26 February 2015

Will Shelly Silver owe me a fee?

Some years back, a lawyer who had successfully urged a novel legal theory upon a court, asserted a legal claim against another lawyer who had subsequently used that legal precedent to his client's advantage. The first guy sought recompense on the ground he had a proprietary interest in the rule of law he had helped to establish. Nonsense? Sure. But intriguing, non? After all, we honor creativity, that’s why we have copyright, patent, commercial secrecy statutes and doctrines. Why not protect unique legal maneuvers too? Ahh, you know the answer.

So my thoughts run to the NY Times article describing former NY State Assembly Leader Sheldon Silver’s effort to dismiss his federal corruption indictment on the ground the grand jury deliberations were tainted by the prosecutor’s publicity statements. Silver asserts the prosecutor not only made public statements but leaked incriminating information to the press prior to the grand jury’s determination.

Why does that ring a bell? I’m glad you asked.

Once upon a time, I represented a public official who was a heartbeat away from the Presidency. (Well, more like a stroke of the pen away, because President Nixon ultimately resigned and Spiro Agnew would have succeeded to the Oval Office if only ... .)

There are lots of good anecdotes arising out of that representation, and here’s the one relating to Mr. Silver’s motion to quash the grand jury indictment:

Shortly after re-election of the Nixon-Agnew ticket, press accounts exploded onto the scene reporting that confidential government sources had revealed the US Attorney in Maryland was running a federal grand jury investigation into possible “Pay to Play” illicit payments to Spiro Agnew while he had been Governor. Huge scandal. Huge. Front page stories every day. So big, that all the federal judges from the state of Maryland recused themselves, and the Chief Judge of the Fifth Circuit brought in Judge Walter E. Hoffman from Virginia to take control of the case.

It will not be a surprise to many to learn that the first duty of a criminal lawyer is not to win at trial--it is to avoid a trial, and the very best way to do that is to avoid an indictment. You use all legal means, starting with persuasion, and if that fails, you construct as many legal obstacles to indictment as you can. Because there is a severe lack of available building materials for that project, ingenuity is paramount.
All of which led us to a pre-indictment conference with the good Judge Hoffman, attended by defense lawyers and the prosecutors, at which we complained bitterly about government leaks. The prosecutors said, “It ain’t us.”  We said “Well, the press says it is,” and the sensible Judge Hoffman turned to us and said, “Look, fellas, these reporters are not always accurate truth tellers. This is a hot story. Why should I believe them that the government is leaking when the government tells me it is not?’’ A fair question, I admit, but we were ready for it. We said, “Ok, Judge, let’s put 'em under oath. Let’s take the deposition of these reporters and we will find out if their reports are true, and while we are at it, let’s also depose the prosecutors and see if, under oath, they deny the leaks.”

I thought the US Attorney from Maryland would escalate through the ceiling of the judge's chambers. He and his colleagues went berserk at such an outrageous proposal. That had NEVER been done before, there was no provision in any statute or rule that provided for that remedy, blah, blah, blah, etc, etc. I loved that scene. Still do.

Judge Hoffman was unmoved by the apoplectic nature of the government's response. He calmly told us,  “First , if you did that, it would need to be limited in scope. Can’t take too much time and delay the government's efforts. Second, I would have to consider the details of precisely what kind of order to enter, and that would take some time so I dunno.”  Bingo! A softball, right down the center of the plate: “No problem, Your Honor. In preparation for this meeting we drafted an order for your signature. We’ll depose a limited number of reporters first, and then six prosecutors, all to be promptly designated by us .” I reached into my briefcase, pulled out several copies of a draft order, distributed them to the Judge and the prosecutors, and while the latter sputtered, bellowed, stamped their feet, and got red in the face, Judge Hoffman serenely looked over the draft, nodded, took out his pen, signed the document,and gave it back to us for filing!

As you might expect, the prosecutors were not the only ones enraged by Judge Hoffman's order. We had stuck a pointed stick in the eye of the Fifth Estate, and the First Amendment Bar shifted into warp gear. Outrage! Beyond belief! Unprecedented! Trashing the Constitution! The end of the Republic! A bombardment of motions to quash the reporters' subpoenas rained in on us. This was a desecration of the Holy Temple: We were going to ask reporters if they told the truth in their published reports! Hard to get more outrageous than that, right? To hear them tell it, James Madison was spinning in his grave.

The reporters who received our subpoenas publicly vowed to go to jail before testifying, and they fashioned lapel buttons “Free the Agnew Ten.” Now here’s a delicious secret never before revealed: In the midst of all the chaos, a young reporter who is now a prominent journalist (whom I shall not identify) called me up and this conversation ensued:

He: Marty, you have got me in a lot of trouble with my boss. I am in deep shit here.

Me: Why?

He: You did not give me a subpoena and my boss wants to know why everybody else has government sources and I do not.

Me: Look, I apologize, but we sent subpoenas only to reporters who published articles saying they had received confidential information from government sources.

He: I did that! I did that!

Me: No problem. Send me a copy of your article and I promise to send you a subpoena.

He did, and I did, and so the “Agnew Ten” became the “Agnew Eleven.”

And while this circus was playing out in public, we were in backrooms negotiating a way out of this for our client and for the government. A deal was struck: the Vice-President would plead nolo to one tax count, no jail, a fine, and resign his office. The agreement was a tightly kept secret and the Judge publicly scheduled a court date for a few days hence, without specifying the purpose of the hearing. 

When we arrived in the courtroom that morning, we found the two large lawyers’ tables in the well were occupied with so-called "First Amendment Lawyers” whose combined blood pressure would probably have caused mercury to spill on the floors of the emergency rooms of the nearest two hospitals. The titans had come that day to argue their motions to quash the subpoenas and avoid the defilement of the Constitution.  But then the courtroom deputy came over and shooed them back behind the rail, into the already overflowing spectator section, and we were on the flash point of an insurrection. But the angry buzz was instantly stifled when they identified the new players arriving to occupy those tables: The Vice-President of the United States, Spiro Agnew, accompanied by his lawyers, and at the other table, Attorney General of the United States, Elliot Richardson, attended by his armada of prosecutors.

The scripted proceedings went as planned, and 40 minutes later we departed the building accompanying our client, the former Vice-President of the United States.

Shelly, I don't really wish you well, but if you get off, ya owe me.

A bientot!

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