I’ve been doing my best to avoid anything to do with Kenneth Starr. I boycott newspaper articles describing the investigation. I immediately switch channels whenever “Crises in the White House” comes up on the screen. I have absolutely forbidden my friends to talk about it. I avert my eyes whenever Starr’s grinning, pompous, smarmy face appears on the screen. Since some might legitimately question my objectivity on the issue of Starr, I have with a few exceptions tried to avoid writing about him. But try as I might to avoid him, the long arm of the ever-righteous Starr keeps reaching out farther and farther into everyday American life, like some growing disease, poisoning everything it touches.
The latest seems to be his attack on the attorney-client privilege, or, to put it another way, your right to sit down and talk to your lawyer and to know that what you tell him is in strictest confidence, forever.
Some might say, “What’s the big deal? All Starr is asking is that the witnesses tell the truth and that they answer whatever question is put to them. If they’ve done nothing wrong, what do they have to hide? Besides, if a crime has been committed, getting at the truth is more important than your right to have your confidences respected.”
The answer is that it is a big deal, a very big deal, and here’s why.
Lets take a relatively innocuous situation. You go to see your lawyer about setting up a trust. You’re healthy. The lawyer says, “Tell me everything so we can set up a proper trust and we can avoid paying any unnecessary taxes.”
You think to yourself, “I really ought to tell him about my nephew, because the truth is he’s really my son, and my wife doesn’t know I had an affair with her sister. I wonder if adultery is a crime? Maybe I shouldn’t tell the lawyer because they might find out after I’m dead and end up hating each other or in court suing over the estate.
“Besides, some of the money in my safe-deposit box was a cash payment in a business deal, and I’m not sure I paid taxes on it. I’d like to pay the taxes now, but I’m afraid if I tell my lawyer, he could be compelled to testify and my family would lose its financial security. Maybe I should ask another lawyer if it’s OK to talk this lawyer. Maybe I just better not tell him.
“And then there’s that rotten partner of mine. The moment I’m dead, he’s going to try and steal my wife’s share of the business. The first thing he’s going to do is subpoena my lawyer’s notes and see if he can find anything that looks like fraud. He’ll accuse me of a crime, and they’ll let him see everything.
“Maybe I ought to tell the lawyer not to make any notes.”
And on and on it goes.
The game is called “Being Able to Trust Your Lawyer,” and it’s one of the cornerstones of our legal system.
Let’s take another example: the case of the White House people being called to testify before the federal grand jury. If there is one place you definitely need a lawyer, it’s when they might be accusing you of a crime.
Can you talk to a lawyer first?
Can you tell a lawyer everything you know?
Can that lawyer be questioned about what you said?
Can you be questioned about what you told your lawyer?
How do you know if you’ve committed a crime called obstructing justice?
If you ask a lawyer if you’ve committed a crime and he says, “Yes,” have you incriminated yourself by telling him?
If you go before a grand jury and they accuse you of committing a crime, whom do you ask for advice?
Is it a crime not to tell them what they want?
Suppose what they want isn’t true but they want you to say it anyway and they threaten to put you in jail unless you tell them what they want?
If that’s not OK, why is Susan McDougal still in jail?
Maybe it would be different if you felt these guys really were trying to get to the truth, but you know that’s not it at all. All they want to do is to get Clinton. If you get in their way, you’re just going to be road kill, and they couldn’t care less.
This time, they want Vince Foster’s attorney’s notes. Next time, it will the notes from a lawyer with a living client, like you.
We’ll have an answer soon because the U.S. Supreme Court heard oral argument this week on the issue.
Meanwhile, we the people are stuck in the middle of a battle between an amoral prosecutor out to get a president and an immoral president out to run out the clock, with us the big losers whichever way it goes.