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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.

The Clintons’ own retention of private counsel, to whom they owe several million dollars in unpaid fees, was attributable primarily to the Whitewater scandal’s roots in the Clintons’ pre-White House years, and is exceptional among modem presidents. But if Starr’s position prevails, this private-counsel exception may become the rule.

I’m no fan either of the Clintons, who have a history of hiding and fudging awkward facts, or of the current breadth of the attorney-client privilege, which is sometimes used to facilitate cover-ups and evasion of the law rather than compliance with it.

Nonetheless, the 8th Circuit’s holding seems too broad. It should at least be modified by the Supreme Court, even though (as discussed below) the White House might still deserve to lose on narrower grounds.

The case involves a subpoena by Starr’s grand jury for notes taken by White House lawyers at two meetings with Mrs. Clinton and her personal attorney, David Kendall of D.C.’s Williams & Connolly. The first session, on July 11, 1995, focused on Mrs. Clinton’s planned testimony about events following the July 1993 suicide of Deputy White House Counsel Vincent Foster; the second, on Jan. 26, 1996, was a debriefing during breaks in and immediately after Mrs. Clinton’s grand jury testimony about the belated discovery in the White House of her Rose Law Firm billing records.

Starr has made no claim that these consultations were part of a criminal cover-up, or that they would be unprotected by the privilege if just Mrs. Clinton and her private counsel had been present. Rather, Starr (and the 8th Circuit) contends that meetings attended by White House (or other government) lawyers are never privileged, at least as against a federal grand jury subpoena.

While defensible in theory, this view is at odds with the most closely relevant judicial precedents and the views of all recent administrations. It is also the opposite of the position that (I suspect) would have been taken five or 10 years ago both by Judge Bowman, a Reagan-appointed conservative, and by then Judge Starr, if (for example) Independent Counsel Lawrence Walsh had subpoenaed all notes of President Ronald Reagan’s or George Bush’s consultations with their own White House lawyers about the Iran-Contra scandal.

In any event, Starr’s position smacks of changing the rules in the middle of the game to get the Clintons. Indeed, the opinions of both U.S. District Judge Richard Kopf of Nebraska, who dissented from the 8th Circuit decision, and U.S. District Judge Susan Webber Wright of Little Rock, who had initially quashed Starr’s subpoena, exude concern about the unfairness of retroactively applying a new rule of law against the Clintons.

(Kopf and Wright are Bush appointees. Judge Roger Wollman, who joined Bowman’s opinion reversing Wright, is another Reagan appointee.)

An unbroken line of lower court precedents holds that government entities like the White House can invoke the attorney-client privilege in civil cases. White House lawyers also stress that the attorney-client privilege has never been deemed any less applicable in criminal than in civil proceedings.

The White House adds that the Office of the President (like other government entities) enjoys a broad privilege for disclosures to government lawyers by the president and his aides, by analogy to a 1981 Supreme Court ruling, Upjohn Co. v. United States, that the attorney-client privilege of a corporation protects disclosures by its employees to its lawyers for corporate purposes.

Hillary Clinton is not a paid White House official, of course. But she is one of the president’s closest advisers, and every first lady functions as an official, with her own paid staff, for many purposes. Thus, the White House plausibly contends, the attorney-client privilege should protect the first lady’s communications with White House lawyers for….

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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.

In doing so, Deputy Solicitor General Seth Waxman had suggested that morning in his well-crafted oral argument for the government in Reno v American Civil Liberties Union, I will be giving my kids "a free pass to the equivalent of every adult bookstore and video store in the country"-a veritable cornucopia of sex, bestiality, S&M (not to be confused with IMs), filth, scum, trash, and worse, just a few clicks of the mouse down the information superhighway.

That’s why, Waxman suggested, the Court should uphold the Communications Decency Act (CDA), which is Congress’ best effort (so far) to keep Internet pornography and other "indecent" materials away from kids whose parents cannot or will not do the job themselves.

It’s nice of Congress to want to help. And the arguments for some sort of governmental regulation to shield kids from Internet smut are stronger than most of the CDA’s legion of libertarian critics like to admit.

One of those arguments turns First Amendment values against the First Amendment champions: "Much of the Internet’s vast potential as an educational and informational resource will be wasted," the government’s brief contends, if parents fear that letting the Internet into their homes will expose their kids to a world of online smut.

But Congress has a way of overdoing things. And this slapdash, sloppily drafted, vague, overbroad blunderbuss of a statute, which was adopted without even a hearing to explore its far-reaching chilling effects on constitutionally protected speech, is a prime example. In making it a crime to post "indecent" speech anywhere on the Internet that kids might roam, the act makes it risky not just to peddle porn, but also for libraries, advocacy groups, and other nonprofits to display sexually explicit art or graphic sex-education materials; for individuals engaged in spirited online debate to toss in a four-letter word; for kids to gossip among themselves about sex; and much more.

Consider the four-letter word that got me in trouble with America Online’s in-house cybercops. My 12-year-old, while being flamed in a chat room by some other kid, rashly resorted to the raunchiest retort that came to mind: "fart-nugget." This I discovered to my horror (tinged with amusement) when I received a warning in my e-mailbox that my America Online "account" had been observed engaging in unacceptable indecency.

The question arises: Was it a federal crime for Sarah to transmit "fart" to another kid? Probably not. They don’t prosecute 12-year-olds, do they? But suppose that Sarah were 17 and had used a somewhat stronger Anglo-Saxon monosyllable, or a bunch of them. The legislative history of the CDA indicates that Congress intended to cover things like comedian George Carlin’s "seven dirty words" monologue, which the Supreme Court had found to be "indecent" in FCC v. Pacifica Foundation (1978); the Court upheld an FCC rule banning radio broadcasts of such stuff during daytime hours, when lots of kids would likely be listening. "Fart" was not one of Carlin’s seven dirty words, but it was in his top 20. How dirty is too dirty?

Or take the question that Justice Stephen Breyer asked Waxman at oral argument, hypothesizing a bunch of high school kids who get together in one of those private Internet chats and boast about their sexual exploits, "real or imagined." Are they all committing federal crimes? Breyer asked.

Waxman’s answer was not exactly no, honest fellow that he is. Breyer seemed not to find that reassuring. Nor, apparently, did Justice David Souter, who tossed in a hypo about a parent allowing his teen-ager to use the parent’s computer to access possibly "indecent" Internet materials. "The parent would also go to prison, I take it?" Souter asked. Waxman didn’t think so, but he couldn’t deny that a literal interpretation of the statute could theoretically support such a prosecution.

The oral argument, however, was not exactly a slam-dunk for Waxman’s equally adept adversary, D.C. lawyer Bruce Ennis of Jenner & Block, representing a broad coalition including the American Library Association, the ACLU, America Online, Microsoft, nonprofit health and educational groups, and some 40 others. While Ennis stressed the uniquely "democratizing and speech-enhancing" potential of an uncensored Internet, justices peppered him with analogies to Court decisions upholding restrictions of "indecent" speech in other media-bookstores, cable, and dial-a-porn services, as well as broadcast-So protect children.

Ennis central point was that the CDA would operate essentially as a ban on a wide range of constitutionally protected but arguably "indecent" speech on the Internet-excepting, ironically, the large percentage of Internet smut that comes from abroad, which the CDA apparently would not touch. His factual premise was that it is either technologically impossible or prohibitively costly for the vast majority of Internet speakers to check the ages of visitors to their sites and thus to exclude children.

But that conclusion-albeit accepted by the lower court in its findings of fact-may or may not hold true for very long. Waxman suggested that inexpensive age-verification options are becoming available. And Justice Antonin Scalia, stressing the rapid pace of change in computer technology, told Ennis that the factual record on which the lower court’s findings were based may already be obsolete, and that "this case depends on who has the burden of proof" on how broadly the CDA would in fact chill protected speech in the long run. Scalia suggested that the burden should be on Ennis and others who claim that the statute would in practice amount to an unconstitutionally broad regime of censorship, and that they have not carried it.

Scalia seems wrong about that. When Congress enacts a censorship regime with heavy criminal penalties for violating an extremely vague prohibition of "indecency," without taking the trouble to explore what its effects might be or to create a factual record; and when the best currently available evidence suggests that this regime will in fact banish a wide range of constitutionally protected speech from most portions of a vast, rapidly expanding, dynamic new communications medium frequented by millions of adults; and when Congress stated goal of keeping kids away from smut will apparently be undermined by a flood of easily accessible smut from abroad; and when home-based parental controls are available, even to those of us who have trouble using them, then the Court’s job is to strike down that regime of censorship.

In doing so, the justices should not close the door to more narrowly tailored legislation to shield kids from Internet smut, especially the kind peddled by commercial enterprises, which already obtain credit card numbers from viewers for their own purposes and thus can easily satisfy the CDA’s age-verification provisions.

But the Court should also make it clear that the kind of "uninhibited, robust, and wide-open" debate that it found to be protected in New York Times v. Sullivan (1964), in all of its (sometimes "indecent") forms, cannot be banished from what one of the judges on the panel below, U.S. District Judge Stewart Dalzell, aptly called the "never-ending worldwide conversation" that the Internet has the potential to be.

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–Sen. Orrin Hatch (R-Utah)

What’s so bad about trying to dig up dirt? In their furious attacks on the excesses of a few of Clarence Thomas’ opponents. Thomas and his supporters cynically sought to delegitimize the whole enterprise of investigating Supreme Court nominees and their records.

In the process, they uttered a lot of pious, hypocritical, demagogic nonsense.

Efforts by political opponents and the press to ”dig up dirt" about people in public life are as American as apple pie and as old as the republic. And such negative research is a tool used by conservatives no less than by liberals.

In the words of Bruce Murphy, author of a book on the failure of Justice Abe Fortas’ nomination to be chief justice in 1968 and his subsequent resignation under a cloud of financial improprieties: ‘ ‘The handbook for the dirt-digging operation was written by the Republicans in 1968, and the author was Senator Strom Thurmond of South Carolina."

Dirt digging is not only proper but good for the country-if kept within proper bounds.

By "proper bounds," I mean using legitimate investigative techniques-combing through speech texts, phoning former employees, and the like-to seek out and publicize any information that may be relevant to a nominee’s fitness for the job he or she seeks.

As for relevance, even Thomas had to concede that Anita Hill’s allegations of sexual harassment would (if true) demonstrate his unfitness for the Court.

Given that, why shouldn’t liberal groups and Senate investigators phone former subordinates of Thomas at the Equal Employment Opportunity Commission to ask about rumors of sexual harassment by their boss? And when a highly credible witness makes a striking allegation, why shouldn’t they fry (by honorable means) to get it into the public domain?

There is a great deal wrong, of course, with inventing or recklessly spreading false rumors about a nominee. And there is a great deal wrong with invading people’s privacy, whether by using intrusive investigative techniques or by spreading sensitive irrelevancies about their private lives.

It’s also wrong to demonize a nominee by distorting his record, as Sens. Edward Kennedy (D-Mass.) and Howard Metzenbaum (D-Ohio) and some other opponents of the Robert Bork nomination did four years ago. And it was wrong for a senator or staffer to leak Anita Hill’s allegations to the press. (It was wrong because it betrayed a promise of confidentiality to Hill; but the offense was mitigated by the public interest in preventing the Senate from confirming Thomas to a lifetime Supreme Court appointment without having given Hill a hearing.)

But Thomas and his attack-dog supporters were not interested in such distinctions. The difference between the few opponents who went too far and the many who engaged in legitimate negative research was irrelevant to them. They wanted to cast a sinister aura over all Thomas opponents.

The right-wing agenda was to brand as a vicious dirt-digger anyone who dared to comb through Thomas’ speech texts to document his inflammatory attacks on Supreme Court precedents, anyone who dared to question his implausible explanations in Senate testimony of his prior statements, anyone who dared to inquire into allegations of questionable conduct.

Most demagogic of all, Thomas, Hatch, Sen. John Danforth (R-Mo.), and others sought to float the preposterous suggestion that a cabal of "liberal groups" had somehow taken possession of Anita Hill’s brain and planted in it a fabricated story about sexual harassment.

Here’s how Thomas put it on Oct. 12: "I believe that someone, some interest group. I don’t care who it is, in combination, came up with this story and used this process to destroy me." Later, he ‘added: "I expected to be a sitting duck for the interest groups. I expected them to attempt to kill me…I expected people to do anything, but not this."

Nonsense. It’s possible that all or part of Anita Hill’s account was fabricated-by her. But there is not a shred of evidence that anybody else fabricated it and fed it to her. Thomas’ suggestion that "some interest group" concocted it this summer to derail his nomination was obliterated by four witnesses who testified that Hill had told them years ago that Thomas had sexually harassed her.

At another point, Thomas said: "From the very beginning, charges were leveled against me from the shadows, charges of drug abuse, anti-Semitism, wife beating, drug use by family members, that I was a quota appointment, confirmation conversion, and much, much more. And now this…I have endured this ordeal for 103 days. Reporters sneaking into my garage to examine books I read. Reporters and interest groups swarming over divorce papers looking for dirt."

Let’s parse this catalogue.

Assuming that Thomas was telling the truth about reporters sneaking into his garage, that was a reprehensible invasion of privacy.

But if Thomas considers it an unbearable "ordeal” for people to suggest that he was a quota appointment, which he was, or that his testimony smacked of "confirmation conversion," which it did, he has no business in public life. Criticism of one’s public record goes with the territory.

It’s true that false, ugly rumors about Thomas’ personal life circulated in Washington’s gossip mill; they usually do when someone seeks high office. Whoever starts such rumors is scum. But there is no evidence that the groups targeted by Thomas and his backers started them.

Reporters investigated the rumors that were arguably relevant (and some that were probably irrelevant) to Thomas’ fitness for the Court, as they should have done. But hardly any of this stu was widely disseminated to the public, because tl major news media found it all insubstantial. Left-wing outlets like The Nation did print some sneering stuff about the church Thomas attends; the mainstream press, by and large, did not.

In fact, most of the work done on the nomination by liberal groups like People for the American Way did not involve looking for personal skeletons in the closet at all. They were digging through the public record and preparing detailed, generally accurate, and highly relevant reports documenting Thomas’ many controversial statements about important issues, his attacks on Congress, and the like.

Thomas’ backers sought to suggest that even this unquestionably legitimate activity was all par and parcel of a "sleazy political campaign." in the words of Danforth. He disparaged "all the interest groups who have been pawing through every statement that he made, all of the staff members who have been analyzing every footnote and ever law review article."

Why shouldn’t they do that? What’s wrong wit examining the public statements of a man who aspires to a permanent seat on the Supreme Court for signs of his views on key issues, for signs of ^hypocrisy, for whatever may be of interest?

Danforth also complained of liberal interest groups "picking on" Thomas, who had told the Senate that he had never discussed Roe v. Wade with another person, by "taking out paid advertising in a newspaper to ask for people to come forward if they’ve ever talked about aborti with Clarence Thomas. " (Ône such ad ran in Legal Times.)

What’s wrong with that? If one suspects Thor of perjury, as almost everyone does on the Roe v Wade point, it’s perfectly logical to solicit anyone who may have relevant evidence to come forward As conservative legal commentator Bruce Fein says, "Big deal. He said it under oath. What do* he expect people to do?”

Concerted efforts to intimidate those who won provide negative information about Supreme Court nominees are not new, though they have taken different forms over the years.

Twenty years ago this month. The Washington Post reported that research by a Harvard law professor had disclosed that a leading candidate a Nixon appointment to the Court, Judge Mildre Lillie of California, had been unanimously reversed four times in recent months by the California Supreme Court.

When the professor, Laurence Tribe, got to hi office that day, he found an FBI agent waiting for him.

”They wanted to know what business did I ha looking for information about Richard Nixon’s Supreme Court nominees and who put me up to it," Tribe recalls.

Richard Kleindienst, then the deputy attorney general, and John Mitchell, then the attorney general, responded to official complaints from Harvard by admitting they had sent the FBI to se Tribe, while implausibly insisting that they were only seeking information about Lillie.

Kindred spirits of Kleindienst and Mitchell are working toward the same basic objective today: Clear the decks for right-wing Supreme Court appointments by intimidating and demonizing it opposition.

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"You have the right to say no."

Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.

The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.

For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.

The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.

The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.

Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.

The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.

Donald Ayer, Bostick’s lawyer, contended that these facts plainly fit the Court’s prior holdings that such a suspicionless encounter violates the Fourth Amendment if "a reasonable person would have believed he was not free to leave."

The former Bush administration deputy attorney general had to spend much of his time during the argument fending off efforts by Scalia and Rehnquist (for whom he once clerked) to bury the facts in a barrage of pettifoggery.

Why would anyone be rattled just because a police officer stands over him with a gun in his hand? Scalia demanded to know. Cops carry guns. Nothing wrong with that.

"Do you think," chimed in Rehnquist, "a reasonable person might have concluded that if he didn’t consent, the officer would shoot him?"

As for Ayer’s contention that the police may have enhanced the aura of coercion by tapping Bostick on his foot to rouse him, the chief justice suggested that an officer "who wishes to interrogate a sleeping passenger" obviously must wake him up one way or another. The option of simply leaving sleeping passengers alone seems not to have crossed Rehnquist’s mind.

Scalia made short work of Ayer’s contention that Bostick could not readily absent himself from two cops who had him cornered in a bus that was due to leave any minute. This problem, Scalia suggested, stemmed from Bostick’s choice to travel by bus, not from the state’s choice to go onto buses to search random passengers for drugs.

"The mere fact that it’s a lot of trouble to leave," Scalia declared, "is irrelevant."

The Scalia approach would apparently allow drug-war-crazed police to take their dragnets into airplanes, restaurants, bars, classrooms, public restrooms-randomly knocking on toilet-stall doors, announcing themselves, asking occupants if they’d mind opening up to answer a few questions and to hand over their bags for inspection.

So what if the occupant feels a bit cornered? She entered that toilet stall voluntarily, Scalia might say. And besides, Rehnquist might add, what’s an officer on the toilet-stall beat supposed to do?

Ayer parried the conservative tag team’s thrusts with aplomb. He also pointed out, in his brief, that the very reason police work the buses, as they call it, is the chance to confront a "captive audience" in a cramped setting.

The lawyer disavowed seeking to void all random bus dragnets. And it is hard to imagine such a sensible decision coming from this Court, which in 1984 blessed, as a "classic consensual encounter," a grossly intimidating hunt by federal agents for illegal aliens among Hispanics at a California factory (Immigration and Naturalization Service v. Delgado).

Solicitor General Starr, arguing as a friend of the Court, assured the justices that "all of these officers … have read this Court’s cases." They have been trained, he gushed, to "back off" whenever a passenger just says no. Starr even suggested in his brief that Bostick could have avoided further scrutiny by repairing "to the nearby bathroom."

If the solicitor general believes all this, he’d believe pigs fly. In the fictional America posited by Starr, an encounter might unfold like this:

First officer (with elaborate courtesy): "Excuse us, my dear fellow, but it would seem drug couriers are about, and we were wondering whether you might be one of them. Would you be so good as to show us your ticket and ID?"

Second officer (casually placing hand on pistol): "And while you’re about it, would you mind handing over that blue bag there so we can search it for drugs?"

Passenger: "Sorry, gents, but I’m trying to get some rest."

First officer: "Pretty please?"

Passenger: "No way. I don’t appreciate being treated like a criminal, I don’t want anyone snooping through my toilet kit, and they haven’t repealed the Fourth Amendment yet. So kindly move along, or I’ll be constrained to go hide in the bathroom."

Second officer: "Well, partner, I guess we’d better do what the man says. You remember Terry v.Ohio, 392 U.S. 1, 27."

First officer: "Righto. See also Florida v. Royer, 460 U.S. 491, 502 (plurality opinion). Ever so sorry to have inconvenienced you, sir. Godspeed."

No one has suggested a plausible answer to the most pregnant question about the emerging regime of "consensual” drug searches: If it is as clear as Starr contends that "you have the right to say no," why do almost all of the thousands approached in such police dragnets meekly say yes?

D.C. police detective Vance Beard told Legal Times last year that he had received negative reactions from only nine of 400 people he had approached at bus and train stations. "Even guilty parties are happy to talk to you," he said.

Police approaching innocent people on the insulting premise that they may be drug dealers get a far higher quotient of consents than can be accounted for by citizens’ natural willingness to cooperate with reasonable police inquiries.

As for the guilty, "It’s always interesting to me," Justice Thurgood Marshall mischievously observed, "that all of the drug dealers, when you ask them to be searched, say ‘Sure, come on.’ " "They may not be a very bright bunch of people," countered Scalia. But it’s no compliment to innocent bus passengers if Scalia really thinks them "bright" enough to think they can safely tell police to buzz off, "bright" enough thereby to risk that an officer will hold up the bus, or take them off for further questioning or dog-sniffing, or find a pretext to arrest them. Nor would it be unimaginable for an unscrupulous cop to plant drugs on a passenger who spurns his demands.

At best, travelers who exercise their theoretical right not to be searched are sure to become instant suspects. Police will strain to detect or invent signs of nervousness, which can then be bootstrapped into a "reasonable suspicion" and used to justify an involuntary search if their quarry cannot be bullied into "consenting." Some officers have said they phone ahead to suggest further scrutiny of uncooperative sorts at the next stop.

This sort of thing "could be police harassment," Scalia averred, "but it would have nothing to do with whether there’s been a violation of the Fourth Amendment."

It will be a sad day for civil liberties if Scalia prevails-although not, perhaps, an immediate problem for those with the means to travel by plane rather than by bus.

"It is difficult to imagine," Americans for Effective Law Enforcement observed-in the first of the 86 Supreme Court amicus briefs in its history to side against the prosecution-police doing this to "a planeload of business class air passengers."

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Assume for the moment the lawyer can take the money. Should he-unlike, say, a doctor or a car dealer-also be entitled to refuse to tell the government whom it came from? Should he be permitted to ignore the federal tax forms that most businesses are required to file every time they receive more than $ 10,000 in cash?

The Internal Revenue Service and the Justice Department have started bringing court actions to force lawyers to name clients on these forms. Respected criminal-defense attorneys-like Gerald Lefcourt of New York-say that enforcement of the reporting requirements conscripts lawyers as "informants against their clients" in derogation of their ethical duties and, in many cases, of the attorney-client privilege and the Sixth Amendment right to counsel. Hundreds of lawyers have filed the forms with blanks in place of the payer’s name.

These lawyers warn that the new cash-reporting push-together with the government’s efforts under forfeiture laws to seize drug and racketeering money paid out as attorney fees-threatens to poison the attorney-client relationship and destroy the criminal-defense bar.

The best will be driven out, warns Lefcourt. They will go to big firms where they can labor to make the world safe for "companies that put cancer-causing agents in pajamas, and everybody will think they are great."

Lefcourt and his colleagues have a point. A prime reason for a vigorous defense bar is to deter the government from bringing criminal charges in the absence of strong evidence. The system works pretty well in that regard: The vast majority of defendants are proved guilty of something because few innocents are charged.

But defense attorneys are also prisoners of their own success. Any lawyer who tried to specialize in innocent criminal defendants would not make much of a living.

Dirty, but Necessary, Business

Many defense attorneys-at least those who represent accused drug dealers and other low-status defendants without major sources of legal income-know that their fees are paid mainly with the proceeds of crime. It’s a dirty business, perhaps, but someone has to do it. These are the lawyers on the Bill of Rights firing Sine. And the job they do won’t be done well unless it pays well.

So it’s not overstating the case to claim that the existence of the criminal-defense bar as we know it-and the health of the Sixth Amendment-depend on allowing lawyers to take and keep money they suspect is tainted. Indeed, we should even indulge a presumption that a fee is untainted unless the lawyer is confronted with something like proof to the contrary beyond a reasonable doubt.

The Supreme Court, however, doesn’t see it this way. In two 5-4 decisions last June, it upheld against Sixth Amendment challenges the federal government’s broad new regime of fee forfeitures. The Court required no proof that the lawyers whose fees would be seized had any more reason than is typically the case to know that the money was tainted.

The high court’s decisions were unfortunate. Lefcourt and other defense attorneys seem right in warning that unless the Justice Department exercises great restraint in using its fee-forfeiture powers, it will drive the good lawyers out of criminal-defense work. We’ll be pushed toward a chillingly statist system in which almost all defenders will be low-salaried employees of the same government that does the prosecuting.

But defense lawyers are wrong to see the cash-reporting requirements in a similarly sinister light. To be sure, they may be obliged by state rules of legal ethics to refuse to name their clients on cash-reporting forms unless and until ordered to do so by the courts. The real question is whether the courts should order them.

And on that question, the defense attorneys’ claim for an exemption rests on the proposition that the Sixth Amendment gives lawyers a special privilege not only to take money with an obvious criminal taint but also (by evading reporting) to help their clients conceal where the money came from.

Why should the law permit that? Why-given the vast amount of illegal activity facilitated by large sums of cash-should not the law prohibit everyone, including attorneys, from accepting payments of more than $10,000 in cash?

Most people who insist on paying more than $10,000 in greenbacks do so to conceal illegal activity-whether it be drug sales or tax evasion or hiding joint assets from a spouse. Defense lawyers counter that many other people have all sorts of lawful reasons for wanting to pay lawyers in cash, such as suspicion of banks or not wanting the relatives or friends who loaned them the money to know why they need it. But it is difficult to see how reporting large cash payments to the JRS would defeat such idiosyncratic concerns.

It’s also hard to see why honest lawyers, given their druthers, would not prefer being paid with certified checks to being presented with bags full of money. What do you do with $20,000 in cash? Stuff it into a briefcase, head for the bank, and hope you don’t get mugged en route? Stick it in a drawer overnight, if it’s too late to go to the bank? Call a Brinks truck? Why go through the hassle?

Defense attorneys say you go through the hassle because sometimes that’s the way the client wants it. If you won’t, the client will find someone else-perhaps a lawyer who won’t report the cash to the IRS at all.

If you force the honest lawyers to identify clients who pay in cash, says Lefcourt. "[what you’ll end up with-at the rate you’re kicking the good people out of this profession-you’ll have seedy people who will pocket the cash, suborn perjury, do whatever they have to-and what have you accomplished?…You haven’t done squat for the crime or drug problem." And, he adds, you have set up the lawyer as a witness against the client in a future tax-evasion prosecution.

This seems overheated. If the cash-reporting requirement is enforced in earnest and upheld by the courts, those who do not want to become witnesses against their clients can simply make clear that they do not accept large sums in cash.

That would give the client a choice: He could write the lawyer a check, depositing the money to cover it if necessary. A deposit of more than $10,000 would require the bank to file a cash-receipt form naming the client. He could seek to evade that by making a series of small deposits before writing the check. The lawyer should not encourage or assist such illegal conduct, but might not be in a position to detect or prevent it., Or the client could look for another attorney, one willing to pocket the cash without notifying the IRS at all.

Clients who are determined to hide tainted money from the IRS while using it to hire lawyers might still be able to do so. But they could not do it as easily as they can now.

And at least the honest lawyers would not be assisting in the concealment. The dishonest might not help either, because they could do so only by risking prosecution, which might outweigh the benefit.

It is true, as Lefcourt says, that forcing lawyers to tell prospective clients that they cannot accept cash fees of more than $10,000 without reporting them to the IRS may put some strain on the nascent attorney-client relationship. To vindicate important social values, we must impose some obligations on lawyers that cause discord with clients-such as the rules against introducing false evidence or perjured testimony. Smooth attorney-client relations cannot always be the highest value.

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