Wednesday, March 07, 2018

The Grand Jury and Sam Nunberg


Copyright © 2018 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

On Monday, March 5 an obscure New York attorney named Sam Nunberg got his 15 minutes of fame. Apparently Nunberg, whom I’d never heard of before, was involved in Donald Trump’s Presidential campaign in its early days, before Trump took command of U.S. politics with his spectacular June 2015 announcement that he was running on a platform of deporting “illegal” immigrants and building a wall between the U.S. and Mexico because all, or nearly all, Mexican immigrants were murderers and rapists.
Nunberg didn’t last long in the Trump campaign — he seems to have left it in September 2015 — but the ever-widening net of Robert Mueller’s special-counsel investigation into whether the Russian government tried to interfere with the 2016 U.S. elections and Trump’s people helped them snagged him recently. First he met with Federal Bureau of Investigation (FBI) agents detailed to Mueller’s investigation and gave them good reviews in his Twitter posts afterwards. But whatever he told the FBI wasn’t good enough for Mueller; the special counsel slapped him with a grand jury subpoena.
This time Nunberg went ballistic. Told that the subpoena would require him not only to show up to testify before the grand jury on March 9 but to produce a huge list of documents, including e-mails between him and his friend and mentor Roger Stone, Nunberg spent March 5 going from cable news show to cable news show telling hosts of all ideological persuasions that he had no intention of testifying or producing anything.
Told by the first people who interviewed him, a reporting team from the Washington Post, that he could go to jail if he refused to appear before the grand jury, Nunberg replied, “Let him arrest me.” In later interviews he said he would “laugh” if Mueller tried to incarcerate him for refusing to participate in a witch hunt, not so much against Donald Trump or his administration as against Roger Stone. He told cable hosts he believed Mueller was trying to ensnare Stone in a “perjury trap” and said he refused to be part of a process designed to entrap a close friend.
During his Wundertag on cable TV, Nunberg had some choice comments about President Trump. He said he suspected that Mueller has concluded that Trump “may have done something” illegal by accepting Russian help to boost his campaign and sabotage that of his principal opponent, Democrat Hillary Clinton. Even if Trump did nothing wrong, Nunberg added, he “caused this because he’s an idiot.”
Referencing a meeting Trump had with Russia’s foreign minister and U.S. ambassador in the Oval Office of the White House in 2017 the day after he fired FBI director James Comey — a meeting Trump kept secret from the American people, and which we only found out about because the Russians had a photographer there and released pictures — Nunberg said, “Who the hell advised him to allow those Russians in the Oval Office?”
Various commentators on MS-NBC the night of March 5 — including Ari Melber, the afternoon host who had actually done his network’s interviews with Nunberg — stressed that, despite Nunberg’s light-hearted manner, defying a grand jury subpoena is nothing to laugh at. The reason is that a federal grand jury has major — and, I think, quite horrific — powers to hurt people who refuse to appear before it.
Unlike a law-enforcement interview or a Congressional hearing, a grand jury appearance is secret. You can’t have an attorney in the room with you, though you can have one waiting for you outside. Since the grand jury’s purpose is merely to decide whether there’s enough evidence to indict someone for a crime and put them on trial, not determine guilt or innocence beyond a reasonable doubt (that’s the job of a trial jury, the so-called “petit jury” — the names “grand jury” and “petit jury” are from the French words for “big” and “little” and merely mean that a grand jury has more members than a trial jury), you don’t have the due-process rights you do in other legal proceedings.
If you refuse a subpoena to appear before a grand jury, or if you do appear but refuse to answer some of the prosecutor’s or the grand jury’s questions (unless you’re invoking your Fifth Amendment right to refuse to give evidence that may tend to incriminate you personally in a crime), you can be thrown in jail in the spot for contempt. A grand jury can have you incarcerated for up to 18 months if the prosecutor running the grand jury can get the judge supervising it to impose the penalty. Officially the theory is you’re not being punished; you’re simply being held until you give up your resistance and agree to talk. But even after the 18 months are over, if you still haven’t testified or answered all the grand jury’s questions, the prosecutor can ask the supervising judge to find you in contempt and sentence you to an additional six months.
There are further nasty things a sufficiently determined prosecutor and a grand jury can do to you if you don’t tell them what they want to. The reason for the 18-month limit on round one is that that’s the length of time a federal grand jury is supposed to be in office; once a grand jury’s time expires, their power to penalize you for not cooperating expires too. But that doesn’t let you off the hook because the prosecutor can request the appointment of a new grand jury, and that grand jury can subpoena you and ask you the same questions. If you again refuse, the 18-month time window they can put you in federal jail starts all over again. At least theoretically, a prosecutor could incarcerate someone for life just by continually convening new grand juries and hauling him or her before them until they either talk or spend the rest of their lives in federal jail.

The Grand Jury: Modern-Day Star Chamber

One of the MS-NBC commentators who talked about Nunberg’s interesting odyssey through cable TV news on March 5 justified this incredible degree of punitive power on the part of grand juries and the prosecutors and judges who work with them as justified on the old common-law concept that “a grand jury is entitled to every man’s evidence.” But ever since I encountered it personally from two people, one I met just once on her book tour and another whom I consider a close friend, I’ve loathed this grand-jury power. If it has a parallel in British history, it’s not the relative justice of the common law or the guarantee of habeas corpus in the Magna Carta, but the Court of Star Chamber, the wicked parallel judicial system set up when Henry VII won the Battle of Bosworth Field in 1485 and started the Tudor dynasty.
An online source about the Star Chamber,, says it took its name from the star-shaped pattern on the ceiling in the room at Westminster Palace where it met. “In 1487 the court became a judicial body separate from the king's council, with a mandate to hear petitions of redress,” the Tudor Place post states. “Under the leadership of Thomas Wolsey and Archbishop Cranmer, the Court of Star Chamber became a political weapon for bringing actions against opponents to the policies of Henry VIII (Henry VII’s son and successor), his ministers and his Parliament. Although the court was initially a court of appeal, Henry VIII and his councilors WoIsey and Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely.”
When Queen Elizabeth’s death in 1603 ended the Tudor dynasty and the Scottish House of Stuart took over, the powers of the Star Chamber grew and so did its abuses. “[B]y the time of Charles I it had become a byword for misuse and abuse of power by the king and his circle,” Tudor Watch states. “James I (the first Stuart king) and his son (and successor) Charles I used the court to examine cases of sedition, which, in practice, meant that the court could be used to suppress opposition to royal policies. It became used to try nobles too powerful to be brought to trial in the lower courts.” Though under the Tudors the Star Chamber had met in public, under the Stuarts “court sessions were held in secret, with no right of appeal, and punishment was swift and severe to any enemy of the crown.”
The commentary on Sam Nunberg cited one courageous woman who had refused to testify before a previous grand jury called by a special prosecutor to investigate a President: Susan McDougal. She was the wife of Jim McDougal, an Arkansas real-estate developer who got Bill and Hillary Clinton to invest in a proposed development called Whitewater while Bill was governor of Arkansas and Hillary a partner in the powerful Rose Law Firm in Little Rock. The project went bust financially and was never built, but in 1994 Kenneth Starr was appointed special prosecutor to investigate whether Bill Clinton, then President of the United States, had done anything illegal or corrupt in connection with the land deal.
Susan McDougal was convicted of fraud in connection with Whitewater and was sentenced to two years, but by the time she was to start that sentence Starr had convened a grand jury and wanted her to testify. She felt that Starr had persuaded his two key witnesses against the Clintons — her ex-husband and former Arkansas judge David Hale — to lie under oath, and feared she would be convicted of perjury if she didn’t back up their lies. When she showed up before Starr’s grand jury, she stated her name for the record but refused to answer any questions. She was sentenced to 18 months for contempt plus four months for fraud. She spent eight months of her time in solitary confinement and got moved around the country from Little Rock to Oklahoma City to Los Angeles and back to Little Rock. After she served the 18 months for contempt and four months for the fraud conviction, Susan McDougal finally won a compassionate release due to ill health. On the last day of Bill Clinton’s Presidency, he granted her a full pardon.
In 2003 Susan McDougal published a book about her experiences, The Woman Who Wouldn’t Talk, and I met her in San Diego when she appeared here as part of her book tour. As someone who had considered the Starr investigation a fraud and a set-up from the get-go — “the Starr Chamber,” I called it — I had watched as Starr, unable to come up with a charge against the Clintons over Whitewater that could stick, instead turned his attention to Bill Clinton’s extramarital affairs and charged him with lying under oath about his relationship with Monica Lewinsky. Clinton was impeached by the House of Representatives but was spared when the Senate fell far short of the two-thirds majority needed to convict him and remove him from office.
By resisting the Starr investigation even at the cost of nearly two years of freedom, Susan McDougal became a hero to Democrats and progressives, a courageous woman who heroically resisted a runaway special prosecutor and an outrageously unfair grand jury process. Naturally a journalist — Matt Zapotsky of the Washington Post — reached out to her after Sam Nunberg’s wild ride through cable TV news shows March 5.
In her interview, which I accessed on line through the San Jose Mercury-News at, she said she would not do anything differently today even though she warned Nunberg that being imprisoned for contempt of a grand jury is no joke: “You don’t just go sit and work out in the afternoons.” She also told Nunberg that he can’t count that his refusal to testify will help his friend: “If they have done something, you’re not going to save them.”

My Friend and the Grand Jury

The other incident in which a grand jury investigation — and its awesome power to punish people who won’t answer its questions — involved a person I know far better than Susan McDougal. In the summer of 2003, radical San Diego activists David Agranoff and Michael Cardenas organized a series of events they called “Revolution Summer” to challenge various policies, both domestic and foreign, of the George W. Bush administration and also target private companies they felt were oppressing the people. As part of this series, Agranoff arranged to bring Rod Coronado, a Native American activist who had already served prison time for a 1995 arson fire at Michigan State University, which he set with a homemade incendiary bomb to protest the use of animals in research there, to speak at the LGBT Community Center in Hillcrest, San Diego.
By chance, the same day Rod Coronado was scheduled to speak — August 1, 2003 — an arson attack occurred at an apartment complex in La Jolla in northern San Diego. Whoever burned down this building set up a banner proclaiming the action as having been the work of the “Earth Liberation Front.” As Agranoff explained it to me, the Earth Liberation Front and the similar Animal Liberation Front are not centralized organizations. Instead, they are Web sites to which anyone can post proclaiming their affiliation if they have done something in line with the sites’ stated principles — a decentralized structure that groups like al-Qaeda and ISIS have also adopted for their actions in the West.
Nonetheless, federal authorities in San Diego and Washington, D.C. saw a direct connection between the La Jolla action and Coronado’s speech, since he had proclaimed himself an “unofficial ELF spokesperson.” The San Diego branch of the FBI launched an investigation to determine whether Coronado himself had set the La Jolla fire, or whether it had been set by someone “inspired” by his scheduled appearance later that evening. I had covered the August 1, 2003 speech by Rod Coronado for my own publication, Zenger’s Newsmagazine, and my story included two photographs: a head-shot of Coronado and a picture of him, taken during the question-and-answer portion of the meeting, holding a half-full apple-juice jug and mentioning, in answer to a question, that this was the sort of container he had used to set the lab fire in Michigan.
By chance, I was the first person contacted by local FBI agents for this investigation. They knocked on my door early one morning and said they didn’t want to have me subpoenaed to a grand jury. Though the federal government has no “shield law” protecting journalists from being summoned to grand juries the way most states, including California, do, nonetheless they wanted me to agree to testify voluntarily. I met their polite request with a polite refusal, but I talked to them long enough to get a handle on what the investigation was about and post online to warn my friends in Revolution Summer that the feds were on the warpath and what questions they might be asked.
Soon a number of people associated with Revolution Summer received grand jury subpoenas, and later they told me of a broad and stunningly intrusive array of questions they were asked. Among the questions the prosecutors running the grand jury had for them were what books they read, whether they collected punk-rock CD’s, and whether they practiced the Wiccan religion. With my overdeveloped sense of irony, I was particularly struck that they were being asked whether they practiced the Wiccan religion, since that made the investigation not only figuratively but literally a witch hunt.
David Agranoff flatly refused to cooperate with the grand jury in any way, shape or form, and as a result he was placed in the San Diego Metropolitan Correctional Center (MCC) for over six months. He sent out messages to his friends that what he needed most from us were letters addressed to Irma Gonzalez, the judge that had sentenced him. Since the stated purpose of the grand jury’s power to imprison people for refusing to testify is not to punish them but to persuade them to talk, he wanted people who knew him to write Judge Gonzalez and tell her that no amount of incarceration would persuade him to testify. I was happy to write the letter, which I did on July 20, 2005, and here’s what it said:

I have known Mr. Agranoff for over two years. I have found him to be an honest, upright man, strongly committed to peace, justice, the health of the earth’s environment and the rights of human beings and animals. From the time we first met, I have been impressed by the depth of Mr. Agranoff’s commitments and his willingness to stand firmly for what he believes is right.

That is one reason I believe that no amount of incarceration or other compulsion will persuade him to testify in the current investigation. There’s another reason for my belief: in the summer of 2003 I attended a lecture Mr. Agranoff gave at UCSD in which he talked about other grand jury investigations into the animal rights and environmental movements. He said that grand jury investigations into the legal, above-ground political activities of animal rights and environmental activists were fundamental infringements on the rights guaranteed them by the U.S. Constitution and that under no circumstances would he cooperate in such an investigation if he himself were called to testify. He meant that then; he means it now.

The FBI’s investigation, the grand jury subpoenas and the incarceration of one of my best friends for over six months in an attempt to get him to talk had no results whatsoever. They learned that Rod Coronado had nothing to do with the apartment fire, he had no idea who did, and indeed the case has never been solved. A number of people involved with Revolution Summer thought the San Diego FBI was trying to build a case against Coronado and the Earth Liberation Front to cover up their embarrassment over the revelation that two of the 19 9/11 hijackers had lived in San Diego for months before the attacks and the FBI had done nothing to find or apprehend them.
Rod Coronado was ultimately indicted in February 2006 for his San Diego speech under a Bush-era law making it a crime to disseminate information about how to make terror devices. The law was originally targeted at publishers of resources like The Anarchist’s Cookbook, but in a weirdly twisted interpretation the government decided that Coronado holding aloft a half-full jug of apple juice at a public meeting in response to an audience question about his previous activities constituted disseminating information about how to make terror devices.
It turned out that three recordings of Coronado’s speech existed — made by David Agranoff, Michael Cardenas and me — though mine was just an audio tape while theirs were videos. However, neither Agranoff nor Cardenas had recorded the question-and-answer portion of the meeting. I dubbed my audio cassettes to CD and leaked them to Coronado’s attorneys in the later stages of his September 2007 trial in San Diego, and the next thing I heard was that my recording had been instrumental in sparing Coronado the lengthy prison term he would have received on a jury conviction. Instead, the jury deadlocked and Coronado accepted a government plea bargain that would cost him only a year of his freedom.

The Switch

When the cases involving Susan McDougal and David Agranoff happened, I hailed them as heroes for resisting a corrupt grand jury power that I regard as antithetical to the fundamental rights of due process guaranteed to all Americans under the Fourth, Fifth and 14th Amendments to the U.S. Constitution. I still feel that way. If Sam Numberg indeed defies Robert Mueller’s grand jury — a position he backed away from just a day after he ran around the cable news networks, saying that this time he’s inclined to testify — I will regard him as a hero for civil liberties no matter what I think of his politics or his motives.
Indeed, one of the most fascinating aspects of the Trump era has been what I call “the switch.” Progressives who for years have denounced the FBI as a political police force aimed at suppressing Left-wing dissent are now embracing it because it’s using its powers to investigate allegations against President Trump and members of his administration. And Right-wingers who have long hailed the FBI and America’s intelligence agencies in general as heroic defenders of the national security are now attacking them on the floor of Congress and calling for major purges of their personnel.
The FBI has a particularly checkered past in these regards. In the aftermath of World War I, the administration of President Woodrow Wilson saw an opportunity to suppress all those troublesome Leftists who had stood in the way of America’s war effort once and for all. Wilson’s attorney general, A. Mitchell Palmer, investigated the major leaders of the American Left, found that a lot of them were foreign-born, and ordered them deported to the newly established Soviet Union. Palmer’s assistant in this project, which included rounding them up in secretly organized raids, was a young attorney named John Edgar Hoover.
In 1924, five years after the “Palmer Raids,” President Calvin Coolidge and his attorney general, Harlan Fiske Stone, appointed Hoover to head the FBI. Hoover did the big thing Coolidge and Stone were hoping for: he rid the FBI of the institutional corruption that had beset it and made it virtually useless as an investigative agency for common crime. But Hoover also put in place a political spying operation aimed primarily at the Left, and during the 48 years he ran the FBI — until his death in 1972 — he maintained extensive files not only on open Leftists but mainstream politicians and anyone else he felt might pose a threat to his power as FBI director.
The last and most sweeping of these programs, COINTELPRO (for “Counter-Intelligence Program”), was exposed in 1971 when a group of peace activists burglarized the FBI office in Media, Pennsylvania and stole papers documenting the FBI’s decades of unconstitutional and legally unauthorized actions against the American Left. They made packets of their information and sent it to various media outlets, but most of the recipients — including the much-vaunted New York Times and Washington Post — returned the packets, unopened, to the FBI. However, the packet sent to the Los Angeles Times landed on the desk of reporter Betty Medsger, who persuaded her paper to print stories based on the information and continued to write about it for 43 years, publishing the definitive account, The Burglary, in 2014.
The FBI has not suddenly become a politically “clean” agency just because at the moment the President they’re investigating is named Trump instead of Clinton. They are taking advantage of the same scummy tactics they’ve always used against political enemies just because their current targets are a Republican president that may or may not (probably wasn’t) have been elected with the help of Russian interference.
James Comey, the former FBI director Trump fired over his unwillingness to tell the world that Trump himself was not under investigation, didn’t become a hero overnight just because instead of screwing over Hillary Clinton, telling the world just 11 days before the election that he was reopening the investigation into her e-mails, he refused to make a public statement that he wasn’t investigating Trump because, as he put it in the opening statement of his Congressional testimony on June 7, 2017, “because it would create a duty to correct, should that change.”
Don’t get me wrong: I believe that President Trump’s current occupancy of the White House and the enormous power that gives him, which he uses in a stunningly arbitrary and capricious manner, constitute a clear and present danger to America’s continuance as a bourgeois democracy and to the civil rights and liberties of all Americans. I believe he needs to be stopped in the one way I think he can be stopped: by Americans coming together at the ballot box in November 2018 and electing Democratic majorities in both the House of Representatives and the Senate so there will be at least some resistance to his anti-worker, anti-consumer, anti-people of color, anti-woman, anti-Queer, anti-public health, anti-culture and pro-corporate agenda — and by massive street actions to keep up the pressure on both major parties to respond to the real needs of the people.

What I don’t want to see happen is the Trump administration disgraced and driven from office by the same foul and fundamentally unjust political, legal and judicial tactics that have traditionally been used against the American Left. I don’t want to see Democrats and progressives coming to the aid of an agency that has traditionally been an instrument of anti-progressive repression simply because we think we have a temporary gain in seeing it go after Trump. And I remain convinced that the Star Chamber-like powers a federal grand jury has to force Americans to testify against each other against their will is an evil that cannot be countenanced in a society that calls itself free.