Rough water today for Mrs. Clinton? For many, testimony before a grand jury proves intimidating

January 26, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Uncounted numbers of Americans have gone through what Hillary Rodham Clinton faces today: a secret grilling before a federal grand jury. There are no oft-told tales of witnesses who enjoyed the ordeal.

"It isn't fun to be there," Joseph diGenova, a former special prosecutor and U.S. attorney here, said yesterday. "This is a very unpleasant experience. To say the least, it is an atmosphere that is conducive to truth-telling, in the sense that it is threatening."

Those who have been summoned before grand juries choose a single word to describe the sensation: intimidating.

"I didn't have any trouble finding that word," said a Washington man who was questioned before grand jurors in one of the special-prosecutor inquiries of Reagan administration officials. "And my expression could be coming out of a whole lot of other people" who have been there.

Mrs. Clinton may not feel the same way after she testifies before 23 grand jurors, behind closed doors at the federal courthouse. But whether she has a rough time, an easy time, or a merely tolerable one appears to depend on how the Whitewater special prosecutor, Kenneth W. Starr, decides to handle the occasion.

Prosecutors have not informed Mrs. Clinton that she is at risk of being charged with any crimes. But the hazards of embarrassment and even intimidation do not depend solely on that.

Prosecutors run grand juries, set the tone, ask most of the questions, and have the option of letting the grand jurors ask almost anything they wish or keeping them in line. Even if a witness and prosecutors have agreed on what topics will be discussed, grand jurors are not bound by such limits. If grand jurors get too rambunctious, a prosecutor can appeal to a federal judge to impose formal limits.

The witness is allowed a lawyer -- but that lawyer must stay outside the grand jury room.

Plato Cacheris, a Washington lawyer who was a federal prosecutor for eight years, said the grand jury "doesn't have to be intimidating, but it is intimidating by its nature. The witness walks in by himself, there is this sea of 23 faces, a prosecutor and a court reporter. The witness is alone."

If the witness says, "I don't know" too often, suspicions are

aroused, another former prosecutor said. In fact, a deliberate "I don't know" that is judged to be evasive can wind up as the basis for a charge of perjury.

The witness can step outside anytime to take a break or talk with a lawyer. But prosecutors and defense lawyers agree that it would not be a good idea to do it too often.

"Racing through your mind," recalls the witness who appeared in one of the probes of the Reagan years, "is the thought that, 'If I ask for a break, they'll think I'm trying not to give an answer they seek.' "

Even the setting can be grim. The room is windowless, soundproofed so that not a murmur of the outside world gets in. It is painted in the austere colors of officialdom: gray, green, tan, or washed-out yellow. No one's chair is comfortable.

Grand jurors are lined up in tiers, like a choir; prosecutors sit at a table spread with documents; a court reporter takes everything down. There may be a U.S. marshal there for security. (Mrs. Clinton cannot be accompanied by a Secret Service agent, because all outsiders are barred.)

In front of this assembly, in a solitary chair separated from the other furnishings, sits the witness.

The grand jury is an ancient instrument, its history traced to 1166 in the reign of King Henry II of England. The U.S. Constitution allows serious federal criminal charges to be made only by a grand jury, and many states use grand juries to issue charges or conduct investigations.

In this country, the grand jury is often vilified as an instrument subject to easy abuse.

Mr. diGenova, who ran grand juries as a prosecutor, said yesterday: "It is a powerful, powerful tool; it must be used with discretion by prosecutors; sometimes it is not. But at its core, it is the best process for getting at the truth."

Mrs. Clinton's situation is unusual. There is no precedent for a first lady to be ordered to appear before a grand jury. And it is uncommon for a witness to volunteer publicly the fact of a subpoena.

Grand jurors command testimony through subpoenas. A witness may be willing to testify, but volunteers, too, receive subpoenas in order to put them under oath and back up the questioning with the court's contempt power.

Depending on Mrs. Clinton's choice and security plans of the Secret Service, she could be shielded entirely from public view today. She can be whisked into the rear basement garage of the courthouse, though there likely will be TV cameras in range.

Once inside, she can go by private elevator to the third floor. There, if she desires, she could move behind screens among the rooms and anterooms. She need never be seen, even in hallways. After her testimony, she can leave by car, with only the chance of a fleeting encounter with the cameras.

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