by Peter Murphy
‘You have to understand, Judge,’ she replied, ‘gathering evidence in this case isn’t a simple matter. We have thousands of family members scattered across the country, and even a handful abroad, and all of them have information. But it seems they haven’t talked to each other very much, so now, it’s a matter of trying to put all that information together.’
‘In other words, they have no evidence,’ I said. I spoke out of a sense of relief that she wasn’t putting her finger on anything definite, but Judge Morrow held up a hand, telling me not to interrupt.
‘What is it you’re looking for?’
‘Jacob’s loan certificates. You’ve seen from our brief the system the Continental Congress put in place for the repayment of war loans. Every loan was documented. Every lender was given a certificate to redeem after the war. Our belief is that Jacob had a number of loan certificates, probably quite a large number. We deduce that from the amount of his loans, and the fact that the supplies he paid for would have been delivered to the army over a period of time. It would have been a significant accounting exercise, and we doubt it could all have been reduced to a single document. He would have been issued with any number of loan certificates.’
‘Makes sense,’ Tomorrow said, nodding. ‘Where are they?’
‘‘We believe that Jacob handed some of them in to a claim office in an effort to get them paid. But the office kept them, probably because of the amount involved, which couldn’t be paid at the time. We believe that they would have been sent on to the Department of the Treasury, either to ask for approval to pay, or to file them away for a time when payment became possible. After that…’
‘After that…?’
‘After that, when he didn’t get paid, he probably kept the remaining certificates somewhere in a safe place. We’re looking for those. As for the ones that came to Washington, we don’t know where they are, and we’ll need the government’s help in tracking them down.’
‘Excuse me?’ I laughed spontaneously.
‘It’s called discovery, Dave,’ Kiah said. ‘The United States is a party to this litigation, and you can be ordered to make disclosure of any documents in your possession, just like any other party. I was hoping you would agree to that voluntarily, but if I have to ask Judge Morrow to make an order, I will.’
‘She’s right, Dave,’ the judge said, smiling.
I shook my head.
‘Judge, obviously, we’ll comply with any order you make. But where exactly are we supposed to look?’
‘You could start with the Department of the Treasury,’ Kiah suggested.
‘Sure, but if we’re looking for documents from that period, there’s no way to tell where they might be, or even whether they still exist. Vast numbers were lost when the British destroyed the city in 1814. Any that survived would have been moved to some place of safety, but they probably didn’t have a chance to catalogue them first.’
I paused, hopefully for effect.
‘Plus, I haven’t heard any actual evidence that Jacob van Eyck ever had any loan certificates, much less that he handed them in to a loan office, or that they found their way to Washington. It all seems to be based on the family’s belief, which doesn’t give us much to go on.’
‘I’m not suggesting that the Treasury is the only place to look,’ Kiah insisted, ‘but it’s a logical place to start. The Bureau of the Public Debt is where I would expect to find something like this. If that doesn’t work, you ask yourselves: where would documents have been stored, assuming that they survived 1814? We know the answer to that. There may be a few of historical significance that ended up in the Library of Congress, but the kind of document we’re looking for is likely to be in the National Archives.’
Tomorrow was sucking on his pipe again.
‘Sounds like a plan to me,’ he said.
By now, I was imagining the hours of work involved in a search like this, and the resources it would require. That led me on to imagining myself asking Harry for those resources – for a case I had promised him would be over today based on the statute of limitations at minimal public expense. The request for a massive trawl for documents was a conversation I would much prefer not to have, but I had the uncomfortable feeling that Kiah was talking Tomorrow into it. I felt myself being painted into a corner. Somehow, I had to try to turn this around.
‘Judge, this is a pure fishing expedition,’ I protested. ‘You can’t make an order for discovery without some concrete basis for thinking that there are relevant documents in the government’s possession. So far, you’ve heard nothing but speculation. The family believes this, the family believes that; nothing of substance at all.
‘Besides, the plaintiffs are just as capable of searching the National Archives as we are. It’s open to the public, and everything there must be catalogued. It’s their burden of proof to produce the evidence they need, and it’s not right to use the tax payers’ money to fund a search they should be making themselves.’
‘The government knows what records it has,’ Kiah replied, ‘and where they are. We don’t. We don’t have access to the Department of the Treasury, and if we have to trawl through every piece of paper in the National Archives, it’s going to take us another 200 years. I know there’s a catalogue, but if the government stores sensitive papers, they’re not going to be anywhere you can get to with a catalogue.’
She looked across at me.
‘Besides, discovery isn’t just about making a search; it’s also about having a party certify to the court that the search has been made. You know that, Dave. The court needs to know – and the family needs to know – that everything possible has been done to find the loan certificates.’
I spread my arms out wide in frustration.
‘We’ve been given no reason to believe that they even exist.’
Tomorrow replaced his pipe in the ashtray.
‘That’s no reason not to look,’ he said decisively. ‘Kiah, file your motion for discovery. I’ll grant it, and I expect the government to get on with it. Dave, I’m not leaving you out. There’s no reason why the government shouldn’t file its own motion for discovery. You’re entitled to know what the plaintiffs have. If there’s any evidence in the possession of the family, that evidence needs to be disclosed too. Kiah, that’s your job.’
‘No problem, Judge,’ she replied.
‘All right,’ the judge said. ‘With that understanding, I’m going to adjourn the statute of limitations for six weeks.’
‘Six weeks?’ Kiah exclaimed excitedly. ‘Judge, we can’t get it done in six weeks. We’re only just –’
‘I can’t let the grass grow on this, Kiah. I understand that you have a lot of people to talk to, but frankly, the family has had more than 200 years to get its act together. I’d be very surprised if six weeks doesn’t give you both enough time. At least we should know how the land lies. If at that point, there’s good reason to believe you’re on to something, I will probably give you a little more time if you need it. But let’s see how we stand then. I’ll expect a written report from both of you telling me what you’ve done and what the results are, and then we’ll have another hearing.’
He paused for some moments.
‘But I need to make it clear what I’m thinking, Kiah. If there’s some evidence to justify a trial, I will think about allowing the case to proceed. I’m not saying I will. I still have to think about the statute of limitations, but I will think about it. But if there’s no evidence, and no prospect of any evidence, I’m not going to waste further public money on it. Understood?’
‘Understood, Judge,’ she replied.
‘All right, then. Let’s go back into court, and I’ll formally adjourn the government’s motion to a date to be fixed.’
We waited with the judge as he retrieved his robe and put it on, and called for Maisie to tell her we were ready.
‘So, the family wants a statue?’ he asked while we were waiting.
‘In Philadelphia,’ Kiah replied, ‘to be unveiled by the President.’
He nodded, buttoning up his robe, and turned to me.
‘That might not be a bad option if she comes up with some evidence,’ he said.
I smiled. ‘It would cost a lot of public money.’
‘Compared with what you’re about to spend on the case, it might end up being cheap at the price,’ Tomorrow replied. ‘And it would definitely beat giving them Rhode Island.’
Maisie stopped us on the way out.
‘Kiah, does the name Mary Jane Perrins mean anything to you? From Boston, Mass?’
Kiah closed her eyes, suddenly seeming rather irritated.
‘Unfortunately, yes.’
‘It’s just that the court has received a communication from Miss Perrins inquiring about what she has to do to represent a separate group of plaintiffs, or intervene in some way. I had the feeling she was feeling me out about whether she could take the lead. I told her she’d better get herself an attorney and take some advice. I’m sorry, Kiah. I thought I’d better give you a heads-up.’
‘Thanks, Maisie. I’ll deal with it.’
‘Bad news?’ I asked. I’m sure she noticed that I couldn’t resist a grin.
‘Lucifer wants to take over my case,’ she replied, ‘but I’m not about to let her. No big deal.’
38
Feeling somewhat bruised and battered, Ellen and I made our way back to the office and crept along the corridors as quietly as we could. I just wanted the chance to grab some more coffee and get my head together before the inevitable confrontation. The odds weren’t good. Harry would be lurking somewhere, waiting for us. We’d called in from court, of course, to make sure we informed him of the morning’s developments before he heard about them on TV, which I was pretty sure he would have been monitoring. He didn’t say very much, which meant that he was going to brood over it until we got back. I’d decided that I couldn’t worry about it any more. Harry was just going to have to get used to the idea that we had a real case on our hands. There was nothing I could have done about what had happened this morning, and there was nothing Harry could have done about it. I just about had time to pour myself a cup of coffee and dispatch Ellen to find out what we needed to do to make a search of the Treasury Department and the National Archives.
‘So, what happened at court today, Dave?’
He was standing in the door frame, leaning against it with his arms folded in front of him.
‘We made our argument,’ I replied. ‘We’re right, but the judge hasn’t made up his mind that we’re right yet, so he’s adjourned it. We’re still right, and I still think he will see that eventually.’
‘Tomorrow is actually contemplating letting this case go ahead?’ he asked incredulously, making his way further into my office. ‘This 200-year-old joke?’
‘Unfortunately, it’s not a joke – not any more. But as I said, ultimately I think he will come round to our point of view.’
‘How did this happen?’
I took a deep breath and leaned back in my chair.
‘Kiah made a very persuasive argument,’ I replied. ‘Not right, but very persuasive.’
‘I’m trying to understand this,’ Harry said. ‘Is Tomorrow being seduced into thinking that this is some kind of major historic case, which must somehow be allowed to proceed despite the fact that a ten-year-old child could figure out that it’s time-barred?’
‘No, Harry,’ I replied. ‘Tomorrow is playing the odds.’
‘What’s that supposed to mean?’
‘He had us in chambers for coffee after the argument. He wanted to tell us what was on his mind, and he was pretty up front about it. He sees himself as being caught between a rock and a hard place. He’s worrying about his place in history.’
‘His place in history?’
‘Yes. If he throws the case out, is he going to be condemned as unpatriotic for taking away Jacob van Eyck’s last chance to be recognised as a true American hero who played a vital role in winning the War of Independence? On the other hand, if he lets it go ahead, is he taking the risk of pouring a huge amount of public money down the drain chasing some family’s pipe dream, and getting reamed out for that?’
Harry was pacing up and down in front of my desk.
‘It doesn’t have to be like that,’ he insisted. ‘We gave him a perfect, unanswerable way around it.’
‘He just hasn’t seen it yet,’ I replied. ‘He will. As I said, he’s playing the odds. It’s very likely that six weeks from now Kiah will have come up with nothing, in which case he can’t possibly be criticised for dismissing the case. That’s the way to bet.’
‘But what if she does come up with something? For that matter, what if we come up with something?’
‘Then he will have to decide how good the evidence is. It may still not be enough to justify letting the case go to trial. Even if it does go to trial, he can find against the plaintiffs on the evidence. There’s no jury in the Claims Court, so it’s his call. Even if he makes an award, he can control the amount, and if all else fails, he can expect the Court of Appeals or the Supreme Court to have the last word.’
I smiled.
‘You have to understand where he’s coming from, Harry. We’re having kittens about representing the government with so much at stake. It’s not surprising that Tomorrow is feeling the heat as the judge. He has to decide the outcome of a case worth God knows how many billions of dollars.’
Harry eventually came to rest.
‘How in the hell are we going to search the Treasury Department and the National Archives?’ he demanded. ‘We only just have the staff to manage our normal case-load. I don’t have the people for something like this.’
I nodded.
‘You’ll have to ask Maggie for some paralegals,’ I replied, ‘perhaps even an attorney or two.’
He threw his arms out wide.
‘In the present economic climate? In a case I told her would be all over today?’
‘We don’t have a choice, Harry,’ I pointed out. ‘Tomorrow is going to make an order for discovery, and we have to comply with it. It’s not as bad as it seems. We can –’
‘But –’
‘Hear me out, Harry, OK? I’ve already got Ellen started on finding out what a search like this is going to take. Once she’s got a handle on that, we’ll have a better idea of what resources we need. So you don’t need to push Maggie right away.’
‘But –’
‘In addition, the discovery order Tomorrow is going to make won’t be against the Justice Department. It will be against the United States. We’re the lawyers for the United States, so we have to organise the government’s response, but that doesn’t mean we have to do it all ourselves. We’re entitled to all the help we need from Treasury and the National Archives.’
‘You mean, we can use their people?’
I’d been giving this problem some serious thought since having my initial panic attack in Tomorrow’s chambers. I’d known as soon as Kiah raised the question of discovery that Harry would want to know how we could cope with something on this scale, and as I calmed down on the walk back to the office, the solution had begun to suggest itself.
‘We almost have to. We only have six weeks. They know their way around their departments; we don’t. Our people will have to coordinate the search, but we must use their people to carry it out, otherwise we’ll never get it done by the deadline. Plus, it’s easier and cheaper that way. It’s been done before. If we run into resistance from Treasury or the Archives, you ask Maggie to get the Attorney General on the case. With what’s at stake, he’ll have the President’s ear. I don’t think we’ll have a problem getting their cooperation.’
Harry nodded.
‘All right. I have to talk to Maggie later anyway. I promised her a report on the hearing today. I’ll bring it up then. I want you with me in case she has questions.’
‘No problem.’
He walked to the door and opened it to leave.
‘Harry, there’s one more thing,’ I called after him.
He turned back towards me.
‘You’re going to hear on the TV news that I expressed the view that the government’s position was unattractive.’
‘You talked to the press? Dave, I thought I’d made it clear –’
‘No, I didn’t talk to the press. It was during the argument. Tomorrow asked me point blank, in so many words, whether it was an attractive advertisement for American Justice that the van Eyck family could never have sued the United States for a constitutionally guaranteed debt because their claim had accrued before the Claims Court had even been created. It’s not, and I couldn’t think of a way not to agree with him.’
To my surprise, instead of landing on me, Harry stood there for some time, hands on hips, nodding without any suggestion of dissent.
‘A debt for which the United States and the public faith were solemnly pledged,’ he said quietly. ‘The price of liberty.’
‘Yes.’
He turned again to leave.
‘Don’t worry about it,’ he said. ‘It’s not our job to be attractive. That’s not our department. It’s our job to be right.’
39
Kiah Harmon
The next morning, I assembled the entire team to assess where we stood and where we were headed. It felt like an important moment. We had survived the first challenge and we were still in the game, at least for now. There was no telling what Judge Morrow was ultimately going to decide, but we had been given time to gather evidence and get our case up and running, and if we came up with some evidence, I felt sure that he would give us more time. We just had to come up with something, and if we couldn’t do that in six weeks, the chances were that it couldn’t be done at all. The point was, we were alive, and a few days earlier I wouldn’t have put money on that outcome.
