Volume 58

In the Name of Secrecy: Revisiting Grand Jury Secrecy as Applied to Witnesses

by Kimberly A. Leaman & Andrew T. Winkler

Special Counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 U.S. presidential election renewed the public’s interest in grand jury proceedings. Between the Special Counsel’s probe and additional investigations involving President Donald J. Trump, his personal accounting firm Mazars USA, LLP, and Deutsche Bank, grand jury subpoenas in particular have entered the national spotlight. While the grand jury subpoenas and witnesses in those investigations have garnered national attention and generated a steady stream of running media commentary, an unknown—but by all estimates, significant—number of grand jury subpoenas remain hidden from public scrutiny by virtue of court-issued gag orders that preclude subpoena recipients from speaking out about them.

The Stored Communications Act (“SCA” or “the Act”) allows the government to subpoena an internet service provider for certain information about or communications belonging to that provider’s customers. Section 2705(b) of the SCA further provides that, upon the government’s request, a court must issue a non-disclosure order preventing the provider from disclosing the existence of the subpoena if there is “reason to believe” that one of five enumerated consequences will occur were the subpoena to become known to any person. These gag orders raise significant concerns, not only obscuring the magnitude of the government’s surveillance efforts, but also potentially conflicting with grand jury witnesses’ First Amendment rights. 

Courts have recognized the tension between § 2705(b) and the First Amendment; unfortunately, much of the attention has focused on the indeterminate, and potentially permanent, length of the gag orders, without much scrutiny as to whether grand jury secrecy justifies the imposition of a gag order in the first place. For instance, the U.S. Court of Appeals for the Third Circuit became the first federal appellate court to consider whether a § 2705(b) non-disclosure order violates a grand jury witness’s First Amendment rights, and concluded that the one-year orders in that case furthered the government’s compelling interest in preserving the secrecy of grand jury proceedings.

Although the preservation of grand jury secrecy can excuse curbing a grand jury witness’s free speech rights in certain circumstances, this Essay argues that the persistent exclusion of witnesses from the list of parties covered by the grand jury secrecy provisions of Federal Rule of Criminal Procedure 6(e) diminishes the government’s general interest in grand jury secrecy as applied to those witnesses. Because Rule 6(e) does not contemplate gagging grand jury witnesses to protect the general cloak of secrecy long-considered integral to grand jury proceedings, courts too should avoid falling back on that same generic principle when evaluating the constitutionality of speech restrictions on grand jury witnesses. Rather, courts should conduct an individualized assessment of both the investigation and the specific witness at issue for particularized facts or circumstances not contemplated by Rule 6(e), which may give the government a compelling interest in preserving the secrecy of that particular grand jury proceeding. 

This Essay proceeds in four Parts. Part I first provides a brief overview of the First Amendment’s protections and limitations over governmental regulation of speech. Part II then sets forth the pertinent provisions of the SCA that restrict service providers’ speech, before Part III turns to the origins of grand jury secrecy in the United States and its later codification in Rule 6(e). Finally, Part IV reviews the intersection of each of these areas of law to conclude that a more rigorous, individualized compelling-interest analysis is required. 

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