.. do the American people care whether their President lyed [sic]under oath?...
It would seem that depends on the context in which the alleged lying occurred. For example, some Americans question whether Mr. Starr's team (acting in the name of the grand jury) had the right or the duty to interrogate Mr. Clinton on these matters in the first place.
The following and very prescient article, written BEFORE Mr. Clinton testified before the grand jury, throws some light on the over-all context. (Italics in text my own.)
The New York Times
August 2, 1998, Sunday
A SECRET PROCEEDING
WITH NO SECRETS
Scott Turow
For those who think they are learning something about the grand jury process as Kenneth Starr's
investigation of President Clinton winds down, I have a cautionary word. I have been involved on both
sides of grand jury matters for 20 years now, and this is not what it's like. What we are seeing instead is
an exclusively political process, one where hyperactive journalism and relentless spinning by the
participants have largely turned the tidy truths of the law into laughable fictions.
The court decisions that have been sparked by the continuing firefights between the President and the
independent counsel have all been governed by familiar principles, first announced when President
Richard Nixon sought to suppress the White House tapes and extended last year when the Supreme Court
decided that Paula Jones's lawsuit against Mr. Clinton could go forward. The courts, in all of these
cases, have relentlessly spouted the slogans of blind justice: "No person is above the law," and, "The
courts have the right to every man's evidence."
On the basis of such principles, the President's efforts to invoke, at one time or another, executive
privilege (regarding his aide, Sidney Blumenthal), attorney-client privilege (regarding Bruce Lindsey, his
deputy counsel) and a newfound protective privilege for the Secret Service have all come a cropper. The
judicial opinions continue to tell us that as far as the law is concerned, a President called into court is
just another guy, entitled to no ultimate quarter from the legal process.
No matter how worthy this principle in the ideal, it has not worked in practice.
The right to indictment by grand jury is included in the Constitution. It was meant to be a popular check
on prosecutorial abuse. To save the innocent from baseless accusations, the grand jury is supposed to
operate in largely inviolate secrecy.
Except for witnesses, who rarely care to tell many people they've been called before a grand jury, all
other participants -- the prosecutors, the jurors, the investigating agents, even the court reporter -- are
absolutely bound under the threat of contempt from revealing anything about "matters occurring before
the grand jury."
What has changed the game, of course, is the press. The encampment of reporters around the Federal
courthouse in Washington, the relentless ferreting of information and the unscrupulous tactical leaking
going on from all sides, but especially from the prosecutors, have gutted the rule of secrecy. The result is
that the process bears little resemblance to what is intended.
The plain language of the rule of grand jury secrecy, for example, prevents disclosure of the identity of
witnesses. Yet sitting in Chicago, I have routinely received, courtesy of various news outlets, a morning
forecast of who will be called whenever the Lewinsky grand jury sits, not unlike the sports page's listings
of probable starting pitchers in the day's baseball games.
Witnesses are photographed and often, like Linda Tripp last week, make public comments as they
emerge. I know more, frankly, about what is occurring before the Lewinsky grand jury than in many
pre-indictment cases I've defended in the last decade.
Indeed, in the last week, we also had the unprecedented spectacle of Ms. Lewinsky's lawyers informing
the press that their client and her mother had been granted immunity. By the next morning, the
inevitable leaked account of Ms. Lewinsky's supposedly secret testimony was on the front page of this and
other newspapers. Within a day or two we even learned about the purported physical evidence -- a dress,
perhaps with a telltale stain, and an answering machine tape with the President's voice on it -- that Ms.
Lewinsky had delivered to the grand jury.
By now the press has mounted such enormous pressure on the participants that virtually all of them
operate on the assumption that every secret will be exposed eventually. Consequently, they concern
themselves foremost with public posturing.
Does anybody really think that Ms. Lewinsky would have chosen, if she could have avoided it, to
announce to the world that she was ready to testify against the President to save her own skin? Or that
Mr. Starr couldn't have asked her lawyers, as a courtesy attending the deal, to keep their mouths shut?
Mr. Clinton's decision last week to give testimony, reportedly on closed-circuit television, after being
served with a grand jury subpoena from Mr. Starr, is yet another example of something that would never
take place if the real rules were operating. Targets of grand jury investigations almost never testify. Why?
Because they take the Fifth. Innocent or guilty, the target rarely gains anything from giving the
prosecutor a preview of his defense, especially from his own lips.
Refusing to testify becomes virtually an iron-clad practice in perjury cases where, by definition, the
target has testified already. Any major inconsistency between new testimony and old basically gives the
prosecutor his case, with no need, under the law, to prove which version was untrue.
It is so routine for grand jury targets to decline to testify that they are seldom subpoenaed. Indeed, the
Justice Department discourages the practice of subpoenaing a grand jury target because he will almost
always assert his right against self-incrimination, and forcing him to do so may bias the grand jurors,
who are supposed to be impartially weighing the evidence. When a subpoena is necessary, the Justice
Department's guidelines require prosecutors to assert the privilege by letter, rather than by personal
appearance, to lessen the possible prejudice.
The President, of course, could never exercise his constitutional rights because a leak out of Mr. Starr's
office, all but inevitable in the current environment, would be politically devastating. The public would
regard it as tantamount to a confession and would forever associate Mr. Clinton with the likes of those
gravelly voiced mafiosi who, during the Kefauver hearings many years ago, invoked their rights with
barely lettered readings from the notecards their lawyers had given them.
The press, of course, regards itself as blameless. Reporters are doing the asking, not the leaking. And
from the beginning, both the White House and Mr. Starr helped create this mess with furious efforts at
spin control, eroding any hope or trust that the matter could be pursued in confidence.
But one of the enduring frustrations about the press in this country is that it lacks any institutional
mechanism to defer to other important social institutions. The press sees itself as governed solely by the
public's right to know. That is an important value in a democracy, and one with obvious application
here. Most Americans clearly want to know if, in Richard Nixon's words, their President is a crook, or if
the independent counsel, who is subject to precious little oversight, is behaving like a tyrant.
But the traditional rule of grand jury secrecy does not obliterate those values. It simply balances them
against the need to protect the innocent and the rights of the potentially accused. If the grand jury finds
that allegations have no basis, they are meant to die, unheard of, as all of us should wish. (And if a
whitewash is suspected, nothing prevents the press from then examining the issues on its own.)
If there is probable cause to support the allegations, the prosecutor will present his evidence in public,
where the defendant has the right to contest the charges and the prosecutor must prove them beyond a
reasonable doubt.
None of that is happening here. Political values -- the public's right to know about and judge the
participants -- have eclipsed legal principles. Some would argue that any time the President is involved,
politics will trump all else, but again, the legal proceedings have gone forward on the law's assumption
that this case can be handled like any other one.
By now, the investigation is not even a genuine grand jury inquiry. Mr. Starr is pursuing a case
involving an accusation no prosecutor I know would relish trying: lying in a private lawsuit about a
consensual sexual relationship, where the judge in that case has already ruled the matter irrelevant and
where the alleged untruths had no effect on the outcome. In my experience, juries rarely convict for this
kind of crime when no one was hurt.
But according to reports, Mr. Starr long ago concluded that the Constitution prohibited him from
indicting and trying a sitting President. Instead, perhaps to salvage his much abused reputation, he
intends to use a little-tested reporting provision of the independent counsel statute to pipe his evidence to
Congress. There, the House Judiciary Committee may, if it chooses, issue articles of impeachment just in
time for the fall elections.
That is politics, not law. The central purpose of the grand jury's inquiry is no longer to determine,
according to the same standards applied to everyone else, whether the President committed a crime. The
issues being addressed -- the President's character and his fitness for office -- are moral and political.
And it is roundly inappropriate that the grand jury's great powers have been used to pursue those
questions.
(Scott Turow, a lawyer, is the author of "Presumed Innocent" and "The Laws of our Fathers.")
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