Seeking Contempt Sanctions for Unauthorized Leaks of Grand Jury Information
Unauthorized leaks of confidential grand jury information have long posed a challenge for courts and prosecutors. Recent high-profile cases have renewed focus on this issue and raised questions about the appropriate remedies when leaks occur.
Grand jury proceedings are supposed to remain secret, with limited exceptions, under Federal Rule of Criminal Procedure 6(e). This rule serves important interests like protecting witness privacy, encouraging participation, and preventing targets from fleeing or interfering with an investigation before charges are filed.
But leaks still happen on occasion. Government officials, grand jurors, witnesses, or others privy to the proceedings may disclose details to the media or public, whether deliberately or inadvertently. When this occurs, it can jeopardize the integrity of an ongoing investigation and unfairly damage reputations.
So what can courts do when leaks happen? Let’s look at the potential sanctions and remedies under current law.
Dismissal of the Indictment
One option is for the court to dismiss any indictment returned by the grand jury, thus ending the criminal case. But this is an extremely rare and disfavored outcome. Courts view it as a drastic measure of last resort.
The Supreme Court has said dismissal is only appropriate when leaks caused “systemic and pervasive” harm or substantially influenced the grand jury’s decision. See Bank of Nova Scotia v. United States. Anything short of that high bar, and courts will opt for less severe responses.
Holding Reporters in Contempt
When media outlets publish leaked grand jury secrets, prosecutors sometimes try to force reporters to disclose their sources through subpoenas. But courts have largely rejected this approach under the First Amendment’s press protections.
The Supreme Court ruled in Branzburg v. Hayes that reporters must comply with grand jury subpoenas. However, many lower courts have declined to hold reporters in contempt for refusing to identify sources, creating an uncertain legal landscape.
Internal Investigations
Prosecutors’ offices have procedures to investigate suspected leaks internally through their Office of Professional Responsibility. But these reviews rarely yield public findings and may not satisfy courts or grand jury targets.
Judges sometimes order independent investigations by an outside third party. While this option avoids appearances of bias, it too rarely determines the source or prevents future leaks.
Injunctions
Courts can issue injunctions ordering prosecutors, agents, and grand jurors not to disclose proceedings. But these are preventative measures, not sanctions for leaks that already occurred. Their effectiveness depends on compliance from many parties.
Civil Contempt
Judges can hold leakers in civil contempt, imposing fines or jail time until they comply with orders not to release additional information. This forces action through coercive sanctions.
But it works better for preventing future leaks than punishing past ones. Also, the leaker’s identity must be known for coercive sanctions to directly target the violation.
Criminal Contempt
Criminal contempt charges can punish past leaks even if the source remains anonymous. This may include fines or imprisonment. Criminal contempt requires prosecutors to prove the disclosure was willful, but does not coerce compliance.
Appeals courts have upheld criminal contempt findings based on circumstantial evidence about the leak’s origin. See Barry v. United States. However, contempt defendants can demand a jury trial under certain circumstances. See Bloom v. Illinois.
Ethics Complaints Against Attorneys
Courts can refer prosecutor’s office attorneys to bar associations for disciplinary review if they improperly disclose grand jury information. But this depends on identifying the specific lawyer(s) involved, which is often impossible.
Such ethics proceedings also focus on professional conduct standards rather than remedying damage from leaks. They may lead to censure or suspension but not jail time.
Removing Prosecutors from the Case
Courts can disqualify prosecutor’s offices from a case entirely if they determine that improper leaks irreversibly tainted the proceedings. But this extreme step essentially forces the government to start over from scratch.
Judges view removal as a last resort only appropriate if leaks clearly undermined the case. Otherwise, they will opt for less disruptive responses.
Assessing the Options
Dismissing indictments, holding reporters in contempt, and removing prosecutors are rare outcomes courts try to avoid. Internal investigations, injunctions, and ethics reviews offer limited remedies. That leaves civil and criminal contempt as the most viable options.
Many judges view civil contempt as the preferable path. It aims to coerce compliance rather than punish. However, it works better for preventing future leaks than addressing past ones. Criminal contempt charges can punish previous leaks even without identifying the source. But courts proceed cautiously, given the serious due process concerns of potential jail time.
There are no perfect solutions. Courts must weigh competing interests like transparency, privacy, and public trust when leaks occur. The best approach depends on the severity of the breach and its impact on the proceedings. But judges favor the least intrusive sanctions that still have a reasonable chance to effectively respond to unauthorized disclosures.
The bottom line is that grand jury leaks pose complex challenges. While courts have a range of options to address them, no single remedy fits every situation. The law on this issue remains unsettled and continues evolving in response to high-stakes cases.