Is a grand jury that doesn't indict really a grand jury?

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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 a grand jury that doesn’t indict really a grand jury?

I just have a thought and wonder if you could advise me on it. When Starr's Grand Jury started out, I remember reading that, for constitutional reasons, it could not deliver an indictment against President Clinton. Since the main reason for the existence of a grand jury is to deliver an indictment, one that cannot can't possibly be considered a grand jury. (I'm not a lawyer, so I may be wrong.)

Response: You may not be wrong: One of the basic principles of federal grand jury practice is that it is an abuse of the grand jury to use a grand jury for any purpose other than to investigate (and charge, if charges are warranted) the commission of federal crimes. I think one can infer from the conduct and course of Starr's inquiry that he never intended to indict the President (or, possibly, anyone), that he was using the grand jury to gather information for an impeachment. Since an impeachment is a civil proceeding, it is an abuse of the grand jury process to use the grand jury to gather evidence for an impeachment. . . but if no one raises the issue (and the President's lawyers did not raise the issue), the abuse apparently goes unaddressed.

If Starr's "grand jury" turns out not to be a real one, then how could the president be accused of lying to it? If he cannot, then the first Article of Impeachment against him should be dropped and, possibly, even the second article.

Response: This might work, even at this late date, but I do not think the President's lawyers are going to raise the issue, for the same reasons they chose not to raise it before.

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