Grand jury secrecy: plugging the leaks in an empty bucket.

• Author: Richman, Daniel C.

Although people can quarrel about the significance or reliability of Independent Counsel Kenneth Staff's investigative findings, no one can deny that his investigation produced new law. We now know that the attorney-client privilege survives the death of the client,(1) that government lawyers may not rely on that privilege to shield communications from their "client" relating to criminal misconduct,(2) and that there is no "protective function privilege" (at least not yet).(3) While bringing some clarity to certain areas, the Independent Counsel's investigation also highlighted the confused state of the law relating to Rule 6(e)'s grand jury secrecy provisions.(4)

Emblematic of the confusion was the reaction to Starr's interview with Steven Brill.(5) After avowing that his office" `never discussed grand jury proceedings,'"(6) Starr conceded that he and his deputy regularly gave "background" interviews to reporters, but noted that "`it is definitely not grand jury information, if you are talking about what witnesses tell FBI agents or us before they testify before the grand jury or about related matters.'"(7)

Brill's article took Start to task:

In fact, there are court decisions (including one in early May from the Washington D.C. federal appeals court with jurisdiction over this Start grand jury) that have ruled explicitly that leaking information about prospective witnesses who might testify at a grand jury, or about expected testimony, or about negotiations regarding immunity for testimony, or about the strategy of a grand jury proceeding all fall within [Rule 6(e)].(8) The White House also seized on Starr's apparent confession, announcing that it "raise[d] grave concerns about Mr. Starr's entire investigation."(9) Other commentators soon came to Starr's defense, however, noting that the law is not at all clear on these points.(10)

The scope of Rule 6(e)'s secrecy requirement is uncertain on other issues as well. For example, should documents produced to the grand jury under the compulsion of subpoena be considered "matters occurring before the grand jury" within the meaning of the rule? More than sixteen years ago, one district court observed: "There is an abundance of cases which address this question with a striking lack of unanimity."(11) And this lack of unanimity continues today.(12)

Why is Rule 6(e) doctrine so unsettled on these and other basic issues? Two quick answers spring to mind, one relating to the norms established by the rule; the other, to the process by which those norms are articulated.

Rule 6(e) does not establish a general regime of investigative secrecy for prosecutors and law enforcement agents. It addresses only what occurs "before the grand jury." As a matter of physical reality, however, the only thing that clearly occurs before a grand jury is testimony by a live witness, and sometimes the introduction of exhibits.(13) Just about everything else generally occurs in a prosecutor's office or out in the field: deliberations about what investigations the grand jury will pursue, and which witnesses and documents will be subpoenaed in its name; interviews of potential witnesses conducted with an eye to deciding whether they will actually be brought before the grand jury, and receipt and review of documents obtained via grand jury subpoena.(14) Particularly when prosecutors simultaneously develop a case in the grand jury and pursue other investigative options without using the grand jury, the language of Rule 6(e) provides all too little guidance as to what the government's secrecy obligations are. Left to their own devices in defining the fiction of what occurs "before" the grand jury, courts unsurprisingly reach different conclusions.

The second challenge to coherence in Rule 6(e) comes from the ways in which litigation over the rule arises. The bitter debate touched off by Staff's "admissions"(15) to Steven Brill highlights a more general point. The main reason why the White House and its allies were so quick to seize on Staff's comments was that, in the absence of a confession by a law enforcement source (or, even less likely, a reporter with no interest in being a future beneficiary of leaked information(16)) leaks are virtually impossible to prove.(17) Because of these proof problems, courts considering leak allegations rarely have the kind of factual record they would need to refine their doctrinal distinctions, and are tempted, in the absence of anyone to sanction, to read Rule 6(e) broadly. In a very different line of cases--those involving efforts by the government or a private party to use Rule 6(e) as a shield to prevent the use of grand jury material in civil litigation--courts will have a more complete record (albeit one usually provided ex parte), but the price of secrecy may be unfairness in the civil litigation. The shifting equities and institutional interests(18) in these two very different contexts surely present a challenge to courts trying to harmonize Rule 6(e) law.

These reasons have considerable explanatory power. However, the controversy over Starr's conduct, and other disputed issues of 6(e) law, reflect a more fundamental problem: the absence of a clear idea why a special regime of grand jury secrecy is necessary. Confronting this problem means not only exploring the uses and misuses of investigative information, but also asking uncomfortable questions about who really is benefited by the existence of such a regime.

1. INVESTIGATIONS INSIDE THE GRAND JURY AND OUT

   In the federal system, prosecution of all felonies must proceed by indictment (in the absence of a waiver).(19) All felony cases therefore must be presented to a grand jury. But the nature of the grand jury's involvement with these cases varies greatly. Roughly speaking, there are two kinds of cases: those in which the grand jury does not play an important investigative role, and those in which it does (if only as a source of authority).

   Although hard empirical evidence is not available, the first category probably includes the majority of federal criminal cases.(20) Were one to review the grand jury minutes in these cases, one would likely find the elicitation of hearsay testimony from one or more government agents,(21) followed by a request that the grand jury return an indictment along the lines suggested by the prosecutor. The process usually does not take very long, and just about always ends in the voting of a true bill.(22)

   Cases within this first category can differ greatly in the extent of prosecutorial involvement prior to the grand jury presentation. Some investigations--often in the narcotics or organized crime areas--will have required prosecutorial involvement at an early stage, for instance, in order to obtain authorization for electronic surveillance.(23) Most, though, will have been conducted by a law enforcement agency without the assistance of a prosecutor, to whom the case will be presented only when the agency cannot go further on its own.(24) Regardless of when a prosecutor enters the picture, however, the important thing about these investigations is that they will have been conducted without the coercive power of the grand jury. Physical evidence will have been seized (pursuant to warrant or via an investigative stop) or proffered. Some potential testimonial sources will have provided information voluntarily--victims, concerned citizens, obliging institutions (which can themselves benefit from having good relations with law enforcers). Other sources will have complied only after some level of coercion has been exerted. The coercion can be from a non-governmental entity, such as an employer whose fear of corporate (or personal) sanctions leads it to put pressure on its employees. But there are also direct governmental methods of coercion. Sometimes, law enforcement or regulatory agencies will have invoked administrative subpoena power.(25) The most important source of governmental coercion in these cases, however, comes from the power to threaten prosecution (for either the crime being investigated or some other crime, related or unrelated). This is the source of pressure that results in cooperation agreements, "no pros letters" and other such arrangements that promise leniency, or better, in exchange for information and, sometimes, testimony.(26)

   In sum, when a grand jury's role in a case is limited to authorizing formal charges, the government has a broad range of investigative options that allow it to obtain information from both the most obliging witnesses (e.g. victims) and those who, because of criminal exposure, might otherwise be the least obliging. If, however, a potential witness is either unwilling or unable to cooperate with the inquiry, and cannot be credibly threatened with prosecution, a federal prosecutor will lack the ability to compel disclosure on her own. Unlike their cousins across the Atlantic in Britain's Serious Frauds Office,(27) federal prosecutors do not have theft own subpoena power, at least as a general matter.(28) They therefore must mm to the grand jury not only for authorization of formal charges, but as a "source" of coercive power.(29)

   Because of the limitations placed on prosecutorial power, investigations will be pursued "in" the grand jury primarily in two sorts of situations. One occurs when potential witnesses are legally obliged to keep information secret in the absence of legal compulsion.(30) The other occurs when potential witnesses are reluctant to come forward in the absence of subpoenae--either because they would prefer not to give the government information, or because they would prefer not to be seen doing so voluntarily--but are not so reluctant that they will be willing to perjure themselves or go into contempt.(31)

   Given the available options, it is not hard to see why a great many investigations involving violent crimes or relatively low-level narcotics trafficking (without money laundering) occur outside the...