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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.

 

More questions about releasing the Starr grand jury report.

[About the release of the Starr grand jury report:] I'm not entirely clear. It appears that the three judge panel was within its rights to authorize the release of the data to Congress. By that action, did transcripts then become a potential part of the public record?

Response: As I said in my original message, I think serious challenges can be raised to the propriety of the three-judge panel's disclosure order. It is clearly not a Rule 6(e) order, since impeachment is not a judicial proceeding, and I do not think it is authorized under any other available provision of federal law. But as I think I also said, once the evidence was released, the cat is out of the bag and I think it's too late to do anything about the evidence.

You mentioned there were additional interpretations to the ruling. However, the judge's ruling was not challenged, either in the courts or in the House. In fact, the vote to release material was by an overwhelming, bi-partisan majority.

Response: No, neither the President nor anyone else with standing (i.e., anyone else who would have been injured by the release of evidence raised by the grand jury) challenged the order, for any of several reasons. For one thing, the order was sealed when it was entered and was not made public for two months, until Starr released the grand jury evidence--the order was released then, as well. Consequently, many people thought Starr would go to the court, before seeking to release the evidence, and publicly apply for a disclosure order, which would then give persons with standing an opportunity to oppose his request.

Since the order was sealed, and since disclosure subsequently occurred under the aegis of that order, they never got the chance. Also, the President no doubt would not have moved to challenge the release of the information had he had the chance to do so because of political reasons. That is, the President and his advisors probably felt that challenging the release of the information would be politically disastrous, as it would make it appear that he was trying to hide something.

And as all this illustrates, a court can do something that is not proper, but no consequence attached in our system unless someone challenges what the court did.

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