BY BEN L. KAUFMAN
The Cincinnati Enquirer
Despite what he called excesses by Kenneth Starr, the president of the American Bar Association (ABA) said Wednesday that he hopes Congress will renew the law that created the independent counsel. "We need a special counsel," Jerome J. Shestack said. "I would not abandon the Special Counsel Act because of the dilemma we have."
That includes Mr. Starr's assault on privacy, the failure of federal judges to restrain Mr. Starr, and Mr. Starr's lack of accountability as he has investigated a variety of allegations against President Clinton and others, Mr. Shestack said.
Mr. Starr has "hammered another nail into the coffin" of privacy, Mr. Shestack said during an interview before speaking at an American Jewish Committee dinner in Cincinnati.
Even with the problems, an independent counsel is better than the alternatives, he continued. Congress is an unwieldy investigator and conflicts of interest handicap any attorney general asked to probe top federal office-holders, Mr. Shestack said.
That's why the ABA supported creation of the independent counsel law after Watergate in the 1970s.
ABA support for renewal next year could depend on improved checks and balances, Mr. Shestack said, and a decision will come at the ABA convention in August.
Among Mr. Starr's sins are assaults on privacy, Mr. Shestack said.
For instance, the ABA is making a stand in the Supreme Court on behalf of a dead White House lawyer. The court is considering whether Vincent Foster's attorney can protect the privacy of their conversations despite Mr. Foster's suicide.
ABA's friend-of-the-court brief argues that attorney-client confidentiality continues after a client's death. "It's an important privilege," Mr. Shestack said. "It doesn't die with the client." Mr. Starr wants notes of the Foster conversations in case they discussed the Whitewater land-and-loan scandal he is investigating. A loss in the high court would require attorneys to warn clients against saying anything they wouldn't want revealed after they died, Mr. Shestack said, eroding the candor required for a lawyer to "advise you soundly."
Confidentiality was just one aspect of privacy where the 73-year-old trial attorney from Philadelphia parts company with Mr. Starr. He said Mr. Starr also erodes privacy "as a value of a civil society" when he interrogates Monica Lewinsky's mother about the former White House intern's sex life and subpoenas records of Ms. Lewinksy's book purchases.
Mr. Starr is not unique as a prosecutor, Mr. Shestack said, but the independent counsel's "excesses" highlight the way overzealous lawyers sometimes sacrifice people's privacy to win their cases in court or to influence public opinion.
Whether there is any going back is uncertain, Mr. Shestack said. Given intrusions by prosecutors, the Internet and the media, "I don't think people have a right of privacy anymore . . . It's an irrelevant question today . . . You've desensitized society to the value of privacy."
