Rule of Law

by Randy Singer

  “We’ve got the park-bench conversation,” Paige countered. “We’ve got a drone pilot who was told to lie.”

  “How is the drone pilot even relevant? And the park bench? We have no idea what Marcano said, only what Kilpatrick asked him. They’ll both come to trial and testify that Marcano confirmed the sources were solid. Marcano will say they had this meeting before the National Security Council meeting so he could share details with the president’s chief of staff that he didn’t feel comfortable telling the whole team. Then where are we? If we ask what details, they claim state secrets.”

  Like the smoke from his smoldering cigar, Wyatt’s brutal assessment hung in the air. It was the last thing Paige had expected. This was the same guy who always thought he could pull rabbits out of a hat and part the Red Sea. If he didn’t think they could win, what chance did they have?

  “This case has never been about winning,” Wyatt continued. “This case is the Alamo. Those men knew they were going to lose but fought anyway because they were trying to rally people to something bigger.”

  He had a beer on the table in front of him—another thing that bothered Paige about their prep sessions—and paused to take a sip. His eyes went from Wellington to Paige.

  “Let’s face it; we’re going down. So I’m not interested in some legal nuance that might nudge one justice closer to a narrow opinion that allows us to take one more deposition before the case gets dismissed. I’m interested in using the Supreme Court argument as a platform to rile up this country and get the laws changed by Congress.

  “Don’t you see what’s happening? Every dictator in history always had their own private army. The Roman emperors and the Praetorian Guard. Napoleon and the Imperial Guard. Hitler and the SS. And now our president has the CIA. Those guys are accountable to no one, and every time we try to hold them accountable, they claim state secrets and hide behind national security. They can kill anybody they want anywhere in the world without a court granting them permission beforehand or exonerating them of guilt afterward. They don’t even have to go to Congress to declare war.”

  His voice had risen with emotion as he talked, and when he stopped, neither Paige nor Wellington uttered a word. Comparing the CIA to the SS was way over the top, but that wasn’t his point, and Paige knew it. She had been down in the weeds, but Wyatt was talking about something way bigger than a single Supreme Court case.

  “So you’re right,” he said, his voice softer. “I haven’t read those cases. I’ll read them before I argue, but it’s not going to change what I say. My audience isn’t those nine people in the black robes; my audience is the American people. Because they don’t know what’s happening, and they’d better wake up real soon. I’ve spent my entire life fighting the government. I’ve seen innocent men railroaded by the system and good men and women lose their reputations even if they’re found innocent. We get scared because there are some legitimately bad actors out there, and we hand over our freedoms one at a time.”

  Paige chewed on it for a moment, her frustration dampened by how much he cared. “Why can’t we do both?” she asked. “Why can’t we speak to the people through the Court? How else are we going to change the law if we don’t take advantage of our best opportunity?”

  “I didn’t say I’m not going to try,” Wyatt said.

  He took another swig of his beer and switched into storytelling mode. “Colonel James Bowie was sick in bed when the Alamo was attacked. They say that he was killed on his cot, firing pistols at the Mexicans who barged into his room, and when he ran out of bullets, he pulled out his knife. You know what Bowie’s mother said when she was informed of her son’s death?”

  Paige shook her head. Of course she didn’t know.

  When he answered his own question, Wyatt’s eyes were distant with admiration. “She said, ‘I’ll wager you didn’t find any wounds in his back.’”

  Wyatt raised his beer in a solitary toast. “Here’s to going down fighting.”

  61

  The lead article in the New York Tribune hit the streets on the Saturday of Labor Day weekend. Paige found out about it from a text message and immediately checked online. The story was at the top of the Tribune web page, and it came complete with several photos, including one of her and Wellington entering the courthouse. The article already had accumulated more than two hundred comments. And following the story, embedded online for the entire world to see, was the full PDF transcript of John Marcano’s deposition.

  The article, written by Harry Coburn, described the contents of the deposition, which Coburn said he had obtained from a confidential source with inside information. A few paragraphs later, the article quoted Paige, who had made a few innocuous comments about the upcoming Supreme Court hearing to some local Virginia reporters. Coburn made it seem as if he had interviewed Paige himself.

  The article described how duplicitous Marcano had looked when claiming a state secrets privilege for this mission when movies had been made and books had been written about similar missions in the past. It also highlighted the CIA’s practice of eyewashing its own agents and even cabinet members so that confidential information would not spill out.

  After showing how powerful the CIA had become and noting that there was virtually no congressional oversight for the agency’s military activities, Coburn ended his article with a quote that dated back almost two thousand years: “Who guards the guards?”

  Paige knew the article and the leaked deposition would stir public sentiment in their favor. But it seemed like the reporter was hinting at Paige as the confidential source. Thinking about how Judge Solberg might react made her stomach turn.

  She worried about the article incessantly that morning but couldn’t focus on it all day. She had a date at the beach with Kristen and her two boys. The outing had been in the works for two weeks, and Paige couldn’t call it off now. Besides, there was nothing like the squeal of kids in the ocean to make you forget about your legal troubles.

  The broad white sands of Virginia Beach were crawling with people and, for Labor Day weekend, blazing hot. Kristen and Paige set up two beach chairs in the wet sand close to the water and settled in to talk while Justin and Caleb played.

  That plan didn’t last long. The boys begged them to go swimming, and soon Paige and Kristen were bodysurfing while the boys rode their boogie boards. Then the boys wanted to build a castle. Then they needed another layer of SPF 30, and Paige made sure to lather it on herself again as well. She had a faint runner’s tan, and the parts of her skin that were covered when she was running but exposed in her swimsuit were as white as they had been in March. It had been that kind of summer.

  And then, as soon as the boys got new sunscreen on, they wanted to go into the surf again. They couldn’t go alone, of course.

  All in all, it was an exhausting day, and it made both Paige and Kristen miss the men who had been in their lives. It wasn’t until nearly four o’clock, with the boys finally playing in the small waves and hunting for crabs, that Paige and Kristen had a chance to talk.

  It had been a rough summer for Paige. Her law practice wasn’t generating the income she’d thought it would. Kristen’s case seemed to sprout a new set of problems every day. And Paige didn’t feel like she was mending from Patrick’s death the way she should. There were still days when the sadness was just overwhelming, Paige confided. Days like today when her heart felt like it had been ripped out of her chest all over again.

  “I know what you mean,” Kristen said with a huge sigh. She had on sunglasses but Paige suspected she was tearing up. “I look at these two little guys and my heart just breaks for them without a father. And then I get mad at myself because I lose my patience with them and think I’m a horrible mother.”

  “You’re the best mother I know,” Paige said.

  “You need to get out more,” Kristen responded.

  They talked about how summers would never be the same again. Kristen and Troy used to go to the beach even before the boys were bor
n. “He loved the water,” Kristen said. “We would walk on the beach for miles. This is where we found our peace.”

  Paige didn’t have the same kind of memories, but for her it was an opportunity missed. She had imagined herself raising a family with Patrick, the kids attacking the ocean the same way Kristen’s boys had done today. For her, it was the pain of dreams that would never be realized. For the first time, she told Kristen about Patrick’s proposal the night before he left for deployment and about her own regret at saying she needed more time.

  “He knew you loved him,” Kristen said. “He knew you were going to say yes eventually.”

  By five o’clock, Paige was pretty sure her skin was scorched despite her best efforts to stay covered in sunscreen. They left the beach tired, sunburned, and surprisingly refreshed. The time with Kristen helped Paige remember why she had left her old job and taken this case in the first place. Kristen was a good woman, and she had lost something that could never be replaced.

  When they parted ways, Paige hugged the sandy bodies of Kristen’s little boys. She had wanted to buy them some ice cream, but Kristen said it would ruin their supper. So she settled for a quick squeeze and watched the boys follow their mother to the parking garage.

  Paige thought about the words of Wyatt Jackson—his firm belief that they could never really win this case. She didn’t share that same sense of fatalism. It might take a miracle, but unlike Wyatt, she actually believed in miracles. She turned left on Atlantic, walking toward her car, which was parked two blocks away in an uncovered lot. She prayed as she walked—a plea for justice for Kristen and the boys and strength for herself. How could God turn down a humble request like that?

  The day after Labor Day, a $10,000 check from Kristen arrived in the mail. It was accompanied by a handwritten note.

  I haven’t seen a bill yet. Knowing you, you probably aren’t going to send one. But I never expected you to do this for free. Wyatt and Wellington certainly aren’t.

  I’ve enclosed a $10,000 retainer. Please let me know if you need more.

  I could never do this without you, Paige. Thanks for being a great lawyer and an even better friend.

  Paige hated cashing the check, but ramen noodles were getting old. This would keep her new firm afloat for the next several weeks. By then maybe she would have a few more paying clients.

  That same day, she received an electronic notification from federal court with an attached order from Judge Solberg. The judge had apparently read the article in the New York Tribune, and she was not happy about it.

  She ordered all parties and all lawyers who had worked on the case to appear in her courtroom at nine o’clock Friday morning to answer a rule to show cause. The purpose of the rule, according to Judge Solberg, was to find out who had violated her protective order by leaking the deposition of Director Marcano.

  Paige knew that everyone, including Judge Solberg, probably thought it was either her or Wyatt Jackson. But she had followed the protective order to the hilt, not even giving Wyatt a copy of the deposition. She would be prepared to defend herself, though she expected the judge to be skeptical.

  It was the last thing she needed in a case that was growing more difficult to win every day.

  62

  Paige showed up in federal court on Friday hopeful that she could clear her good name. She had never danced close to the ethical lines the way Wyatt did, and she was far more stressed about the hearing than he was. For Wyatt, it had been an enjoyable week of increased media scrutiny on the actions of Director Marcano and more pressure on the administration to tell the American public exactly what happened on the night of the failed rescue mission. There were even rumblings from various congressmen and congresswomen about holding hearings once they returned to D.C.

  The media was out in force again for the rule to show cause hearing. The case continued to capture the attention of the American public, and the politicians were using it as fodder for their campaigns. But there was also the intrigue of how the deposition got leaked to the press, and the fingers of blame were pointing everywhere.

  Paige couldn’t figure it out. Wyatt swore that he had never laid eyes on the deposition. Paige had Wellington check her own computer to make sure she had not been hacked. Harry Coburn, the Tribune reporter who had authored the story, was giving no hints about his sources. There was a possibility that Solberg might subpoena him and threaten him with contempt if he didn’t disclose his source, but most legal scholars thought she would avoid that scenario. She was a big fan of free press and didn’t want to be the judge who threw a prizewinning reporter in jail for protecting confidential sources.

  The hearing started with the usual fanfare as Judge Solberg took the bench. This time she brought no coffee, and Paige could see the smoldering anger in the judge’s eyes as she surveyed her courtroom.

  She began the proceedings by reading from her notes.

  “We are here today on the court’s rule to show cause for violation of this court’s protective order regarding the deposition of Director John Marcano taken on July 13. That deposition was attended only by myself, the court reporter, counsel for the parties, Mr. Kilpatrick, and Mr. Marcano. This court’s order prohibited dissemination of that deposition or its contents beyond a select group of people listed in the court’s protective order, all of whom had national security clearance. Contrary to that order, the deposition was leaked to a reporter for the New York Tribune, who published the entire deposition last week. The court subsequently issued its rule to show cause in order to determine the source of that leak.”

  Paige thought that Solberg glanced briefly at her when she finished reading, or maybe she was just being paranoid. She knew for a fact that most of the eyes in the courtroom were on the plaintiff’s lawyers. What good would it do for Marcano’s lawyers or Kilpatrick’s lawyers to leak the deposition?

  Nevertheless, Judge Solberg began by questioning lawyers for the defense. She interrogated all seven lawyers from Dylan Pierce’s firm who had been working on the matter and had access to the deposition. She did the same with the four lawyers from Kyle Gates’s office. She then called Wyatt to the podium for his grilling.

  “Mr. Jackson, you do not have security clearance, is that right?”

  “That is correct, Your Honor.”

  “Have you seen or reviewed the deposition of Director Marcano?”

  “I have not.”

  “Have you learned from your cocounsel or otherwise about the contents of that deposition?”

  “I have not.”

  “Do you have a copy of that deposition on your computer, your iPad, your smartphone, or any other device, or do you have a hard copy of any kind?”

  “I do not.”

  “Do you have any idea how the deposition got leaked to the New York Tribune?”

  “Your Honor, I have no idea.”

  The judge stared at Wyatt for a moment, and it was apparent to Paige that she did not believe him. Many people assumed this was Wyatt’s doing, and why wouldn’t they? The man used publicity like just another legal tactic. Even Paige assumed that Wyatt had somehow accessed the deposition and leaked it.

  She was called to the podium next. Like the others, she was grilled by Judge Solberg about whether she had shared the deposition with anybody or stored it electronically in any area where it could be accessed. She answered each of the judge’s questions directly and decisively, denying that she had anything to do with the deposition leak.

  Wellington then took his turn. But instead of giving short, direct denials, he went to great lengths to explain the encryption system he had set up for his own computer and the fact that he had searched Wyatt’s computer—with Wyatt’s permission, of course—and found no trace of the deposition. He was nervous and stumbled over his words, and the whole thing made it seem like he was protesting too much and covering for Wyatt.

  When the interrogations were complete, Judge Solberg let the courtroom know that she had already examined each of her court cl
erks and the court reporter and was satisfied that the leak had not come from any of them.

  “So where does this leave us?” Judge Solberg asked. “This court is handling a case that involves, at least peripherally, the most sensitive classified information imaginable. And this court decided early on that the case would proceed anyway because we would conduct confidential depositions that would protect those state secrets while at the same time getting at the truth of the allegations in the complaint. But now Director Marcano’s deposition has been released to the public, calling into question the integrity of the entire process.”

  There was no mistaking it this time—Judge Solberg looked at Paige, Wyatt, and Wellington before she returned to her notes.

  “At this point, the court cannot determine who breached its confidentiality order—” she paused for emphasis—“though it stands to reason that the plaintiff benefited the most from the deposition’s release.

  “I have had my clerks perform extensive research regarding this court’s ability to mandate disclosure of the confidential source by the reporter. After reviewing that research, the court is of the mind-set that it should not subpoena Mr. Coburn and attempt to compel the name of his confidential source. He has First Amendment rights that would protect the anonymity of the source under these circumstances.

  “But this court is not satisfied to simply lecture the parties involved and proceed forward without getting to the bottom of this blatant disregard of the court’s order. Therefore, I am asking the U.S. attorney’s office to conduct an investigation and report back to the court with the results.”