistant United States Attorneys — that is, snot-nosed punks like I was at twenty-six — issue a grand jury subpoena by filling it out, or more likely, asking their secretary to fill it out. Nominally, the subpoena is issued on behalf of the grand jury. But it is not by any stretch of the imagination, issued by the grand jury. The AUSA need not — and never does, in my experience — ask the grand jury for permission. When the target of the subpoena produces documents, most often the Assistant U.S. Attorney lets the case agent — some Special Agent of the FBI or DEA or whatever — hold on to them.
So is the grand jury involved at all? Well, sort of. If and when the federal prosecutor seeks an indictment relying in part on documents produced in response to a grand jury subpoena, they'll summarize the results of the subpoena to the grand jury. But that could be years after the fact. Prior to that, the acknowledged "best practice" is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced — which, because they have been produced "to the grand jury," are governed by secrecy requirements.
Does that always happen? No. Even when it does happen, it's rarely a significant check on the use or abuse of grand jury subpoenas. First, when I was an AUSA, I never once had a grand juror ask about why I was issuing such a subpoena or exactly what I got back. I don't know that any of them ever looked up from their newspapers. The common practice is to make a report so perfunctory that the grand jurors have no context from which to determine whether a subpoena is appropriate — and you'd only be reporting the subpoena after the fact. Second, there's often no continuity of grand jurors. In a small district you might have only one grand jury that meets once a week, and those grand jurors could, in theory, write things down in their notebooks and keep track of them over time. But in many districts there are many federal grand juries. In Los Angeles, for instance, there was a different one meeting every day of the week. AUSAs don't necessarily report subpoenas from the same investigation to the same grand jury over time. And federal grand juries turn over after a year and a half (unless extended), which means that the grand jurors hearing you report a subpoena this year won't necessarily be the same ones hearing you report the next subpoena in the investigation next year.
The United States Attorneys Manual sheds light on how subpoenas are used as a tool. Consider, for instance, the Manual's treatment of subpoenas to banks, which ought to be governed by the Financial Privacy Act of 1978. The Manual suggests some best practices:
Sound grand jury practice requires that:
The prosecutor personally authorize the issuance of a subpoena duces tecum to obtain financial institution account records to avoid any appearance that the matter was left to the discretion of an investigative agent serving the subpoena
Waitaminute, you might say. Doesn't that imply that federal agents, rather than federal prosecutors, sometimes issue federal grand jury subpoenas? Yes. Yes it does. Federal agents also have fillable pdfs of grand jury subpoenas, and routinely fill them out and ask a federal prosecutor to bless them. How carefully do federal prosecutors read such subpoenas, and question the agents drafting them? Take a guess. Do federal agents working an investigation sometimes serve grand jury subpoenas that the prosecutor — let alone the grand jury — has never seen? Yes.
The Manual also suggests:
The subpoena be returnable on a date when the grand jury is in session and the subpoenaed records be produced before the grand jury unless the grand jury itself has previously agreed upon some different course, see United States v. Hilton, 534 F.2d 556, 564, 565 (3d Cir.1976), cert. denied, 429 U.S. 828;
Again, this accurately implies what happens when the subpoena doesn't require records from a bank. The documents aren't necessarily demanded for a day the grand jury is in session. Moreover, they are rarely produced "to" the grand jury. Most subpoenas for records allow the subpoenaed person avoid a grand jury appearance by sending the documents to the case agent, and most people take advantage of that.
Later in the Manual, AUSAs are counseled regarding general procedures for subpoenaed documents:
Informing the Grand Jury of Available Evidence. The practice of bringing all subpoenaed documents before the grand jury varies among jurisdictions. Providing notice to the grand jury that the custodian or case agent has reviewed the documents may be legally sufficient, regardless of local custom. At a minimum, however, prosecutors should keep the grand jury apprised of the location and organization of the documents.
Doesn't really sound like a requirement that the grand jury participate meaningfully in the process, does it?
Supposedly, the grand jury acts as a "kind of buffer or referee between the Government and the people," acting "independently of either prosecuting attorney or judge." This is a fiction, as polite as any other lie. The grand jury is actually an investigative and accusatory tool of the government. But it's a stubborn fiction. The Supreme Court has consistently ruled that the grand jury's pretense of independence must be maintained. That's led the Court, for instance, to say that federal courts can't require federal prosecutors to present known exculpatory evidence to the grand jury when they seek an indictment. Instead, the grand jury's historic independence requires courts to ignore when prosecutors secure an indictment by concealing from the grand jury evidence that contradicts the charges they seek. Whaaaa? Shhh. Shhhh. Never mind.
In short, the existence of a grand jury subpoena for documents signifies absolutely nothing but the fact that some federal prosecutor or federal agent wants the documents.
Last 5 posts by Ken White
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