Response: Starr did get an order, on July 2, from the three judge
court that appointed him. The pertinent part of that order reads as follows:
"Upon consideration of the `Ex Parte Motion for Approval of Disclosure of
Matters Occurring Before a Grand Jury filed by Independent Counsel Kenneth W. Starr
on July 2, 1998, the Court finds that it is appropriate for the Independent Counsel to
convey the materials described in that motion to the House of Representatives.
Accordingly, it is
ORDERED that the motion be granted. The Court hereby authorizes the Independent
Counsel to deliver to the House of Representatives materials that the Independent Counsel
determines constitute information of the type described in 28 U.S.C. sec. 505(c). This
authorization constitutes an order for purposes of Federal Rule of Criminal Procedure
6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent
counsel deems necessary to comply with the requirements of sec. 595(c)."
The order purports to authorize disclosure under Rule 6(e)(3)(c)(i), but one can
challenge whether the order is consistent with the requirements of that rule.
Under Rule 6(e)(3)(C)(I), a court can order that grand jury material be disclosed if
the party seeking disclosure shows that he/she has (1) a particularized need for specific
materials (2) to be used in connection with a "judicial proceeding." The order
above does not seem to implement the particularized need requirement, as that requirement
is used to force a party seeking disclosure of grand jury materials to specifically state
exactly what he/she needs from the grand jurys files. This requirement is intended
to prevent wholesale disclosure of the information obtained during a grand jury
investigation, yet that, of course, is what happened in this instance.
The order also seems inconsistent with the rule in that it allows the Independent
Counsel, not the court, to decide what should and should not be released. This, again, is
not consistent with the requirement that a court should order disclosure after determining
that the party seeking disclosure has stated the requisite "particularized need"
for specific items.
Also, the order seems inconsistent with the requirements of the rule in allowing the
materials to be given to the House for use in connection with an impeachment proceeding.
Under Rule 6(e)(3)(C)(I), the disclosure must be for use in connection with a
"JUDICIAL proceeding." Judicial proceedings occur in courts; the House is a
legislative body, and so does not conduct judicial proceedings. Clearly, therefore,
disclosure cannot be authorized under this portion of Rule 6(e) (which is the only part of
the rule that could apply).
There is another issue: Usually, applications for the release of grand jury materials
are not made "ex parte", which this one was. "Ex parte" means that no
one is given notice that the application has been made, so no one can show up and
challenge the application. Rule 6(e)(3)(D) lets the government proceed ex parte, but a
court is not supposed to allow this without considering whether it is appropriate to let
the government do so. If the court thinks it may not be fair to let the government proceed
without giving notice to those who may be affected by the release of the grand jury
material, it can require that they be given notice. It would be nice to know if the court
engaged in this analysis in this instance, given the breadth and nature of the evidence
gathered by the grand jury.