photo: timsamoff via Flickr

For weeks now I have been reading press releases and calls to action from various groups all worked up because the U.S. Attorney’s Office for the Northern District of Illinois has issued some Grand Jury subpoenas returnable for testimony on January 25. The latest action will involve protestors delivering a “citizens’ subpoena” on Pat Fitzgerald.

…local students will deliver a “people’s subpoena” to U.S. Attorney Patrick Fitzgerald tomorrow morning, calling for an end to a federal investigation of antiwar activists in Chicago and Minneapolis.

“Fitzgerald is leading the outrageous political witchhunt against antiwar activists, international solidarity activists, and Palestinian-Americans, in an attempt to intimidate and criminalize those who speak out against U.S. foreign policy,” said Chapin Gray of the UIC chapter of Students for a Democratic Society.

First of all, summoning a witness to give testimony does not turn that witness into a criminal. If you happen to be on the street when a bank robber makes his getaway and you are summoned to a grand jury to tell what you saw, is that “targeting” you or “criminalizing” you? No, you are a witness. If you don’t have any relevant testimony, your appearance will be pretty short.

When you are summoned to the grand jury, you still have all of your Fifth Amendment rights against self-incrimination and can invoke them whenever you feel that the answer to a question might incriminate you. In fact, if you notify the government, in writing, that if compelled to appear before the grand jury you will invoke your Fifth Amendment rights, the U.S. Attorney’s Manual suggests that your appearance should be excused.

If the government still needs that information, it will be forced to grant you immunity; which is why TARGETS of investigations usually don’t get subpoenas to testify (not NEVER, just not usually). Go read the link, it’s to the Grand Jury Manual for the Department of Justice; it explains this in great detail.

If you are worried about being the target of an investigation, a grand jury subpoena is usually like Christmas in July. In fact, some people who are targets actually ASK to testify before the grand jury if they believe they possess exculpatory evidence. Of course, if you pull a Scooter Libby and lie to the grand jury you can create a new problem for yourself, but telling the truth along with appropriate invocation of the Fifth Amendment usually means you don’t have to worry about being a target.

In fact, DOJ requires its lawyers to NOTIFY YOU if you are a target of the grand jury. You can find a sample “target letter” at section 160 of the DOJ Criminal Resource Manual. If you don’t get a target letter, guess what you are not?  . . .

Lastly, all this hyperventilating language about being “targeted” by the government and “witchhunts” and these protests and other publicity stunts may get you 15 minutes of fame, and are probably great for building your lists and pumping up your fundraising, but if you were even the tiniest bit serious about not wanting to testify, you would probably want to try something that actually has a snowball’s chance in hell of ending your testimonial obligation. It’s called a Motion to Quash. Here is a sample Motion to Quash a federal grand jury subpoena.

If you really and truly believe that this is just a fishing expedition, as opposed to an excuse to gin up controversy and try to make yourselves out to be martyrs, get a lawyer not a press agent.

[Important: This article is for informational purposes only and not intended to provide legal advice to any individual or group. Individuals and groups should obtain competent legal counsel from lawyers admitted to practice in the jurisdictions where they are subject to legal process.]