In Legal Battle Over Grand-Jury Secrecy, Ninth Circuit Court Sides with The Stranger

The doors of the Ninth Circuit courthouse in downtown Seattle—the same courthouse that was vandalized on May Day 2012, sparking very aggressive law-enforcement activity over people's political beliefs.

The doors of the Ninth Circuit courthouse in downtown Seattle—the same courthouse that was vandalized on May Day 2012, sparking very aggressive law-enforcement activity over people’s political beliefs.

From The Stranger

Well, the court sided with The Stranger for the most part.

Last Friday, the Ninth Circuit published its opinion about our ongoing fight with the federal government over how secret its grand jury proceedings should be. The short version: They wanted automatic and almost total secrecy and opacity, we wanted transparency—or at least some clearly argued standards about why certain documents should be sealed and kept away from the public. On Friday, the court found in our favor. We won. Mostly.

The background: In the summer of 2012, law-enforcement officials began handing subpoenas to activists around the Northwest, ordering them to appear before a federal grand jury in Seattle. These weren’t all polite knocks on the door—in some instances, agents battered their way into activists’ homes before sunrise with guns drawn. The grand jury was supposedly investigating what happened on May Day, 2012, when demonstrators in an anti-capitalist march smashed out the windows of stores, banks, and the Ninth Circuit Federal Courthouse downtown.

The investigation landed several political activists in jail for months. Some, like Matthew Duran and Katherine “Kteeo” Olejnik, spent a few of those months in solitary confinement for reasons the federal government and the detention facility still refuse to explain.

These activists weren’t accused of any crime—prosecutors acknowledged they weren’t even in town on May Day. They were imprisoned because they appeared before the grand jury as ordered but refused to answer troubling questions about other people’s social habits and political opinions.

Katherine Olejnik and Matthew Duran were kept in solitary confinement for months for refusing to answer questions about other people's politics.

Katherine Olejnik and Matthew Duran were kept in solitary confinement for months for refusing to answer questions about other people’s politics.

In the course of reporting the story, it became clear that the federal government expected to keep as much of its proceedings as secret as possible. Nearly every document pertaining to the case was reflexively sealed, regardless of whether it contained any “secrets” from the grand jury investigation. Even the docket to the court file—essentially, its table of contents—was sealed, meaning that as far as the general public was concerned, the entire episode would be erased from legal history.

So Neil Fox of the National Lawyers Guild and I began a legal process to unseal some of those documents—or, if they weren’t going to be unsealed, to at least make the government prove why the public should be kept in the dark about what was happening. Because we said so wasn’t good enough. (As the case progressed, the government even began sealing its legal arguments about why it shouldn’t have to unseal anything. It apparently wanted to keep the debate about secrecy a secret from the public as well.)

Fox argued the case up through the system until, one morning last February, he, Kimberly Gordon (Duran’s defense attorney), and I walked up the steps of the Ninth Circuit Federal Courthouse—the same courthouse demonstrators vandalized during May Day, kicking off this whole story.

Inside, we could hear the muffled roars of Seahawks fans cheering during their celebratory Superbowl parade as our side—and lawyers from the US Attorney’s Office—made our arguments about reflexive grand-jury secrecy in front of the second-highest court in the land.

Last Friday morning—coincidentally, the day after the Seahawks resoundingly won their first game of the new season—the Ninth Circuit published its opinion.

In a nearly 50-page ruling written by Judge Morgan Christen (who has the distinction of being supported by pro-choice advocates for her work with Planned Parenthood and for being selected by Sarah Palin for the Alaska Supreme Court), the court lays out the basics of the case:

(1) Nobody is arguing that there’s a public right to transcripts of what happens in the grand jury room. For the purposes of this case, we all agree those are secret.

(2) Currently, all grand-jury related proceedings “are sealed as a matter of course,” Judge Christen wrote, including documents about the activists’ contempt proceedings that sent them to a federal detention facility. (Once Duran, Olejnik, and the rest demonstrated that they would not answer grand jury questions, they were found in contempt of court and put behind bars. In the course of reporting the story, Olejnik told me she was asked four questions about the vandalism on May Day, which she answered truthfully, but says she refused to answer around50 “McCarthy-esque” questions about other people’s political views.)

(3) When we appealed the government’s reflexive secrecy to the district court, federal Judge Richard A. Jones said we could have access to the transcripts of open proceedings but nothing more—including the docket, making any unsealing of little use to the public.

(4) “Public disclosure of judicial records often enhances the public’s trust in the process,” Judge Christen wrote, and the public has some First Amendment “right of access” to what happens in its courts.

Given those four points, the big question was: How much should the government be able to keep secret and how much does the public have a right to know?

Judge Christen decided the government could keep three things under seal: (a) the documents related to witnesses’ motions to quash their subpoenas to appear before the grand jury (the secrecy of the grand jury is partly designed to protect the identity of witnesses, even when those witnesses want to quash their subpoenas), (b) parts of the contempt transcripts in which grand jury secrets are discussed, and (c) the government’s motion to hold Duran in contempt.

Judge Christen held that these should be kept under seal because they tilt towards revealing what the grand jury is investigating, which is supposed to be secret.

But she argued that the rest of ancillary proceedings surrounding the grand jury (the docket, orders to hold witnesses in contempt, orders to put them behind bars, witnesses’ requests to be released, and so on) should be unsealed.

That’s the good news.

In effect, the Ninth Circuit has said that aside from actual grand jury secrets revealed in the grand jury room, and those that might spill into ancillary proceedings, the public has a right to know what’s going on. (As Judge Christen put it in her discussion of our motion to unseal Duran’s contempt file: “The public should be given an opportunity to engage in and follow the dialogue concerning whether the public will be excluded from a proceeding.”) Now the question is whether the Western District of Washington will change its rules so it does not seal all documents related to the grand jury “as a matter of course,” as it has done in the past.

Because, as of Friday, that is the new legal standard.

Judge Christen’s opinion is good news for this particular grand jury case—but it’s also a tiny part of a much larger, much longer story about what grand juries are for and who they serve.

There have been two broad, contradictory narratives about what grand juries do: first, that they protect individuals and minorities from the powerful; second, that they are just a way for the powerful to put pressure on individuals and minorities.

In defense of grand juries, Judge James Alger Fee wrote in an impassioned 1952 opinion (US vs. Symth): “… a criticism of the action of the grand jury is a criticism of democracy itself.”

But as New York State Judge Sol Wachtler was famously quoted in The Bonfire of the Vanities: “A grand jury would indict a ham sandwich, if that’s what you wanted.”

The grand jury is an unusual and arcane institution where the prosecutor holds almost all the cards and all the power. If you are called before a grand jury, you are not allowed to have an attorney in the room or even a judge—it’s just you, the prosecutor, and the grand jury. And it’s all secret. (Only those summoned before the grand jury are allowed to talk about what happened in the room.)

As a 2002 article in the Harvard Journal of Law and Policy put it: “Operating outside the public eye, the grand jury is the most powerful investigative agency in the federal criminal justice system.” Unlike the FBI or other law-enforcement organizations, a grand jury investigation can jail witnesses who refuse to talk and subpoena documents and other evidence without a search warrant. No search warrant means no probable cause—add in grand jury secrecy and you’ve got an extremely powerful investigative tool operating without much public oversight.

The whole idea of the grand jury was introduced by King Henry II at the Assizes of Clarendon as he was trying to extend the legal power of his crown over feudal lords scattered throughout his kingdom. Henry II’s idea was to send justices through the land to keep “the King’s Peace.” When a justice arrived, he’d swear in some of the local men who could tell him—in secrecy—about the crimes that had been committed since the last time he was in town, even if they were committed by a local, feudal big-shot. Hence the idea of grand juries protecting the little guys.

But in the 1950s, at the time Judge Fee was writing about grand juries as sacred to democracy, they were becoming increasingly caught up in anti-communist hysteria—not evaluating evidence so much as trying to scare it up. A 1954 New York Timesarticle titled “Senate Votes to Force Witnesses To Testify in Subversive Cases” pinpoints one important moment in this history when Congress decided to force witnesses to testify in cases about “national security” and “subversive activities” by granting them immunity. If they’re granted immunity, they can’t plead the Fifth Amendment against self-incrimination—then it’s talk or go to jail, which is also what happened to the grand jury resisters in the May Day case.

“For years scores of witnesses have refused to talk,” the NYT article reports. “The bill was one of the principal recommendations of the Eisenhower Administration in its fight on subversive activities” and was explicitly described in Washington, DC as a “device for ‘getting around the Fifth Amendment.'” (Incidentally, that was only one of several actions along the “subversive” front that day in DC. The article also describes new prison penalties for those who harbor fugitives and stiffer penalties for bail-jumpers—inspired by communist fugitives such as Gerhard Eisler, who is mentioned in the article—and an “anti-subversive” bill pressuring unions to purge their ranks of communists.)

Once granting witnesses immunity was solid, investigatory bodies like the grand jury had incredible power. Immunity and contempt proceedings could pressure people to testify—and secrecy would severely restrict how much the public would know about it.

In 1984, legal scholar Michael E. Deutsch wrote a grim history of grand juries in the US, showing how they’ve been instrumental in persecuting abolitionists, labor organizers, civil-rights activists, the Puerto Rican independence movement, and dissident firebrands from Big Bill Haywood to Marcus Garvey. (Legendary IWW leader Eugene V. Debs, Deutsch wrote, was indicted by a grand jury for giving a speech against World War I and for socialism—he was convicted and sentenced to 10 years in prison.)

“Rather than protecting the innocent from political persecution,” Deutsch claimed, “the grand jury was the willing hand maiden of oppression.” He identifies some of the final years of the Nixon administration as a higher-water mark for grand jury persecution: “Between 1970-1973, over one hundred grand juries were convened in 84 cities; they subpoenaed over 1,000 activists.”

Even Deutsch admits exceptions, of course—in 1765, he reports, a grand jury in Boston refused to indict demonstrators accused of leading the Stamp Act riots, a case of mass vandalism that we now think of as heroic instead of threatening—but he generally takes a dim view of grand juries and how they’ve been used.

And while grand juries have gone just about everywhere English law has gone—Canada, Ireland, New Zealand, Scotland, even France—they have either been abolished or fallen into disuse in each of those countries except the US.

In one sense, this Ninth Circuit opinion has its origins in the May Day smashupand The Stranger‘s reporting on its slow-motion fallout: doors being kicked down, subpoenas issued, and activists sitting in solitary.

But it’s also part of a long and contentious struggle between everyday people and their governments—our lives are becoming increasingly transparent to them while their operations become increasingly opaque to us. “Since the grand jury operates in secret,” wrote the authors of the Harvard law journal in 2002, “there are no public checks on the scope of its investigations.”

Hopefully, Judge Christen’s opinion puts a tiny grain of sand on the other side of the scales, taking a confrontational and intimidating moment that prosecutors were expecting would disappear from history and putting back on the books—where, hopefully, it will become a tool journalists, attorneys, and activists across the country can use to fight government opacity in the future.