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Grand juries are conducted in secret by prosecutors without the oversight of a judge. The reasons for the secrecy of these proceedings have been adequately covered here but I am curious as to what stops a grand jury using this secrecy to intimidate people or generally abuse its powers.

Chelsea Manning believes that "grand juries are simply outdated tools used by the federal government to harass and disrupt political opponents and activists in fishing expeditions" and therefore states that "nothing will convince [her] to testify before this or any other grand jury." She has been held in contempt of court and served time in jail for this belief multiple times which implies to me that there is legitimate reason to fear these proceedings.

Please note this question is not about the cases involving Chelsea Manning in particular, or focused on any specific case, but is a general question about protections existing to prevent the misuse of this process. Her comments are included to give clear examples of the type of misuse people fear.

  • Can a grand jury actually punish anyone, or just refer them to a criminal case? The threat of investigation or trial shouldn't be concerning to someone who is innocent. – dandavis May 17 at 19:33
  • @dandavis While a grand jury can't convict, only refer to a criminal trial, it does have subpoena powers and therefore can summon people to testify. This puts them in the position (as I understand it) of either having to testify in a secret court without an impartial observer, or begin held for contempt (that is presuming that, as for Chelsea Manning, they can't invoke the fifth amendment for whatever reason). – CoedRhyfelwr May 20 at 8:03
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    emptywheel.net/2019/04/19/… Link to article about Pres. Trump and Don Jr not appearing in front of the Muller Grand Jury. Obviously this suggests there are limits, but the article makes clear there were additional tools available to the GJ that were not used. So it's unclear if the limits are legal or political. – Jontia May 20 at 8:23
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    Would you please clarify whether you intend what stops a grand jury using this secrecy to ... or what stops a government official from using the secrecy of a grand jury to ... or both. There seems to be distinct answers. – Rick Smith May 20 at 18:40
  • @dandavis - I'd say being charged, alone, can have a huge impact on someone's life. It's not like the state picks up the tab for the legal fees that just wiped out all of one's net worth, in defending themselves. Seems like there should be some checks and balances, as pretty much any prosecutor can get a grand jury to recommend charges if they want to, hence former New York State chief judge Sol Wachtler's famous quote: "a grand jury would indict a ham sandwich, if that's what you wanted." – PoloHoleSet May 21 at 14:00
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While a type of jury is used in a trial to render a verdict or approve a sentence, a grand jury does not have that power. They only have the power to recommend that charges be filed or not.

The defendant would still have the ability to defend themselves in court with all the rights that a defendant has to a presumption of innocence, full discovery and disclosure, etc.

Yes, it would be used as a tool to harass, but there are civil sanctions one can file/sue for that would be bolstered by being exonerated on a sham case, ideally.

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... what stops a grand jury using this secrecy to intimidate people or generally abuse its powers.

From Federal Rules of Criminal Procedure, Title III, Rule 6:

(h) Excusing a Juror. At any time, for good cause, the court may excuse a juror either temporarily or permanently, and if permanently, the court may impanel an alternate juror in place of the excused juror.

A grand jury is composed of from 16 to 23 people. If some wish to pursue a political agenda, instead of investigating actual federal crimes, they may be removed.

  • The question, to my reading, is not about members of the Jury but about those impanelling that Jury. – Jontia Jun 13 at 12:32
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    @Jontia - That is why I asked for clarification. A Grand Jury is impaneled by a judge. That Jury sits for approximately 18 months. The Jury, during that time, is presented with matters that may involve dozens of investigations by as many government attorneys. There is no direct involvement by the judge, whose job is to issue warrants and subpoenas requested by the Jury. It appears that only a DA or ADA might attempt to use the Grand Jury for political ends. – Rick Smith Jun 13 at 13:05
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Chelsea Manning Is Not Being Persecuted

Ordinarily, the Fifth Amendment protects people from having to testify against themselves to Grand Juries (or for that matter, to anyone). No one in America can be compelled to incriminate themselves. That would be a form of persecution.

The Fifth Amendment does not apply to Chelsea Manning because she has already plead guilty to the crimes that the Grand Jury wishes to ask her about, and she accepted a commutation of her 35 year prison sentence for espionage. This would have been explained to her when she accepted the commutation, as admitting guilt is an explicit condition of accepting that arrangement. She has already incriminated herself by pleading guilty, and since she has been already sentenced she therefore cannot be punished for that crime again.

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    This is not an answer to the question asked. The motives for Chelsea Manning's refusal to testify is corrolary to the question, and OP's actual question is I am curious as to what stops a grand jury using this secrecy to intimidate people or generally abuse its powers. not Why does Chelsea Manning not want to testify before a grand jury? – Magisch May 15 at 11:05
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    Reading the OP's question, I don't see the assumption that she is being prosecuted anywhere, "grand juries are simply outdated tools used by the federal government to harass and disrupt political opponents and activists in fishing expeditions" might well refer to other people or activists the government wishes to secure indictments against. – Magisch May 15 at 11:30
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    @Magisch The question has the word “persecute” in it. The question says that Chelsea Manning has been jailed for not complying with the grand jury, and this fact means there is “legitimate reason to fear these proceedings.” It is implied the fear is of persecution in the wording of the title of the question. – Joe May 15 at 12:15
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    This answer doesn't answer the question. It addresses only one possible form of persecution by a grand jury, which is compelling self-incriminating testimony. But calling a person to testify at all can also be persecution because it is "disruptive." If a government calls someone to testify for the sole purpose of causing the disruption, that is persecution. – phoog May 15 at 15:42
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    Fair point on the Julian Assange comment, but Manning has alleged that it is a "fishing expedition." The question, however, is not whether Manning's allegations are true, but whether there is anything in place that would prevent what she alleges. Her allegations, as quoted in the question, also explicitly mention harassment and disruption as the means of persecution; I did not come up with disruption by guessing. – phoog May 15 at 16:05

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