CBA Record November-December 2025

In the Crosshairs: Navigating Federal Grand Jury Investigations By Vadim A. Glozman

Clarification can be sought, though prosecutors are not obligated to provide it. Often, the tone of a subpoena, the cli ent’s proximity to key events, and infor mal government comments offer the best clues. Counsel should pursue that clarity where it’s available without overcommit ting the client as their exact status as a target, subject, or witness is often fluid. Privilege, the Fifth, and the Boundaries of Protection The Fifth Amendment protects individu als, not entities. Fifth Amendment pro tections related to testimony and the act of producing documents do not apply to businesses (aside from sole proprietor ships). A corporate employee may be com pelled to testify on behalf of the company, even where personal risk exists. So, while an employee can assert the Fifth Amend ment on their own behalf, they cannot do so if they are subpoenaed as a representa tive of a business, no matter the size. Attorney-client privilege applies, but its durability is tested frequently. The crime-fraud exception—allowing courts to pierce the privilege when legal advice is allegedly used to facilitate unlawful con duct—can be raised on limited grounds. Courts evaluate these claims in camera, ex parte, and without the benefit of adversar ial testing. Counsel must assert privilege narrowly, early, and with an eye toward future litigation. Testifying before a grand jury introduces risk even in seemingly benign circumstances. Clients may face exposure for making false statements or for perjury if their tes timony is mistaken, misremembered, or mischaracterized. Once given, testimony cannot be changed, and its impact cannot be undone. Testimony and Immunity: Managing Exposure

W hen a client receives a federal grand jury subpoena, it often lands first on their attorney’s desk. These moments—unexpected, and often full of foreboding— require more than just instinct in crafting a response. They call for precision, strategic calm, and a working knowledge of the investigative framework. Grand jury pro ceedings carry life-changing consequences. Civil attorneys who understand that risk, and respond accordingly, can preserve their client’s position before the investigation evolves into something more serious. The Basics: What Is a Grand Jury Investigation? A federal grand jury is an investigative body authorized under Rule 6 of the Federal Rules of Criminal Procedure. Operating in secrecy and directed by federal prosecutors, its mandate is to determine whether probable cause exists to return an indictment—not determine guilt. Prosecutors select the evidence, control the narrative, and manage the presentation of witnesses. They have no duty to present exculpatory evidence. No judge oversees the process. Defense attorneys are excluded and are prevented from cross-examining wit nesses or presenting their own evidence. The Federal Rules of Evidence do not apply. And from this comes the adage that a grand jury could indict a ham sandwich. These are not defects; they are features of the system. Counsel unfamiliar with the scope of prosecutorial discretion in this setting must adjust quickly to its lopsidedness. Client Status: Target, Subject, or Witness? Determining a client’s status—target, subject, or witness—is essential to risk assessment: l A target is someone the government believes may be charged. l A subject is within the scope of the investigation but not yet a target. l A witness is believed to have relevant information.

20 November/December 2025