by Randy Singer
She spent a few minutes dictating portions of the report into the record while Paige sat grim-faced, staring at a spot in the well of the courtroom. Paige heard some whispering in the back and Judge Solberg must have heard it as well. Her head snapped up and she fixed a death stare on two people who were quietly talking to each other. Like the rest of the courtroom, Paige turned to look at them as they realized a second too late that the entire courtroom had gone quiet. They stopped talking and Judge Solberg let them have it.
“Quiet! If you have business to transact, do it out in the hallway.” She glared at the two men, whose faces were both turning red. “Do you two gentlemen understand that, or do I need to ask the marshals to escort you out?”
They both apologized and told Judge Solberg that they understood.
“Very well, then.” Judge Solberg went back to reading the report, and the courtroom was deathly quiet.
Wyatt leaned over to whisper in Paige’s ear, and she wanted to elbow him in the gut. “Her Honor seems a little testy today,” Wyatt said.
Paige gave him an almost-imperceptible nod. No way she was going to say a word. She was already in enough trouble as it was.
She finished reading the document in front of her, signed it, and slid it over to Wyatt.
72
After Judge Solberg had outlined the case against the plaintiff’s team as contained in the report filed by Mitchell Taylor, she stopped reading and fixed her gaze on Wyatt, Paige, and Wellington.
“The court is sorely disappointed in the conduct of counsel,” she said. “This court bent over backward to accommodate counsel’s request to take the depositions of the defendants despite the fact that those depositions might potentially reveal state secrets. Relying on the integrity of counsel, this court allowed plaintiff’s counsel who had obtained security clearance to take those depositions under seal. This court trusted counsel to keep those depositions confidential.”
Paige could hear the anger riding on Judge Solberg’s every word. She was working hard not to raise her voice, but her words were clipped, her facial muscles strained. Yet Paige was now staring back. She didn’t like being lectured like a middle schooler, especially for something she had not done. She knew the strategy was to be contrite and say very little. But she was getting angry, and it was going to be hard not to fight.
“Based on this report and the lack of cooperation by plaintiff’s counsel during the investigation, I am inclined to hold all three of you in contempt. However, before I do so, I want to give you an opportunity to explain yourselves and provide the court with any evidence I should consider to the contrary.”
The words were no sooner out of her mouth than Wyatt Jackson was on his feet. “Thank you, Your Honor,” he said, with a great deal of confidence and aplomb. It was as if the court’s scolding had never occurred. “I call FBI Agent Bryant Vaughn to the stand.”
The judge blinked back her surprise. Paige turned to look at Vaughn, who had his brow furrowed in confusion.
“Who said anything about calling witnesses?” Judge Solberg asked. “And for what purpose?”
“For the purpose of defending myself,” Wyatt said matter-of-factly.
Solberg frowned, unimpressed. “Agent Vaughn, please take the stand,” she said.
Vaughn stood, buttoned his suit coat, and limped up to the well of the courtroom. His eyes were wary, and he paused for a moment to look at Wyatt as if promising the lawyer that he would be sorry. Wyatt was shuffling papers and ignored him.
Vaughn took the oath and settled into the witness box, a cagey veteran ready to play cat and mouse.
“Good morning, Agent Vaughn,” Wyatt said.
“Good morning.”
“This New York Tribune article was written by a man named Harry Coburn; is that right?”
“Yes.”
“And Mr. Coburn would know for sure who leaked the information to him, wouldn’t he?”
Vaughn shifted in his seat. “Of course. But as Judge Solberg previously mentioned—” he turned slightly to look at the judge—“there are serious First Amendment concerns with making a reporter reveal confidential sources. Our job was to determine who leaked the deposition without implicating those concerns. So we didn’t interview him, if that’s what you’re getting at.”
Wyatt smiled. He had handled a few crafty witnesses before, ones that wanted to give speeches instead of answering questions. He took a step closer to the witness box. “How about if I just signal to you what I’m getting at by asking my questions? You can just answer them and save the speeches for later.”
“Objection!” Dylan Pierce said.
“Sustained,” Solberg ruled. But Wyatt had made his point.
“So instead of questioning Mr. Coburn and making him choose between protecting his confidential source and possibly going to jail, you decided to question me and the other lawyers on my legal team—” Wyatt made a sweeping gesture toward Paige and Wellington—“and make us decide between protecting the confidential information of our clients or going to jail. Is that right?”
Vaughn frowned as if he were explaining something obvious to a four-year-old. “That’s completely wrong. We would have protected any confidential information on your computers, if you had produced them instead of destroying them.”
“And we have what to prove that? Your word?”
“My word and the word of the U.S. attorney.”
“Exactly. The word of the government.” Wyatt said it with disgust, as if everybody knew the government could never be trusted. Paige was getting more nervous by the second. He was only making things worse.
“Director Marcano and Mr. Kilpatrick over there—they work for the same government; is that right?”
“It’s not unusual for the FBI to set up a firewall to protect information it obtains from other branches of government.”
“And we have what to ensure that this firewall is set up—your word again?”
“Trust me—this is the way it works.”
“That’s the problem I’m having. I don’t trust you.”
Vaughn’s face turned a shade of red and Solberg could no longer restrain herself. “Stick to asking questions, Mr. Jackson, or I’ll end this examination right now.”
“Thank you, Your Honor,” Jackson said sarcastically.
He took a few steps in silence, letting the tension build. Always the showman, Paige thought.
“Would you agree that if Mr. Coburn had the permission of his confidential source to reveal his or her name, he wouldn’t be facing this journalistic dilemma any longer?”
“I don’t understand what you mean.”
“Well, the source is only confidential because the person who gave Mr. Coburn the information made Mr. Coburn promise that he would not release the person’s name. Isn’t that true?”
“I suppose so.”
“So if that same source now said it was okay for his or her name to be released . . .” Wyatt threw open his arms, as if he had just discovered something incredibly profound. “Problem solved!”
“I suppose. But the source is never going to do that. That’s why they asked to remain confidential in the first place.”
“Aha,” Wyatt said. “Precisely! So anyone who is not the source would have no problem signing an agreement waiving any rights they might have to confidentiality and giving that agreement to Mr. Coburn. Isn’t that right?”
This caused Vaughn to think for a moment. He seemed to be chewing the inside of his cheek. “I’m not sure that type of agreement would be enforceable.”
“Because you’re not a lawyer, right?”
“I’m not a lawyer; that’s correct.”
“But your partner is a lawyer, right?”
“Agent Diaz, who worked with me on this investigation, is a lawyer. That’s correct.”
“So did you or Agent Diaz ever suggest that all of the people you are investigating simply sign an agreement waiving their right to confidentiality? Hang on.” Wyatt walked over to
his counsel table and picked up a few sheets of paper. “An agreement like this one authorizing Mr. Coburn to disclose the name of the source? Did you ever even think about that?”
“No. We didn’t consider that.”
“Exactly,” Wyatt said, sounding excited. “So I thought of it for you. And better yet, I signed one voluntarily. And I’ve got one here from every member of our defense team.”
Wyatt pivoted and looked at the court. “And I will represent to the court that we are putting copies of these agreements in the mail to Mr. Coburn this very day, return receipt requested, telling him that he can disclose our names or the name of our client if one of us was the source of the leak.”
Judge Solberg studied Wyatt as if looking at some interesting insect. “Let me see that,” she eventually said.
Wyatt walked up to the bench and handed her the document. “Why don’t we mark that as Exhibit 1,” he said. “A signed copy of my agreement to waive any confidentiality promise Mr. Coburn might have made to me. And I’ll hand up signed agreements from my cocounsel and my client that we can mark as Exhibits 2 through 4.”
“All right, I’ll mark them as exhibits,” Judge Solberg said. It seemed to Paige that her tone had softened a little.
“I’m done with this witness, Your Honor,” he said. “Now I’d like to call each of the defendants and defense counsel to the stand one by one and present them with a copy of the same agreement to sign.”
This brought both Dylan Pierce and Kyle Gates to their feet. But their reactions were tellingly different. Gates spoke first, anxious to beat Pierce to the punch. “We have no problem signing those agreements. But we think this is just showmanship because Harry Coburn will never burn his source, agreement or not. But we certainly didn’t release that deposition and we have no problem signing.”
“Mr. Pierce?” Judge Solberg asked.
He hesitated just for a second, and Paige knew from that moment that Pierce or his client had released the deposition. Yet he didn’t want to be the only one in the courtroom arguing that the agreement shouldn’t be signed.
“This is just another distraction,” he said. “They’re the ones who won’t produce their computers or cell phones. We’ve produced every computer and shown the FBI every e-mail sent since the deposition of Director Marcano. We’re certainly happy to sign whatever other documents the court might desire, but I agree with Mr. Gates—it’s not going to make any difference. Mr. Coburn is not going to reveal his source no matter what.”
“May I respond?” Wyatt asked.
“Of course.”
“I would like the court’s permission to take the deposition of Mr. Coburn,” Wyatt said. “I will press him on just this point. Instead of assuming that Mr. Coburn won’t do the right thing, let me depose him. If he still refuses to divulge the source, Your Honor could hold him in contempt without implicating any First Amendment concerns, because his source would have signed a document waiving confidentiality.”
Paige sat back in her chair. She was actually enjoying the show now. Somehow, Wyatt had put the other side on the defensive.
“And further,” Wyatt continued, “I want to call every one of the defense lawyers to the stand and both of the defendants so that I can ask them under oath whether they leaked this deposition. My team and I are willing to testify under oath. If somebody is lying, they ought to face not just contempt charges but also perjury charges when their lies are discovered.”
Paige studied the faces at the defense counsel table. Wyatt had expertly laid the trap. None of them knew whether Coburn would burn his source once he was provided with waivers of the confidentiality agreement. And now Wyatt had raised the stakes. Perjury was punishable by up to a year in prison.
“More showmanship,” Pierce complained. “Your Honor can already hold the person in contempt. Sworn testimony is not necessary.”
Judge Solberg, however, seemed intrigued by the idea. After several minutes of legal bantering, she required every lawyer and every party to take the stand, be sworn in as a witness, and individually answer two questions: “Did you leak the deposition of Director Marcano?” and “Do you know who did?”
Every lawyer and the two defendants answered without blinking. And when it was Wyatt’s turn, he couldn’t resist editorializing just a little.
“No, but I sure hope you find out who did.”
At the end of the hearing, Judge Solberg took the matter under advisement for another thirty days. She asked Wyatt to submit a statement signed by Kristen Anderson, taken under oath, that she had not leaked the deposition. She granted Wyatt permission to depose Harry Coburn after everybody had signed an agreement authorizing him to reveal his source. She said she would reconvene the proceedings once that deposition was completed.
Wyatt, Paige, and Wellington all left the courtroom with their heads held high.
Uncharacteristically, Wyatt did not stop on the courthouse steps and hold an impromptu press conference. He did, however, throw a few nuggets to the reporters as he and the rest of the team walked away.
“We’re looking forward to the Supreme Court hearing in two weeks. Whoever leaked that deposition ought to be locked up for a year.” And then there was Paige’s favorite quote of all. Somebody had asked whether he thought they were going to win. Did he have any predictions?
“Take the Redskins and the three points,” he said.
Even Paige smiled at that one.
73
For Paige, the next seven days were a sleepless blur of preparation for the Supreme Court argument and for her grand jury appearance. She read cases until her eyes blurred and endured grillings from a moot court panel of Wyatt, Wellington, and Landon. They held four-hour sessions in Landon’s conference room, with the three lawyers sitting on one side of the large marble-topped table while Paige stood behind a podium on the other side and fielded questions. Wyatt had insisted that she be prepared to call each justice by name and not act like a rookie who just referred to everyone as “Your Honor.”
“But I am a rookie,” Paige had protested.
“You don’t have to sound like one,” Wyatt countered.
To help her memorize the justices’ names, Wellington came up with a system. They put a computer monitor in the middle of the table facing Paige. Each time one of the three lawyers asked a question, they first clicked a name on their computer, which popped up a picture of the Supreme Court justice who was supposedly asking the question. Paige would then refer to the justice by name when she answered.
She got used to the hardest questions coming from Justice David Sikes. He was young and brash, a true law-and-order type, and whenever Wyatt had a tough question, he would click on Sikes’s picture. The other justice Paige got tired of seeing, and had no problem remembering, was the Beard, the seventy-two-year-old former Texas judge named Barton Cooper. He was another sure vote against Paige and someone who would certainly try to trip her up.
The two justices whom Paige always mixed up were Justice Torres, the former senator from California, and Justice Augustini, the Harvard law professor who was also a novelist. They were both in their fifties, and Paige kept forgetting which one was which.
“Augustini has the curly hair and the mole,” Wellington said as if that solved everything. It also scared Paige to realize she would be close enough to use a mole as a distinguishing feature.
“Right,” said Wyatt. “Augustini is Italian, and Italians like spaghetti, so you’ll be able to remember the curly hair.” Typical Wyatt Jackson—profiling an entire nationality. But for some reason, it worked.
Every four-hour session was followed by a ten-minute break and another hour of tips from Paige’s three tormentors. Nothing was off-limits. Stand up straighter; project more; more eye contact; don’t shuffle your papers—and then there was the substance of her answers, which never seemed to satisfy anybody. She took notes on all of it and then ignored most of the comments on the theory that the best advocate was one who tried to be herself.
&nb
sp; After the critique sessions were over, she would spend the next few hours alone with Wellington, listening to the audio of each question and answer, discussing ways to improve what she had said. It was exhausting work, but she liked it better than the sessions she spent with Landon Reed discussing her grand jury testimony.
Landon wanted Paige to take the Fifth Amendment in response to almost every question, but Paige thought that if she answered the questions fully and honestly she could pull off a miracle and talk the grand jury out of indicting her. After they debated this, Landon suggested that they see how well she might hold up on cross-examination. He took the next two hours questioning her about why she hadn’t produced her computer and what information she had obtained from the Patriot. He raised an eyebrow when she testified truthfully but the answer seemed hard to believe. And Landon knew how to lay on the sarcasm. There were lots of those “When did you stop beating your wife?” types of questions for which there were no good answers.
When they had finished, Landon showed Paige how much additional jail time she could be facing if the U.S. attorney tacked on a charge of lying to the grand jury. She was completely deflated. The best course, she acknowledged, would be to take the Fifth.
It seemed surreal that they were even having this conversation.
Because the law did not allow someone to assert a blanket Fifth Amendment privilege at the grand jury hearing, Paige and Landon spent the next session going over the types of questions she would answer and the ones where she would plead the Fifth. Defense lawyers weren’t allowed in the courtroom, but Landon would be just outside in the hallway, and if she had any doubt, she should ask for a break to consult with him.
