By DAVID KOPEL. Mr. Kopel is
research director of the Independence Institute,
a free-market think tank in Golden, Colorado, http://www.i2i.org.
National Review, May 4, 1998
THE loud complaints from the Clintonites about the tactics of Independent Counsel Kenneth Starr would be more credible if they had ever worried about abusive federal prosecutors before they found themselves on the wrong end of a subpoena. Instead, for every item in the Administration's long indictment of Starr there is a counterpart in its own policies or in the practices of its own Justice Department.
Consider the broadest complaint of all: Ken Starr is unethical. Specifically, they claim that he violated the American Bar Association's Model Rule 4.2, which has been adopted as law in all fifty states and the District of Columbia and affirmed in several federal court rulings. Under this rule, if a person is represented by a lawyer, other lawyers wishing to talk to the person must contact the lawyer, not the person himself.
Ken Starr appears to have violated this rule, by arranging for a person following his orders (Linda Tripp) to secretly tape a conversation with a perjury suspect, Monica Lewinsky (although it's not clear that Starr knew that Miss Lewinsky had a lawyer). However, in violating it, Mr. Starr was only following the bad example of federal lawyers under the Clinton Administration.
According to the "Reno Regulation'' (Code of Federal Regulations, vol. 28, sect. 77.2) federal prosecutors are immune from this rule. They claim as a right the ability to do things that could get any other lawyer disbarred.
The White House has also criticized Mr. Starr for tearing at family values by forcing Miss Lewinsky's mother, Marcia Lewis, to testify against her daughter. But federal courts have recognized no "parent - child'' privilege that would bar such testimony. (Minnesota, Idaho, and Massachusetts are the only states that have a parent - child privilege.)
Thus, in a 1997 case, the Department of Justice convinced the Third Circuit Court of Appeals to force a father to testify before a grand jury against his 18-year-old son (In re Grand Jury, 103 F.3d 1140). Similarly, 13-year-old Josh Nichols was forced to give grand-jury testimony against his father in the Oklahoma City bombing case. As former special prosecutor Joseph DiGenova points out, compelling family members to testify against one another ``is common practice in drug cases.''
If President Clinton had genuine privacy scruples, he would endorse the bill introduced by Sen. Patrick Leahy (D., Vt.) to take the first steps toward creating a parent - child privilege in federal courts. President Clinton would also immediately order the Justice Department to stop making people testify against members of their own family. Don't hold your breath.
Then there's the White House's outraged astonishment that Starr would assault the First Amendment by subpoenaing a D.C. bookstore to discover what books Miss Lewinsky bought (in particular, to find evidence that she had bought a book on phone sex, Vox, which she allegedly gave to the President).
But why didn't anybody complain when federal prosecutors got David Koresh's book-purchase list from Paladin Books in Boulder, Colorado? Or, last year, when Bill Clinton's Drug Enforcement Agency issued a subpoena to Ronin Publishing, demanding the name of every Arizonan who had bought a book about marijuana cultivation? There probably should be a law to protect the privacy of a person's purchases of books or videotapes, but the Clinton Justice Department has never argued for one.
Mr. Starr is accused as well of abusing his subpoena power by ordering Secret Service agents to testify about crimes they saw the President commit. Compelling such testimony, critics argue, will undermine the confidentiality and trust which are necessary for Secret Service agents to do their job effectively.
That is a serious consideration. But what of the proposal by President Clinton and his Secretary of Health and Human Services, Donna Shalala, to end the doctor - patient privilege? They have urged making all medical records available to the police. No warrant, only curiosity, would be required for a policeman to examine everything you had told a doctor. The Clinton - Shalala plan will become law in 1999 unless Congress acts to prevent it.
In the spirit of that plan, the President should waive the privilege of medical confidentiality that he has under existing law, and give Ken Starr all his medical records. (Evidence of venereal disease could well be relevant to the Starr investigation.) If the Clinton - Shalala proposal were already law, Starr would have the authority simply to demand President Clinton's records.
The ``vast right-wing conspiracy'' run by Ken Starr wanted to turn Monica Lewinsky into an undercover informant; it wanted to wire her and send her to meet the President and entice him into making incriminating statements. Reprehensible? Standard federal practice under President Clinton.
Mr. Clinton's Equal Employment Opportunity Commission has signed contracts with two private firms to hire ``testers'' to pose as job applicants and see if potential employers could be caught making passes at them. The Department of Housing and Urban Development already has a major program using ``testers'' who pose as home buyers, but who are really federal agents waiting to be discriminated against. Vice President Gore has called for a large expansion of the HUD program.
And of course the Federal Bureau of Investigation, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, and Firearms all regularly use informants who get paid for doing just what Starr wanted Monica Lewinsky to do for free: abusing the trust of friends by luring them to make incriminating statements which will lead to long prison terms.
Hillary Clinton justifiably complains about Ken Starr's going through the records of her checking account. Perhaps she should have spoken up when her husband insisted that law enforcement needed warrantless access to people's credit, travel, and employment records in order to fight terrorism.
The suddenly thrifty White House is upset about Starr's large staff and the $30 million he has spent. But what about the Department of Justice, whose budget has quintupled -- to more than $10 billion -- since 1981? What about the increase in the number of Assistant U. S. Attorneys from 1,200 to over 7,000?
Starr, at least, is investigating several crimes over which the Federal Government has legitimate jurisdiction (obstruction of justice in a federal court, criminal acts by White House staff in Travelgate and Filegate), whereas the vast expansion of federal attorneys is the result of the Federal Government's intruding into areas where it has no constitutional authority (such as possession or sale of guns or drugs within the boundaries of a single state, or nonpayment of child support).
The abuses Kenneth Starr is said to have perpetrated should indeed prompt Congress to enact changes in federal laws, and to rein in federal prosecutors. Protections for family privacy, medical privacy, and First Amendment rights strengthen our society; Americans should be able to converse without fear that one party to the conversation is a federal informer.
Indeed, ordinary Americans are far more in need of protection from prosecutorial abuse than is a man with a large staff of government employees running a seven-day-a-week spin operation. Reforming federal law enforcement will strengthen civil society and make America better off -- even if reform does make it harder to prosecute some career criminals. Like, arguably, the President of the United States.