Judge Demands Grand Jury Records in Lemon Case

Provinzino is expected to probe this week whether grounds exist to toss the case, CNN reports. She has not ruled on Lemon's motion to dismiss.

Whether any of the material becomes public is a separate question — the order sends it to the judge, not to the defense.

More: why this keeps happening

CNN reports that judges around the country have grown more willing to second-guess federal prosecutors' conduct behind the closed doors of the grand jury.

In Chicago, defense lawyers asked Judge April Perry to release transcripts in the case against protestors at an ICE detention facility outside the city. After reviewing them, Perry found prosecutors had interacted with grand jurors outside the proceeding, ordered some jurors to leave during another hearing, and engaged in "vouching" — invoking their own reputation, which is forbidden because it asks jurors to trust the prosecutor personally rather than the evidence.

"I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts," Perry said at a May 21 hearing. US Attorney Andrew Boutros then dropped that case, later dropped at least two more, ordered a historical review of more than 100 grand jury transcripts, and launched added training. This spring the Northern District of Illinois enacted a rule requiring grand juries to alert a magistrate judge when they fail to issue an indictment.

In Wyoming in May, a panel of three federal judges dismissed felony drug and gun indictments against nine defendants after finding the acting US Attorney had called defendants "bad guys" and "murderers" and handed business cards to jurors outside the proceeding. Prosecutors did not appeal; a new grand jury later issued a new indictment and the case is ongoing.

Last fall, then-interim US Attorney for the Eastern District of Virginia Lindsey Halligan took a proposed indictment of former FBI Director James Comey through a grand jury on her own. A magistrate judge in Alexandria reviewed the transcript and found she may have incorrectly presented the law, describing "profound investigative missteps … to potentially undermine the integrity of the grand jury proceeding." Halligan later admitted the grand jury had not supported the initial version of the proposed indictment and that the full grand jury had not signed off on the final charging document. That case was dismissed for a separate reason — a district judge found Halligan was not serving as a legitimate prosecutor — and the Justice Department is appealing.

Comey's lawyers are now seeking grand jury records in a separate, newer case in Eastern North Carolina, where he is charged with threatening the president over a social media photo of the numbers "8647" written in seashells. He denies wrongdoing. "The highly irregular procedures that led to the indictment create a significant risk that the government misrepresented key issues of fact and law to the grand jury," his lawyers wrote in a recent filing.

Mike Fox, a Cato Institute fellow and former Colorado public defender, told CNN the lesson for the defense bar is simple. "If I was a federal public defender or a private defense attorney, every case I get that's indicted, I'm going to file a motion that is asking the judge to review the transcripts," he said. "Every single case, the defense attorney should be filing, and the judge should be inquiring."

A note on sourcing: this story rests on CNN's reporting of the docket, carried a second time by Yahoo News. The Frank has not independently reviewed the order.