August 17, 1998
Today marks the first time a president has faced a grand jury in a criminal investigation. For over five hours today, President Clinton testified under oath about his relationship with Monica Lewinsky. Two former federal prosecutors discuss how Kenneth Starr is using the grand jury to further his investigation.
JIM LEHRER: Now the role of the grand jury and how it's being used specifically in this investigation by Independent Counsel Kenneth Starr. We get the perspectives of two former prosecutors now in private practice: Scott Turow was Assistant U.S. Attorney for the Northern district of Illinois; he's also a best-selling novelist. Joe Whitley was the U.S. Attorney for the Northern district of Georgia. Scott Turow, is this the proper use of a federal grand jury?
A RealAudio version of this segment on media coverage.
A RealAudio version of a discussion on the grand jury process.
A RealAudio version of a report from Washington Post reporter Dan Balz.
August 17, 1998:
An analysis of the media's coverage of the Starr investigation.
August 13, 1998:
What impact will the Starr investigation have on the institution of of the presidency ?
July 30, 1998:
Should Clinton address the public about the Lewinsky matter?
July 28, 1998:
Ken Starr makes an immunity deal with Monica Lewinsky.
July 27, 1998:
Ken Starr subpoenas the president to testify in front of his grand jury
July 21, 1998:
A roundtable discussion on Chief Justice Rehnquist's decision not to interfere with the subpoenas of secret service agents.
July 15, 1998:
Can the Justice Dept. force secret service agents to testify?
July 1, 1998:
A report on the question of executive privilege and the Starr investigation.
Browse the NewsHour's coverage of the Starr Investigation.
The Washington Post.
The White House .
An improper use of the grand jury?
SCOTT TUROW: Well, my short answer is no, because I think that the grand jury here is being used as a sort of subcommittee of the House Judiciary Committee to conduct impeachment proceedings.
JIM LEHRER: Why is it improper then?
SCOTT TUROW: Well, a grand jury is supposed to meet in secret to consider whether there is probable cause to bring charges that, frankly, the prosecutor has a realistic hope of proving in court. And, instead, we have had a virtually public proceeding where the rule of secrecy has been totally lost and where what's being investigated is not really a crime that I think any prosecutor realistically expects to bring to court.
JIM LEHRER: Mr. Whitley, you see it the same way?
JOE WHITLEY: No, I don't. I believe that the independent counsel in this situation is following the mandate set for him by the three-judge panel that appointed him in the first place, and his expanded jurisdiction covers all of these areas that he's gone into to include the Monica Lewinsky aspect of this investigation. But I think it's-he's been following the law as he sees it, and I think it's appropriate. Also, in this case we have an unusual amount of media coverage that's unprecedented that intrudes into the secrecy of the grand jury process, and although there have been allegations of leaks by the independent counsel's office, also those leaks are coming from many other places, and I think it's almost impossible in a town like Washington to keep things secret for too long, and I think that's what we see here.
JIM LEHRER: Mr. Whitley, if the president is the target of the investigation, is that unusual to call him as a witness, as they did today?
JOE WHITLEY: Absolutely, unprecedented in my experience, and I think because of the political considerations the president decided to go voluntarily to testify in front of this grand jury, but hardly ever, in my experience and I'm sure the experience of most prosecutors, would you subpoena a target to a grand jury setting like this.
JIM LEHRER: And Scott Turow, and yet, this grand jury is not about to indict President Clinton, right? I mean, he may be the target of the investigation, but they're not going to indict him. It would have to go to the House of Representatives.
SCOTT TUROW: I think the general understanding is that you cannot indict a sitting president. That is not, frankly, entirely clear if you've read the Supreme Court opinion in Clinton Vs. Jones, the Paula Jones lawsuit opinion that ruled that that case could go forward. But the general understanding, and it's been reported its Mr. Starr's opinion that he cannot indict the president while he is president.
JIM LEHRER: Now, you say, Mr. Turow, that this is not the way Kenneth Starr should have done this. If he wanted to get the testimony about the Monica Lewinsky matter-the issues, for instance, that Dan Balz of The Washington Post just laid out with Margaret Warner-how else could he do it, except through a grand jury proceeding?
SCOTT TUROW: My reading of the independent counsel statute, which says that he's supposed to report substantial and credible information to the House for possible impeachment proceedings, would say that as soon as Linda Tripp had emerged with her tapes, that the matter should have been referred. It's improper to be using a grand jury to gather evidence for the House of Representatives. You're taking the judicial branch and using it for what is constitutionally a legislative function.
JIM LEHRER: Now, Joe Whitley, you just don't see it that way, right?
JOE WHITLEY: I don't agree with that. I think that he had to explore this because it's been a pattern of-he believes-of obstruction of justice, of suborning perjury and perjury, seen from other witnesses as we know. Vernon Jordan, for example, played a large role in the retention of Web Hubble by large companies, and the hiring of Monica Lewinsky or the almost hiring by the State Department of Monica Lewinsky, the almost hiring by the State Department of Monica Lewinsky and also the almost-hiring of Monica Lewinsky by the Revlon Corporation, all represent what the independent counsel thought was a pattern here. There are other individuals beside the president who were under investigation here. Monica Lewinsky, herself, may very well have been charged in this case, but she will not be charged, so I don't think the independent counsel could have left it where it was suggested he leave it by Scott Turow.
JIM LEHRER: In other words, he couldn't have just turned it over to the House of Representatives?
JOE WHITLEY: I don't think it would have been appropriate. I think that he had a job to do to pursue this to the end of it. I think he's done that. I think it's made a decision that the president is not chargeable under the Constitution. That's his decision, but I think there is some debate, as Scott Turow indicated, but I think it was appropriate to go the distance and then present it to the House of Representatives.
JIM LEHRER: Beginning with you, Mr. Whitley, and then to you, Mr. Turow, help those of us who have not either been before or involved with a grand jury before. How does this thing work? It's been suggested and been said flatly that a federal grand jury is essentially a tool of a prosecutor. Do you agree with that, Mr. Whitley? Is that what this is really all about?
A grand jury "serves a very useful purpose in filtering out cases that should not be pursued..."
JOE WHITLEY: Well, I don't think so, and I think it serves a very useful purpose in filtering out cases that should not be pursued, and I think it should be both a sword and a shield. And I think that's something that Mr. Turow and I would agree on. I believe it serves a very useful purpose in filtering out cases that should not be pursued and also grand jury secrecy is very important. And in most cases somebody's innocent of any crimes-matters like this would not be known to the public. So I think it serves a very useful purpose. It involves the citizens in a community; the citizens in this case-23 citizens-and from the District of Columbia-involved in looking at this very important issue, so I think it serves a very useful purpose.
JIM LEHRER: And it keeps the police, Mr. Turow, from arbitrarily prosecuting people capriciously. That's the point of the exercise, right?
SCOTT TUROW: That's correct. The Constitution guarantees the right to be indicted by a grand jury, and the theory at that time, and I agree with Mr. Whitley. I think it still holds true-was to make sure-put a citizen buffer between the government and citizens and to prevent baseless accusations from being brought forth. That said, though, having appeared before grand juries as a prosecutor and having defended on the other side now for many years, the old saying that a good prosecutor can get a grand jury to indict a ham sandwich is still true. A grand jury exists, guided solely and hearing solely from the prosecution.
JIM LEHRER: Because there is no defense-the defense lawyer is not even allowed in the room under normal circumstances, and no defense is put on for the jurors to hear, correct?
SCOTT TUROW: That is absolutely correct. Under the federal system a lawyer is not permitted to even enter the grand jury room.
JIM LEHRER: Mr. Whitley, you wouldn't dispute that, would you?
JOE WHITLEY: No, I would not. I think that's one of the more unusual aspects of the process, where your lawyer must wait outside the grand jury room door ordinarily. In this case the president had his lawyer very close by, but if you have a question to ask your lawyer, you must ask the prosecutor for an opportunity to do that and then seek a recess and go outside and then come back in after you've had your counsel give you advice and information on what you should do next. But it is a process that's been very effective against organized criminal activity, against public corruption activity. It's a great tool, a great resource for prosecutors, and if they abuse it, they might very well lose it in this country, but I think our federal prosecutors today are trained well, highly ethical standards in place, and I think that it's-only on rare occasions is it abused, and I think in most cases prosecutors observe and appreciate the power that they have with a federal grand jury.
JIM LEHRER: Mr. Whitley, you would not see what Kenneth Starr is doing as an abuse of this federal grand jury system?
JOE WHITLEY: No, I would not. I think it's stretching it to the limit in the sense that the public is looking at it-the public sometimes is not as informed on these issues as we are, as attorneys-and unfortunately, sometimes the system becomes a caricature. But I believe in this case Mr. Starr has taken his oath seriously. I think he's passed along that seriousness to his employees that work for him and the independent counsel's office. And I think that he has not abused the process.
JIM LEHRER: Mr. Turow, would you use the word "abuse?"
SCOTT TUROW: Well, I don't like to be that accusatory, but I would say that the destruction of the rule of secrecy has really destroyed the process. The president, for example, were he any other citizen, would never be testifying before that grand jury today. He would do what grand jury targets always do in the rare instances when they're actually subpoenaed, and that is he would claim his right against self-incrimination. And because there is no secrecy attending this process, although there is supposed to be, he can't do it, because he fears the political-not the legal-consequences.
JIM LEHRER: And, Mr. Whitley, there is a force, is there not, behind a grand jury subpoena-just the fact that the grand jury wants to hear from you, whether you're the President of the United States or somebody else-that's different than say, I'd like to send over a couple of FBI agents to interview you? There's a force there that most people cannot resist, correct?
JOE WHITLEY: That's correct. You're under compulsion to appear, and, failing to appear, you may be held in contempt by the court. So there is an altogether different circumstance from voluntarily appearing, a force in this case the president, after receiving a subpoena, agreed to voluntarily appear, and I think, as Scott suggested for political reasons, this was a situation where I think the president realized and appreciated he would not likely be prosecuted in criminal court, but his jury-his jury of peers, if you will, will be the politicians from the other end of Pennsylvania Avenue, who will be deciding whether or not to bring articles of impeachment.
JIM LEHRER: And that, to you, Mr. Whitley, is a perfectly legitimate use of this grand jury?
JOE WHITLEY: I believe so. I think it focused this entire investigation. I think Congress will now have a much easier job of looking at this. Frankly, Congress as a body is very ineffective in my view in conducting detailed investigations like this one was. So I think that he used all the tools that he had available to him to look into this, and I think now at this point in time I believe he's going to be making a report to Congress.
JIM LEHRER: You disagree with that, Mr. Turow?
"It is not meant to conduct a subcommittee search for impeachment evidence."
SCOTT TUROW: I certainly do. I do not think that that is an appropriate function. The grand jury has enormous power. It does operate in secret. And it is meant to prefer charges in public or to clear the innocent. It is not meant to conduct a subcommittee search for impeachment evidence.
JIM LEHRER: Okay.
JOE WHITLEY: This case he had to do it this way. I don't think he had any choice, because he believes-and I believe he's correct-he cannot prosecute the president, so with this particular target or this particular individual he had no choice but to proceed the way he did, and I think that-
SCOTT TUROW: And I say-
JOE WHITLEY: --in this circumstance it was appropriate.
SCOTT TUROW: And I say he should have referred the matter as soon as the Tripp tapes were in hand. He should have referred it to the House.
JOE WHITLEY: And also-excuse me-
JIM LEHRER: No, go ahead.
JOE WHITLEY: Also, I would add that there are two roles of a grand jury. One is to fact find, as this grand jury has done a good bit of, and the other is to charge, and in this case, the grand jury has done a lot of the former, as opposed to the latter, as it concerns President Clinton.
JIM LEHRER: All right. Well, gentlemen, we have to leave it there. Thank you both very much.