I read a great deal of hyperbole and straight-up fiction on the internet about how the grand jury process works in the federal criminal justice system. Usually, the descriptions are from people who think they can figure it out by reading what other people have said or going off what someone has told them. This kind of analysis is full of jumps in logic and assumptions where facts are lacking, leading to explanations that are either far more complicated than is necessary, or describes a “grand jury process” that is foreign to me – and I did it for 22+ years.
So, this is one of my “Lawsplainers” meant to clear up some misconceptions, debunk some bunk and let people understand how the process works in practice and why.
How Do Grand Juries Get “Empaneled”?
It is a quite simple process actually, and in almost all respects it happens in the same way trial juries get formed. The Court – not DOJ or prosecutors – sends out “Jury Notices” to ordinary citizens based on voter registration, driver’s license lists, public utility information, etc. Pretty much any index of residents from which the Court can randomly pick out 80-100 names of potential grand jurors. The notice tells you the day and time to report to the courthouse for possible jury selection. I have never received one, but I’m told the notice does not specify that it is for “Grand Jury” selection, and not “Trial Jury” selection – you aren’t informed about that until you arrive.
The selection process is presided over by the Chief Judge of the Federal Judicial District. Because the prospective jurors come from a much larger geographic area than a single county as is typical for state court, grand jurors can represent several different communities within one federal judicial district.
The Judge goes through a selection process in much the same way that he/she would go through the process of picking a trial jury. A representative of the US Attorney’s Office is present and is allowed to make his/her views known about the suitability of prospective jurors, but the judge makes the decision on who serves and who is dismissed.
A full grand jury panel has 23 persons when selected. The membership may drop over time as jurors can be excused from further grand jury service by the Court, but the minimum number for a panel is 16. New members can be added to the grand jury from the panel of prospective grand jurors that underwent examination by the Court when the grand jury was originally empaneled. It takes the vote of 12 grand jurors to return an indictment regardless of the number in the room at the time of the vote.
How Many Grand Juries Exist at Any One Time?
Contrary to some internet mythology, most federal grand juries are not empaneled to deal with a specific investigation or case. Each federal judicial district empanels grand juries on a regular schedule, and there are grand juries meeting in every federal judicial district 52 weeks a year. Smaller districts will generally have 3 at a given time. Much larger districts – like the Southern District of New York or the Central District of California, might have a dozen or more grand juries empaneled and meeting at any given time.
Typically, a newly empaneled grand jury will meet in session one time a week for the first six months, and then one time every two weeks thereafter. That grand jury is automatically extended for a second six months by the Court and may also be extended for a third six-month period — for a total of 18 months service.
When two panels are meeting every other week, they typically meet the same day of the week on alternating weeks. Such an arrangement means there are two grand jury days each week, 52 weeks a year – the grand jury meeting once a week, and the grand juries who are alternating weeks.
In larger districts, because of the greater number of criminal cases being investigated and charged, there are grand juries meeting every day, Monday through Friday – sometimes more than one a day.
How Are Grand Jury Investigations Initiated?
All federal cases that do not have guilty pleas worked out in advance of the charging documents being filed must be indicted through a grand jury. I would estimate that more than 75% of all grand jury indictments come in “one and done” sessions. An example of a “one and done” indictment would be a bank robbery – when the subject is already arrested or is identified. The prosecutor has the indictment written out in advance. The federal agent comes in and goes through the facts of the investigation, and how the subject was determined to be the person who committed the crime. The grand jury might ask questions, but most of the time they don’t. If they have been meeting already for several months, they don’t need the law on “bank robbery” explained to them. That is a role the prosecutor plays – explaining or answering questions about statutes and other legal issues. But in the example of a bank robbery case, a grand jury might want to have the law explained to them the first time, after that they tend to respond with a unanimous “NO” when you ask them if they want the law explained to them.
After the testimony of the agent, and a brief time for questions and answers, the agent and prosecutor leave the room, the door is locked, and the grand jury votes on the indictment the prosecutor has prepared and delivered to the grand jury. When the vote is recorded, the door is unlocked, and the next prosecutor and agent enter the room to present their case. This can happen several times in any one session. Some cases – depending on the crime – can be done in less than 5 minutes. A single prosecutor, doing a series of such cases, can get 10 indictments in an hour.
In addition to the “one and done” cases, the grand jury also receives evidence on “continuing investigations”. Examples of this are the Special Council’s Office cases, and the current Durham investigation. It is possible to have these kinds of “continuing investigations” happen before regularly empaneled grand juries, or they can be handled by “specially” empaneled grand juries as explained in further detail below.
Once an investigation is assigned to a particular grand jury, it remains with that same grand jury until concluded, or until the Court transfers the matter to a different grand jury. This normally only happens if a grand jury to which the investigation is assigned is about to expire and the investigation is still ongoing. Every grand jury investigation has a “Grand Jury Number” that reflects both the Panel it is assigned to, and the case number of the investigation. Everything that happens with regard to that case is recorded in a “Grand Jury Minutes Book” which is kept by the Secretary of the Grand Jury. All entries are co-signed by the Foreperson of the Grand Jury.
When are Special Grand Juries Empaneled?
The US Attorney’s Office or Department of Justice can request that the Court empanel a special grand jury under certain conditions. The over-riding consideration for the Court is the wise use of grand juror time and expenditure of court funds.
Grand jurors can sometimes come from distant locations in some districts, and oftentimes their attendance requires an overnight stay – either the day before the grand jury session, or the night of the grand jury session. So, the Court incurs costs for each grand jury session that takes place. What irritates the Presiding Judge more than anything in the grand jury process is the under-utilization of grand juror time – and not canceling grand jury sessions with sufficient notice to avoid expenses to the Court.
The first question the Presiding Judge is going to ask in response to a request to empanel a special grand jury is “Why?” Generally, the best answer is that the investigation is so large, and the evidence to be presented is so voluminous that the case cannot be scheduled adequately with the grand juries already empaneled because there isn’t sufficient time available given other open investigations before those panels.
A specially empaneled grand jury was generally allowed if the judge can be convinced that the special investigation will require a minimum of 4 hours of grand jury session time each week – no less. Grand jurors make the sacrifice of their time to meet for a full day once a week for six months, and the Court must be convinced that the new investigation assigned to a specially empaneled grand jury is such that the full attention of one grand jury is required. If the specially empaneled grand jury is not being sufficiently utilized, the Court may direct that it be used for other cases in addition to the special investigation for which it was empaneled.
Generally, it is not enough of a justification to say that a special grand jury is needed due to the sensitivity of the investigation, and the need to keep matters before the grand jury more secure than normal. All grand jury matters are, by law, supposed to remain secret. The need for “extra” secrecy is generally not a consideration the court will entertain.
How Do Grand Jury Subpoenas Get Issued?
This is a largely misunderstood element of federal grand jury practice.
The grand jury itself does not issue subpoenas, and oftentimes do not know that subpoenas have been issued “in their name.” A grand jury subpoena is just an ordinary court subpoena, but rather then the response being served to the court, or the witness appearing in Court, the person served with the grand jury subpoena is directed to appear or deliver evidence to the grand jury.
The only person involved in the issuance of grand jury subpoenas is the prosecutor. The prosecutor decides who will get a grand jury subpoena, and as an Officer of the Court, the prosecutor signs the grand jury subpoena in the name of the Court. I don’t know if “robo-signing” via electronic signature is allowed yet, but I can tell you that in a less electronically advanced time there were instances where I spent significant periods during a workday just signing my name – over and over again.
After the subpoenas are signed, the federal agents have the role of serving them. Most subpoenas for documents provide that rather than appearing personally at the grand jury session to deliver the documents, the person receiving the subpoena can simply deliver the documents to the US Attorney’s Office that issued the subpoena, or to the federal agent who served the subpoena. The agent will then appear before the grand jury and report the “return” of the subpoena with the records requested. That is normally followed by a request by the prosecutor to allow the agent to maintain custody of the subpoenaed records to assist in the investigation. The grand jury itself has no ability to maintain documents between sessions, so the prosecutors and agents are the custodians of all information received in response to a grand jury subpoena.
It almost never the case – I’m not aware of one ever – where an investigation takes place and after it is done a grand jury is empaneled to hear the evidence. That would mean that no grand jury subpoenas were issued because such subpoenas must be linked to an active grand jury. I mention this because of some “news” commentary recently speculating on when John Durham might empanel a grand jury. That happened a long time ago.
Who Can Be in the Room When A Grand Jury Is Meeting?
The rules about attendance at grand jury sessions are very specific, and they are strictly enforced as part of the “secrecy” requirement that surrounds grand jury proceedings. The only people allowed in the room while the grand jury is in session are the grand jurors, a court reporter, the single testifying witness, and the prosecutor(s). When the grand jury is in session the doors to the grand jury room are locked. When the grand jury is not hearing evidence, the doors are supposed to be propped open.
One fact that many do not know is that federal agents are not allowed to sit in while the grand jury is hearing testimony from a witness. Agents are treated just like other witnesses, and they cannot attend and listen to witness testimony. But the case agent on an investigation is almost always right outside while the witness is testifying, and the prosecutor can take short breaks to confer with the agent about what the witness is saying when necessary.
One person never allowed in a grand jury proceeding is an attorney for the witness. They can wait outside, and the witness can ask to take a break to speak with their attorney during the course of the testimony, but the attorney is not allowed to listen while the witness testifies.
How is it Determined What Witnesses Appear to Testify?
Much like the subpoenas, this is nearly always a decision made by the prosecutor working along with the agent. Prosecutors do sometimes consider requests from the grand jury about certain witnesses, they might be interested in hearing from and posing questions to. The grand jurors are allowed to question witnesses when they testify in the same manner the prosecutor questions witnesses.
The preferences of individual prosecutors play into the way they conduct their grand jury investigations in terms of bringing in witnesses to testify. This is really a matter of “trial and error”, what you learn from others when you first start out, but over a career as a prosecutor, you simply discover through experience what works best for you.
I was probably in the minority in that I did not like to put my witnesses through the grand jury and get their testimony under oath. The cooperative witnesses that I intended to call as part of my case had been interviewed by the federal agent(s) – multiple times usually – and by myself as well. I didn’t need them to go before the grand jury and create a transcript under oath about what they knew, which could be used against them at trial while they underwent cross-examination.
But early in an investigation, there might be uncertainty about certain witnesses in terms of what their attitude might be in several months when it’s time for trial. For those witnesses, I would have them served with a grand jury subpoena, and then offer to interview them without going into the grand jury if they were willing to do that.
But if there were persons who I expected might ultimately turn out to be “hostile” witnesses likely to called to testify by the defense at trial, I would put those persons into the grand jury simply to “lock-in” their testimony under oath. That puts them under the threat of a perjury charge if they lie to the grand jury. It also forces them to say the same thing at trial or be impeached on cross-examination using their prior testimony under oath against them.
As for government witnesses, the grand jury can hear from the case agent about what evidence he/she gathered in the investigation, including what the case agent was told by witnesses. That is just as effective as the witness him/herself appearing before the grand jury to testify. It also gave me more control over the presentation of evidence because the case agent and I would discuss ahead of time what the testimony should based on the witness statements. The grand jury can ask questions of the case agent, but that is much less unpredictable than allowing the grand jury to ask questions of witnesses, with a court reporter writing down everything, said in the room.
What is the Difference Between An “Indictment” and an “Information”?
An “Indictment” is a charging document that can only come from a federal grand jury. The Fifth Amendment to the Constitution provides that no person shall be held to answer in a criminal case except up the return of an Indictment by a grand jury. This is an iron-clad constitutional right and there are no exceptions.
The purpose of the Indictment is to notify the defendant of what crime he is being charged with having committed and describing facts sufficient to allow him to defend himself on the charges. A grand jury in a particular judicial district can only return indictments for crimes committed in the district where the grand jury sits. This connection of the location of the crime to the location of the grand jury and court is called “Venue.”
The first appearance by a defendant after the return of an indictment by a grand jury is called an “Arraignment and Plea”. At that hearing, the judge confirms that the defendant has received a copy of the Indictment and understands what he has been charged with. A defendant normally pleads “Not Guilty” which imposes on the government the obligation to now prove his guilt beyond a reasonable doubt.
But like with all other constitutional rights, a defendant can waive his Fifth Amendment right to an Indictment. That happens many times when there is an agreement for a defendant to plead guilty to a specific crime before charges are filed. In that case the federal charges are filed in the form of an “Information.”
An “Information” is written in the same manner as an Indictment, setting forth the crime(s) the defendant is charged with, along with sufficient facts so that the defendant can prepare to defend against the charges. But instead of being voted upon and signed by the Grand Jury foreperson, an “Information” is signed and filed by the prosecutor.
At the time the defendant appears for his arraignment, instead of entering a “not guilty” plea, he enters a previously agreed-upon guilty plea, which includes a formal “Waiver of Indictment” done before the judge who accepts his guilty plea.
What Was the Impact of COVID-19 On the Durham Investigation?
There has been much speculation in the media and across the Net about what impact the COVID-19 pandemic has had on the Durham investigation, and whether he has been held up in his ability to conduct grand jury proceedings.
I would speculate that Durham has one “special grand jury” and is probably making use of regular grand juries in at least two other districts. The “special” grand jury is probably in the Eastern District of Virginia and I would think he’s using regular grand juries in DC and New York. He would likely bring charges in DC only for cases where he has no other venue options. The case initiated against FBI Attorney Kevin Clinesmith is a good example, as the filed “Information” states that Clinesmith took his action in altering the CIA email while working at his desk in the FBI HQ building in Washington DC.
If Durham has empaneled a “special grand jury” to hear evidence in his investigation – and it is entirely possible that he has not – it is likely because the sheer volume of information that his prosecutors and investigators are having to digest would require that they do so only in “teams” – much the way the SCO had different “teams” looking at Manafort, Flynn, Page, and Papadopoulos. Durham’s teams have segmented in the investigation in ways that make sense to them, with each team evaluating a slice of the overall enterprise under scrutiny. Those teams would then present evidence to a special grand jury separately, and from those separate presentations, the grand jury would be able to bring the “whole” into focus. Handled in this fashion, it would be likely that Durham could occupy the time of a grand jury all on his own, and that is the basis upon which a “special grand jury” is empaneled. Where that grand jury sits is simply a guess. As I said, the three most likely locations are Washington DC, Northern Virginia, and New York.
But to the extent other federal officials and agencies are implicated, the location where they worked would be a potential location for cases to be filed. There are many government agencies that operate in Northern Virginia, including the CIA.
The COVID-19 pandemic has impacted the pace with which Durham could function for two primary reasons.
First, grand jury proceedings in federal court all take place inside a federal courthouse, as the grand jury is actually an arm of the Court system. Because the Presiding Judge of each federal judicial district controls the courthouse, shutting down or severely curtailing public access to courthouses as was done across the Country had real implications on grand jury sessions and the ability of prosecutors like Durham to present testimony or evidence to a grand jury. Most courthouses around the country had “shut down” orders starting in late March, with many lasting well into June. While this did not shut down all grand jury functions, my understanding based on what I read was that only “must indict” cases were being allowed to be presented to grand juries, and that was only 1 day per week. A “must indict” case would be like the bank robbery example I gave earlier where the defendant was arrested at the scene and has been held in custody. The prosecution has only 14 days from the date of the defendant’s initial appearance in which to present the case to a grand jury and obtain an Indictment. Those are the types of cases that grand juries were allowed to meet to consider evidence and Indictments, not ongoing investigations like the one Durham is conducting.
The second way the Durham investigation was impacted was simply the practical complication of witnesses’ inability to travel easily to a distant federal courthouse – especially if air travel was required. It’s quite likely that some witnesses objected to the risks involved of making such a trip. As a result, witness interviews and testimony before grand juries were probably postponed all throughout April and May, setting back the investigation at least 60 days.
The Secrecy of Grand Juries
One final note – while Grand Jury proceedings are “secret” by federal law – referred to in shorthand fashion as “6(e) material” – the secrecy rules only apply to the officials involved, not the witnesses. The grand jurors, prosecutors, government agents, and court staff are all bound by the secrecy rules and are subject to criminal prosecution for violating them. The rules do not apply to witnesses. A witness who has testified before a federal grand jury can come out on the courthouse steps and conduct a news conference that describes each question asked and each answer given. Witnesses are commonly asked to not discuss their testimony in public or with other persons involved, but there is no law that prohibits them from having such discussions. So whenever you see someone mistakenly claim they can’t reveal what happened before the grand jury understand that they could do so – if they wanted to do so. The excuse they are offering is simply a way to get out of answering questions. That’s it – mystery solved. Grand jury proceedings are underway 5 days a week, 52 weeks a year, with hundreds of grand juries empaneled all across the country. Empaneling a “special grand jury” is rare, and it is not necessary to empanel a “new” grand jury simply to start a new investigation or seek an indictment. Everything that happens in front of the grand jury is coordinated by federal prosecutors – they issue the subpoenas, they describe the documents they want the grand jury to see, they pick the witnesses who will appear – and those who won’t appear – and they ask the questions. Most significantly it is the prosecutors who write the indictments, select what charges will be brought, and what facts will be alleged as supporting the crimes charged. That might not seem appropriate – but it is the prosecutors who must stand behind the indictment, and prove the charges with evidence that is admissible under the Rules of Evidence in a way that satisfies the federal judge presiding. I’ll confess that I miss that part of the job. It was a lot of fun for a long time.
Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew