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As mourning became elektra

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Witness Preparation Becomes Oversight

As mourning became elektra

During just one year, the first talking picture (The Jazz Singer) and the Academy Awards debuted, Babe Ruth hit 60 homers (more than any other American League team), Charles Lindbergh soloed from New York to Paris, the Russian communists kicked Trotsky out of their party, Sacco and Vanzetti were electrocuted, the Holland Tunnel opened, Peking man’s remains were found and electronic television was born. This year was 1927.

But a few words in a relatively unknown Supreme Court case that year (McGrain v. Daugherty) set the stage for some theater in today’s United States:

“The power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function….A legislative body cannot legislate wisely or effectively in the absence of information respecting conditions the legislation is intended to affect or change….”

This case is important because before it there was no delineation of Congress’s power to investigate anything or to force people to appear to answer questions that, unlike in a court of law, are not subject to rules enforced by a higher authority. (The contested congressional oversight in that 1920s case grew out of congressional assertions that the attorney general mismanaged the Justice Department by failing to prosecute antitrust laws violations.)

Today’s congressional assertions include a charge that the attorney general mismanaged the Justice Department by firing some U.S. attorneys for their failure to prosecute immigration and election law violations. Irony? Perhaps. But, congressional politicization appears the more likely culprit.

Eighty years later, it is now more than evident that committee and subcommittee investigations will dominate Congress’ “legislative” activity over the next couple of years. Will it comport with the plain English in the Supreme Court’s enabling decision that tied congressional oversight (“[t]he power of inquiry — with process [subpoena] to enforce it”) to the function of Congress that the constitution did spell out (“an essential and appropriate auxiliary to the legislative function”)? That is something certainly worth watching. The self-answering questions recently posed to D. Kyle Sampson, Atty. Gen. Alberto Gonzales’s former chief of staff, offer reasonable doubt.

From Sampson’s constant and often awkward prefatory mention of the extent of his memory in answering even fairly-stated questions, it was obvious that the witness preparation he underwent was geared to helping him to avoid answers that, honestly given or not, could subject him to prosecution for perjury.

The lawyer hired to protect another Justice Department employee, Monica Goodling, decided to take witness preparation to a different level. Goodling was involved in the U.S. Attorney firings about which Sampson testified. But unless immunity is offered and accepted, she will not be subjecting herself to Leahy/Schumer-type questioning, the type evidencing anything but a straightforward quest for truth. She will take the Fifth, according to her lawyer, John Dowd, who observed that the "potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real."

Committee Chairman Leahy’s response? “The American people are left to wonder what conduct is at the base of Ms. Goodling’s concern that she may incriminate herself in connection with criminal charges if she appears before the committee under oath.” And during Sampson’s appearance before Leahy’s committee, Leahy could be heard to grumble semi sotto voce to the effect that people who intend to be truthful don’t have to invoke the Fifth Amendment. How decent of him.

The American people are not, despite Leahy’s claim, left to wonder about the conduct that led to Ms. Goodling’s concern. At least not those familiar with the nature of the Sampson questioning and the instances in which Senators prohibited him from answering as he wished, talking over him in loud voices and forcing him to answer either “yes” or “no” while he was trying to explain why context was necessary. It is clear why Dowd wants Goodling to be liberated from Leahy and Schumer rather than allow her to be Libby-rated by their questioning technique.

That Leahy and his crew do not have legislation as a purpose of their investigation is more than obvious. Their goal is simply to pile what they can onto the mass of problems that are bedeviling the president, better to insure a Democratic presidential victory in 2008. It is in this environment that a person who chooses actually to testify before a committee run by people with such a purpose must be prepared. Their object is not to obtain answers that are truthful, but answers that satisfy the purpose of their show.

Ultimately, Gonzales will appear. However much he will publicly berate him, the committee chair will have to allow him some opportunity to explain that there is no real inconsistency between what he has said and Mr. Sampson’s testimony about his participation during the process that led to the U.S. attorney firings. Gonzales will say that he did not see the few times that Sampson “discussed” the subject with him as his own participation in the deliberations that led to the firings. Rather, as he will say, he was being kept up to date. He will explain that he intended to (and did) rely on the judgments of the senior personnel who were advising Sampson and that he signed off on what was presented to him at the meeting that ended the process.

Mr. Gonzales’ underlying point will be that the nature of his involvement proves that he had no improper intent. In fact, it was his felt yet unnecessary need to demonstrate that point that has led him into the maze from which he must now extricate himself. Leahy and Schumer relish this state of affairs, especially when so many seeming inconsistencies can be fashioned from Gonzales’ own communicational ineptitude and the useful Sampson responses to questions that sought proof rather than information.

In this unhealthy Senate Judiciary Committee milieu, necessary witness preparation should lead to the following opening statement, which should be the only opening statement and given by each witness situated similarly to Sampson:

I have been summoned to appear before this committee. I expect that while I am here seated committee members will make pronouncements to which I may not be permitted to respond, and will ask questions which I may not be permitted to answer with sufficient context to make my answer not only the truth, but the whole truth as I know it.

There are no rules and no higher authority that govern what is about to take place or from which I can seek fairness. That will be entirely up to the committee chair, which is always the situation in circumstances such as this.

Before the statements and questions begin, I ask that you let me know if the purpose of the questions will be to obtain information appropriate to the Senate’s legislative function, and if I will be allowed to answer them fully, with such background information as I believe necessary not just to a truth, but to the whole truth.

If, on the other hand, the purpose of my appearance before you is to supply answers that you can pigeonhole into preconceived political positions, then I ask that you let me know. I will still answer your questions to the best of my ability, but will not be surprised when and if I am cut off, talked over or berated.

The purpose of what I have just said is to do my best to bring a bit of fairness to a proceeding over which I have no control, a procedure that is without rules designed either to get to the full truth or to protect me.

I hope you will begin what is to happen next by letting me know, in the terms that I have requested, the purpose of my appearance. I say “I hope” because that is all I can do. Thank you.

Today, every witness who sees himself or herself as a disposable pawn in a political production or in a power struggle between the legislature and the executive, ought to have self-protection uppermost in mind. The nature of the beast has elevated the importance of witness preparation. It should now be undertaken as a witness protection and survival program. The attitude of every unwilling witness should be that the committee has something other than legislation in mind and that it will have to get its ammunition from someone else. A committee that follows the Leahy/Schumer game plan deserves no better.

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Written By

Julian Tepper, host of radio's "The Tepper Show," is a practicing attorney formerly with the U.S. Department of Justice.

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