The President and the Privilege

Independent Counsel Kenneth Starr’s claim that Hillary Rodham Clinton should not be able to use White House lawyers to protect her personal interests and then hide behind the attorney-client privilege has some force. But the case that the White House was planning to take to the Supreme Court as of last Friday isn’t mainly about that.

The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

Free Speech vs. Kids’ Lives

"Virginia Slims-It’s a woman thing."

A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.

Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."

Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?

This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.

The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.

Gore: Lame But Legal?

President John F. Kennedy’s most memorable line was "Ask not what your country can do for you; ask what you can do for your country."

Vice President Albert Gore’s may be his mantra at his March 3 press conference: "My counsel advises me that there is no controlling legal authority or case that says that there was any violation or law whatsoever in the manner in which I asked people to contribute to our re-election campaign."

Gore’s remarkable choice of words was designed to dance around this problem: A plausible case can be made that Gore’s high-pressure fund-raising calls from his White House office amounted to federal felonies, punishable by up to three years in prison.

But a plausible case can also be made that these calls were legal, if sleazy and perhaps unprecedented. The legal question turns out to be surprisingly tricky, as does the related question (touched on in my column last week, "Janet Reno’s Burden of Proof," Page 21) of whether the attorney general should seek an independent counsel to determine whether to prosecute Gore.

The relevant statute, 18 U.S.C. §607, makes it "unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 [FECA] in any room or building occupied in the discharge of official duties by any person mentioned in section 603," which in turn mentions (among others) "officer[s] or employee[s] of the United States."

Janet Reno’s Burden of Proof

Unleashing yet another independent counsel-and perhaps another partisan Republican one, at that-to comb for years and years through the burgeoning Clinton campaign finance scandals in search of crimes, with dozens of potential targets up to and including both the president and the vice president, would be a national nightmare.

The record to date suggests that the Clinton campaign’s desperate search for money reached a level of sleaziness unrivaled since Watergate. A no-holds-barred prosecutor might be able to make a plausible legal case that crimes were committed, perhaps involving people at the top.

But no such high-level officials should be prosecuted, barring the emergence of more smoking guns than we are likely to see. Among the reasons are that many of the alleged crimes are too difficult to distinguish from the access-peddling that has long been practiced by most candidates for federal office; that some of the same theories that could be used against Clinton campaign officials (including the president) could also be used against Dole campaign officials (perhaps including Dole) and many members of Congress; that the campaign finance laws are nightmarishly complex and riddled with First Amendment problems; and that the resulting tangle of rules and loopholes often does not draw clear lines between what is legal and illegal.

A wise prosecutor, sensitive to such considerations, would err on the side of lenity and bring the matter to closure as quickly as possible. But is that what we would get from the special three-judge court, headed by D.C. Circuit Judge David Sentelle, that chooses independent counsel? The track record does not inspire confidence.

Selecting Juries: Dumb and Dumber

In a rare instance of truth emerging via an election campaign, Philadelphia District Attorney Lynne Abraham has touched off an uproar by disclosing a 1986 training video in which a senior prosecutor-now her Republican challenger-baldly urged colleagues to exclude whole categories of black people (among others) from juries.

Here are some of the choicer quotes uttered in the video by Jack McMahon, who has been a defense lawyer since 1990:

"The blacks from the low income areas are less likely to convict. There’s a resentment for law enforcement There’s a resentment for authority. And as a result, you don’t want these people on your jury."

"In selecting blacks, you don’t want tie real educated ones."

"Young black women are very bad."

McMahon also described having ducked a jury he did not want by feigning illness and lying to die judge.

He dispensed his racially tinged advice to his fellow law enforcers just months after the Supreme Court’s landmark 1986 decision, in Batson v. Kentucky, that the Constitution bars prosecutors from using peremptory challenges to exclude blacks from juries because of their race.

McMahon can, however, claim to have teen an equal opportunity stereotypes because he also said that prosecutors should bounce rich, white jurors and that "I don’t think you can ever lose with blacks from South Carolina. They are dynamite. They are law and order. They are on the cops’ side."

Is the McMahon video an egregious example of prosecutorial lawlessness? Or is it (as he has suggested) a rare insight into what is routinely done-although never acknowledged-by prosecutors across the nation?

Can Campaign Finance Be Fixed?

Almost everyone agrees that our federal campaign finance laws-which have spectacularly failed to reduce the influence of special-interest money in politics-are a stinking mess and should be "reformed."

The hard part is agreeing on exactly what is wrong and how to fix it. Indeed, while reform proposals abound, the problems are so daunting that it’s unclear whether the system can be fixed, by even the most brilliantly drafted law-let alone one with a chance of getting through Congress.

The polar positions espoused by libertarian conservatives (encouraging candidates to sell themselves to the highest bidders) and Utopian liberals (pressing a doomed effort to purge private money from politics) both seem deeply flawed. So does the bill co-sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), which has won endorsements from President Bill Clinton and a gaggle of editorialists less because they love it than because it’s the only game in town with even a patina of bipartisan support.

But in a penetrating cover story ("Blow It Up") in the March 29 National Journal, Jonathan Rauch makes an intriguing, ideologically eclectic proposal for a simplified system of "public financing plus private deregulation."

Rauch begins with the perception that the current system of labyrinthine regulations, "understandable only to lawyers, and sensible not even to them,… is founded on a naive faith in rules, an discriminating disgust for money and a belief that political spending can be meaningfully distinguished from political expression. All of those premises are unsupportable, and doom any system built upon them."

The Internet: Smut for Dummies

Just after the big March 19 argument at the Supreme Court on the constitutionality of the Communications Decency Act-which makes it a federal crime to "display . . . patently offensive," sexually explicit words or pictures on the Internet "in a manner available to a person under 18"-I was interrupted by a phone call while perusing the plaintiffs’ brief.

It was my Internet-cruising, 12-year-old daughter, Sarah. She burst in while I was rereading the part about how the best way to protect our kids from wandering into the pit of Internet smut is not government censorship or regulation, but the sort of parental control software that you can install on your home computer or get for free through services like America Online.

"Dad," demanded Sarah, "what have you done to America Online?"

Uh-oh. What I had done, inspired by the litigation, was to activate the "parental controls," by clicking on various boxes that did things I little understood.

"You’ve ruined it," Sarah complained. "I need the IMs. That’s the funnest part. Dad, you can trust me."

IMs? Huh? I turned off the IMs? What the hell are IMs, anyway? (Instant messages, it turns out.) In any event, it seems that the "parental controls" had not only slammed the door on the smut peddlers, and the art museums displaying racy nudes by Mapplethorpe and classy ones by Michelangelo, and the like; they had also shut Sarah off from private, real-time discussion groups with her online buddies. (Here’s hoping they’re all really kids, like they claim to be.) So now there will be no peace in my home until I undo the parental controls (pending further study of whether I can fine-tune them), swinging the doors open to the whole vast, anarchic, wonderful, variegated, democratic, interactive, participatory Internet-porn and all.

Scandal Hidden in Plain View

Forget about whether Vice President Al Gore’s dialing for dollars from the White House violated the law against asking for dollars in the White House, and whether the Riadys or Johnny Chung were agents of the Chinese government, and whether Web Hubbell got hush money. Forget about the what-did-the-president-know-and-when-did-he-know-it game, and about who handed fat checks to whom in the White House, and about the Lincoln Bedroom, and all those coffees, and the similar access-peddling by Republican bigwigs.

Pause, for a moment, in the search for smoking-gun evidence about how they raised the money, and focus on how they spent it The evidence of high-level lawlessness has been sitting in front of us for months, hidden in plain view.

As detailed by Common Cause, it consists of essentially undisputed accounts of what look very much like deliberate, multimillion-dollar violations (or at least evasions) of campaign spending and contribution limits, directed by President Clinton personally and by others at the highest levels of both the Clinton and Dole campaigns.

The presidential candidates and their agents used the Democratic National Committee and the Republican National Committee as totally controlled cash conduits to finance unprecedentedly costly television advertising promoting Bill Clinton and Bob Dole. They thereby smashed, by tens of millions of dollars, the post-Watergate ceilings on spending by publicly funded presidential candidates, while also flouting (among other laws) the much older ban on using corporate and labor union money in federal election campaigns.

In so doing, the president, his aides, and their Republican counterparts relied upon legal ratiocinations that-while not without support in the convoluted campaign finance case law, and while perhaps sufficient to ward off prosecution for ”knowing and willful" crimes-make a complete mockery of the campaign finance laws.

The Case for Self-Censorship

In what may be the most dramatic clash of free press and fair trial values in the nation’s history, The Dallas Morning News has taken a position very like that adopted in a very different context by Vice President Al Gore.

Both are proud of what they did-and promise not to do it again.

On March 3, Gore said he would not make any more fund-raising calls from the White House. That same day, The News-in the wake of its spectacular report that Timothy McVeigh had told his defense team that he bombed the Oklahoma City federal building in daytime to maximize the "body count"-filed the following statement with U.S. District Judge Richard Matsch in Denver:

"The Dallas Morning News …has no further plans to report unpublished information from material used as the source for the previous articles.

"The information … has been placed in the exclusive possession of [two outside law firms]…. Counsel will not thereafter provide The News access to the information for news reporting purposes. The News has placed the information with its counsel to preclude attention focused on Mr. McVeigh’s fair trial rights if it made further use of the material."

I especially like the part about the need "to preclude attention focused on Mr. McVeigh’s fair trial rights."

In fairness to The News, its intent was not to confess error, but to avoid being slapped with a gag order-just as its apparent intent in breaking its story on the Internet on the afternoon of Feb. 28, rather than waiting for the next day’s paper, was to get it out before defense lawyers could seek a gag order.

Prosecute Him for Perjury?

For those of you who have not yet had your fill of wallowing in O.J. Simpson cases, at least one big question remains: Should Simpson now be hit with a perjury prosecution for lying under oath at his civil trial?

"Oh, no." I sense you groaning, "enough is enough!"

Well, perhaps. But let’s think it through. A Feb. 6 Wall street Journal editorial urged California’s attorney general to explore a perjury prosecution even if Los Angeles County District Attorney Gil Garcetti won’t. And in the words of Eugene Volokh, an associate processor at UCLA Law School, "The fact that you’re acquitted for murder doesn’t give you a license to lie in court in future cases."

There is ample evidence that Simpson lied rampantly and shamelessly under oath in his civil trial and deposition. Indeed, the evidence is so strong and so widely known that a decision not to prosecute might teach the deplorable lesson that lying- even under oath-is both expected and condoned.

There would be no apparent legal impediment to a perjury prosecution. It would not be double jeopardy: The alleged crimes-lying under oath in 1996 and 1997 about facts material to the civil case-took place after the criminal jury’s 1995 acquittals of Simpson for the 1994 murders.

To be sure, the criminal jury’s acquittals would bar a perjury prosecution of Simpson for denying that he committed the murders. This conclusion flows from the principles of Ashe v. Swenson (1970) , in which the Supreme Court held that the double jeopardy clause gives rise to a collateral estoppel rule that a defendant cannot be prosecuted for perjury (or any other crime) based on allegations that are necessarily inconsistent with a previous jury verdict acquitting that defendant.