Does Grand Jury Secrecy Apply to Witnesses Too? (with Tiffany Eggers)

How do the rules of secrecy for “Fight Club” differ from Federal Grand Jury secrecy? Answer: Federal Grand Jury secrecy does not apply to everyone. 

The secrecy found in Rule 6(e) is often described as a shield and a sword. A shield to protect witnesses from intimidation and the investigative process to ensure it is not obstructed, but also to protect those who are investigated and never charged. When word gets out that someone is being investigated by a federal grand jury, it can have significant life-changing implications, even if an indictment is never obtained. And the sword refers to the one-sided power of the grand jury to initiate and conduct investigations.

Secrecy is foundational to both sides of this metaphor because it encourages witnesses to speak more openly, protects grand jurors from outside pressure, and protects those who are never charged.

But unlike “Fight Club,” the secrecy found in Rule 6(e) does not apply to everyone. And if you are a civilian, it very likely does not apply to you.

Yet federal prosecutors are telling civilians they cannot disclose grand jury subpoenas.

And that violates the 1st Amendment to the Constitution. Butterworth v. Smith, 494 U.S. 624 (1990).

Rule 6(e)(2)(B) is very clear about who may be bound to secrecy: grand jurors, interpreters, court reporters, attorneys for the government, and government personnel. It does not say “civilians” or “witnesses.” In fact, Rule 6(e)(2)(A) says, “No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).”

Nonetheless, federal prosecutors are issuing grand jury subpoenas to civilians with language that makes it appear the recipient cannot disclose the subpoena.

Unless there’s a court order—which is rare, especially in routine cases—the government cannot legally impose that restriction on a civilian. There are narrow exceptions, like subpoenas to financial institutions and electronic communications providers. But for ordinary witnesses—the secrecy requirements of Rule 6(e) do not apply.

Again, the federal government has legitimate reasons to keep grand jury proceedings secret and confidential, but those reasons don't overrule constitutional protections to United States Citizens.

If you or your client receives a federal grand jury subpoena directing that “the existence of the subpoena not be disclosed,” ask to see the court order. Don’t assume the restriction is legally enforceable just because it’s printed on the federal grand jury subpoena or government letterhead.

If you’re dealing with a federal grand jury subpoena or need guidance on what you can and can’t say, contact a member of Dykema or other counsel.