By Toni Locy
To some legal specialists, members of Grand Jury 97-2 were significant participants in the historic testimony by President Clinton, serving their role in the judicial process.
But to others, they were mere props "cardboard cut-outs," as one expert put it in a highly unusual legal drama. Unlike any grand jury whose work is aimed at deciding whether to indict a particular target, the grand jury investigating the president's relationship with Monica S. Lewinsky matter is in an anomalous position: gathering evidence that, most likely, it will never be asked to vote on to consider whether it merits indictment. Instead, the information will probably simply be shipped to Congress for use in possible impeachment proceedings.
"The grand jury really will have nothing to say about this. They are just sitting there. They could be cardboard cut-outs because they have no role," said Georgetown University law professor Paul Rothstein.
"The grand jurors lend an air of legitmacy to an investigation that is really fiction," Rothstein said.
Legal experts are divided on the question of whether it is constitutional to indict a sitting president, and independent counsel Kenneth W. Starr has not ruled out the possibility of seeking an indictment. For the time being, however, he appears to have chosen the route of reporting to Congress. For that reason, said Harvard Law School professor Laurence H. Tribe, "The solemnity and seriousness with which people sometimes invest in the business of testifying before a grand jury is somewhat misplaced when the grand jury is part of the landscape rather than part of the decision-making."
Criminal defense lawyer Thomas E. Patton said that even if the grand jury never considers whether to indict the president, it has served as "a means by which the truth is ascertained," investigating Clinton's friend Vernon E. Jordan, Lewinsky, and others. "It's job will have been worthwhile," he said. "The fact that a grand jury doesn't return [an indictment] does not make it a prop."
The grand jury's role is particularly unusual at this stage in this case, however, because it does not appear to be focusing on the conduct of anyone other than the president, especially now that Lewinsky who had been in legal jeopardy because of her sworn denial of any sexual relationship with Clinton has been given immunity from prosecution.
In part, the strange situation in which the grand jury finds itself is a function of the independent counsel law, which places the president whether or not he can be indicted at the pinnacle of the list of "covered persons" whose actions cannot credibly be investigated by his own Justice Department. The statute specifically provides for the independent counsel to report to Congress any evidence it finds of impeachable offenses.
That section was placed in the law because of the unprecedented situation that Watergate special prosecutor Leon Jaworski faced when grappling with how to handle the evidence the Watergate grand jury had amassed against President Richard M. Nixon, who had been named an unindicted co-conspirator in the cover-up case. Jaworski ended up sending his information to the House, which used it as a "road map" for the impeachment proceedings.
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