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Clinton Tape Pierces Secrecy

September 22, 1998

WASHINGTON (AP) _ For eight months of the grand jury investigation into President Clinton’s relationship with Monica Lewinsky, his lawyers and Independent Counsel Kenneth Starr’s prosecutors spoke gravely about the secrecy of the proceedings.

But barely a month after Clinton testified to the federal grand jury, a videotape of the entire four-hour session was released Monday, and newspapers prepared to publish more explicit details of sex in the White House.

By law, grand jury proceedings are secret. The video and transcripts of Clinton’s painful questioning were nonetheless released, along with transcripts of Ms. Lewinsky’s question-and-answer sessions.

The public also got a look at a raft of documents that might otherwise have come out only in a criminal trial, including results of a DNA test on Ms. Lewinsky’s blue dress and unsent letters to Clinton retrieved from her computer.

So what happened to grand jury secrecy?

The short answer is that three federal judges, who ordinarily jealously guard grand jury testimony, approved its release to Congress.

The House Judiciary Committee then voted to release it publicly, just as it voted to release Starr’s 445-page report. The report is also drawn from Starr’s the eight-month grand jury investigation of the Lewinsky matter.

A grand jury’s sessions are kept secret because they occur before an indictment, and the panel can always decide that prosecutors do not have enough evidence to make a case.

The more complicated answer, lawyers and scholars said, concerns the uncomfortable intersection of a criminal investigation with Congress’ constitutional duty to conduct impeachment proceedings, and the workings of the law governing independent counsels.

``The criminal justice system doesn’t know how to interact with a congressional impeachment proceeding, so the rules have gotten totally distorted, and grand jury secrecy got lost in the transition,″ said Dan Webb, a Chicago trial lawyer.

Although Starr used an ordinary Washington grand jury to collect his evidence, it was never clear that Starr could pursue a criminal indictment against Clinton, as prosecutors typically do after a grand jury investigation. Starr has apparently concluded he could not indict a sitting president so he instead forwarded his findings to Congress, which must now decide whether the evidence merits impeachment proceedings.

Before shipping the findings, indeed before Clinton even testified on Aug. 17, Starr had quietly secured permission to turn over the information to Congress from the special three-judge panel of federal judges that appointed him.

That meant the normal rules do not apply, inevitably leading to Congress’ politically-driven decision to release the information, said Akhil Reed Amar, a constitutional scholar at Yale Law School.

``Congress has had this thing dropped on them weeks before an election, which is very bad timing,″ said Amar, a longtime critic of the independent counsel law.

If Congress and not Starr’s grand jury had investigated the allegations against Clinton, lawmakers would have been careful to do so in a public, bipartisan way that would obviate any expectation of grand jury secrecy, Amar said.

``It would have looked, frankly, more like Watergate,″ which predated the independent counsel law by four years, Amar said.

Webb, a federal prosecutor who cross-examined former President Reagan in the Iran-Contra trial of John Poindexter, does not blame the independent counsel law for abridging normal grand jury protections.

``It’s not a matter of someone being at fault for this,″ Webb said. ``We just don’t have impeachment proceedings all that often in this country and the rules aren’t really designed to work with the criminal justice system.″

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