Who is Leaking the Grand Jury Testimony

With all the new articles mentioning grand jury testimony in RoveGate, here's some information I thought might be helpful for the non-lawyers analyzing the leaks by unnamed sources. It's not meant as legal advice, and I'm sure somewhere there will be a lawyer that can think of an exception, but generally, here's the deal on trying to figure out which side the leaks are coming from.

The key is Rule 6(e) of the Federal Rules of Criminal Procedure.

Here's another key: If someone says they reviewed a grand jury transcript of anyone's testimony, it's a leak from someone now or formerly on Fitzgerald's team.

If someone says they are familiar with, or were briefed on the testimony (but doesn't mention seeing reading the transcript) it's probably the defense or allied Republican lawyers trying to help their "Administration official" friends.

It's only a 6(e) violation for a Government attorney or someone associated with one (including their investigators and agents) to disclose matters occurring before the grand jury. Witnesses before the grand jury and their attorneys are not under a secrecy rule. Transcripts of grand jury proceedings are not available to witness' lawyers before the investigation is over and an Indictment has been returned by the grand jury.

However, lawyers always debrief their clients after they testify and take notes as to what the client remembers being asked and remembers answering, and hope their clients are not mistaken or forgetting something. Defense lawyers are not allowed inside the federal grand jury room. They sit outside, and the clients are allowed to come out and talk to them during questioning if they have a question based on something the prosecutor has asked them. Lawyers can advise their client regarding the question, but they are not in the room to actually hear it. The client can come out as many times as is necessary.

When a client is in the grand jury room answering questions for several hours, it is doubtful they will remember every question asked and exactly how they answered, particularly if the prosecutor asks the same question numerous different ways.

So if you see that someone reviewed a grand jury transcript, first make sure the reporter got that right. And then realize it probably came from someone who is currently or formerly on Fitzgerald's team or was on Fitzgerald's team. If the article says the source "was familiar with" the witness' testimony or even that he or she "reviewed the testimony", they are probably talking about an oral recollection the witness gave his or her lawyers after testifying - and then the leak is probably from the witness's side.

But again, there is no grand jury secrecy rule for witnesses. Rove, Libby, Russert, etc, can all say what they remember being asked and remember answering. There is a total grand jury secrecy rule for anyone associated with the prosecutor --including lawyers, agents, court reporters, court personnel. etc.

I have only seen one article in which the reporter said someone reviewed the grand jury testimony and I immediately speculated it was a lawyer or agent now or formerly on Fitzgerald's team who was trying to help Rove because I assumed they meant they saw a transcript. If the reporter meant the source only reviewed debriefings of the testimony, then it's probably not Fitzgerald's team that's responsible. Here's the quote:

Sources who have reviewed some of the testimony before the grand jury say there is significant evidence that reporters were in some cases alerting officials about Plame's identity and relationship to Wilson -- not the other way around.

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    Re: Who is Leaking the Grand Jury Testimony (none / 0) (#1)
    by chemoelectric on Sat Dec 17, 2005 at 01:01:31 PM EST
    I sort of suspect that people familiar with the case from the inside would not be inclined towards helping Rove. I mean, John Ashcroft got that briefing that made him lose his inclination to help Rove -- that's how Fitzpatrick got this case.

    Re: Who is Leaking the Grand Jury Testimony (none / 0) (#2)
    by weldon berger on Sat Dec 17, 2005 at 01:01:31 PM EST
    It seems to me there are two sets of leakers who aren't with the prosecutor's office: one Rove-friendly, which Larry O'Donnell takes to be Luskin for the most part, and Rove-unfriendly, which I take to be lawyers for the other administration officials whose names Rove keeps tossing into the mix (Hadley, Fleischer, Powell) and perhaps the attorney for the Third Man (or the man himself, assuming it was a man). And it seems as though the Washington Post is getting leaks from both sides — which would makes sense, as Dana Priest and Mike Allen introduced the Third Man as the investigation began — while the New York Times is limited to Luskin, either by name or anonymously, and perhaps some other Rove sources. No matter who the leakers turn out to be, they've collectively got my vote for Entertainer of the Year.

    Re: Who is Leaking the Grand Jury Testimony (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:32 PM EST
    One more source of leaks that might be out there--I suspect a REALLY good source of leaks. Say you were a sometime employee of the sh**tiest guy in the world, with an aspiring career in writing children's books. And say you were offered immunity if you talked to investigators, which would guarantee you could stay at home with your daughters and your Democratic husband. While you were considering the offer, you'd probably not only talk to your Democratic husband about whether you should accept the immunity deal or not. You'd probably give your Democratic husband a pretty good idea of what went on. And you'd probably tell your Democratic husband what you said to the grand jury, after accepting the immunity deal and telling everything you knew. Now, if your Democratic husband also happened to have a TV gig, then he'd probably know a lot of journalists and stuff that he could leak news of the investigation to. Which is probably why someone on CNN today was REALLY intent on telling Carville he was mistaken, and that Bolton hadn't testified. Not transcripts, certainly. But probably one of the best possible sources of overarching news on the investigation and crime.

    Re: Who is Leaking the Grand Jury Testimony (none / 0) (#4)
    by CMike on Sat Dec 17, 2005 at 01:01:32 PM EST
    I remain unclear on what the US Attorney can and can not legally leak during an investigation. I think you are saying that the prosecutor's office can pass on what investigators learned in interviews and what issues the prosecutor is pursuing. However, if he, the prosecutor, does not want to speak on the record and he's not allowed to reveal testimony why would the prosecutor want his leak attributed to someone who has "reviewed the grand jury transcript?"

    Re: Who is Leaking the Grand Jury Testimony (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:01:32 PM EST
    The prosecutor, his agents and investigators cannot leak anything that occurs before the grand jury.