Grand juries –– an organic part of our Constitution, albeit one frequently dismissed as vestigial[1] — have recently shown themselves to be at the beating heart of our criminal justice system. Over the past year, federal grand juries have repeatedly thwarted attempts by President Donald Trump to prosecute his perceived political enemies, ranging from Letitia James,[2] to Mark Kelly and other members of Congress,[3] to protesters against ICE.[4] Recent empirical work has identified at least eighteen publicly reported federal grand jury refusals to indict and numerous judicial rejections of grand jury subpoenas, while emphasizing that the true number is likely higher because many proceedings remain sealed.[5]
These cases reaffirm the key defensive role of grand juries. But this article argues that grand juries also have an important, yet often overlooked, affirmative role: grand juries have the independent power to inquire into and investigate criminal misconduct or corruption by the government itself, especially when the government prosecutors who appear before them seem to be ignoring, or even condoning, such misconduct. We discuss in detail how grand jurors can perform this independent function of investigation — and how courts and the public can aid them to do so. We provide, for example, specific guidance on model language that federal judges should advisably emphasize — and other language they should exclude — to best inform grand jurors.
This independent investigative role takes on particular importance in light of a recent report that Jeanine Pirro, the U.S. Attorney for the District of Columbia, has requested that a federal special grand jury be summoned.[6] While the government’s purpose for doing so is presumably to investigate President Trump’s perceived enemies,[7] special grand juries are by design especially intended to operate beyond prosecutorial control, as we explain in detail below. Specifically, such grand juries are free to investigate matters beyond those for which they were convened, and they can issue reports even over prosecutorial objections. Moreover, in marked contrast to the law governing regular grand juries, with respect to special grand juries, members of the public may report allegations of criminal activity to the U.S. Attorney, who then is statutorily required to “inform the [special] grand jury of such alleged offense, the identity of such other person [making the allegation], and such [government] attorney’s action or recommendation.”[8]
Thus, regardless of the purpose for which the U.S. Attorney asked that this special grand jury be convened in the District of Columbia, members of the public now may demand that the U.S. Attorney inform the special grand jury of other alleged criminal conduct — particularly allegations of criminal conduct that the government has chosen not to investigate. And if the U.S. Attorney refuses to so inform the grand jury, the court itself may do so, if it concludes that the grand jury should hear those allegations — as, for instance, might be the case where the allegations are not only serious, but in a form that has sufficient detail to guide the special grand jury’s independent investigation. In fact, it was precisely for times such as the present historical moment that the special grand jury was created: as the drafter of the legislation explained, the special grand jury comes into its own in “a situation in which a prosecutor or court, for political or other reasons, would prefer that action not be taken.”[9]
Overview
The federal grand jury has long been described as both “a sword and a shield of justice.”[10] The grand jury typically functions as a “sword” for the government by assisting prosecutors’ investigations into possible criminal conduct, including through the issuance of subpoenas to require testimony and the production of documents. It functions as a “shield” for individuals by ensuring that no one can be charged with a felony without the grand jury’s assent, as guaranteed by the Fifth Amendment to the Constitution.[11]
The grand jury, however, “belongs to no branch of the institutional Government.”[12] As we discuss in Part I below, under the Constitution, grand juries are neither part of the Executive Branch nor part of the Judicial Branch: a grand jury is summoned by the Judicial Branch, but it acts independently both of the judge and the prosecuting attorney.[13] Moreover, as we discuss in Part II below, grand juries can independently conduct investigations, and are not limited to receiving information from the prosecutor: they can receive information from the court as well, can issue subpoenas for documents and witnesses on their own accord, can act on the basis of the personal knowledge of one or more grand jurors, and with respect to federal special grand juries – which must be convened in certain circumstances, as discussed below — are entitled to receive information regarding alleged criminal activity that has been submitted to federal prosecutors by members of the public.[14] In addition, as we show in Part III below, grand juries historically have exercised the independent power to issue “reports” regarding criminal conduct – and while at present grand jury secrecy rules may limit the ability of a regular federal grand jury to issue such a report publicly, a special grand jury is specifically authorized to do so—even without prosecutorial approval—if a district court concludes that the report meets certain statutory requirements.[15]
Two themes run throughout this article. The first is that the Constitution establishes the grand jury as an independent body, one that gives citizens “the opportunity . . . to make government more responsible.”[16] The second is that it is critical that both courts and the public take steps to advance the ability of grand juries to fulfill their role of holding government to account, when government attorneys themselves are unwilling to do so.
Significantly, the Department of Justice traditionally has recognized that it has a particular responsibility for supporting grand jury independence, since it is Department attorneys who appear before grand juries. As the Department Manual states, federal prosecutors have an obligation to “recognize that the grand jury is an independent body,” and accordingly “the prosecutor must always conduct himself or herself as an officer of the court whose function is to ensure that justice is done and that guilt shall not escape nor innocence suffer.”[17]
In recent cases, however, courts have found that Department of Justice prosecutors have instead subverted the independence of grand juries. In the Northern District of Illinois, the Department of Justice dropped its prosecution of ICE protesters after a hearing revealed that the prosecutors had engaged in a range of misconduct with respect to the grand jury, including dismissing at least one dissenting juror; the judge stated that while she “believe[d] deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing,” that “trust has been broken.”[18] Similarly, in an order by a three-judge panel in the District of Wyoming, the court dismissed nine indictments without prejudice, after finding that the Interim U.S. Attorney had engaged in “deeply concerning” misconduct in his dealings with the grand jury, including “inflammatory and inappropriate” descriptions of the defendants; the court found that “[b]y abusing this special position of trust [afforded government attorneys], the U.S. attorney impaired the grand jury’s integrity as an independent body.”[19] The U.S. District Court for the Northern District of Georgia not only quashed grand jury subpoenas that it found constituted an “arbitrary fishing expedition” by the Department of Justice to obtain information about election workers,[20] but raised the question whether the grand jury had in fact authorized those subpoenas.[21] And in two recent cases, one involving Minnesota state and local authorities and another involving the chair of the Federal Reserve, courts have quashed grand jury subpoenas on the ground that the Justice Department misused the grand jury process to harass perceived opponents of Trump administration policies.[22]
As these cases and others like them[23] suggest, federal courts are increasingly questioning whether the presumption of regularity should apply to the government’s conduct in grand jury proceedings, just as multiple courts have questioned whether that presumption should continue to apply in other judicial proceedings.[24] The foregoing cases also demonstrate that the basis for questioning the presumption of grand jury regularity is twofold: the record of misuse of grand juries by the administration to pursue its perceived opponents; and the hollowing out of the Justice Department by the administration, leading to the loss of the experienced career federal prosecutors who in the past would have appeared before grand juries.[25] Given this, it is particularly important that courts reconsider the presumption of regularity in the grand jury context: since grand jury proceedings take place in secret, with only government attorneys present, they are even more ripe for abuse — whether through intent or incompetence — than adversarial proceedings that take place before the court. One recent proposal would respond to these concerns by increasing transparency and judicial oversight of prosecutorial conduct before grand juries through amendments to the Federal Rules of Criminal Procedure.[26]
This article argues that it is not sufficient, however, that courts simply react to government misconduct regarding grand juries; nor should courts await possible changes to the Federal Rules, important as those would be. Courts should instead use their existing powers to reaffirm the independence of the grand jury in well-founded anticipation of such misconduct.
As an initial matter, courts should give particular attention to two provisions of the Model Grand Jury Charge set out in the Federal Judicial Center’s Benchbook for United States District Courts, both of which speak to the interrelationship of prosecutors and grand juries.[27] In light of the governmental irregularities set out above, presiding judges addressing grand juries should refrain from giving the following portion of the Model Charge:
If past experience is any indication of what to expect in the future, then you can expect candor, honesty, and good faith in matters presented by the government attorneys.[28]
In contrast, courts should place special emphasis on the following portion of the Model Charge, and should ensure that grand jurors understand its import:
If during the course of your hearings, a different crime other than the one you are investigating surfaces, you have the right to pursue this new crime. Although you can subpoena new witnesses and documents, you have no power to employ investigators or to expend federal funds for investigative purposes. If the government attorney refuses to assist you or if you believe the attorney is not acting impartially, you may take it up with me or any judge of this court. You may use this power even over the active opposition of the government’s attorneys, if you believe it is necessary to do so in the interest of justice.[29]
Courts should take steps to make meaningful the Charge to grand jurors that they can question the impartiality of the government attorney and can independently investigate crimes, “even over the active opposition” of federal prosecutors. A court may also sua sponte refer matters that come to its attention to a grand jury. In addition, if the court becomes aware that a government attorney has refused to adequately inform a grand jury of allegations by members of the public regarding governmental corruption, the court should consider exercising its own power in appropriate cases to inform the grand jury of those allegations; and this is particularly so where the government attorney refuses to properly inform a special grand jury of such allegations, given the statutory obligation of prosecutors to do so.
If, in turn, the grand jury informs the court that it has conducted an investigation over the objection of the prosecutor, the judge should make clear that the court is prepared to receive the results of that investigation under seal in the form of a “presentment” or “report” by the grand jury. The court should then consider whether matters reported by the grand jury can be disclosed publicly consistent with the federal rules of criminal procedure, or whether — as those rules permit — those matters should be disclosed for use in a separate “judicial proceeding,” which could potentially include state cases involving federal agents who have acted in violation of their duties and impeachment proceedings involving, for example, Senate-confirmed federal officers.[30]
The federal grand jury’s independent power to investigate has seldom been called into play. But that is largely because the exercise of this power is unnecessary when the government itself is generally committed to investigating corruption without fear or favor. Of course, a grand jury’s independent investigatory role is much more difficult when the prosecution refuses to cooperate with — or actively opposes — such an inquiry. But history demonstrates, as we show below, that both regular and special grand juries nonetheless can play an important role in challenging official corruption.
In fact, it is precisely when government seeks to prevent inquiry into its own misconduct that it is critical that the grand jury function as a sword, not of the government, but of the people. More than sixty years ago, a leading historian of grand juries in the United States noted that the “appreciation of the value of grand juries was always greater in times of crisis.”[31] It is high time to appreciate their value again.
I. The Independence of Grand Juries
The independent role of grand juries is enshrined in the Fifth Amendment of the Constitution. That Amendment places the power to charge –– or refuse to charge — a federal felony not with the Executive, but with the grand jury: no person can be “held to answer for” a felony “unless on a presentment or indictment of a Grand Jury.” The grand jury is thus not part of any theory of the “unitary executive.” As Justice Scalia, writing for a majority of the Supreme Court, explained: “the whole theory of [the grand jury’s] function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.”[32] “Recognizing this tradition of independence,” the Supreme Court stated, “the Fifth Amendment’s constitutional guarantee presupposes an investigative body ‘acting independently of either prosecuting attorney or judge.’”[33]
The independence of the grand jury is accordingly fundamental to our concept of justice. It is “rooted in long centuries of Anglo-American history,”[34] and “is an integral part of our constitutional heritage which was brought to this country with the common law.”[35] Indeed, the absence of a reference in the original Constitution to the grand jury — in contrast to the provision in Article III, Section 2 that “[t]he trial of all crimes . . . shall be by Jury” — led to objections to ratification that were answered by the inclusion of the grand jury guarantee in the Fifth Amendment.[36] As the Supreme Court noted, “[t]he Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty.”[37] To this day, the Justice Department Manual’s introduction on the grand jury states: “The prosecutor must recognize that the grand jury is an independent body, whose functions include . . . the investigation of crime and the initiation of criminal prosecution.”[38]
Indeed, the grand jury was, traditionally, sword as well as shield: in England, the grand jurors made “presentment” of those whom they suspected of crime.[39] In contrast to an indictment, which is typically drafted by a prosecutor and then submitted to the grand jury, “[a] presentment is a charge the grand jury brings on its own initiative.”[40] Accordingly, “[b]y including the grand jury in the Bill of Rights, the United States inherited not only the institution’s defensive function, but also its accusatory function.”[41] While a presentment could not itself force the executive to engage in a prosecution, it could publicize crime, and in England “[g]rand juries took advantage of their wide investigative powers and gained prominence in fighting government corruption by issuing presentments against royal officials,” as did grand juries in the colonies and the early Republic.[42]
Over the course of the 19th century, as prosecution services became more institutionalized, indictments increasingly displaced presentments, and the practice tended to fall into disuse.[43] The Federal Rules of Criminal Procedure, which were first promulgated in 1945, “affirmed and hastened this decline” by failing to make any provision for presentments[44] and by requiring that, unless waived by a defendant, a prosecution be by indictment, and that the indictment be signed by “an attorney for the government.”[45]
The Federal Rules, however, did not kill presentments. Nor is it clear that they could have done so constitutionally, given the Supreme Court’s conclusion that the grand jury was “brought to this country by the early colonists and incorporated in the Constitution by the Founders,” and thus “[t]here is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor.”[46] Rather, the Federal Rules of Criminal Procedure undermined presentments indirectly, not only by requiring prosecution by indictment, but also through the imposition of the rules of grand jury secrecy in Rule 6(e), which arguably might prevent a presentment from being made public.
While courts have continued to debate whether federal grand juries nonetheless retain the power to make presentments to a court,[47] Judge Wisdom’s conclusion seems apt: “Criminal presentment . . . may be in disuse in federal courts, but it has not been read out of the Constitution.”[48] In fact, the Model Grand Jury Charge recognizes the continuing availability of the presentment power, telling grand jurors that “[i]f you have a question for the court or desire to make a presentment or return an indictment to the court, you will assemble in the courtroom for these purposes.”[49] The Charge also states that the grand jury may request that the prosecutor prepare an indictment.[50] Likewise, the Oath administered to federal grand jurors refers throughout to the grand jury’s return of “presentments,” not just indictments.[51]
Accordingly, a grand jury may return a presentment to the court, albeit not publicly. The prosecutor has the discretion not to pursue the matters set out in the presentment. But a court may still choose to share the presentment “preliminarily to or in connection with a judicial proceeding” under Rule 6(e)[52] and may consider whether matters occurring before the grand jury in connection with the presentment may be released under provisions of that Rule 6.[53]
Moreover, in considering the powers and independence of modern federal grand juries, it is also necessary to take into account the separate provision Congress has made for “special” grand juries. Rule 6 of the Federal Rules of Criminal Procedure establishes the framework for calling “regular” grand juries: “When the public interest so requires, the court must order that one or more grand juries be summoned,” with 16 to 23 members, to sit for 18 months (with a possible six-month extension) or until the court dismisses it.[54] But in addition to these regular grand juries, federal law also establishes special grand juries. Under 18 U.S.C. § 3331:
In addition to such other grand juries as shall be called from time to time, each district court which is located in a judicial district containing more than four million inhabitants or in which the Attorney General . . . certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district shall order a special grand jury to be summoned at least once in each period of eighteen months unless another special grand jury is then serving.[55]
Thus, special grand juries are required to be impaneled in every judicial district with over four million inhabitants and must also be impaneled in any other district where the Attorney General has certified that they are necessary. A Chart comparing regular and special grand juries is attached as an Appendix hereto.
The provisions regarding special grand juries were added to federal law as part of the Organized Crime Control Act of 1970, 18 U.S.C. §§3331-34. While Congress was focused on responding to organized crime in this legislation,[56] special grand juries are by no means limited to such investigations. Instead, § 3332(a) provides that it is “the duty of each such grand jury . . . to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district.” Indeed, what makes special grand juries “special” is not the type of crime they investigate, or the manner in which they are convened; it is rather that federal law gives them special features to protect their autonomy, and to increase their powers, that “regular” grand juries do not have.
The special grand jury provisions of 18 U.S.C. §§ 3331-34 derive from Title I of Senate Bill S. 30.[57] The overall goal of S. 30 was to “eradicate” organized crime, but the stated purpose of the grand jury provisions of Title I was broader: as Senator John McClellan, the chief sponsor of S. 30 explained, these provisions were intended to strengthen the “broad powers of inquiry” of grand juries in all cases.[58] McClellan expanded on this in an article in the Notre Dame Law Review:[59]
The relatively greater degree of independence which a special grand jury will have under title I will permit the grand jury to indict or report upon a situation in which a prosecutor or court, for political or other reasons, would prefer that action not be taken. History has shown the wisdom of insulating grand juries from political influence. (emphasis added)
While noting that the special grand jury typically will be guided by the prosecutor in its investigations, and that its findings will be reviewed by a judge, McClellan emphasized that “the grand jury will not be controlled,” noting favorably that it was a “‘runaway [New York State] grand jury’” that in 1935 reported that “the New York County prosecutor’s office was not sufficiently diligent in pursuing organized crime investigations,” leading to the appointment of Thomas Dewey as a special prosecutor and the subsequent conviction of a number of political and organized crime defendants.[60]
McClellan stated further that the “New York City Bar committee’s objection to providing increased independence from the court and prosecutor for federal special grand juries is based on the bar’s ignorance of the need for such independence.”[61] Noting that the Bar argued that “such independence might be required if corruption of the court or the prosecutor were to threaten the federal grand jury’s effectiveness,” but that no “such conditions have been shown to exist at the federal level,” McClellan responded: “On the contrary, Congress has, I suggest, ample grounds for determining that a need exists for the creation of special federal grand juries with substantial independence of the prosecutor and court.”[62]
President Richard Nixon’s Justice Department strongly supported S. 30’s proposal to create special grand juries with substantial independence. In a memorandum submitted to the Senate, then-Attorney General John Mitchell stated:
This provision is a statutory recognition of existing case law holding that the inquisitorial powers of a grand jury are virtually unlimited and that the grand jury can initiate a case on its own and investigate any alleged violation of Federal law within its jurisdiction . . . . [c]onsequently, we can see no objection to this proposal.[63] (emphasis added)
S. 30 would have amended federal law to apply these provisions to regular grand juries as well, but as enacted the Organized Crime Control Act limited them to special grand juries.[64] As a result, under federal law, special grand juries have two structural protections that regular grand juries do not have, and are explicitly given two additional powers that regular grand juries arguably lack.
The two additional structural protections for special grand juries are an extended duration of service and a protection against dismissal by the court. In contrast to regular grand juries, which, as noted above, normally serve 18 months, special grand juries can serve up to 36 months (§ 3331(a)), or in some circumstances longer (§ 3333(e)). And, further, in striking contrast to regular grand juries – which, as also noted above, can be dismissed by the district court — a special grand jury can resist any attempt to dismiss it: if a court seeks to discharge a special grand jury “before such grand jury determines that it has completed its business, the grand jury . . . may apply to the chief judge of the circuit for an order for the continuance of the grand jury” (§ 3331(b)). Significantly, this power to challenge an attempted discharge is given to the special grand jury itself, not to the prosecutor, further demonstrating its independence.
In discussing S. 30, the Senate bill from which these two protections derived, McClellan explained that “[t]he possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation.”[65] Citing to the Senate’s hearing on S. 30 and to the Report of the President’s Crime Commission that helped shape S.30, McClellan emphasized that the “need for enhancing the independence of grand juries” was clear, since “[c]orruption has existed in federal executive departments and in the federal judiciary, though fortunately it has not been common.”[66]
But the Organized Crime Control Act did not simply provide special grand juries with these two structural protections: it also granted them two additional powers to, in Senator McClellan’s words,[67] “strengthen” the “broad powers of inquiry” of regular grand juries: the Act provided a means for the special grand jury to receive information about alleged criminal activity from the public; and it explicitly provided that special grand juries may issue reports under certain defined circumstances. We discuss these provisions in turn in the sections that follow.
II. The Right of Grand Juries to Receive Information from Other than the Executive
At common law, grand juries were not simply passive recipients of information regarding criminal activity from prosecutors. To the contrary, in the original conception of the grand jury, grand jurors were expected to have or obtain personal knowledge of possible criminal activity in their locality: it was on this basis that they “presented” defendants to the executive for prosecution.[68]
It continues to be the case that federal grand jurors — whether they are serving as members of a regular or special grand jury — may request, receive, and act on information from a variety of sources. As the Supreme Court has stated, “The [grand] jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge.”[69] The grand jury also can itself decide — without direction from the prosecutor — whether to issue subpoenas for documents or witnesses.[70] In addition, according to the Judicial Conference’s Handbook for Federal Grand Jurors,
Matters may be brought to [the grand jury’s] attention in three ways: (1) by the United States Attorney or an Assistant United States Attorney; (2) by the court that impaneled it; and (3) from the personal knowledge of a member of the grand jury or from matters properly brought to a member’s personal attention.[71]
The Handbook for Federal Grand Jurors also makes clear that, while “the major portion of the grand jury’s work is concerned with evidence brought to its attention by the government attorney,” the grand jury nonetheless “may consider additional matters otherwise brought to its attention.”[72] The Handbook states, however, that “before undertaking a formal investigation of such matters,” the grand jury “should consult with the government attorney or the court,”[73] thereby implicitly acknowledging that there may be situations in which the grand jury wishes to proceed, with or without the government attorney. The Handbook further explains that such consultation is “necessary because the grand jury has no investigative staff, and legal assistance will be necessary in the event an indictment is voted”[74] –– which is again an explanation that would not be necessary if the grand jury were limited to pursuing only those investigations brought or approved by the prosecutor.
While a private citizen cannot communicate allegations of wrongdoing directly to a regular grand jury, “[a]ny person may bring evidence of wrongdoing by a third party to the attention of the federal prosecutor,” and “[i]f a complainant believes that the prosecutor wrongfully has ignored a legitimate and significant report of illicit conduct, he may make an application to the court concerning access to the grand jury.”[75] But federal law goes further with respect to special grand juries. As is the case with regular grand juries, “alleged offenses may be brought to the attention” of the special grand jury “by the court” or “by any attorney appearing on behalf of the United States for the presentation of evidence.”[76] In addition, Congress provided that a special grand jury may also receive information concerning an alleged offense from a third source: “from any other person.”[77] In this regard, § 3332(a) provides that “[a]ny such attorney [for the United States] receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.”[78] Thus, while the U.S. attorney has no legal obligation to inform a regular grand jury of allegations by the public of wrongdoing, he or she is obligated to inform a special grand jury of such allegations.
In requiring the U.S. Attorney to inform the special grand jury of this public input, the Organized Crime Control Act aimed to strengthen both the “broad powers of inquiry” of the special grand jury, and its independence from the prosecutor and court. S.30, the precursor of the Organized Crime Control Act, provided that “[n]o person shall be deprived of opportunity to communicate to the foreman of a grand jury any information concerning any such alleged offense or instance of misconduct.”[79] The Justice Department, again through then-Attorney General Mitchell’s memorandum, fully supported this provision for direct communication by the public to the grand jury -– without the intervention of the U.S. Attorney — stating that “[t]his provision could well encourage wider public participation in the fight against organized crime and we, therefore, support it.”[80]
But the Senate’s provision for direct contact by the public with the grand jury met opposition in the House of Representatives, including from the American Bar Association (ABA), which called for the revisions that are now reflected in § 3332(a). The ABA urged that “the proposed right of a private person be modified to require that information be channelled through the appropriate prosecutor,” but that “[a]t the same time . . . there be built into the process a safeguard that will require the prosecutor to give an accounting of his screening.[81]
In short, Congress intended that § 3332(a) would guarantee the right of the public to present allegations of criminal conduct to special grand juries, albeit through the medium of the prosecutor, who is to provide his or her “action or recommendation” to the special grand jury regarding the “alleged offense” reported by the member of the public. This prosecutorial involvement provides an important safeguard against frivolous allegations or accusations, since the prosecutor may provide recommendations as to those allegations to the special grand jury. At the same time, Congress prohibited the prosecutor from completely blocking the grand jury’s access to information provided by the public — and this applies a fortiori to potentially meritorious allegations of offenses that the prosecutor wants to keep from the special grand jury precisely because they might embarrass, or implicate, the government. As noted above, in enacting Title I of the Organized Crime Control Act, Congress specifically intended to empower special grand juries to independently investigate corruption by federal officials that otherwise might remain hidden.
But whether this right to provide information to a special grand jury can be enforced by a member of the public is a different question. Interpreting § 3332(a), in 1985, the District Court for the Southern District of New York in In re Grand Jury Application issued a writ of mandamus sought by private individuals to compel the U.S. Attorney “to present the ‘facts’ concerning alleged criminal wrongdoing of certain named defendants to the [special] grand jury,” either directly or by allowing the plaintiffs’ attorney to testify before the grand jury.[82] Subsequent decisions, however, have rejected the proposition that private individuals have standing to enforce their requests that information be provided to special grand juries pursuant to § 3332(a), at least when the petitioner cannot show concrete, individualized injury that could be remedied by the provision of such information to the grand jury.[83]
As a result, some might argue that § 3332(a) creates, at best, only the technical right of a member of the public to present information to a special grand jury, because the U.S. Attorney may – contrary to law – simply refuse to “inform the grand jury of such alleged offense,” secure in the knowledge that the member of the public is unlikely to have standing to challenge the U.S. Attorney’s refusal. But such a refusal need not in fact be the end of the matter. Even if, contrary to law, the U.S. Attorney declines to provide the information to the special grand jury, the member of the public may in the alternative request that the court do so. As noted above, § 3332(a) provides that alleged offenses also may be brought to the special grand jury’s attention “by the court,” just as the court also may bring matters to the attention of a regular grand jury.[84] This provides a middle way, one that allows a court to factor out frivolous requests that allegations of criminal conduct be placed before a grand jury — whether regular or special — while still preserving the ability to ensure that the Department of Justice is not able to block the presentation to the grand jury of potentially meritorious allegations relating to crimes committed by government officials themselves.
To be sure, courts may be reluctant to take on this task, but they are clearly authorized to do so, by federal common law with respect to regular grand juries, and by both common law and statute with regard to special grand juries.[85] Moreover, it is not necessary for the court to take a position with regard to a matter it brings to the attention of a grand jury, whether regular or special; in particular, with respect to special grand juries, the court, unlike the prosecutor, is not required by § 3332(a) to make a “recommendation” regarding such allegations, so it can simply transmit them without comment.[86] Finally, a court also has its own independent power to bring a matter to the attention of a grand jury, whether regular or special, on the court’s own initiative, quite apart from any application by a member of the public.[87]
It might be objected that even if a court were to inform a grand jury of allegations relating to government corruption, or even if the grand jury were to learn of these allegations from the news or other sources, no consequences could follow, since absent guidance from the U.S. Attorney, the grand jury would be unable to conduct a meaningful investigation. But the objection that prosecutorial guidance is necessary fails both as a matter of law and of historical grand jury practice. As noted above, as a matter of law, a grand jury may “pursue investigations on its own without the consent or participation of a prosecutor.”[88] As the Supreme Court has explained:
Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials.[89]
Moreover, history and practice show that grand juries can act independently of prosecutorial guidance –– not only by rejecting indictments that the Government seeks, but by pursuing investigations that Government prosecutors would prefer to foreclose entirely. Such grand juries are sometimes characterized as “runaways,” but as Tim Lynch at the Cato Institute noted, “[t]he expression ‘runaway grand jury,’ is typically used to disparage a grand jury that has turned its attention toward officialdom.”[90] In fact, during the late nineteenth and first half of the twentieth century, “runaway” state grand juries were able to dismantle corruption schemes and other governmental abuses in cities across the United States, including the Tweed Ring and Tammany Hall in New York City, despite attempts by prosecutors and other officials to block their investigations. As a leading historian of the grand jury in America observed:
The grand jury, which in the past had proved itself a bulwark against tyrannical monarchs, demonstrated repeatedly in the United States its effectiveness in rescuing cities and states from an equally despotic rule of fraud and corruption. Tyranny in the form of alliances between powerful corporations and avaricious politicians frequently threatened individual liberty. Time and again, when bribery riddled city councils or state legislatures, when public officials united to plunder, or when powerful industrial and political interests conspired to defeat justice, the grand jury stepped in. . . . Where corruption extended to the office of the district attorney, the grand jury’s ability to act effectively depended upon its independence of the prosecutor. When necessary, juries demonstrated that they could take investigations into their own hands, ignoring the district attorney.[91]
We have noted above that grand juries may disclose the results of such an independent investigation in the form of a “presentment” to the court. We discuss in the next section whether the results of such an independent investigation also can be made public in a report by a federal grand jury. The rules of grand jury secrecy established by Rule 6(e) may block the public release of such information, although that is not necessarily true in all cases.[92] But it is important to note that, for three reasons, such investigations serve a critical purpose, notwithstanding the rules of grand jury secrecy. First, as noted above, the rules of federal criminal procedure (in addition to any inherent powers) allow courts to share grand jury materials “in connection with a judicial proceeding,” which may include impeachment and state-level criminal proceedings. Second, an independent grand jury investigation –– whether undertaken by a regular or special grand jury –– may preserve critical evidence, including by taking contemporaneous sworn testimony while memories are fresh, and by helping to prevent spoliation of evidence.[93] Third, an attorney for the government may share that preserved evidence with another grand jury, Fed. R. Crim. P. 6(e)(3)(C), creating the possibility that a prosecution might be undertaken by prosecutors in the future, even if current prosecutors decline or are not permitted to do so.
What matters might a grand jury investigate, notwithstanding the opposition of a prosecutor? One immediate possibility would be matters where the government seemingly has cut off an investigation that it previously had initiated. For example, recent reporting suggests that “President Trump’s political appointees quashed an early-stage criminal investigation into the circumstances surrounding his clemency grant to a convicted fraudster,” after the career prosecutors working on the case had obtained “jailhouse communications in which [the convicted defendant] discussed making payments of $2.5 million or more to people or companies to help facilitate his clemency.”[94] If there was in fact a grand jury investigation of this matter, then it may have preserved valuable evidence before it was closed by the prosecutors; moreover, there would be nothing to prevent a future grand jury from pursuing that investigation, if a new prosecutor were to transfer the evidence to that subsequent grand jury pursuant to Rule 6(e)(3)(C). The same might also be true with regard to other dismissals or settlements by the Trump Justice Department that have drawn judicial scrutiny.[95]
III. The Right of Grand Juries to Make Reports
Historically, grand juries issued reports on a wide variety of issues.[96] In particular, “common law juries performed a public reporting function by identifying official misconduct without initiating prosecution.”[97] The DOJ’s Justice Manual suggests that it “is a difficult and complex question” whether regular federal grand juries continue to have the power to make reports.[98] However, there is a long tradition of federal courts accepting and allowing the publication of such reports, at least to the extent that they do not name particular individuals as having committed crimes.[99] As recently as 2004, a federal grand jury issued a report in a tangled drug-kingpin case featuring significant law-enforcement corruption.[100] The grand jury cited its “common-law authority to comment on the general state of law enforcement and public order and to bring to the attention of the Court matters of public concern”[101] and the need to “restore public confidence.”[102]
Whether a regular federal grand jury can issue a report may have been treated as a “difficult and complex question.” However, state grand juries routinely issue reports on subjects referred to them by statute, such as prison conditions.[103] Grand jury reports, then, are eminently traditional—part of the fabric of the American grand jury system. Indeed, as discussed above with regard to presentments, it is an open question how far Rule 6(e) can constitutionally impose restrictions on grand jury reports, consistent with the Supreme Court’s statements that “our constitutional grand jury was intended to operate substantially like its English progenitor.”[104]
But whatever may be the power of regular grand juries to create reports, Congress has explicitly given that power to special grand juries. The power to issue reports was considered critical by the Congress that enacted the Organized Crime Control Act. As Senator McClellan explained, Title I of S. 30, from which the special grand jury provisions of the Act were drawn, “revives . . . the grand jury reporting powers that were a chief reason for the grand jury’s creation in England at the Assize of Clarendon in 1166.”[105] The Senator noted that New York Governor Thomas Dewey had described grand jury reports as “‘one of the most valued and treasured restraints upon tyranny and corruption in public office,’” but that “the report writing functions of federal grand juries have been substantially curtailed by district court level decisions, although grand juries continue to issue and district courts continue to accept reports.”[106]
Accordingly, the Organized Crime Control Act purposefully made explicit that such reports could be issued by special grand juries, whatever the case might be with respect to regular grand juries. Section 3333(a) provides:
[a] special grand jury impaneled by any district court, with the concurrence of a majority of its members, may, upon completion of its original term, or each extension thereof, submit to the court a report —
(1) concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or
(2) regarding organized crime conditions in the district.
Once a court receives a report from a special grand jury, the conditions under which the court may publicly release that report depends on which type of report it is. Upon receiving the second type of report noted above – one regarding “organized crime conditions” – the court shall examine the report and the minutes of the special grand jury and then make an order accepting and filing the report as a public record if the court is satisfied that it is supported by the preponderance of the evidence and that it is “not critical of an identified person.”[107]
As to special grand jury reports regarding noncriminal misconduct, malfeasance, or misfeasance of identified public officials in connection with organized criminal activity, the procedure is more complex. The court must be satisfied not only that the report is supported by the preponderance of the evidence, but also that an opportunity to testify before the grand jury was offered to each person named therein and witnesses on his behalf, “as designated by him to the foreman of the grand jury” – a further indication of the primacy of the grand jury, rather than the prosecutor, in this context.[108] Thereafter, an order accepting the report may not be entered, nor may the report be made public, until the public official has had a chance to respond in a verified answer, which will be made part of the report.[109] After the report is made public, the United States Attorney is charged to deliver a copy of the report “for appropriate action to each public officer or body having jurisdiction, responsibility, or authority over each public officer or employee named in the report.”[110] But both here and with regard to reports regarding organized crime conditions, the court may seal a report if a public filing “may prejudice fair consideration of a pending criminal matter.”[111]
In short, there are two paths open to special grand juries considering making reports: a report regarding “organized crime conditions” in the district that does not criticize identified persons, or a report that addresses official misconduct relating to “organized criminal activity.” As the Department of Justice explained in its prior Criminal Justice Manual, “‘organized criminal activity’ [in § 3333] should be interpreted as being much broader than ‘organized crime;’ it includes ‘any criminal activity collectively undertaken.”[112] Furthermore, “[r]eports involving public officials must connect ‘misconduct,’ ‘malfeasance,’ or ‘misfeasance’ with ‘organized criminal activity.’”[113] Finally, “the ‘misconduct,’ ‘malfeasance,’ or ‘misfeasance’ that may be the subject of a report (provided it is related to organized criminal activity) must, to some degree, involve willful wrongdoing as distinguished from mere inaction or lack of diligence on the part of the public official.”[114]
As the Justice Manual recognizes, § 3333 contemplates that such a report may be prepared by a special grand jury without a request by the prosecutor.[115] Here again, it might be objected that, notwithstanding what the statute makes possible, special grand juries are not really competent to investigate and draft such reports in the absence of prosecutorial guidance. And, here again, history demonstrates otherwise. As noted above, state grand juries investigating and reporting on corruption in multiple U.S. cities were able to overcome not just prosecutorial indifference, but actual prosecutorial interference.[116] Similarly, in more recent times, a special grand jury, which was convened to examine possible criminal violations of federal environmental law at a Rockwell International plant at Rocky Flats, Colorado, refused to accept the U.S. Attorney’s Office’s attempt to end the case by means of a corporate disposition. The jurors instead drafted charges and made a report to the court regarding the alleged culpability of individuals.[117]
While the district court ultimately blocked release of the grand jury’s report in the Rocky Flats case, it is important to note that the court’s concern was not that the special grand jury had independently prepared a report, but that it had gone, in the Court’s view, too far in the report itself:
The Court’s inability to release the Report is unfortunate. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view.[118]
But even so, the district court “direct[ed] the Government to submit for in camera inspection a proposed redacted or excised version of the report that, if possible, could lawfully be released to the public.”[119] The lesson of Rocky Flats, then, is not that special grand jury reports cannot be made public, but rather that they can be, provided that they meet the requirements of § 3333.
Moreover, the structure of § 3333 reinforces the conclusion that special grand juries can satisfy the statutory requirements for public release of their reports even absent a prosecutorial guiding hand. Section 3333 contemplates a key oversight role for the court with regard to special grand jury reports. The court may not file such a report as a public record unless the court is satisfied that the report “is supported by the preponderance of the evidence” before the grand jury, and that it meets the other statutory conditions.[120] Significantly, however, the court is not required simply to reject a report that does not meet these requirements. Instead, “[w]henever the court to which a report is submitted . . . is not satisfied that the report complies with [the provisions governing such reports] . . . it may direct that additional testimony be taken before the same grand jury” or that the report remain sealed until the other provisions governing such reports are met.[121] And “[a] special grand jury term may be extended by the district court beyond thirty-six months in order that such additional testimony may be taken or the provisions . . . may be met.”[122] Finally, nothing in § 3333 prevents the court from inviting the Department of Justice to present its views on whether the grand jury’s report meets the statutory standards, including satisfying the “preponderance of the evidence” requirement.
In short, then, Congress created an iterative process with respect to special grand jury reports. Under this process, the court not only reviews a report for its sufficiency, but can direct that an insufficient report be supplemented with additional testimony or revisions necessary to allow the report to be made public.[123] This provides a critical means by which a grand jury’s report can be rendered legally sufficient for public release under § 3333, with or without prosecutorial guidance. That this path does not appear to be one that federal special grand juries have often pursued to date does not mean that examples cannot be found elsewhere: to the contrary, the history of reports from state grand juries shows that they “often confined themselves to public statements setting forth irregularities and suggesting reforms,” rather than preferring “criminal charges against public officials in order to curb abuses.”[124]
Conclusion
Grand juries can themselves take action when politically-directed prosecutors choose to overlook blatant public corruption or governmental criminal misconduct. Both regular and special grand juries can independently investigate such corruption, and by so doing can perform the valuable function of preserving evidence for possible future federal prosecutions, even if that evidence cannot be publicly released at present because of grand jury secrecy. Plus, there are the other avenues by which a court may authorize disclosure of grand jury matters for the purpose of state or local investigations and prosecutions, congressional impeachment processes, and other judicial proceedings. What’s more, special grand juries can go further. If their proceedings meet the conditions set out in § 3333, they can publicly report on willful wrongdoing of public officials that involves organized criminal activity, including public corruption.
In each of these ways, grand juries can become, in the words of Thomas Dewey, not only “the bulwark of protection for the innocent,” but “the sword of the community against wrongdoers.”[125]
Appendix: Comparing Regular and Special Grand Juries
| Regular Grand Jury | Special Grand Jury |
| 1. When convened | “When the public interest so requires, the court must order that one or more grand juries be summoned.”
Fed. R. Crim. P. 6(a) | “In addition to such other grand juries as shall be called from time to time, each district court which is located in a judicial district containing more than four million inhabitants or in which the Attorney General ... certifies in writing to the chief judge of the district that in his judgment a special grand jury is necessary because of criminal activity in the district shall order a special grand jury to be summoned at least once in each period of eighteen months.”
18 U.S.C. § 3331(a) |
| 2. Composition | 16-23 members (18 U.S.C. § 3321; Fed. R. Crim. P 6(a)) “selected at random from a fair cross section of the community in the district or division wherein the court convenes.”
28 U.S.C. § 1861 | Same.
See also 18 U.S.C. § 3334 (the provisions of the Federal Rules of Criminal Procedure “applicable to regular grand juries shall apply to special grand juries to the extent not inconsistent with” the statutory provisions governing special grand juries (18 U.S.C. §§3331-33)) |
| 3. Duration | Must serve until discharged by the court, but may serve no more than 18 months, unless court concludes an extension is in the public interest; extension is not to exceed 6 months (except as otherwise provided by statute).
Fed. R. Crim. P. 6(g) | Shall serve for 18 months unless court discharges earlier following a majority vote by the grand jury that its business has been completed. 18 U.S.C. § 3331(a). Sequential 6-month extensions may be granted if the district court concludes that the business of the grand jury has not been completed. Id. May not serve for more than 36 months, id., unless court to which a report has been submitted (see infra) extends the special grand jury beyond 36 months to permit additional testimony to be taken or to comply with other provisions governing reports. § 3333(e). |
| 4. Right to challenge discharge by the court | None. | If the district court fails to extend the term of the special grand jury or enters an order of discharge before the grand jury has determined that it has completed its business, the grand jury (upon an affirmative vote by a majority of its members) may apply to the chief judge of the circuit for an order for continuance of the term of the grand jury.
18 U.S.C. § 3331(b) |
| 5. Crimes grand jury may investigate | Any federal crimes committed within the district where the grand jury is impaneled. See Model Grand Jury Charge, Benchbook at 342 (“You may inquire only as to federal offenses committed in this district.”) | Same. See 18 U.S.C. § 3332(a) (“It shall be the duty of each such [special] grand jury impaneled within any judicial district to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district.”) |
| 6. How matters may be brought to grand jury’s attention | (1) By government attorney; (2) by the court that impaneled it; or (3) from personal knowledge of a grand juror or matters properly brought to a member’s personal attention. Judicial Conference, Handbook for Federal Grand Jurors at 4. | “Such alleged offenses may be brought to the attention of the [special] grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence.” 18 U.S.C. § 3332(a). Like regular grand jurors, special grand jurors can also act on their personal knowledge or on matters properly brought to their attention. Judicial Conference, Handbook for Federal Grand Jurors at 4. |
| 7. Right of public to convey information to grand jury regarding an alleged Offense | No right of public to convey information regarding an alleged offense to a regular grand jury. In their discretion, court or U.S. Attorney may convey such information received from public. See, e.g., In re New Haven Grand Jury, 604 F. Supp 453, 460-61 (D. Conn. 1985). | Public has a right to convey information concerning an alleged offense to the grand jury, through the attorney for the government. 18 U.S.C. § 3332(a) (“Any such [government] attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such [government] attorney’s action or recommendation.”) |
| 8. Right to conduct independent Investigation | Yes. See, e.g., Model Grand Jury Charge, Benchbook at 343 (“If during the course of your hearings, a different crime other than the one you are investigating surfaces, you have the right to pursue this new crime. ... You may use this power even over the active opposition of the government’s attorneys, if you believe it is necessary to do so in the interest of justice.” | Same. |
| 9. Right to make a presentment of proposed charges to the court without approval of prosecutor | Yes. See, e.g., Model Grand Jury Charge, Benchbook at 346 (“If you ... desire to make a presentment or return an indictment to the court, you will assemble in the courtroom for these purposes.”) | Same. |
| 10. Right to make a report | Unsettled whether a regular grand jury has the power to make a report. See, e.g., Justice Manual 9-11.101 (suggesting that this is “a difficult and complex question”). | Yes. 18 U.S.C. § 3333(a) (“A special grand jury impaneled by any district court, with the concurrence of a majority of its members, may ... submit to the court a report” either (1) “concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action” or (2) “regarding organized crime conditions in the district.”
The court receiving such a report may make it public if certain statutory conditions are satisfied. See 18 U.S.C. § 3333(c)-(e). |
[1] Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333, 2333 (2008), https://ir.lawnet.fordham.edu/flr/vol76/iss5/3 (“Scholars regard the grand jury just as doctors regard the appendix: an organic part of our constitutional makeup, but not of much use.”); Nino C. Monea, Going Rogue: Independent Grand Juries Throughout America, 72 Maine L. Rev. 275, 323 (2020), https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1734&context=mlr (“Today, grand juries are a vestigial constitutional right. Like the human appendix, it once served a purpose but now is a useless remnant of our past.”).
[2] Jonah Bromwich et al., A Grand Jury Again Declines to Reindict Letitia James, N.Y. Times, (Dec. 11, 2025), https://www.nytimes.com/2025/12/11/us/politics/grand-jury-letitia-james.html?smid=nytcore-ios-share
[3] Alan Feuer et al., Grand Jury Rebuffs Justice Department Attempt to Indict 6 Democrats in Congress, N.Y. Times, (Feb. 10, 2026), https://www.nytimes.com/2025/12/11/us/politics/grand-jury-letitia-james.html?smid=nytcore-ios-share;
[4] See, e.g., James Queally and Brittney Mejia, Trump’s Top Federal Prosecutor in LA Struggles to Secure Indictments in Protest Cases, L.A. Times (July 23, 2025), https://www.latimes.com/california/story/2025-07-23/protester-charges-essayli; Jordan Rubin, Jeanine Pirro’s Office Fails Three Times to Convince Grand Jurors to Return Indictment, MS Now (Aug. 26, 2025), https://www.ms.now/deadline-white-house/deadline-legal-blog/jeanine-pirro-washington-indictment-rcna227190.
[5] See Dani Schulkin, Ryan Goodman & Huzaifa Khan, “Zero Evidence”: How Judges and Grand Juries Have Rejected the Trump Administration Efforts to Investigate and Prosecute, Just Sec. (July 20, 2026), https://www.justsecurity.org/146665/courts-grand-juries-reject-trump-investigations/.
[6] Perry Stein & Salvador Rizzo, Pirro, in Rare Move, Convenes Special Grand Jury in Washington, Wash. Post (Aug. 12, 2026), https://www.washingtonpost.com/national-security/2026/08/12/pirro-convenes-unusual-grand-jury-dc-that-can-focus-single-case-issue-report/
[7] Id.
[8] See infra text accompanying note 78.
[9] See infra note 59 and accompanying text.
[10] See United States v. Cox, 342 F.2d 167, 186 n. 1 (5th Cir. 1965) (Wisdom, J., concurring) (quoting Am. Bar Ass’n, Federal Grand Jury Handbook 8 (1959)); Charles Doyle, Cong. Rsch. Serv., 95-1135, The Federal Grand Jury 1 (2025).
[11] U.S. Const. amend. V (“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .”). A defendant, however, can waive indictment. Fed. R. Crim. P. 7(b).
[12] United States v. Williams, 504 U.S. 36, 47 (1992).
[13] See Part I infra.
[14] See Part II infra.
[15] See Part III infra. A chart laying out the similarities and differences of regular and special grand juries is included as an Appendix hereto.
[16] See Richard D. Younger, The People’s Panel: The Grand Jury in the United States 1634-1941, at 244 (1963), https://archive.org/details/peoplespanelgran00youn.
[17] U.S. Dep’t of Just., Just. Manual § 9-11.010 (2020), https://www.justice.gov/jm/jm-9-11000-grand-jury
[18] Alan Feuer, As Trump Politicizes Justice Dept., Prosecutors Struggle With Grand Juries, N.Y. Times (May 26 2026), https://www.nytimes.com/2026/05/26/us/politics/trump-justice-department-grand-juries.html; Julie Bosman, Federal Prosecutors in Chicago Drop Charges Against ICE Protestors, N.Y. Times (May 21, 2026) https://www.nytimes.com/2026/05/21/us/chicago-ice-protesters-charges-dropped.html. One of the grand jurors in that case, noting that the prosecutors were trying again to obtain an indictment after a no bill had been returned, asked whether the government gets “[u]nlimited tries. Like you keep coming back as many times as you want?” Case: 1:25-cr-00693 Grand Jury Tr. 8, Dkt. No. 220 (N.D. Ill), https://news.wttw.com/sites/default/files/article/file-attachments/gov.uscourts.ilnd_.488591.220.0_1.pdf. Cf. In Re: Report of Lack of Concurrence by Grand Jury, Standing Order No. 25-09 (D.D.C. Mar. 4, 2026) (requiring foreperson to promptly report when grand jury fails to concur in an indictment), https://www.dcd.uscourts.gov/sites/dcd/files/SO-No.%2026-09.pdf.
[19] U.S. v. Hopper, No. 1-26-cr-00028-ABJ at 8, 12-13 (D. Wyo. May 15, 2026), https://www.nacdl.org/getattachment/9b1d05fa-4edc-4953-8ecc-bdd99d2d8500/c-gov-uscourts-wyd-72798-43-0.pdf.
[20] Fulton County Board of Registration and Elections v. U.S., No. 1:26-cv-02777-WMR, at 16 (N.D. Ga. July 7, 2026), https://storage.courtlistener.com/recap/gov.uscourts.gand.359862/gov.uscourts.gand.359862.37.0_2.pdf.
[21] Id. at 3 n.2 (noting that “no evidence has been presented to the Court that the actual Grand Jury in the Northern District of Georgia seeks this information, as opposed to the out-of-district prosecutors who the DOJ has appointed to lead this inquiry who have served this Subpoena in the name of the Grand Jury”).
[22] See In re Grand Jury Subpoenas, No. 0:26-mc-00043-PJS, 15 (D. Minn. June 22, 2026) (“[i]nitiating a criminal investigation in order to harass political opponents or to coerce them into taking official action … is a blatantly unlawful and unethical use the grand-jury process.”); In re Grand Jury Subpoenas Nos. [Redacted] & [Redacted], Board of Governors of the Federal Reserve System, Miscellaneous Action No. 26-12 (JEB) (D.D.C. Mar. 13, 2026) (“prosecutors may not use the grand jury … to ‘select targets of investigation out of malice or an intent to harass.’”) (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)).
[23] See Schulkin, Goodman & Khan, supra note 5.
[24] Ryan Goodman et al., The “Presumption of Regularity” in Trump Administration Litigation (4th Edition), Just Security (Mar. 19, 2026), https://www.justsecurity.org/120547/presumption-regularity-trump-administration-litigation/.
[25] See, e.g., Justice Department Struggles As Thousands Exit—and Few Are Replaced, Am. Bar Ass’n (Nov. 19, 2025), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/november-25-wl/outside-the-gao-1125wl/; Danny Hakim, Failed Immigration Cases Leave Chicago Prosecutor’s Office Reeling, N.Y. Times (July 19, 2026). For examples of misconduct before the grand jury by an inexperienced administration appointee in cases involving “ordinary” crimes, see, e.g., U.S. v. Hopper, No. 1-26-cr-00028-ABJ at 8, 12-13 (D. Wyo. May 15, 2026), https://www.nacdl.org/getattachment/9b1d05fa-4edc-4953-8ecc-bdd99d2d8500/c-gov-uscourts-wyd-72798-43-0.pdf; Angus Thuermer, Jr., Judges Toss Charges Against 9 Over US Attorney Darin Smith’s ‘Deeply Concerning’ Misconduct, Associated Press (May 18, 2026), https://apnews.com/article/wyoming-attorney-darin-smith-felony-indictments-dismissed-1264bff882521634f9b4fc8d35bceb9a. Cf. U.S. v. Comey, Case 1:25-cr-00272-MSN-WEF at 1, 15 (E.D. Va. Nov. 17, 2025) (ordering disclosure of grand jury transcripts to defense in light of “the prospect that government misconduct may have tainted the grand jury proceedings,” including “fundamental misstatements of the law” by Lindsey Halligan, whom President Trump had attempted to install as interim U.S. Attorney), https://storage.courtlistener.com/recap/gov.uscourts.vaed.582136/gov.uscourts.vaed.582136.191.0.pdf; Kyle Cheney & Josh Gerstein, Judge Says Possible Errors by Lindsey Halligan Could Imperil Comey Case, Politico (Nov. 17, 2025), https://www.politico.com/news/2025/11/17/lindsey-halligan-indictment-james-comey-00654224.
[26] See Nathan Reilly, Trust, But Verify: Three Grand Jury Reforms to Hold the Government Accountable, Just Sec. (July 21, 2026), https://www.justsecurity.org/146230/trust-but-verify-three-grand-jury-reforms-to-hold-the-government-accountable/.
[27] Federal Judicial Center, Benchbook for United States District Courts (7th ed. Feb. 2026) (hereinafter “Benchbook”), https://www.fjc.gov/sites/default/files/materials/04/Benchbook-US-District-Courts-2026.pdf.
[28] Id. at 346; see also Gregory T. Fouts, Reading the Jurors Their Rights: The Continuing Question of Grand Jury Independence, 79 Indiana L. J. 323, 342-43 (2004) (arguing that this language is inconsistent with grand jury independence, since it is likely to predispose the grand jury positively towards the prosecutors, who should instead be “required to show that they possess these qualities on their own.”)
[29] Benchbook, supra note 27, at 343; see infra note 56 and accompanying discussion regarding similar language in the Handbook provided to federal grand jurors.
[30] Federal Rule of Criminal Procedure 6(e)(3)(E) (“The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding”); Ryan Goodman and Alex Whiting, How Mueller Can Make the Grand Jury Report Public or Hand it to Congress, Just Sec. (Aug. 14, 2017); see also Notes of Advisory Committee on Rules-1985 Amendment for Federal Rule of Criminal Procedure 6 (discussion in context of “state judicial proceedings”).
[31] See Younger, supra note 16, at 3 (“But appreciation of the value of grand juries was always greater in times of crisis, and, during periods when threats to individual liberty were less obvious, legal reformers, efficiency experts, and a few who feared government by the people worked diligently to overthrow the institution.”).
[32] United States v. Williams, 504 U.S. at 47.
[33] Id. at 49 (quoting United States v. Dionisio, 410 U.S. 1, 16 (1973)) (emphasis omitted).
[34] Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result). See Doyle, supra note 10, at 2 n.5 (tracing early history of the grand jury to the Assize of Clarendon of Henry II in 1166, which called for the assembly of twelve knights or freemen from within the jurisdiction, plus four freemen from each township within the jurisdiction, to identify from their own knowledge and under oath those reputed to have committed crimes); The Avalon Project, Assize of Clarendon, 1166, https://avalon.law.yale.edu/medieval/assizecl.asp
[35] U.S. v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion).
[36] See Federal Judicial Center, Juries in the Federal Judicial System, https://www.fjc.gov/history/work-courts/juries-in-federal-judicial-system (“Some of those opposing the Constitution’s ratification argued that the lack of a grand jury requirement could lead to unfair prosecutions on trumped-up charges.”); see also Suja A. Thomas, Blackstone’ s Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States, 55 Wm. & Mary L. Rev. 1195, 1199 (2014), https://scholarship.law.wm.edu/wmlr/vol55/iss3/15.
[37] U.S. v. Mandujano, 425 U.S. at 571 (plurality opinion).
[38] U.S. Dep’t of Just., Just. Manual § 9-11.010 (2020), https://www.justice.gov/jm/jm-9-11000-grand-jury.
[39] See Richard M. Helmholz, The Early History of the Grand Jury and Canon Law, 50 U. Chi. L. Rev. 613, 613 (1983) (“[f]rom this method [under the Assize of Clarendon] of inquiry and presentment of persons suspected of serious crimes … grew the two-stage process of indictment and trial that we recognize as the essence of common law criminal procedure”).
[40] Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 Yale L.J. 1333, 1335 (1994) (emphasis added).
[41] Id. at 1334-45.
[42] Id. at 1336-37.
[43] Id. at 1340-42.
[44] Id. at 1334-45; Fouts, supra note 28, at 327-28.
[45] Fed. R. Crim. P. 7.
[46] Costello v. United States, 350 U.S. 359, 362 (1956); see Blair v. United States, 250 U.S. 273, 282 (1919) (“the Fifth Amendment and the statutes relative to the organization of grand juries recognize such a jury as being possessed of the same powers that pertained to its British prototype ….”); Hale v. Henkel, 201 U.S. 43, 59-64 (1906) (recognizing that a grand jury may originate charges even if they were not laid before them by a prosecutor).
[47] Compare In re Presentment of Special Grand Jury Impaneled January 1969, 315 F. Supp. 662, 676 (D. Md. 1970) (permitting publication of presentment) with In Re Grand Jury Proceedings, 813 F. Supp. 1451 (D. Colo. 1993) (concluding that presentments are “obsolete,” and that any such documents prepared by a special grand jury must be considered under the rules regarding “reports”).
[48] U.S. v. Cox, 342 F.2d 167, 188 (5th Cir. 1965) (Wisdom, J., concurring specially). See also In re Report and Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives, 370 F. Supp. 1219, 1222 (D.D.C. 1974) (“the grand jury may insist that prosecutors prepare whatever accusations it deems appropriate and may return a draft indictment even though the government attorney refuses to sign it”) (collecting cases), aff’d sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974). For a discussion of the constitutional status of presentments, see Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 Creighton L. Rev 821, 842 (arguing that “[p]resent federal grand jury practice, which forbids grand jurors from issuing presentments without consent of a federal prosecutor, is unconstitutional and violative of the historical principles on which the creation of the grand jury was premised”).
[49] Benchbook, supra note 27, at 346 (emphasis added).
[50] Id. (if grand jurors “believe that an indictment is warranted, then you will request that the government attorney prepare the formal written indictment if one has not already been prepared and presented to you.”)
[51] Id. at 341 (“Do each of you solemnly swear [affirm] to diligently inquire into and make true presentment or indictment of all such matters and things touching your present grand jury service that are given to you in charge or otherwise come to your knowledge; to keep secret the counsel of the United States, your fellows, and yourselves; and not to present or indict any person through hatred, malice, or ill will, nor to leave any person unpresented or unindicted through fear, favor, or affection or for any reward or hope or promise thereof, but in all your presentments and indictments to present the truth, the whole truth, and nothing but the truth to the best of your skill and understanding? If so, answer ‘I do.’”)
[52] See supra note 27.
[53] See infra note 88.
[54] Like trial (or “petit”) jurors, grand jurors are required to be “selected at random from a fair cross section of the community” in the relevant district. 28 U.S.C. § 1861.
[55] 18 U.S.C. 3331 (emphasis added).
[56] J.B. Williams, Organized Crime Control Act of 1970: Introduction, 4 U. Mich. J. L. Reform 546, 546 (1971), https://repository.law.umich.edu/mjlr/vol4/iss3/9.
[57] In re Grand Jury Application, 617 F. Supp. 199, 204 (S.D.N.Y. 1985).
[58] Measures Relating to Organized Crime: Hearings before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, 91st Cong. 503 (1969) (Statement of Sen. McClellan, member, S. Comm. on the Judiciary) (hereinafter Senate Hearings).
[59] John L. McClellan & G. R. Blakey, The Organized Crime Act (S. 30) or Its Critics: Which Threatens Civil Liberties, 46 Notre Dame Law Rev. 55, 63 (1970), https://scholarship.law.nd.edu/law_faculty_scholarship/171.
[60] Id.
[61] Id. at 67-68.
[62] Id. at 68. Senator McClellan also made this point in his testimony before the House of Representatives during hearings on the proposed legislation. See Hearings before Subcommittee No. 5 of the Committee on the Judiciary of the House of Representatives on S. 30 and Related Proposals Relating to the Control of Organized Crime in the United States, 91st Cong. 118 (1970) (Statement of Sen. McClellan, member, S. Comm. on the Judiciary) (“Congress has ample grounds for determining that a need exists for creation of special Federal grand juries with substantial independence of the prosecutor and court.”).
[63] Senate Hearings, supra note 58, at 366-67 (citing Hale v. Henkel, 201 U.S. 43 (1906); Blair v. United States, 250 U.S. 273 (1919); United States v. Hartke-Hanks Newspapers, 254 F.2d 366 (5th Cir 1958), cert. denied, 357 U.S. 938 (1958); In Re Grand Jury Investigation (General Motors Corp.), 32 F.R.D. 175 (S.D.N.Y.), appeal dismissed, 318 F.2d 533 (2d Cir 1963), cert. denied, 375 U.S. 802 (1963); United States v. Smyth, 104 F. Supp. 283 (N.D. Calif. 1952); United States v. Gray, 187 F. Supp. 436 (D.D.C.1964)).
[64] See In re Grand Jury Application, 617 F.Supp. 199, 204 n.4 (S.D.N.Y. 1985).
[65] John L. McClellan & G. R. Blakey, supra note 59, at 68.
[66] Id.
[67] See supra note 58.
[68] See Hale, 201 U.S. at 60 (“‘A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before them at the suit of the King, as the presentment of a nuisance, a libel, and the like, upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it.’”) (quoting 4 William Blackstone, Commentaries, *301) (emphasis added).
[69] United States v. Dionisio, 410 U.S. 1, 15 (1973).
[70] See Doyle, supra note 10, at 9 (“[T]here seems little question that subpoenas may be issued and served at the request of the panel itself, although the attorney for the government usually ‘fills in the blanks’ on a grand jury subpoena.”) (footnote omitted).
[71] Judicial Conference of the United States, Handbook for Federal Grand Jurors 4 https://www.dcd.uscourts.gov/sites/dcd/files/HandbookFederalGrandJurors.pdf
[72] Id. at 5.
[73] Id. (emphasis added).
[74] Id. (emphasis added).
[75] In re New Haven Grand Jury, 604 F. Supp. 453, 460–61 (D. Conn. 1985).
[76] 18 U.S.C. § 3332(a).
[77] 18 U.S.C. § 3332(a) (emphasis added).
[78] Id. (emphasis added).
[79] See Senate Hearings, supra note 58, at 7 (emphasis added).
[80] Id. at 366-67.
[81] See House Hearings, supra note 62, at 541 (emphasis in original).
[82] 617 F. Supp. 199, 200 (S.D.N.Y. 1985).
[83] See Zaleski v. Burns, 606 F.3d 51, 52–53 (2d Cir. 2010) (per curiam) (holding that “[w]ithout more, the denial of [plaintiff’s] § 3332(a) right is insufficient” to confer standing under Lujan v. Defenders of Wildlife, 504 U.S. 555, 578 (1992)); Lawyers Comm. for 9/11 Inquiry, Inc. v. Barr, No. 19 Civ. 8312, 2021 WL 1143618, at *6 & n.5 (S.D.N.Y. Mar. 24, 2021) (“The Second Circuit has held . . . that ‘the denial of [a] § 3332(a) right is insufficient’ to establish standing,” so “In re Grand Jury Application is no longer good law”) (quoting Zaleski, 606 F.3d at 52). Cases from other jurisdictions are to the same effect. See, e.g., Morales v. U.S. Dist. Court for S. Dist. of Fla., 580 Fed. App’x. 881, 886 n.6 (11th Cir. 2014) (collecting cases). Significantly, these cases would not, on their own terms, preclude an argument that standing exists where the private individual plausibly claims that provision of information to the grand jury would provide a possible remedy for a particularized harm the citizen allegedly might suffer, for example, with respect to a vindictive or selective prosecution.
[84] See supra note 71, at 4 (quoting the Judicial Conference’s Handbook for Federal Grand Jurors).
[85] See In re Grand Jury Application, 617 F. Supp. at 206 (declining the plaintiffs’ invitation to present their allegations to the grand jury but noting that “a judge may present evidence to a grand jury both under common law . . . and pursuant to the language of 18 U.S.C. § 3332(a)” (citation omitted)).
[86] 18 U.S.C § 3332(a)
[87] See supra note 71; see also Arbor v. Blue, 45 F.2d 746, 751 (10th Cir. 1930) (directing the trial court, in case involving apparent attempt to defraud the court, “to summons a grand jury for the purpose of sifting thoroughly every angle and side of this case, to the end that, if there has been perjury by witnesses, or subornation thereof, by counsel or others, those guilty thereof shall be punished”).
[88] In re Report and Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to the House of Representatives, 370 F. Supp. 1219, 1222 (D.D.C. 1974), aff’d sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).
[89] United States v. Calandra, 414 U.S. 338, 343 (1974) (emphasis added).
[90] Tim Lynch, A ‘Runaway’ Grand Jury, Cato at Liberty (Oct. 31, 2011, 1:51 PM), https://www.cato.org/blog/runaway-grand-jury; see also Roots, supra note 48.
[91] Younger, supra note 16, at 204; see also Nino C. Monea, Going Rogue: Independent Grand Juries Throughout America, 72 Me. L. Rev. 275, 292–93, 301, 310–12 (2020); see, e.g., Ann Carter Stith, Report on the St. Louis County Grand Jury System and Correctional Conditions (St. Louis County Citizens’ Advisory Committee 1966).
[92] See In re Special Grand Jury 89-2, 450 F.3d 1159 (10th Cir. 2006) (remanding for determination whether additional materials from the special grand jury investigation and report regarding possible environmental crimes at the Rocky Flats facility could be released consistent with Rule 6(e)). The Tenth Circuit also suggested in dicta, but did not decide, that there might be inherent authority to release materials beyond the exceptions set out in Rule 6(e). See id. at 1178. There is a Circuit split on this issue. Compare, e.g., McKeever v. Barr, 920 F.3d 842 (D.C. Cir. 2019), with Carlson v. United States, 837 F. 3d 753 (7th Cir. 2016); see Michael A. Foster, Cong. Rsch. Serv., LSB10201, Do Courts Have Inherent Authority to Release Secret Grand Jury Materials? 2–3 (2019) (collecting cases), https://www.congress.gov/crs_external_products/LSB/PDF/LSB10201/LSB10201.4.pdf.
[93] See 18 U.S.C. §§ 1512, 1519 (prohibiting obstructing federal investigations through, among other things, destruction of evidence).
[94] Kenneth P. Vogel et al., Trump Administration Shuttered a Criminal Probe into Fraudster’s Clemency, N.Y. Times (June 21, 2026), https://www.nytimes.com/2026/06/21/us/politics/trump-fraudster-priest-investigation-brooklyn.html. See also Katelyn Polantz et al., Justice Department is Investigating Handling of Adam Schiff Mortgage Fraud Push Led by Ed Martin and Bill Pulte, CNN (Dec. 11, 2025) (reporting that the U.S. Attorney’s Office in Maryland was conducting a federal grand jury investigation into whether individuals had impersonated federal agents in the course of investigating alleged mortgage fraud by prominent Democrats), https://www.cnn.com/2025/11/20/politics/justice-department-adam-schiff-ed-martin-bill-pulte-christine-bish; Hannah Rabinowitz, Justice Department review found Trump ally Ed Martin improperly leaked grand jury material, CNN (Feb. 4, 2026) (quoting then-AG Bondi’s social media post denying that there was an investigation into Pulte), https://www.cnn.com/2026/02/04/politics/ed-martin-review-improperly-handled-grand-jury
[95] See, e.g., Santul Nerkar & Nicole Hong, Judge Scrutinizes Decision to Abandon Charges Against Indian Billionaire, N.Y. Times (June 26, 2026), https://www.nytimes.com/2026/06/26/nyregion/dropped-charges-gautam-adani-bribery.html; Alan Feuer, Judge Chastises U.S. Over Secrecy in Moving to Drop Charges Against MS-13 Leader, N.Y. Times (July 14, 2025), https://www.nytimes.com/2025/07/16/us/politics/judge-secrecy-ms-13.html; United States v. Adams, Case 1:24-cr-00556-DEH, slip op. at 72 (S.D.N.Y. Apr. 2, 2025) (holding that it could not force the government to go forward with its prosecution of Mayor Adams, but rejecting the government’s argument that “there would be nothing wrong with the executive branch explicitly conditioning dismissal of charges against a public official in exchange for his support for the administration’s policy agenda”); Trump v. IRS, No. 26-20609-CV, 2026, slip op. at 55 (S.D. Fla. July 13, 2026) (holding, in President Trump’s suit against the IRS, that “[t]he nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to address grievances not defined in the law”); cf. Alan Feuer et. al., Inside Trump’s Deal With the I.R.S. to Drop His $10 Billion Lawsuit, NY Times (June 1, 2026), (alleging that “[s]ome department officials even worried that [funneling money directly to the President in a settlement] could, under a future Democratic administration, expose them to a criminal investigation of conspiracy to defraud the government.”), https://www.nytimes.com/2026/05/30/us/politics/trump-irs-lawsuit-deal.html
[96] In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. at 1222 (citing cases).
[97] Barry Jeffrey Stern, Revealing Misconduct by Public Officials Through Grand Jury Reports, 136 U. Pa. L. Rev. 73, 76 (1987)
[98] U.S. Dep’t of Just., Just. Manual § 9-11.101 (2020) (“Powers and Limitations of Grand Juries—The Functions of a Grand Jury”), (citing United States v. Briggs, 514 F.2d 794 (5th Cir. 1975)); but see the additional model charge for special grand juries, Benchbook, supra note 27, at 348 ([a]s stated to you earlier, you are being impaneled as a special grand jury, as distinguished from a regular grand jury. A regular grand jury is subject to two important restrictions: (1) its term or life is limited to a period of eighteen months, and (2) it can indict someone, on a finding of probable cause, or vote not to indict, but that is the extent of the action it can take; it cannot issue a report concerning its findings.”)
[99] See In re Johnson, 484 F.2d 791, 795–97 (7th Cir. 1973) (collecting cases); cf. U.S. Dep’t of Just., Just. Manual § 9-11.130 (2018) (“In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.”).
[100] In re Investigation and Prosecution of the Drug Trafficking Activities of Calvin Dyess and Others, No. 2:04-mc-00086 (S.D. W. Va.) (report issued May 24, 2004; report unsealed Apr. 20, 2005).
[101] Id. at 2.
[102] Id.
[103] See Sara Sun Beale et al., Grand Jury Law and Practice § 2:2 (2025). “In twenty-nine states, the grand jury has either statutory or judicially recognized authority to issue reports.” In most states, this reporting authority is limited to the condition of local prisons or jails, but several states allow grand juries to issue exonerating reports, and two––Pennsylvania and Wyoming––allow grand juries to report on the prevalence of organized crime (paralleling the federal special grand jury statute). However, most states, barring Maryland, prohibit grand juries from issuing reports on issues not specifically committed to them by statute.
[104] See Costello v. United States, 350 U.S. 359, 362 (1956). See also the discussion regarding presentments, supra notes 40–42 and accompanying text. In In re Grand Jury January, 1969, 315 F. Supp. 662 (D. Md. 1970), the court allowed disclosure, in the public interest, of what was variously characterized as the grand jury’s “presentment” or “report,” where Main Justice had blocked the U.S. Attorney from signing the charges brought by the grand jury; although the grand jury there was referred to as a “special” one, it had been impaneled before the enactment of the special grand jury provisions of §§ 3331-34, and the court’s analysis accordingly was not made under those provisions.
[105] McClellan & Blakey, supra note 59, at 64.
[106] Id. at 65–66 (discussing cases).
[107] 18 U.S.C. § 3333(b).
[108] 18 U.S.C. § 3333(b)(2) (emphasis added).
[109] 18 U.S.C. § 3333(c).
[110] 18 U.S.C. § 3333(c)(3).
[111] 18 U.S.C. § 3333(d).
[112] U.S. Dep’t of Just., Crim. Res. Manual § CRM 1-499, 159 (“Reports of Special Grand Juries”); see Daniel C. Richman, Kate Stith, & William J. Stuntz, Defining Federal Crimes 441 (3d ed. 2026) (noting that “organized crime” includes not just the Mafia, or gangs more generally, but many business, fraud, and political corruption offenses).
[113] U.S. Dep’t of Just., Crim. Res. Manual § CRM 1-499, 159.
[114] Id.
[115] See U.S. Dep’t of Just., Just. Manual § 9-11.330 (“When a United States Attorney learns that a grand jury is preparing a report which he/she has not requested, he/she should advise the Criminal Division [of Main Justice].”) For a description of the efforts of Main Justice to discourage the Rocky Flats grand jury from making a report, see Barry Siegel, Showdown at Rocky Flats: The Justice Department Had Negotiated a Rocky Flats Settlement, but the Grand Jury Could Not Keep Quiet About What Happened There, L.A. Times (Aug. 15, 1993), https://www.latimes.com/archives/la-xpm-1993-08-15-tm-24105-story.html.
[116] See supra note 91.
[117] See In re Grand Jury Proceedings, 813 F. Supp. 1451, 1456 (D. Colo. 1992). The statement of the jury foreperson in that case aptly captures the spirit that characterizes independent grand juries: “‘If you’re going to let one government chickensh*t lawyer tell you what to do, you’re not part of America.’” Lettow, supra note 40, at 1352.
[118] In re Grand Jury Proceedings, 813 F. Supp. at 1455. The court subsequently elaborated that, in its view, “[t]he report was faulty . . . because it accused individuals identifiable by name or position, including accusations against public officials that lacked the required recommendation for removal; dealt in rumor and conjecture; engaged in social and even legal argument; dealt with political and social issues outside the province of the special grand jury’s duty of investigating crime; [and] contained charges not based upon a preponderance of the evidence.” See In re Special Grand Jury 89-2, 450 F.3d at 1164 n. 1.
[119] In re Grand Jury Proceedings, 813 F. Supp. at 1455.
[120] 18 U.S.C. § 3333(b)(1).
[121] 18 U.S.C. § 3333(e).
[122] Id.
[123] To be sure, the grand jury, as an independent body, can refuse the court’s direction to take additional testimony or make other revisions, but only at the cost of its report not being made public.
[124] See Younger, supra note 16, at 187.
[125] Id. at 241.
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