For the week of August 5 thru August 11, 1998  

Scales of justice in a tailspin


If America is not careful, the office of the president and the nation’s legal system may become a pile of rubble, the victim of legal bombshells loaded by Independent Counsel Kenneth Starr and delivered by the courts themselves.

Until Tuesday, the investigation into whether President Bill Clinton had sex with White House intern Monica Lewinsky and then asked her to lie under oath about it seemed like a stupid soap opera. Suddenly, there was a lot more at stake.

That day, U.S. Supreme Court Justice William Rehnquist issued an order that would strip away attorney-client confidentiality in an investigation of the president.

Starr, a hangman in search of a gallows, had subpoenaed the lawyers who advise the president to appear before a grand jury and submit to questioning regarding the Clinton/Lewinsky mess. He asked a federal appeals court to pierce the shield of attorney-client privilege.

Starr argued that the lawyers for the president aren’t really the president’s lawyers because they are on the public payroll. He also argued that attorney-client privilege evaporates when there is a federal criminal investigation of possible government wrongdoing.

The appeals court agreed.

White House attorneys asked Justice Rehnquist for a stay of the decision until the full Supreme Court has a chance to consider the appeal.

He turned them down. He issued an order--without a written opinion—refusing a stay. Rehnquist didn’t tip the scale of justice, he sent it into a tailspin.

The questions about attorney-client privilege must be heard by the U.S. Supreme Court. Confidentiality between attorneys and clients—no matter who is footing the bill--is a cornerstone of the nation’s legal system.

The legal system is in serious trouble if attorney-client confidentiality may be stripped away based on an investigator’s intent. This wrongly assumes that the end justifies the means.

If confidentiality may be stripped away in one case, it opens the door for stripping it in other special circumstances.

It’s conceivable that public defenders, paid by the government to defend people who cannot pay for their own defense in criminal cases, could be forced to testify as to a defendant’s guilt or innocence. Public attorneys who defend cities and states in liability cases could be forced to divulge whether public officials knowingly ignored hazardous conditions that may have contributed to an accident.

The decision could forever undermine the idea that the accused is entitled to a good defense by a competent lawyer? Without confidentiality, there is no defense.

The question must go to the full Supreme Court. The legal system must not be sacrificed for this stupid soap opera.

 

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