Wednesday, August 03, 2005


[UPDATE: August 5th, 2005, 11:10 p.m. EST. There are reports circulating on the internet that Randall Sanborn finally issued an official comment (after the following article was published?) which reversed the US Attorney's original comments to Citizen Spook and others. Citizen Spook has not verified the following comment, nor has it been officially posted by the US Attorney's office. The comment has been reported by Greg Syzmanski, SANBORN: “We are not talking about any aspect of this case and our office is not commenting on anything regarding the investigation at this time,” said Randall Sanborn from the office of U.S. federal prosecutor Patrick Fitzgerald..."]

Citizen Spook has interviewed a representative of Randy Sanborn's office at the Dirksen Federal Courthouse in Chicago where the Fitzgerald investigation is headquartered. Randy Sanborn is the official spokesperson for the US Attorney's Office in the Northern District of Illinois. Sanborn is also the official spokesperson for Patrick Fitzgerald.

It's crucial to ask the right questions, and the right questions need the right words. The political and legal environment we find ourselves in at this strange moment in American history is centered upon the manipulation of citizen perception. We have been asked to endure a President who can say with a straight face, "That depends on what the meaning of is, is." And the current right wing lunatic harbingers of Treason are flogging a defense in the Valerie Plame affair based upon the ridiculous assertion that there's a difference between outing "Valerie Plame" and outing "Joe Wilson's wife".

Because of this environment, it's imperative that those of us in the Blogosphere stay focused for pinpoint accuracy with the questions that we ask, the words we use, and our analysis of the answers we receive.

Yesterday, Tom Flocco published the following headline bombshell, "Bush and Cheney Indicted":

"U.S. federal prosecutor Patrick Fitzgerald's Chicago grand jury has issued perjury and obstruction of justice indictments to the following members of the Bush Administration: President George W. Bush, Vice-President Richard Cheney, Bush Chief of Staff Andrew Card, Cheney Chief of Staff I. Lewis "Scooter" Libby, Attorney General Alberto Gonzalez, former Attorney General John Ashcroft, imprisoned New York Times reporter Judith Miller and former Senior Cheney advisor Mary Matalin."

The story spread like wildfire through internet forums. As of last night, I couldn't find an official, "on the record", reply to the story from the US Attorney's Office in the main stream media or anywhere in the Blogosphere.

That made sense, because grand jury proceedings are secret, and without a Judicial Order releasing grand jury results, the US Attorney's Office would not be allowed to comment on what the grand jury has done.

The Federal Rules of Civil Procedure:

"Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation."

The prosecutor is barred from "disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding." The law does not allow Fitzgerald to comment regardless of whether Indictments have been "returned" or not.

Furthermore, according to the Federal Handbook for Grand Jurors, keeping the proceedings and findings of the Grand Jury secret, "[p]revents the disclosure of investigations that result in no action by the grand jury."

The US Attorney's office is not allowed to comment about proceedings regardless of outcome.

So I was surprised this morning, when I came across a post at
which contains a statement, alleged to be from the US Attorney's office. Please note that I am not vouching for the credibility of the comment. I have conducted my own interview with the US Attorney's office and will discuss it below, but it was this comment which percolated my curiosity and led me to dig a bit deeper. The flybynews commentary:

"People's Attorney / Volks-Anwalt Wolfram Gr├Ątz" <> Leuren Moret wrote:

'I called the US Attorney's office this morning and they had "no comment" but when I asked them when they would announce this to the public they said "we have not issued these indictments". They had a lot of phone calls.' ",95688,

Assuming for the moment, that the quote is accurate, the words must be examined carefully in the context of grand jury linguistics and Federal Rules of Criminal Procedure (FRCP), which do not empower the US Attorney to "issue" indictments.

So when Randy Sanborn's office released official statements to me this morning, "on the record", which said, "This office has not issued any indictments," and "No Indictments have been issued by this office", the US Attorney was telling the truth, was not in violation of the FRCP secrecy laws, and in no way denied Tom Flocco's report that the "grand jury" has issued indictments.


The grand jury and the US Attorney are two separate legal entities with different procedural duties enumerated in the Federal Rules of Crimina Procedure. With respect to indictments, the prosecutor, according to the Federal Rules of Criminal Procedure, is empowered to present "information" or an "indictment" to the grand jury, where the word "indictment"is used as a noun to describe the allegation against the defendant.

If the grand jury finds sufficient evidence that a crime has been commited, the grand jury is empowered to "indict" (a verb) and if the the grand jury indicts, it then "returns an "indictment" or a "true bill". But the indictment returned by the jury is a "finding" whereas the "indictment" (aka "information") presented to the grand jury is an allegation.

It's important to note that there is a legal alchemy which transforms the indictment (or information) presented to the grand jury when the jury votes to "indict" (a verb), and return indictments to the magistrate.

The Federal Rules of Criminal Procedure, Rule 7(c)(1) dictates what the prosecutor must present to the grand jury for deliberation:

"In General. The indictment or information must be a plain, concise and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government..."

Rule 7(c)(1) tells you exactly what the nature of an "indictment" from the prosecutor to the grand jury is. It does not empower the US Attorney to "issue"an "indictment". Please understand that the words "issuance" and "issue" are legal terms of art which are explained clearly in the Federal Rules of Criminal Procedure.

Rule 6(f):

"(f) Indictment and Return. A grand jury may indict only if at least 12 jurors concur. The grand jury--or its foreperson or deputy foreperson--must return the indictment to a magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson must promptly and in writing report the lack of concurrence to the magistrate judge."

Please notice that the grand jury, according to Rule 6(f), does not "issue" indictments either. According to the letter of the law, the grand jury "returns" the indictment, not to the US Attorney, but directly to a "magistrate judge in open court."

Additionally, Rule 6(3) states:

"(c) Foreperson and Deputy Foreperson. The court will appoint one juror as the foreperson and another as the deputy foreperson. In the foreperson's absence, the deputy foreperson will act as the foreperson. The foreperson may administer oaths and affirmations and will sign all indictments. The foreperson--or another juror designated by the foreperson--will record the number of jurors concurring in every indictment and will file the record with the clerk, but the record may not be made public unless the court so orders." (emphasis added).

The foreman then signs it but does not return it to the US Attorney. The foreman files the record with the clerk.

The Federal Rules of Criminal Procedure, Rule 9(a) defines what the word, "issue" legally means with regard to a Federal grand jury proceeding.

"Rule 9. Arrest Warrant or Summons On an Indictment or Information
(a) Issuance. The court must issue a warrant--or at the government's request, a summons--for each defendant named in an indictment or named in an information if one or more affidavits accompanying the information establish probable cause to believe that an offense has been committed and that the defendant committed it..."

Please note that it is "the court" which issues a "warrant" or a "summons" based upon the grand jury's finding.

The grand jury votes on whether "[t]here is sufficient evidence of probable cause to bring the accused to trial."

If the grand jury finds that there is sufficient evidence of probable cause, the grand jury "returns" an "indictment" which is also known as a "true bill", or in the alternative, if there is not sufficient evidence of the crime, the grand jury will return a "not true bill" aka "bill of ignoramus".

It's not legally possible for the US Attorney's Office to "issue" "indictments" when referring to information that a grand jury has voted to "return" "indictments" on. Those "indictments" are "returned" by the grand jury, not the US Attorney.

And just so we're clear, neither the US Attorney or the grand jury, according to the letter of the law, is empowered to "issue" indictments. Rule 9 empowers "the court" to "issue" a "warrant" or "summons".

Flocco's story specifically refers to indictments issued by "Patrick Fitzgerald's grand jury". Flocco's story does not address indictments preseneted to the grand jury by Fitzegerald.
The Federal Rules of Criminal Procedure are clear.

Flocco reported:

"U.S. federal prosecutor Patrick Fitzgerald's Chicago grand jury has issued perjury and obstruction of justice indictments to the following members of the Bush Administration..."

The only problem with Flocco's story is that he should have written, "...Patrick Fitzgerald's Chicago grand jury has returned perjury and obstruction of justice indictments..." Flocco's use of the word "issued" is not legally accurate within the FRCP.

This is not semantics, it's a very important distinction. And if you understand the Federal secrecy laws, you will also understand that the US Attorney's office did not break those laws when it issued their official statement.

Had the US Attorney's office said, "This office has not presented any indictments to the grand jury...", the US Attorney's office could be held in contempt for violating Rule 6(e):

"Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding."

It's clearly stated in the law that the prosecutor is prohibited from disclosing what happened. However, since the US Attorney was asked a question about actions which are a legal fiction, actions they have no power to execute, actions which are not involved in the proceedings before the grand jury, then the US Attorney's office was completely within its legal rights to issue the very specfic statements in question.

I submit to you, that under Rule 6(e), my analysis is the only possible analysis of the US Attorney's statement which would allow them to make such a statement, and I wouldn't be surprised if they cleared the exact wording with a judge.


Furthermore, the grand jury can return indictments or true bills of their own initiation. They are not constrained by the indictments or information presented to them by Patrick Fitzgerald. The grand jurors are allowed to ask their own questions and create their own indictments. Grand juries that take the reins like this are sometimes referred to as "runaway grand juries":

"A runaway grand jury is an exception to this rule--the grand jurors ignore the prosecutor(s) and start making their own decisions. Runaway grand juries were not uncommon in the early twentieth century. The best known of these runaway grand juries is probably the New York grand jury in the 1930's that barred prosecutors from coming into the grand jury room and took off on its own investigation of corruption in New York city government. This grand jury eventually cooperated with Thomas E. Dewey, whom the jurors apparently decided they could trust, and returned many indictments against a variety of defendants, including some well known members of the New York Mafia. Since modern grand jurors tend to be ignorant of their ability to act independently of a prosecutor's wishes, runaway grand juries have pretty much become a thing of the past. There have, however, been a few exceptions: Recently, for example, a California state grand jury indicted all the top county officials, and nearly closed down county government. And a Texas state grand jury began investigating a mayoral candidate and seems to have ruined his reputation sufficiently to cause him to lose the election, even though he was never charged with any crimes."

I suggest you read Matthew Cooper's comments about his experience with Patrick Fitzgerald's unique grand jurors:

" 'Grand juries are in the business of handing out indictments, and their docility is infamous,' Cooper writes. A grand jury, the old maxim goes, will indict a ham sandwich if a prosecutor asks it of them. 'But I didn't get that sense from this group of grand jurors. They somewhat reflected the demographics of the District of Columbia,' he wrote. 'The majority were African-American and were disproportionately women... These grand jurors did not seem the types to passively indict a ham sandwich. I would say one-third of my 2-1/2 hours of testimony was spent answering their questions, not the prosecutor's.' "

The grand jury may have returned indictments or true bills through their own proactive and fully Constitutional power, as opposed to reacting to indictments or information presented by the prosecutor.

Another paragraph from Flocco's report lends credence to this issue:

"Sources close to the investigation report that members of the House, Senate, 9.11 Commission and other members of the media are also under investigation as potential targets by a grand jury regarding obstruction of justice and other oversight failures linked to the 9.11 attacks--indicating that citizen panelists working with Fitzgerald may be seeking a wholesale cleansing of what many have said is a crime-wracked White House and Congress. "

Pay attention to that last line, "--indicating that citizen panelists working with Fitzgerald may be seeking a wholesale cleansing..."

That's a very strong tip off that Patrick Fitzgerald's grand jury, to some degree, may be taking things in their own hands. (And if that is the case, Citizen Spook commends them for doing so.)

It's important to note, that Fitzgerald may be constrained by his legal mandate as to what he is allowed to investigate. He might also be constrained by superiors and furthermore, both he and the grand jurors might have considered the possibility that his job may be taken from him. After all, the President will decide whether Fitzgerald returns to his job when his term is up in October. The grand jury might also be aware of that fact, and they may have taken over this investigation, not out of disrespect for Patrick Fitzgerald, but perhaps just the opposite.

Hopefully, they've awoken to the magnitude of the historical significance their questions, deliberations and votes may hold. It's possible that the future of our country, the lives of our soldiers, and the lives of innocent people in foreign countries all over the globe are now in the minds and hearts of the "citizen panelists" now examining the actions of the Bush administration and its facilitators.


Citizen Spook has interviewed a female representative from Randy Sanborn's office. Randy Sanborn is the official spokesperson for Patrick Fitzgerald at the US Attorney's office in the Dirksen Federal Courthouse.

I first called the main number for the Dirksen Federal Courthouse. The receptionist transferred me to the "duty paralegal". I explained to him that I was calling about the story circulating about "the White House Indictments."

Duty Paralegal: "You're referring to the Valerie Plame case?"

CS: "Yes."

Duty paralegal: "We can't comment about that. Everything about the grand jury proceeding is secret."

CS: "I know, but there are reports coming out on the internet that this office has denied issuing the indictments and I'm trying to clear the record."

Duty paralegal: "You need to speak to Randy Sanborn's office. He's in charge of press relations. Just call the switchboard back and they will transfer you."

I have the duty paralegal's name, but he asked for it not to be used.

I called the main number again at the Dirksen Federal Courthouse and asked for Randy Sanborn's office. I was transferred to his office and a woman picked up:

CS: "May I speak to Mr. Sanborn?"

Female assistant: "What is this about."

CS: "I'm calling to verify the story about Patirck Fitzgerald's grand jury returning indictments agsinst the White House."

Female assistant: "That story did not originate from this office."

CS: "But people are spreading comments from your office."

Female assistant: "We have no comment."

CS: "But there are reports that your office denied executing the indictments."

Female assistant: "No indictments have been issued from this office."

CS: "Who am I speaking with?

Female assistant: "I'm not giving you any names for anybody here."

CS: "Has the grand jury returned any indictments?"

She hung up.

I called the main number again, asked for Richard Sanborn's office, was transferred and got the same female assistant on the phone:

Female assistant: "I told you we have no comment to your question."

CS: "But I have more than one question."

Female Assistant: "And we cannot comment, I have to go."

CS: "Please don't hang up, the duty paralegal said your office was the only place to go for a comment. And I understand you can't comment, and I'll respect that, but I have to get you on the record as saying 'no comment' to the questions I have, and not just a blanket answer. I understand you can't comment, but will you please allow me to ask the questions, and if your answer is 'no comment' that's fine, I won't press you, but please let me ask the questions so we can understand what you're saying 'no comment' to."

Female assistant: "What's your question, sir?"

CS: "Regarding Patrick Fitzgerald's investigation, has the US Attorney presented any Indictments to the grand jury for deliberations?"

Female assistant: "No comment."

CS: "Is the grand jury currently deliberating over any indictments?"

Female assistant: "No comment."

CS: "Has the grand jury returned any true bills?"

Female assistant: "No comment."

CS: "Has the grand jury returned any not true bills?"

Female assistant: "No comment."

CS: "Has the grand jury returned any bills of ignoramus?"

Female assistant: "No comment."

CS: "Has your office issued any Indictments?"

Female assistant: "This office has not issued any indictments."


So there most certainly is an official comment from the US Attorney's office...if you ask this very limited question. For any other question, the official response from the US Attorney's office is, "No comment."

Tom Flocco's story has not been denied by the US Attorney's office.

I sincerely hope that some reporter with a bit more pull than Citizen Spook can take this analysis and get Richard Sanborn to comment himself. I really don't see the problem. The duty paralegal told me that Sanborn usually picks up his phone, but it's obvious that his representatives are now shielding him from having to comment directly himself.

Sanborn has been identified in the Chicago Tribune and many other newspapers as the "offical spokesperson" in the US Attorney's office for the Northern District of Illinois, and for Patrick Fitzgerald.

Federal law does not allow the prosecutor to comment on the grand jury proceedings. But it would not break any law for Sanborn to say, "No comment." I find it very strange that he's allowing representatives from his office to issue any official statement other than, "no comment". The very specific answer his office is giving is only being given to a very specific question. Other questions were answered by, "No comment."

So what is it about the question, "Has your office issued any indictments?", that legally allows the US Attorney's office to make the comment, "We have not issued any indictments," and "No indictments have been issued by this office."

Considering Rule 6 of the FRCP, the only possible answer is this:

The official comment by the US Attorney's office does not break the Federal secrecy laws since the question presented, as phrased, which did elicit an official response, does not concern actions or information involved with the grand jury proceedings.

And to all other questions asked of the US Attorney, the official response was,

"No comment."


Rule 6(e)(3) may be of interest.

3) Exceptions.
(A) Disclosure of a grand jury matter--other than the grand jury's deliberations or any grand juror's vote--may be made to:
(i) an attorney for the government for use in performing that attorney's duty;
(ii) any government personnel--including those of a state, state subdivision, Indian tribe, or foreign government'--that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or
(iii) a person authorized by 18 USC sec. 3322.
(B) A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney's duty to enforce federal criminal law. An attorney for the government must promptly provide the court that impaneled the grand jury with the names of all persons to whom a disclosure has been made, and must certify that the attorney has advised those persons of their obligation of secrecy under this rule.
(C) An attorney for the government may disclose any grand-jury matter to another federal grand jury.
(D) An attorney for the government may disclose any grand-jury matter involving foreign intelligence, counterintelligence (as defined in
50 U.S.C. sec. 401a), or foreign intelligence information (as defined in Rule 6(e)(3)(D)(iii)) to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official to assist the official receiving the information in the performance of that official's duties. An attorney for the government may also disclose any grand jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate Federal, State, State subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.


By Citizen Spook


Citizen Spook is an attorney licensed to practice in the US Federal Courts.