American law is very clear: Outside of extraordinary circumstances, grand jury testimony is to be kept secret. Yet journalists tell us that the findings of Kenneth Starr’s grand jury will ultimately be released. Why doesn’t the principle of grand jury secrecy apply to Starr’s findings?
If Starr uncovers “specific and credible” evidence of impeachable offenses during his grand jury investigation, the Independent Counsel statute requires him to pass the evidence–including grand jury testimony–along to the House of Representatives. (The House decides whether to impeach the president. Impeachment–like a grand jury indictment–means only that a full-bore trial is warranted. The Senate has the job of trying impeachment. In other words, the Senate–like a trial jury–rules on guilt or innocence.) Though the House plays the role of a grand jury, it is not in fact a grand jury, and therefore isn’t regulated by grand jury secrecy statutes. That is, the House may release some, or all, or none of the information it has, including the grand jury testimony Starr has given it.
But if ordinary grand juries deliberate secretly, shouldn’t the House, qua grand jury, voluntarily do the same? The argument for keeping grand jury testimony secret is to protect Clinton’s reputation (and Monica Lewinsky’s and Vernon Jordan’s) if the House doesn’t impeach him. If, on the other hand, the House votes for impeachment, journalists and the public can inspect the evidence during the trial phase of the investigation (in the Senate). As in ordinary federal courts, grand jury secrecy protects the rights of the innocent while preserving the public’s right to know.
The opposing argument is that the House ought to release grand jury testimony and hold public hearings because this is no ordinary investigation. Given the political stakes, the public might not have faith in closed-door impeachment proceedings. The House could also argue that the ordinary justification for grand jury secrecy–protecting the reputation of the innocent–doesn’t apply in this instance, because of the massive publicity surrounding the investigation.
Finally, even if Starr does not uncover evidence of impeachable offenses, he is required by law to give a report of his ultimate findings to the three-judge panel charged with supervising his investigation. Almost certainly the report would discuss grand jury testimony. The supervisory panel may release some, all, or none of this report to the public.
Explainer thanks Professor Earl Dudley of University of Virginia Law School, Professor John Wiley of UCLA Law School, and Professor Phillip Johnson of Boalt Hall School of Law.