It's Not About Sex, It's About Civil Rights

Once again I stopped listening to the news this week. Not because I don't want to hear someone being grilled about his sex life, though I don't. Not because I'm a fan of Mr. Clinton, which I'm not. No, I ducked the news because I felt that something immensely unfair was happening, and I couldn't bring myself to participate.

Instead I spent my time trying to understand grand jury procedure -- a topic about which I never before had the slightest interest. I needed help, which appeared miraculously in the form of a distinguished colleague, lawyer Anthony Z. Roisman, whom I ran into in a Dartmouth parking lot last Monday, while the Clinton videotape was unreeling across the nation.

"Tony," I burst out, "isn't it illegal..."

"To release grand jury testimony to the public?" he completed my sentence. "Let me send you some interesting stuff on that," which he did. What I write here derives from that "stuff" and from Tony's attempt to give me a remedial legal education.

Let's start at the beginning, with what a grand jury is. It is not like the jury in the standard courtroom drama, a citizen panel listening to both sides in a procedure highly regulated so that evidence is presented fairly, the accused faces the accuser, the accused is represented by a lawyer -- so that, in short, the defendant has civil rights against the power of the state.

That's a regular jury. A grand jury hears ONLY ONE SIDE -- that of the prosecutor. The defendant does not hear and therefore cannot answer the testimony against him or her, does not have a lawyer to speak for him or her, cannot cross-examine witnesses. The grand jury's job is not to weigh the evidence from both sides; it is only to decide whether there is enough evidence on one side to bring a person to trial.

Rule 6(e) of the Rules of Criminal Procedure requires that jurors, interpreters, stenographers, attorneys shall not disclose matters occurring before the grand jury. The reason is that one-sided evidence, if made public, can unfairly prejudice the case of the defendant if he or she comes to trial -- or impugn his or her reputation unfairly if the grand jury rules there is no basis for trial. Another reason for grand jury secrecy is to encourage witnesses to appear and testify fully without fear of reprisal.

Rule 6(e) allows grand jury information to be released only by petition to the court and only to select officials for the purpose of enforcing the law. Recipients of the information are bound to use it only for that purpose.

Since the beginning of his investigation special prosecutor Kenneth Starr has failed to enforce this important rule. Just about everything said to his grand jury, especially everything salacious (a strange word to be dominating the news), has appeared in the press. People who know the law have been deeply uncomfortable about that. Bill Clinton has been rightfully furious. For the Congress, to whom the grand jury evidence was correctly delivered since this is an impeachment case, to turn around and broadcast a tape of his testimony -- well, that was plain political vindictiveness, an act of torture, an exercise in mean-mindedness. It would be totally illegal, except that Congress makes the laws and can exempt itself from them. (Newt Gingrich promised in 1994 not to do that any more, but in this case apparently he couldn't resist.)

Of course this is a special grand jury and Clinton is a special defendant. He knew he was being videotaped, he could guess what would happen to that tape, he conducted himself accordingly. Most everything had been leaked already anyway. In 1994 the U.S. Court of Appeals decided in the case of Oliver North to permit the release of grand jury evidence, because it had already been so thoroughly leaked -- but the court did so gingerly, allowing a ten-day appeal period, and with a motivation not of character destruction but of fairness. "Those leaks and those media accounts ... were partial and were in the judgment of this Court more unfair to the persons named than will be the present release of the completed Report."

That Court also ventured a forecast that turned out to be sadly accurate. "We understand that the calculus just recited may be a dangerous precedent.... A future Independent Counsel wishing to ensure the release of his report [c]ould go on television and make comments ... so that the Court could later find that the contents of the Report were already public.... As the Independent Counsel is virtually without supervision there would be little anyone could do about it. This danger may be inherent in the nature of the Independent Counsel."

What Clinton did with Lewinsky was despicable but was no threat to the nation. That he lied about it repeatedly and to the public is a reason for us to cease to trust him and for him to resign. That anyone could be treated as he was by our so-called justice system, that an uncontrolled prosecutor could be let loose to unearth any sort of evidence to destroy a person, that civil rights could be trampled and grand jury rules flaunted, that testimony could be delivered into the hands of a person's political enemies for them to use illegally and without restraint, these events shake the foundation of fair treatment under the law.

If they can do these things to the most powerful person in the nation, they can do them to you or me. Dictatorships behave this way, not democracies. There have been high crimes and misdemeanors in this case, but they have been committed by the special prosecutor and the Congress, not the president.