Toward a Fuller Discussion of Grand Jury Resistance

A couple years ago, I asked people to pause before branding as a cooperator a person who gave pre-scripted testimony to a grand jury after a exhausting her legal options. (http://www.indybay.org/newsitems/2012/11/09/18725393.php) Although some people construed my piece as advocating “partial cooperation,” I have never uttered those words except to disclaim them. Instead, I’ve spent hundreds of unpaid hours representing grand jury resisters or pairing them with other lawyers, coordinating joint defenses, advising colleagues how to give legal expression to their clients’ principled resistance, drafting and sharing motions, assisting with appeals, petitioning to open proceedings and unseal records, developing printed materials, and inveighing against the malignant grand jury system.

Perhaps I made a mistake in vouching for a person who had not debriefed to the community after testifying. I took that chance to protect her from denunciation, knowing her circumstances to be more nuanced than the term “cooperator” usually conveys, and because I hate seeing the government succeed in dividing activists. My aim was to spark deeper discussion in order to encourage more informed and effective resistance.

There are many good reasons to sound the clarion note of non-cooperation. It galvanizes resistance, honors the sacrifices of those jailed for contempt, keeps things straightforward, and is rooted in the critical fact that even innocuous sounding questions/answers can lead to harmful results. But other truths impinge on this ideal framework: Ostracizing every person who enters the grand jury chamber has personal, social, and security costs of its own. It creates rifts, spreads alienation, siphons resources, and serves the FBI’s political ends.

People might reasonably conclude there is no middle ground between cooperation and non-cooperation, and that everyone who testifies a peep must be shunned. But while some people have arrived at this conclusion deliberatively, others have only grabbed it out of the air of tough talk. Leftists certainly haven’t coalesced around this view. Some strategies still call on the witness to confer with their lawyer after each substantive question, and/or draw the line at answering questions about other people – approaches which presume an appearance (aka a form of cooperation) but nevertheless provide a return path to respectability. If these decades-old practices have been repudiated in favor of pure non-compliance, this has happened by rebuke rather than discussion, and not everyone has been informed.

Even if there’s no middle ground between resisting and testifying, there’s still a troubling grayness to the inconsistent ways activists treat comrades who speak to authorities. The person intimidated into answering questions on their doorstep may get a sympathetic pass, while the person who exhausts all legal avenues before repeating the words “I don’t know” to a grand jury is made a permanent pariah. Debriefing after testifying can assuage community concerns and fulfill a sort of social contract, but it is not a completely reliable form of accountability. A person chagrinned by their testimony may shade it in retelling it, with no transcript to cross-reference. The degree to which the debrief is accepted, or a person who speaks to authorities is welcomed back into the community, often seems to depend on their popularity and standing going in.

Whichever best practices activists decide upon, they should get there by detailed analysis. Activists and lawyers can check each other’s fantasy notions and keep each other grounded on important considerations. My job as a lawyer is to translate the rhetoric of non-cooperation into practical, legal resistance, in many and varied circumstances, over ever shifting terrain. This is not to disparage the bugles of defiance, which set a high note and rally people well. But rhetoric untethered to reality is just hot air escaping.

The practical conundrum is this: While activists should be able to submit security demands on one another, there will always be something unfair – and unrealistic – about imposing a duty of resistance on people who did not participate in an action or its planning, did not agree to risk freedom, finances, or time, and who, if consulted, might have disagreed with the tactics chosen. But the grand jury system is designed to exploit this disconnect by foregrounding investigations on background people, including housemates, coworkers, and dormant activists who might be pursuing other paths, such as education, career, or family, and who might have any number of special needs, and by imposing on them an ironclad duty to talk.

Whether and to what extent it’s reasonable to expect such people to form the front line of grand jury resistance, it should at least follow that activists have corollary responsibilities, including to consider: the broad consequences and effectiveness of their actions; who might be left holding the bag if they don’t get caught; how to elevate people’s resistance levels by addressing their needs for actual support (rather than just heaping Pavlovian praise or scorn on them); and generally to take the trouble to examine these complex issues in all of their dimension.