To All: More on Grand Jury Legal Problems.
First of all, I doubt whether many of us non-lawyers understand that much about grand juries. There is, fortunately, a very useful site, run by a couple of law professors, which provides much useful info about grand juries in general, and the Clinton one in particular. Here is the address, for those of you who may be interested:
udayton.edu
One of the professors, Susan Brenner,will respond (and in great detail) to any question you submit. Her responses are then posted on the web site. Here are her responses (not yet posted) to a couple of questions I sent her earlier today. Both suggest that the use of the Grand Jury in the Clinton matter and the handling of the evidence may not have been entirely kosher, from the legal point of view.
Question One.
What purpose has the Grand Jury served? It is my understanding
that Grand Juries are supposed to hear evidence (in private), and then make a determination whether an indictment is called for or not. It has not issued an indictment, and apparently no one is expecting it to issue one. Rather, Kenneth Starr has used the testimony presented to the Grand Jury as the basis for his report calling for impeachment. Is this a proper use of a Grand Jury?
Response to Question One.
You've hit on what I think is a critical point: I think that, in
practice, Ken Starr has used this grand jury simply to gather
evidence to submit to Congress in an effort to force the initiation
of impeachment proceedings. If that is true, and if one could prove
that it is true, that would be an illegal use of the grand jury--as
you point out, grand juries are supposed to investigate to see if
criminal activity has occurred and, if it has, they indict; if not,
they do not indict. (The trouble is, how do we prove Starr never
intended to indict but was using the grand jury for a political
agenda, e.g., to push for impeachment? A grand jury does not have to
indict, and as I told some people earlier this year when I raised
this point, if it had been raised in, say, June, he probably would
simply have indicted someone to counter the argument, and no one
wanted that.)
Now, grand juries can issue reports on what they find, but reports
are supposed to be handled very cautiously and released with very
careful scrutiny and restrictions, because of the damage they can
cause. Grand juries can, in effect, investigate anything, and they
hear all kinds of evidence--since they are not bound by the rules of
evidence, they can receive rumors, speculation, gossip, hearsay, and
even good evidence that may have no relevance to criminal acts. If
all this were (as it has been) bundled into a report and if that
report and all the attached evidence were to be released, there is a
great potential for damage. Normally, therefore, courts either
decine to release reports (with or without supporing evidence) or do
so very cautiously, often limiting what can be released. That was
not done here, which bothers me, a lot.
Question Two.
You say that witnesses are not bound by secrecy rules -- meaning
that they can "leak" their testimony, if they so choose. What about
witnesses who do NOT so choose? How can President Clinton's videotape, for example, be released first to Congress, and then to the public, without his consent?
Response to Question Two.
In the federal system, which, of course, is where the Clinton
inquiry is, Rule 6(e) of the Federal Rules of Criminal Procedure says
that "matters occurring before the grand jury" are secret and to
reveal that information is punishable as the crime of criminal
contempt. (Witnesses are exempt but, as you point out here, it's not
a witness who is trying to reveal the information in this case, which
means we have to proceed under the rule.)
The rule creates certain situations in which grand jury
information can be revealed, albeit narrowly. One is for a court to
grant a request to reveal grand jury material for use in connection
with a "judicial proceeding"--so it can be revealed, using this
procedure, for use in a civil trial. An argument can be made that
this option doesn't apply to the Starr report because an impeachment
proceeding--which proceeds in Congress, a legislative body--is not a
judicial proceeding. But no one has raised that objection, so Starr
was allowed to send his information to Congress.
As to whether the House can lawfully reveal the information, that
raises two questions: (1) Does grand jury secrecy still cover the
material once it gets to Congress? and (2) If not, does Congress have
an independent obligation to keep the material secret?
I don't think grand jury secrecy applies once the information has
been given (properly or improperly) to Congress. When grand jury
information is legitimately authorized to be released for use at
trial, that authorization implicitly approves making the information
public, because trials are almost always public. If you apply that
standard here, it seems that by sending the material to Congress, it
lost its character as secret. . . . the "cat is now out of the bag,"
in effect. (Once can argue that the release was improper, but if no
one raises that, it becomes moot.)
As to Congress, one can argue that it should maintain some
restraint in using and releasing the material. Congress, of course,
is a political body, and as such, does not act like a grand jury. In
the Watergate hearings in the House, some members proposed that the
hearings be closed, but that proposal was defeated, as most members
believed closing the hearings and maintaining secrecy about what was
going on would lead to public hostility and concern that deals were
being made, evidence, suppressed, etc. I suspect something similar
will happen here. |
