Justice Manual § 9-11.160

Witnesses who refuse to answer questions properly put to them by the grand jury may be held in contempt and either fined or imprisoned until they comply with the directions of the grand jury. The contempt may extend for the life of the grand jury.

While the Supreme Court in Shillitani v. United States, 384 U.S. 364, 371 n. 8 (1963), appears to approve the reimposition of civil contempt sanctions in successive grand juries, it is the policy of the Department of Justice generally not to resubpoena a contumacious witness before successive grand juries for the purpose of instituting further contempt proceedings. Resubpoenaing a contumacious witness may be justified in certain circumstances, however, such as when the questions to be asked the witness relate to matters not covered in the previous proceedings or when there is an indication from the witness or the witness's counsel that the witness will testify if called before the new grand jury. If the prosecutor believes that the witness possesses information essential to the investigation, resubpoenaing the witness may also be justified when the witness himself or herself is involved to a significant degree in the criminality about which the witness can testify. Prior authorization must be obtained from the Assistant Attorney General, Criminal Division, to resubpoena a witness before the successive grand jury as well as to seek civil contempt sanctions should the witness persist in his or her refusal to testify. To obtain approval, the prosecutor must show either: (a) that the witness is prepared to testify; or (b) that the appearance of the witness is justified since the witness possesses information essential to the investigation.

If the grand jury's term is about to expire, the Department recommends that a subpoena ordinarily should not be issued to a witness who has advised the prosecutor that he or she will refuse to testify before such grand jury. The coercive effect of a civil contempt adjudication is substantially diluted if a grand jury is approaching its expiration date. This is a matter within the discretion of the United States Attorney and there may well be situations when it is necessary to subpoena a witness and institute contempt proceedings for recalcitrance in such circumstances. In most situations, however, it would seem preferable to subpoena the witness before a new grand jury.