Lance Armstrong goes on the attack

By Professor Laurie Levenson and Laura Lefeuvre ('13)

Lance Armstrong has gone on the offensive, but it is unclear whether his effort will have much of an impact in court. Armstrong's lawyer, the renowned Jon Keker, Esq., has filed a motion to hold the government in contempt for allegedly leaking grand jury materials, in violation of Federal Rules of Criminal Procedure 6(e). Armstrong cannot identify the specific source of the leak, but he offers evidence as to why the leak must be coming from the government's team. He then asks the court to have a hearing to explore whether there are grand jury leaks.

Violations of grand jury secrecy plague the criminal justice system and should not be condoned. However, there has never been a case where the court has granted a motion such as the one filed by Keker. At most, the court has entertained motions to dismiss grand jury indictments when there have been allegations of prosecutorial misconduct in the grand jury. Bank of Nova Scotia v. United States, 487 U.S. 250 (1988). Courts consider dismissing the indictment an "extreme sanction" and will only be used in "exceptional cases" where the defendant is prejudiced because of the misconduct. United States v. Myers, 510 F. Supp. 323, 328 (E.D.N.Y. 1980). Courts are also hesitant to impose sanctions because they do not want to unnecessarily interfere with the grand jury proceedings. Barry v. United States, 865 F.2d 1317, 1319 (D.C. Cir. 1989).

Armstrong and his team have found a credible vehicle to get their side of the story to the press. Yet, this motion is likely to have much more of an impact out of court than in court. If Armstrong does succeed in getting a government official held in contempt, he will not only be the leader of the pack in professional bicycling, but also a groundbreaker in the world of criminal law.