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36 Am. Crim. L. Rev. 339 (1999)
Grand Jury Secrecy: Plugging the Leaks in an Empty Bucket

handle is hein.journals/amcrimlr36 and id is 349 raw text is: GRAND JURY SECRECY:
Daniel C. Richman*
Although people can quarrel about the significance or reliability of Independent
Counsel Kenneth Starr's investigative findings, no one can deny that his investiga-
tion produced new law. We now know that the attorney-client privilege survives
the death of the client,' that government lawyers may not rely on that privilege to
shield communications from          their client relating to criminal misconduct,2 and
that there is no protective function privilege (at least not yet),3 While bringing
some clarity to certain areas, the Independent Counsel's investigation also high-
lighted the confused state of the law relating to Rule 6(e)'s grand jury secrecy
Emblematic of the confusion was the reaction to Starr's interview with Steven
* Associate Professor, Fordham University School of Law. Between 1987 and 1992, 1 was an Assistant United
States Attorney in the Southern District of New York. Since then I have served as a consultant for the Office of the
Inspector General of the Justice Department, but nothing here directly relates to that work. Thanks to Alex Bowie,
Mike Bromwich, Jerry Lynch, Julie O'Sullivan, Dave Sklansky, and Bill Stuntz for their generous and valuable
1. See Swidler& Berlin v. United States, 524 U.S. 399 (1998) (declaring that the privilege survives death of the
2. See In re Bruce R. Lindsey (Grand Jury Testimony), 148 F.3d 1100 (D.C. Cir.), cert. denied, 119 S. Ct. 466
(1998) (holding that there is no attorney-client privilege protecting communications between the President and
government lawyers).
3. See In re Sealed Case, 148 F.3d 1073 (D.C. Cir.), cert. denied, 119 S. Ct. 461 (1998) (refusing to recognize a
protective function privilege covering Secret Service officers). A move to create a protective function privilege
by statute was pending in the last Congress. See Stephen Labaton, Testing of a President: The Supreme Court;
Administration Loses Two Legal Battles Against Starr, N.Y. TIEs, Nov. 10, 1998, at A27.
4. Rule 6(e) of the Federal Rules of Criminal Procedure provides, in pertinent part,
(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a
recording device, a typist who transcribes recorded testimony, an attorney for the government, or
any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not
disclose matters occurring before the grand jury, except as otherwise provided for in these rules.
No obligation of secrecy may be imposed on any person except in accordance with this rule. A
knowing violation of Rule 6 may be punished as a contempt of court.
(3) Exceptions.
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other
than its deliberations and the vote of any grand juror, may be made to
(i) an attorney for the government for use in the performance of such attorney's duty; and
(ii) such government personnel... as are deemed necessary by an attorney for the government to
assist an attorney for the government in the performance of such attorney's duty to enforce federal
criminal law.
FED. R. CriM. P. 6(e).

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