I have previously objected to how the Justice Department uses grand juries to punish certain individuals who refuse to cooperate with federal investigations. This concern was heightened during my representation of Dr. Sami Al-Arian who signed a plea bargain with the understanding that, after serving his time, he would be allowed to leave the country. Instead, he was forced before a grand jury and remained in jail for years as a matter of contempt. The Justice Department often prolongs the incarceration while piling on fines to ruin individuals who refuse to cooperate. That was the case with Chelsea Manning. Like Al-Arian, she had already served time for her role in the Wikileaks controversy but the remainder of her sentence was commuted by President Barack Obama. The Justice Department proceeded to pull her before another grand jury where she refused to testify (like Al-Arian). After a long incarceration and an equally excessive 256,000 in fines, she finally tried to kill herself this week by hanging in the Alexandria jail. Only then did U.S. District Judge Anthony Trenga finally order her release.

In a 2019 letter to the judge, Manning objected to the grand jury probe as “an effort to frighten journalists and publishers, who serve a public good.” Given her long prior sentence and the presidential commutation, Manning refused to testify under a guarantee to immunity because she viewed the effort as an attack on press freedom.

Judge Trenga rejected her prior pleas to be released for 10 months. After the suicide attempt, he finally relented but refused to lift the massive fines against Manning. Trenga simply noted that the grand jury had been disbanded so there was nothing to coerce at this time in terms of testimony: “The Court finds that Ms. Manning’s appearance before the Grand Jury is no longer needed, in light of which her detention no longer serves any coercive purpose.”

The Manning case (like Al-Arian’s) should compel Congress to take another look at how the grand jury system is used for retaliatory and punitive purposes by the Justice Department. One does not have to agree with the views or the actions of either Manning or Al-Arian to view these cases as abusive.

Courts clearly are not exercising much discretion under these current rules governing contempt cases. The result is that prosecutors can impose excessive levels of incarceration and fines on individuals by daisy-chaining grand juries (as with both Manning and Al-Arian). This is an area of abuse that has been ignored by Congress for too long. Prosecutors know that there is little political benefit for Congress to seek reforms when the subjects of the cases are so unpopular. The result has been unchecked authority to impose unjust and unwarranted levels of punishment through the federal contempt rules.

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