By STEPHEN J. COX | ALASKA ATTORNEY GENERAL
April 2, 2026 – If you have followed the debate over Alaska’s investigative grand jury, you know it has stirred real concern among many Alaskans. Some believe the grand jury is the people’s last line of defense against government misconduct. Some believe that line has been obstructed by the government itself—by prosecutors, by judges, or by the court rules themselves. Those views are strongly held. They are not going away.
I know that because this issue was on my desk before I ever took office. Before I was even sworn in, I began receiving meeting requests from Alaskans who wanted to talk about the investigative grand jury. Many of those requests came from people who have spent years studying, writing, and advocating on this issue. They were serious. Persistent. And convinced something fundamental had gone wrong.
I do not take many outside meetings in this job. The Department of Law is large, and I believe it works best when decisions are made at the right level, with the understanding that anything can be elevated when necessary. But I understood the concern and the interest in a fresh take on it. Not because I accepted every premise—some I did not—but because the concern itself was real, and it raised a question I needed to answer before doing anything else: what does the law actually require?
The Alaska Constitution preserves the grand jury’s authority to investigate matters of public welfare and safety and to issue reports and recommendations. That authority is distinct from the grand jury’s familiar role in deciding whether to indict someone for a crime. Alaska Criminal Rule 6.1 purports to implement that investigative function, and it does so in a particular way. It draws a distinction between matters raised from within the grand jury and those brought from outside it.
If a sitting grand juror proposes an investigation, the rule does not leave the matter to the Attorney General’s unfettered discretion. The prosecutor must evaluate the proposal against the rule’s defined criteria. If those criteria are met, the matter must go to the grand jury for its consideration, and if the grand jury elects to proceed, the Department of Law facilitates the investigation.
But when a request comes from outside—from a citizen who is not serving on the grand jury—the rule takes a different approach. The citizen may bring the concern to the Attorney General, and the decision whether to pursue it is largely left to the Attorney General’s discretion. The rule and its commentary indicate that a citizen does not have the right to appear personally and present a matter directly to the grand jury or to compel an investigation. It is this feature of the current framework that has drawn the most criticism, and I understand why.
Before taking any action on the petitions that have been submitted to the Department—there have been several—I believed it was important to study the issue carefully. I reviewed the Department’s prior work and the Alaska Supreme Court’s decisions interpreting the grand jury clause. I read what citizens had written, including pieces that were sharply critical of both the Department and the judiciary. I looked at commentary, op-eds, and historical materials. What I found wasn’t one or two interpretations. It was a range—some narrow, some expansive, and some deeply skeptical of the very government actors giving their interpretations.
I needed some objective help so that I could be confident about the original understanding of the provision. So I called in a favor. I reached out to Professor Rick Garnett at Notre Dame Law School. He was the best person I could ask because of his deep expertise in criminal law, constitutional interpretation, and originalism. Not only is he an expert in originalist methodology for the Federal constitution, but he has taught courses on how it works for state constitutions. He also has a personal connection to Alaska. He grew up in Anchorage. His father served as Municipal Attorney for Anchorage. His great-uncle helped launch the Alaska Law Review. He understands both the law and the state.
I asked him to take a fresh look at the history and meaning of Alaska’s investigative grand jury clause. He agreed. He did the work independently. And he did it for free. His article, co-authored by Savannah Shoffner, is now published, and it provides what I regard as the best account we have of the text, history, and traditional function of the investigative grand jury.
That history confirms that the grand jury was understood as an intermediary between the people and the government—a body that could hear concerns of public importance and issue reports, not merely indictments. It also suggests that this reporting function was not originally conceived as something subject to executive screening or prosecutorial discretion.
Serendipitously, the Alaska Supreme Court is reconsidering Rule 6.1. And it is why I recently submitted formal comments to the Court. In that letter, I explained that if the Court wishes to align the rule more closely with that original understanding, there is a simple way to do so: place the investigative grand jury process fully within the judicial branch, supported by court-appointed counsel, rather than requiring the Department of Law to serve as both gatekeeper and facilitator.
Ltr to S.Steinberg re Rule 6.1 4.2.2026
But that is not the rule we have today. And it is not, at least yet, the rule the Court is proposing.
What Alaskans should know is that my obligation is to the law as it exists. That includes the Constitution and State statutes but it also includes the Alaska Supreme Court’s binding interpretation of Alaska law and the rules the Court has promulgated. That is what my oath requires. It does not mean substituting my own reading of the Constitution for the one that governs.
So here is what I will do.
The Department of Law has received several citizen petitions seeking investigative grand jury review. Some of those petitions are related to one another. Some raise overlapping issues. Some revisit concerns that have been presented in different forms before. That is part of what makes this area difficult. Without clear limits, there is a risk that the process becomes cyclical—that if one effort does not produce the desired result, another follows, and then another.
In my view, each petition ought to be taken seriously under the law we have.
For each pending petition, I will assign a prosecutor to review it as a general rule. That prosecutor will be responsible for understanding the facts, the allegations, and the applicable law. Where necessary, they will consult with civil attorneys on issues that fall outside the criminal sphere. Our prosecutors carry heavy caseloads—often well over 150 cases at a time—and I am mindful that this work cannot come at the expense of their core responsibilities. But they will take these petitions up in due course and present them to the grand jury consistent with the rule.
If the Legislature makes a statutory change or the Alaska Supreme Court amends Rule 6.1—particularly if this process is placed within the judicial branch—we will work with the Court to transfer any pending matters that have not yet been presented.
I recognize that this approach will not satisfy everyone. Some will believe the system remains flawed. Others will want faster answers or different outcomes. Some may even believe the Department should not be spending time on this at all. I respect all this potential frustration. But my responsibility is not to deliver a particular result. It is to apply the law faithfully and to exercise sound judgment where the law gives me discretion. That’s what I have tried to do and what I intend to do.
Stephen J. Cox is the attorney general for Alaska.
5 thoughts on “Attorney General Stephen Cox: On Alaska’s investigative grand jury”
QUOTE…. “But my responsibility is not to deliver a particular result. It is to apply the law faithfully and to exercise sound judgment where the law gives me discretion. That’s what I have tried to do and what I intend to do.” UNQUOTE
Sooo…. Does that mean you will arrest Deputy AG John Skidmore and Judge Wells for obstruction of Justice and jury tampering as outlined by our State statutes?
Or, will you use the same ‘discretion’
that the other corrupt State officials used when they look the other way.
Our State statute is clear. A sitting grand juror SHALL inform the other jurors who shall investigate….
Skidmore and others deliberately stopped them.
Judge Matthews… release the grand jury report you have hidden from the public that our Kenai GJ reported on systemic judicial corruption in Alaska! Why are state officials hiding this from Joe public?
Wow—I have to say, Mr. Cox has accomplished more in his short time as Attorney General in terms of actually listening to the public than Treg Taylor or Mike Dunleavy have.
This is a complicated issue, but I genuinely applaud him for having the courtesy—and the courage—to take action rather than avoid it. Honestly, maybe he should consider a run for governor. #akleg #firejihnskidmore.
Criminal Rule 6.1 should have gone to the Legislature in bill form. The statutes need to be in harmony with the Constitution.
Letter dated August 16, 2022 AG Taylor and Chief Justice Winfree agree in a phone conversation about establishing procedures for grand jury investigations and reporting on matters concerning the public welfare or safety and other matters.
To address the grand jury mess one has to go to the ALASKA GRAND JURY Judicial Corruption Timeline to remedy the violations that happened. See https://alaskagrandjurorsassociation.org/ Corruption Timeline tab.
The constitution uses the word “shall” repeatedly as well as the statutes. There is no wiggle room to misconstrue that the word “shall” is an imperative command, a mandatory duty.
Article XII Section 5 Oath of Office. “All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: … that I will support and defend the Constitution of the United States and the Constitution of Alaska…”
I was in the courtroom October 2022 when Mr. Garber was before Judge Morse requesting a grand jury. Judge Morse asked Mr. Garber about his presentment and the public welfare or safety. Very straight forward questions and Mr. Garber was prepared with his presentment. Judge Morse schedule another hearing December 14, 2022 regarding Mr. Garber’s grand jury request. See Oxereok v. State Supreme Court No. 3902 Decided May 2, 1980 – I. CONVENING OF THE GRAND JURY “…a grand jury can be lawfully convened only by a judge of the superior court…”
Alaska Constitution Article III Section 1 Executive Power. “The executive power of the State is vested in the governor. Article III Section 16 The Governor’s Authority. The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the State, enforce compliance with any constitutional or legislative mandate, or…
AS 44.23.020 (b) (1) The attorney general shall defend the Constitution of the State of Alaska and the Constitution of the United States of America.
AS 22.30.011 A 1990 amendment added the word “shall” and deleted the word “may”. Canon 1 Preamble “…When the text uses “shall” or “shall not” it is intended to impose binding obligations…
AS 12.40.030 “The grand jury shall inquire into all crimes committed or triable by the court and present them to the court. The grand jury shall have the power to investigate and make recommendations concerning the public welfare or safety.”
AS 12.40.040 “If an individual grand juror knows or has reason to believe that a crime has been committed that is triable by the court, the juror shall disclose it to the other jurors, who shall investigate it.” https://alaskagrandjurorsassociation.org/
Criminal Rule 6.1 needs to go to the Legislature. See SB 270 introduced 2/23/26.
I hope not. Alaska has more than enough leaders like him where I wish Alaskans had more discernment to keep such people working in non management positions working as a Crew member. .
I. The Attorney General Cites an Authority That Defeats His Own Proposal
The Attorney General states that a Harvard Law article by Professor Richard Garnett and Savannah Shoffner provides
“Perhaps the most detailed examination of the text, history, and traditional function of the investigative grand jury” and that it “confirms that the investigative grand jury was originally understood to serve as an intermediary between the people and the government… [and] this reporting function was not dependent on executive branch screening or prosecutorial discretion.”
The Attorney General then cites this authority to argue against the CRC’s proposal — but reads only half of what it says. The Shoffner/Garnett article does not stop at condemning executive screening. It concludes explicitly: “Neither the executive nor the courts should be permitted to decide what the people may protest about. The executive may assist the grand jury by bringing evidence to form the basis for an indictment. The judiciary may assist the grand jury by explaining the law and matters of procedure. But they may nowhere come between the citizen and the grand juror by screening out petitions.”
Shoffner & Garnett, The Original Meaning and Understanding of the Investigative Power of the Grand Jury in the Constitution of Alaska, Harv. J.L. & Pub. Pol’y Per Curiam No. 4, Spring 2026, at 12 (emphasis added).
The Attorney General’s proposed solution — routing citizen petitions through court-appointed counsel under judicial branch supervision — is precisely what this sentence prohibits. The judiciary “coming between the citizen and the grand juror” through judicial screening and judicially appointed gatekeepers is constitutionally identical to executive screening, except it wears a robe instead of a suit. The authority the Attorney General treats as his strongest endorsement is a direct rebuttal of his own proposal. This Committee should note that carefully.
II. Administrative Rule 12(e) Does Not Authorize
What the Attorney General Proposes: It Is a Circular Bootstrap
The Attorney General recommends that the Court “substitute ’12(e) counsel’ for the Attorney General in proposed Rule 6.1,” relying on Administrative Rule 12(e), which authorizes courts to appoint counsel when the appointment “is not authorized by AS 18.85.100(a) or AS 44.21.410… but in the opinion of the court is required by law or rule.”
This argument is circular in its structure and invalid on its face for three independent reasons.
First:
AR 12(e) authorizes appointments when required by existing law or rule
it does not create the law or rule that does the requiring.
The Attorney General is proposing to use AR 12(e) as the basis for creating a new substantive framework for citizen grand jury petitions. But AR 12(e) is a procedural appointment mechanism, not a grant of substantive authority. Before AR 12(e) can be invoked to appoint counsel, there must be an independent source of law or rule requiring the appointment. The Attorney General proposes to use AR 12(e) to bootstrap itself — the rule becomes the basis for invoking the rule. This is circular reasoning that no properly constructed legal framework permits. See generally Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001) (agencies cannot use a provision to extend its own authority beyond what the provision independently authorizes).
Second:
Constitutional rights cannot be implemented through an administrative rule.
The grand jury’s investigative and reporting power is protected by Alaska Const. art. I, § 8, which declares that this power “shall never be suspended.” The Alaska Supreme Court has itself held that this provision is a constitutional guarantee that operates independently of legislative and administrative action. O’Leary v. Superior Court, 816 P.2d 163, 166 (Alaska 1991). Using a procedural court administration rule — AR 12(e) as the implementing mechanism for a constitutional right of this magnitude is a category error. Administrative rules exist to manage the internal operations of the court system. They do not establish the contours of constitutional rights. The proper vehicle is a Criminal Rule promulgated through the processes the Alaska Supreme Court uses for rule changes of constitutional significance — which, as the CRC’s two-year review demonstrates, requires substantive deliberation, not an administrative shortcut.
Third:
The Attorney General’s reliance on AR 12(e) would itself constitute
the kind of expedited, process-bypassing rulemaking he criticizes.
Cox’s letter argues that SCO 1993 was valid because it used Administrative Rule 44(i)’s expedited procedure. This Committee has already recognized that SCO 1993’s use of that expedited process — bypassing normal CRC reviews produced rules that required two years and twelve meetings to correct. Now the Attorney General proposes to implement the entire citizen petition framework through AR 12(e), an even thinner procedural basis than AR 44(i). If expedited promulgation via AR 44(i) was constitutionally problematic enough to require comprehensive corrective rulemaking, a framework built on AR 12(e) is worse, not better.’
III. The AG’s Proposal Does Not Actually Provide Citizens Access.
It Creates Judicial Gatekeeping in Place of Executive Gatekeeping
The constitutional defect in SCO 1993 that the CRC’s proposed amendments address is not merely that the Attorney General was the gatekeeper. The defect is that any governmental gatekeeper stands between the citizen and the grand jury in violation of the anti-suspension clause. The Attorney General’s letter never grapples with this distinction. He simply proposes replacing one gatekeeper (the AG) with another (court-appointed judicial branch counsel and the presiding judge).
Under the Attorney General’s proposed framework:
• A citizen with a public welfare or safety concern would still need to navigate a judicially managed process rather than speaking directly to the grand jury.
• Court-appointed counsel would still advise the grand jury on “whether to investigate” exercising the same screening function currently exercised by the AG.
• The presiding judge would still oversee and structure the entire process — exercising the same filtering role that, under SCO 1993, allowed presiding judges to block reports before discharge under former Rule 6.1(f) and (g).
The Alaska Supreme Court’s own CRC recognized this problem when it replaced automatic judicial pre-review of grand jury reports with an objection-driven process in the proposed amendments. The CRC understood that presiding judges having pre-screening authority over grand jury reports was itself a mechanism of suppression. The Attorney General proposes to restore and expand judicial filtering authority under the guise of removing executive authority.
This is not a constitutional improvement. It is a lateral transfer of unconstitutional gatekeeping power from one branch to another. The anti-suspension clause of art. I, § 8 protects the grand jury’s investigative authority from governmental interference in all its forms. See O’Leary, 816 P.2d at 168 (“The anti-suspension clause does not limit the type of investigation the grand jury may conduct nor does it require that a grand jury investigation be tied to the indictment function”).
IV. The AG’s Scope Retention Argument
Is a Continuation of the Constitutional Violation He Acknowledges
The Attorney General argues that the CRC’s proposed amendments are defective because they remove the three-part definitional framework from Rule 6.1(a) the test requiring that an issue:
(1) could further a public policy of the state,
(2) could reasonably be expected to benefit a large number of people rather than individuals, and
(3) involves a matter of general importance to a large number of people.
This three-part test is not neutral guidance. It is the specific mechanism that was used to characterize Garber’s OCS petition — concerning the systemic relationship between the Department of Law and the Office of Children’s Services and its effects on families across Alaska — as a matter involving individual cases rather than systemic public concern. The existing commentary to Rule 6.1(a) explicitly excluded investigations into “the Department of Law’s decision not to prosecute a particular incident as a crime” language that is directly relevant to citizen petitions about OCS-related prosecutorial decisions.
The Attorney General now argues for retaining this language under whatever new framework the Court adopts. But that language was not part of Alaska’s constitutional tradition. The Alaska Supreme Court has confirmed that the grand jury’s investigative authority under art. I, § 8 extends to investigations of “matters of public welfare or safety” without the three-part limitation. O’Leary, 816 P.2d at 167. The three-part test was created by SCO 1993 — the same order whose constitutional validity is now contested — and the CRC’s proposed deletion of it reflects the Committee’s conclusion that it improperly narrows a constitutional right.
The Attorney General’s insistence on retaining this framework, under whatever procedural structure, would preserve the operational effect of SCO 1993 even if its nominal gatekeeping authority were transferred from the AG to the courts. A constitutional right that is nominally restored but substantively narrowed through definitional exclusions designed to eliminate the very investigations citizens seek to pursue is not restored at all. The anti-suspension clause does not permit this. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“we must never forget that it is a constitution we are expounding” — a document of governance whose provisions must be read to achieve their structural purposes, not to be neutralized by procedural cleverness).
V. AR 12(e) Counsel Cannot Perform the Investigative Functions
That the Grand Jury’s Constitutional Authority Requires
The Attorney General correctly observes that prior investigative grand juries have required “significant attorney time, the retention of costly outside counsel… and assistance from the Department of Public Safety (DPS) to serve subpoenas and collect evidence.” He cites this to argue against the CRC proposal. But the same observation fatally undermines his own AR 12(e) alternative.
Administrative Rule 12(e) authorizes courts to appoint counsel in defined circumstances. It does not authorize counsel appointed under AR 12(e) to direct law enforcement investigations, command DPS resources, coordinate complex multi-witness proceedings, or exercise the investigative tools that a functional grand jury investigation requires. Court-appointed civil counsel under AR 12(e) is a legal advisor — analogous to the advisory role the CRC proposal assigns to an AG-designated attorney, but without even that attorney’s law enforcement connections, institutional knowledge, investigative resources, or subpoena-support infrastructure.
The investigative grand jury’s constitutional function under art. I, § 8 is not merely to hear evidence and write a report. It includes the power to compel witness testimony, subpoena documents, and conduct genuine investigations into government conduct. See AS 12.40.030 (grand jury has power to subpoena witnesses); AS 12.40.060 (grand jury shall inquire into crimes committed within the district). These functions require institutional backing that AR 12(e) counsel cannot provide.
Under the Attorney General’s proposal, a citizen petitioning to investigate systemic failures in a state agency would be represented before the grand jury by an attorney with no investigative authority, no law enforcement contacts, no subpoena-support mechanism, and no institutional standing to compel cooperation from the very agency under investigation. This is not a functional remedy. It is the appearance of access without its substance — a process designed to fail quietly rather than to succeed loudly.
This Committee should also note that the Attorney General’s letter raises the burden on DOL resources as a reason to oppose the CRC proposal, then proposes an alternative that would require the Court to fund an entirely new category of counsel through AR 12(e). The Attorney General does not address where this funding comes from, how it is appropriated, or whether shifting the financial burden from the executive branch to the judiciary solves the resource problem or merely relocates it. See Alaska Const. art. IX, § 13 (no money shall be drawn from the treasury except pursuant to appropriation made by law). A framework that requires ongoing court-funded independent counsel for an open-ended category of grand jury investigations has significant appropriations implications that AR 12(e) does not address.
VI. The AG’s “Successive Petitions” Concern
Proves the Citizens’ Point, Not His Own
The Attorney General argues that the CRC’s proposed rule is defective because it contains no mechanism for finality — that without a screening authority, citizens could file successive petitions over the same matters indefinitely.
This argument proves too much, and in precisely the wrong direction. The reason successive petitions exist in this case — the reason Garber has been filing since 2018, Haeg since 2016, and Ignell in 2022 — is not that there is no finality mechanism. It is that no petition has ever been properly presented to a grand jury so that the grand jury could make an independent determination about it. Finality requires a decision. Citizens cannot be bound by a “no” they never received from the constitutionally designated decision-maker.
Under SCO 1993, the AG’s unfettered discretion to decline petitions produced no grand jury decision and no finality — only administrative non-action. If the grand jury had been presented with Garber’s OCS petition in 2018 and had voted to decline to investigate, or had investigated and issued a report, that determination would create something approaching finality. The problem the Attorney General identifies — cyclical petitioning — is a direct consequence of the constitutional violation he seeks to preserve in new form. Garber presented his petition in 2018 and the DOL declined to bring it forward. He presented it again in 2022 and Judge Morse was preparing to schedule a hearing when SCO 1993 intervened. He has presented it again under the new AG. None of these constitute a grand jury decision that could generate the finality the Attorney General now demands.
The solution to the successive petition problem is not to create additional pre-screening barriers. It is to allow the grand jury to exercise its constitutional authority to make the decision it is constitutionally empowered to make. Once a properly constituted grand jury has considered and decided a petition, finality follows naturally. The Attorney General has the causation exactly backwards.
VII. The AG’s Separation of Powers Argument,
If Correct, Condemns SCO 1993 More Than It Condemns the CRC Proposal
The Attorney General argues that the CRC’s proposal violates the separation of powers by directing executive branch attorneys to facilitate grand jury investigations. He cites Bradner v. Hammond, 553 P.2d 1, 7-8 (Alaska 1976), and Alaska Public Interest Research Group v. State, 167 P.3d 27, 35 (Alaska 2007), for the proposition that one branch may not direct the activities or resources of another.
The Attorney General is correct that the grand jury “is an arm of the judicial branch.” O’Leary, 816 P.2d at 166. And he is correct that the judiciary directing executive attorneys to perform work raises separation of powers concerns. But if this argument is correct, it condemns SCO 1993 even more directly than it condemns the CRC proposal.
Under SCO 1993, the Chief Justice of the Alaska Supreme Court — the head of the judicial branch — initiated secret meetings with the Attorney General — the head of the executive branch — to design a rule that assigned the executive branch mandatory obligations to screen citizen petitions, advise grand juries, and facilitate investigations. The August 16, 2022, letter from Chief Justice Winfree to AG Taylor, which initiated this coordination, was not public rulemaking. It was inter-branch negotiation over a rule that would govern the relationship between branches. If directing executive branch resources through judicial rules violates the separation of powers, the judicial branch secretly designing that directional relationship with executive branch cooperation is precisely that violation at its genesis.
The Attorney General’s separation of powers argument, applied consistently, does not merely undermine the CRC proposal. It provides one of the most compelling legal bases for the conclusion that SCO 1993 itself was constitutionally defective from its inception — which is the argument this commenter has advanced since December 2022. The Attorney General has now provided an institutional legal citation framework that validates, rather than refutes, that argument.
VIII. The True Constitutional Standard
And why the CRC Proposal, Modified, Is the Closest to It
The Shoffner/Garnett article the Attorney General adopted as authoritative reaches a clear conclusion about what Alaska’s Constitution requires: the grand jury must be free to serve as an “intermediary between the people and the government,” and neither the executive nor the judiciary may “come between the citizen and the grand juror by screening out petitions.” Shoffner & Garnett, supra, at 12. The CRC’s proposed amendments move closer to this standard than any prior rule because they:
(1) give citizens direct filing access to superior courts without AG veto power
(2) require mandatory transmission to the grand jury within 30 days
(3) preserve the AG’s advisory role without gatekeeping authority and
(4) allow grand jurors to propose investigations directly to fellow jurors without prosecutorial filtering.
These provisions are not perfect. The three-part scope test, as the CRC’s proposal retained it, remains a subject of legitimate debate. The evidentiary standards warrant clarification. The conflict-of-interest provisions could be strengthened. These are appropriate subjects for this Committee’s deliberations and for public comments including the comment your committee has invited and is now receiving.
But the answer to imperfection in a rule that moves toward constitutional compliance is not to reject it in favor of a framework that, under the very authority the Attorney General cites, reproduces the constitutional violation in new institutional clothing. If the CRC’s proposed rule needs improvement, this Committee should improve it. The alternative the Attorney General proposes — AR 12(e) judicial branch counsel with retained scope exclusions and no clear citizen filing pathway — does not restore the constitutional right that art. I, § 8 guarantees. It renames the gatekeeper.
Alaska’s Constitution says the grand jury’s investigative power “SHALL NEVER BE SUSPENDED.” That provision is not satisfied by replacing an executive suspension with a judicial one, or by substituting an AR 12(e) workaround for a constitutionally grounded rule. It is satisfying only when a citizen with a legitimate public welfare or safety concern can reach the grand jury — the people’s institution — without governmental interference from any branch.