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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.


Wasn’t disclosure authorized by a court order?

Didn't Ken Starr obtain an order from the Court authorizing disclosure of grand jury material to Congress? If so, isn't much of the discussion on your web site irrelevant because Starr's disclosures were specifically authorized by law?

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 jury’s 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.

You may view the actual July 2, 1998 court order
with the free Adobe Acrobat Reader.
If you do not have the Adobe Acrobat Reader, we have provided
a link that will take you the Adobe website where you can download it.

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