The Republican decision, along strict party lines, to release the videotape of President Clinton's Grand Jury testimony, and the 2600 pages of detailed backup material summarized in the Starr report, is a reckless act, without legitimate purpose.
The evident intent is to hope to sway the public. By smearing the President by releasing raw, one sided evidence brought to light with none of the protections, balance, and rights to object according to rules of evidence, that normally guide any public airing of evidence in a trial. Or even in a Congressional hearing. The evident purpose is to make the President look as bad as possible, never mind the national damage. I really don't know if that will be the result. It could backfire against those moral centurions, the crusading Republicans. But certainly it is the intent.
So what is wrong with that? An enormous amount. Grand Jury proceedings and those alone are one sided forums for Prosecutors. Barney Frank makes an excellent point when he notes that normally that one sidedness is balanced by it's being sealed. It is not designed to be an even handed and fair testing of the truth by cross examination, objection to irrelevant and overly prejudicial questions, and the like. It's sole purpose is to determine if there is enough evidence on one side of the ledger to take the next step and put the defendant through a trial. Without at that stage giving him any means for defense whatsoever.
Take the tape of the President's Grand Jury testimony. Under the same laws which protect ordinary citizens it was sealed while still in Starr's hands. (He may have illegally leaked to a complicit press information about that testimony, but even Starr did not dare provide copies of the tape itself.) It was, literally, a star chamber proceeding. As grand jury proceedings always are. Clinton's lawyers, although present, had no power to object to questions. There was no judge there to decide disputes. Clinton could be harassed and badgered, pushed and needled to the breaking point, as would never be allowed by a judge at trial, before a jury. Clinton's lawyers had no opportunity to bring out exculpatory points on rebuttal. It is as one sided and prejudicial a forum as can be imagined. And it's normal purpose is never to be released as raw evidence at trial or before a jury. For that the prosecution has to start over, and question again, under very different rules and procedures. With defense attorneys present, able to object, and able to cross examine.
The American people are not used to evaluating testimony given under such one sided conditions. They never put that on fictional or other courtroom scenes on T.V.
It is a stacked deck. That's what the House Judiciary crusading Republicans recklessly want. Why so recklessly? Because the President might still survive. But if so, held up to further invasions of his rights and privacy, and further ridiculed before the world in unprecedented and thoroughly unfair fashion. And in any event they are setting a terrible precedent. Because the normal federal rules of procedure do not govern Congress once it received the material from Starr, it was incumbent upon the Congress to develop its own fair and balanced rules of procedure. It has failed that task miserably, and is acting as a chamber of unrestrained inquisition. It is acting abominably.
The Grand Jury material should remain sealed. The release of Starr's summary was questionable enough, but at least defensible in the interests of a speedier resolution. And the independent counsel had already, illegally leaked much of its content, as we have now all discovered. (The media has been shamefully complicit in this process. The media is nowhere more unbalanced, and less to be trusted, than when it is protecting its own cherished freedoms, absolutely, without balance, and to the total exclusion of all other values. I'm referring to the media's hasty, limited, and extremely fleeting coverage of the issue of pervasive illegal leaking to the press in this investigation.)
The raw Grand Jury testimony and other evidence, however should remain sealed. And used only as a resource for the prosecution side within the house. The information should be brought to light in the normal manner, and subject to normal balance, objection, and cross examination from the President's side.
The media cannot of course be trusted to treat this side fairly. The media holds as an absolute value its right to know everything, immediately, regardless of the possible effects on fairness or other values. It's a deeply ingrained instinct, held at least as strongly by such generally liberal media leaders as the NY Times, as by more conservative media such as the Wall St. Journal.
What SHOULD be done is this. Since the House serves a function similar to that of a Grand Jury in the impeachment process, the House should determine a legal issue first. It should determine whether, if all the factual information that Starr has presented is true, is there enough to impeach? Does the conduct alleged rise to the Constitutionally required level of a High Crime and Misdemeanor? In coming to this decision, the House should listen to the argument of the While House concerning the legal insufficiency. It should listen to their recasting and otherwise characterizing the same evidence. And of course also consider the argument Starr has made, and those who support impeachment on the Committee would make using the same evidence produced by Starr.
And then come to a decision. Without holding a trial about the truth of Starr's evidence, etc. in the House. That needn't and shouldn't happen twice. That is for the Senate. I have little doubt that these crusading House Judiciary members will vote articles of impeachment, so get on with it.
And let the trial begin in the Senate. Without an unfair release of utterly one sided Grand Jury testimony, kept under seal and never released in a trial by the judiciary for very good reasons.
The House should be ashamed of itself.
Doug |
