Federal Grand Jury Banner


 

 

    Site Map   Links Home

Search
FAQ's about Grand Juries Federal Grand Jury Info Multimedia Overview
Feedback, Comments, & Stories State Grand Jury Info Grand Juries in the News

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.

 

What kinds of options does a grand jury witness have?

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 options:

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 indictment)?

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 the future.

(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 taken away?

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 Clinton’s 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.

Federal Grand Jury
Home Page

 


E-mail questions, comments, or suggestions regarding this site 

Credits: Susan Brenner, Lori Shaw
Website Research Assistant : Dave Hunter
Copyright 1997 - 2003 All rights reserved
Privacy Policy