Experts: Kaneshiro Can Talk About Federal Investigation If He Wants To
There’s no rule that prohibits Honolulu’s elected prosecutor from telling the public whether he is the target of a Justice Department probe.
When Honolulu Prosecuting Attorney Keith Kaneshiro issued a statement saying his office wouldn鈥檛 respond to a 聽that he鈥檚 the target of a federal grand jury investigation, he did not merely decline to comment.
Honolulu鈥檚 top criminal lawyer took it a step further and cited rules governing federal grand jury proceedings, implying that the rules prohibited Kaneshiro from commenting.
But the , which Kaneshiro cited, contain no such prohibition, three experts in criminal procedure said.
Kaneshiro issued the statement Tuesday after being publicly challenged to respond to that he had received a聽target letter from the U.S. Justice Department. Kaneshiro is caught up in a years-long federal investigation into public corruption and abuse of power that has already resulted in the indictment of former Honolulu police chief Louis Kealoha, his wife Katherine, who is a former deputy prosecutor, and four Honolulu police officers.
鈥淔ederal Rules of Criminal Procedure mandate that grand jury proceedings are secret,鈥 read the document. 鈥淚t is a violation of law for an attorney of the government, a grand juror, or others to disclose information about grand jury investigations.鈥
The statement added, 鈥淲e do not comment on investigations any grand jury may or may not be conducting.鈥
In fact, there鈥檚 no rule that would prevent any target or witness from commenting, said Virginia Hench, a retired professor of criminal law at the University of Hawaii’s William S. Richardson School of Law.
Hench noted that Kaneshiro doesn鈥檛 have to comment, and she said she would probably advise him not to comment if he is the target of a federal investigation. But she said there鈥檚 nothing in the Federal Rules of Criminal Procedure that would prohibit him from talking about the matter.
Still, Hench added, 鈥淚t sounds better than saying, 鈥業 don鈥檛 want to talk.鈥欌
Although grand jury proceedings are not open to the public like trials are, the general rule governing grand jury proceedings is that 鈥渘o obligation of secrecy may be imposed on any person.鈥
However, the rule states exceptions to this general rule, listing several people who can鈥檛 talk about the grand jury proceeding. These include the grand jurors themselves, court personnel such as court reporters and 鈥渁n attorney for the government.鈥
The question is, would Kaneshiro be considered 鈥渁n attorney for the government鈥 when he鈥檚 not acting as a prosecutor in the grand jury proceeding?
Kevin Cole, a professor of criminal law at the University of San Diego School of Law, said the rule doesn鈥檛 prevent Kaneshiro from talking about the grand jury proceeding if Kaneshiro is a target of the investigation.
鈥淚t sounds as if he鈥檚 misinterpreting the rule, unless he鈥檚 investigating himself, which would violate other rules,鈥 Cole said.
Jim Felman, a Florida attorney who is a co-author of a , agreed the rules do not prevent Kaneshiro from discussing the grand jury proceeding.
鈥淗e is not required to say what happened in the grand jury, but he is certainly free to do so if he would like to,鈥 Felman said.
The prosecutor鈥檚 office did not respond to requests for comment for this story.
