I heard a member of congress say, during the impeachment
hearings, that when someone is asked a question during grand jury testimony, he has three
1. to tell the truth.
2. to lie, and
3. refuse to testify under grounds that he may incriminate himself.
Response: This is absolutely correct--the options are
often described as a witness' trilemma (since there are three options).
It seems that if I, as a private citizen had
chosen option 3, that while that tact would imply guilt to those people on the grand jury,
those outside of the grand jury would never hear of it. If I was to be prosecuted and/or
eventually found guilty, other evidence would have to support it and no one outside of the
grand jury would know of my own reticence in answering questions. However, in President
Clinton's case, he had no expectation of secrecy. Most things said are now known to
everyone, either through unofficial "leaks", or to Mr. Starr's own loose
interpretation of the secrecy laws, (By the way, Mr. Starr seems to hold himself to a much
looser interpretation of law than he holds others), or to the eventual turnover of
evidence to a republican congress bent on embarrassing the president as much as possible
by almost immediate publication. Since President Clinton had no expectation of secrecy,
and since then using option 3, refusing to testify, would cause not just the grand jury,
but everyone to assume guilt, President Clinton had less rights than an average citizen
under equal circumstances. Not only that, but the goal of Starr's investigation -- to
impeach President Clinton's presidency, would be partly accomplished by just having him
testify and allow the results to be known. After all, President Clinton had real reason to
believe that the publication of such a response, refusing to testify for
self-incrimination reasons, and the assumptions people would make, would put his
presidency at risk, or at least do it harm, by itself. This is not to mention doing great
harm to his relationship with his wife and daughter.
Response: Personally, I agree absolutely with what you
say. The concept of grand jury secrecy is intended to (and normally does) protect a
witness from the consequences either of speaking freely or of invoking his/her 5th
amendment privilege and refusing to speak at all. As you say, the President clearly did
not have this second option, at least not in a practical sense. Now, the supporters of
Starr would say that he did in fact have that option, as a matter of law, and the
possibility of negative political and personal consequences redounding from his taking the
5th were not of Starr's doing.
Should a grand jury considering the
impeachment of the president operate by the normal rules of a grand jury if in fact it
does not and cannot have the same results as a regular grand jury (secrecy and criminal
Response: I think what we've seen in this instance
(which I distinguish from the Watergate investigation) comes perilously close to using the
grand jury to pursue a political agenda. . . which is exactly what it is NOT supposed to
be used for. The thing that amazes me is that Starr was able to pursue this agenda with
almost no opposition; I find that frightening, and I hope it does not set a precedent for
(In the Watergate affair, the grand jury began investigating the Watergate
break-in, not knowing their investigation would lead to the White House and the President.
And that grand jury indicted the people they found to have engaged in crimes, except for
President Nixon. They wanted to indict him, but prosecutors talked them out of that and
into naming him as an unindicted co-conspirator. My point is that the instigation and
pursuit of that grand jury investigation followed the traditional "investigate a
federal crime" model, not Starr's "pursue a political agenda" model.)
And under such circumstances, where the
person testifying feels the greater good would be to not be forthcoming if he followed
where he was being led, what options does he have if the one the constitution gives him is
Response: Under the trilemma, he only has two: To lie
(which he is being accused of) or to tell the truth and thereby perhaps ensure that he
will be indicted and convicted.
It seems that President Clintons
crime, if he committed perjury before the grand jury, is a manufactured one, rather that
one that would be committed by a person during a normal grand jury process.
Response: Again, I tend to agree. There is a concept
in grand jury practice known as a perjury trap. A perjury trap occurs when a prosecutor
brings a witness before a grand jury to ask him/her questions; the prosecutor is not
calling the witness to obtain information from him or her, but to try to get the witness
to lie, thereby committing perjury and giving the prosecutor a ready-made charge against
the person. Several lower federal courts have held that perjury traps are improper, and I
think that objection could have been raised as to the President's grand jury appearance. .
. but raising it would have brought up the political problems you noted earlier.
Additionally, I wonder about a 4th option.
Could the President have said that "none of the things I am being asked about, from
Monica to Ms. Jones to Whitewater, rise to the level of an impeachable offense, which is
the only result you can recommend, and I will not testify about those things"?
Response: He would not have been able to get away with
it. A witness before the grand jury (just like a witness at trial) does not have the power
to decide what he/she will answer or what information is relevant.
And, if he did, who would they appeal to to
decide whether he was being asked about conduct that is potentially an impeachable
offense? the Congress? the courts?
Response: As I noted above, it wouldn't work.
Since in fact he has not been impeached for
any of the other things he was being asked about, only for allegedly lying about them,
appealing the relevance to impeachment seems to me to be a reasonable tact, and a 4th
option for testimony that should be allowed before a grand jury investigating the
president for impeachment purposes, especially considering the distortion of the process
caused by the lack of any expectation of secrecy noted above.
Response: In a case called R. Enterprises (to
which there's a link on the web site - you can find it in the "federal links), the
U.S. Supreme Court addressed a witness' ability to challenge a subpoena on the grounds
that it sought evidence which was not relevant to the grand jury's inquiry. In R.
Enterprises, the Court held that in order to successfully challenge (and thereby avoid
complying with) a subpoena on the grounds that it seeks irrelevant evidence, the witness
has to show there is no reasonable likelihood that the subpoena will elicit evidence which
may be relevant to the grand jury's investigation. And since, in an earlier case, the
Court said that grand juries investigate (a) to find out if any crimes have been committed
and (b) simply to assure themselves that no crimes have been committed, it's pretty
hard to show that what they're looking for cannot reasonably be relevant to whatever it is
they're investigating. (Perfect Catch-22, in other words).
As you can probably tell, I am upset with a
process that has harmed the presidency of a good president but flawed man. The rabid
hatred of Clinton by the far right amazes me. I did not care much for Reagan, but I was in
the minority even during Irangate, and waited for the elections to change things.