A Moment To Protect Grand Jury Secrecy

The more lively the curiosity, the more extraordinary the circumstances, the greater the importance of guarding the system’s ability to work like it is supposed to work.

AP/Lynne Sladky
An agent involved in the FBI investigation into Hunter Biden's business dealings has left the agency. AP/Lynne Sladky

There is a story about Robert Bleiberg, editor of Barron’s (now gone, alas), about the day President Kennedy was shot. When news came over the wires that the stock market would close for the crisis, Bleiberg erupted into such an incandescent rage that — though this detail might be apocryphal — he ripped his phone from its wire and threw it into the newsroom. A crisis is just when the market needs to be able to work, he roared.

This is how we feel about the grand jury investigating President Trump’s handling of his papers. It is no small thing when the normally fractious and cutthroat press makes common cause, as our biggest and most distinguished newspapers have done in petitioning a federal magistrate judge, Bruce Reinhart, to unseal the affidavit laying out the case against President Trump with sufficient oomph to send FBI agents swarming over Mar-a-Lago. 

Our confrères at the Associated Press, CBS, Washington Post, NBC, New York Times, Wall Street Journal, and CNN have all filed with the court. We have great regard for all of them. Our instinct, though, is to refrain on the ground that the worse this crisis, the more lively the curiosity, the more extraordinary the circumstances, the greater the importance of guarding the system’s ability to work like it is supposed to work.

Dow Jones & Company tells the court that “continued concealment” of the search materials “is likely more injurious than disclosure,” because “the nature of political discourse, which abhors a vacuum, has pumped all kinds of sensational suppositions into the informational void.” In other words, in the face of secrecy, the press would be unable to restrain itself from speculating. It has its First Amendment patrimony.

There are, though, even more ancient rights, and the presumption that a veil of secrecy descends on affairs of court before the issuance of an indictment is one. In our Constitution, it is codified in the Fifth Amendment, which ordains that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” This dates to the Assize of Clarendon, promulgated by Henry II in 1189.

That act, an early step in the evolution to trial by jury from trial by ordeal and battle, led to the codification of the grand jury in the Magna Carta of 1215. It also bore the more antique inquests of the Domesday Book, procedures put in place by the conquering Normans to govern their new fiefdom across the English Channel. The grand jury that has come down to us from these medieval forbears is marked by secrecy. 

To that end, a grand jury room contains only the jurors themselves, a prosecutor, and a court reporter. Federal Rule of Criminal Procedure 6 outlines the intricacies of secrecy, whose goal is to, in the words of Chief Justice Warren, “determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” That is the logic of keeping an affidavit under wraps, as well.

Some dispute this logic. “Witness and Grand Jury Secrecy,” an article that appeared in 1983 in the American Journal of Criminal Law, argues that “by shrouding grand juries in total secrecy, targets are often unable to learn the direction of the investigation, rendering them incapable of presenting exculpatory evidence.” It also, though, shields suspects from innuendo, even if grand jury witnesses are allowed to talk.  

Judge Reinhart appears to be contemplating a middle course. He has stated that he is “not prepared to find that the affidavit should be fully sealed.” He has asked for suggested redactions by next week. The Justice Department has argued that the release of the affidavit would “chill future cooperation by witnesses whose assistance may be sought as this investigation progresses, as well as in other high-profile investigations.”

This is a moment to remember that the grand jury is a right — marked in the Bill of Rights. Unprecedented warrants might create strange bedfellows, as the press and Mr. Trump clamor for the affidavit’s release (only the press has filed). It’s the DOJ that seeks to protect the grand jury right. Our instinct in this story has been to mark the importance of due process. We feel about it the way Bob Bleiberg regarded the markets.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  create a free account

By continuing you agree to our Privacy Policy and Terms of Use