By Andrew C. McCarthy, September 15, 2012 –
Everything Mark says here about the audacious silence of the State Department is exactly right. I write only to add a couple of points about his apt distinction between “laws” and “legalisms.”
First, let’s pretend for argument’s sake that the paramount consideration in Libya were the criminal investigation rather than national security and political accountability (particularly at a time when the nation is about to choose a commander in chief). Even then, it would not be true that the commencement of a criminal investigation precluded comment by the government.
As a matter of law, grand jury secrecy applies only to evidence that the government learns solely by the grand jury process — e.g., I, the prosecutor, give you, the witness, a grand jury subpoena and, under that compulsion, you show or tell me something I would not otherwise have known. To be more concrete, if an FBI agent reads a Steyn column and is then asked questions about it while testifying in the grand jury, the Steyn column is still a matter of public record; it does not become “secret grand jury material” that — presto! — government officials are not allowed to talk about anymore. Most people, especially non-lawyers, are not versed in these concepts. So, government officials frequently try to get away with telling the public that they cannot comment on matters that are under investigation. But it is not true, and experienced members of the press well know it’s not true — which is why they keep hounding Republican administrations that try this stonewall tactic. Furthermore, since a U.S. federal grand jury sitting in Washington has absolutely no power to compel testimony or other evidence in Libya, grand jury secrecy should not be much of a bar.