The Grand Jury Subpoena Bully Game

Everyone knows that they don't want to be served with a grand jury subpoena duces tecum, a demand for documents. But what is it, really? Basically, it's a court order announcing to the recipient that a criminal investigation (of someone - maybe the person is identified, maybe not) is on-going, that a grand jury has been convened and that the recipient must produce documents requested. A failure to comply, even innocently, may have contempt consequences. This is true even if the recipient is asked only to deliver records and is not even remotely under investigation. In other words, a grand jury subpoena may not be ignored!

The mere receipt of such a writ from officialdom, with potential consequences for non-appearance, can be scary in the extreme. Not because the recipient's taxes, having nothing to do with the subpoena's subject, "may not be completely in order" - if you know what I mean. Or because the recipient may have once had a meretricious relationship with the investigation's likely target. Or even because of some paranoid delusion (is it so paranoid?) that maybe the recipient may have some criminal exposure even though, in reality, he's done absolutely nothing wrong (and, by the way, is only being asked to produce documents).

Indeed, in fairness to them, prosecutors who issue these subpoenas may actually have no idea that mere receipt of the subpoena may cause the recipient such palpitations - although, likely, they would not even care. Still, and even assuming consummate good faith on the prosecutor's part, he might unintentionally take the recipient's anxiety level up a bunch of notches when he tells the recipient in a cover letter, as is now the practice, that the government "requests" that he "voluntarily refrain" from disclosing the existence of the subpoena to anyone - implying (or actually meaning) the target of the investigation.

This is because, the prosecutor may write, the "confidentiality of the investigation" must be preserved so that a disclosure might "interfere with" or "impede" the investigation. Strong words; scary words to the novice who is now "asked" by the government not to call his friend or business associate (whom he may well believe is the target of the investigation) to ask what in the world is going on. Indeed, given the words used in the prosecutor's "request," would it be so crazy for a person to conclude that he himself could be prosecuted for merely disclosing the subpoena?

Also scary, the prosecutor's letter "asks" the recipient to notify the prosecutor if he intends to make a disclosure. So, when the prosecutor "suggests" that if you let your, let's say, lifelong friend - whom you now realize is under investigation - know of the subpoena something dire may happen, isn't the path of least resistance to simply comply and keep your mouth shut? Maybe you actually talk yourself into believing that you best protect your friend by not telling him about the subpoena.

Make no mistake, the cover letter has the unabashed in terrorem effect of inhibiting one from talking about the subpoena and the lawyer representing the subpoenaed party may be apprehensive, or he may comply with the prosecutor's request to gain some benefit. The lawyer may simply want to stay on the good side of the prosecutor for his client's benefit - to keep the prosecutor's wandering and skeptical eye away from the client/subpoenaed party. Or he may want to use his willingness to have his client keep the subpoena quiet as a vehicle to persuade the prosecutor to tailor the subpoena and thus require a far more limited document production.

Lest it go unsaid, some time ago the Supreme Court of the United States strictly forbade prosecutors under the First Amendment from imposing a secrecy obligation on a subpoenaed witness (although financial institutions are statutorily prohibited under certain circumstances from disclosing the receipt of a subpoena for financial records). The Federal Rules are the same - with certain enumerated exceptions, "[n]o obligation of secrecy may be imposed. . .". And where a witness received a letter prohibiting the disclosure of "the existence of this subpoena or the fact of their compliance for 90 days," the First Circuit Court of Appeals required the government to actually contact every witness who received such a letter and tell them they were under no obligation to remain silent. And those are the precise reasons for the prosecution's cover letter "request," as opposed to a flat out directive.

But do these rules - "you can't legally forbid a witness from disclosing grand jury information if he wants to" - go far enough? Does it stop prosecutors from basically intimidating and bullying those who are already frightened by the mere receipt of a grand jury subpoena into keeping the subpoena to themselves? Why should there be any restriction whatsoever - literal or threatened - on a subpoenaed party's exercise of his First Amendment freedom to disclose that a prosecutor wants something from him?

And then there is the prosecutor's own secrecy - what information will a prosecutor actually give to a person who is subpoenaed. Typically, very little. After all, it is frequently the case that a prosecutor, if called by the subpoena's recipient or his counsel, will decline to tell the subpoenaed party exactly what the subpoena is about - even if the recipient occupies the status of simply being a producer of documents and even if giving some information might potentially assist the investigation.

It is ironic that the reason prosecutors typically give for not disclosing what the subpoena is about is that "the obligation of grand jury secrecy precludes me from telling you." While it may- emphasis on may - be true that prosecutors should not tell subpoenaed parties who the target of the investigation might be, prosecutors ordinarily have no basis whatsoever to believe that their investigations would be impeded or obstructed, or that grand jury secrecy would be compromised, if the existence of the subpoenas were disclosed. So, when a prosecution office routinely uses its "form letter" to discourage disclosure of grand jury subpoenas for documents, or refuses to answer questions about the investigation, one begins to wonder whether the office's prosecutors are on the level. It is too easy to forget that the purpose of a grand jury, when first implemented in England in the 1100s, was as a bulwark to shield people from the improper indictment of government. It was not to be a "star chamber" and prosecutors should not have the authority to, basically, scare, recipients of subpoenas by demanding (requesting, I mean) that they not share the fact of the subpoena with anyone - giving the "request" the imprimatur that it is the force of law.

As impetus for this article, it should be noted that the New York Times recently reported that a grand subpoena - or more than one -- had been issued by a grand jury sitting in Brooklyn, New York, not "discouraging" disclosure, but outright forbidding it - "YOU ARE HEREBY DIRECTED NOT TO DISCLOSE . . ." No prosecutor would think such a subpoena is appropriate in light of the Supreme Court decision, and so perhaps the subpoena was the mistake of "support staff" as the prosecutor stated when he was asked by a troubled and questioning federal judge to explain what had occurred.

That said, why not simply take the whole practice capable of abuse off the table by leaving disclosure of a grand jury subpoena totally up to the recipient? No request for voluntary restraint by the government; no warning that an investigation could be impeded. To the contrary, because the government can - and often does - issue grand jury subpoenas that are un-tailored and overbroad, and because this practice is capable of abuse in the extreme, why not encourage transparency, rather than allow a prosecutor to close the shades, thus keeping the sunlight out?