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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.

 

Did the Starr grand jury EVER vote?

Even after reading your material so far, I am still confused as to the Grand Jury's role in this case. Specifically: Did the Grand Jury ever vote for submitting Starr's report to Congress?

Response: I'll have to check to be sure, but I don't think they did. If you look at Starr's referral to the House Judiciary Committee, it says it is submitted pursuant to the Independent Counsel statute and is signed by Starr as Independent Counsel. It is not styles as a grand jury report.

If the purpose of a Grand Jury is to make a preliminary determination as to the merits of a case, shouldn't it have voted?

Response: When a grand jury is deciding whether or not someone should be indicted, it has to take a vote on the issue. If a majority of the jurors vote to return an indictment, charges are brought; if less than a majority vote to do so, no charges are brought. In this instance, Starr apparently never intended to ask the grand jury to indict Clinton (at least--there have been rumors about the possibility of indicting others, but nothing has happened yet). As a result, there was no need for them to vote on that issue. As to the referral to the House Judiciary Committee, Starr seems to have used the grand jury simply as a mechanism for gathering evidence; he then combined that evidence into his referral and submitted it. It would seem, then, that there was nothing for the grand jury to vote on, as the referral came from Starr, not from the grand jury.

And if it did not get to vote, wouldn't that indeed be a gross abuse of the Grand Jury?

Response: It would if either a grand jury report or an indictment were at issue. But as I noted above, that does not seem to be the case here. Starr seems to have used the grand jury simply as a way of gathering evidence.

Does a Grand Jury then have the right to complain about being abused in such a way?

Response: I'm not sure: For one thing, many would argue that there was no abuse here, as the proceeding was conducted under the Independent Counsel statute, which lets an IC use a grand jury to investigate serious allegations of misconduct. (I would agree if the grand jury were being used to investigate with an eye to indicting--as the Watergate grand jury did--or with an eye to preparing a formal grand jury report. I have reservations about the way it was done here.) And even if there was an abuse of the grand jury, I'm not sure what the grand jurors themselves could do. The law requires that, to bring a legal challenge to some event, one have "standing," e.g., that the complaining party have been injured by that event. The grand jurors could say they have standing because they represent the institution of the grand jury which was abused; if a court bought this, they could bring a civil suit challenging what was done. . . but that would never happen because of the costs and time involved in bringing such a suit. The grand jurors would not feel personally outraged enough to take such a step. The issue could have been raised by an outsider (Clinton, for example) injured by the abuse, but he and his attorneys clearly decided, early on, not to raise these kinds of "procedural" issues.

Maybe even investigate the abuser himself?

Response: A federal grand jury can investigate anyone it wants to, as long as the purpose of the investigation is determining whether or not a crime has been committed. So the grand jury could investigate Starr IF there was reason to suppose he had committed a crime. Unless you use some of the creative interpretation of the law Starr used in putting together his referral, I see no evidence of a crime. If you use such a creative interpretation, I suppose one could postulate that Starr abused the grand jury and, in so doing, obstructed justice or something similar. But even if there was a colorable basis for commencing an investigation, it won't happen--the grand jurors are likely not outraged by what happened, because they, like most if not all grand jurors, tend to identify with the prosecutors, not the prosecuted.

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