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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--#2:

I scanned the web looking for information on grand juries because I have been wondering about the secrecy issues of testimony before them. Your website was very helpful and informative, but I am still a bit confused by the latest turn the Starr investigation of Clinton. If the testimony before the grand jury is secret, then how can all the records be turned over to Congress (well I can make some reasonable assumptions about that part), but that does not clarify under what circumstance the records of testimony are being made public. Because I think the whole course of the investigation is far beyond the scope of Starr's proper investigation, I have to admit that I paid little attention to the media reports--I did scan the report on the web and failed to find much that merited the $4.4 investigation! To be succinct--how is it that the testimony can be released to the general public? I am assuming it was released to the judiciary committee so that they could proceed with the investigation toward impeachment.

If the secrecy of the testimony is not protected, do you think more witnesses will refuse to submit to the subpoena? What can the ordinary citizen do to voice their opinion. Should I call/write/e-mail my representative and senator with my opinion?

Response: (1) As to how the material could be released, here is my basic take on that--I'll answer the subpoena question later in this message. In the federal system, which, of course, is where the Clinton inquiry is, Rule 6(e) of the Federal Rules of Criminal Procedure says that "matters occurring before the grand jury" are secret and to reveal that information is punishable as the crime of criminal contempt.

The rule also creates certain situations in which grand jury information can be revealed, albeit narrowly. One is for a court to grant a request to reveal grand jury material for use in connection with a "judicial proceeding"--so it can be revealed, using this procedure, for use in a civil trial. An argument can be made that this option doesn't apply to the Starr report because an impeachment proceeding--which proceeds in Congress, a legislative body--is not a judicial proceeding. But no one has raised that objection, so Starr was allowed to send his information to Congress.

As to whether the House can lawfully reveal the information, that raises two questions: (1) Does grand jury secrecy still cover the material once it gets to Congress? and (2) If not, does Congress have an independent obligation to keep the material secret?

I don't think grand jury secrecy applies once the information has been given (properly or improperly) to Congress. When grand jury information is legitimately authorized to be released for use at trial, that authorization implicitly approves making the information public, because trials are almost always public. If you apply that standard here, it seems that by sending the material to Congress, it lost its character as secret. . . . the "cat is now out of the bag," in effect. (One can argue that the release was improper, but if no one raises that, it becomes moot.)

As to Congress, one can argue that it should maintain some restraint in using and releasing the material. Congress, of course, is a political body, and as such, does not act like a grand jury. In the Watergate hearings in the House, some members proposed that the hearings be closed, but that proposal was defeated, as most members believed closing the hearings and maintaining secrecy about what was going on would lead to public hostility and concern that deals were being made, evidence, suppressed, etc. I suspect something similar will happen here.

(2) Subpoena: I don't know what kind of effect all this is going to have. From the email messages I'm getting, I have the impression it has really shaken public confidence in grand juries in general, and in their secrecy in particular. I wish you would write/fax your representatives and anyone else you can think of.

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