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Note: The comments and questions on this page came from people who visited this website. Please feel free to send your comments and questions to Professor Brenner (brenner@udayton.edu). She will respond privately, and may ask permission to post your message on this page. No one's e-mail will be used without first obtaining their permission, and names and e-mail addresses are removed before a comment is posted. Starting in 2002, the responses posted to the site indicate which of us replied: The initials SWB mean Professor Brenner wrote the response; the initials LES mean Professor Shaw wrote the response. We are also putting the year down, to indicate when the response was posted. If no initials appear, Professor Brenner wrote the response.

 

Having to testify without an attorney:

Does a person HAVE to testify before a grand jury if called to do so?

Response: Absolutely, UNLESS they can invoke a valid privilege (5th amendment, attorney-client, marital, etc.) as the legitimate basis for refusing to do so. If a witness invokes a privilege, a prosecutor can then take the person before the judge presiding over the grand jury (Norma Hollaway Johnson in the Lewinsky case) and argue that the person is not entitled to claim the privilege. If the judge agrees, the person must answer; if the judge sides with the witness, he or she can invoke the privilege and won't have to answer (unless the prosecutor gives him/her immunity, which deprives them of the ability to claim the 5th amendment privilege).

What gives the grand jury the right to ask questions about a person's private life and/or behavior between consenting adults? Why couldn't Monica Lewinsky respond "None of your business" when asked if she had an affair with President Clinton?

Response: In a famous case, the U.S. Supreme Court said that grand jury inquiries are presumed to seek evidence relevant to a grand jury's investigation. Therefore, to refuse to answer on the grounds of irrelevance ("it's none of your business"), the witness would have to show there's no conceivable way the answer to the question could provide any evidence that could be relevant to the grand jury's inquiry. IN another case, the court said a grand jury investigates because it wants to see if the law has been broken or simply to assure itself that no law has been broken. You tell me: What isn't relevant under that standard?

What "justice" is Clinton being accused of obstructing, what "crime" is he supposedly covering up?

Response: The obstruction apparently goes to the possibility that he encouraged Lewinsky (& maybe others?) to conceal evidence about their sexual relationship, which would have obstructed a grand jury's inquiry into that matter. The sexual relationship was not a crime, so that can't be what he's covering up (if he's covering anything up). The concern is whether he told her to lie or destroy evidence (like returning gifts he gave her so she couldn't give them to the grand jury) and whether he or anyone working for him helped her with the "talking points" memo, which was apparently a road map in how not to answer the grand jury's questions truthfully. And, too, there is the claim that President Clinton lied when he denied having a sexual relationship with Ms. Lewinsky in his deposition in the Paula Jones case; that would be perjury and covering up evidence of that crime would be obstructing justice. The same is true of Lewinsky's apparent lie in the affidavit she gave, in which she denied a sexual relationship with the President.

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