By BEN CARPENTER
For years, I have argued that Alaska’s Department of Law has stood in the way of Alaskans exercising their constitutional right to use the grand jury as an investigative tool.
Our state Constitution is explicit: “The power of grand juries to investigate and make recommendations concerning the public welfare or safety shall never be suspended.” (Alaska Const. Art. I, §8). Yet in practice, the public has been blocked. Complaints of corruption or threats to public welfare too often die at the door of bureaucracy.
That is why I have pressed — both in the Legislature and in print — for reforms that would remove government gatekeepers from the process. The grand jury belongs to the people, not to the Attorney General, not to the courts, and not to the executive, legislative, or judicial branches. Article I, Section 2 reminds us: “All political power is inherent in the people. All government originates with the people, is founded upon their will only, and is instituted solely for the good of the people as a whole.” (Alaska Const. Art. I, §2).
What AG Taylor Now Says
In a recent conversation on the Must Read Alaska Show, Attorney General Treg Taylor acknowledged what many of us have been saying all along: the system has been broken. He admitted there are “definite constitutional issues” with the Alaska Supreme Court assigning him the role of gatekeeper. He even went so far as to say, “I intend to be a very poor gatekeeper.”
Taylor explained that his office has published new written procedures allowing citizens to submit requests for investigative grand juries through the Department of Law website. He emphasized transparency, promising that requests and outcomes would be made visible to the public, minus identifying details. He also admitted that it is likely that a constitutional amendment is needed to secure the people’s right to see grand jury reports made public.
Entire interview here:
Where We Agree
I welcome the Attorney General’s recognition that Alaskans need more access. His pledge to err on the side of letting complaints go forward is a positive development. He is right that public distrust runs deep, and that transparency is necessary to rebuild confidence in our justice system. He is also right that the Constitution gives the grand jury—not government officials—the authority to investigate and indict.
Where We Diverge
The difference lies in who ultimately controls the process. Taylor accepts the Supreme Court’s rules and says he will work within them. My position is that those rules themselves are unconstitutional when they assign the Attorney General the role of gatekeeper. We cannot simply rely on the goodwill of one officeholder who promises to be “lenient.” The rights of Alaskans must never hinge on the personality, discretion, or politics of a single official.
Taylor worries about abuse of the process—citizens repeatedly shopping complaints to multiple grand juries, or grand juries being “hijacked” from their regular indictment duties. My view is that those concerns pale in comparison to the constitutional guarantee that grand juries shall never have their power suspended. And yet, suspension has already happened—multiple times—when the courts or the Department of Law have prevented grand juries from investigating matters brought to them. Worries of abuse can be managed with statutes enacted by the legislature that both the courts and the executive branch must follow. Legislative action is necessary to resolve this constitutional crisis.
When the courts establish the Attorney General as a gatekeeper, or when the Attorney General implements procedures that limit access, the people’s rights are suspended in practice. Bureaucratic control of grand jury access erodes the very foundation of self-government.
A statute change could clarify this balance: the Department of Law’s role should be limited to maintaining a calendar and providing continuity between grand juries, including a record of prior decisions germane to identifying for the grand jury potential abuse by members of the public. Beyond that facilitative function, the Department of Law should have no discretion to block or filter what the grand jury itself may hear. If we can trust grand jurors to indict and thereby deprive us of liberty, we can trust those members to decide what they want to investigate on our behalf.
The Kenai Grand Jury Report
The recent example from Kenai underscores the danger of allowing government gatekeepers to control the process. In 2022, a grand jury in Kenai investigated allegations of judicial misconduct and even issued a felony indictment. That same grand jury produced a formal report and recommendation—intended to be released to the public. Yet a Superior Court judge dismissed the indictment and declared that the report would never be made public. Despite petitions, public records requests, and mounting civic concern, the people of Alaska remain barred from seeing what their own fellow citizens uncovered after months of service.
This episode demonstrates why public distrust has grown so strong. When grand juries act within their constitutional authority, but their findings are buried, the people’s power is undermined. If reports about corruption within the judicial system itself can be blocked by the very institution under scrutiny, then the promise that grand jury power “shall never be suspended” becomes meaningless.
The Larger Conflict
It is important to note that under normal circumstances the Attorney General is required to abide by court rules as if they were law, unless those rules are successfully challenged in court or overridden by the legislature. This obligation flows from both the constitutional authority granted to the Alaska Supreme Court to make rules, and the AG’s professional responsibilities as a member of the Bar. Yet both institutions—the courts and the AG—risk overstepping when they insert themselves as gatekeepers over a people’s institution. The Constitution’s design is that the grand jury itself should decide what to investigate, not officials acting in its stead.
Here the governor’s constitutional authority under Article III, Section 16 comes into focus. That provision empowers the governor to enforce compliance with any constitutional mandate and restrain violation of any constitutional right by any officer or agency of the state. The Attorney General works for the governor, and the Department of Law is the governor’s instrument. If the courts impose a rule that violates the Constitution—such as making the AG the gatekeeper of grand juries—the governor has both the power and the duty to direct the AG to ignore that unconstitutional mandate. In this way, the governor should defend the independence of the grand jury and protect his attorney general from a judiciary intent on shielding itself.
The unresolved Kenai grand jury report is the clearest evidence of this conflict. That report, the product of months of citizen service, remains sealed because the courts have granted themselves, through Criminal Rule 6.1, a veto power over grand jury reports. The effect of this usurpation is that a grand jury report on judicial corruption remains locked in the courts’ vault rather than released to the public as the grand jury intended. The courts have therefore committed two violations against the people: first, by appointing the AG as gatekeeper in violation of Article I, Section 8’s command that grand jury power shall never be suspended; and second, by refusing to release the Kenai grand jury report on judicial corruption thereby nullifying the people’s watchdog function.
The larger conflict is not just about control but over the role of the grand jury. The judicial branch and AG’s approach to an “investigative” grand jury is more than simple word choice. The label “investigative” denotes purpose. I have spoken to many lawyers in positions of government power who believe that grand juries should only be able to indict whoever a prosecutor asks them to indict. A new Attorney General with a new set of rules for district attorneys could simply determine that an “investigative” grand jury doesn’t have the right to investigate and indict but only to issue reports. The long-term solution for the grand jury lies in legislative action or constitutional amendment to restore an “independent” grand jury and prevent either branch from controlling access. We should be calling it an independent grand jury because words matter.
The Path Forward
We agree that Alaskans need clarity, transparency, and trust. But let us be clear: the grand jury exists as an expression of the people’s political power. It is not the tool of the Department of Law or the courts. The oath administered to grand jurors under Criminal Rule 6 states: “You and each of you do solemnly swear (or affirm) that you will diligently inquire and true presentment make of all such matters as shall come before you, and you will keep secret the proceedings of the grand jury, except as authorized by law.” (Alaska Criminal Rule 6(e)). This oath binds jurors to serve justice—not government officials.
Alaska statutes reinforce these duties. Under AS 12.40, a grand jury may indict when a majority of jurors concur. AS 12.40.060 affirms their power to subpoena witnesses and records. And AS 12.40.040 permits jurors with personal knowledge of a crime to present it to their fellow jurors. These laws recognize that grand jurors are not passive participants; they are active guardians of public integrity.
Reforms that rely on promises from the Attorney General’s office are not enough. We need structural change—through statute, and if necessary, through constitutional amendment—that reaffirms the people’s ownership of the grand jury process. We need Governor Dunleavy to provide immediate relief and to defend the independence of the grand jury. Form an independent commission if you must have assurances. The simplest path is to direct the Attorney General to enact a less restrictive process and underwrite his opposition to being appointed the gatekeeper. The people of Alaska must never surrender their watchdog—the independent grand jury—to the very institutions it was designed to oversee.
Ben Carpenter is a former Alaska legislator, US Army combat veteran, and host and producer of the Must Read Alaska Show.