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An Open Letter to Kenneth Starr
Wednesday, May 27, 1998

The following article by Lewinsky lawyer William H. Ginsburg was published in the June issue of California Lawyer and is reprinted online with the magazine's permission.

Dear Mr. Starr:

If there is one thing I have learned while representing Monica Lewinsky, it is that the government can easily wind up out of control. And the risk of that happening is made all the greater when we deviate from the constitutional checks and balances set forth by the founding fathers. In particular, I've worried these past several months that your investigation into President Clinton's sexual conduct threatens to tear a giant hole in the fabric of our democracy.

I believe you've done that by ignoring one of the most important rights possessed by all Americans-the sacred right to privacy. Even the smallest incursion by the government into the realm of personal privacy, including the questions your investigators have asked my client and others about sexual activity, represents an egregious violation of that right. In the simplest terms, Mr. Starr, the government has no business in our bedrooms. And yet your office has sought to drain the constitutional rights of our republic in the name of your apparent agenda to bring down the presidency. Indeed, you and your staff have done more than invade the privacy of President Clinton and Monica Lewinsky. You've also invaded the privacy of all Americans through your efforts to subpoena books and other materials purchased by Monica for her private reading. Let me remind you that Justice Brandeis 70 years ago, in his famous dissent in Olmstead v U.S., described the right to privacy as one of the most important rights possessed by mankind. And Justice Douglas warned more than 30 years ago, in Griswold v Connecticut, that we were in danger of the government entering our bedrooms. It seems that his warning has now come to pass, which makes us the victims of democracy, rather than its beneficiaries.

Now is the time to recall that the founding fathers never provided for an office of independent counsel. Perhaps they even envisioned the potential for abuse in such an office of the sort we see now. Unfortunately, the pass-the-buck mentality so pervasive among modern politicians has helped pave the way for the beyond-the-pale activities of the position you currently hold. Alas, Congress has abdicated its constitutional responsibility to determine the need for a Bill of Impeachment against the president. I would like to see Congress muster the courage to tear down the nonconstitutional office you hold, with the president taking the equally courageous approach of firing you and setting America free once again.

How else, I wonder, are we to avoid the risks of an independent prosecutor running amuck on the scale we've seen in the case involving my client and the president? Surely, there is something flawed in a statutory scheme that has allowed you the leeway to expand your jurisdiction over the Whitewater affair so broadly as to include alleged presidential sexual misconduct. Let me state it as bluntly as I can: There is no relationship at all between Whitewater and the president's sexual conduct. But that has not prevented you from subpoenaing practically everyone in the Washington, D.C., phone book in a misguided effort to find out everything that could possibly be found out about Monica Lewinsky. Your actions have turned this young woman into a virtual prisoner and have created, through an orchestrated campaign of media leaks, a tainted environment in which everyone has an opinion regarding what happened, and with whom it happened.

Congratulations, Mr. Starr! As a result of your callous disregard for cherished constitutional rights, you may have succeeded in unmasking a sexual relationship between two consenting adults. In doing so, of course, you've also ruined the lives of several people, including Monica and her family, while costing them each thousands of dollars in legal fees to protect themselves from the abuses carried out by your office.

In doing all of that, you have confirmed the worst image of lawyers in the minds of the public by proceeding with an investigation tainted by an apparent, if not actual, conflict of interest on your part. You have demonstrated that lawyers who are charged with the public's trust can and do pursue agendas that are motivated by politics rather than justice. You have proven that prosecutorial abuse can and does exist in America, thus jeopardizing the perceived fairness of every other prosecution in the country. Your office has also become a haven for zealous investigators who act without checks and balances on their behavior. Instead, they resemble prosecutorial civil servants, working for an agency whose sole purpose is to ferret out presidential foibles and titillating tribulations more suited for the tabloids than any courtroom. What a field day you've created for those who already believe that lawyers are a plague on society that threatens fairness under the law.

Mr. Starr, you and your progeny need to be checked before you come to believe that you can do anything in the name of carrying out your statutory duties. You already act as if you're omnipotent. But bear in mind that the American people disapprove of your performance. They abhor your abuse of their constitutional rights. They resent your role in creating a politically charged environment tainted by leaks and innuendo to such an extent that no one involved in your investigation can possibly receive a fair trial, should it come to that.

I call on all Americans to rise up and react to your dangerous abuse of power, for none of us can rest easy as long as anyone's right to privacy is threatened. You may argue that the government needs the kind of information you are seeking from my client and others so that it can ensure proper legal conduct by the president of the United States and other high-level officials. But every single citizen is entitled to question your tactics, which include the threat of indictment and the ability to ruin innocent lives.

As for my own client in this episode, I have told her that we are being confronted by an anticonstitutional monster. He goes by the generic name of independent counsel. It's time to rid ourselves of this dangerous creature.

© Copyright 1998 The Washington Post Company

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