Grand juries are secret. That secrecy is to the detriment of defendants who should be allowed to challenge the fairness of the indictment process. A recent case demonstrates just how dangerous it is to allow an unprincipled Justice Department to operate behind closed doors. I propose a simple solution to the problem: require disclosure of all transcripts of grand jury proceedings immediately to the defendant immediately after indictment and subject to an appropriate protective order.
Grand Jury Secrecy: Good and Bad
There are sound reasons for grand jury secrecy. A grand jury may investigate someone and ultimately not indict them. In that circumstance, there is no reason to expose that person to the negative reputational consequences of being under criminal investigation. Also, grand juries investigate violent crimes and protecting witnesses from harm is a valid reason to protect the secrecy of the process. Finally, there is no reason to disclose the names of the grand jurors publicly.
Grand jury secrecy has been used to block defendants from mounting a vigorous defense and, as recent events reveal, this Justice Department has employed it to conceal wrongdoing on an unknown scale. The defendant is not in the grand jury room. Defense counsel is not in the room. A judge is not in the room. No one is in the room where it happens (so to speak) except the Justice Department, the grand jurors, and a court reporter. Disclosure is necessary to shed light on this process.
Broadview Six Case – Coverup is Worse than the Crime
The recent developments in the “Broadview Six” are a troubling development.
In the Broadview Six case, the defendants were protesters who had blocked access to an immigration detention facility in Broadview, Illinois. DOJ charged them with interfering with federal officers. In April 2026, the defendants moved to compel disclosure of grand jury transcripts, or at minimum an in camera review, because they suspected the jury had been mis-instructed on the law in a way that might entitle them to dismissal. The government filed sealed transcripts for Judge April Perry’s review without objection. Those transcripts apparently had redactions in them.
The defense moved to have the redactions removed for the in camera review. When Judge Perry reviewed the unredacted transcripts, she found evidence of a shocking level of prosecutorial misconduct: the prosecutor in the grand jury had improperly vouched for the case, there were substantive ex parte communications between the prosecutor and grand jurors outside of the grand jury room and thus not captured on the transcript, and the prosecutor had excused some grand jurors who had made clear they disagreed with the government’s case.
At a May 21, 2026 hearing, Judge Perry laid out what had happened with remarkable candor: “Mistakes happen. They happen to all of us. But as I tell my children, you own it. You admit to it. You apologize for it, and you move on. What you do not do is hide it.” She also said that, “I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken.”
Judge Perry invited the defense to submit sanctions motions and perhaps one for vindictive prosecution. While the remedy for vindictive prosecution is dismissal, and such a motion is arguably moot, the court can order discovery into the decision to indict—that may be the real punishment for which Judge Perry is aiming.
The only reason Judge Perry, and the defendants, learned what happened in the grand jury is because the judge was willing to review the grand jury transcripts in camera (meaning only the judge sees the transcripts). Most judges refused even to take that step—saying that the defense has not made a strong enough showing to justify it.
DOJ tried to hide its wrongdoing by redacting the portion of the transcript that revealed the misconduct. When the judge demanded the full transcripts, however, she saw what happened. The government, having nowhere to hide, dismissed the charges entirely.
The U.S. Attorney Andrew Boutros announced that his office would review the grand jury process and that he had put in place a “remediation plan.” As the announcement says, “[t]he remediation plan, which represents the most substantial and significant internal changes to the Office’s grand jury procedures in decades, will streamline the Office’s grand jury processes and disclosures. The new process moving forward will be more transparent, effective, and impactful while greatly reducing the likelihood of mistakes and errors.”
It promises a “more transparent process,” but the announcement does not describe the “new process” and includes a disclaimer that nothing in the announcement “create any rights, substantive or procedural, that are enforceable at law by any party, in any criminal, civil, or administrative matter.”
I guess the new plan to make the secret grand jury proceedings more transparent is . . . . a secret (?)
Color me unimpressed.
Wait, Defendants Don’t Get Grand Jury Transcripts?
Nope. Defense counsel only gets grand jury transcripts in three circumstances:
- They contain Brady material. If, in the prosecutor’s view, the transcripts contain exculpatory information, the prosecutor will turn them over in discovery. Since the prosecutor is the only one asking the questions in the grand jury room, however, it is very unlikely the prosecutor will elicit any exculpatory information.
- They are Jencks material. If someone who testified in the grand jury is also a witness at trial, then the government must turn over that witness’s grand jury testimony as part of its Jenks disclosure. The government can avoid disclosure by having different witnesses testify in the grand jury as testify at trial.
- The court orders production after a showing of a “particularized need” that outweighs grand jury secrecy. See United States v. Murray, 751 F.2d 1528, 1533 (9th Cir. 1985) (“Discovery of grand jury transcripts may be ordered if the party seeking disclosure has demonstrated that a particularized need exists that outweighs the policy of grand jury secrecy.”) (citing United States v. Procter & Gamble, 356 U.S. 677, 682 (1958)). It’s nearly impossible to show a particularized need for what was said in the grand jury when the defense doesn’t know what was said in the grand jury.
A Simple Solution
A colleague pointed out that in New York State, there is a statute* that requires a judge to inspect grand jury transcripts if a defendant requests it (and there is no good cause to deny the motion). The judge will review it to determine the legal sufficiency of the indictment and can release portions of the transcript to the defense.
This solution offers some deterrence against prosecutorial misconduct before the grand jury because there is a very real possibility that a judge will review the transcripts. But it doesn’t go far enough.
Here’s what I propose:
Congress should enact a statute that requires disclosure of all grand jury proceedings to the defendant immediately after indictment. This includes all testimony and all other proceedings: legal instructions to the grand jury, questions asked by the grand jurors, and answers given to those questions.
The statute should also require an appropriate protective order to be entered before disclosure. If the government makes a showing—perhaps in camera—that witness safety is a concern, then the transcripts could be produced “attorney’s eyes only,” meaning that only the lawyers get to see them, not the client. The protective order could also preclude any sharing of the transcripts publicly (filings referencing them would be under seal) or with anyone not on the defense team. It could also mandate that no identifying information about grand jurors should be disclosed.
Each district could figure out a standard protective order in this circumstance. Protective orders happen all the time, so this is not a big deal.
If prosecutors knew that their grand jury proceedings would be disclosed to the defense in each case, this would be a strong deterrent against misconduct. If the prosecutor did it all by the book and the indictment’s legal sufficiency is solid, then what’s the concern?
Yes, this process will lead to second guessing grand juries and prosecutorial discretion. But this moment in history calls out for serious reform of a process that has used grand jury secrecy to prevent legal challenges and a process that is now being used by this Justice Department to cover up prosecutorial misconduct.
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Here is the New York statute:
*NYS CLS CPL § 210.30. Motion to dismiss or reduce indictment on ground of insufficiency of grand jury evidence; motion to inspect grand jury minutes.
1. A motion to dismiss an indictment or a count thereof pursuant to paragraph (b) of subdivision one of section 210.20 or a motion to reduce a count or counts of an indictment pursuant to subdivision one-a of section 210.20 must be preceded or accompanied by a motion to inspect the grand jury minutes, as prescribed in subdivision two of this section.
2. A motion to inspect grand jury minutes is a motion by a defendant requesting an examination by the court and the defendant of the stenographic minutes of a grand jury proceeding resulting in an indictment for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges or a charge contained in such indictment.
3. Unless good cause exists to deny the motion to inspect the grand jury minutes, the court must grant the motion. It must then proceed to examine the minutes and to determine the motion to dismiss or reduce the indictment. If the court, after examining the minutes, finds that release of the minutes, or certain portions thereof, to the parties is necessary to assist the court in making its determination on the motion, it may release the minutes or such portions thereof to the parties. Provided, however, such release shall be limited to that grand jury testimony which is relevant to a determination of whether the evidence before the grand jury was legally sufficient to support a charge or charges contained in such indictment. Prior to such release the district attorney shall be given an opportunity to present argument to the court that the release of the minutes, or any portion thereof, would not be in the public interest. For purposes of this section, the minutes shall include any materials submitted to the grand jury pursuant to subdivision eight of section 190.30 of this chapter.
4. If the court determines that there is not reasonable cause to believe that the evidence before the grand jury may have been legally insufficient, it may in its discretion either (a) deny both the motion to inspect and the motion to dismiss or reduce, or (b) grant the motion to inspect notwithstanding and proceed to examine the minutes and to determine the motion to dismiss or reduce.
5. In any case, the court must place on the record its ruling upon the motion to inspect.
6. The validity of an order denying any motion made pursuant to this section is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence.