The Road Not Taken: Criminal Contempt Sanctions and Grand Jury Press Leaks

This Note examines the appropriate judicial responses to such news stories, focusing on the options available to counsel for the target of a grand jury investigation who is affected by the leaked information. Part I explains why dismissal and quashing are extremely difficult remedies to obtain, why internal investigations by the government are inadequate, and why, therefore, contempt sanctions are presently the most viable legal response to such leaks. Part II describes the general contours of both criminal and civil contempt actions and reviews specific applications of civil contempt actions in grand jury leak cases. Part III questions the functional and theoretical validity of civil contempt actions in leak situations. It argues that a civil contempt action is proper when the court seeks an affirmative act from the contemnor, but not in a press leak situation where the intended result is inaction through the cessation of future leaks. Part III demonstrates that this theoretical tension produces practical hazards and concludes that the criminal contempt sanction, which punishes past press leaks, is a superior sanction. Finally, Part IV proposes methods to be used in a criminal contempt action.