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Second grand jury does not constitute double jeopardy for Clinton

A second grand jury has been seated to hear evidence in the scandal involving President Clinton and former White House intern Monica Lewinsky

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- The seating of a second grand jury to hear evidence in the scandal involving President Clinton and former White House intern Monica Lewinsky does not constitute double jeopardy, a concept barred by the Fifth Amendment, constitutional experts said Thursday.

Double jeopardy, which holds that people cannot be tried twice for the same crime, only applies in jury trials, experts said. They said there is no bar against prosecutors seating more than one grand jury.

A grand jury, which usually contains 23 members, does not convict or acquit individuals. A prosecutor presents evidence to the jurors in a secret proceeding and the jurors then decide if there is enough evidence to indict someone. It is the trial jury that convicts or acquits.

Clinton "hasn't been tried, he hasn't been indicted, he hasn't been accused," said Richard Fallon, a constitutional scholar at Harvard Law School. "A grand jury is more like an investigation than a formal accusation. ... (It is) very clear that the president, after he has left office, can be indicted and tried."

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In the Clinton case, the grand jury seated by former Independent Counsel Kenneth Starr more than two years ago was presented with evidence that Starr said proved Clinton had lied under oath about his sexual relationship with Monica Lewinsky, a former White House intern.

Clinton was impeached by the House of Representatives, but acquitted by the Senate, a move that allowed him to serve out his term. He will leave office January 20, after finishing the maximum of two terms in the White House.

On Thursday, CNN learned that Robert Ray, who succeeded Starr, seated a second grand jury in July to determine whether to indict Clinton on criminal charges stemming from his testimony regarding Lewinsky during the Paula Jones case. It is not certain if Ray will get --or even seek -- to indict Clinton on criminal charges.

William Van Alstyne, who teaches constitutional law at Duke University's law school, said the courts have not definitively answered the question of whether a sitting president can be indicted.

He said in the Watergate case, President Nixon was not indicted by a grand jury, but named as a co-conspirator to allow prosecutors to avoid having to wrestle with the question of whether a sitting president can be indicted.

So, hypothetically, if Ray does seek -- and receive -- an indictment, the president's lawyers could seek to quash the indictment as constitutionally invalid, he said.

Former White House intern Monica Lewinsky

Under the scenario of Clinton being indicted after he leaves office, he may still be able to escape penalties if convicted.

The next president could pardon Clinton. President Ford pardoned then-private citizen Richard Nixon even before Nixon was indicted, Fallon said.

Van Alstyne said he believes Clinton could issue a pardon for himself before he leaves office, thus eliminating any chance of going to prison.

New grand jury assembled to probe Clinton in Lewinsky scandal
August 17, 2000

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