The Unconstitutionality and criminal
Improprieties
of the Powers of the Independent Counsel,
as authorized by the Ethics in Government
Act
The Grand
Jury Enquiry is judicial,
not prosecutorial
The unconstitutional
Device of the Grant of
Immunity
from Prosecution
Additional Points and Topics
on the Unconstitutionality
of the
Independent Counsel Statute
The improper use of the grand jury
Granting
immunity from prosecution
is improper
The Pardon Power vested in the President
Questions
of Improprieties
of
the Independent Counsel's Investigations
United
States Attorneys ought to be
learned
in Law
The President
ought not execute
an unconstitutional
Court Order
Dangerous
Consequences of an Independent Counsel
prosecuting
the President of the United States
Independent Counsel's Misuse (unlawful Use) of
the Grand Jury,
and Violations of the Fifth Amendment of the Constitution
The Ethics in Government Act, which created, but unconstitutionally, the office of "Independent Counsel," has armed this illegal officer with all sorts of powers that are as unconstitutional as they are plainly improper, and would also be criminally illegal under the common law existing at the time of the making of the Constitution, such as joining the grand jury with the criminal investigator (an executive officer) to make investigations of "possible" crimes, thus causing the grand jury to take on the character and interest of a prosecutor for crimes; whereas the grand jury is to be a judicial body a tribunal sworn for enquiring and judging the truth of the matter in question. According to the Constitution, more specifically, (1) Article I, Section 8, the power vested in Congress "To constitute Tribunals inferior to the Supreme Court," (2) the reference in Article I, Section 3 to the "Indictment" mode of criminal prosecution, (3) the Fifth Amendment of the Constitution which expressly relates the grand jury to the presentment and indictment modes of criminal prosecution, and (4) the meaning of these parts of the Constitution that was intended, according to established by the common law prior to the making of the United States Constitution, which common law pertaining to judicial procedure was laid down in Blackstone's Commentaries on the Laws of England, the Grand Jury is judicial, not prosecutorial!
As to a presentment of a grand jury, the grand jury takes notice of an offence from their own knowledge or observation without any bill of indictment laid before them at the suit of the United States, and, therefore, in a presentment, the Grand Jury presents its notice of a crime committed and by whom, without hearing any witnesses; for its presentment is founded on their own knowledge or observation; as an offence of a common nuisance, a libel, and the like. Therefore, no enquiry is performed by the Grand Jury, when a prosecution proceeds upon a presentment; which is followed afterwards by an officer of the court framing an indictment, whereupon the party accused is put to answer it. The indictment is the formal accusation.
Naturally, the presentment is a rare mode of criminal prosecution. The "most usual and effectual" mode of criminal prosecution is by the indictment, a written accusation by a prosecutor at the suit of the executive authority of the government, preferred privately to a grand jury for their enquiry and fact finding. In this usual mode of prosecution, by indictment of a grand jury, the grand jury are summoned, not by the prosecutor, but by the ministerial officer attending the court of judicature having criminal jurisdiction, and are instructed in the articles of their enquiry by a charge from the judge of the court; after which they then withdraw, to sit and receive indictments, not to generate them, and then to enquire into the indictments preferred to them, and the evidence laid before them, by the prosecutor. An "indictment of a grand jury," then, is the formal accusation preferred to a grand jury by counsel for the United States (the prosecutor) in the form of a bill of indictment, which is endorsed (signed) and presented to the Court by the grand jury following their enquiry and finding upon their oath a "true bill," but hearing privately only the evidence on behalf of the prosecution.
Thus, the prosecutor, an attorney for the United States, must have already concluded a criminal investigation and determined on behalf of the United States whether a crime has in fact been committed and who committed it, before he goes to the grand jury with an indictment. A "criminal investigation," as distinguished from a criminal prosecution (to prosecute a person for crimes committed), investigates allegations, indications, or evidence of crimes or possible crimes, and is to be performed without an involvement of the grand jury, and without extrajudicial oaths administered to the persons investigated or questioned in the "investigation." The grand jury inquiry is in the true sense a judicial trial. If the grand jury, upon their enquiry of a bill of indictment, find the accused person guilty, then the accused stands indicted; and this indictment is then followed by a second trial, also an enquiry, but performed by the petit jury, conducted by the judge of the Court of the criminal jurisdiction; which petit jury hears and enquires of the evidence of both sides. This two-enquiries process, the grand jury and the petit jury, constitutes a two-fold tribunal for determining or establishing the truth of the fact: a two-fold barrier between the liberties of the people and the executive (prosecutorial) power of the Government.
The Independent Counsel statute violates this principle of the Constitution, by authorizing the Independent Counsel to conduct criminal "investigations" in the presence of, with the involvement and active participation of, and in partnership with, the grand jury; such as the "Lewinsky Investigation," defined by the Independent Counsel's formal "prosecutorial jurisdiction" as ordered by the "Division" of the United States Circuit Court of Appeals, District of Columbia, to wit:
"The Independent Counsel shall have jurisdiction and authority to investigate to the maximum extent authorized by the Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or C misdemeanor or infraction in dealing with witness, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton."
(Division No. 94-1, January 16, 1998, United States Court of Appeals for the District of Columbia Circuit)
This "definition" of "prosecutorial jurisdiction," ordered by the "Division of the Court" is not a bill of indictment for laying before a grand jury: not an accusation that Monica Lewinsky has in fact violated federal laws; much less not an accusation that Mr. Clinton violated federal laws, since his hame is not even mentioned in the articles of the Independent Counsel's prosecutorial jurisdiction.
That the Ethics in Government Act in fact authorizes the Independent Counsel to involve the grand jury in criminal investigations, as distinguished from criminal prosecutions, is proved by the words of the Act itself, from §594(a) of Title 28 of the United States Code,
§ 594. Authority ad duties of an independent counsel
(a) Authorities. Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in such independent counsel's prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, ... Such investigative and prosecutorial functions and powers shall include
(1) conducting proceedings before grand juries and other investigations;
(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that such independent counsel considers necessary; ...
(7) making applications to any Federal court for a grant of immunity to any witness, consistent with applicable statutory require-ments, or for warrants, subpoenas, or other court orders, ...
(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States, and ..."
So, "investigative" and "prosecutorial" functions are distinct "functions," according to the Act. Indeed, the Act essentially abolishes the function of a grand jury as a judicial tribunal for enquiring of "indictments" (in violation of the Amendment V of the United States Constitution), by re-making its function "investigative," by the clause §594(a)(1) associating "proceedings before a grand jury" with "other investigations," and by declaring in clause §594(a)(9) that it is the Independent Counsel who frames and signs indictments , which in conjunction with §594(a)(1), perverts the Amendment V of the Constitution, as it is the grand jury that endorses, and therefore, signs, and indictment, more specifically, a bill of indictment, upon their enquiry and finding the bill to be true, not the counsel for the government. (Remember, in the presentment mode of criminal prosecution, an officer of the court, not an executive department officer, frames an indictment after a grand jury presents an accusation upon their own knowledge and observation. That is, the "framing" of an indictment is, under the Constitution of the United States, only associated with the presentment mode of prosecution; where the grand jury presents a notice they have taken of a criminal offense from their own knowledge or observation (no evidence laid before them by a prosecutor), afterwards, an officer of the court frames an indictment, that is to say, the putting into words the accusation of the grand jury, which indictment then becomes the formal accusation.
Thus, the Independent Counsel statute violates the Amendment V of the United States Constitution by misusing the grand jury, and by perverting the meaning of presentment; as if the grand jury could present their notice of a crime, not on the basis of their own knowledge or observation, but on the basis of evidence, including parol evidence, or witnesses, or, in other words, on the basis of the knowledge or observations of other persons, as evidence laid before them by an "independent counsel" in their "investigation" of "possible" or "alleged" crimes. It is all a patent perversion of the Constitution.
The improper and unconstitutional use of grand juries for making investigations of alleged or possible crimes, as the Independent Counsel is "authorized" by the Ethics in Government Act, resembles a thing called a special grand jury found in Chapter 216 of Title 18 of the United States Code, denominated "Special Grand Jury." By this Chapter, the "powers and duties" of the special grand jury is:
§3332. Powers and duties.
(a) It shall be the duty of each such [special] grand jury empanelled with any judicial district to inquire into offense against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the grand jury by the court [ugh!] or by any attorney appearing on behalf of the United States for the presentation of evidence. [ugh! ugh!]... (18 U.S.C. §3332)
§3333. Reports
(a) A special grand jury ... may, upon completion of its original terms, submit to the court a report
(1) concerning noncriminal [ugh!] misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action; or
(2) regarding organized crime conditions in the district.
(b) The court to which such report is submitted shall examine it and ... shall make an order accepting and filing such report as a public record only if the court is satisfied that it complies with the provisions of subsection (a) of this section and that
(1) the report is based upon facts revealed in the course of an investigation authorized by subsection (a) of section 3332 and is supported by the preponderance of the evidence; ...
(c) ... the United States attorney shall deliver a true copy of such report, and the appendix [containing an "answer" filed by each person more or less accused in the report], if any, for appropriate action to each public officer or body having jurisdiction, responsibility, or authority over each public officer or employee named in the report.
By the foregoing definition of chapter 216, the special grand jury somewhat resembles the "grand jury investigation" being conducted by the present Independent Counsel in regards to "Monica Lewinsky, and others," in that there is no clear end point of the "special grand jury." Does this grand jury merely investigates? Does it endorse indictments? No. Does it convict? There is no sign of what it is to do, other than make a report of its "investigation" for others to decide what to do with.
Title 18 of the United States Code of laws on the "Crimes and Criminal Procedure," provides for a "regular grand jury" apart from a "special grand jury" (chapter 215) (see also 18 U.S.C. §3334), which, according to Rule 6 of the Federal Rules of Criminal Procedure (rules made unconstitutionally by the Supreme Court, as they are not vested with legislative power for making the laws on the rules of proceeding in the courts of the United States), could serve the proper grand jury function of enquiring into the matter of the indictment preferred to them by a private prosecutor on behalf of the government, hearing only the evidence laid before them by the prosecution.
The special grand jury of Chapter 216, however, is a different thing, and more or less fits the so-called "grand jury" that is prescribed in §594(a)(1) of the Independent Counsel statute (Ethics in Government Act), namely, a kind of investigative body for "inquiring," or investigating allegations of offences committed, and not for enquiring into an accusation of a criminal offense: not for inquiring into an indictment preferred to, that is, laid before, them (this special grand jury); but an investigation, or inquiry if you will, of questions as to whether or not crimes may have been committed, arising out of information or allegations received "by the court or any attorney appearing on behalf of the United States" (18 U.S.C. §3332). Such a "special grand jury" is a misuse of the judicial power vested in the Courts of the United States by the Constitution; for in criminal cases, the judicial power, including the grand jury as well as the petit jury, are to judge of accusations of offenses against the United States, not to make investigations of possible crimes (without any person charged with a crimes), or to discover crimes, and then charge persons with committing crimes on the basis of the "evidence" gathered by such investigation.
Therefore, the investigative body, "Special Grand Jury," prescribed in Chapter 216 of Title 18 of the United States Code is unconstitutional, the Congress not having the constitutional power to make any laws they think proper, but only laws which shall be necessary and proper for carrying into execution the judicial power vested in the Courts of the United States (Article I, Section 8 of the Constitution). I making the necessary and proper laws for carrying into execution the "judicial power" that is vested in the Courts of the United States by Article III, Section 1 of the Constitution, the Congress must be careful to make the rules of proceeding in the courts, and to constitute tribunals inferior to the .s, which conform to the certain intent of the Constitution (the tenor of the Constitution, or the demonstrable intent of the People who ordained and established the Constitution) with respect to the true meaning of the "judicial Power," "Tribunals," "Grand jury," and other terms and expressions used in the Constitution pertaining to the rules of proceeding in the courts of justice. Blackstone's Commentaries on the Laws of England provides us with that certain intent.
From that most authoritative treatise, we find that "the regular and ordinary method of proceeding in the courts of criminal jurisdiction" follows a distinct progressive order of steps in which a grand jury does not perform any enquiry until after a person has been charged with a crime, who has first been arrested, if he can be found, then brought to a proper magistrate for an examination of the circumstances of the alleged crime, including an examination of the prisoner (but not upon his oath) and of the information of those who brought him, and who is then either committed to prison for safe custody, or released on bail, as security for his appearance, to answer the charge against him, if subsequently indicted, and then only if a prosecutor lays before the grand jury a bill of indictment that accuses the person charged. This is absolutely plain from chapters 21 through 32 of Book IV of "Public Wrongs," or Crimes and Misdemeanors, of Blackstone's Commentaries. The distinct progressive order of steps in the method of criminal proceeding in a court of criminal jurisdiction, given by Blackstone (thus intended by the makers of the Constitution as the use of a Grand Jury) is:
The Steps of a Criminal Proceeding
according to Blackstone's Commentaries
1. Arrest
2. Commitment and Bail
3. Prosecution
(The grand jury enquiry
occurs in this step.)
4. Process
5. Arraignment
6. Plea and Issue
7. Trial and Conviction
8. Judgment
9. Reversal of Judgment
10. Reprieve or Pardon
11. Execution
The arrest, says Blackstone's Commentaries, is:
"the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. To this arrest all persons whatsoever are, without distinction equally liable to all criminal cases: but no man is to be arrested, unless charged with such a crime, as will at least justify holding him to bail, when taken. ...
... 1. That a justice of the peace hath power to issue a warrant to apprehend a person accused of a felony, though not yet indicted; and 2. That he may also issue a warrant to apprehend a person suspected of felony, though the original suspicion be not in himself, but in the party that prays his warrant; because he is a competent judge of the probability offered to him of such suspicion. But in both cases it is fitting to examine upon oath the party requiring the warrant, as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party, against whom the warrant is prayed. ... A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for it's uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge of the ground of suspicion. And a warrant to apprehend all persons guilty of a crime therein specified, is no legal warrant: for the point, upon which it's authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereupon be really guilty or not. It is therefor in fact no warrant at all: for it will not justify the officer who acts under it" (IV, Ch. 21, p. 286)
Thus, even if there is only a "suspected crime," the grand jury still cannot enquire of such unless a person (or persons) have been charged with such and arrested, if he or they can be found. Also, there must be a probability of a suspected crime, not a mere "possible" crime. It is manifest that the "expanded prosecutorial jurisdiction" of Independent Counsel Starr, to wit, "to investigate to the maximum extent authorized by the Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law," would not authorize a magistrate to grant a warrant for the arrest of "other persons," because of its uncertainty.
The next step of the criminal proceeding is Commitment and Bail. Said Blackstone's Commentaries:
"When a delinquent is arrested ... he ought regularly to be carried before a justice of the peace. ...
The justice, before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged: ... he is to take in writing the examination of such prisoner, and the information of those who bring him: which,Mr. Lambard observes, was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum;* and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men. If upon this enquiry it manifestly appears, either that no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison, or give bail; that is, put in securities for his appearance, to answer the charge against him. ..."
(IV, Ch. 22, p. 294)
[* The latin expression means, "No one is bound or to be compelled to betray himself."]
Here observe the principle: "Fault is not to be wrung out of the person charge but rather is to be discovered by other means, and other men." Hence, the Fifth Amendment of the Constitution!
The next step in the criminal proceeding is the prosecution before the grand jury, if the magistrate upon performing the immediate enquiry following the arrest finds that it is not manifestly apparent that no crime as alleged was committed, or that the suspicion was wholly groundless, and had discharged the arrested person. This step, of prosecution, is thoroughly explained in Chapter 23 of Blackstone's Commentaries, "Of the several Modes of Prosecution." (This chapter will be analyzed shortly.) Therefore, it is clear so far from the progressive order of steps in the criminal proceeding, laid down in Blackstone's Commentaries, that a grand jury is not to be involved in a criminal proceeding unless a person has been charged with committing a crime or a suspect crime (with probability proved on the oath of the party that required the arrest warrant) and arrested, then brought before a magistrate and examined for a threshold decision on keeping or restraining the person for further proceedings. As we see from Blackstone's Chapter 23, the grand jury is not involved unless a prosecutor lays before them a bill of indictment, thus accusing (not only charging) the person arrested of having committed a crime.
The "special grand jury" prescribed by Chapter 216 of Title 18 of the United States Code is not to be found in the common law of England when the United States Constitution was made, hence the tenor (intent) of the "judicial Power," "Tribunals inferior to the supreme Court," and "Grand Jury," provided for or mentioned in the Constitution. The Title 18 "Special Grand Jury" might be said to resemble the thing called an inquisition of office, described in Blackstone's Commentaries:
"Such is that of inquisition or inquest of office: which is an enquiry made by the king's officer, his sheriff, coroner, or escheater, virtute officii, or by writ to them sent for that purpose, ... concerning any matter that intitles the king to the possession of lands or tenements, goods or chattels. This is done by a jury of no determinate number; ..." (III, Ch. 17, p. 258)
The foregoing description pertains a method of redressing civil injuries received by the king from a subject (id., p. 257). But Blackstone said in this part that the inquisition of office is used in criminal proceedings as well (id., p. 259). In Book IV on Public Wrongs (Crimes and Misdemeanors), he is more precise:
"An inquisition of office is the act of a jury, summoned by the proper officer to enquire of matters relating to the crown, upon evidence laid before them." (IV, Ch. 23, p. 298)
The inquisition of office, according to Blackstone, comprehends, in the case of criminal prosecutions, two types: One type, called inquisition of office, which renders convictions, which cannot afterwards be traversed or denied, and ought to hear the evidence alleged on both sides; but these are relegated to petty offenses. The other is the Grand Jury for cases of high crimes or misdemeanors, as distinguished from petty offense. Either type does not fit the description of the "special grand jury" of Title 18.
The point to make here is that an inquisition of office is the act of a jury, which is sworn to enquire into matters, either an injury civil or criminal offense, which jury enquires into evidence laid before them, hence, it is a judicial function, as a jury is from the word jurata, or a "sworn judge," which is not to be influence by making criminal investigations of possible crimes and detection of crimes, and then rendering a judgment on the basis of the evidence which they themselves gather. Such a method of proceeding would plainly constitute a colossal "conflict of interest," the investigator judging his own facts: a prosecutor judging his own cause.
It is significant that Independent Counsel K. Starr does not state in his Referral report nor in his testimony before the Judiciary Committee of the House of Representatives, nor in the subpoena issued to Mr. Clinton and the OIC's letter accompanying the subpoena (July 17, 1998) that the grand jury which is conducting an investigation of "Monica Lewinsky and others" is a "special grand jury" or a "regular grand jury." Nor has he cited which section of the United States Code that the "grand jury" of his investigation is supposedly authorized by law; unless he means to assume that the Independent Counsel statute establishes a third form or kind of a "grand jury" which, like the Ch. 216 "special grand jury" makes "investigations." The deputy Independent Counsel, Sol Wisenberg, stated at the start of Mr. Clinton's "grand jury testimony" that,
"The grand jury, Mr. President, has been empanelled by the United States District Court for the District of Columbia. Do you understand that, sir? [Clinton: I do.] And, among other things, is currently investigating under the authority of the Court of Appeals upon application by the Attorney General, whether Monica Lewinsky or others obstructed justice, intimidated witnesses, or committed other crimes related to the case of Jones v. Clinton."(1)
The deputy Independent Counsel did not declare the section of the law that authorizes the grand jury's empanelment for the Independent Counsel's proceedings. Neither does the subpoena on Mr. Clinton to appear before the grand jury to testify, nor the OIC's letter accompanying the subpoena, declare the section of the law that authorizes the grand jury's empanelment to receive testimony from Mr. Clinton per the Independent Counsel's "authority."
That the Independent Counsel has in fact misused the grand jury to involve that judicial tribunal in the investigation of possible or alleged crimes which may lead to an indictment (to be framed and signed by the Independent Counsel without any grand jury to enquiry of such a possible indictment?), which forms a conflict of interest and violates the constitutional purpose of a grand jury as a judicial tribunal to enquire into a formal accusation (a bill of indictment) preferred to them, is established by reference to:
- the Independent Counsel's Referral report, September 9, 1998, signed by the Independent Counsel, Kenneth Starr, including the reports Appendix.
- Mr. Starr's testimony before the Judiciary Committee of the House of Representatives, November 19, 1996.
Firstly, there is no mention in the Referral report, and its Appendix, nor in Mr. Starr's testimony, that the Office of Independent Counsel has preferred to the Grand Jury any bill of indictment: no accusation has been made and laid before the grand jury, nor any magistrate, that any named person has committed a criminal offense, or that even any criminal offense has been committed. Mr. Starr has declared only that a "grand jury investigation" was undertaken or began following the "expansion" of the Independent Counsel's prosecutorial jurisdiction, and that this investigation is called, by him, the "Lewinsky investigation," following the definition of the "expansion" of the Independent Counsel's "prosecutorial jurisdiction," to wit:
"The Independent Counsel shall
have jurisdiction and authority to investigate to the maximum extent
authorized by the Reauthorization Act of 1994 whether Monica
Lewinsky or others suborned perjury, obstructed justice, intimidated
witnesses, or otherwise violated federal law other than a Class B or C
misdemeanor or infraction in dealing with witness, potential witnesses,
attorneys, or others concerning the civil case Jones v. Clinton."
(Division No. 94-1, January
16, 1998, United States Court of Appeals for the District of Columbia Circuit)
See also The Starr Report, pages 25, 32, 33, 38, 45, and 295. At the time of Mr. Clinton's "appearance" before the grand jury on August 17, 1998, the deputy Independent Counsel stated, again:
"The grand jury, Mr. President, has been empanelled by the United States District Court for the District of Columbia. Do you understand that, sir? [Clinton: I do.] And, among other things, is currently investigating under the authority of the Court of Appeals upon application by the Attorney General, whether Monica Lewinsky or others obstructed justice, intimidated witnesses, or committed other crimes related to the case of Jones v. Clinton."
In the Independent Counsel's letter(2) to Mr. Clinton's attorney, David Kendall, of July 17, 1998, giving the subpoena for Mr. Clinton "to appear and give testimony before the grand jury on Tuesday, July 28, 1998," the Independent Counsel deputy, Robert Bittman, declared in his statement of "Advice of Rights," that:
- "The grand jury is conducting an investigation of possible violations of federal criminal laws involving: perjury, subornation of perjury, obstruction of justice, witness tampering, and other Federal criminal laws.
- Your conduct is being investigated for possible violations of Federal criminal law."
Therefore, the Grand Jury of the Independent Counsel's "grand jury investigation" was not, and has not been, enquiring into the matter of any indictment preferred to them, but investigating alleged "possibilities" of crimes committed, which is a use of the grand jury that is wholly foreign to the tenor of the Constitution, the established function of the grand jury in the method of proceeding in the courts of criminal jurisdiction that was certainly intended by the People who ordained and established the Constitution, including the Fifth Amendment of the Constitution, and as demonstrated later in this part (below), a violation of the Fifth Amendment by the Independent Counsel with the District Court's approval attempting to compel Mr. Clinton to be a witness against himself.
That such a use of the Grand jury by the Independent Counsel, though "authorized by the Ethics in Government Act, is unconstitutional is seen more clearly by the following analysis of Blackstone's Commentaries on the Laws of England, particularly of the several modes of criminal prosecution that are explained in that authoritative treatise.
The
Grand Jury Enquiry is judicial,
not prosecutorial.
The grand jury as intended by the Constitution (see Amendment V) is judicial, and therefore, is not to be a partner with a government counsel or criminal detective in a criminal investigation, that is, an investigation of possible crimes and the gathering of evidence. The Independent Counsel Mr. Starr has employed the grand jury as a partner in his criminal investigations of Mr. Clinton, which is a misuse of the grand jury. The proof follows:
The principle just asserted
is evident from the discussion in the chapters of Blackstone's Commentaries
on the Laws of England that are listed in the table below. Incidentally,
the Author's original treatise(3) on the
subject of the unconstitutionality of the office of Independent Counsel,
August 18, 1998, page 17, erroneously equated a "criminal prosecution"
as an "inquisition of a grand jury;" although the treatise otherwise accurately
describes the place of a grand jury in a criminal proceeding. As the present
addendum shows, after a thorough study of Blackstone, the prosecution
is conducted by the prosecutor, and the grand jury inquires
of the indictment preferred to it by the prosecutor and of the evidence
laid before it by the prosecutor with the bill of indictment.
| The
Chapters of
Blackstone's Commentaries on the Laws of England which prove that the Grand Jury is judicial. |
||
| Book | Chapter No. | Title of Chapter |
| III, Private Wrongs | 21 | Issue and Demurrer |
| III, Private Wrongs | 22 | Several Species of Trial |
| III, Private Wrongs | 23 | Trial by Jury |
| IV, Public Wrongs | 23 | The several Modes of Prosecution |
| IV, Public Wrongs | 27 | Trial and Conviction,
Section V: Trial by Jury. |
| I, Rights of Persons | 9 |
(Office of Coroner) |
The grand jury by the intent of the Constitution, and as defined by Blackstone's Commentaries, is a jury consisting of 24 persons sworn and instructed by the Court judge to enquire into an indictment, a written accusation, preferred to them by a prosecutor, examining only the evidence laid before them by the prosecutor. According to Blackstone (IV, ch. 23, p. 301), when, and if, the grand jury finds upon their inquiry the bill of indictment to be true, and then endorses the bill, the accused person stands indicted; but at least twelve jurors must agree to this finding.
The jury in the trial by jury is the "petit jury," which is a jury of twelve jurors sworn to enquire into and examine the evidence of both sides at the trial of the indictment presided over by the judge of the court of criminal jurisdiction, the same court which had summoned the grand jury.
A jury performs an inquisition of office. Blackstone, in Book III, chapter 17, gives the general definition of an inquisition or inquest of office, as this institution is employed not only for trials in civil and criminal suits, but for other proceedings as well. Said Blackstone, an inquisition or inquest of office
"is an enquiry made by the king's officer, his sheriff, coroner, or escheater, virtute officii, or by writ to them sent for that purpose, ... This is done by a jury of no determinate number; being either twelve, or less, or more. (III, ch. 17, page 258)
The object of the enquiry is
to find the facts. The use of the inquisition of office in a criminal
prosecution is discussed in Chapter 23 on "The several Modes of Prosecution,"
from which the following extracts are given:
Blackstone, Chapter 23,
"Of the several Modes of Prosecution"
"The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment, or indictment.
I. A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king. ...
"An inquisition of office is the act of a jury, summoned by the proper officer to enquire of matters relating to the crown, upon evidence laid before them. Some of these are themselves convictions, and cannot afterwards be traversed or denied; and therefore, the inquest, or jury, ought to hear all that can be alleged on both sides. ... Other inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide: for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore enquire a little more minutely [that is, the inquiry performed a grand jury].
II. An indictment is a written accusation of one of more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. ... This grand jury are previously instructed in the articles of their enquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor;(4) and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine, that might be applied to very oppressive purposes. ...
"When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill ignoramus;" or, we know nothing of it; intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English, more absolutely, "not a true bill;" and then the party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then endorse upon it, "a true bill"; anciently, "billa vera." The indictment is then said to be found, and the party stands indicted. But, to find a bill, there must be at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, in by the whole petit jury, of twelve more, finding him guilty upon his trial. ..."
From these passages it is plain that a grand jury is part of a two-fold enquiry and finding of the truth of an accusation. This is further established in Blackstone's description of the powers of the "court of oyer and terminer," meaning a court "to hear and determine," which is a regular court of a local jurisdiction and is inferior to the court of king's bench. The words of their commission, said Blackstone, are "to enquire, hear, and determine." He added:
"so that by virtue of this commission they can only proceed upon an indictment found at the same assises [court session]; for they must first enquire, by means of the grand jury or inquest, before they are empowered to hear and determine by the help of the petit jury." (IV, Ch.19, page 267)
Thus, it is clear, that the nature of the grand jury, just as in the case of the petit jury, is judicial, that each jury is an agency or instrumentality of the court, for inquiring into, and determining the truth of a criminal accusation. The grand jury is not a criminal investigator for investigating in partnership with a government attorney or counsel whether or not a crime which has not yet been discovered has been committed, or whether or not a person suspected of a crime has in fact committed the crime. That is, the grand jury proceeding is not to undertake an "investigation" before a person is accused of committing a crime by an officer of executive department of the government in a bill of indictment, a written accusation, preferred to the grand jury.
Indeed, the word jury is derived from the latin word jurata, meaning "sworn judge." Said Blackstone when introducing the "trial by jury" for civil suits,
"When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.
"We may here again, observe, and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of the truth."
As the above passage also shows, Blackstone referred to a "jury" as a "tribunal." Also, in the opening paragraph of Chapter 23, Book III, "Of the Trial by Jury," Blackstone states:
"The subject of our next enquiries will be the nature and method of the trial by jury; called also the trial per pais, or by the country. A trial that hath been used time out of mind in this nation, and seems to have been co-eval with the first civil government thereof. ... a tribunal composed of twelve good men and true, ... being the equals or peers of the parties litigant."
Said Blackstone a jury enquires, it performs an inquisition, as before shown; so that a jury is a judge of the truth of the facts at issue. A grand jury and a petit jury are each a jury; and therefore, we may assume that the Federal Convention regarded a jury, whether it be a grand jury or a petit jury, as a tribunal. However, Blackstone also styles a court of justice as a tribunal (Book III, pages 43, 330, as well as 349 and 350). In Book IV when introducing the "Courts of a Criminal Jurisdiction," he states:
"In our enquiries into the criminal courts of public and general jurisdiction, I must in one respect pursue a different order from that in which I considered the civil tribunals." (IV, Ch. 19, p. 255)
Article I, Section 8 of the United States Constitution vests in the Congress the power "To constitute Tribunals inferior to the supreme Court;" and Article III, Section 1 states: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
Now, Article II, Section 2 of the Constitution states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." And yet, the enumeration of powers vested in the Congress in Article I, Section 8 gives no express power to establish Officers. This is a sign that the power of the Congress to establish Courts inferior to the Supreme Court is derived not from Article I, Section 8, but from Article III, Section 1; and, therefore, the power to constitute tribunals inferior to the Supreme Court is the grant of power to provide, not only courts inferior to the Supreme Court, but for juries, which are tribunals, including a grand jury for enquiring of indictments, and a petit jury for examining the facts alleged by both sides in the trial of the indictment. (Indeed, the court includes the jury.) And as the power to constitute tribunals is confined to tribunals which are inferior to the Supreme Court, further means that the juries, including a grand jury, is a judicial body, not a criminal investigator and prosecutor in a partnership with the executive department for the enforcement of the laws. The grand jury, therefore, is not a body that investigates a possible crime, gathers up evidence, and builds a case upon which to charge a person with committing a crime, but a tribunal to hear and enquire into the evidence already gathered up and laid before it by a prosecutor, who has already determined that a person has committed a crime and who has preferred a bill of indictment to the grand jury, thus accusing the person of committing a crime before the grand jury.
Consistent with Amendment V of the Constitution, which prohibits compelling a person to be a witness against himself, whether before a grand jury or the petit jury, Blackstone states that fault is discovered, not by wringing it out of a suspect by an inquisition (IV, ch. 22, p. 293), and hence not by a grand jury, but by other means by proper officers investigating the facts of a crime. (ref._______)
The preceding analysis is further confirmed by Blackstone's explanation of the "trial by jury" in the chapter on "Trial and Conviction" of Book IV on crimes.
"The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishmen, which, as the grand bulwark of his liberties, is secured to him by the great charter, ...
"... Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people, and the prerogative of the crown. ... the founders of the English laws have with excellent forecast contrived, that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury: and that the truth of each accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make), but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, ..." (IV, ch. 27, p. 343)
And finally, Blackstone provides us with a direct statement that a jury which enquires and indicts, is judicial. It concerns the "Court of the coroner." (Book IV, Chapter 19, page 271), and the "subordinate Magistrate" styled the "coroner," which Blackstone describes:
"The office and power of a coroner are also, like those of a sheriff, either judicial or ministerial;" (Book I, Ch. 9, page 337)
Recall that the sheriff, by Blackstone's British Constitution, is vested not only with the powers to conserve the peace, and to execute court judgments, but presides also over the county court in minor civil causes. Blackstone continues, in regards to the coroner, starting again from the top:
"The office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. This is in great measure ascertained by statute 4 Edw.I. de officio coronatoris; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. And this must be "super visum corporis;" for, if the body be not found, the coroner cannot sit. He must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. If any be found guilty by this inquest of murder [by the way, a "capital offense"], he is to commit to prison for further trial, ... and must certify the whole of this inquisition to the court of king's bench, or the next assises."
"The ministerial office of the coroner is only as the sheriff's substitute. ..." (Book I, Ch. 9, page 337)
To be sure the "jury" which makes the enquiry in the court of the coroner is to be a grand jury, for Blackstone says that the presentment of the coroner's inquisition is "a kind of indictment," which in paragraph he defines as
"a written accusation of one of more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury." (Book IV, Ch. 23, p. 299)
Recall that Blackstone says that,
"no man can be convicted at the suit of the king of any capital offence [as in a crime of murder], unless by the unanimous voice of twenty four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, in by the whole petit jury, of twelve more, finding him guilty upon his trial. ..." (III, Ch. 23, p. 301)
Recall also that Blackstone said, as quoted above, that a person indicted by a coroner's inquisition, that is, found guilty of the crime of murder, that he is committed to prison "for further trial," which indicates that the inquisition by the grand jury of the coroner's court performs a "trial," though only of the evidence laid before them on behalf of the prosecution. Therefore, as the "coroner's inquisition" is a judicial proceeding, not an act performed by a ministerial officer, it follows that a grand jury enquiry is judicial, not prosecutorial: The grand jury is not a partner with an executive officer in an investigation into possible crimes conducted before the proper officer of the executive department of government determines upon his investigation that a crime has been committed and the person he is to charge with having committed it.
Recall that some "inquisitions of office" convict, as a trial by the petit jury, hearing "all that can be alleged on both sides," and the conviction cannot thereafter by traversed (that is, denied); where "[o]ther inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide." Thus, the jury which performs the inquisition in the "court of the coroner," with the coroner presiding over the jury, is a grand jury. This part of the office of the coroner is characterized by Blackstone as judicial, therefore again proving that a jury's inquisition that may result in an indictment is a judicial act; so that the jury is not a criminal investigation for investigating possible crimes or suspects of crimes and gathering facts and evidence, before any person is actually accused by a government officer of committing a crime.
The foregoing analysis of Blackstone makes it clear, therefore, that the people who ordained and established the Constitution, and those who amended it (Amendment V concerning the grand jury) intended that the grand jury be judicial in the sense defined above.
That the grand jury is a judicial enquiry, not a criminal investigator, is also reflected by the sequence of the 4th, 5th, and 6th Amendments of the Constitution of the United States. The 4th Amendment pertains to "searches and seizures," and "warrants" for such, which is the business of a criminal investigation (to search). But the "Grand Jury" is not associated with, and not mentioned in, the Fourth Amendment. The Fifth Amendment pertains to an indictment, hence after the investigation has been completed; and there the "Grand Jury" is mentioned and is associated. The Sixth Amendment pertains to the trial following the indictment (the formal accusation), where the evidence from both sides is enquired into. Thus, the sequence of the 4th, 5th, and 6th Amendment, reflects the sequence, (1) the criminal investigation, including searches and seizures; (2) indictment preferred to a Grand Jury, and the grand jury then enquires and makes a finding; and (3) the trial upon the indictment of the Grand Jury. The amendments of the Constitution therefore indicate that the Grand Jury is not to be involved in the investigation that leads up o an indictment preferred to them.
Therefore, the Independent Counsel's use of the grand jury in conducting a "grand jury investigation" is unconstitutional, and, therefore, his "grand jury investigation" is illegal, apart from the unconstitutionality of the Independent Counsel's statute. It is an illegal attempt to deprive persons who are really or essentially being prosecuted for crimes of their right to the protection of a two-fold judicial tribunal enquiry that is independent of the criminal detective, the criminal investigator, and the criminal prosecutor.
The Independent Counsel
Statute, and the Independent Counsel's
Investigation, violate
the Fifth Amendment of the Constitution
The Independent Counsel's "grand jury investigation" has not formally been a prosecution of anyone for crimes, but essentially a perjury trap by the device of compulsory process for obtaining sworn witness testimony before a grand jury, another misuse of the grand jury under the Constitution allowed by the unconstitutional Ethics in Government Act. The Act grants power to the "independent counsel" to apply to any federal Court for subpoenas to compel a "witness," such as the President, to appear before the grand jury for the purpose of giving testimony under oath. As the grand jury by the demonstrated tenor Constitution (again, consulting Blackstone's Commentaries) is to hear only the evidence on behalf of the prosecution, and since the Independent Counsel's "investigation" of the President has been essentially a prosecution of the President for perjury, or certainly at least the subpoena was plainly an action to compel the President to be a witness against himself, the Independent Counsel's action, and the Ethics in Government Act which authorizes such actin, have violated the Constitution, particularly, Amendment V, the part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ... nor shall any person ... be compelled in any criminal case to be a witness against himself, ..."
The independent counsel is also given power by the Ethics in Government Act to employ the Federal Bureau of Investigation. The record shows that the Independent Counsel has ordered the use of a secret microphone placed on Linda Tripp (a "cooperating witness") to record secretly her conversations with M. Lewinsky. But as Amendment V prohibits compelling a person from being a witness against himself, such use of secret microphones plainly violate the Constitution, Amendment V; as it obtains the witness's statements by another route, thus, flouting the Constitution.
The directive of Amendment V is that "no person shall be compelled to be a witness against himself." The Amendment does not say, "that no person in a grand jury appearance shall be compelled to answer such questions which would tend to incriminate him." Certainly, if the grand jury had received an indictment preferred by the Independent Counsel under his (unconstitutional) "prosecutorial jurisdiction," accusing Mr. Clinton of a criminal offense, when Mr. Clinton was subpoenaed to appear before the grand jury on July 28, 1998, and here for the moment, let us disregard for the sake of argument that the office of Independent Counsel is unconstitutional, as no officer can prosecute the President of the United States for crimes before a grand jury and the courts; and anyway, before a person can be indicted, he must first be arrested, charged with a crime, examined by a magistrate and committed to prison or allowed bail, then such subpoena would be in clear violation of Amendment Five. For in such case, the grand jury could by law only hear the evidence on behalf of the prosecution; and consequently, by compelling Mr. Clinton to be a "witness," that is, compelling him, by authority of a subpoena, to appear before the grand jury (to take him and bring his body before the grand jury, if he does not obey the subpoena) for the purpose of taking his testimony (and questioning him), he could only be brought before the grand jury as a witness against himself. Therefore, such a compulsory process would violate the Fifth Amendment.
To circumvent the Fifth Amendment prohibition, the device or trick of a "grand jury investigation" was contrived by the Independent Counsel, authorized (but unconstitutionally) by the Ethics in Government Act. Let us analyze this trick.
The Trick is a misuse of what certainly is the intent of the United States Constitution, founded on the prior common law rules of evidence and rules of proceeding in the courts of justice, as laid down in Blackstone's Commentaries on the Laws of England, in regard to the right of compulsory process, used to bring in unwilling witnesses in a civil trial, or in a criminal trial (either a grand jury enquiry, or the enquiry of the petit jury). The word is witness, now, not a party. This right is laid down in Blackstone's Commentaries, Book III, Chapter 23, "Trial by Jury," the part on legal evidence, and particularly, parol evidence, or witnesses. Said Blackstone,
"Again, evidence in the trial by jury is of two kinds, either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs, (to which in common speech the name of evidence is usually confined) are either written, or parol, that is, by word of mouth. ...
With regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena ad testificandum: which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 100 l. to be forfeited to the king; ... This compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, are of excellent use in the thorough investigation of truth: and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had their choice of three things: either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas." (III, Ch. 23, pages 368-370)
This law or maxim on legal
evidence applies to criminal suits as well as civil suits, according to
Blackstone's Commentaries:
The doctrine of evidence upon
pleas of the crown [criminal suits] is, in most respects, the same as that
upon civil actions." (IV, Ch. 27, p. 350)(5)
And as the law of evidence prohibits compulsive examination under oath of the parties in suits at law, according to Blackstone's Commentaries (III, Ch. 23 and Ch. 27)k, it follows that an accused person in a criminal case cannot, by that law of evidence, be compelled to be examined, that is, be a "witness" against himself; And indeed, the People of the United States wrote into the Constitution that common law of evidence, to be sure that the law is never forgotten, namely, the Fifth Amendment. (Remember too, that there is also the Ninth Amendment,
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So, just because the Fifth Amendment directs that no person shall be a witness against himself, does not mean that the Courts of the United States can make any other rule of proceeding and rule of evidence they please; as the leading maxims on legal evidence laid down in Blackstone's Commentaries are maxims which all persons have every much a right to have applied in their disputes before the courts as the rule that no person shall be compelled to be a witness against himself.) This same law of evidence means also that in a criminal case, the prosecutor cannot be examined either, he also representing one of the parties of the criminal suit, namely, the United States.
With these principles in mind, we can readily recognize the Trick of the Independent Counsel (and the Ethics in Government Act). for the expanded jurisdiction of the Independent Counsel of January 16, 1998 is defined, again, as:
"The Independent Counsel shall have jurisdiction and authority to investigate to the maximum extent authorized by the Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or C misdemeanor or infraction in dealing with witness, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton."
(Division No. 94-1, January 16, 1998, United States Court of Appeals for the District of Columbia Circuit)
The Trick was, therefore, to make or declare the "Grand Jury investigation" as a proceeding to investigate possible or alleged crimes of perjury, subornation of perjury, etc., and on that basis the Independent Counsel assumed that any person having knowledge pertaining to the object question, "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law," may by the law of evidence, or the Federal Rules of Evidence, be called and compelled to testify as to what he or she knows about the matter of the question, he or she not being an accused person in those "proceedings before the grand jury or other investigation" which the Independent Counsel is authorized by the (unconstitutional) law to conduct.
As the word jury in "grand jury" means "sworn judge" from its Latin form, jurata, and as the grand jury by the tenor of the Constitution are sworn to enquire, the Independent Counsel must think that by dragging persons called "witnesses," before the "Grand Jury" of his "grand jury investigation", the "Lewinsky investigation", he may likewise administer an oath to each such "witness."(6) So, the Trick which has been contrived, in order to compel a person to be a witness against himself without appearing to violate the Fifth Amendment of the Constitution is to go before an "empanelled" grand jury without preferring any bill of indictment, but instead, to involve that grand jury in making an "investigation of possible violations of federal criminal laws" without naming in the articles of the grand jury investigation the persons, or all the persons, who are the intended object of investigation (or a perjury entrapment), and then compelling any "witnesses" to appear before that grand jury that the Independent Counsel determines may have knowledge about a possible violation of federal criminal laws, since the method of compulsory process to bring in unwilling witnesses is the established law of evidence.
The error of the assumption or premise underlying this Trick is that the grand jury may not be employed, under the Constitution, as a criminal "investigator," a collaborator with an "Independent Counsel" in a criminal investigation. Also, in a "grand jury investigation" as the Independent Counsel has contrived, there can be no witnesses to any fact, because in such investigation, there is no charge of any fact of the commission of a crime, hence, no fact to enquire of: hence, there can be no one having knowledge of a fact. A "witness" is a person who can give evidence (from his knowledge or observation) that demonstrates, makes clear, or ascertains the truth of the very fact in issue.
Had Monica Lewinsky been accused of having committed federal crimes in a bill of indictment laid before a proper grand jury by a proper office on behalf of the United States, Mr. Clinton could have been compelled to be a witness before such grand jury, provided that the prosecutor is certain that Mr.Clinton must have knowledge or observed the fact of the crime as the prosecutor alleges in a bill of indictment: for the prosecutor is to lay before the grand jury evidence, and not to make investigations before a grand jury for the purpose of gathering or discovering evidence, or detecting crimes. But Monica Lewinsky was not indicted by the Independent Counsel before the grand jury: no bill of indictment against her could have been preferred to the grand jury, because she was "granted" immunity from prosecution, and this immunity was granted before Mr. Clinton was subpoenaed to appear before the grand jury.
So, what was the point of compelling Mr.Clinton to appear before the grand jury? It can only be to compel him to be a witness against himself. That is plain, and a violation of the Fifth Amendment. As to the so-called "privilege against self-incrimination," which the deputy Independent Counsel had advised the "witness," Mr.Clinton, that he can invoke; meaning, presumably, that the "witness" can refuse to answer questions, should he think an answer would incriminate it. But in the questioning of Mr. Clinton in his appearance before the grand jury, when the deputy Independent Counsel refused to accept Mr. Clinton's refusal to answer a certain question, saying that he did not agree with Clinton's position that the question had no bearing on whether he, Clinton, committed perjury," the deputy Independent Counsel ordered Mr. Clinton to answer the question:
"Mr. President, I'm sorry, with respect, I don't agree with that. I'm not going to argue with you bout it. I just am going to ask you again, in fact direct you to answer the question."(7)
Plainly, an executive officer of the government directing a person to do something is a compulsion. Therefore, the "grand jury investigation" conducted by the Independent Counsel has violated the Fifth Amendment of the Constitution by compelling Mr. Clinton (and others) to appear before the grand jury and be questioned under oath as a "witness" against himself, and on account of this point alone, the whole grand jury investigation and proceeding conducted by the Independent Counsel is illegal. The people who ordained and established the Constitution had their good reasons for the Fifth Amendment directive, and that reason evolved from time immemorial in England as a leading maxim on legal evidence, so as to dispense with justice.(8) The deputy Independent Counsel presented to Mr. Clinton at the start of his grand jury testimony and in the subpoena the "advice of rights" that:
"You may refuse to answer any question if a truthful answer to the question would tend to incriminate you."
"Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding." (The Starr Report, Evidence, page 352, and 549)
Such "advice" flouts and violates the Fifth Amendment. For the Fifth Amendment plainly prohibits compelling the President to be a witness against himself: hence, not to be compelled to appear before the grand jury for any questioning, period; since the object of the Independent Counsel's "grand jury investigation" was plainly to prosecute the President for crimes, having already obtained Monica Lewinsky's testimony, having the Linda Trip tapes, having granted Monica Lewinsky immunity from prosecution, and since the deputy Independent Counsel stated in Mr. Clinton's appearance before the grand jury that "any answer that you do give can and will be used against you." Faced with embarrassing questions and therefore temptations of perjury, the "witness" is forced to give some answers to all questions, else if he "invokes" what the deputy Independent Counsel called the "privilege against self-incrimination" (without citing the legal source of such privilege, but presumably, he implied the Fifth Amendment as the supposed source(9)), he will plainly appear, by the "advice of rights," to avoid telling a truth which "tends to incriminate him," which by the invocation is tantamount to a confession of a commission of a crime. The Fifth Amendment does not say that one may refuse to answer questions that would tend to incriminate him, but that he shall not be compelled to be a witness against himself, hence, not to be served a subpoena to appear as a witness in the "grand jury investigation" that is plainly investigating him for crimes. The Fifth Amendment protects the rights of individuals. The directive that no person shall be compelled to be a witness against himself is not a privilege, but a right every person has. A privilege is an exception, therefore, the Independent Counsel has misrepresented the Fifth Amendment with the effect of an intimidation.
There is one more consideration. Since "proceedings" before the "grand jury" of the Independent Counsel's "Lewinsky investigation," are, and have not been, of a judicial proceeding, as before explained and demonstrated, it results that the oaths administered in the grand jury investigations are "extrajudicial oaths;" and Blackstone's emphasized that such oaths can not be a ground for a criminal perjury. Regardless, proceedings which are unconstitutional cannot be legal. And therefore, none of the proceedings conducted by the Independent Counsel's before a "grand jury" are legal, and no charge of perjury can arise out of those proceedings, since the office of Independent Counsel is unconstitutional and the methods employed there are also unconstitutional.
One can only wonder how the
criminal proceedings were conducted by Mr. Starr as Independent Counsel
for those that resulted in the fourteen convictions which he says he has
produced in the course of his office, and is "proud of." Where these convictions
obtained by means of these same or similar unconstitutional methods, not
to mention that the office of Independent Counsel is unconstitutional,
as demonstrated earlier.
The
unconstitutional Device of the Grant of
Immunity from Prosecution
As to the Monica Lewinsky testimony,it is plain from the documents which are appended to the Independent Counsel's Referral Report that the Independent Counsel and his deputies had induced and excited Ms. Lewinsky to "cooperate fully" with the Independent Counsel in his criminal investigation and prosecution of Mr. Clinton, by threatening her with a criminal prosecution but offering her a grant of immunity from prosecution if she would sign an agreement to "cooperate fully" with the Independent Counsel. The Independent Counsel obtained such an agreement:
"This is an agreement ("Agreement") between Monica S. Lewinsky and the United States, represented by the Office of the Independent Counsel ("OIC"). The terms of the Agreement are as follows:
1. Ms. Lewinsky agrees to cooperate fully with the OIC, including special agents of the Federal Bureau of Investigation ("FBI") and any other law enforcement agencies that the OIC may require. This cooperation will include the follows:
A. Ms. Lewinsky will provide truthful, complete and accurate information to the OIC. ...
B. Ms. Lewinsky will testify truthfully before grand juries in this district and elsewhere, at any trials in this district and elsewhere, ...
2. If Ms. Lewinsky fully complies with the terms and understandings set forth in this Agreement, the OIC: 1) will not prosecute her for any crimes committed prior to the date of this Agreement arising out of the investigations within the jurisdiction of the OIC: ...
3. If the OIC determines that Ms. Lewinsky has intentionally given false, incomplete, or misleading information or testimony, ... the OIC may move the unconstitutional District Court for the District of Columbia which supervised the grand jury investigating this matter for a finding that Ms.Lewinsky has breached this Agreement, and upon such a finding by the Court, Mr. Lewinsky shall be subject to prosecution for any federal criminal violation of which the OIC has knowledge, including but not limited to perjury, obstruction of justice, and making false statements to government agencies. ...
5. This is the entire agreement between the parties. There are no other agreements, promises or inducements.
[Signed by Kenneth W. Starr
and Monica S. Lewinsky.](10)
This act by the Independent Counsel would be a common law criminal offense in England, according to Blackstone, a high crime of Offense against Public Justice of inducing a person "against his will" "to accuse and turn evidence against some other person."
For, as sir Edward Coke observes, it is not lawful to induce or excite any man even to a just accuse of another; ..." (IV, Ch. 10, p. 129)
As "cooperate" means to act
together with a common purpose, the immunity agreement obtained from M.
Lewinsky by the Independent Counsel, Mr. Starr, has Monica Lewinsky joining
with the Independent Counsel in his investigation and prosecution of Mr.
Clinton; hence, essentially accusing and turning evidence against another,
Mr. Clinton, under the duress of being threatened with a criminal prosecution
by the Independent Counsel. Although such a species of offense against
public justice may not be a crime under the existing laws of the United
States (this Author has not found any such offense among the federal laws),(11)
the grant of immunity is certainly unconstitutional (another unconstitutional
effect of the unconstitutional office of Independent Counsel); for Article
II, Section 3 enjoins that the laws be faithfully executed, which plainly
makes unconstitutional favoring one person over another in the execution
of the laws, as the prosecution for violations of the laws. There is no
grant of power to the Congress to provide for conferring privileges upon
persons, such as granting immunity from criminal prosecution, in order
to prosecute with partiality other persons. (Such partiality is another
species of crime mentioned in Blackstone's catalogue of offenses against
public justice, called oppression.) Just because the Independent
Counsel or a prosecutor said to Monica Lewinsky that she is in "trouble,"
as they "advised" her upon their first "confrontation" with her that she
is suspected by the Independent Counsel as having committed a federal crime:
that is, just because the Independent Counsel suspects Monica Lewinsky
of having committed a federal crime, does not establish that she had inf
act committed a crime; and so, by advising M. Lewinsky that she was in
"trouble" was tantamount to inducing and exciting her into agreeing
to "cooperate fully" with the office of Independent Counsel, therefore,
to accuse and turn evidence against Mr. Clinton, as the Independent Counsel
essentially is by his "prosecutorial jurisdiction," prosecuting Mr. Clinton
for crimes. Evidently,the Independent Counsel never even charged Monica
Lewinsky with having committed a crime.(12)
Additional Points and Topics
on the Unconstitutionality
of the
Independent Counsel Statute
The improper use of the grand jury.
Under the Constitution, a grand jury proceeding is to occur after a person is charged with committing a crime and arrested, committed to prison or released on bail pending the enquiry of the grand jury. The grand jury is judicial, not prosecutorial, that is, the jury is a "sworn judge" a tribunal to judge of indictment preferred to the grand jury by the prosecutor, and to hear only the evidence on behalf of the prosecution. This point is clear when consulting Blackstone's Commentaries on the Laws of England for the several successive stages of a criminal prosecution, namely:
1. Arrest and bringing a person before a magistrate and charging him with committing a crime, or as a suspect in the commission of a crime.
2. Commitment to prison or releasing on Bail.
3. Indictment preferred to a Grand Jury by a prosecutor, accusing the charged person with committing a crime and laying before the Grand Jury the evidence along with a bill of indictment.
4. An enquiry of the prosecutor's charge and evidence performed by the Grand Jury, hearing only the evidence on behalf of the Prosecution. If upon its enquiry the grand jury finds the accused guilty, that is, the grand jury is thoroughly persuaded of the truth of the bill of indictment, the grand jury then endorses the prosecutor's bill of indictment; whereupon the person stands indicted, the indictment then being the formal accusation. But the grand jury finding need not be unanimous, as twelve of the twenty four jurors agreeing to the bill of indictment is sufficient to endorse the bill as a "true bill," according to common law as laid down in Blackstone's treatise.
5. Process upon an indictment for bringing the accused person to the court of criminal jurisdiction to answer the indictment.
6. Arraignment upon an indictment.
7. Plea and Issue.
8. Trial and Conviction, then Judgement, followed by Execution.
As the "independent counsel" Mr. Starr has conducted proceedings before a grand jury without a prior charge of a crime and arrest, commitment and bail, is additional proof of the Independent Counsel's misuse of the grand jury. The misuse of the grand jury in Mr. Starr's criminal investigation is similar to a species of a class of crimes denominated as "Offences against Public Justice," the specific species being the crime of embracery, defined by in Blackstone's Commentaries as:
"Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like." (IV, Ch. 10, page 140, offense no. 18.)
The Independent Counsel's conducting its investigation proceedings before a grand jury, when the grand jury is to be judicial, not prosecutorial, is a kind of corrupt use or influence of a jury, by drawing the grand jury into a partnership with the executive magistrate in a criminal investigation conducted before the executive magistrate (prosecutor) prefers to the grand jury an indictment, the grand jury thereby forming an interest in the cause no less malignant than when accepting "promises, persuasions, entreaties, money, entertainments, and the like."
Also, the enquire made by a grand jury is to be PRIVATE; and, therefore, its proceedings are never to be disclosed to the public! That the "independent counsel" Starr has divulged to the Congress the records of the grand jury proceedings violates the tenor of the Constitution in regard to the nature of the grand jury, and the manner of its proceedings, that is, they are to be "private." Alhough the House of Representatives has the sole power of impeachment, and being the representatives of the people, they have the power and right to obtain whatever material there is as to evidence of criminal behavior of civil officers of the United States, and release it to the public if they want, unless specifically prohibited by law, one has to recognize that the material generated by the independent counsel's investigation was illegally obtained and produced, because of the unconstitutionality of the independent counsel statute.
Granting
immunity from prosecution
is improper.
The granting persons immunity from prosecution for crimes in exchange for testimony against another person is also unconstitutional, being a partiality in the execution of the laws, as discussed in the elsewhere (______). Such grants of immunity from prosecution would also be a crime under the British Constitution, as expounded by Blackstone, namely, the offense of inducing or exciting a person being held for, or charged with, a crime to accuse another person of committing a crime, and turning evidence against that other person (IV, Ch. 10, species no. 2) In the case of the independent counsel's investigations, a delinquent person who accepted an offer from the Independent Counsel of a such grant of immunity from a threatened criminal prosecution, shall even be rewarded money, by the Independent Counsel statute, 28 U.S.C. §593(f), to pay the complying witness all of her "reasonable" attorney fees incurred as a result of the independent counsel's investigations. (The attorney fees charged to such witness are probably enormous sums of money, and therefore, a huge debt amounting to a kind of forfeiture of estate, unless paid by a third party or with the public money.) Such a criminal offense, as inducing a person to accuse and turn evidence against another, is ranked by Blackstone second in degree of malignity among the species of offenses denominated, "Offenses against Public Justice." Also, the credibility of witnesses who are so induced to testify is plainly doubtful. Plainly, it is inherently improper to grant such immunities, as all criminal behavior ought to be punished according to the law, with no partiality.
The Pardon Power vested in the President
The Constitution vests in the President power to grant reprieves and pardons for offenses against the United States:
" ... and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." (Article II, Section 2)
This power includes a power to grant immunity from prosecution, since a person indicted, if granted a pardon, could plea the pardon when he answer the charge of the indictment upon his arraignment. (See Blackstone's Commentaries on the Laws of England, Chapter 26, p. 331, regarding "special plea at bar.") The pardon stops the prosecution at that point; when pleaded before the trial. To be sure, a prosecution for crimes does not end with an indictment, for the prosecutor prosecutes the delinquent at the trial, and the proceedings thereafter, until the execution of judgment, according to Blackstone. Therefore, had the makers of the Constitution intended that Congress have power to vest in certain officers of the Government a power to grant such immunities from prosecution, they would have specified such a legislative power. They did not.
Questions of Improprieties
of the Independent Counsel's Investigations
There are all kinds of questions that have to be investigated about the independent counsel and that office. Like, the private law suit of Paula Jones. The common law of England at the time of the formation of the United States, and the making of our Constitution, was that it is a crime (maintenance and barretry) for stirring up controversy by outsiders intermeddling in a suit or promoting suits, with supports of money and witnesses, for instance. It appears plain from the information broadcasted to the public that the complaintiff Paula Jones has received backing from wealthy supporters whose interest is not at all clear. Questions arise: Were there any associations between the independent counsel's office with the attorneys and/or supporters of the Paula Jones suit that may have led to setting up depositions and questions to snare the President to make perjury? This question would be a proper object of investigation, quite clearly, in view of reports of the use of secret microphones, and the misuse of the grand jury, and so forth, as well as the flagrant violation of the Constitution by the erection of the office of independent counsel, namely, the violation of the "sole power" directives in the Constitution as to impeachment proceedings.
United States Attorneys ought to be
learned in Law.
Should not attorneys, or persons supposedly learned in law, who at one time held the office of solicitor general, and the office as a United States Court judge, know that the independent counsel office, with power to prosecute officers for crimes in the courts, is plainly in contravention of the directives of the Constitution that the House of Representatives shall have the sole power of impeachment, and that the Senate shall have the sole power of trying all impeachments? Should not they know that the Supreme Court is not vested with the power to expound the Constitution, but is vested only with the judicial power, this is, the power of judging disputes, or determining the law arising upon the facts of the dispute? The Supreme Court is to be bound to support the Constitution. There is no directive in the Constitution that the opinions of the Supreme Court shall be the supreme law of the land. The Constitution is the supreme law of the land.
The President ought not execute
an unconstitutional Court Order
If the President, the chief executive magistrate, according to Article II, Section 1 of the Constitution, should determine honestly that a particular Court judgment violates the Constitution, the President ought to support the Constitution, and not execute the Court's judgment. The President holds the executive power, by Article II, Section 1. If members of the society, or judges, should regard such refusal to execute a court judgment as criminal contempt, the House of Representatives could be asked to consider whether the President is in the right or in the wrong; and if the House of Representatives should decide that the President is in the wrong, they could impeach the President for contempt of the Court, and the Senate would then try the impeachment. Such are the checks built into the Constitution for securing obedience to the Constitution. But such controversy or contests can be practically eliminated, or made a rare occurrence, if we all are careful to find out and ascertain the true meaning of the Constitution by scientific study. The above assertion that the President ought not to execute a court judgment, if it he determines that it violates the Constitution, of course, requires a rigorous, valid justification, which is given in Part IX of the present Treatise.
Dangerous Consequences of an Independent
Counsel
prosecuting the President of the United States
Because of the employment of unconstitutional power, and the use of methods of investigation that are plainly improper, and ought to be criminal (they were by the laws of England), the independent counsel and his deputies have conducted a vast, protracted investigation, and produced a vast mass of details and statements that are now consuming the energy of the people, or much of the people, and causing all sorts of controversy and confusion. What would have been the course of the Paula Jones suit had there been no independent counsel? That questions deserves an investigation. Would there have been any deeply personal questions put to the President in the Paula Jones discovery proceedings, like a snare? If there still would have been such questions directed to the President, and the President lied under oath, an informer could have presented it to the House of Representatives, or to the proper officers of the executive department of the Government, such as a United States Attorney, and the matter would then properly be referred to the House of Representatives in obedience to the Constitution; as only the House of Representatives has the sole power of impeachment. This Author has learned that Alexander Hamilton was alleged to have misbehaved in office, using his influence in the money/stocks business; but the matter was referred to the House of Representatives, which conducted an investigation, and the matter was resolved therein. Also, executive officers, that is, officers subordinate to the President, could have investigated such allegations or information with the President, but would have to respect his office and directives, or resign.
The makers of the Constitution had their reasons for vesting solely in the House of Representatives the power of prosecuting officers of the Government, the sole power of impeachment, and vesting in the Senate the sole power of trying all impeachments (of officers) in the Senate. My study leads to me to conclude that those reasons were to prevent factions forming in the government to push the others out of the government. Charges of criminal behavior are always the handle for the power plays in political upheavals, and the punishments have been severe, such as beheading. Or, if the President controlled the criminal prosecution of officers, he would immunize himself, thereby, said Benjamin Franklin, giving rises to assassination for removing criminal Presidents, followed by domestic turmoil. (Records, Farrand, Vol. 2, p. 65) Hence, the sole power of impeachment and trial of all impeachments was placed in the two houses of the Congress, respectively, for reasons, to prevent domestic turmoil.
Note: The Supreme Court judges ought to know that the grand jury is not to be used for criminal investigations, but is a judicial body. That the cooperate with the misuse of the grand jury (as discussed in this Part III), and with the unconstitutional Independent Counsel office, is a further sign of their usurpation of the executive power of the Government.
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2. * See The Starr Report, page 548-549, found in the Appendix of the Referral report.
3. * titled: "The federal Office of "Independent Counsel," created by the Ethics in Government Act, U.S. Congress, 1978, for investigating possible Violations of federal criminal Laws, and particularly for the criminal Prosecution of such Persons as the President of the United States, and other high Officers of the United States, is unconstitutional.
- An Analysis of the Constitution of the United States with respect to the Question of the proper Mode of Inquisition into the alleged criminal Behavior of federal Officers, including the President of the United States, August 18, 1998."
4. * By "private prosecutor" it is meant that the grand jury proceeding is private, or in other words, secret.
5. Incidentally, the rules of evidence as intended by the People who ordained and established the Constitution, namely, the leading maxims laid down in Blackstone's Commentaries, in Book III, chapter 23, and specially in criminal proceedings of Book IV (Chapter 27), apply equally in the grand jury enquiry as in the petit jury. The present Federal Rules of Evidence, which are unconstitutional anyway, as demonstrated elsewhere in this present treatise, are declared by the Supreme Court who made them not to apply to the grand jury. This idea that the rules of evidence for the petit trial are not applicable to the grand jury enquiry is unfounded, and contradicts the plain explanation given in Blackstone's Commentaries. Blackstone makes it plain by the "leading maxims" on legal evidence, that legal evidence is legal evidence without regard to which jury is examining it: the grand jury or the petit jury. Therefore, the "evidence" which the prosecutor is to lay before the grand jury with his bill of indictment is to be that which complies with the leading maxims as laid down in Blackstone's Commentaries, chiefly, that which demonstrates, makes clear, or ascertains the truth of the very fact in issue! And not that "evidence" defined as "relevant evidence" which Rule 401 of the Federal Rules of Evidence allows, but unconstitutionally; as demonstrated elsewhere in this treatise. Indeed, the Supreme Court-made Federal Rules of Evidence do not even hold the prosecutor to those rules of evidence in the grand jury enquiry or investigation; although rule 401 is totally discretionary anyway.
6. By the way, this Author has found no statement, nor indication, in the Independent Counsel's Referral Report, or its Appendix, nor in the Independent Counsel's testimony before the Judiciary Committee of November 19, 1998, that the grand jury of the Independent Counsel's "grand jury investigation" have taken any oath to tell the truth, or to give a true report, or to find truthfully whatever it is that they have been instructed to "inquire" into or investigate, if they have been given any instructions from the judge of any United States Court.
7. The Starr Report, Evidence, page 391 (Pocket Books, Ed. Phil Kuntz)
8. ** Compelling an accused to be a witness against himself is wringing fault out of a person, which Blackstone noted as against law, and is one degree away from torture, to get admissions, as practiced by other governments. Also, as Blackstone, there has to be safeguards against jurors forming personal dislikes of the accused, which is connected with the careful system of challenges of jurors, to try to achieve disinterested jurors. We ought to be careful not to violate the Fifth Amendment, by any form of tricks. For there were good reasons for the Amendment, and we may not think of all of them at the moment.
9. * It is significant that the Independent Counsel and his deputies, have not cited the section of the United States Constitution or any law for the source of this "privilege."
10. * The Starr Report, Evidence, page 34-35 (Pocket Books)
11. ** If no such criminal offense is among the federal crimes, that would be due to the general failure of the United States Congress over the years to make the necessary and proper laws for carrying into execution the powers vested in the Government, for instance, no criminal law against a president making war unconstitutionally, or other subversions of the Constitution, as maladministration but more specifically defined, and no laws prescribing the rules of proceeding and rules of evidence in the Courts of the United States; where the Congress has unconstitutionally transferred the power to make such rules to the Supreme Court, as demonstrated elsewhere in this present treatise.
12. * Apparently, the evidence of a possible perjury and subornation of perjury was L. Tripp's tape recording of her discussions with M. Lewinsky. It has been stated that such a taping violated Maryland criminal laws against secret taping; and so, the question arises: Could the tape recording be legal evidence in a criminal court proceeding when obtained illegally? I should think not. There are all kinds of improper acts and unconstitutionalities involving the unconstitutional office of Independent Counsel.