Zip the Lip
by Paul Hein
by Paul Hein
I have not been following the Scooter Libby trial with great interest. Indeed, I've scarcely followed it at all. It seems to me a good example of what Shakespeare meant when he spoke of "sound and fury, signifying nothing." Much ado about very little, I'd say.
Although I believe that any grown man who allows himself to be called "Scooter" deserves some sort of punishment, I realize that to be federally prosecuted requires more cogent grounds than that, at least by a little. But Libby is not being prosecuted for disclosing the identity of a CIA agent. And he is certainly not being prosecuted for treason, or any other serious crime. Rather, he is being prosecuted for lying to a grand jury. That, I think, is the most interesting aspect of the whole confusing affair.
It seems to me that when you are being asked questions by some government agency, the thing to decide first of all is: are these people for me, or against me? If you suspect that you are a "target," or could become one, why not decline the invitation to appear?
I looked it up: if you ignore a subpoena to appear before the (federal) grand jury, you can be cited for contempt, and jailed. Contempt might be, in fact, the absolutely proper attitude to take toward the proceedings, but one is always supposed to treat agents of government as deserving of respect, however reprehensible they might be. So it would be foolish and dangerous to thumb your nose at that grand jury subpoena.
By all means, go! But can you be punished for keeping your mouth shut? Nothing would surprise me in the wonderful word of jurisprudence, but I think you could emerge unscathed by simply declining to answer their questions.
I'm not talking about taking the Fifth, as so many illustrious non-government gangsters did during the Kefauver hearings in the preceding millennium. I'm talking about taking the First. Freedom of speech necessarily includes freedom from speech. Politely tell the busybodies that you do not wish to discuss the subject they have introduced. No doubt they will fuss and fume, and perhaps make some legal threats, but the decision for the witness is whether it is safer to testify, or to shut up and see what happens. I'm not a lawyer, but I think the defense that one cannot be forced to waive a Constitutionally guaranteed right is a pretty good one. Or, perhaps, I'm merely displaying my legal na´vetÚ.
Many aspects of society are running on inertia, so to speak. Originally, grand juries were a buffer between the King, who could, prior to their institution, and solely on his whim, drag anyone into court, and the people. The jury required that the King convince a group of Englishmen that he, the King, had a valid case against so-and-so. Today, thanks to inertia, we still have the institution called Grand Jury, but it is hardly a buffer between a zealous prosecutor and an intended victim. The jurors hear the prosecutor's case, but the witness will be deprived of an attorney, having to defend himself, as best he can, against a seasoned opponent. A survey taken in 1994 showed an indictment rate of 99.6% for federal grand juries! Some buffer!
Possibly you will be called to testify before a grand jury some day. The thought, I repeat, should certainly cross your mind: "Am I a target? Could I become a target?" If there is any chance that the answer could be "yes," remember that the grand jury is an instrument of the prosecutor, who, in any event, is not likely to be your friend, and could be your enemy. Is it to your advantage to disclose any information — however innocuous it might seem — that could be used later to harm you, or someone else you don't want to see harmed? The jurors sitting before you are not your fellow citizens, acting as a protection between you and a despotic king. They are agents of the prosecutor, whose political ambitions hinge upon his indicting and convicting as many people as possible. What are your loyalties? To a system which piously refers to itself as by, for, and of the people? Or to the people themselves?
Maybe you'll decide to keep your mouth shut. That's your right, and your rights are what the government was instituted to protect. So give it the chance. If our society is running on inertia, let the concept that lingers be that of a government which exists to serve and protect the people, not the other way around.
Good luck! You'll probably need it.
February 23, 2007
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