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I have recently heard Tara Reade (who had accused US president Joseph Biden of sexual attack several decades ago) say, that there has been a sealed indictment against her, for the past 3 years (2020-2023), following some kind of grand jury procedure.

Assuming that is possible (regardless of whether it's actually true or not) - what is the legal basis of doing this? That is, what legislation allows for prosecutors or juries to avoid publication indictments of individuals for significant periods of time? And has this power even been challenged constitutionally?

More specifically, has such process been recognized as "due" in context of the Fifth amendment to the US constitution?:

No person shall ... be deprived of life, liberty, or property, without due process of law.

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    This begs the question; was she (and others with sealed indictments) deprived of life, liberty, or property.
    – user35069
    Commented Jun 9, 2023 at 10:55
  • @Rick: That's not the question... an indictment, if accepted by a judge or a jury, results in punishment, which is a deprivation of life, liberty or property. If the process leading to this deprivation is not due, then supposedly the deprivation is forbidden. So, sure, if a sealed indictment is never filed, then no problem, but that's a case of a "tree falling in the woods".
    – einpoklum
    Commented Jun 9, 2023 at 11:59
  • @einsupportsModeratorStrike before anyone can be deprived of life, liberty, or property as the result of a sealed indictment, the indictment will be unsealed and the person arrested and tried in open court. The sealed indictment itself is a tree falling in the woods.
    – phoog
    Commented Jun 10, 2023 at 8:58
  • @phoog: The fact the such deprivation happens after the unsealing (which is in itself not true, but never mind) is insubstantial. It's not a tree falling in the woods if it falls near an audio recorder which is later played. If the indictee is informed, they can act, whether it is getting the indictment cancelled, fleeing, seeking legal advice, or even just meditating to lessen the psychological trauma of the ordeal. Due process is not about what happens at the time of deprivation, of just before it - it is the entire process that must be due.
    – einpoklum
    Commented Jun 10, 2023 at 9:21
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    @einsupportsModeratorStrike if any of that deprived him of some right without due process, it was the spying, not the indictment.
    – phoog
    Commented Jun 10, 2023 at 20:19

3 Answers 3

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An indictment is not the deprivation of liberty.

An indictment is actually part of the due process of law that is guaranteed in the Constitution. Deprivation of liberty means incarceration. The processes that are generally part of incarceration are the initial court hearings after arrest and the trials to gain conviction for offenses.

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  • The indictment is also part of the due process that may lead to incarceration, and keeping it secret (to avoid reputational damage or compromising the investigation or related investigations) is part of the process, too.
    – phoog
    Commented Jun 10, 2023 at 8:55
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The purpose of the grand jury system is to ensure that innocent people don't have their names dragged through the mud by the mere fact of being accused of a crime. The US founding fathers were concerned that the government could announce that, say, they were indicting ein for murder, let that accusation ruin your reputation by being reported in papers, and later withdraw the charges when it turned out there was no evidence. The accusation would still sully your reputation.

The grand jury system avoids that by forcing the prosecutor to lay out their evidence to the grand jury in secret. These proceedings are sealed so that your reputation isn't damaged if the grand jury declines to indict. If the grand jury does choose to indict, that indictment stays sealed until the prosecutor makes it public.

Prosecutors may keep indictments sealed for many reasons. But in the case of large, long-running investigations, the most common reason is so that they can unseal indictments against a number of people at once. If you're investigating an organized crime family, for example, you might develop evidence against Little Fish first, go to the grand jury, and indict him. With that sealed indictment, you might convince Little Fish to turn state's evidence and implicate Medium Fish. You go to the grand jury and secure an indictment against Medium Fish and leverage that, eventually, to indict the Big Fish you're after. At the end, you unseal all the indictments at once and arrest everyone. If the indictments were made public immediately, it would be a major tip-off to the organized crime family that investigators were closing in on Big Fish.

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  • That would all make sense if the indictee were also informed, personally rather than through a public announcement. Hiding the indictment from the indictee as well cannot be justified by a "not dragging through the mud" argument, making that aspect incidental to the heart of the matter, which is secret repressive acts by the state (even if preliminary ones).
    – einpoklum
    Commented Jun 9, 2023 at 19:15
  • Also, in your example - the indictment is not sealed, it is revealed to Little Fish. Or - perhaps I'm misunderstanding, and the sealed indictment must also be handed to the indictee after all?
    – einpoklum
    Commented Jun 9, 2023 at 19:16
  • @einsupportsModeratorStrike - Getting a grand jury indictment is not a repressive act though. There is no potential for the subject of a sealed indictment to be repressed until the indictment is revealed. Forcing indictments to be made public would undermine the government's ability to investigate crime-- there may be many Little Fish and Medium Fish that are indicted, prosecutors would approach a small subset of those about turning state's evidence. Some would flee the jurisdiction before they could be arrested, others would warn their organization. Commented Jun 9, 2023 at 19:26
  • "No potential"? Tell that to Julian Assange. Or to Reade, for that matter. Your being indicted tempts the government to act against you in various ways, while you cannot defend yourself.
    – einpoklum
    Commented Jun 9, 2023 at 19:40
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    @einsupportsModeratorStrike - The existence or non-existence of a sealed indictment has no impact on the ability of the government to investigate you. And knowing that there is a sealed indictment does nothing to allow you to defend yourself. The government was free to investigate Mr. Assange before he was indicted. They were free to investigate him after an indictment was returned. They were free to investigate him after the indictment was unsealed. Mr. Assange remained free to advocate for his position regardless of the presence or absence of an indictment. Commented Jun 9, 2023 at 19:59
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Grand jury proceedings and statements are sealed in their initial state, for example you can't go listen in on the hearing. At some point a legal document may be produced, and filed with the court: they are sealed, unless they are unsealed. Here is a motion to unseal an indictment, and here is a motion to seal an indictment. You will notice that in both cases the US attorney simply says "we request that the indictment be (un)sealed". FRCP 6 requires secrecy, see (e)(3) for the "exceptions". Essentially, secrecy is in the nature of the grand jury process, which does not determine guilt, it only determines if there is enough evidence to formally charge. It is a filtering tool that decides if there is probable cause for an arrest.

Public records laws all have exceptions built in for various purposes, one of them being that secret court records are not subject to otherwise mandatory release. There are no clauses to the effect that a secret record must be released after a particular period of time (this is distinct from declassification).

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  • So, FRCP 6 is the "how". But - how is this constitutional? I don't know many legal systems, but I've not heard of another one other than the US which has sealed indictments.
    – einpoklum
    Commented Jun 9, 2023 at 15:12
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    One reason is that you also haven't heard of many jurisdictions with grand juries – Liberia is the other one. Grand juries aren't even required in other countries, not even England where they originated. How would it be constitutionally required that grand jury proceedings (or trial jury proceedings / deliberation) be publicly available?
    – user6726
    Commented Jun 9, 2023 at 15:18
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    @einsupportsModeratorStrike which other indictments did you have in mind?
    – phoog
    Commented Jun 10, 2023 at 20:21
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    @einsupportsModeratorStrike Not only is it constitutional, it is constitutionally required in the federal courts and in about half of the state court systems in the U.S. (and in Liberia). Every single court system that does now or has ever used a grand jury system seals indictments until the prosecutor files them with the court. It is a core feature of the concept of a grand jury.
    – ohwilleke
    Commented Jun 10, 2023 at 21:36
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    @einsupportsModeratorStrike The constitution has generally been interpreted to apply concepts as they were understood at the time the U.S. Constitution was adopted, e.g., with respect to the right to a jury trial and grand jury concepts.
    – ohwilleke
    Commented Jun 11, 2023 at 18:12

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