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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.


Is Ken Starr’s grand jury constitutional?

Thank you for your time in reading my questions and, if possible, supplying me with the answers and correcting any misconceptions that I may have.

(1) With one exception, a grand jury, by definition, is part of the judicial process and therefore part of the judicial branch of government. The exception being the House of Representatives which functions as a grand jury in the impeachment process. That being my understanding, why wouldn't "Ken Starr Grand Jury" constitute a parallel judicial system?

Response: The grand jury was historically understood to be part of the judicial branch; if you check the website for the federal links, though, you'll find a link to the Williams case, in which the U.S. Supreme Court said the grand jury is not a part of any of the three branches but is, instead, a fourth branch of government. We're still not quite sure what that means.

But grand juries do use the court's subpoena power, which means they are intrinsically intertwined with judicial functions. Ken Starr's grand jury was simply another grand jury, so it conforms to that model. Although he is a special prosecutor, an independent counsel appointed under a distinct statute and operating apart from the Department of Justice, the grand jury he worked with on the Lewinsky matter was simply a standard federal grand jury.

So, we have a conventional grand jury conducting an unconventional inquiry. Part of my problem with the Starr investigation, which may be your concern, as well, is that it didn't behave like a normal grand jury: A normal grand jury investigates to decide whether or not it should indict someone for committing federal crimes; indeed, it is an abuse of the grand jury, which is a great legal impropriety, to use a grand jury to gather evidence for a civil proceeding. But impeachment is not a criminal proceeding, so it would seem that using a grand jury SOLELY to gather evidence for use in an impeachment (which is what it looks like Starr was doing) would be improper. The problem, there, would be proving that he was using the grand jury for a purely political purpose--we may suspect that, but how would one prove it?

(2) By Congress referring to the Starr investigation as a grand jury, aren't they usurping powers given to the judicial branch?

Response: Probably not, for the reasons I gave above. The one thing about this whole matter, though, is that we keep confronting some unexplored issues, and since the President has not raised any legal challenges to this process for a long time, I'm afraid they're going to remain unexplored.

(3) Additionally, using the Supreme Court's logic regarding the line item veto (Congress could not give up power invest in it by the constitution), wouldn't the Ken Starr grand jury be the equivalent in the impeachment process?

Response: That is a very interesting point--in other words, you're saying that the House surrendered its role as the investigator of impeachment matters to the grand jury. I don't know much about the line item veto case, but it sounds to me like you have a very good argument.

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