How To Prepare a Client for a Federal Grand Jury

Three former senior Department of Justice antitrust attorneys gave a behind-the-scenes look at the federal grand jury strategy in a program sponsored by the New York State Bar Association.

The panelists have decades of experience as antitrust enforcers in the Washington and New York divisions of the Department of Justice. Now in private practice, they offered practical advice for defense attorneys helping their clients prepare for federal grand jury testimony.

“The grand jury is universally considered the most powerful tool federal prosecutors have at their disposal to investigate cases,” said Ryan Tansey, former chief of division in the Washington criminal section of the Department of Justice.

The federal grand jury, like its state counterpart, is a secret proceeding. Defense attorneys cannot be present, so extensive preparation is important. The first step for attorneys following the delivery of a federal grand jury subpoena is to contact the government attorney. Ask if the government is willing to do the interview outside of the grand jury, what the line of questioning will be and how documents will be displayed.

“Once you understand the basics of what the government wants from your client and where they fit in, then you can make a determination as to whether you want to invoke [your client’s right to not to speak under the 5th amendment against self-incrimination] or whether you think it’s appropriate for your client to testify before the grand jury,” said Sean Farrell.

Farrell, the former antitrust division chief in the New York office, also encourages defense attorneys to ask if the trial attorney is willing to prep your client for the grand jury. If the trial attorney agrees, Farrell says it’s a good idea to accept the invitation. If the government declines, Farrell says it’s a clear indication that the client is a “lock-in” witness.

“A lock-in witness is someone who can expect to be cross examined, someone the government wants to go in cold. They don’t want your client to know what questions will be posed, they don’t want you to know what documents the witness is going to show and that gives you a lot of helpful information about what sort of session to expect,” Farrell said.

Types of Immunity

The panelist detailed three types of immunity offered by the government to witnesses: transactional immunity, court ordered immunity and pocket immunity. Transactional immunity is an agreement for information in lieu of prosecution. Court ordered immunity compels a witness to testify in which they cannot assert 5th Amendment rights. The government then cannot use that testimony to later prosecute the witness.

“In my experience getting the court ordered immunity is really a last-ditch effort, a signal that you’ve exhausted other options from the government’s perspective,” said Ryan Danks, a veteran of the criminal antitrust section in the Washington office of the Department of Justice. “You still need the testimony from this person and it’s a calculated risk.”

Pocket immunity is a court ordered immunity agreement that the prosecution keeps hidden. If a witness pleads the fifth, a prosecutor pulls out the order to compel the witness to testify when they are unprepared. Ryan Tansey admonished defense attorneys to be ready for this and always have a witness prepared.

“Pocket Immunity is something that any defense attorney who’s representing a grand jury witness should be aware of,” Tansey said. “It’s a pretty big risk, even if [your client] is going to take the fifth, to send them in cold or unprepared.”

Types of Witnesses

The panel detailed three categories of witnesses in federal investigations: the witness, the subject and the target. A witness has relevant information pertaining to a government investigation while a subject is a player within the scope of the investigation. Considered the most common witness designation, being named a subject indicates there is a possibility of evidence of wrongdoing. Lastly, the target is designated for a witness where there is evidence that links that individual to a crime.

“These designations are fluid,” Farrell said. “They will subpoena people while still doing the investigation and things may change.”

If your client is the subject of both a civil and a criminal anti-trust investigation, you may receive a warning from the Department of Justice.

“One thing the division started doing on the civil side in 2020 is offering a written warning,” Danks said. “Now this is part of the division’s standard practice in civil cases.”

The panel also detailed the Department of Justice’s whistleblower program and updates to its leniency program. The event was sponsored by the Cartel and Criminal Practice Committee of the Antitrust Law Section of the New York State Bar Association.