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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.

 

Secrecy and release of evidence gathered by the Clinton-Lewinsky grand jury--#1:

I have a question regarding the Kenneth Starr grand jury. If a grand jury is not a trial and its purpose (or part of its responsibility) is to keep things secret, does the Congressional Judiciary Committee have the right to decide if the President's testimony should be made public? If not the Judiciary Committee then who does decide what can be made public? And if it can be made public doesn't this put the President's defense at risk?

Response: You raise a very difficult question, a question which is difficult because of the unique context all this arises in. Normally, grand jury information is sought for use at a trial, and the party seeking to use it asks the court that supervised the grand jury to let them use very specific portions of the grand jury evidence. And the court will not grant the request unless it finds there is good reason to do so (the evidence is important to the trial) and that the party seeking disclosure has made a very narrow request, rather than trying to rummage through the entire grand jury record.

Here, of course, Starr seems to have sent the entire record to Congress. The problem, which can be a problem with any grand jury investigation, is that grand juries look into all kinds of things and are not bound by the rules of evidence, which means information that would be totally irrelevant at a trial, but which can embarrass various persons, comes out freely. For that reason, courts have always been very careful about releasing grand jury information, and, especially, about letting grand jury reports be made public.

In what I see as an anomaly, Starr was allowed (unchallenged by anyone involved in the investigation) to release everything to Congress. Whether Congress has any obligation to maintain secrecy with regard to any of that evidence depends on two issues: (1) Is the information still covered by grand jury secrecy? and (2) If not, does Congress have some obligation to keep it secret?

I don't see how the information can be covered by grand jury secrecy once it's been released. When grand jury information is released for use at trial, it can be made public--that decision has been implicitly made in the court's ruling that the information can be made available for use at trial. It seems, then, that insofar as grand jury secrecy is concerned, the "cat is out of the bag."

Congress, of course, can exercise its own discretion and maintain secrecy. But being a quintessentially political body, it may be very hard for Congress to do that--in the Watergate hearings Congress held in 1974, some proposed that the hearings be sealed, but that was rejected, on the grounds that it would make it look like deals were being made and matters covered up. We'll probably see the same result here.

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