by Peter Murphy
We had already decided that there were only three places that made sense to look in. The Library of Congress was one. It was a very unlikely source. There were relatively few documents housed there, they were carefully selected, and they were of far greater historical importance than run-of-the-mill Revolutionary War loan certificates. But it was worth a quick look. The other two were far more serious candidates: the National Archives and the Treasury. In theory, whatever historic records Treasury had in storage ought to have been transferred to the National Archives many years ago, but historic Treasury records had a chaotic history, and no one knew for sure how many they had and where all of them had got to. Many were destroyed when the British burned Washington in 1814. Those that survived were mainly documents hastily whisked away to more secure locations when panic set in as the British approached, but there had been no systematic effort to retrieve them for some time after hostilities ceased, and their fate in many cases was unknown. The documents we were looking for, assuming that they still existed or had ever existed, might have been delivered to the Treasury either before or after 1814, but either way, the effort to identify and protect documents in the aftermath of the British attack had been so hit-and-miss that nothing could be ruled out. The National Archives seemed the mostly likely location, but we couldn’t ignore the Treasury. We couldn’t go back to Judge Morrow with assumptions we hadn’t at least questioned. We had to look wherever it made sense to look.
Harry put me in charge of the Treasury search, and took charge at the National Archives himself. We divided our resources equally. It was the only way to start. We had no idea which search would be more difficult or take more time, so we had to be flexible and plan on moving staff around as needed. I had Ellen and our originally assigned paralegal, Pam Westlake, as the backbone of my team. Harry had the other litigators from our department. So on paper, we had two good teams in place, with an equal chance of coming up with the goods – if there were any goods to come up with. But there was one assumption we’d made that didn’t quite play out on the ground: namely, our expectation of full cooperation from the institutions whose buildings we were searching. In theory, the searches had been coordinated at the highest level, and there was no reason why cooperation should have been an issue. But that wasn’t how it worked in practice.
Looking back, perhaps we were just being naïve, but we were taken by surprise, and it was our team that bore the brunt of it. Harry and his crew were given a warmer reception at the Archives than we were at Treasury. The National Archives exists to enable people to search for documents. That’s their whole purpose. They’re set up for it, and they see themselves as performing an important public service. So the idea of a few government lawyers asking questions and rummaging around didn’t faze them at all. It was a bit different at Treasury.
At Treasury, they definitely don’t see themselves as a repository of documents, or as providing a service to those looking for documents, a sentiment made all too clear to us when we arrived. On the first day we were delayed and harassed as much as possible short of physically manhandling us. No office had been reserved for us, and there was even a delay of half a day in getting us our identity badges and fobs, without which we couldn’t move very far inside the building. It was only when I confronted a high-level officer, and hinted that I was about to report their attitude to the Attorney General personally, that doors started to open. By that time, we had wasted almost two days.
It took another day before we were trusted with a plan of the building, and provided with the services of a minder to act as our guide to the likely places to search. His name was Roberto, and although he started working with us cheerfully enough, ostensibly helping us to navigate our way around Treasury’s labyrinthine building, it was fairly clear where his loyalties lay. He was monitoring our every move, spying on us, and reporting on our activities to some nameless person on high. Understandably, the team were getting anxious, and I couldn’t reassure them. I whined about the situation to Harry, but I had the impression that he wasn’t very impressed by my suggestion of resistance, and in fairness, I probably wasn’t very convincing; the whole thing seemed unreal, even to me. After all, Justice and Treasury are both agencies of the federal government, and we were on the same side in the litigation, so what was the problem?
Over the next three weeks, we developed a pattern. We would meet in our office at the Treasury (barely furnished, and with no amenities except an in-house phone) at nine o’clock. Roberto would take the team members to the rooms we had decided to search that day, and then he would run between them like a rabbit on speed, apparently to make sure they didn’t try to extract any documents without his knowing about it. I would wait in the office to deal with any questions or problems, of which there were many. Three weeks may seem like a long time to search a building, but Treasury is a huge structure and even excluding the public areas and the many staff offices, we had identified a large number of rooms to be searched. Many held a dense population of documents. I’d given Ellen and Pam something of a roving brief, and in some cases, it became clear to them early on that a particular room wasn’t likely to yield anything of interest to us. The protocol in such cases was that they would report their observations to me, I would take a look for myself, and if we agreed, we would tick that room off our list and move on to the next. But most of the rooms could not be dismissed so lightly, and a painstaking search of each filing cabinet and bookcase was the only way forward.
The Wednesday of the fourth week began like any other day. Although we were running slightly behind, and there was a worry about our schedule, I was convinced that we would conclude our work before we had to return to court – there wouldn’t be much time to spare, but we would make it. But at about four o’clock that afternoon, the game changed.
I was day-dreaming, as I did most days by then, about the prospect of getting out of our bleak office and heading home, when the internal phone rang.
‘Dave,’ Ellen said, ‘I need you here. Now.’
She hung up before I could even ask why. That wasn’t like Ellen. Even her tone of voice was different, one I’d never heard before. She sounded genuinely alarmed. ‘Here’ was a room called 484B, at the end of a long, dimly lit corridor accessed by a rickety old staircase at the northwest corner of the building. She and Pam had started on the room on Monday, and it was a real headache. It was a large space with a high ceiling, warm and humid, covered in dust and cobwebs, fitted with an old-fashioned, very heavy lock, and generally giving the impression of having been sealed up when the British left and forgotten about ever since. There was paper everywhere, apparently thrown at random on to the creaking wooden bookcases and into the ancient wooden filing cabinets that occupied almost every inch of the room. Not surprisingly, much of the paper was in a very poor condition, mildewed and discoloured. There was no sign of even the most rudimentary card index system, and in fact, no evidence at all that any systematic filing had ever taken place. On the Monday, Ellen and Pam had been forced to take breaks every twenty minutes or so outside in the corridor, where mercifully there was an open vent in the ceiling, just so that they could take a breath of relatively fresh air and stop sneezing. On Tuesday, they had brought scarves to cover their noses and mouths as they worked.
I made my way to 484B as quickly as I could. Ellen closed and locked the door.
‘We don’t have much time,’ she said, breathlessly. ‘Take a look at these.’
She had cleared and dusted off the top of one of the filing cabinets to give herself some working space. On it lay four documents which looked very old. They were written in black ink on parchment, the surface yellowed with age and dirt, but in a neat hand and still legible. Three were immediately familiar from their appearance. In our research, online and otherwise, we had come across many examples of Revolutionary War loan certificates. Harry’s crew had actually unearthed three or four at the National Archives with the name van Eyck on them, but they t
urned out to have been issued, not to Jacob, but to two of his brothers, who had apparently been repaid the small amounts in question with interest. So I knew at once what I was looking at, and following Ellen’s finger, hovering above the document, I immediately saw the name of the government’s creditor: Jacob van Eyck. Not only that, but the amounts were substantial. In total, they added up to more than $15,000 – nowhere close to what the family was claiming, of course, but still a substantial sum in 1778, and a very substantial sum if it were to be repaid at six per cent annual compound interest since then. Kiah’s face flashed through my mind, and I admit I found myself smiling as I imagined her seeing them for the first time.
The fourth document was even more interesting. It was a fragment of a letter. The document had been roughly torn about halfway down, and the bottom half was missing. It bore a date in April 1811 and was addressed to the Secretary of the Treasury. The writer advised the Secretary that under cover of this letter he was sending sixteen papers concerned with war loans on behalf of his friend and Brother, capitalised but not named, and implored the Secretary to intervene personally to ensure that the considerable sums of money loaned were repaid speedily to the advantage of his friend and his family who had been plunged into penury. That was it: apparently all that survived of the letter. There was no name or address given for the writer, perhaps because he had written it on the missing fragment, or perhaps because he was well enough known to the Secretary that it was unnecessary. No indication was given of the total amount of money involved. Presumably that detail had been lost along with the bottom half of the letter and the other thirteen loan certificates, unless they were somewhere in room 484B, a possibility that certainly couldn’t be discounted.
‘Dave, we don’t have much time,’ Ellen repeated, interrupting my reverie.
‘What do you mean?’
‘Roberto is stalking me, breathing down my neck as usual,’ she replied. ‘He was here in the room when I found them and pulled them out of that filing cabinet over there in the corner. I knew what I’d found as soon as I laid eyes on them. I tried to act cool, pretend that it was no big deal, but he insisted on looking at them over my shoulder, and I couldn’t really stop him.’
‘Where’s Pam?’ I asked.
‘On a break, unfortunately. She wasn’t here when I found them.’ She hesitated. ‘Dave, I’ve been trying not to worry too much about Roberto, but I think we may have a real problem.’
‘What kind of problem?’
‘He told me that if anything like this came to light, his orders were to make sure that the documents stayed where they were until someone higher up could look at them, which means that he knew what to look for.’
‘Someone higher up? Did he say who?’
‘No. But you know what they’re like here. I tried to explain to him that it’s our search, and we’re allowed to take possession of anything relevant we find. But he wasn’t interested. He said I would have to tell that to the higher-ups. That’s when he walked out, and I called you.’
She looked at me very directly.
‘Dave, I need to speak my mind on this.’
‘Sure. Go ahead.’
‘I have a terrible feeling that if the higher-ups, whoever the hell they are, get their hands on these documents, we may never see them again. Am I being paranoid?’
I looked down at the documents again, and reflected on the way we had been treated during the whole search process, and on the brooding presence of Roberto.
‘No,’ I replied. ‘I don’t think you’re being in any way paranoid.’
‘What are we going to do?’ she asked. ‘Do you want to call Harry, or maybe try to contact the Attorney?’
I thought for a moment and shook my head.
‘No,’ I replied. ‘If you’re right, which I think you are, there’s no time for that.’
I looked around the room.
‘Do we have anything I can wrap these in?’ I asked.
‘There are a few old file folders lying on the floor in the corners,’ Ellen replied.
I shook my head. ‘No, I don’t want anything that looks like a Treasury item. I need something innocuous that no one will question if they see me walking down the corridor with it.’
Ellen put her hands on her hips and looked around. Suddenly, she reached down to the floor, where she had left her briefcase, and took out her copy of the Washington Post.
‘What about this?’
‘Perfect,’ I replied. ‘Hold it in place for me.’
Gingerly, I opened the Post at its centrefold and laid it on top of the filing cabinet where Ellen had made her work space. She held it down flat while I took each of the four documents in turn, and placed them carefully, one on top of the other, on the right-hand page. I flattened and straightened them as much as I could without using force, then gently closed the left-hand page. Ellen nodded approvingly.
‘That will work,’ she said. ‘What are you going to do?’
‘I’m going to get them out of here,’ I replied.
‘What? How? How will you do that?’
‘I’m working on it.’
‘But where will you take them?’
‘It’s better that you don’t know. If they ask, tell them I took the documents and I didn’t tell you where I was going.’
‘They’re not going to believe me,’ she objected.
‘Yes, they will. They’ll assume I’ve taken them back to the office.’
‘Is that what you’re going to do?’
‘I’m working on it.’
‘You don’t know where you’re going to take them?’’
‘Ellen, I’m working on it. I’ll think of something, OK? Tell them the truth: that I took possession of the documents because Justice has an obligation to comply with the court’s discovery order. We’re obliged to secure the documents ourselves and not allow any third party to interfere with them. These guys aren’t lawyers, they’re not going to argue with you.’
‘Dave, they’re not fools, and these are Treasury documents.’
‘No, Ellen, they’re not: not any more, not until this case is over. Right now they’re government documents and we’re taking custody of them as the government’s lawyers. Look, you can blame it all on me if you want. Say you told me to wait; you told me the higher-ups wanted to see them before I took them but I wouldn’t listen; I overruled you.’
‘I’m not sure that’s going to help.’
I shrugged. ‘What are they going to do, lock you in the basement and hold you to ransom?’
‘You want my honest opinion?’ she asked. ‘I wouldn’t put it past these assholes.’
I held her gently by the shoulders.
‘Ellen, the moment I’m clear of the building, I’ll call Harry and ask him to get the Attorney involved, I promise. And if that doesn’t work I’ll go to Judge Morrow and…’
‘What?’ she asked, as I stopped in mid-sentence.
‘Nothing,’ I replied. ‘I just got an idea, that’s all. Unlock the door, and don’t say a word to anyone for at least ten minutes, preferably fifteen. I need to put the documents in my briefcase, which is in the office, and I need time to find a way out of the building without anyone noticing.’
‘Fifteen minutes?’ she said. ‘Dave, they’ve already been gone a while. They’ll be here any second. How am I going to hold them off for fifteen minutes?’
‘Don’t be here when they come,’ I suggested.
‘Where would I go?’
‘I don’t know. Lock yourself in the ladies’ room, sneak into the cafeteria for a coffee, whatever it takes.’
‘Can’t I just come with you?’ she asked plaintively.
‘Better not,’ I replied. ‘That would look like we’re trying to pull a fast one.’
‘As opposed to what?’
‘As opposed to do
ing the right thing – taking possession of relevant documents we’ve discovered in the building. Just act like everything is normal.’
‘Oh, right, yeah.’
‘I’m serious,’ I said. ‘What would you normally do when you take documents from a third party in the course of discovery?’
‘Give them a receipt?’ she suggested with a shrug.
‘Exactly. So give them a receipt, and don’t wait to be asked – offer them one. That way, they’ll see we’re playing by the rules.’
‘By the rules. Right,’ she replied as I hurried though the door.
53
As I’d said to Ellen, my mention of Judge Morrow had given me an idea, and the more I thought about it, it was the only one that made sense. If the Treasury higher-ups were really determined to get their hands on the documents to make sure they never saw the light of a courtroom, there was no point in taking them back to the office. With the necessary authority they could walk into Justice any time they wanted to, and I wasn’t sure that even the Attorney’s influence would be enough to stop them. Treasury had a lot of clout in the higher echelons of the government. There would certainly be nothing that Maggie or Harry could do to slow them down, and it was absolutely certain that there was nothing I could do.
But invading a court was another matter. I was pretty sure that even Treasury would baulk at that, and even if they didn’t, the documents would be safe by the time they figured out where I’d taken them. It bothered me slightly that we had no actual evidence that anyone at Treasury had any evil intent towards the evidence. It was possible that we had simply been spooked by their suspicious, over-protective attitude – not that I think anyone could have blamed us for that. But my gut was telling me that something more sinister was afoot, and Ellen’s gut obviously had the same impression. The stakes were high, and I didn’t want to take the risk. These documents were not going to disappear on my watch. Besides, I reassured myself, what I was doing was absolutely legal; in fact, I was doing the right thing. I didn’t answer to Treasury; I worked for Justice, and it was my duty to secure the evidence Ellen had unearthed. I was doing just what the court had ordered us to do. My plan was even proper procedurally. Any party could deposit documents with the court if there was a need to preserve them. So what could possibly go wrong? I let the thought go. This was no time for navel-gazing. I had to focus. I’d asked Ellen to avoid the higher-ups for fifteen minutes. I couldn’t reasonably ask more of her. I had to move quickly.
