What’s So Special about a Special Grand Jury?

The Justice Department has empaneled a special grand jury in Washington, D.C., according to a new report from the Washington Post.

What, exactly, the special grand jury is tasked with investigating remains a mystery. But the news arrives at a critical moment for D.C.’s embattled top prosecutor, U.S. Attorney Jeanine Pirro, whose office has struggled to make criminal cases against President Trump’s perceived enemies stick. Just two weeks ago, Trump publicly suggested Pirro's job might be in jeopardy after she dropped charges against a former Olympic athlete accused of vandalizing the Lincoln Memorial Reflecting Pool. Now, with Todd Blanche newly confirmed as attorney general, Pirro faces increased pressure to deliver on the president’s prosecutorial agenda—potentially with a special grand jury at her disposal.

Adding to the confusion is speculation that the D.C. special grand jury may not be the only one in operation. In a series of interviews and social media posts over the past year, a top Trump ally has repeatedly claimed that another special grand jury is seated in Fort Pierce, Florida. That grand jury is supposedly tasked with investigating the so-called “Grand Conspiracy”—a purported deep-state plot in which Trump’s enemies conspired to violate his constitutional rights, stretching from the 2016 Russia investigation through the criminal cases brought against him after he left office. Overseen by Joe DiGenova, an 81-year-old lawyer who once represented Trump’s campaign in challenging results of the 2020 election, the Florida grand jury has reportedly subpoenaed documents from prominent Trump critics, including former FBI Director James Comey and former CIA Director John Brennan.

All of which raises several questions that, until recently, almost no one but federal prosecutors had reason to ask: What in the world is a federal special grand jury? How is it different from the regular kind? And why might prosecutors deploy this unusual tool to investigate the president’s perceived adversaries?

What follows is a primer on special grand juries: how they work, what federal law actually permits them to do, and why turning one loose to investigate purported crimes can, on occasion, spectacularly backfire.

What’s the Deal with Federal Special Grand Juries?

The Fifth Amendment requires indictment by a grand jury for any “capital, or otherwise infamous crime.” But while that familiar constitutional text establishes an important right, it tells us little about how grand juries actually operate or what powers they possess beyond returning indictments. Those details are instead found in federal statutes, rules, and judge-made common law.

To that end, federal law recognizes two types of grand jury: the ordinary kind and the special kind. In practice, however, the two are more alike than different. Both draw their basic legal framework from the same sources—namely, Rule 6 of the Federal Rules of Criminal Procedure and the general grand jury provisions found in Title 18 of the U.S. Code. Both are composed of 16 to 23 eligible citizens, many of whom would probably rather be anywhere else but grand jury duty. Both operate behind the veil of grand jury secrecy imposed by FRCrP Rule 6(e). And both wield the same core powers: They can subpoena documents, compel witness testimony, and—if enough jurors find probable cause—return indictments.

So what, exactly, is so special about a “special grand jury”?

Congress created the modern special grand jury system as a part of the Organized Crime Act of 1970, principally as a tool to investigate complex cases involving organized criminal activity. Today, under 18 U.S.C. § 3331, the statute provides for the empanelment of a special grand jury in two circumstances.

First, certain large judicial districts—those containing more than four million inhabitants—are required to have a special grand jury empaneled at least once every 18 months. The logic, presumably, is that the scale and complexity of organized criminal activity in large urban centers warrants a standing mechanism for sustained investigation over an extended period.

Second, in judicial districts with fewer than 4 million people, the Justice Department can trigger the empanelment of a special grand jury itself. The statute provides that a special grand jury must be empaneled if the attorney general—or an authorized Justice Department official—certifies in writing to the district’s chief judge that one is necessary because of “criminal activity in the district.” Notably, the special grand jury Pirro’s office just empaneled almost certainly came through this prong of the statute, because the District of Columbia is a judicial district with fewer than 4 million people.

The most important practical difference between a special grand jury and an ordinary grand jury is its tenure. An ordinary grand jury generally serves for no more than 18 months, though a district court may extend its term by up to six months if it finds that doing so is in the public interest. A special grand jury, by contrast, can remain in operation for as long as 36 months. It ordinarily serves an initial 18-month term, which the court may extend in six-month increments if it determines that the grand jury’s business remains unfinished.

That extra time can be particularly valuable to prosecutors in complex investigations or multi-defendant conspiracy cases. The continuity allows jurors to develop familiarity with a sprawling body of evidence or technical subject matter as an investigation unfolds over a lengthy period of time, sparing prosecutors the disruption of bringing a new group of jurors up to speed once the grand jury’s term expires. For that reason, special grand juries are generally used to investigate multi-defendant conspiracy cases, discrete areas of organized criminal activity, or clusters of related cases. Investigations into the collapse of the Enron Corporation and environmental wrongdoing at a nuclear weapons facility in Rocky Flats, Colorado, are two such examples.

But the feature that makes special grand juries genuinely unique in the federal system is their power to issue a public report. That sounds unusual today, but there is a long common law tradition of grand juries doing just that. Early English and colonial grand juries got into the practice of issuing informational reports as their role expanded beyond the traditional power of bringing criminal charges. Into the mid-19th century, grand juries in some jurisdictions could report on a wide variety of matters concerning public officials, civic affairs, or other investigative matters. A report could, for example, criticize behavior of public officials that was condemnatory but short of criminal.

Today, especially at the federal level, the practice of having grand juries issue reports has almost entirely died out over time. The decline can be attributed in part to the import of the Federal Rules of Criminal Procedure. Among other things, the strict grand jury secrecy provisions codified in Rule 6 gave judges power to seal grand jury reports, effectively gutting the communicative or expressive purpose of the grand jury’s reporting function.

While the reporting tradition has largely faded from federal grand jury practice, Congress codified a limited version of it when it created the modern special grand jury. Under 18 U.S.C. § 3333, a special grand jury may submit a report to the presiding judge at the conclusion of its term. The judge then reviews the report to determine whether it complies with the statutory requirements. If it does, the report must then be publicly filed on the court’s docket.

The Limits of the Reporting Power

It’s not clear why Pirro’s office is using a special grand jury or whether it has anything to do with the grand jury’s statutory authority to submit a report. But some commentators and news outlets have suggested as much. As the Independent put it in the wake of the Post’s report: “Such a secretive special grand jury could be used to draft damaging reports about Trump’s critics, including current and former Democratic officials.”

If that is Pirro’s galaxy-brain plan, it’s not a very good one. The problem is that the grand jury’s reporting authority is considerably narrower than the speculation about it might suggest. Under 18 U.S.C. § 3333, the special grand jury is authorized to submit a report concerning two categories of information. Neither category provides an obvious mechanism for crafting a damning report against Trump’s—and, by extension, Pirro’s—most obvious targets.

Start with the first category, which permits the grand jury to issue a report concerning “noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.” While that provision allows the grand jury to criticize the conduct of an individual who is not ultimately charged with a crime, there are several important limitations packed into it.

For one thing, the noncriminal conduct must be connected in some way to “organized criminal activity.” That is a meaningful limitation, because it means that the grand jury is not authorized to issue a report about just any instance of noncriminal misconduct or malfeasance by a government official. The misconduct has to bear a sufficient connection to organized criminal activity. So, for example, it would not be enough for the grand jury to conclude that Jerome Powell engaged in some noncriminal malfeasance while overseeing the Federal Reserve’s renovation projects. To issue a public report on the matter, the grand jury would have to find some connection between Powell’s conduct and the organized criminal activity of others.

What’s more, the individuals who are the subjects of the report must be an “appointed public officer or employee” of the United States. From the jump, this would exclude federal and state elected officials who might otherwise be the targets of a critical report, including members of the Jan. 6 Committee, New York Attorney General Letitia James, or Manhattan District Attorney Alvin Bragg.

Finally, the report must be issued “as the basis for a recommendation of removal or disciplinary action.” This language strongly suggests that the statute is concerned with noncriminal misconduct by appointed officials who are still in office. There would, after all, be little sense in recommending “removal” or “disciplinary action” against someone who no longer holds the position from which the misconduct arose. That said, no court has yet had occasion to interpret the language of § 3333 on this point. But if the language of the statute applies only to current officials, it would preclude the issuance of a report accusing former federal officials like Jack Smith, James Comey, or John Brennan of noncriminal misconduct.

The second category is even less promising as a vehicle for attacking particular people. Section 3333(a)(2) permits a special grand jury to issue a report “regarding organized crime conditions in the district.” But there is a significant statutory catch: For the court to accept such a report and issue it as a public record, the report must not be “critical of an identified person.”

That would seem to foreclose the idea that Pirro might use her special grand jury to produce a public indictment—figuratively, not literally—of Trump’s perceived enemies. Pursuant to the statute, the grand jury could presumably submit a report on organized-crime conditions in D.C. What it could not do under this provision, however, is turn that report into a vehicle for “naming and shaming” particular people and accusing them of taking part in that criminal activity.

Additionally, the statute sets out several procedural protections to ensure that the report meets these substantive requirements and to protect the due process rights of anyone named in it. Most importantly, the grand jury does not get to publicly release the report on its own say-so. Instead, the report must first go to the district court judge, which is required by statute to examine both the report and the grand jury minutes. The court may publish the report only if it determines that the substance of the report falls into one of the two categories discussed above, is based on facts uncovered during its investigation, and is supported by a preponderance of the evidence.

If the report accuses a named officer or employee of noncriminal misconduct, the statute sets out an additional safeguard: Prior to the filing of the report, the named person must be given an opportunity to testify before the grand jury.  The statute provides that they also must be given the opportunity to designate witnesses to testify on their behalf.

Even when all of these conditions are met, the report does not immediately become public. The court must initially seal a report issued under § 3333(a)(1). The named official then has 20 days after receiving the report to file a sworn answer, which “shall become an appendix to the report.” The report generally cannot be made public until at least 31 days after it has been served on the named official.  And if the official appeals, it remains sealed until the relevant rights of review have been exhausted.

Beyond the statutory limitations, the practical realities of this particular special grand jury make the idea of using its report as a political weapon look even less plausible. A report can only be submitted with the concurrence of a majority of the grand jurors. And this is, after all, a D.C. grand jury. Pirro’s office has already had a remarkably difficult time persuading D.C. jurors to go along with some of its more politically charged prosecutions.

And the judge who will likely decide whether any report becomes public is hardly a pushover. That task would fall to Chief Judge James Boasberg, who has already had occasion to criticize Pirro’s use of grand jury powers. Earlier this year, he quashed subpoenas issued in Pirro’s investigation of Federal Reserve Chair Jerome Powell, concluding that the government had produced “essentially zero evidence” of a crime and that the subpoenas were issued for an improper purpose.

Then there is the cautionary history of the last known occasion in which a special grand jury attempted to issue a public report. More than three decades ago in Colorado, a federal special grand jury spent years investigating environmental crimes at the Rocky Flats nuclear weapons plant. When federal prosecutors decided to end the investigation with a plea agreement rather than pursue the broader slate of charges the jurors wanted, the grand jury essentially rebelled. Acting on their own accord, the jurors sought to indict additional people and prepared a report sharply criticizing the Justice Department’s handling of the case. The court ultimately refused to authorize the report’s public release, finding that it did not satisfy the statutory requirements, though it did release a heavily redacted version.

The Rocky Flats affair prompted congressional oversight investigations into the Justice Department’s handling of the case. Later, the grand jurors filed a petition with the district court, requesting that the secrecy obligations imposed by Rule 6(e) be lifted so that they could give an “accurate account” of what occurred behind the scenes. The grand jury foreperson eventually wrote a book about the experience in which he accused federal prosecutors of a cover-up.

All of which is to say: If Pirro’s objective is simply to conduct a long-running criminal investigation, a special grand jury may give her a useful tool. But if the objective is to manufacture a public document condemning Trump’s political enemies, the tool looks considerably less formidable. The statute was not written to give prosecutors a mechanism for publishing accusations they cannot otherwise persuade a grand jury to charge. And the history of the Rocky Flats special grand jury suggests an additional risk for Pirro: If you give a grand jury the opportunity to speak, you cannot count on it to tell the story you want it to tell.