S1E44 – Mo on Grand Juries

Episode Notes

Episode Summary:
Mo, a criminal defense/movement lawyer with the National Lawyers Guild, talks about how Grand Juries are used by the State to destabilize communities, and what your options are for resisting them if you are issued a subpoena. Margaret and them talk about the importance of not cooperating with Grand Juries and how you can be an eternal badass…i mean protect yourself and your community by resisting them. They also talk about the most important legal strategy: Hope.

Guest Info:
Mo, Moira Meltzer-Cohen (they/them), is a Criminal Defense Lawyer who works at the intersection of Criminal Defense and struggles for social and economic justice. They work for the National Lawyers Guild (NLG) Federal Defense Hotline. You can find them on Twitter @ProbYrLawyer.

Show Links:

National Lawyers Guild Federal Defense Hotline: (212) 679-2811 IF YOU RECEIVE A SUBPOENA FOR A GRAND JURY CALL THEM. (If you call you might get Mo!)

NLG NYC_:_ On Instagram @NLG_NYC

Civil Liberties Defense Center: CLDC.org for legal primers, brochuers and information.

Grand Jury Resistance Project: GrandJuryResistance.org

SparrowMedia.net: Chelsea Manning Grand Jury Resitance info.

The host Margaret Killjoy can be found on twitter @magpiekilljoy or instagram at @margaretkilljoy.

This show is published by Strangers in A Tangled Wilderness. We can be found at www.tangledwilderness.org, or on Twitter @TangledWild and Instagram @Tangled_Wilderness. You can support the show on Patreon at www.patreon.com/strangersinatangledwilderness.


Mo on Grand Juries

Margaret 00:15
Hello and welcome to Live Like the World is Dying, your podcast for what feels like the end times. I’m your host, Margaret killjoy. And this week I will be talking to my friend Mo, who is a lawyer. And not just any lawyer, but the lawyer I know who got one of my friends out of jail when he was in jail for Grand Jury resistance. “What is a Grand Jury?” you might ask, and “Why might we resist it?” Well, that’s the topic of this week’s episode. So if you stay tuned, you will hear all about Grand Juries and why they suck, and what we can do about them, and what you can do about them. This podcast is a proud member of the Channel Zero network of anarchists podcasts. And here’s the jingle from another show on the network.

Margaret 01:48
Okay, if you could introduce yourself with your name, your pronouns, and then kind of what you do for work.

Mo 01:53
Hi, Margaret, I’m Mo. My name is Moira Meltzer-Cohen. My pronouns are they/them. I’m an attorney, and I work at the intersection of criminal defense and struggles for social and economic justice. So, I’ve probably represented a lot of your listeners.

Margaret 02:13
Hurray. Yeah, for context. I’ve literally had nightmares, where I get rounded up by cops, and I’m just like, “I need to call Mo!” And and then Mo comes and saves me.

Mo 02:26
I’ll do my best.

Margaret 02:27
Yeah, I appreciate it. The only other phone number I’ve memorized besides like my immediate family. So speaking of friends of ours that Moira has gotten out of jail, I want to talk about something that happened a number of years ago to our mutual friend, Jerry Koch, which was that one time Jerry Koch was may may or may not have once been in a bar. And people in that bar may or may not have been talking about a crime that happened. I think, before Jerry even moved to New York City, but I’m not entirely certain. And that crime was that someone may or may not Well, clearly, someone did it. No one knows who did it. Someone bicycled past recruitment center and threw a box full of black powder at it, and it destroyed the door in the middle of the night, and no one was hurt. And because it was a federal crime, it became this huge deal. And so Jerry was subpoenaed to speak before a Grand Jury, and Jerry refused to do so. And as a result, he spent nine months in jail without being accused of any crime, and basically, like all of his rights were taken away. Like all of his, you know, First, Fourth and Fifth Amendment rights were not enough to say, well, basically, they can try and make you talk even though it’s not illegal to not talk to them, and they can still throw you in jail. And I wanted to have Mo on one because Mo was the one who got Jerry out of jail. But also because I think that it’s useful for people to know about the Grand Jury process, kind of what it is, what it can do to social movements, and how we can prevent it from doing those things to our social movements as we fight for a better world. So do you want to tell me like, What is a Grand Jury?

Mo 04:18
Right? So the Grand Jury is anomalous in the American legal system, and it’s, as you will see, it’s so anomalous, and it so disregards so many of the core assumptions that most people have about the Constitution and the American legal system that I have encountered many people, including many attorneys, who have a really hard time believing that Grand Juries exist and operate in the way that they do actually operate. So a federal Grand Jury is an investigation where 18 to 24 people are called together in the same way that, you know, you get called for, like jury duty. People get called for Grand Jury Duty. And they hang out and listen to prosecutors to federal prosecutors present evidence about various criminal offenses and determine whether or not a crime has actually occurred. And in doing these investigations, federal prosecutors can issue subpoenas, which say, to whoever they’re issued to, you have to show up to this Grand Jury and answer my questions in front of these 18 to 24 people. And there’s really…and you don’t get an attorney in there with you. And there’s no judge in there. There’s just the prosecutor and these people who have been called to Grand Jury Duty. And they can tell you to come and give testimony and answer their questions. And they can also tell you to come and bring various kinds of documents. And this is compulsory, whereas usually, you would have the right to decline to participate in a police investigation, which is what I talked about last time I was on your show, which is that you really never have an obligation to talk to police. Unfortunately, this is sort of the opposite, where if you are issued a Grand Jury subpoena, and you declined to participate, you can be ordered by a judge to participate, sort of, in spite of all of the rights you think you have, like the First Amendment, right to Association and Speech and Belief, and your Fifth Amendment rights to remain silent. And your Sixth Amendment right to have a lawyer with you, if you’re being questioned, all of those rights kind of fly out the window. And if you refuse to participate, a judge might order you to participate anyway. And if you continue to decline to participate, the judge will find you in Contempt of their Order To Participate, and they can throw you in prison. And so you can spend a pretty significant amount of time in federal prison, not because you have been accused of a crime, not because you have been convicted of a crime, but because you have declined to help the state make out their case against yourself or someone else.

Margaret 07:29
One of the things that really strikes me about Grand Juries is like when you first try to describe the process of someone, it sounds like a good thing, right? It’s like set up to be this thing where you’re like, oh, you can’t just accuse people have crimes. And you actually have to have a meeting ahead of time to make sure there’s enough evidence before you can accuse someone of a crime. And it just I feel like the state is really good at taking things that like ostensibly might possibly be designed to protect us from government overreach and turn them into over government overreach.

Mo 08:01
That’s exactly right. So a Grand Jury is a it’s a process that was invented in the 12th century. And the reason that it was invented is it was a group of sort of citizens, men, who would come together to privately investigate whether an offence had even been committed, because sometimes the Crown would just throw people in, in jail. And so this was… the Grand Jury was a step that was intended to make sure that there was some constraint on the unfettered power of the Crown. And unfortunately, the way that the Grand Jury has been adopted and used in the United States is not…it is an arm of state power, as opposed to a bulwark against it. Although, federal prosecutors get really butthurt if you say things like that, and they…they’re constantly saying, we’re a bulwark against unfettered power, but they’re….

Margaret 09:07
And that’s why we threw your friend in jail for nine months for not talking to us.

Mo 09:11
I can never tell if federal prosecutors actually believe the things that they’re saying. They’re very defensive about… they’re very defensive about the Grand Jury process. And they seem genuinely to believe that it’s protective, despite the fact that there, I think, is only one other nation in the world that still uses Grand Juries, because they have come to be understood as really damaging. They’re not transparent. They’re secret proceedings. They’re frequently compared to Star Chamber Proceedings. But one of the things that is a big difference between a federal Grand Jury and the Star Chamber is that the Star Chamber Proceedings were public.

Margaret 09:54
What’s a Star Chamber Proceeding?

The Star Chamber was this like, sort of secret authoritarian court.

Margaret 10:03

Mo 10:04
So, yeah, so the thing about Grand Jury proceedings is the claim that’s made is that they happen in secret so that they don’t sort of destroy the reputations of people who the innocent accused, right? But there’s actually ways of initiating a criminal prosecution that don’t involve secrecy, right? You….people in countries all over the world managed to prosecute criminal offenses without using Grand Juries. And it involves sort of public cross examination and having sort of the trappings of due process that we would assume, obtain in the American legal system, and they typically do, but federal Grand Juries, you know, as I said, there, it’s totally unnecessary. But, they’re very useful. They’re very useful for a number of reasons, because their critical attributes give tremendous power to prosecutors. Sorry, let me rephrase that they’re very useful to prosecutors for a number of reasons. They’re not particularly useful to anyone else? They’re quite dangerous for exactly these reasons.

Margaret 11:18
Because they can like…they can use them to just fish information out of scenes, right? Because you can show up and say…

Mo 11:24
There’s a bunch of things about them. One is that what a prosecutor can ask is almost unlimited. There’s there’s really… the rules of evidence that we would think about, like, you know, hearsay, being inadmissible various kinds of unlawfully collected evidence being admissible, relevance, right? If you’re having a criminal trial or a civil trial, you can’t just get any kind of…you can’t start asking questions about unrelated things, right? Well, in a federal Grand Jury, you can, and there’s…Furthermore, there’s nobody there. There’s no judge there, there’s no defense attorney present. The only person who’s present is the prosecutor. So the prosecutor gets to determine what evidence gets seen, and what evidence doesn’t get seen, right? They’re presenting their case to this Grand Jury, but they’re not giving a complete picture, which is why we have Grand Juries where, you know, over 99%, of people accused of a federal offense get indicted by a Grand Jury. But are those people ever cops? I mean, almost never, right? And that’s because the prosecutor controls how evidence is presented and what evidence is not presented, and how evidence gets placed before those grand jurors. And so they really control the narrative. And they basically determine what gets prosecuted and what doesn’t. They can also use the federal Grand Jury, as you said, to go fishing, because they can basically issue as we saw with Jerry, they can issue a subpoena to just about anyone and ask them just about anything. So, you know, we have no idea whether they actually thought Jerry had any relevant information about that event, which they refer to as The Bicycle Bombing. Right? Who knows whether they actually thought that Jerry had any information about it, despite the fact that he told them publicly many times that he did not. And they don’t seem to have had any real reason to think he did. But what they definitely thought he had information about was anarchist organizing in New York City. And that’s clearly what they were interested in asking him about. And so maybe they weren’t necessarily going to get information about the Bicycle Bombing from subpoenaing him to come and give testimony. And maybe they weren’t gonna even get information about any kind of Federal offense from his testimony, but they sure we’re gonna get some social mapping. They sure we’re gonna get some information about, you know, potentially about like, internecine quarrels in the anarchist community. So, you know, a lot of, a lot of this is a fishing expedition. And I think that sort of brings us to the next thing that you and I were discussing, which is, Grand Juries are these really complicated, really anomalous legal proceedings. They’re sort of quasi criminal. They involve a lot of different really technical elements. But at bottom, they’re sort of anathema to anarchists. And there’s a few reasons for that. And I think, you know, this is sort of the thing that I guess we wanted to talk about, which is that,

Margaret 14:55
Yeah, why don’t anarchists talk to Grand Juries?

Mo 14:58
Well, this is yeah, I mean, this is the thing, right, is that there’s sort of three things going on. One thing is anarchists pretty much don’t talk to Grand Juries, on principle, because fuck the state. But there’s also materially, it’s very dangerous to give testimony to a Grand Jury, because you’re essentially, even if you’re not giving them information about any unlawful activity, any information that you give to the state, can and very much will be used against you and your community. And anytime you’re talking to a federal Grand Jury, or a federal investigator, law enforcement of any kind, anything that you say, can be used to get more information can be used to cause trouble in your community, and can be used to prosecute, prosecute you or the people in your community. And then the third even more technical reason is that strategically, legally, there are a whole slew of reasons and legal arguments that you can bring to bear against cooperating with a federal Grand Jury. And, in fact, you know, I would say, as a legal matter, you know, I can’t…whether or not to cooperate with a federal Grand Jury is not a decision that an attorney can make for another person.

Margaret 16:25

Mo 16:26
But there are a number of legal advantages to litigating questions around the enforceability of a Grand Jury subpoena.

Margaret 16:39
Well does this tie into, like, how how you got Jerry out?

Mo 16:44
Yes. Well, there’s sort of there’s phases, right, because the first thing that I would say, the first thing that would happen in Grand Jury litigation, is developing arguments or or seeing if there are arguments against the enforceability of the Grand Jury subpoena. And these range from things like: “Is the subpoena properly issued and enforceable?”to “Can you enforce this Grand Jury subpoena against this particular individual?” Does this Grand Jury subpoena impermissibly intrude into First Amendment protections? Does it impermissibly intrude into Fifth Amendment protections? Can you demonstrate that this particular subpoena was issued on the basis of illegally collected evidence? There’s things like that, that certainly you would want to litigate before just rolling over and cooperating with a Grand Jury. Again, from the legal point of view, quite apart from the issues of principle, you know, if you don’t, if there’s a way to avoid incriminating yourself, you, you know, I would advise you to do it. So, there’s a whole kind of litigation to…that happens sort of up front, to try to do what’s called “quash the subpoena”, right, to nullify the subpoena. That almost universally fails. We are not successful with that litigation that happens early on in the process. And then what what typically happens? Well, sometimes what happens is that the prosecutor gives up, but that’s, that’s not typical. Although it happens occasionally.

Margaret 18:39
We could hope we could pin all of our hopes on that.

Mo 18:43
Yes. I wouldn’t expect it.

Margaret 18:47
No, we should pin all of our hopes on it. That’s what’ll happen. You heard it here first, there’s nothing to worry about.

Mo 18:55
Please call my office. If you get a Grand Jury subpoena. Do not lay awake in bed hoping for the prosecutor to let it go.

Margaret 19:03
Interesting. Okay. Okay.

Mo 19:05
You know, we even have a hotline.

Margaret 19:07

Mo 19:08
Which I can tell you about later. But yes, we…you can call the office, you can call the hotline. You can call your local chapter of the National Lawyers Guild.

Margaret 19:19

Mo 19:20
Hire a lawyer instead of hoping.

Margaret 19:22

Mo 19:23

Margaret 19:24
And probably a movement lawyer rather than like one that’s just looking out for…

Mo 19:28
For sure. Yes. Hope is not a great legal strategy, I guess is what I’m trying to say.

Margaret 19:36
It’s almost like we should be prepared as individuals and communities for bad things that might happen.

Mo 19:42
It’s almost like that.

Margaret 19:43
Yeah, but that would be crazy. Anyway. Okay.

Mo 19:46
Typically, what happens is that you litigate the validity or the enforceability of the subpoena. And then the judge typically says, “The justice demands that we do unfettered investigations, and be allowed to ask whatever questions we want. And, if you have nothing to hide, you shouldn’t be worried, just go talk to the federal Grand Jury.” And they will, the judge, will order the witness to give testimony. But of course, the judge can order you to do something all they want. That doesn’t mean you actually have to do it. And so, if you continue to refuse to give testimony before the federal Grand Jury, the way the judge will enforce their order, is to say, “Well, if you won’t give testimony, I’m going to hold you in Contempt of Court. And the sanction for being in Contempt of Court is that I will put you in federal prison until you agree to give testimony. And if you don’t agree to give testimony, then you are going to stay in federal prison until the Grand Jury expires (Grand Jury is typically at last 18 months). So, I’ll keep you in federal prison until the Grand Jury expires.” And then the other way that you can sometimes get out without giving testimony is to just demonstrate that you will not be convinced by your confinement to give testimony, right, because the the only permissible reason to put somebody in prison for civil Contempt is to convince them to change their mind. Right?

Margaret 21:40
Cause that’s coercive instead of punitive. Is that the idea?

Mo 21:42
That’s right. That’s right. So there’s…

Margaret 21:44
What a weird dumb distinction that the law wants to make.

Mo 21:49
There’s a distincation that…I would say it’s a distinction without a difference, except it does have this very significant meaningful difference…

Margaret 21:57
Right, legally.

Mo 21:57
Which is as follows:

Margaret 21:59

Mo 22:00
A judge cannot put you in prison to punish you in the absence of due process, in the context of Grand Jury litigation, Contempt of Court is Civil and not Criminal. And so you don’t get due process in the way that you would have to, in order for the judge to punish you. And so the judge…the fiction here is that the judge is not punishing you by confining you, the judge is just putting you in an uncomfortable situation with the promise that it will stop if you agree to do the thing the judge wants you to do. So, it isn’t punishment. It’s coercion.

Margaret 22:51

Mo 22:52
So it’s, it sounds very silly, except what follows there from is that if you can demonstrate to the judge, that it isn’t coercive, and it’s only punitive, then they have to release you, because it’s unconstitutional to punish you.

Margaret 23:13

Mo 23:14
And so, being able to demonstrate that the confinement in federal prison has been transformed from a coercion into a punishment is the way that you can eventually after some, usually many months, you can get your client out of prison, which is what happened with Jerry.

Margaret 23:43
Okay, I kind of love because it’s like, “Look, if you’re a badass, and you come from a badass movement, I’m sorry, you just can’t put badass is in jail. It’s just not allowed anymore”, is like the kind of and like, I’m under the impression when you were talking earlier about one of the reasons why anarchists in particular, might want to refuse to speak to Grand Juries is does this build a stronger case for future anarchists basically, to be like, “Oh, it doesn’t work. This won’t work.”

Mo 24:13
Absolutely. I dont think it will prevent them from trying to exact a cost.

Margaret 24:17

Mo 24:19
They’ll still put you in.

Margaret 24:20
Right. But I was under the impression this was like part of the way of explaining to a judge like “My you know, my client cannot be coerced into testifying.”

Mo 24:33
Absolutely. Yes, very much. You know, there’s…and it isn’t just to be clear, it isn’t only anarchists who do this. There’s some really great case law that stems from different organized crime people and white collar crime, which is just another kind of organized crime, I guess, people refusing to cooperate. There’s a really great case where a Jewish guy says that it’s against, you know, It violates the tenets of his faith to to snitch, which I as a Jew, I I would say, “Yes that I would agree with this assessment.” And of course the judge said, “No, you… I’m sorry you don’t have a religious First Amendment right not to snatch.” Morris Simpkin, I think was the was the guy. Rabbi Morris Simpkin.

Margaret 25:26
That rules.

Mo 25:27
Yeah, no, he’s he’s a hero. And then there’s a guy who basically was released, because he, he said, “I’m not going to…I’m not going to talk. Because, as you know, I have several million dollars waiting for me in an offshore bank account. If I tell you about it, I won’t, you know, I wont be able to access it later.”

Margaret 25:51
Did that work?

Mo 25:53
I don’t think it actually did work particularly well. I think the Court said something like, “You know, this is a little too venal even for us to deal with.” But, so…it isn’t just anarchists who refuse to cooperate with Grand Juries. And then there’s also people who refuse to cooperate with Grand Juries, because they’re in fear for their life, which is, I think, maybe even more common than people refusing on principle.

Margaret 26:23
Yeah. So how does this come up in movements? Right, like, you know, the the example that we use at the beginning is a fairly like, it ties into the anarchist movement in New York City at that time, but it’s a fairly isolated incident. But I’m under the impression that Grand Juries are used or end up disrupting social movements in a broader sense.

Mo 26:45
Yeah, absolutely. Have you ever heard the phrase, “Nobody talks, everybody walks”? That’s sort of, I think this is not a legal strategy commentary. But, I think the sort of the goal of anarchist communities is to recognize that the more people talk, the more evidence you are creating, the more information you are providing to the State that can–even if you’re providing evidence that has nothing to do with unlawful conduct–providing information of any kind to the State gives the state a toehold that gives them a foot in the door, it gives them something to hang a warrant on for example. It just gives them an entree into your community in a way that makes you more vulnerable. And so, you know, when when we’re saying, well, “Nobody talks, everybody walks,” the less information the State has, the less effective they will be at intruding into your community, at manufacturing allegations of unlawful conduct of fabricating, you know, conspiracy charges. There’s all kinds of ways that federal prosecutions can emerge. I mean, I would say, it’s important to recognize the way that State repression is used against vulnerable communities generally. A few years ago, there was this really horrific conspiracy prosecution that involved over 100 people in the Bronx. And, you know, there was a guy who ended up in federal prison because the evidence that he was part of this conspiracy was that he waved to somebody at the bodega.

Margaret 28:38
Oh, God.

Mo 28:38
You know, so when we’re talking about, is it protecting our communities? I’m not suggesting that, that there’s a conspiracy to hide. It’s that…or that there’s even unlawful behavior to hide or to conceal. It’s just that it is very disturbingly easy for federal law enforcement to sort of manufacture charges and allegations out of whole cloth that can just devastate a community, you know, with long term consequences. So, not handing over information to federal prosecutors or law enforcement of any kind even if you think the information is harmless, or even if you think the information serves to demonstrate your innocence. Any amount of information that’s given to federal law enforcement is dangerous to you, and it’s dangerous to your community.

Margaret 29:46
So, if you get subpoenaed or you suspect you might be subpoenaed. I’m under the impression that because the subpoena is not a warrant, that It’s not illegal to…to not get subpoenaed, to avoid being subpoenaed. Is this is this true?

Mo 30:09
It’s not…I mean, I know what you’re trying to say it’s not…you’re not going to get like arrested for avoiding service of a subpoena,

Margaret 30:19
Right? Which means you think they might come to your door, just don’t answer the door or don’t be there? Not saying that this is the strategy everyone should take, obviously. But, I’m curious…because this whole thing is so anonamalous, a nominal…is out of the ordinary. It…I’m under the impression that there’s like, a lot of history of people…like it’s a weird…I’m under the impression is a gray area where you’re kind of like allowed to go on the run. Like, it’s not illegal to flee a subpoena. It would be illegal to flee after you’ve been subpoenaed is my impression. I’m not telling people what to do. I’m just merely… it’s a very interesting part of this whole thing from my point of view,

Mo 30:59
It’s not necessarily exactly illegal. You could be arrested on what’s called a “Material Witness Order.” Because you haven’t, you’re not being accused of a crime. Right? So running isn’t exactly illegal. There are examples of people going underground to avoid subpoena. I’m not sure it’s…you know, I wouldn’t advise somebody to do it as a lawyer. But, you know, I would tell them what the potential consequences might be. But, largely the consequences would be a lot of discomfort and instability, I think. And if you, you know, I guess it sort of depends on what kind of resources you have, if you feel like you want to, if you want to go underground in order to avoid a subpoena, and you think that’s going to be easier than getting a movement lawyer to fight the subpoena. Or, you know, I think it would be very disruptive at one way or another, you are going to get a subpoena. It’s going to be disruptive. So I guess, pick your poison.

Margaret 32:06
Fair enough. I just, I kind of want to go through, like, what happens if you get a subpoena? And you know, obviously, or if you believe you might get subpoenaed. And so when I imagine the flowchart, like, yeah, one of the options is if you’re aware that you might be subpoenaed, and you want to disrupt your own life dramatically…

Mo 32:25

Margaret 32:26
And it’s basically a way of LARPing undergrounder because you’d like on the run from the law, but you’re not breaking the law to go underground.

Mo 32:34
I don’t know if you can LARP underground. I don’t know if you can learn being underground. You…because even if you’re being underground…

Margaret 32:44

Mo 32:45
Because you have a delusion that you might be subpoenaed, you’re still going to be really uncomfortable.

Margaret 32:52
That’s true. Yep. Okay,

Mo 32:55
The consequences are still going to be real.

Margaret 32:57

Mo 32:58
But sure, one of the…one of your, one of the options available to you is to go underground. And then another option that’s available to you is to call an attorney. I’m gonna give you the hotline number, the National Lawyers Guild, federal defense hotline is (212) 679-2811. And if you call that hotline, you will get me, and you can have a privileged, confidential, and secure conversation about your rights, risks and responsibilities. And I will do my very best to connect you with appropriate legal resources in your jurisdiction. And that’s a better idea, in my opinion then going underground, but I am not the person who’s looking at subpoena. So that is a choice that you get to make.

Margaret 33:53
Yeah, I’m not advocating here. I’m just like, you know, laying out options to people.

Mo 34:00
It is an option.

Margaret 34:01
Okay. Okay. So if you get the subpoena, and you decide to fight it, and they call you, what next?

Mo 34:08
I’ll take a look at the subpoena, or your attorney will. Your attorney will take a look at the subpoena. They will call the prosecutor who issued the subpoena. Typically, they’ll ask for some time to postpone the date of appearance so that they can put together some legal arguments and try to have the subpoena quashed, which as I said before means nullified or withdrawn. They try to look for some way in which the subpoena is unenforceable or invalid. And that can be on the grounds again of the First Amendment. Like, “This subpoena intrudes into First Amendment protected behavior. The subpoena is a Fourth Amendment violation,” or “We believe that it that the subpoena was issued on the basis of evidence that was illegally obtained by the prosecution.” Or, “This subpoena in some way violates the Sixth Amendment,” or, very commonly, “This subpoena violates the Fifth Amendment and testifying in front of this Grand Jury would expose the witness to criminal liability.” So, you make all of those arguments. If the federal prosecutor really wants you to give testimony, what they will very frequently do is approach the federal government or they’ll approach the Department Of Justice and ask for what’s called an “Immunity Order”, which undermines your right against compelled self-incrimination, because it involves a promise not to prosecute you. And so, the idea is that they can then compel your testimony, because nothing you say could be self-incriminating,

Margaret 35:55
Right. But it’s still incriminates everyone else you know, and…

Mo 35:59
That’s right.

Margaret 36:00
Which could lead to them…

Mo 36:00
And probably still yourself anyway.

Margaret 36:02
Right, because then if they get someone else to talk, they could talk about you, and then their testimony can be used against you.

Mo 36:08
And your own testimony can be used against you, it just isn’t quite as straightforward as it might otherwise be.

Margaret 36:13
Oh, cool. Okay.

Mo 36:14
No, Immunity Orders are not meaningful in the way that the government would like to have you believe. So, you know, honestly, testifying before a federal Grand Jury really does…I can’t emphasize how dangerous it is, it really does expose you and anyone else, you know, to criminal liability, even if you haven’t done anything unlawful, because this is really a situation where your innocence will not protect you. And very often, especially if we’re talking about the sort of world of “conspiracy”, the very fact that you might be perceived to have information in itself can be parlayed into evidence of culpability. You know, there’s there’s just a lot of ways in which giving testimony before a federal Grand Jury is very dangerous, and really exposes you and anyone, you know, to criminal liability. And it also perpetuates the cycle of more Grand Jury subpoenas being issued,

Margaret 37:31
Right. Because they know it works.

Mo 37:34
Well. Because, if one person responds and goes before the federal Grand Jury, and are asked who was at the anarchist meeting in 1998, and then says, “Oh, I think, you know, Jose, Joseph and Joe, were all there.” Then Jose Joseph and Joe will get supoenas.

Margaret 37:55
You know this is a public show, though, right? You just used their names…

Mo 37:59
Oh. Hahah.

Margaret 37:59
And I really like interrupting you with jokes, because I feel like a jerk every time I do it. Anyway, I’m sorry. Please continue.

Mo 38:12
I love you very much.

Margaret 38:13

Mo 38:18
Yeah, it perpetuates a cycle of more subpoenas being issued, because anybody who says anything, the prosecutor then takes anything they’ve said, and you know anybody’s name who comes up gets, then that that person gets a subpoena. They also, you know, the more information you give them, the more that they can figure out how to target people who feel isolated and vulnerable, and who are more likely to cooperate, right. So if you…and just to be clear, what the federal government perceives as like “vulnerabilities and weaknesses” are not necessarily things that are vulnerabilities and weaknesses. So for example, they may target people who have children, believing that, you know, someone who has a child will be more willing to cooperate with the federal government, then to potentially risk prison time for a refusal to cooperate. They might target someone who’s gender non conforming, you know, on the belief that, you know, a trans person would be less likely to be able to like tolerate the idea of going to prison. They might target someone who has mental health issues, or who has a lot of friction in their community. The belief that a person who has…who’s sort of fighting with other people in their community will have an incentive to, I guess, to talk shit about those people, and to give them up and to give the government information. I think the federal government thinks we’re a lot less organized and a lot more petty than we are. And, I think the federal government thinks that we have a lot less courage than we have. But yeah.

Margaret 40:12
I mean, it’s one of the reasons that Grand Juries are scary, right, is that it’s one of the things where, as you said earlier, like “Innocence will not protect you,” you know, like, there is a level of risk just being socially engaged in activist movements, right, and so, you know what, whether or not you…what…whether or not you like do crimes, doesn’t necessarily, like affect the degree to which this particular threat might threaten you?

Mo 40:47
Yeah, I mean, I think this is the point where, you know, to return to the story of what happened to Jerry, right? Nobody ever said that Jerry knew anything about the Bicycle Bombing. Nobody ever said Jerry was involved in the Bicycle Bombing. The claim that was made is that he might have been present when a couple of other people were having a casual conversation about it.

Margaret 41:11

Mo 41:12
Which is, you know, one of the reasons that we say like, “Don’t speculate. Don’t make jokes. Don’t brag,” right? Like, because you’re not just exposing yourself to liability. You’re exposing anyone who hears you, or who is believed to have heard you to a Grand Jury subpoena, which if they’re a principled person means exposing them to prison time,

Margaret 41:41
Right. When when Grand Jury stuff hit closer to me, and it started affecting more my friends, and you know, when Jerry went to jail and stuff it, you know, sort of selfishly scared me. I had nothing to do with any of that stuff. I wasn’t living in New York, any of that. But just that realization, my that my like, non crime-ness is not enough to keep me safe or whatever. But then, I guess I’m trying to, like, offer this, like note of courage or hope, I guess, which is my legal strategy is hope. But, that’s not true.

Mo 42:16
When you say it like that, it actually sounds reasonable, though.

Margaret 42:19
Well, okay. But so the one of the things that I remember when we were working on on Jerry’s campaign, was there’s this flowchart of Grand Juries, right? And what can happen to you at each stage. And the end result of that is freedom.

Mo 42:38

Margaret 42:39
Like, the degree to which it sucks before then varies. But, the the end result is that you’re out and you’re back with people, and everyone knows that you’re fucking badass and have their backs. And, and, and I feel like that’s a useful thing that like, I hold on to, and that I think other people. I mean…

Mo 43:02
That’s true. I think that’s true. You know, there…it is finite. There’s a few really unusual cases where someone has been charged with instead of Civil Contempt, Criminal Contempt. There are, you know, a few very, very specific instances where, you know, really post 9/11 people who were alleged to have been involved in, quote, “terrorism,” have done very serious prison time on Criminal Contempt for refusing to cooperate with a Grand Jury. But typically, what we’re looking at is a maximum of 18 months, which doesn’t have no lasting consequences.

Margaret 43:51
Oh, yeah.

Mo 43:51
But, but it is finite.

Margaret 43:54

Mo 43:55
You know, I mean, one of the things about Grand Juries for…in terms of resisting as a community, is that federal Grand Juries are secret, right? No one can talk about what happens in the Grand Jury room, with one significant exception, which is the witness. The witness can disclose that they’ve been subpoenaed. The witness can say what they said or what they didn’t say. They can say what they were asked. And the power of the federal Grand Jury really does very much lie in its secrecy. You know, I said, there’s no judge there. There’s no defense attorney there. I think even more importantly, there’s no public there. Right? And so it functions to isolate the witness. It functions or it is intended to function to isolate the witness. But the fact is, you know, one of the things that, as you know, Jerry did was he stood out on the courthouse steps and he made a statement and he said, “I’ve been subpoenaed. This is what I think they want to ask me about. I’m not going to talk to them about it.” He went into the Grand Jury room, he came out and disclosed what he had been asked very publicly, you know, he made a bunch of statements about his commitment to principle, and people really rallied around him. And that really served to undermine that terrifying power of secrecy, just by making that process more transparent.

Margaret 45:34
Yeah. Well, are there any final thoughts about Grand Juries that you want to want to offer the audience? Or did we miss anything major?

Mo 45:46
So, you know, we were just talking about how, you know, in Jerry’s case, and in many other cases, I’ve, I’ve litigated, the witness has been very public about their experience with the Grand Jury with the subpoena with litigation. And this is socially useful and politically useful. I will, I’d like to let your audience also know, it’s legally very useful, because at the end of this process, when you’re trying to demonstrate to a judge that your client is in-coercible, that they, that the incarceration that has been imposed upon them in order to coerce them, isn’t working, and is therefore punitive, but since they haven’t been given any due process, they’re not allowed to be punished and should therefore be released. The evidence that you put before the judge is evidence of the witness’s articulated moral conviction, their psychological makeup, and all of these social incentives that have not wavered or changed over, you know, some not insignificant period of confinement. So, all of those sorts of public statements, and, and those acts of silence before the Grand Jury, those are, in fact, the substantive evidence that will hopefully serve to win their freedom.

Margaret 47:09

Mo 47:11
And in fact, one part of the evidence is social support. So the more you can educate your community about what a Grand Jury is, why they’re dangerous to the community, and really help people to rally around, it sort of…showing that kind of community support, also functions to help the judge understand that it would truly be a loss, a moral loss for the witness at this point to disappoint all these, all these supporters. I want to reiterate sort of the consequences of cooperation with a Grand Jury, because, you know, being confined in a federal prison is terrible, and, and frightening and hugely disruptive. So, you know, I think there are a lot of incentives for people to cooperate. But I think people really need to understand that the consequences of cooperation don’t just include snitching about criminal conduct. It includes disclosing information about people and movements, that is totally unrelated to illegal behavior, but can be compromising in other ways that aren’t any of the State’s business that can cause internal conflict in movements, can chill other people’s commitment to movements, their willingness to participate in movements. And, of course, the, you know, the consequence that I keep talking about is the witness themself ending up in prison, which, you know, if you are convicted of a federal criminal offense, as opposed to being civilly confined, because you’re refusing to cooperate with a Grand Jury, the sentencing guidelines for federal offenses are typically way longer than 18 months. So you know, when we’re talking about going in for being a recalcitrant witness, and saying, I’m not going to cooperate with a federal Grand Jury, it is truly finite, which is may or may not be the case, if you end up incriminating yourself or somehow exposing yourself to criminal liability. And then you’re looking at a much longer sentence that, you know, that is punitive. And that that is going to last a lot longer than 18 months likely.

Margaret 49:38
So it’s kind of a parallel to the whole like, “Shut the fuck up when you’re arrested thing,” where like, all right, you’re going to jail and the difference is whether you’re going to jail, like for a couple of days or you know, for a long ass time.

Mo 49:53
Right. I mean, I again, I cannot advise someone not to cooperate with a Grand Jury. That’s not my role, it would be unethical for me to do that. But what I can do and what my job is to do is to make clear what all the various consequences might be…

Margaret 50:15

Mo 50:16
Of cooperation, or non cooperation. And I’m not going to, I’m not gonna lie, like, if you’re subpoenaed before a federal Grand Jury, and it’s at all politically motivated, you know, there is a long history of federal Grand Jury abuse in this country that goes back to, you know, prosecuting abolitionists for sedition, and continues through the labor movement, and the 19th century anarchist movement, and the Women’s Rights movement and anti-war stuff, and Black Panthers and environmental stuff and the Green Scare. It’s a pretty strong through line of using the federal Grand Jury to disrupt, drain, distract, and repress social movements.

Margaret 51:07

Mo 51:09
And one of the reasons that Grand Jury subpoenas are such a powerful tool is that the government’s basically always going to get something that they want, right, they might not get to put all of you in prison, but you know, they’re gonna get something. Either they’re gonna get the information they want, which has sort of the added consequence of disrupting a whole community, because everyone’s afraid. And there are indictments and convictions. Or they can get someone to cooperate and catch them in a perjury trap, and then exploit that person for more information by agreeing not to prosecute them for the perjury, or they can subpoena someone that they absolutely know, for a fact will not cooperate. And then they can do what I would call “coercing Contempt of Court”, right? Because they’ve subpoenaed someone they know is going to…they can be held in Contempt. And then they exact a real cost from that witness, and from the whole community, and they’re draining the whole community of time and energy and resources, and distracting from the actual work that that community was trying to do in the first place.

Margaret 52:17

Mo 52:17
So, you know, I think your exhortation to hope is well taken. But, I also want to be very real about the fact that a Grand Jury subpoena, in and of itself, can be extremely disruptive. That said, I mean, we have been through this a bunch of times. We know how to support each other. We know how to endure the consequences of resistance. We also know how to endure the consequences of people betraying us in cooperating with Grand Juries. Right? And there’s people like me, there’s lawyers and legal workers and people like you, and people like Jerry, who is now both a former Grand Jury resistor and a lawyer.

Margaret 53:05
Yeah! That’s cool.

Mo 53:07
Yeah, I know, I couldn’t yell, any harder. There’s, you know, there’s a lot of people out there who have already been through this crucible.

Margaret 53:16

Mo 53:18
You know, and like I said, there’s ways to protect each other from subpoena by observing good security hygiene.

Margaret 53:24
Yeah. It’s a…it’s a..it’s a…it’s a proud lineage to be part of, you know, if you need to hold on to something, like going through the like history of people who’ve been fucked over by Grand Juries. It’s like, you just like listing the high points of American history, you know, like…

Mo 53:43
No, I mean, you’re gonna be in good company.

Margaret 53:45

Mo 53:46
I mean, to be clear, not every federal Grand Jury is…I mean, every prosecution is political.

Margaret 53:52

Mo 53:53
But, not every Grand Jury investigation is explicitly motivated by political animus against the person who’s being investigated.

Margaret 54:02

Mo 54:03
But there is, you know, there is a very well documented history of the federal government just using Grand Jury subpoenas to gather information to disrupt, to, to criminalize people who haven’t actually done anything unlawful to criminalize people who are doing something that is unlawful, but just.

Margaret 54:28
All right. Well, if people want to know more about Grand Juries, is there any resources you could point them to? Or?

Mo 54:35
No, there’s no resources, sorry.

Margaret 54:37
Okay. Wait…are you doing dry sarcasm back at me? I’m supposed to do the dry sarcasm.

Mo 54:44
Sorry. No, there are there are resources. There are some zines out there that I think are pretty good. There’s one that we put together during Standing Rock. There’s…actually, oh no, that’s on jury nullification. There’s a really great–this is off topic so you can totally feel free to cut it–there’s a really great scene on jury nullification that was written and illustrated by the guy who wrote “Go The Fuck To Sleep.”

Margaret 55:10
Oh, that rules. We’re gonna keep that in. Okay, cool.

Mo 55:13
Anyway, yeah, there’s like there’s good zines. There’s a–I think it still exists now I gotta google it…Oh well, the CLDC, the Civil Liberties Defense Center, and Lauren Regan have a Grand Jury brochure that’s good. Oh, and then here it is the Grand Jury Resistance Project. I think this is what it is. This is at GrandJuryResistance.org. And CLDC.org has a brochure about about Grand Juries. There’s also some information from…there’s a really great resource that is on SparrowMedia.net. That is a letter that Chelsea Manning wrote to the judge in that case when I was representing her, that goes through sort of the history of Grand Juries in the United States and internationally. And I think it’s, if I say so myself, it’s a really thorough and really compelling letter. And, I think it was really helpful in educating the judge about, you know, what her reasons were at least, for refusing to participate in the federal Grand Jury system, and what her objections were. So if anyone’s interested in that again, that’s at SparrowMedia.net. And, they have a search function.

Margaret 56:33

Mo 56:33
And it was the letter that Chelsea Manning wrote to Judge Trenga at some point when we were trying to get her out.

Margaret 56:42
Okay, well, thank you so much for taking time out to tell everyone about this terrible thing.

Mo 56:49
My pleasure?

Margaret 56:52
Do you have any anything else that you want to shout out or ways that people should or shouldn’t reach you or anything you want to promote?

Mo 56:57
Yeah, I would, I would just like to remind people that there’s really never any reason to talk to police officers of any kind. Certainly not prior to consulting an attorney. If cops knock on your door, tell them you are represented by counsel, and to leave their name and number and your lawyer will call them back. Feel free to call me at the National Lawyers Guild Federal Defense Hotline at (212) 679-2811. And just remember, if you are arrested to say, “I am going to remain silent, and I want to speak to a lawyer,” and then actually remain silent.

Margaret 57:41
Sounds good. All right. Well, thank you so much.

Mo 57:45
You’re very welcome.

Margaret 57:51
Thank you so much for listening. I hope you never need the information that was in this week’s episode. But, I feel like it’s worth having in your back pocket just in case, like a lot of preparedness. And see this is a preparedness episode, you all were like, “The fuck have to do preparedness?’ Well, we want to be prepared for a lot of different threat models. So if you enjoyed this episode, you should tell people about it. You can tell people about it in person. And you can tell people about it on the internet. And you can tell algorithms about it by liking and subscribing and rating and reviewing and all that nonsense that tells robots what to do. And you can also support this podcast by supporting the people who helped make, which it just not just me anymore, it’s a whole team of people working at a publisher that I’m part of, an anarchist collective publisher, called a Strangers In A Tangled Wilderness. And if you support us on Patreon, you’ll get access to…well, you won’t get access to a ton of like unique content. But, what instead is you’ll support us making content. And then if you support us $10 A month you’ll get a zine in the mail every month, and anywhere in the world. In particular, I would like to thank Mikki, and Nicole, David, Dana, Chelsea, Staro, Jenipher Eleanor, Natalie Kirk, Micaiah, Nora, Sam, Chris, and Hoss the dog. Your support makes this show and so many other projects possible. Alright, well that’s it for now. And I will talk, I guess “at” you soon, not really “to” you because it’s kind of a one way communication media, which is kind of weird, but it is what it is. I hope you all are doing as well as you can with everything that’s going on.

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