Lawfare Daily: What’s So Special About a Special Grand Jury?

[Intro]

Anna Bower: All those things happen in the District of Columbia. So, in order to indict that case and have, you know, have it be one that is going to sustain a motion to dismiss, you would have to do it in the District of Columbia.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, here with senior editor, Anna Bower.

Anna Bower: If you are Jeanine Pirro, and if you are worried about your job, and if this is about harassing the, the president's enemies, this is a way to say, "Look, boss, I'm doing something."

Benjamin Wittes: Today, we're talking grand juries. Some of them are ordinary. Some of them are special. We're talking about the special kind. There's one in the District of Columbia right now.

[Main Podcast]

Anna Bower, why are we talking about special grand juries?

Anna Bower: We're talking about special grand juries because they're so special, Ben. No, we're, we're talking once again about special grand juries because there's news, according to The Washington Post, that Jeanine Pirro has impaneled a special grand jury in Washington, D.C.

Benjamin Wittes: And what makes a grand jury a special grand jury rather than a regular grand jury? Do they sit around with, like, tiaras 'cause they're special?

Anna Bower: No, they, they don't sit around with tiaras because they're special. Special grand juries are a product of a 1970 law called the Organized Crime Control Act. This was a law that was enacted around the time that you can, if you think back, it's the time right after the 1968 presidential campaign. Nixon ran on this war on crime platform. There's a lot of concern about organized crime at the time. And so this bill is enacted. Nixon signs it into law in 1970, and it includes things like the modern RICO statute that was geared towards prosecuting organized crime mob bosses, but it also includes a section devoted to special grand juries, and that's now codified in 18 U.S.C. 3331 to 3333.

And those provisions, you know, in many ways don't really make special grand juries that distinct. In many ways they're very similar to an ordinary grand jury. It's made up of 18 to 23 people who are selected from the district to serve for a period of time on the grand jury. One of their main responsibilities Is, is to decide whether or not to indict cases. So it's, it's in many ways very similar to ordinary grand jury ser- service, but there's two key distinctions here that actually make a special grand jury special.

One is tenure. A regular grand jury usually is empaneled for a maximum of 18 months, with the ability of the judge to then extend that service by six months if the public interest requires it. Meanwhile, a special grand jury, again, usually empaneled for 18 months, but that can be extended up to 36 months. So they can continue to serve for a much longer period of time, and that's one reason why special grand juries are often used for very complex cases, cases that are going to take a much longer period of time, where it's convenient for prosecutors to have the same grand jurors investigate this one case, for example, or a series of maybe related cases about a very complex issue. So that is one of the main differences.

Benjamin Wittes: I'm still waiting for the tiaras.

Anna Bower: Yeah, you are. Well, here's the tiara part that I would say really makes a special grand jury special, and that's the fact that special grand juries under s- the statute have the ability to submit a report at the end of their service, and depending on whether the court allows it, that report can be made public, and that's really special, Ben, if you know anything about how grand juries typically work and the rules of grand jury secrecy under federal law.

Typically, the work of a grand jury is, kind of, remains secret, and so it's unique in and of itself that we have this statutory mechanism for a grand jury to issue a public report, which is kind of consistent in some ways with the history of, of grand juries, where at common law they did often issue reports or, or had the power to do so.

Benjamin Wittes: Or presentments.

Anna Bower: Or presentments, but that has now pretty much died out in the federal system, and so the fact that there is this limited statutory mechanism for issuing a report is special. And not only is it that you have the power to issue this report, but the report doesn't have to be about just criminal conduct that the grand jury found. It also can be about non-criminal conduct, although there's a lot of limitations on exactly what the grand jury can write under the statute and whether or not it ends up becoming public.

Benjamin Wittes: Yeah, so we're gonna talk about that in a moment, but why would Jeanine Pirro want a special grand jury in Washington? I mean, there isn't a lot of discussion of, there isn't a lot of reporting about what this special grand jury is looking at, but we all seem to assume that it is somehow related to the so-called Grand Conspiracy. What do we know and what do we, what is it reasonable to assume even if we don't know?

Anna Bower: Yeah, so I should say at the outset that we, we really don't know exactly why it is that Jeanine Pirro wants to impanel this special grand jury and use that tool, and there's not a lot of reporting, as you've mentioned, on the exact reason why or the subject matter that this grand jury will look at. But what we do know is that there is a grand jury that has been impaneled in Florida, in the Southern District of Florida, that has apparently been looking at this so-called Grand Conspiracy case.

My colleague Molly Roberts has done a lot of work on really, you know, describing the contours of what this so-called conspiracy is, but it's basically the kind of big prosecution that Trump supporters have always kind of imagined would be, like, the one that's brought against all of Trump's perceived enemies, that spans kind of from the Russia investigation up to the special counsel prosecutions of Trump, that it would ensnare, you know, Comey, Brennan, Jack Smith, all of these perceived adversaries in this purported plot that they had to get revenge against Trump and to violate his constitutional rights. That's the theory of the grand conspiracy case. We do know that a grand jury's impaneled in Florida that appears to be looking at that so-called Grand Conspiracy, but we also know that it doesn't seem like Florida is the place where jurisdiction and venue would be sufficient to actually indict a case there.

Benjamin Wittes: Because none of the relevant conduct took place in Florida. Assuming that there is a grand conspiracy, which is itself a ridiculous assumption, the only part of that conspiracy that took place in Florida was that Jack Smith indicted Trump there.

Anna Bower: A- and that the Mar-a-Lago search occurred there. But other than that, you know, all of the key events, the Russia investigation, testimony before Congress, all of those things that people imagine were part of this so-called Grand Conspiracy, all those things happened in the District of Columbia. So in order to indict that case and have, you know, have it be one that is going to sustain a motion to dismiss, you would have to do it in the District of Columbia, or presumably you would. So the idea is that, maybe, we can speculate that this special grand jury might be part of that grand conspiracy investigation, and now it's being led by Pirro's office instead of the office of the Sou- in the Southern District of Florida, Jason Quiñones’s.

But we don't know, Ben. It, this could very well be a special grand jury that's dedicated just to some of the most high-profile, controversial cases that Pirro wants to go after. Keep in mind, this news is coming at a time when she has been the subject of criticism from Trump for, for her failures to prosecute cases that he thinks should be prosecuted, including most recently, the Reflecting Pool case. And so I think that, you know, she seems to be under additional pressure to bring some of these cases that the president has in his prosecutorial agenda. And we also know from the reporting that one of her top deputies, Steve Vandervelden, is going to be the person overseeing this special grand jury.

And I think that that is important because Vandervelden, who some people might remember as a former dance studio photographer, but also was a deputy of Jeanne Pirro back in her days as the Westchester DA, he is someone with a history in his time as a federal prosecutor working with Pirro, who has handled some of these controversial cases. For example, he handled the failed grand jury indictment of six members of Congress who made a video in which they encouraged members of the military to refuse unlawful orders. So th- this is a guy who seems to not have qualms about taking some of these more controversial cases, and I think that that's why it's important to point out that he's the one who will be apparently leading this special grand jury.

Benjamin Wittes: And are there any dancers on the special grand jury?

Anna Bower: We, we don't know. We don't know who is on the special grand jury, but I'm, I'm, we'll say Steve Vandervelden if you look at his, his photography, it's actually pretty good. So if there are any dancers who are grand jurors-

Benjamin Wittes: Take advantage of the synergies here

Anna Bower: Yeah, exactly.

Benjamin Wittes: Yeah. Well, I think it's appropriate that a, a Grand Conspiracy should have a special grand jury to investigate it, not just a regular grand jury. So I'm curious, you know, this is not the first time we have run into special grand juries in our various forays in, in the Trump administration and its larger cinematic universe.

One of your early pieces for Lawfare was a, a deep dive on the Georgia special grand jury law, which allowed Fani Willis, the Fulton County DA, to do a, a special grand jury investigation of the post-election events in 2020. The term special grand jury here can be a little bit misleading because the federal statute and the Georgia statute are nothing alike. And so for people who remember the special grand jury investigation in Fulton County, how should we expect this one to be different?

Anna Bower: Well, yeah, so, so actually there are some, some similarities between the special grand jury in Georgia and the special grand jury under federal law, but it's very important to keep in mind that these are distinct systems with distinct statutes. Under Georgia law and many state laws, these actually follow, these special grand jury statutes, 'cause Georgia's not the only state that has a special grand jury statute, in many instances, these states enacted special grand jury statutes after the federal special grand jury statute was enacted. So there's some often commonalities between the two, one being that, as in the federal system, in Georgia, a special grand jury sits for a long, can sit for a longer period of, of term, is used for complex investigations, also has a report writing function. We actually end up seeing the-

Benjamin Wittes: Right.

Anna Bower: Grand jury report in Georgia, which recommended for indictment a very long list of, of Trump allies. But in Georgia, one of the key distinctions is that a special grand jury cannot indict, whereas in the federal system, you can use a special grand jury both for its report writing function and its indictment function. And in fact, under the federal system, your DOJ policy is that you're not supposed to use a special grand jury just to write, just to have it write a report. You know, you're supposed to use it for legitimate investigative ends.

But in the, the Georgia system, as I mentioned, this was kind of a, a big subject at the time, was, like, why is it that this, this tool doesn't have the power to indict? And it had to do with a unique wrinkle of Georgia law and Georgia case law. So ultimately, all that that grand jury could do was issue this report with recommendations for indictment, and then ultimately Fani Willis had to bring that case against Trump, and eventually 18 others, to a different grand jury who then indicted the case. And as we all know, that, that case ultimately was dismissed in the wake of a scandal regarding Fani Willis's relationship with special prosecutor Nathan Wade.

Benjamin Wittes: All right, so we have a special grand jury convened for up to 36 months. We have a Grand Conspiracy that it may be the subject, that may be the, or may not, be the subject of the special grand jury. We have a president who is very keen to have his political enemies indicted, and we have a U.S. attorney and her deputy who have not shied away from cases in which there are r- reasons for reasonable people to doubt the integrity of the cases.

Though, to be fair to Jeanine Pirro, none of the most politically controversial go-after-Trump's-political-enemies are here in the district. They're mostly in the Eastern District of Virginia or in North Carolina or… And we don't know of any obvious pattern of misconduct that would normally give rise to a special grand jury. There's no like, you know, organized crime ring that, you know, we know the feds to be investigating in Washington, D.C., the “blank” family that, you know, we know there's a task force for in the, in, in the U.S. Attorney's office.

So, I, I mean, is it inappropriate of me to say there's really no legitimate explanation for this turn of events? The only question here in my mind is, is this, you know, some manifestation of a grand conspiracy investigation, or alternatively, is this the go after the president's foes and help me keep my job Jeanine Pirro grand jury? But there's no world or is there, in which there is some wholly legitimate reason for D.C. to have a special grand jury right now going after, you know, this “blank” pattern of conduct.

Anna Bower: If there is, I, I'm not aware of it. So I will say, the statute under federal law provides that a special grand jury can be empaneled under two circumstances. So one is that in judicial districts that have more than four million people, there's actually a standing special grand jury. So think like, cities like New York, there will be a standing special grand jury. So in those districts, it's not that uncommon because federal law requires that there be a special grand jury. And, you know, usually they'll look at more complex cases, that kind of thing related subject matter, but they're always operating.

But D.C. is not one of those districts. It is not a district that has more than four million people, so special grand juries are much more rare. I, I am not aware of the last time that a special grand jury was, was used in D.C., although it may ha- there may have been one operative during the Trump investigations or some of the January 6th investigations.

Benjamin Wittes: And I think a lot of the old special counsels and independent counsels would have special grand juries associated with them. I'm pretty sure, for example, the Ken Starr investigation had had a special grand jury attached to it

Anna Bower: Yeah, and you can find examples in other districts of times when there have been complex investigations and they've used a special grand jury. So it's not that it's unheard of for a special grand jury to be operative in one of these districts that has less than four million people, but it is unusual. And here we know that that is the mechanism of the statute under which Pirro has gone, again, because D.C. does not have more than four million.

And under that arm of the statute, all that's required is for the prosecutor essentially to certify that they need a special grand jury. So at a base level, there's not much that you have to, to show, you just have to make this certification, and then a special grand jury can be empaneled. So we just don't have the information about the why of it all.

But I, I will say that not only is there the benefit of the longer term of service and the longer tenure, but there's been some speculation that perhaps the report writing function is something that's appealing to Pirro. Again, though, as we can maybe discuss, it's actually a quite limited reporting function.

Benjamin Wittes: Yeah, so let's, let's talk about that. Let's say you're Jeanine Pirro and you're rubbing your hands with glee 'cause now you get, you have a mechanism by which you can write the Grand Conspiracy report. And even if you can't do the indictments because, you know, probable cause and all that. You can, you can fold everything you can't do into an, in an indictment into a report, and this is a mechanism to do that. What's wrong with that idea, if that's what's animating Jeanine Pirro?

Anna Bower: Yeah, so the statute sets out two categories of information that a grand jury can, can submit a report about, and neither of them present a very obvious mechanism for Pirro to use this report-writing function as a way to kind of publicly criticize Trump's adversaries and stuff all this information in that she maybe couldn't get into an indictment.

So for example, one of the categories allows the grand jury to write a report about general conditions of criminal activity in the district. Now, the statute then specifies that if the grand jury is writing about these general crime conditions in the district, that aspect of the report cannot mention an individual named person. So they basically can kind of describe generally, you know, criminal activity in the district, but they can't actually say, "And this guy, Jack Smith, was a part of that." You're not allowed to name a person. So that's-

Benjamin Wittes: Now, but could you do in g- a- as part of general conditions, criminal activity “there was a grand conspiracy against Donald Trump,” and it began in, you know, the dawn of time, and it has continued through the present, and it has involved people from the intelligence community, and c- certain directors of the FBI, and certain directors of the CIA, right? Like, how much could you couch a general narrative account of, of your theory of the case under the rubric of you know, of describing general crime conditions within the district.

Anna Bower: Well, it's not clear, and that, and that decision, deciding how much would be allowed, would be up to the judge who looks at this report and examines the grand jury minutes. And as a part of deciding whether to release it to the public, the judge has to decide on a preponderance of the evidence that the, what's in the report is supported by the facts. So unless you actually have facts that support, on a preponderance of the evidence standard, the idea that there is a grand conspiracy in the first place, then those things that you've just mentioned aren't gonna pass muster.

The second point is that even to get to a point, Ben, where the judge is reviewing this to decide whether the facts actually support what's in the report, a majority of the grand jurors have to agree to actually submit this report. Like, it's not like a special counsel report where the special counsel and his team are writing it. It is an actual grand jury, it's a product of the grand jury, and obviously the prosecution, as the legal advisor of the grand jury, likely will have some role in helping draft a report, but it's ultimately up to a majority of the grand jury to decide whether to submit this report, whether they agree with its conclusions and facts.

And this is a D.C. grand jury. We've already seen many times over in the past two years that D.C. grand juries are not exactly pushovers when it comes to doing what the government wants it to do. There's many high-profile examples, including the example I, I gave earlier of the failed indictment of members of Congress who took part in a video campaign to, to encourage members of the military to refuse illegal orders. You know, a grand jury refused to indict.

Benjamin Wittes: There's also the sandwich guy.

Anna Bower: Sandwich guy, yeah. There's all kinds of examples of this in D.C. that suggests to me that a D.C. grand jury isn't exactly going to be an easy mark in terms of crafting this generalized narrative, even if it doesn't name individual persons, in which they want to issue a report suggesting that there was this grand conspiracy of people who were doing organized criminal activity to get Trump. I just don't see that happening.

The second thing that a grand jury can do in terms of issuing this report under the statute is also not, to me, an obvious way in which Pirro would be able to issue a report criticizing some of Trump's enemies. So under that prong of the statute, you can issue a report about non-criminal activity, and you can name individual specific people, but there's a whole lot of limitations.

So one, for example, is that the non-criminal misconduct or malfeasance has to be in some way connected to a broader pattern of organized criminal activity. And that, so that immediately tells you, like, for example, if, if the prosecution wanted the grand jurors to issue a report about Jerome Powell's alleged mishandling of the renovation project at the Federal Reserve, then it couldn't just be, "Oh, he didn't handle this well." It would have to be, "Jerome Powell, you know, mishandled this renovation project in the context of some larger organized crime." Does that make sense? So that's the first limitation.

Second limitation is that the misconduct, the non-criminal misconduct that's alleged in the report about a named person has to be about someone who is an appointed public officer or employee. Now, that means that immediately the people who are excluded are elected public officials, so people like Letitia James, Alvin Bragg, any members of, Democratic members of Congress who might be some of Trump's adversaries. Anyone who is kind of a target who's an elected public official wouldn't be allowed to be the subject of this element of the report.

Benjamin Wittes: On the other hand, all the deep state people would be.

Anna Bower: Well, not so fast, there's a part of the report, an, an additional part of the statute that says not only does this non-criminal misconduct have to involve some larger ongoing criminal activity, it also has to be about a public appointed official or employee, but it has to be, you have to be making these claims about this person as a basis for their removal or disciplinary action. And to me, that suggests that the statute actually is envisioning this to be applying to current officers or employees of the United States, not former officer or employees of the United States, because what would be the point of suggesting removal from office or disciplinary action if they're no longer in office?

Benjamin Wittes: So you're basically now, it's only useful for Jerome Powell?

Anna Bower: Yeah. Basically, it only be- 'cause that excludes, if it is, if I'm correct, and it is only about current officers or employees, then that would exclude your Jack Smiths, that would exclude your Anthony Fauci, that would exclude all these former officials who are known to be the perceived adversaries and targets of the president. So really, you've only got your Jerome Powell, basically.

Benjamin Wittes: Yeah, and individual people who haven't been fired yet, I suppose. All right. Let me give you one hypothetical scenario for the use of the special grand jury that I think is bulletproof against everything you've just described, which is harassment.

It doesn't require a report. You don't need to indict people, but you have a three-year sitting thing that can issue subpoenas, that can haul people in for interrogation, that can, once they've been hauled in, prosecutors can ask them questions, the same question 14 times in different ways, and then, you know, prosecute them for any minor discrepancy in the way they answer. Like, having a grand jury is a very good way to have a sort of targeted campaign of harassing your opponents. And so what about that? It's not it's, it's really about creating a forum in which to do mischief.

Anna Bower: Yeah, that's ab- I think that's absolutely right, although I would say, you know, that's no different from what a regular grand jury can do. So insofar as people are, are focused on why a special grand jury, it's not clear to me why you would use a special grand jury if your goal is just to harass, because you can harass targets or subjects of your investigation using a regular grand jury, too-

Benjamin Wittes: Okay, but th- but this brings me back to your point about, is this a Jeanine Pirro let me keep my job? Which is, you announce a special grand jury and that is a signal to the president, we now have a three-year forum for, you know, pinpricking and needling and harassing your opponents. Isn't that great?

Anna Bower: Yeah, it's, it's certainly a way to perhaps i- if you are Jeanine Pirro and if you are worried about your job and if this is about harassing the, the president's enemies, this is a way to say, "Look, boss, I'm doing something." I, I certainly could see that being the case.

However I, I think that Jeanine Pirro would be wise to remember that grand juries don't always do what you want them to do, and especially when you give a grand jury the opportunity to tell a story, if she does get to the end of this process and they do want to issue a report, a grand jury's not always going to be reliable for telling the story that you want it to tell.

Benjamin Wittes: All right, so I wanna talk about that, aa- and I, I think you have a specific grand jury in mind when you say that. But before we get to it, I wanna pause over the question of who's gonna be supervising this grand jury, because on the one hand, the grand jury is an instrument of the prosecution. On the other hand, the grand jury is actually an instrumentality of the court, and the supervisor of the grand jury is the chief judge of the court, which in this case is not the administration's favorite person to litigate in front of. So remind us who the chief judge of the district court is, and what is the role of the chief judge with respect to a special grand jury, or any grand jury for that matter?

Anna Bower: Yeah, so the, the chief judge in the District of Columbia is Judge James Boasberg. And Judge Boasberg might be familiar to folks as the judge who has, has been in an ongoing, I, I mean, I would call it battle, almost, with the administration over the administration's conduct related to the Alien Enemies Act case. That's the JGG case. He initiated proceedings to try to hold government lawyers in contempt or government officials rather. It, it has been through several cycles of appeal now, but as a result of, of that ordeal, Judge Boasberg has been the subject of many attacks from the administration. He also earlier this year quashed subpoenas that were issued in the investigation of the Federal Reserve Board and Jerome Powell related to that renovation project. He found in, in doing so, that the subpoenas were not issued for a legitimate investigative end, that the administration produced zero evidence, essentially, in trying to issue those subpoenas.

So James Boasberg is certainly no pushover himself either, and he is the person who is typically in charge of overseeing grand jury matters in the District of Columbia. And that's important because, as we've discussed, Ben, the judge here holds a very important role. So, what happens when the grand jury writes a report that it wants to issue at the end of its service is that it submits this report to the judge who's overseeing the matter, presumably that would be Judge Boasberg. And the judge is then tasked with reviewing the report to make sure that it meets the statutory requirements for a publication. So that means he has to look and say, "Oh, so this report, it, it, it is about the non-criminal misconduct of a public official as a basis for their removal," or, "It is about generalized crime conditions in the district, and it doesn't name someone specific," those two things we just discussed. And as I mentioned, in doing so, he has to not only look at whether that report meets those conditions, but also find that the facts by looking at the grand jury minutes that were revealed in the course of the inv- investigation support the things that are in the report on a preponderance of the evidence standard.

So, it's Judge Boasberg who's going to be looking at this. I certainly do not think that he is going to be someone who is going to rubber stamp whatever it is that a grand jury wants, wants to do, particularly if it's things that you know, aren't supported by the evidence that they've heard.

Benjamin Wittes: I will also just add that another role that the chief judge plays with respect to all grand juries, not just special ones, is that, you know, you bring disputes about motions to quash, about, you know, what gets presented to the grand jury, who has to testify to the chief judge. And, you know, he has shown in the Jerome Powell case that he's perfectly willing to quash subpoenas to grand juries, and he is a skeptical eye. And so I think you have to imagine not only that you've got 23 Washingtonians who are not likely to be the most receptive to grand conspiratorial or related or other Trump conspiracy theories, but you also have a district judge supervising them who is the opposite of Aileen Cannon in that regard. And exactly the way people were worried about whether she would end up supervising the grand jury in, in Fort Pierce, you know, you have the opposite effect here

Anna Bower: Yeah, and I, and I think it's also worth mentioning beyond the role of the judge, the statute itself also envisions and creates some really robust due process protections for the people who might be named as individuals in a report, and I'm particularly thinking about a report that is issued under the, the section of the statute saying you can issue, you can name people accusing them of non-criminal misconduct. Under that section of the statute, there's a whole bunch of different rules around, like, even if the judge does accept the report for publication, the report has to be served on the people who might be named in it. They then get an opportunity to submit a verified answer or, like, a sworn answer to those accusations that will be filed as an appendix to the report. There's also then a period of time in which everything remains sealed so that the person who is named can seek review or appeals.

So there's all kinds of different due process protections, including a provision as well that allows the accused to, the opportunity to have their own witnesses or themselves testify before the grand jury. So there's all kinds of things that are baked into this statute that just don't make it an obvious way for Jeanine Pirro to weaponize it.

Benjamin Wittes: Well, so that brings us to the situations in which special grand juries have backfired on the prosecutors who convened them. I know of only one modern grand jury report under the special grand jury law. Lots of special counsel reports, lots of independent counsel reports, inspector general's report, but grand jury reports as such are super rare, and if you're my age They're sort of synonymous with the words, “Rocky Flats.” So what is the r- what was the Rocky Flats grand jury, and should it be a cautionary tale to Jeanine Pirro here?

Anna Bower: Yeah, so this was the last known occasion that I'm aware of that a special grand jury tried to issue a report under the special grand jury statute. And this grand jury in Colorado was empaneled to look at environmental crimes that allegedly occurred at the Rocky Flats nuclear plant, the federal nuclear plant. It spent years investigating this. Ultimately, the investigation ended with the prosecution reaching a corporate plea agreement, which really made the grand jurors mad. They were not happy with the way that this case ended because they thought that more people should have been indicted. They had this whole slate of charges of people that they wanted to indict.

So what they did is they actually got out the prosecutor's manual, basically, and tried to draft their own indictments. That's something that we used to call a presentment, where the grand jury could write up their own thing on their own initiative, but presentments are not listed as a formal charging document under the Federal Rules now.

Benjamin Wittes: Though they are mentioned explicitly in the, in the Fifth Amendment to the Constitution.

Anna Bower: Right. The presentment power has now, despite that died away, and so they tried to issue these indictments on their own initiative. That didn't fly with the judge. But they also tried to issue a report in which they criticized the Justice Department and their h- and the Justice Department's handling of the case. The judge ultimately did not accept this report for publication under the special grand jury statute, finding that it didn't meet the statutory requirements that we've discussed, but the judge did eventually issue a very heavily redacted version of, of the report.

But all of this led to, like, several scandals, multiple rounds of litigation, Ben, in which the grand jurors hired their own lawyer. They tried to get grand jury secrecy rules lifted so that they could, you know, reveal what they thought was the truth about what happened and the way that the Justice Department mishandled it. There were congressional investigations. At one point, the judge ordered an investigation into whether the grand jurors were violating grand jury secrecy rules. Ultimately, no one was ever prosecuted, but the grand jury foreperson wrote a book called “The Ambushed Grand Jury,” which I've read parts of now, that is about ba- basically criticizing the Justice Department and accusing it of a cover-up.

So, I think what the history of the Rocky Flats grand jury shows is that you can't always count on a grand jury to do what you want it to do. So in that way, there are occasions when a special grand jury can spectacularly backfire on the prosecution.

Benjamin Wittes: We're gonna leave it there. Anna Bower, special grand jury correspondent for Lawfare, thank you for joining us today. I suspect we will have further discussions about this special, very special grand jury in the months to come, and I, for one, want them all to have tiaras.

[Outro]

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