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
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
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
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.