Grand Juries And Justice

by Alexander Cockburn

When the Lewinsky affair first broke, it seemed a fair bet that the president could play for time until his term expired. Yet see him now. In a mere six months, despite the most resourceful lawyers and intrepid spin-doctors, Clinton's legal barricades have been breached, just as any attorney with experience in the criminal bar could have predicted.

Start with the so-called "transactional immunity" given by independent counsel Kenneth Starr to Monica Lewinsky and her mother, Marsha Lewis. Under the bargain whereby she gained this immunity, Lewinsky agreed to answer 70 questions and in the course of her responses reportedly conceded she had an intimate sexual relationship with the president.

In return for this admission, which implies that the president perjured himself in his sworn denial of such intimacy, Lewinsky now essentially has immunity for any crime she may have committed in her life thus far. "Transactional immunity" is an all-embracing category.

Not only that. The prospect of Lewinsky's testimony was so appetizing to Starr that he assented to her demand that her mother also be given transactional immunity. This may have been no small gift, since the Tripp tapes suggest that the mother may have been the intellectual author of a scheme to keep Tripp from giving a deposition in the Paula Jones case on her knowledge of the president's alleged groping of Kathleen Willey. In other words, Monica's promised testimony may have gotten her mother off a serious rap for obstruction of justice.

Most days in America, a prosecutor somewhere is offering someone immunity, or a reduced sentence, or financial compensation in return for testimony against targets of their investigations. Ever since confessions extorted by beatings were phased out in the late 1920s, these promises have become the prime lubricant of the justice system in this country.

Such prosecutorial promises have certainly become a constant feature of the war on drugs, pressed relentlessly by Clinton's Justice Department. More often than not, these promises have been made to big-time dealers who then testify against the small fry.

The immunity deals have become so epidemic that the Tenth Circuit Court of Appeals recently agreed with a defense lawyer that one such promise made by the prosecution to a witness against his client did indeed constitute an unlawful bribe. The entire bar is now awaiting breathlessly the U.S. Supreme Court's ruling on the matter.

To make her scheduled confessions, so damaging to the president, Lewinsky went before a grand jury in Washington as the 70th witness called by Starr. As originally conceived, the role of the grand jury was to probe the merits of a prosecutor's case. But as long ago as 1929, Raymond Moley established in his famous book "Politics and Criminal Prosecution" that grand juries have become rubber stamps for prosecutors. Such is the undoubted truth today. Rare is the grand jury in which there are citizens with enough tenacity and self-assurance to give the prosecution's case unsparing scrutiny.

Ultimately, the president could insist that he cannot be forced to go before the grand jury, but short of this extreme position he has already argued that he should be allowed to have his lawyer, David Kendall, present when his is questioned. Every day, ordinary people face prosecutors in grand jury proceedings without benefit of counsel. And though in some states, such as Colorado, attorneys can be present, this is never the case with federal grand juries.

Clinton and his supporters have vehemently protested Starr's efforts to question White House lawyers such as Bruce Lindsay and have argued that this would be an unprecedented onslaught on client-attorney privilege. For ordinary people, such onslaughts have become ever more frequent, particularly in the war on drugs.

James Inciardi writes in his excellent 1989 book "The War on Drugs": "Since the Tax Reform Act of 1984 requires attorneys to report cash payments of $10,000 or more, attorneys can be brought before a grand jury to testify about fees and other information that is privileged. In consequence, many attorneys are not accepting drug trafficking cases, with the result that the integrity of the Sixth Amendment right to counsel has been called into question."

Clinton is in a corner, though not a fatal one. Impeachment is still an extraordinarily remote contingency. But let him reflect, as should we all, that every day in America people with none of the president's resources face the overwhelming arsenal available to prosecutors, most savagely at the federal level. We should at least hope that the Tenth Circuit decision will begin to turn the tide.