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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.

 

Swearing in President Clinton.

Who swears in a witness before a Grand Jury?

Response: Under Rule 6(c) of the Federal Rules of Criminal Procedure, the grand jury's foreperson or deputy foreperson swears witnesses in.

I have heard that when the Grand Jury testimony of President Clinton was taken, he was sworn in by an Assistant Prosecutor and that was improper. Who legally swears in a witness? If Mr. Clinton was wrongly sworn in, what is the status of his testimony?

Response: President Clinton was sworn in by a prosecutor (if what you've heard is true, and I suspect it is), it was because he was not testifying before the grand jury but at a distance, with his testimony being relayed via video transmission. Since the grand jurors were not physically in the same place as the President, I assume the prosecutors decided that one of them would have to administer the oath. . . on the assumption, no doubt, that the oath would have to be administered by someone who was in the same room as the president.

This would be a clear violation of Rule 6(c). I'm not aware of this ever having come up before, probably because witnesses normally testify before a grand jury and are, therefore, sworn in by a foreperson or deputy foreperson. I do not think the error would have any serious legal consequences, since the U.S. Supreme Court has applied the doctrine of "harmless error" to grand jury proceedings. This means that if an error, like having a witness incorrectly sworn in, occurs during a grand jury proceeding, courts will not order any kind of remedial action if the error was "harmless," i.e., if it did not prejudice the object of the grand jury inquiry. To be harmless, a court must be able to say, with some confidence, that an error did not influence a grand jury's action, which is usually to indict someone. Since the President has not been indicted, I assume the test here would be whether the error in swearing him in caused the grand jury to issue a report to the House Judiciary Committee when it would not have done so if he had been correctly sworn in. And it seems to me that the answer to that question has to be that the error was harmless.

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