Grand Jury Secrecy

Grand Jury Secrecy

The recording duty taught above leaves the government holding a record of what witnesses told the grand jury, and the next question is who may learn what that record contains. Rule 6(e), headed "Recording and Disclosing the Proceedings," answers by pairing the recording rule with a secrecy regime, so that the two operate as one system.¹ The baseline is that grand jury proceedings are secret. Standard practice since about the seventeenth century has been to conduct them in secret and without confrontation, in part so that the accused does not learn the State's case in advance.² The ancient oath administered to grand jurors already bound them to secrecy about the Crown's business, their fellow jurors' views, and their own.³

The five objectives protect different things. The first and third protect the investigation itself: a person who learns that an indictment is coming can flee before it issues, and one who learns who will testify can pressure or bribe a witness before that witness repeats the account at trial. The second and fourth protect candor inside the process, since jurors who cannot be approached by the accused or the accused's friends can weigh the evidence freely, and witnesses speak more openly when they expect their statements to stay in the room. The fifth protects a person the grand jury investigates and then declines to charge, who would otherwise carry the stigma of an investigation that came to nothing. A related reason applies when an agency with civil functions might want the material: the grand jury's compulsory powers exist for a criminal inquiry, and silence keeps what those powers uncover from being turned to a civil action.⁵ Whether these stated reasons are the actual motivations today is open to question, but each of them explains a feature of the Rule taught in the sections below.⁶

The secrecy also operates at two levels of intensity. The jurors' communications with one another during deliberations, and their individual votes, receive the firmest protection, because the need for free and independent deliberation is hard to doubt. The testimony given by witnesses is the area of substantial controversy.⁷ That difference helps explain why the Rule's exceptions treat the two kinds of material differently, as the later sections show.

Rule 6(e)(2) turns the general principle into obligations. It forbids grand jurors, grand jury personnel, government attorneys, and personnel assisting government attorneys to disclose a matter occurring before the grand jury, and it adds that no obligation of secrecy may be imposed on any other person except as the Rule provides.⁸ The list is therefore closed. The Rule binds the people whose roles give them access to the proceedings, and neither a court nor a prosecutor can enlarge the circle by announcing a new duty of silence. Under the Rule, everyone entitled to be present in the grand jury room except a witness must keep secret what occurs there.⁹ The Court has also held that a State may not forbid a grand jury witness from disclosing the witness's own testimony after the grand jury's term has ended.¹⁰ The exclusion of witnesses tracks what each group knows. Prosecutors and jurors hold the whole picture, including what other witnesses said and how the jurors voted, while a witness knows only what the witness personally said and was asked. Rule 6(e)(3) then recognizes the exceptions through which grand jury matter may lawfully move, so a disclosure by a bound person is lawful only if it fits one of them.¹¹

The usual error is to assume that secrecy attaches to everyone who has seen or heard grand jury business. Students lose this issue by treating a grand jury witness as bound by Rule 6(e)(2), when the closed list leaves the witness free to describe the witness's own testimony.¹²

Who Must Keep Secrecy

The first question in the secrecy sequence asks who is bound, and Rule 6(e)(2) answers it through two paragraphs that work as a pair.¹⁶ Subparagraph (A) says that no obligation of secrecy may be imposed on any person except in accordance with subparagraph (B).¹⁷ Subparagraph (B) then says that, unless the rules provide otherwise, the persons it lists must not disclose a matter occurring before the grand jury.¹⁸ Because (A) shuts off every other source of a secrecy duty and (B) supplies the only permitted one, a person is bound only by fitting one of the entries in (B). That makes the speaker's role the first thing to check in any disclosure problem, since a disclosure of even the most sensitive testimony by someone who is off the list does not violate the Rule.

The seven entries in subparagraph (B) are easier to hold as four groups, sorted by how each person comes into contact with grand jury matter:

• The jurors: a grand juror.¹⁹
• The people who work the session or its record: an interpreter, a court reporter, an operator of a recording device, and a person who transcribes recorded testimony.²⁰
• The government's lawyer: an attorney for the government.²¹
• Recipients who inherit the duty: a person to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).²²

Each group is on the list because grand jury matter ordinarily flows through these people, so a duty placed on them guards the places where the secrecy objectives are most exposed. The list reaches past the grand jury room itself. A person who transcribes recorded testimony may never attend a session, yet holds a written copy of what the witnesses said, and a leak of that copy would defeat the secrecy as completely as a leak from a juror would. The fourth group closes a different gap. An attorney for the government may pass grand jury matter to others for use in the investigation, as the next subsection explains, and a person who receives it that way is bound by the same duty.²³ Without that entry, one handoff would dissolve the protection against flight and witness tampering that secrecy exists to provide, because the recipient could repeat to anyone what the prosecutor was forbidden to say. Binding the recipient makes the duty travel with the information.

The fourth group carries a limit that the other three do not. It reaches persons to whom disclosure is made under Rule 6(e)(3)(A)(ii) or (iii), which are the authorized channels, and the text does not extend to a stranger who obtains grand jury matter from an unauthorized leak.²⁴ A reporter who receives such a leak from a juror is therefore off the list, even though the juror who leaked it is on it. Students lose points here by treating the recipient of an unauthorized leak as a bound person, when only the person who made the leak has breached Rule 6(e)(2).

The most instructive feature of the list is the person it omits. Everyone entitled to be present during the proceedings, other than a witness, must keep matters occurring before the grand jury secret, so the witness is the one person in the room whom the Rule leaves unbound.²⁵ The omission follows from how a witness comes to the proceeding. A grand jury subpoena is itself an order of the court, and a witness who ignores it faces contempt.²⁶ A juror accepts a term of service and a prosecutor works the case by profession, but the witness arrives under compulsion, and a standing gag on a person who never chose to join the process would burden that person's freedom to describe the person's own experience. The witness's knowledge is also usually confined to the questions put to that witness, so a witness has little to reveal of what the secrecy objectives protect most firmly, the deliberations and the votes.

In Butterworth v. Smith the Court added a constitutional limit on what a State may do in this area. A state statute forbade a grand jury witness ever to disclose testimony given before the grand jury, and the Court held that the statute violated the First Amendment as applied to a witness who wished to disclose information the witness had acquired independently and then testified about.²⁷ The decision is usually summarized as barring a State from prohibiting a witness from disclosing the witness's own testimony after the grand jury's term has ended.²⁸ The two sources of the witness's freedom therefore operate at different levels: Rule 6(e)(2) leaves witnesses unbound as a matter of federal procedure, and Butterworth restricts what a State may add to its own grand jury secrecy law. One question remains open. Whether a federal judge may order an individual witness not to disclose the witness's own testimony, to protect the integrity of an investigation, is unclear, and absent such an unusual order witnesses are free to divulge their testimony as they see fit after testifying.²⁹ Unless the facts describe such an order, a witness on an exam stem is a person who may speak.

The pair holds the content, the audience, and the timing constant and moves only the speaker's role, which is the variable the Rule uses to sort the bound from the free. The interpreter works inside the proceeding to make it function, while the witness is summoned into it, and the list tracks that difference.

Disclosure Without Court Order

Once a person bound by Rule 6(e)(2) holds grand jury matter, the next question in the secrecy sequence is to whom that person may pass it without first asking a judge. Rule 6(e)(3)(A) answers with a short list of recipients, and the list opens with a limit on what may be passed along: the disclosure it permits covers grand jury matter other than the grand jury's deliberations and any grand juror's vote.³¹ That carve-out tracks the two levels of secrecy described earlier. Deliberations and votes protect the independence of the jurors themselves, so even the government's own circle gets no access to them under this exception, while testimony and documents can move to the people who need them. The list exists because a prosecutor cannot enforce federal criminal law without using what the grand jury learned, and often needs agents or other officials to follow up on the testimony. The Rule widens the circle only as far as that duty requires, and it attaches an accountability measure to each widening.

The first category looks simple, because the prosecutor handling the criminal matter obviously needs what the grand jury produced. Its limits come from who counts as a recipient. In United States v. Sells Engineering, Inc., the Court held that this exception does not authorize disclosure to attorneys in the Justice Department's Civil Division, but only to the federal prosecutors involved in the criminal investigation, so a government lawyer outside that investigation must petition a court and show a particularized need.³⁵ The result follows from the reason for secrecy. The grand jury's compulsory powers exist for a criminal inquiry, and if any government lawyer could receive the material on request, the government could use those powers to build civil cases without a judge ever reviewing the need. Students lose this issue when they treat every government attorney as a recipient under the first category, when the category reaches the prosecutors working the criminal matter.

The second category exists because prosecutors rarely work alone. It permits disclosure to government personnel that the attorney considers necessary to assist in performing the attorney's duty to enforce federal criminal law, and the list of eligible personnel reaches state, state subdivision, tribal, and foreign governments.³⁶ The judgment about necessity belongs to the attorney, with no court approval beforehand, which is why Rule 6(e)(3)(B) surrounds the category with three controls.³⁷ The first is a use limit: a helper may use the information only to assist the attorney in enforcing federal criminal law. The second is a record: the attorney must promptly give the court that impaneled the grand jury the names of all persons to whom disclosure has been made. The third is a warning: the attorney must certify that those persons were advised of their obligation of secrecy under the Rule. Each control answers a risk created by widening the circle. The use limit keeps the material from drifting into purposes the grand jury's powers were never meant to serve, the same drift that Sells guards against. The names give the court a way to see how far the material has traveled, which no one outside the prosecutor's office could otherwise tell. The certification ensures that every holder knows of the duty before having any chance to breach it.

The third category works by incorporation. Rule 6(e)(3)(A)(iii) names no recipient of its own and permits disclosure to a person authorized by 18 U.S.C. § 3322, so that statute decides who qualifies.³⁸ The use limit in Rule 6(e)(3)(B) is written, by its terms, for persons who receive information under the second category, so it belongs to that category's analysis.³⁹

The pair holds the recipient, the material, and the paperwork constant and moves only the purpose of the use, which is exactly what the use limit polices. Lawful receipt of the material carries no license to use it for any purpose the helper chooses.

Two further channels move grand jury matter among government actors and need only brief treatment. An attorney for the government may disclose any grand jury matter to another federal grand jury.⁴⁰ The foreign intelligence provision follows § 203 of the Patriot Act.⁴¹ It lets the attorney disclose matter involving foreign intelligence or counterintelligence to federal law enforcement, intelligence, protective, immigration, national defense, or national security officials, and it lets the attorney disclose matter involving threats such as terrorism, sabotage, or grave hostile acts of a foreign power to appropriate federal, state, tribal, or foreign officials so they can prevent or respond to the threat.⁴² Officials who receive such information may use it only as necessary in their official duties, and state, tribal, and foreign officials must also act consistently with guidelines issued by the Attorney General and the Director of National Intelligence.⁴³ Within a reasonable time after the disclosure, the attorney must file a sealed notice with the court in the district where the grand jury convened, stating that the disclosure was made and naming the departments, agencies, or entities that received it.⁴⁴ The sealed notice does the job that the names list does under Rule 6(e)(3)(B): the court that supervises the grand jury can see where the material went, even though the details stay out of the public record.

Grand jury matter that fits none of these channels can move only with a court's authorization, and that includes disclosure to a civil-side government lawyer who cannot qualify under the first category. The next subsection takes up the grounds on which a court may authorize such disclosure.

Court-Ordered Disclosure

Grand jury matter that fits none of the no-order channels in the preceding subsection can reach an outsider only if a judge allows it, and Rule 6(e)(3)(E) is the source of that power. The court may authorize disclosure at a time, in a manner, and subject to any other conditions that it directs.⁴⁶ Secrecy serves several objectives at once, among them protecting the reputations of people who were investigated but never indicted, preventing the flight of those accused before an indictment is public, and encouraging witnesses to speak freely.⁴⁷ The weight of those objectives differs from one request to the next, so the Rule gives the decision to a judge, who can compare the specific need with the specific risk and can shape the release by limiting its scope, its timing, and its permitted use. The standard the judge applies is demanding: both government agencies and private parties must show a particularized need for grand jury material before it is released.⁴⁸

Rule 6(e)(3)(E) names five grounds, and they divide by who asks. Two matter most. The first is the general-purpose ground tied to litigation, which permits disclosure preliminarily to or in connection with a judicial proceeding. The second belongs to the defendant, who may seek disclosure to test whether the indictment should be dismissed. The other three are requested by the government so that material can go to a foreign, state, tribal, or military authority, and they follow in compact form once the two main grounds are explained.

The judicial-proceeding ground reads simply: disclosure may be authorized preliminarily to or in connection with a judicial proceeding.⁴⁹ The phrase ties the release to litigation, so the petitioner must show that the material is wanted for a case that is pending or being prepared, and a need that arises from some other governmental task does not qualify. In United States v. Baggot the Court held that the Internal Revenue Service could not obtain grand jury materials for a civil tax audit, because the principal purpose of an audit is to determine the correct amount of tax and not to prepare for litigation.⁵⁰ Students lose this ground when they treat an administrative audit or inquiry as a judicial proceeding, so the question to ask is what the disclosure is for. The limit protects the grand jury's purpose. Its compulsory powers exist for a criminal inquiry, and a loose reading would let civil agencies borrow them as a source of discovery without a judge ever checking the need.

Meeting the textual ground does not finish the inquiry, because the petitioner must also show particularized need. In United States v. Sells Engineering, Inc., the Court held that government attorneys outside the criminal investigation are not entitled to grand jury materials without a court order, and that to obtain an order they must satisfy the requirements of the rule and also demonstrate a particularized need.⁵¹ United States v. John Doe, Inc. I qualified that result in two respects: the attorney who conducted the grand jury investigation may keep using the materials in related civil proceedings, and the secrecy concerns weigh much less heavily when the recipient is another government attorney, although a particularized need must still be shown.⁵² Sells therefore sends the outside government lawyer to the judge, and John Doe I leaves that gatekeeping in place while acknowledging that the secrecy interest is weaker for a government recipient.

A request for grand jury material is decided by the court, and the court may release only part of what is sought. In United States v. Nixon, counsel for the President moved for disclosure and transmittal to the Supreme Court of all the evidence presented to the grand jury on its action in naming him an unindicted co-conspirator, and the Court denied that motion. Counsel for both parties later moved jointly to unseal the parts of the record relating to the grand jury's action regarding the President, and the Court denied that motion as well, except for the grand jury's immediate finding on his status as an unindicted co-conspirator.⁵³ The episode shows a court releasing one narrow piece of the grand jury's work and leaving the rest sealed, which is the same tailoring power the Rule's lead-in confers.

The second major ground belongs to the defendant. The court may authorize disclosure at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.⁵⁴ The ground exists because of a structural problem. Misconduct before a grand jury almost never occurs in front of the target or a witness friendly to the target, so it comes to light, if at all, after indictment, through pretrial discovery or through the grand jury testimony of trial witnesses.⁵⁵ A defendant cannot prove a violation without the transcript, and closed proceedings keep the transcript out of reach.

The Rule resolves that circularity with a preliminary showing. The standard asks only that a ground may exist, so the defendant need not prove the violation first, but the showing must be specific enough to justify opening a secret record, and it is described as fairly rigorous.⁵⁶ Even when the showing falls short, the district court has discretion to review the transcript itself to see whether it reveals possible misconduct.⁵⁷ The showing requirement protects against fishing. Without it, every indicted defendant could demand the full record to hunt for error, and the secrecy objectives would give way in every case.

This route also explains why grand jury violations are so hard to establish. The defendant must first persuade the court to release the transcript, and must then show prejudice. In Bank of Nova Scotia v. United States the Court held that dismissal for a violation of the grand jury rules is appropriate only if the violation substantially influenced the grand jury's decision to indict, or if there is grave doubt that the decision was free of such influence.⁵⁸ Because the proceedings are secret and a transcript can be obtained only with the court's permission after a preliminary showing, it will be a rare case in which a defendant can demonstrate prejudice even after a violation is shown.⁵⁹ The prejudice standard belongs to the later treatment of irregularities, but the access gate that comes first belongs here.

The pair holds the request, the defendant, and the record sought constant and moves only the specificity of the showing, which is the variable the Rule uses. A knowing presentation of false evidence can support dismissal, because a prosecutor may not knowingly present false evidence to a grand jury and an indictment based on perjury may be quashed.⁶⁰ A request aimed only at the quality of the evidence would fail for a second reason, since virtually any challenge to the sufficiency or admissibility of the evidence presented to the grand jury is rejected, and no ground to dismiss would exist.⁶¹ Some defense access does not depend on this showing at all: the Jencks Act requires production of other grand jury witnesses' testimony once they have testified on direct at trial.⁶²

The remaining three grounds are requested by the government, and each sends grand jury matter to an authority that is enforcing some other body of law or running its own investigation. The no-order channel for helpers covers personnel who assist in enforcing federal criminal law, so sending matter onward to enforce another sovereign's law requires a judge's approval. The court may authorize disclosure in these situations:

• At the government's request, when a foreign court or prosecutor seeks the matter for use in an official criminal investigation.⁶³
• At the government's request, on its showing that the matter may disclose a violation of state, Indian tribal, or foreign criminal law, if disclosure goes to an appropriate official of that government to enforce that law.⁶⁴
• At the government's request, on its showing that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, if disclosure goes to an appropriate military official to enforce that law.⁶⁵

In each, the court rather than the prosecutor makes the decision, and the power to set conditions applies as it does for every other ground.

The filing and hearing procedure comes from Rules 6(e)(3)(F) and (G), and the text of Rule 6(e)(3)(F) speaks only of petitions under the judicial-proceeding ground. Such a petition must be filed in the district where the grand jury convened.⁶⁶ Unless the hearing is ex parte, as it may be when the government is the petitioner, the petitioner must serve the petition on the attorney for the government, the parties to the judicial proceeding, and any other person the court designates, and the court must give each a reasonable opportunity to be heard.⁶⁷ Filing in the grand jury's home district puts the request before the judge who supervised the grand jury and is best placed to know what secrecy still protects. The notice and hearing requirement lets people who furnished information or are under investigation contest the release.⁶⁸

A petition may arise out of a judicial proceeding in another district. The petitioned court must then transfer it to the court where that proceeding is pending, unless the petitioned court can reasonably determine for itself whether disclosure is proper.⁶⁹ If it transfers, it sends the material sought, if feasible, together with a written evaluation of the need for continued grand jury secrecy, and the transferee court must give the persons identified in Rule 6(e)(3)(F) a reasonable opportunity to be heard.⁷⁰ The transfer divides the work by knowledge. The grand jury's court knows what secrecy still protects, and the court handling the case knows how badly the material is needed.

Sealed Indictments and Records

The secrecy rules covered so far protect the grand jury's work while an investigation is under way. The indictment it produces needs protection of a different kind, because an indictment is the document that authorizes the arrest of the person it names. If word of it reaches that person before the arrest, the accused has an opportunity to leave the jurisdiction or to destroy evidence. Rule 6(e)(4) answers that danger: the magistrate judge to whom an indictment is returned may direct that it be kept secret until the defendant is in custody or has been released pending trial.⁷³ Once the judge gives that direction, the clerk must seal the indictment, and no person may disclose its existence except as necessary to issue or execute a warrant or summons.⁷⁴

Each part of this rule has its own logic. The word "may" leaves sealing to the judge's discretion, which makes sense because the risk of flight varies. A defendant already in custody, or one who will answer a summons, gives the court no reason to hide the charge. After the judge directs sealing, though, the clerk's duty is mandatory, so the clerk has no further choice to make. The seal covers the indictment's existence and not only its contents, because a rumor that charges have been filed warns the target just as well as the text would. The carve-out for warrants and summonses exists because a sealed indictment would be useless if nobody could act on it: an arrest warrant cannot issue, and officers cannot execute it, unless someone knows the indictment exists. The Rule therefore permits only the disclosure that this work makes necessary. All of this carries forward the first recognized objective of grand jury secrecy, which is to prevent the escape of those whose indictment may be contemplated.⁷⁵

The endpoint of the seal is the most testable feature, and it follows from that purpose. Secrecy is useful only while the government does not yet have the defendant before the court. Custody ends the flight risk because the government holds the person. Release pending trial ends it too, because a defendant who has been released has been brought into the court's process, knows of the charge, and is subject to the conditions of release. Students lose this point when they assume the seal lasts until trial or until the grand jury is discharged. The Rule ties the seal to neither event; it ends at custody or release.⁷⁶

The pair holds the sealed document constant and varies only the defendant's status, which is the variable the Rule uses. Three companion provisions keep the seal from being undone through other channels, and each is brief:

• The court must close any hearing to the extent necessary to prevent disclosure of a matter occurring before a grand jury, subject to any right to an open hearing in a contempt proceeding.⁷⁷
• Records, orders, and subpoenas relating to grand jury proceedings must be kept under seal to the extent and as long as necessary to prevent unauthorized disclosure of a matter occurring before a grand jury.⁷⁸
• A knowing violation of Rule 6, or of guidelines jointly issued by the Attorney General and the Director of National Intelligence under Rule 6, may be punished as a contempt of court.⁷⁹

The first two provisions close gaps that a sealed indictment alone would leave. A motion to unseal, a dispute over a subpoena, or a hearing about disclosure would otherwise air in public the very matter the grand jury protects. Both provisions are measured by necessity, so closure and sealing reach only as far as the secrecy interest does, and the sealing ends when the need ends. The closure command begins with a qualification because a person accused of contempt may have a right to an open hearing, and the Rule yields to that right. Contempt supplies the sanction behind all of this, since the court that supervises the grand jury can punish a knowing violation itself.

Because sealing is tied to need, it can be relaxed in part when the need fades. In United States v. Nixon, the President asked the district court to lift its protective order concerning the naming of certain individuals as coconspirators, arguing that news disclosures had made the reasons for it no longer meaningful, and the district court removed the order. When counsel for both parties then moved the Supreme Court to unseal the parts of the record relating to the grand jury's action regarding the President, the Court denied the motion except for the grand jury's immediate finding on his status as an unindicted co-conspirator.⁸⁰