united-states due-process grand-jury indictment constitutional-rights
How (and how come) are US state/federal prosecutors allowed to seal indictments?
<p>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.</p>
<p>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?</p>
<p>More specifically, has such process been recognized as &quot;due&quot; in context of the Fifth amendment to the US constitution?:</p>
<blockquote>
<p>No person shall ... be deprived of life, liberty, or property, without due process of law.</p>
</blockquote>

<h3>An indictment is not the deprivation of liberty.</h3>
<p>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.</p>

<p>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.</p>
<p>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.</p>
<p>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.</p>

<p><a href="https://www.justice.gov/usao/justice-101/charging" rel="nofollow noreferrer">Grand jury proceedings and statements</a> 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: <a href="https://www.mdd.uscourts.gov/content/sealed-criminal-document-procedures" rel="nofollow noreferrer">they are sealed,</a> unless they are unsealed. <a href="https://www.justice.gov/atr/case-document/file/986336/download" rel="nofollow noreferrer">Here</a> is a motion to unseal an indictment, and here is a <a href="https://www.justice.gov/opa/page/file/1037496/download" rel="nofollow noreferrer">motion to seal</a> an indictment. You will notice that in both cases the US attorney simply says &quot;we request that the indictment be (un)sealed&quot;. <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6" rel="nofollow noreferrer">FRCP 6</a> requires secrecy, see (e)(3) for the &quot;exceptions&quot;. 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.</p>
<p>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).</p>
