In his much-discussed new magazine, Brill’s Content, Steven Brill confidently accuses independent counsel Kenneth Starr and his deputies not merely of being imprudent in having so many off-the-record chats with reporters–a valid criticism–but of committing federal crimes, by leaking grand-jury secrets.

This deadly serious conclusion is based on a shallow and slanted analysis of the law.

(I leave it to others, for now, to examine Brill’s account of the facts in his 24,000-word ”Pressgate” and his hotly disputed claims that Starr’s office has been the source of various leaks too eagerly lapped up by a scandal-happy press. See this issue, p. 1452.)

A good place to start is the inference of criminality Brill drew from a Jan. 25 NBC News broadcast. Tom Brokaw asked correspondent Claire Shipman about ”an unconfirmed report that, at some point, someone caught the President and Ms. Lewinsky in an intimate moment.” Shipman answered, ”Sources in Ken Starr’s office tell us that they are investigating that possibility, but that they haven’t confirmed it.”

Brill’s conclusion: ”Of course, what Shipman did confirm in that report was the commission of one certain felony…:the leak of material from Starr’s office pertaining to a grand-jury investigation.”

The ”certain felony,” Brill suggested, was a violation of Rule 6(e) of the Federal Rules of Criminal Procedure, which bars prosecutors (among others) from disclosing ”matters occurring before the grand jury.”

One objection to Brill’s analysis is that there apparently had been no grand-jury proceedings on the Monica Lewinsky matter at the time of the Jan. 25 NBC report. A second, more serious objection is that the report did not even hint at the identity of any prospective grand-jury witness, let alone disclose planned or actual testimony.

One of Kenneth Starr’s lesser-noted but more interesting problems is the criticism he has drawn from his own profession.

The amicus briefs by the American Bar Association and three other national lawyers’ organizations in a pending Supreme Court case are but one example. They argue forcefully that Starr is flouting settled practice in his bid to compel evidence from the late Vincent Foster’s lawyer, James Hamilton, by claiming that Foster’s attorney-client privilege died with him in July 1993.

Prominent lawyers have also denounced Starr’s tactics on other issues with a passion that is surprising, given the praise he received when he was appointed independent counsel almost four years ago.

Meanwhile, adversaries such as President Clinton’s lead lawyer, David Kendall–another respected member of the legal establishment–trash Starr with a venom that seems to transcend the customary head-butting of opposing counsel.

What explains all this? Has Kenneth Starr, who was seen as a courtly conciliator when he was a judge, simply gone berserk? Has he been taken hostage by gonzo prosecutors on his staff?

Although Starr has surely been aggressive–perhaps too aggressive, in some instances–he has not become the wild man of the legal profession. Nor is he in the lawyers’ doghouse solely because of the partisan rancor that would accompany the criminal investigation of any President by an independent counsel who has been active in the opposing political party.

Imagine a system that takes $ 350-$ 1,500 a year from motorists to insure them against liability for bodily injuries; funnels 55 per cent of that to lawyers and insurance companies; pays out most of the rest in ”pain-and-suffering” damages to accident victims and a growing legion of fraud artists; dispenses just 15 per cent to victims for monetary costs such as doctors’ bills and lost wages; and grossly undercompensates those with the most-severe injuries.

That’s our car insurance system, as shaped by a tort litigation regime that pits driver against driver in a futile quest to assign blame for accidents and provide compensation for intangible injuries that money cannot heal.

Premiums have shot so high that the push for reform has become a potent political issue. The proposed Auto Choice Reform Act, now pending in Congress, has enough support to alarm even the mighty trial lawyers’ lobby. But lest it be dismissed as mere lawyer bashing, note that the auto-choice bill is also opposed by many insurance companies–the betes noires of the trial lawyers.

Unlike conventional tort-reform proposals, the auto- choice bill is assiduously crafted to blunt complaints that it would strip accident victims of their rights. Although it would leave a few injured parties with less compensation, it would leave most with more, while offering all car owners a new right: to save hundreds of dollars in premiums each year by giving up their current rights to seek monetary compensation for any pain and suffering that they themselves may suffer. (Economic damages cover measurable monetary costs, such as medical expenses and lost wages; pain-and-suffering damages compensate for intangible injuries such as physical and emotional distress.)

It’s an estimate, but perhaps not all that far-fetched: In some cases, lawyers suing the tobacco companies could make as much as $100,000 an hour if the cozy contingency fee deals they have signed with state attorneys general and others are left intact.
     
That helps explain why some in Congress are pressing to add curbs on lawyers’ fees to the $515 billion tobacco bill sponsored by Sen. John McCain, R-Ariz.

In Texas, five leading plaintiffs lawyers would split a pot of $2.3 billion over the next 25 years — 15 per cent of a $15.3 billion statewide settlement — under a contingency fee deal signed by Democratic state Attorney General Dan Morales for a lawsuit to recover health care costs attributable to tobacco.

The five lawyers did not keep track of the hours they worked. Nor have they specified how much of the money they would share with the dozens of other lawyers who helped them. But professor Lester Brickman of Benjamin Cardozo Law School, an expert witness in a court challenge brought by Texas’ Republican Gov. George W. Bush against the fee deal, says the lawyers’ hourly rates come to at least $92,000, based on his estimate that they almost surely put in no more than 25,000 hours on the cases.

In Florida, West Palm Beach Circuit Judge Harold J. Cohen invalidated as "unconscionable" a deal that would give the state’s 12 lead private lawyers $2.8 billion — 25 per cent of a similar, $11.3 billion statewide tobacco settlement. But his decision was overturned on May 18, on procedural grounds, and sent back for further action.

The total cut for the plaintiffs lawyers in all current and future tobacco cases covered by the McCain bill could run as high as $5 billion a year, with the biggest bucks coming from future class action suits on behalf of sick smokers and their families.

The finger-pointing between President Clinton’s lawyers and Kenneth W. Starr’s office over leaks raises intriguing possibilities. One is that someone in Starr’s office has committed a crime by leaking grand-jury secrets. Another is that someone in the Clinton camp has orchestrated a fraud by leaking things out the back door while trotting Clinton’s lawyers out the front door to falsely (if unwittingly) blame the leaks on Starr.

We may never know the truth, because reporters won’t reveal their sources. But one thing is clear: Of the more than 50 leaks that Clinton counsel David Kendall has attributed to Starr’s office, the vast majority did not, contrary to Kendall’s implication, involve grand-jury materials at all. Those ”leaks,” therefore, were not illegal, even if they came from Starr’s office.

Kendall’s PR offensive against Starr also seems flawed by his failure to produce any persuasive evidence that Starr’s office is guilty of any illegal leaks. Indeed, Starr’s prosecutors plausibly retort that most or all of the grand-jury leaks probably came from the Clinton camp, witnesses’ lawyers, or the Justice Department.

The most recent example is Kendall’s May 6 letter accusing Starr’s office of leaking ”sealed grand-jury documents”–a reference to Judge Norma Holloway Johnson’s sealed ruling rejecting Clinton’s claims of executive privilege.

This leak did violate a court order (a profoundly unwise one, given the public importance of the executive privilege decision). And Kendall did have a basis–initially–for his complaint: Fox News had explicitly identified Starr’s office as the source of its May 5 report.

The O.J. Simpson verdict–in which a jury voted for acquittal despite powerful proof of guilt–seems less aberrational now that President Clinton has soared to new heights of public approval in the face of convincing evidence that he has played fast and loose with the truth.

The Simpson trial illustrated that our legal culture had become decadent. The Clinton saga shows that the worst features of that legal culture have seeped into our popular and political cultures.

The degradation of the legal culture, abetted by politically correct law schools and money-grubbing law firms, has been a decades-long process, so gradual as to be almost invisible. The adversary system of justice has reached the point at which the means (adversarial lawyering by advocates for opposing parties) often obscure the end (justice). Many lawyers now see themselves more and more as hired guns whose weapons necessarily include concealment and distortion of facts, and less and less as officers of the court whose advocacy must be qualified by loyalty to truth-seeking.

And now our President, barricaded behind squadrons of lawyers, is using the tools of the legal culture to drive simple respect for evidence and common sense to the margins of public discourse about his own conduct.

The number of students admitted to the eight campuses of the University of California who identified themselves as white declined by almost 9 per cent from 1997 to 1998, according to official data. The number admitted to Berkeley, the most selective UC campus, declined by a little under 2 per cent.

You may not have noticed these numbers in the news articles last month about the University of California’s ban on racially preferential affirmative action in admissions.

The major theme of the coverage was exemplified by an April 1 report in The New York Times that ”the state’s most competitive public universities (Berkeley and UCLA) announced steep drops in admissions of black and Hispanic applicants for next fall’s freshman class.”

That was true. And that is a matter for serious concern. Nobody should be indifferent to the damage done by a dramatic drop in the presence of traditionally unrepresented racial minorities (also including American Indians) at elite campuses. These schools are prime gateways to opportunity in a society still plagued by racial inequality; the drop in black and Latino admissions could have a dispiriting effect on the many who believe–sincerely, if erroneously–that racial preferences are the only way for them to get a fair shake; and a decline in racial diversity can detract from the educational experience of all students.

But the overall picture is far more complex–and the effects of race-blind admissions are far more mixed, and more encouraging–than most news reports have suggested.

Particularly deceptive are claims by Theodore Shaw of the NAACP Legal Defense and Educational Fund that the elite campuses are ”returning to a race-exclusive status,” and by President Clinton that advocates of race-blind admissions in California ”think it’s a good thing to have a segregated set of professional schools.”

At first blush, the Administration’s bid to block any testimony against Bill Clinton by his Secret Service protectors is more plausible than, say, the President’s claim of executive privilege to block other inquiries.

Protecting the President’s physical safety is clearly a paramount national interest. It often requires Secret Service members to be close by, as was the agent who took a bullet meant for President Reagan in 1981. The need for physical proximity conflicts with any President’s natural desire for personal privacy. Trust, and a degree of confidentiality, are therefore essential.

Former President Bush strongly supports Clinton’s claim that compelling agents to testify would undermine the Secret Service’s ”protective function.” As he wrote Secret Service director Lewis Merletti on April 15: ”I can assure you that had I felt (that agents) would be compelled to testify as to what they had seen or heard, no matter what the subject, I would not have felt comfortable having them close in.”

Secret Service personnel have testified before, not only in prosecutions of would-be assassins, but also in congressional hearings such as the one that revealed the existence of President Nixon’s secret taping system. But no Secret Service agent has testified against a President or his family about matters he saw or heard while guarding them. So there is no strong precedent that either supports or undercuts the privilege the Administration seeks to create.

All of this argues for some judicial protection against enlisting Secret Service members in fishing expeditions, whether conducted by congressional investigators, or by civil plaintiffs like Paula Jones, or even by prosecutors like Kenneth Starr. But it does not mean that Starr should not be able to compel Secret Service testimony that he has reason to believe may implicate the President in criminal activity.

Anyone who doubts that the law of sexual harassment is an incoherent mess need look no further than the 207 pages of opinions by seven judges of the federal appeals court in Chicago, in a case that was heard on Wednesday by the Supreme Court.

Add to that the stark contradictions between the Clinton Administration’s arguments supporting the plaintiff in that case and Bill Clinton’s arguments for dismissing the Paula Jones case.

Then mix in the omnifarious comments of eight Justices during the Supreme Court argument. Justice Ruth Bader Ginsburg, for example, repeatedly wondered aloud about the strange (she implied) dichotomy between hostile-environment claims based on a ”quid pro quo” and those stemming from a ”hostile work environment.”

A classic quid pro quo case would involve a male supervisor telling a female employee, ”You’ll never get promoted unless you have sex with me.” A classic hostile environment case might involve that same supervisor, or a group of co-workers, creating a ”severe or pervasive” atmosphere of sexism in the workplace through offensive–if not necessarily sexual–conduct or comments that demean women.

The answer to Ginsburg’s question–as she well knew–was that the Court itself has ratified the quid pro quo/hostile environment dichotomy ever since its first sexual harassment decision in 1986. Now some Justices seem eager to disclaim authorship.

Of course, to say that a body of law is an incoherent mess–and that it can lead to hypocrisy and injustice–is not to say that it should be junked. But perhaps it could be cleaned up a bit.

Dear Reader:

In past columns, I have faulted independent counsel Kenneth Starr for maintaining a private law practice on the side, representing a tobacco company and planning to take a deanship at Pepperdine University funded by Clinton-bashing conservative Richard Mellon Scaife.

In short, I have faulted Starr for insensitivity to the need to avoid the appearance of conflicts of interest, and thus for feeding suspicions that he is biased against the President.

Now I am being criticized on exactly the same grounds. The criticism is valid.

My mistake was that I wrote two columns for National Journal about matters under investigation by Starr without first disclosing to our readers that I had considered joining Starr’s office. I thereby let down my colleagues and invited suspicions that I had (and was hiding) a conflict of interest.

I plead innocent to any conflict of interest. I plead guilty to two serious errors in judgment: failing to tell my editor, Steve Smith, what he needed to know when he needed to know it, and failing to figure out for myself what Steve would have told me about the need for disclosure to readers.

These mistakes have not only damaged my credibility, but also left a small cloud (me) hanging over National Journal’s hard-won reputation for nonpartisan reporting and analysis. I apologize to my colleagues, and to any readers whose confidence in this magazine has been shaken.

Apologies aside, the best I can do to make amends is to assure you that I have no actual conflict of interest in writing about Clinton or Starr; that I have no bias against Clinton or for Starr; and that my mistakes were honest ones, rooted in an ill-considered promise of confidentiality to Starr.