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How Will The Mueller Grand Jury Handle Classified Information?


By Tierney Sneed | August 7, 2017 6:00 am

Don Knight/The Herald-Bulletin

The sprawling investigation into Russia meddling in the 2016 election has reportedly broadened to include potential financial crimes and obstruction of justice. But the probe now being led by special counsel Robert Mueller originally began as a counterintelligence investigation, which means a grand jury may have to contend with classified evidence obtained through highly sensitive surveillance and counterespionage tactics.

American intelligence allegedly captured the Russian ambassador’s account of a purported meeting at the Mayflower hotel with then-Sen. Jeff Sessions, fired national security adviser Michael Flynn’s controversial phone call with that same ambassador during the Trump transition, and contacts betweenRussian interests and people associated with the Trump campaign, according to various reports over the past several months.

It’s not yet clear which, if any, of these incidents will make their way to a grand jury—which Mueller has reportedly begun using—but the Justice Department has well-established protocols for how to balance keeping top state secrets under wraps while getting the right information in front of a grand jury, according to legal experts.

Grand juries already operate under an extraordinary level of secrecy. Neither the jurors, nor the prosecutors, nor the court staffers involved in their meetings, are allowed to transmit to the outer world what’s going on behind their closed doors.

Only the witnesses called to testify, and their lawyers, can discuss publicly their involvement.

A grand jury overseeing an investigation that potentially involves classified information is subject to an additional layer of protocols constraining if and how those relevant disclosures are put in front of the jurors.

“Yes, classified information is presented to the grand jury,” Rebecca Lonergan, a former federal prosecutor who handled foreign surveillance cases, told TPM. “But it’s often presented in a format that the government is, as much as possible, protecting the most sensitive aspects of its classified materials.”

The U.S. Attorney’s Manual, which offers across-the-board DOJ operating policy, lays out the protocol: prosecutors cannot discuss classified information with witnesses who don’t have the proper clearances, and grand jurors can’t hear or read classified information unless the relevant intelligence agency okays it.

“These are average citizens who are coming in off the street, so they don’t have security clearances. And the prosectors will not be able to even use that type of information unless they’ve gotten the permission of whichever arm of the government is in control of the information,” said Lori Shaw, a criminal law professor at the University of Dayton and an expert on federal grand juries.

To facilitate that approval, according to the handbook, the prosector can use an “unclassified summary of the information prepared by the prosecutor in concert with the [intelligence community] agency” or the agency can “declassify the particular document(s) involved, in whole or in part, by excising certain portions that make the document particularly sensitive but that are not relevant to the use desired by the prosecutor.”

In practice, prosecutors on cases that involve sensitive information are working with the relevant intelligence agencies from step one, so they know what information they will be able to use with a grand jury, as well as during the trial phase, which will be much more transparent.

“There are protocols and relationships that are established with liaisons at each of the intel community agencies to work with Justice officials, including Mueller,” said Randall Samborn, who served as a spokesperson for Patrick Fitzgerald, the special counsel in the Valerie Plame leak investigation.

Grand juries operate under a lower evidentiary threshold than a trial court, and the evidence is subject to laxer rules. This gives the prosecutor more flexibility in presenting to the grand jury only portions of information related to the charges he or she is contemplating. Prosecutors will also be considering which pieces of classified evidence they may need for trial–and weighing what they will eventually have to turn over to defense counsel. By working with the intel agencies early on, prosecutors will know whether they’ll have issues bringing certain pieces of evidence into the trial phase, which will be more public and there will be battles with the defense side over what evidence gets submitted.

“It would be totally acceptable for grand jurors to act upon information that has been summarized or redacted that makes the same underlying points to their satisfaction of the substance of the classified marital,” Samborn said.

According to Lonergan, who now teaches at USC Gould School of Law, summary witnesses are a very common tool for prosecutors to relay the vital points underlying classified information without giving up state secrets surrounding it.

“What you present to the grand jury is also going to be, in a sense, redacted before you present it, because most of what you present to a grand is not going to be in reports or things like that,” she said. “The way that grand juries work, generally speaking, is you bring in what’s called a summary witness. You’re going to bring in your investigating agent, you’re going to bring in your lead agent maybe, and they are going to summarize the evidence for the grand jury.”

The big picture idea is that a grand jury probably doesn’t need to see or hear the aspects of classified information the government guards most closely.

Because the grand jury is unlikely to hear top secret information, it will be able to conduct its business in the normal grand jury room, which would typically be secure and private, Lonergan said. The grand jury would not have to use a SCIF – Sensitive Compartmented Information Facility – the highly secure rooms which are designed to defeat surveillance efforts, she said.

“What the government is most concerned about is protecting its sources and methods, not necessarily the content of the conversation that two people had. So you can tell the grand jury about the content of this conversation without telling them exactly how you know it,” she said. “And there you are presenting classified information, but you’re not presenting the most dangerous kind of class info to the grand jury, in case some grand juror doesn’t really abide by their obligation and starts talking to somebody.”

https://talkingpointsmemo.com/dc/gra...ed-information

9-90.230 - Disclosure Of Classified Information to the Grand Jury

Grand jurors do not have the security clearances required for access to classified information.

Accordingly, disclosure of such information to a grand jury may only be done with the approval of the agency responsible for classifying the information sought to be disclosed.

There are measures that a prosecutor can take that will increase the likelihood that the appropriate intelligence agency will approve the use of its information before the grand jury.

First and foremost is the use of an unclassified summary of the information prepared by the prosecutor in concert with the IC agency.

In other instances, the agency may simply be able to declassify the particular document(s) involved, in whole or in part, by excising certain portions that make the document particularly sensitive but that are not relevant to the use desired by the prosecutor.

Of greater difficulty would be the request of a prosecutor that an intelligence agency officer or asset testify as a witness before the grand jury.

If a target of the grand jury investigation was, or is, an intelligence officer, asset, or other employee of the intelligence community, in addition to the usual concerns related to the appearance of a target before the grand jury, the prosecutor must take care to protect against "retaliatory" testimony by that individual, in the form of unauthorized disclosure of classified information.

Accordingly, prior to any grand jury appearance by such target, the Assistant United States Attorney, in coordination with the CES, must consult with any intelligence agency whose information may be disclosed by the target's testimony.

As a rule, because hearsay testimony is permissible before the grand jury, the prosecutor will likely have alternatives, such as the testimony of a summary witness, that would obviate the need for the agency officer's testimony before the grand jury.

If a summary witness is not a viable option, however, the prosecutor must obtain the approval of the CES before making any effort to secure the presence before the grand jury of an intelligence agency officer or asset.

The CES will assist the prosecutor as much as possible in arranging for that testimony or in structuring an alternative thereto that will provide essentially the same information to the grand jury.

[cited in USAM 9-90.200]

https://www.justice.gov/usam/usam-9-...ional-security

LOL!! Yeah, that's how they prosecuted Scooter Libbey for something he didn't do in the Valerie Plame case. What a bunch of bunk. So they can conjecture a story, with no evidence or proof, grand jury does its ham sandwich thing, they publicize the indictment for political purposes against foreign defendants who will never stand trial and thus no proof will ever have to be shown or provided, and you get a big fat fraud and conspiracy by the US Department of Justice to try to discredit our President to sabotage the Summit on the war in Syria, threat of nuclear war with North Korea, and nuclear arms reduction with Russia.

Good grief. Horrible. Meet the REAL SWAMP. And someone wonders why we have at least 1,000,000 person back-log in the DOJ of illegal aliens awaiting a 2 minute deportation hearing so they can be removed from the country??!!