The Bruising Experience of Testifying Before a Grand Jury
For most Americans, the grand jury is a mystery. Television series like Law & Order and films like Twelve Angry Men have branded regular jury trials onto the national cultural psyche: Many Americans could easily describe what the courtroom setup looks like, and the role each participant typically plays. Not so with grand juries.
The process’s secrecy helps explain why: Many of those present—the jurors, the prosecutors, the stenographers—are generally forbidden by federal judicial rules from disclosing what happens within the room. Still, that unfamiliarity could fade somewhat as the Russia investigation intensifies—and if the only people not bound by this omertà are willing to go public.
Special Counsel Robert Mueller’s inquiry into the Trump campaign’s relationship with Moscow is now a vast undertaking, and he and his team are using at least two federal grand juries to conduct the probe. One, in eastern Virginia, was originally used by federal prosecutors as part of their investigation into former National Security Adviser Michael Flynn. The other is reportedly based across the Potomac River in Washington, D.C.
Through the grand juries, the special counsel can issue subpoenas for documents and other evidence and force witnesses to talk about what they know. Late last month, Mueller reportedly subpoenaed associates of former Trump campaign chairman Paul Manafort, the “first public indication that Mueller’s investigation is beginning to compel witness testimony,” as NBC News put it. Days later, the Associated Press reported that jurors had already heard from a lobbyist who attended Donald Trump Jr.’s controversial meeting with a Russian lawyer.
Americans probably won’t ever learn exactly what’s happened inside those sessions. But as with past high-profile grand juries, the witnesses themselves could offer some small help. (Or perhaps even more, if they are as chatty with reporters as the leak-prone White House has been.) While prosecutors often ask witnesses not to discuss the proceedings, they are under no legal obligation to keep quiet.
With this in mind, I spoke with veterans of high-profile Washington investigations during the Bill Clinton and George W. Bush administrations about their experiences. Their memories could serve as a preview of what Mueller’s witnesses face, and what they might tell the world once their testimony is over.
The Clinton White House spent years wrestling with Independent Counsel Ken Starr’s wide-ranging probe, which began as an inquiry into a real-estate deal known as Whitewater and culminated in the president’s impeachment in 1998 for lying under oath about his relationship with Monica Lewinsky. Years later, in 2003, Bush administration officials were accused of leaking the identity of Valerie Plame, a CIA agent married to Iraq War critic Joseph Wilson. The Justice Department tapped special prosecutor Patrick Fitzgerald to investigate. His inquiry led to jail time for former New York Times reporter Judith Miller, who initially refused to testify in front of the grand jury, and to the trial and conviction of Scooter Libby, a top aide to then-Vice President Dick Cheney.
Investigations like these “are profoundly damaging to the good order and proper functioning of a working White House,” as Russell Riley put it in May. They serve as a grave distraction to all involved, whether inside or outside of an administration, keeping them from their normal work and chipping away at morale. Grand juries only amplify those stressors, and the experience of testifying still seemed fresh to some of the witnesses I talked to.
Among the first things they all mentioned was the isolation. Unlike a typical courtroom hearing, grand-jury interviews aren’t accessible to the public. A witness’s legal counsel can’t attend—a virtually unique absence in the American legal system—although they can sit outside the room and wait for their clients to emerge.
Mary Matalin, a longtime Republican strategist who testified in the Plame investigation, told me that while witnesses can ask for a break to confer with their lawyers outside, “it is discouraged, as the jury seems to interpret that as an implication of some complicity or guilt.”
Inside the room, the grand jurors themselves are largely spectators while prosecutors run the show. “There’s no judge there to rule on the relevancy or whether it’s germane. So you have to keep your wits about you,” Bernard Nussbaum, who served as Clinton’s White House counsel, told the University of Virginia’s Miller Center for its presidential oral-history project in 2005. “Clever prosecutors … can really trip you up or cause you to make mistakes.”
Matalin served as Cheney’s communications chief when the Plame leak happened. Writing in an email, she described in visceral language how she felt during her appearance. Although she wasn’t a central figure in the inquiry, “the questioning was hostile, leading, disrespectful, designed to instill confusion and fear rather than [elicit] information,” she alleged. “Think Inquisition without the physical tools.”
What sets investigations like Whitewater and “Plamegate” apart from typical criminal probes are the political stakes, the real or imagined partisan influences, and the immense public attention. Alberto Gonzales, a former U.S. attorney general and White House counsel, told me he was called to testify during the latter case on a few conversations he had with other White House officials. D.C. grand juries convene in the E. Barrett Prettyman Courthouse near Capitol Hill, and Gonzales’s colleagues warned him in advance that there would be a crowd of reporters waiting for him.
“My recollection is it wasn’t very long—15 minutes, 20 minutes, something like that. … As soon as I got off the elevator I was mobbed by the media. They started asking me questions about my testimony, and I just tried to get out of there as quickly as I could,” Gonzales said. “I found a side exit and I walked to the street to hail a cab, and the media was still following me. When I got in the cab, the driver looked at me and said, ‘Are you famous or something?’”
Starr himself never appeared to question him or any other witness he knows of, Blumenthal told me. That role instead fell to other investigators. Blumenthal was careful to distinguish between his experience in the Whitewater probe, which he described as “Kafkaesque and absurd,” and Mueller’s investigation, which he suggested was more professional.
Other prosecutors can be more hands-on. Gonzales said he learned he would be called to testify when Fitzgerald, tapped by then-Attorney General John Ashcroft to oversee the Plame case, personally called him.
There’s no time limit on how long the sessions can last. “Another overused tactic is to drag out the proceedings interminably on overtly irrelevant lines of questioning,” Matalin said, “which as you might expect invites the desired contemptuous attitude from the witness, not to mention a fatigue that violates Geneva Convention standards.”
Still, confusing or tiring out witnesses may not always be the prosecutor’s intent. Some questions that might seem odd from the witness’s perspective may just amount to the legal team tying up loose ends, Gonzales said. “So you may think, ‘This really is kind of an unusual question,’ but in fact it may be very relevant to the investigation,” he said.
What advice did participants have for those who may be called before a Mueller grand jury? “Tell the truth,” Blumenthal said. Gonzales recommended getting acquainted with the process and what the prosecutor is trying to learn.
As for hiring a lawyer, which multiple Trump aides and associates have reportedly done, Gonzales noted that it depends on the witness’s level of involvement in whatever matter is being investigated. “If you’re a target or a subject, you obviously should have a lawyer or be advised by counsel,” he said. He and some of his former colleagues, usually those with legal training, opted not to hire counsel during the Plame investigation.
Those who do hire attorneys could face a major financial impact. Libby, the Cheney aide ultimately convicted of lying to investigators, had to establish a legal-defense fund to pay off his sizable lawyer fees. Blumenthal told me he incurred “hundreds of thousands of dollars” in legal bills during the ordeal, and indicated that he expected Trump administration officials would as well.
As for Matalin, “I was blessed with stupendously talented legal representation who prepared me well, but not all witnesses are,” she told me. “[They] end up going in blind, due either to the dearth of expert ‘political’ legal expertise or the substantial cost of securing such representation.”
Blumenthal, a staunch supporter of Hillary Clinton and her losing campaign, suggested the real danger for some witnesses may have already happened. “I know what I did not do,” he alleged. “They know what they did.”