Suppose you are suddenly confronted by FBI agents and a federal prosecutor and are asked questions about your involvement in a crime. And suppose you ask to speak to your lawyer first.
Must your request be honored?
No, independent counsel Kenneth W. Starr said Thursday.
The prosecutor need not let a witness speak to her lawyer, Starr said, if he has doubts about her lawyer or believes the witness might be “culpable.”
“There is a very clear distinction in the law and the rule of ethics between civil matters and criminal. Mr. Carter was representing her in the civil matter,” Starr told Democratic attorney Abbe Lowell, referring to Frank Carter, the first attorney for Monica S. Lewinsky, the White House intern whose affair with President Clinton is the basis for impeachment charges against Clinton.
Besides, Starr continued, “we would not encourage someone who was involved in felonies, as we thought [Lewinsky was] at the time, to in fact reach out to a lawyer. Why would we possibly do that?” asked Starr, a former federal judge.
It was one of the more startling exchanges in Thursday’s daylong House Judiciary Committee hearing in which Democrats attacked the independent counsel over the conduct of his impeachment investigation.
The concerted attack appeared unlikely to change many minds outside the committee room--and certainly none in it. The Democrats failed to seriously shake Starr or to reveal significant new evidence to undercut his inquiry.
On several occasions, however, they raised pointed questions about Starr’s fairness.
They zinged Starr for failing to disclose to Atty. Gen. Janet Reno in mid-January that he had consulted earlier with lawyers for Paula Corbin Jones, who was suing Clinton for sexual harassment. At the time, Reno was considering whether to give Starr the expanded authority to investigate Clinton’s testimony in the Jones case.
“It just did not occur to me, and fault me for my inability to issue-spot,” Starr replied.
George Washington University law professor Stephen Saltzburg said it was remarkable that Starr did not think to tell Reno about his possible conflict of interest, since he was proposing to police the Jones case itself.
“I think this raises a serious question because I don’t think the attorney general would have picked him, had she known,” said Saltzburg, who once served as an assistant independent counsel.
Starr also was faulted by some legal experts for his dealings involving Linda Tripp, whose tape recording of Lewinsky launched the investigation. After meeting with Starr’s prosecutors on Jan. 16, Tripp left to brief the Jones lawyers, who were preparing to question Clinton under oath the next day. To the Democrats at least, the sequence suggests that Starr’s prosecutors helped to set up Clinton in a perjury trap.
“I think it is pretty clear that your office did absolutely nothing to stop Linda Tripp from meeting with Paula Jones’ attorneys,” Lowell said, to “help them set up for the January 17th deposition of the president.”
“That is, I think, an unfair characterization,” Starr responded. “We did not, to the best of my knowledge, we did not have any information that she was in fact communicating with the Jones attorneys.”
That exchange was among several in which Starr said he was not present at crucial meetings and knows only what his staff told him. For example, he said, he did not meet personally with Justice Department officials who expanded his authority and he did not speak directly with Tripp or Lewinsky during their initial interviews.
His distance from the direct questioning allowed the independent counsel to hedge his responses to some queries.
In particular, Starr’s attempt to explain why his prosecutors kept Lewinsky isolated for 11 hours on Jan. 16 and prevented her from calling Carter drew gasps from some ex-prosecutors and experts in legal ethics. They said that his reply was flatly wrong as a matter of law and legal ethics.
“That’s a crock. When a subject says I want to speak to my lawyer, it is not up to law enforcement to decide who the lawyer should be,” said former federal prosecutor E. Lawrence Barcella. “And that is a laughable answer since Frank Carter is one of the ablest criminal defense lawyers in town.”
New York University law professor Stephen Gillers said that Starr’s distinction between civil and criminal lawyers was “ridiculous. Starr and his colleagues should not have been talking to Lewinsky without Carter’s permission. And certainly they should not have done so once she asked for her lawyer,” said Gillers, one of the nation’s foremost experts on legal ethics.
But former Watergate prosecutor Henry S. Ruth Jr. came to Starr’s defense, saying that many prosecutors try to prevent witnesses from seeking lawyers. “It happens all the time. I don’t happen to agree with it. It’s not an abnormal tactic, no matter what the rules say,” Ruth said.
The rules of ethics say that prosecutors are not supposed to question people behind the backs of their lawyers and they are supposed to honor a request to speak with a lawyer.
Under the Supreme Court’s Miranda ruling, prosecutors must stop questioning a person who is in custody who requests a lawyer. But technically, Starr’s agents did not commit a Miranda violation, lawyers said, because Lewinsky was not in custody.
A person who is not “free to leave” is in police custody, the court has said, and Lewinsky could probably have walked away from Starr’s deputies, at least in theory.
Nonetheless, prosecutors are still required to halt questioning when a witness asks to speak to her attorney.
“It is totally improper to discourage someone from speaking to her attorney,” said Saltzburg. “It is insulting to suggest there is some distinction between lawyers that allows the independent counsel to say your lawyer won’t do.”