[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.
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.