No, Federal Grand Jurors Do Not Issue Federal Grand Jury Subpoenas

Over at the Daily Beast, Nick Gillespie attempts to bring religiosity to the fuzzy-wuzzies by describing what it was like to be hit with a ridiculous grand jury subpoena and unprincipled gag order. In response, several Daily Beast commenters trot out an argument I see now and then: "well, citizens on the grand jury thought that there were grounds to issue a subpoena."


In fact, hell no, or if you prefer, bless your heart, no.

Let's talk about how federal grand jury subpoenas actually work. These days the U.S. Attorney's Office prints them from fillable pdfs. Given that we were still typing them when I left the USAO in 2000, they probably achieved this technical benchmark in 2012 or so. Assistant United States Attorneys — that is, snot-nosed punks like I was at twenty-six — issue a grand jury subpoena by filling it out, or more likely, asking their secretary to fill it out. Nominally, the subpoena is issued on behalf of the grand jury. But it is not by any stretch of the imagination, issued by the grand jury. The AUSA need not — and never does, in my experience — ask the grand jury for permission. When the target of the subpoena produces documents, most often the Assistant U.S. Attorney lets the case agent — some Special Agent of the FBI or DEA or whatever — hold on to them.

So is the grand jury involved at all? Well, sort of. If and when the federal prosecutor seeks an indictment relying in part on documents produced in response to a grand jury subpoena, they'll summarize the results of the subpoena to the grand jury. But that could be years after the fact. Prior to that, the acknowledged "best practice" is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced — which, because they have been produced "to the grand jury," are governed by secrecy requirements.

Does that always happen? No. Even when it does happen, it's rarely a significant check on the use or abuse of grand jury subpoenas. First, when I was an AUSA, I never once had a grand juror ask about why I was issuing such a subpoena or exactly what I got back. I don't know that any of them ever looked up from their newspapers. The common practice is to make a report so perfunctory that the grand jurors have no context from which to determine whether a subpoena is appropriate — and you'd only be reporting the subpoena after the fact. Second, there's often no continuity of grand jurors. In a small district you might have only one grand jury that meets once a week, and those grand jurors could, in theory, write things down in their notebooks and keep track of them over time. But in many districts there are many federal grand juries. In Los Angeles, for instance, there was a different one meeting every day of the week. AUSAs don't necessarily report subpoenas from the same investigation to the same grand jury over time. And federal grand juries turn over after a year and a half (unless extended), which means that the grand jurors hearing you report a subpoena this year won't necessarily be the same ones hearing you report the next subpoena in the investigation next year.

The United States Attorneys Manual sheds light on how subpoenas are used as a tool. Consider, for instance, the Manual's treatment of subpoenas to banks, which ought to be governed by the Financial Privacy Act of 1978. The Manual suggests some best practices:

Sound grand jury practice requires that:

The prosecutor personally authorize the issuance of a subpoena duces tecum to obtain financial institution account records to avoid any appearance that the matter was left to the discretion of an investigative agent serving the subpoena

Waitaminute, you might say. Doesn't that imply that federal agents, rather than federal prosecutors, sometimes issue federal grand jury subpoenas? Yes. Yes it does. Federal agents also have fillable pdfs of grand jury subpoenas, and routinely fill them out and ask a federal prosecutor to bless them. How carefully do federal prosecutors read such subpoenas, and question the agents drafting them? Take a guess. Do federal agents working an investigation sometimes serve grand jury subpoenas that the prosecutor — let alone the grand jury — has never seen? Yes.

The Manual also suggests:

The subpoena be returnable on a date when the grand jury is in session and the subpoenaed records be produced before the grand jury unless the grand jury itself has previously agreed upon some different course, see United States v. Hilton, 534 F.2d 556, 564, 565 (3d Cir.1976), cert. denied, 429 U.S. 828;

Again, this accurately implies what happens when the subpoena doesn't require records from a bank. The documents aren't necessarily demanded for a day the grand jury is in session. Moreover, they are rarely produced "to" the grand jury. Most subpoenas for records allow the subpoenaed person avoid a grand jury appearance by sending the documents to the case agent, and most people take advantage of that.

Later in the Manual, AUSAs are counseled regarding general procedures for subpoenaed documents:

Informing the Grand Jury of Available Evidence. The practice of bringing all subpoenaed documents before the grand jury varies among jurisdictions. Providing notice to the grand jury that the custodian or case agent has reviewed the documents may be legally sufficient, regardless of local custom. At a minimum, however, prosecutors should keep the grand jury apprised of the location and organization of the documents.

Doesn't really sound like a requirement that the grand jury participate meaningfully in the process, does it?

Supposedly, the grand jury acts as a "kind of buffer or referee between the Government and the people," acting "independently of either prosecuting attorney or judge." This is a fiction, as polite as any other lie. The grand jury is actually an investigative and accusatory tool of the government. But it's a stubborn fiction. The Supreme Court has consistently ruled that the grand jury's pretense of independence must be maintained. That's led the Court, for instance, to say that federal courts can't require federal prosecutors to present known exculpatory evidence to the grand jury when they seek an indictment. Instead, the grand jury's historic independence requires courts to ignore when prosecutors secure an indictment by concealing from the grand jury evidence that contradicts the charges they seek. Whaaaa? Shhh. Shhhh. Never mind.

In short, the existence of a grand jury subpoena for documents signifies absolutely nothing but the fact that some federal prosecutor or federal agent wants the documents.

Last 5 posts by Ken White


  1. Kilroy says

    Have you ever considered returning to the U.S. Attorney's office? Blogging is fine and all, but if you really want to effectuate actual change, that is probably the best place to be.

  2. says

    @Kilroy: no. Because (1) I'm a true believer on the other side now, (2) they'd never in a bajillion years hire me back when I write stuff like this, and (3) etc.

  3. Hasdrubal says

    Was there a time when the grand jury really was an independent investigative body?

  4. Louis says

    Wow, so the part in the subpoena for where it outright says " investigation of a suspected felony being conducted by a federal grand jury" is complete BS?

    Ken, what would have happened if Reason had refused to send the documents, but rather decided to appear before the grand jury on the stated date, documents in hand? Would the issue have been brought before an actual grand jury at that point, or would the prosecutor still be able to sidestep it and take the documents to continue the investigation themselves?

  5. Castaigne says

    How very interesting. I seem to have been blocked from a certain post alone. (As my current test shows. Sorry for the interruption.)

    On topic: That seems really fucked up in terms of how that operates. Is there anything that can be done to change the process.

  6. Rob Ives says


    You must realize that the U.S. Attorneys are appointed by the President. It is a political appointment, and often results in a lawyer who is NOT a prosecutor becoming the boss in a district.

    Also, "investigation by the Grand Jury" is NOT really BS. In the end the GJ must vote to indict the suspect. Almost anyone can land on a Federal GJ (my wife did 18 months on one) and the GJ really does vote to indict or to not indict.

  7. Aaron says

    Hrm. This is not all that nice to hear. I think, should I ever be called to serve on a grand jury, I'll ask for all subpoenas issued in the name of the grand jury, and access to all relevant documents. Or can they still deny me access to both the subpoenas and the documents, even though I'm sitting on the grand jury that they supposedly were issued on behalf of?

  8. TimH says

    Ken – Can a grand jury member ask a question, such as whether the AUSA or other has unpresented evidence that contradicts the charges they seek? Force that to be presented?

  9. says

    Expanding on Aaron and TimH's themes… Ken, in the event that someone finds themselves on a grand jury, and if that someone is so inclined — perhaps because they keep a well-oiled woodchipper ready in the garage, should the need for one arise — what could that someone do to…oh, help restore the grand jury system to its initially conceived role as a means of restraining an out-of-control prosecutor?

    I mean, should we just sit back and enjoy being spear carriers in the spectacle, or is there some way we can fuck shit up without ending up in jail?

    Followup question: Is a runaway grand jury fun like it sounds?

  10. says

    Or, to put it another way, if empaneled on a grand jury, can you get away with forcing the prosecutor to play "Mother May I?" by asking about exculpatory evidence every time the open their mouth?

  11. Dragoness Eclectic says

    Ken, you're from Los Angeles. You are not a Southerner. Please do not abuse 'bless your heart'; you don't know what it means unless you're hearing it in person. Tone of voice is important. "Bless your heart" can be and usually is an expression of genuine sympathy down here. It's the rare 'nominally polite, blisteringly sarcastic' use that has gotten stuck in the Internet's collective gourd as the normal use of the expression. It's not, no more than 'Have a nice day!' normally means 'Go die in a fire'.

  12. Ken in NH says

    Instead of asking specific questions, I'll ask the all encompassing one: Is there a primer on grand juries that describes how be active and keep AUSA/USA and DAs in line? Or a set of primers since each state will be different? If I am ever impaneled, I would like to be an effective check on abuse if possible.

  13. amber says

    So how does one force the United States Attorneys, and other people that issue subpoena's and other things on behalf of the Federal Grand Jury, to actually produce the requested documents to that specific Federal Grand Jury.
    Or is the best thing to do what the judge in SCOs bankruptcy case suggested be done, when the judge made a ruling that he knew was not kosher?

  14. nk says

    Niketh Valamoor is not an embryo. He's been ten years a lawyer, via Columbia and Harvard, with law clerk and law firm experience before federal nebbishness. But nebbishes can be arrogant from the warm comfort of's lap.

    One time, I was doing an FOIA at Chicago City Hall. It's not as painful as it sounds. Records clerk is a mind-numbing job and if you're not a jerk the people will welcome you as a break from the tedium. An AUSA showed up with a subpoena, demanding immediate service. Dealing with an arrogant federal jerk from the safety of Mayor Daley's lap was an even more welcome break in the routine. He was told "Ok, leave the subpoena, and I'll give it to my supervisor. Or you can take it to the City Attorney. Or you can fill out an FOIA." The AUSA left in a tiff. I had been standing there watching the show. The clerk winked at me, brought out a file and said "Look through this and tell me what you want copies of."

  15. Aaron says

    Thus reinforcing my thought that it's wise to bribebutter up the worker bees that you actually have to deal with with chocolates, donuts, bagels, and (if appropriate) flowers now and then because they'll remember you. Likely with positive memories, and if you come in not being an overbearing "me tarzan, do stuff now!", they'll actually be inclined to give you that service anyway, because gosh darn it, you're a nice person.

  16. Aaron says

    It's the rare 'nominally polite, blisteringly sarcastic' use that has gotten stuck in the Internet's collective gourd as the normal use of the expression.

    Also not a southerner, but I always read it as gently but infuriatingly dismissive, not blisteringly sarcastic.

  17. says

    "Bless your heart" is absolutely used as "that's adorable" (or "my, how precious" if you're feeling that way). It's also used genuinely, and I hear it used plenty both ways. It's worth mentioning that I am most southern person here, save Patrick.

    I rate Ken's usage of the phrase as 10 Patricks out of a maximum of 10 Patricks. The overall post is only a 9.5 out of 10 Patricks on the same scale, however.

  18. says

    Just wanted to add props for the Firefly shout-out, while everyone else is debating the proper use of southernisms.

  19. ElSuerte says

    Say I'm on a grand jury. What should I do to make sure the prosecutor isn't running rampant?

  20. Dave B says

    So a grand jury subpoena is more like a letter of intention for a government 'agent' to maybe someday bring something in front of a grand jury.

    So lets say gov agent A dislikes yellow fords in his county. He now fills out a grand jury subpoena to force all ford dealers to tell him who bought yellow cars so he can some day find a reason to file a charge against owners of yellow fords in front of a grand jury. And this only gets in front of a jury if he feels like it after he has already subpoenaed all dealers and probably issued a gag order to prevent new paintjobs?

  21. Je suis woodchipper says

    ElSuerte June 25, 2015 at 8:19 pm
    Say I'm on a grand jury. What should I do to make sure the prosecutor isn't running rampant?

    Your comment strikes me as jury tampering.

  22. LadyTL says

    @Dragoness Eclectic
    Have a Nice Day! only doesn't mean go die in a fire when you hear it from a relative or very close friend. If you ever hear it from an employee of anyone…yes it really does mean go die in a fire.

  23. Base of the Pillar says

    This makes me ask: if one were chosen as a grand juror, what should he or she do? When given this kind of perfunctory report, is one's obligation to challenge it and to what extent and in what basis? I'm not, nor have ever been on a grand jury, but it seems like a different beast than a trial jury where the expectations are more clearly laid out.

  24. Jeses Christ says

    A grand jury can chose to not return an indictment (called a "no-bill"), but it rarely happens. No bills typically occur when the prosecutors (DA or AUSA) specifically asks the grand jurors to not indict. The indictment itself is signed by the grand jury foreperson.

    In some states, such as Texas, a defendant can make a written presentation to the grand jury and provide written testimonials (i.e. affidavits). Those presentations can sometime defeat a felony indictment.

  25. nk says

    I'll probably get banned for this, but what jurors do on grand juries is what the Japanese do when they have erections.

  26. stillnotking says

    Southerner here: "Bless your heart" can be anything from a completely sincere expression of sympathy/approval to a blatantly sarcastic put-down. In TV & movies it's almost always depicted as the latter — not sure why — so Yankees often read it that way automatically.

    Lots of English expressions have a comparable range of meaning. "Do tell", "Get outta here", etc.

  27. albert says

    Seriously, prosecutors only present their side of the story. Thus the grand jury will seldom see any reason to 'no-bill'. A bit like the FISA 'court'. Why waste time and money? Just eliminate grand juries.

  28. IndyJaws says

    How does an 18-month appointment to a federal grand jury work? Are there regular times that it meets, or only when it needs to be empaneled (if that's a word)? I can't imagine someone having to take a leave of absence for a year and a half to serve.

  29. TimH says

    Ken – can you provide any info on a grand jury's ability to question what's put in front of them? There are a lot of comments above asking for that, and ye have gorn quiet.

  30. albert says

    Since the prosecutor decides the evidence to be presented, he would carefully avoid presenting any evidence which might weaken his case. They aren't required to present 'both sides'. Same for 'witnesses'.

  31. TimH says

    The question is whether the grand jury has the power to ask for more information than presented. Also, if a response is either untrue or evasive, what can the grand jury do to force the issue?

  32. Mikee says


    Grand juries can get out from under the prosecutor, though it's rare. They're called 'Runaway Grand Juries.' In 1935 one such case a grand jury in New York City complained in open court that the prosecution was selectively providing evidence, assigning low level, junior investigators to assist them, and the prosecutor was ignoring obvious leads to other crimes. It was the beginning of the end of William Dodge's career, as well as one of the nails in the coffin for Tammany Hall.

    There aren't many examples of Runaway Grand Juries in modern times, and I can't find a major one at the federal level.

  33. TimH says

    Thanks for the example, but I still don't have an answer to what the powers a grand jury has to demand information outside the closed garden of information given to them by the prosecutor.

  34. cgrant993 says

    I served for 18 months as well. (Not sure where @Rob Ives' wife served.) We would meet every 3 weeks on a Wednesday. At times we would serve Thursday as well, and only once did we serve Friday. They selected 23 jurors from 40. Our GJ had to have 16 people present to make a quorum, and to be able to vote. Given enough notice, you could actually not come in at some times.

    All in all, I actually enjoyed my time on the GJ. Then again, I am self loathing and maybe a bit crazy. I also come from a background of many many attorneys in my family. (Grandmother, many uncles, and my father.) So many stories. From DEA agents blatantly lying to our faces, the sheer stupidity of criminals, the awesome gadgets agents use to obtain evidence, and I once personally requested financials to be subpoenaed during an investigation. (Although the last one wasn't so much an investigation. The AUSA was actually trying, successfully, to scare the shit out of a "witness", and he let the GJ tear into her with questioning.

  35. cgrant993 says

    One of the indictments presented to the GJ I served on was a simple possession with intent to distribute. Only reason it was at a federal level was the guy had a conceal carry license and had a firearm on his persons. No baggies, scales, or other items that would make it a distro case were present. He was unemployed, but had $1000 in cash on him. When I asked about the denominations of the money, they said that question didn't pertain to the case. (Actually, it does, or it did in other distro cases. Small denoms usually indicate distro.) I then asked how long he was unemployed. Again, they said it doesn't have any relevance to the case. I beg to differ. If he was fired/laid off a few days or week ago compared to three months or longer is a BIG difference. Didn't matter, they never answered my questions. It was one of two indictments that had "nay" votes. Only TWO votes away from not indicting. :-/

  36. CJColucci says

    So, Ken, do you think the grand jury is a good institution gone wrong, a bad idea, a merely useless holdover from a time when it had a function, or what? Is it worth doing anything about it?

  37. Terry Cole says

    Remember that "Grand Jury" was not mentioned in the constitution till an amendment (in the bill of rights). It's been captured by the executive but in principle it's neither executive, legislative, nor judiciary. One could in principle propose another amendment which would fix it.

  38. TimH says

    When you asked about the money and employment and were fobbed off, were you explicitly told that you couldn't have the answer? Reading between your lines, they didn't actually refuse to answer you, just said that info wasn't important. If you have pressed the point and insisted on answers, on the basis that they had the info…?

  39. says

    I kind mentioned that I was more curious on how long he had been unemployed, and gave an example similar to the one in the post. (1 week or 6 months or so.) They just reiterated that they didn't see how it would pertain to the indictment. We were suppose to be able to ask whatever questions we deemed fit, but they didn't always answer. I am guessing the guy, with the right attorney, will/got out of the charge with little to no time served. Was a VERY weak case.

    More importantly, I wanted to call the agent out when he was lying about the weed. His example was, "Well, a pound of cannabis would start to mold within a couple months. Similar to, if you were to leave a tomato out for a month it would form mold." But, I felt it best to keep my mouth shut when facing a Federal DEA Agent sitting in front of the Grand Jury. (Cannabis is the "flowering" part of the plant. When was the last time you saw a flower covered in mold?) Side note: Web link is a pic of my handy dandy pointless certificate for my service.

  40. AMM says

    I was on an "18-month" (actually 24-month) federal grand jury.

    1. Prosecutors and the grand jury staff are good at presenting what the prosecutor's office would like the GJ to do as if it were what the law requires, and implying that doing anything else is contrary to the law. They also sound authoritative and confident, whereas the grand jurors _know_ they know less, so the jurors are inclined to simply take what they say on faith. They could have lied up and down about the law, and nobody would have known (or cared); nor, as far as I know, could they get in any kind of trouble if they were caught in a lie. Finally, if some grand juror _does_ question what they are doing, they are very good at discouraging or humiliating anyone's attempts to ask inconvenient questions.

    2. Most grand jurors don't want to be there in the first place, and are only interested in getting the hearing over as soon as possible. Every time I asked a prosecutor a question, half the jury would be yelling at me to shut up and let them go home. Moreover, most people simply assume that if a prosecutor wants to indict someone, they must be guilty, so they're inclined to side with the government no matter what it does. From what I could see, the point of grand jury hearings is to get "evidence" into the record, not to convince the grand jurors of anything.

    3. If by some fluke, a grand jury doesn't return an indictment, they simply take it to another one. They don't even have to call the witnesses back, they simply have some warm body read the transcript from the first grand jury's hearings to the second grand jury. I'd say that more than half the "evidence" we heard was presented this way.

    the acknowledged "best practice" is for the AUSA to appear before the grand jury, tell the grand jurors that a subpoena has been issued on their behalf, briefly outline the nature of the investigation, and ask their consent for the case agent to maintain custody of the documents produced

    Really? Never, ever happened to us. (Southern District of NY.) The first we ever knew of any subpoena was if the prosecutor chose to tell us that a witness we were seeing was there due to a subpoena. Never in reference to documents, and I'd guess that most of the time, we wouldn't know that a witness was there because of a subpoena.

    My impression was that the main function of grand juries is to allow prosecutors to circumvent whatever restrictions prosecutors on their own might face when trying to extract evidence or testimony. A prosecutor on his/her own can't throw someone in jail for refusing to talk, or forbid a person from having an attorney present during questioning. They can do so by using the GJ as a sock puppet.

  41. AMM says

    I am guessing the guy, with the right attorney, will/got out of the charge with little to no time served. Was a VERY weak case.

    That's assuming the guy could afford an attorney. The cases that were disposed of by getting a warm body to read the arrest report were usually the ones against people who sounded like they might not be able to afford an attorney. It's more likely that the guy got a court-appointed attorney who saw him for the first time 5 minutes before his trial, and possibly had no criminal law experience at all.

    When a case involved someone who sounded like they _could_ afford a real attorney, they went to a lot more trouble to dot every i and cross every t. Weeks of hearings, real witnesses, sometimes even charts and hand-outs.