The Prosecutor Is Out To Get Me!

Does he have to tell me I’m a target?

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Karl Rove appeared before a federal grand jury once again on Wednesday, presumably to testify about his involvement in the leak of CIA agent Valerie Plame’s identity. Special prosecutor Patrick Fitzgerald has not designated Rove as a “target” of the investigation, Rove’s lawyer said. A Rove spokesman also denied a Truthout.org report that Fitzgerald had sent Rove a formal “target letter.” Does it matter if prosecutors label you a target?

Not really. There’s no law that says federal prosecutors have to warn criminal suspects before they indict them. The practice of informing “targets” of their status is a long-standing but flexible government policy. According to the United States Attorneys’ Manual, “the prosecutor, in appropriate cases, is encouraged to notify [a target] a reasonable time before seeking an indictment.” But he doesn’t have to notify his target, especially if he thinks the target might tamper with the evidence or leave town. He’s also free to skip the notification process if he thinks it could slow things down or “otherwise be inconsistent with the ends of justice.” Federal prosecutors routinely indict people without ever telling them that they’re under investigation.

A “subject” of an investigation—who is less likely than a target to be indicted—can become a target at the drop of a hat. And a target can lose his status just as quickly as he gets it. Once again, a prosecutor can tell someone that he is no longer a target, but he doesn’t have to.

If a prosecutor does tell you you’re a target, he’ll probably remind you that you don’t have to answer any incriminating questions in front of the grand jury. (In other words, you can take the Fifth.) Such advice sometimes comes in the form of a target letter like this one. Other witnesses may get similar advice as a matter of course.

But a prosecutor doesn’t haveto tell a target (or subject) that he can take the Fifth. In 1977, the Supreme Court addressed the case of a motorcycle thief who wanted his self-incriminating grand jury testimony dismissed because he’d never been told he was a target. Warren Burger’s opinion suggested that the government has no obligation to give a Miranda-like warning to a grand jury witness.

Sometimes prosecutors will tell someone he’s a target even if he hasn’t received a grand jury subpoena. That’s because a target may want to testify if he knows he’s going to get indicted. (He might want to give the grand jury his side of the story, for example.) The Department of Justice suggests that a target be given “reasonable time” to do just that before he gets indicted.

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Explainer thanks Dan Richman of Fordham University.