Target Letters: Terminology

I'm beginning to see some people, including at least one news service, misapply the term "target letter." Just so it's clear, a "target letter" is what the prosecutor provides to a witness who has been subpoenaed to testify before the grand jury. It is an advisement of rights, particularly the right to counsel and the right to not testify.

Once the investigation is complete and the grand jury has heard all the evidence and is about to return Indictments, target letters are no longer used. [ Addition by LNILR: They are not re-issued everytime a witness/target comes in. Any competent defense lawyer has already met with the prosecutor to learn the client's status and role in the alleged offense under investigation. Target letters go out after the targets and subjects are identified by the prosecutor and investigators. The investigation may be years old before target letters go out. A "target letter" is just what it implies: You are likely going to be indicted, and you better act accordingly.]

Once an indictment is returned, the Prosecutor may notify the lawyer for the indicted person to make agreements on whether a summons will issue or arrest warrants, and, if it's going to be an arrest warrant, whether the person will be allowed to surrender at the courthouse or FBI office rather than be arrested at home or at work and bail amounts can be agreed upon. At this point, the case is past the "target letter" stage. The notification of indictment and arranging surrender can be formal (by letter) or by a telephone call.

From the U.S. Attorney's Manual:

9-11.151 Advice of "Rights" of Grand Jury Witnesses

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter.

A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant....

A "subject" of an investigation is a person whose conduct is within the scope of the grand jury's investigation.

Here's the Department of Justice's sample target letter.

This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the District of ___. It is their responsibility to inquire into federal crimes which may have been committed in this District.

As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify.

We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to *. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice.

You are advised that you are a target of the Grand Jury's investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.

That being said, the use of the word "target letter" by reporters and others would be appropriate if, for example, after Judith Miller's testimony Fitzgerald was offering Libby or others the chance to come back before the grand jury and give their final version. Had their classification changed from "subject" to "target" because of her testimony, he would have to advise them of that before they testified.

But, it sounds like this grand jury is complete, and notifications are going out to various lawyers that their clients are being or have been indicted, and as a courtesy, they can bring their clients in rather than face the humiliation of an arrest at home or work.

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    Re: Target Letters: Terminology (none / 0) (#1)
    by Last Night in Little Rock on Sat Dec 17, 2005 at 01:04:43 PM EST
    Last visit before Grand Jury a chance to snitch off somebody else? My regret is that we don't get to see a "perp walk" with the 22 already suggested. Rove, Libby, and Novak would be particularly worth staying up for. Since they are "white collar defendants," no handcuffs, ankle cuffs, and belly chains. Too bad. All three would look particularly good in them.

    Re: Target Letters: Terminology (none / 0) (#2)
    by squeaky on Sat Dec 17, 2005 at 01:04:43 PM EST
    So if a 'subject' is asked to give testimony, and after their testimony they become a 'target', their status as target would remain secret, (they would not know of the change in status until an indictment is handed down) as long as they are not called in to testify again. This is how I understand it, is that correct?

    Re: Target Letters: Terminology (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:04:44 PM EST
    I don't know if this, from Reuters, is the article that started the confusion:
    As a first step, prosecutor Patrick Fitzgerald was expected to notify officials by letter if they have become targets, said the lawyers, who spoke on condition of anonymity because of the sensitivity of the matter.
    Reuters Is this just a courtesy?

    Re: Target Letters: Terminology (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:44 PM EST
    Yes, just a courtesy. Or one last chance to snitch.

    Re: Target Letters: Terminology (none / 0) (#5)
    by Peter G on Sat Dec 17, 2005 at 01:04:44 PM EST
    Correct my aging memory, TL & LNILR (although we're all about the same age, I do believe), but isn't the target letter in fact something more than a "courtesy." I thought it was created as DOJ policy in the mid-1970s, in response to persistent claims of grand jury abuse (mostly having to do with investigations of antiwar activists, etc.), as a sort of Miranda warning to people who might want to testify before the grand jury, not knowing the prosecutor had already decided to seek their indictment. The "target letter" also serves as a last-chance invitation to testify, for those foolish enough (like certain politicians) to think they can talk their way out of being indicted if only they got to present "their side" to the grand jurors directly. I also seem to recall that in around 1977, in a case that may have been captioned US v Washington, the Supreme Court held that the Justice Dept's failure to issue a target letter in accordance with its policy manual did not entitle an indicted defendant, who failed to claim the Fifth Amendment privilege but says now he would have had he only known he was already a target, to suppression of the record of his testimony before the grand jury.

    Re: Target Letters: Terminology (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:44 PM EST
    The courtesy is not the target letter, which goes to witnesses, it's the pre-indictment notification - which is not legally known as a target letter. That's the distinction I was making. But, your point about target letters not being legally required by the Supreme Court even for grand jury witnesses is a good one. I'm going to do a new post about it.