Lawyers Blast House Panel’s Release of Clinton Grand Jury Testimony

Upset by the House Judiciary Committee’s decision on Friday, many defense lawyers and ex-prosecutors condemned as unfair and unwarranted the public release of secret grand jury testimony.

“This turns American justice on its head. You gather all this evidence in a secret, one-sided proceeding run by the prosecutors and then make it available to the entire world,” said Denver attorney Larry Pozner, president of the National Assn. of Criminal Defense Lawyers. “In a normal case, nobody gets tarred like this.”

The latest development shows again that independent counsel Kenneth W. Starr’s investigation of President Clinton has been anything but the normal legal case, Pozner said.

And now more than ever, the disposition of Starr’s criminal investigation--and Clinton’s presidency--is a matter far more political than legal.

In an ordinary criminal procedure, for instance, the secrecy rule is the only major protection for those who come under investigation by a grand jury.

Prosecutors and grand juries are required to conduct their inquiries in secret to protect the privacy and reputation of the person being investigated--who, after all, might be innocent--as well as those who are called as witnesses or others whose names are mentioned in a damaging light. It is a crime for investigators or other court employees to disclose what they have heard.

Beyond that, prosecutors hold all the power. They decide what will be investigated, who will be called as witnesses, what questions will be asked and when the inquiry ends. No judge or defense lawyer is in the room to object if the questions are out of line.

The target of a grand jury investigation has almost no rights. He has no right to have a lawyer there each day observing the grand jury. He also has no right to ask questions, to call his own witnesses or to dispute what has been said against him.

Now, however, Clinton finds himself in a far worse spot than a normal criminal defendant. Having been investigated for seven months by an all-powerful grand jury, Clinton is seeing the secrecy rules waived by the House Republicans.

Last week, the House released Starr’s 445-page report, replete with lurid details of Clinton’s affair with Monica S. Lewinsky. On Monday, it plans to release 2,800 pages of material, along with the president’s videotaped testimony.

“It twists the whole purpose of grand jury proceedings if you are going to collect all this in secret and then dump it on the sidewalk,” said former federal prosecutor E. Lawrence Barcella Jr. “This is obviously designed to drag this out and make it as embarrassing as possible for Clinton.

“In a grand jury, you just get the prosecutor’s case. It is bound to be one-sided and unfair. In the normal case, you could not release this because of the problem of poisonous pretrial publicity. How could you pick an impartial jury?”

The House Republicans do not appear terribly concerned about the appearance of impartiality, said William Moffitt, a criminal defense lawyer in Washington.

“We spend a great deal of time in our society protecting the fairness of the process. Before you convict someone, we want to make sure the person got a fair hearing before a fair tribunal. If the process was fair, we accept the result as fair,” Moffitt said.

“The ultimate question is going to be whether this [impeachment inquiry] is a fair legal proceeding or a partisan political process. If the people running this are not concerned about procedural fairness, then it becomes just a naked exercise of political power.”

But others said impeachment is by its nature a political process, not a criminal proceeding, and the rules are bound to be different.

“What is unique here is that this is an investigation of the president, and everyone agrees the president can’t be indicted,” said George Washington University law professor Stephen A. Saltzburg, a former assistant independent counsel.

“Everyone understood Congress would be the recipient of the evidence” if Starr found grounds for impeachment, he said.

The mass release of Starr’s evidence also may have some benefits for the president, he added.

“Defense lawyers always want to know everything the prosecutors have. Now [Clinton] will know everything they have found,” Saltzburg said.

“It also lets the American people see for themselves. They can see who were the witnesses and what they said. The people can make their own judgment,” he continued.

Unlike the usual grand jury witness, Clinton was not forced to appear in person at the courthouse. And his lawyer, David E. Kendall, sat with him during the questioning.

However, that advantage has been turned against the president because his testimony was videotaped. Ordinarily, targets of grand jury investigations are called to testify under oath. Now Clinton, having agreed to appear, will have his testimony shown on television Monday.

Having a secret legal proceeding that yields televised testimony struck many lawyers and ex-prosecutors as fundamentally unfair.

“Why bother to have a secret grand jury proceeding in the first place if all of this was going to be fed to Congress and the public?” asked Laurie Levenson, associate dean of Loyola Law School in Los Angeles.

“We all knew who was the target of the investigation. Why not have public hearings in Congress from the beginning?”

Barcella said the mass release of grand jury material Monday is only the latest outrage in what has been for lawyers a thoroughly bizarre case.

“All we have learned from this is that if you were expecting prosecutorial restraint from Ken Starr or sexual restraint from Bill Clinton, you were going to be disappointed,” he said.