Balance of Power

TWENTY-SEVEN

Sarah fervently wished that she could watch the Senate vote on gun immunity. But instead, she and Lenihan went before Gardner Bond to demand the right to interrogate George Callister.

Sarah had hoped this hearing would be public, an opportunity to cite before the press from the depositions of Ben Gehringer, Mike Reiner, and Norman Conn—the better, even at this late hour, to influence the Senate's debate. But Nolan had argued that a public hearing would undermine the judge's order sealing all depositions. To the distress of Lenihan and Sarah, Bond had agreed. And so they gathered around a conference table in Bond's chambers—Bond, Nolan, Fancher, Lenihan, Sarah, and the court's stenographer—to resolve the matter of George Callister.

As always, Bond was impeccably tailored—a handmade suit, gold cuff links, crisp white breast pocket handkerchief—precise, and imperious. At the moment he was also angry, though they had yet to discuss George Callister.

"What," he inquired sternly of Nolan, "is the basis for your assertion that plaintiff's counsel are leaking information to the press?"

"It's not merely an assertion." Nolan shot a look at Lenihan and Sarah. "Last night CNN called me at home. They had received documents from Lexington files produced by a hostile employee, Norman Conn. The documents purport—according to the very unstable Mr. Conn—to contain information damaging to Lexington. We believe they show nothing of the kind. But CNN intends to divulge them to the public, perhaps as early as today."

Startled, Sarah glanced at Lenihan, whose expression did not change. "I can assure the Court," Nolan concluded with asperity, "that we did not provide them to the media. Nor did the SSA. That leaves Ms. Costello and her lawyers."

Lenihan appeared unruffled. "I'll try not to take offense at counsel's accusation," he responded. "I'll simply note that it betrays a rather glaring failure of imagination.

"Neither we nor Lexington control these documents." Briefly, Lenihan smiled. "Until Mr. Conn provided them, Lexington never owned up to their existence—whatever that suggests. As a result, these particular documents are not even subject to the Court's ban regarding those produced in response to a discovery demand. Anyone may have leaked them, and anyone can read them. Including CNN."

Sarah's amazement became a flash of amusement, followed by several certainties which made her anxious: that Lenihan had leaked the documents; that he had hoped to influence the Senate debate and enhance the settlement value of Mary's case; that he had attempted to skirt Bond's order on the barest of technicalities; and that he would admit to none of this. She could only admire his nerve, even as she feared its consequences—to both of them, and to Mary.

"Your Honor," Nolan said in a tone hard with indignation, "that statement lends new meaning to the phrase 'contempt of court.' The intent of this Court's order was very clear: to prevent the parties, through selective leaks, to try this case through the media. Yet this morning's New York Times reflects information from the deposition of a witness, Ben Gehringer. And now this."

"This morning's New York Times," Lenihan snapped, "reflects the federal indictment of the white supremacist who now admits selling the murder weapon to John Bowden at the gun show which, in defiance of all logic, Mr. Nolan intimated that Bowden might not have attended. No doubt that's damaging—if not devastating—to Lexington's defense. It may even be unhelpful to Lexington's efforts to wring immunity out of the United States Senate. But it's beyond the pale to suggest that Ms. Dash or I is responsible for the actions of the U.S. Attorney for the District of Idaho, or that those actions are anything but praiseworthy."

Disdainfully turning from Lenihan, Nolan fixed his gaze on Bond. "Your Honor," he said more quietly, "everyone knows the identity of the U.S. Attorney's ultimate superior—Ms. Costello's brother-in-law, the President of the United States. A man who, whatever his dignity of rank, is also a witness in this case, and subject to this Court's order.

"What appears to be at work here is a conspiracy, involving plaintiff's counsel and the White House, to evade that order. The leaking of these documents to CNN serves that end. Palpably, they have nothing to do with the U.S. Attorney in Idaho, and everything to do with seizing legal and political advantage by any means at hand."

Listening, Sarah wondered if the President had known of the disclosure of Conn's documents. Then she realized that Bond was addressing her in biting tones. "What do you know about this, Ms. Dash?"

"Nothing," Sarah said, and was very glad that this was so. "As the Court knows, I disagree with this particular order. But it's not my right to flout it—even when I think that might serve a valid public purpose."

The last remark was, perhaps, more than she should have said. But it served as a reminder that some of Lexington's problems were now in the public domain, and that an ambitious judge like Bond must be wary of the appearance—however accurate—that he was seeking to protect it. The judge paused, seemingly more reflective, before Nolan said, "Your Honor, I request the right to depose plaintiff 's counsel in order to determine who may have leaked these documents to CNN."

"What about 'nothing,' " Sarah demanded of Nolan, "escapes you? Or were you not listening when I answered Judge Bond's question?"

"Enough," Bond cut in, gazing at Lenihan with severity. "Mr. Lenihan?"

Lenihan spread his palms. "Your Honor, my answer is Ms. Dash's answer. Nothing."

It was not—heard literally—a denial, and Bond was too observant not to know that. For a long moment he stared at Robert Lenihan with obvious distrust. "That aside," he said in caustic tones, "you seem to have grasped an unfortunate fact: that the documents voluntarily provided you by Mr. Conn fall outside the letter—if not the spirit—of this Court's order." Pausing, the judge expanded his gaze to take in Sarah. "At this time, and for the moment, I'll deny Mr. Nolan the chance to depose opposing counsel. But if anyone, ever, leaks information which is clearly subject to my order, I'll conduct the inquiry myself. And if the person responsible turns out to be any one of you, I'll bring you before the State Bar of California, and ask for your disbarment. You're now on notice."

In the silence, Nolan nodded grimly. To Sarah, the judge's threat— which he plainly meant—went to any lawyer's deepest fear: to be denied the right to practice his or her profession, and to carry that stain for life. Part of her cursed Lenihan's audacity.

"All right," the judge continued acidly, "let's take up the nominal subject of this proceeding—the deposition of Mr. Callister. Which of plaintiff's counsel cares to enlighten me on why this is such a pressing need?"

In the judge's current mood, Sarah thought, she wished this task had fallen to Lenihan. But that might have made the situation worse—as matters stood, the outcome looked unpromising enough. "For a host of reasons," Sarah answered. "To begin, there's the question of what Callister knew—whether from Reiner or someone else. Did he know that Reiner had undertaken to destroy key documents? Did he know that Lexington was flooding adjacent states with the P-2? Did he know that white supremacists were using gun shows to traffic a cache of stolen guns, which included the gun later sold to Mr. Bowden . . ."

"According to Mr. Reiner," Nolan interjected, "Mr. Callister knew none of that . . ."

"Counsel," Bond admonished Nolan, "wait your turn. This Court's not through with plaintiff's counsel yet."

Though glad to see Nolan stifled, Sarah did not care for the sound of this. "For Mr. Nolan to ask this Court to accept the credibility of a witness as slippery as Reiner, while dismissing that of plaintiff's counsel, turns logic on its head.

"Finally there is the question of a conspiracy between Lexington and the SSA . . ."

Bond eyed her with skepticism. "What evidence do you have that such a conspiracy existed?"

"That's the problem, Your Honor. Without Mr. Callister, we'll never know."

Bond's brow knit. "The problem, Ms. Dash, is that your argument literally makes something out of nothing: your total absence of proof. Mr. Nolan?"

"Your Honor is precisely right," Nolan answered with an air of confidence. "Under persistent questioning by Ms. Dash, Charles Dane—Mr. Callister's counterpart at the SSA—vehemently denied the existence of any such conspiracy. If plaintiff's counsel have such damning facts, let them try their case. With no proof to warrant it, why take up the time of someone as busy as Mr. Callister? Who, in any case, is on an extensive trip to Europe on business vital to the company."

This, too, was a surprise, confirming for Sarah how averse Nolan was to any questioning of Callister. Then it struck Sarah that fear of Callister's testimony might not be Nolan's principal motive: by interposing yet another delay, he created the possibility that the Senate might pass an immunity bill, and then override the President's veto, before more damning facts could surface—or, even more critical from Nolan's perspective, before the public trial of Mary's case began.

"In the annals of delaying tactics," Sarah responded crisply, "this is one of the more arrogant. Mr. Callister is too 'busy' to participate in discovery? What of the President or the First Lady, both of whom Mr. Nolan deposed? What of the three murdered family members who are the subject of this action? Is Mr. Callister's time more precious than all of that? This tactic is absurd, and the Court should put an end to it."

"Mr. Callister," Nolan responded with composure, "should not be asked to interrupt his travels. Let plaintiffs finish up their discovery, and then come back to the Court if they still insist on deposing him."

"How long," Bond inquired, "might those travels take?"

Nolan shrugged. "Roughly three more weeks. Give or take a day."

Whatever Nolan's other purposes, Sarah grasped that this would delay the case well beyond the ten-day deadline for a Presidential veto, and perhaps, the time Fasano needed to override it. "Three weeks," she protested, "is entirely unreasonable. Mr. Callister's supposed activities, whatever they are, don't rise to the importance of President Kilcannon's. Who managed to make time on the first date Mr. Nolan asked for. This Court can order Callister to do the same."

"Indeed." With a thin smile, the judge turned to Nolan. "Were this an action in state court, Mr. Nolan, an out-of-state witness like Mr. Callister might be able to seek protection in the courts of his home state of Connecticut. But we're in federal court. At your insistence, I distinctly recall.

"So it seems you're at my mercy. You've got two weeks from today to produce Mr. Callister for deposition."

Surprised, Sarah felt a split second of elation at her unexpected victory, and then, seeing the glance pass between Nolan and Harrison Fancher, realized that two weeks might be sufficient time to satisfy their purposes. "Your Honor," she said respectfully, "might I request that your deadline be shortened to a week?"

"You can. And the answer's no." Bond seemed prepared to leave it there, and then to think better of it. "I'm not willing to put a businessman traveling in Europe on quite so short a tether."

Bond, Sarah suspected, might also believe that a two-week delay was enough for Frank Fasano, yet one which made Bond's own sympathies less obvious—particularly as compared to barring Callister's deposition altogether. But there was nothing she could do. "I have a final request, Your Honor. That, as Mr. Nolan did for the President's deposition, plaintiff's counsel be allowed to videotape our deposition of Mr. Callister."

Swiftly, Nolan turned to Bond. "That's wholly unnecessary."

Bond gave him an inquiring look. "Isn't, as Ms. Dash suggested, the president of Lexington no more privileged than the President of the United States?"

"President Kilcannon didn't object," Nolan answered. "We do."

"On what grounds?"

"That his sworn testimony in transcribed form is more than sufficient for plaintiff 's purposes."

"Not true," Sarah asserted. "Mr. Nolan's obvious purpose in videotaping President Kilcannon was the hope of creating an embarrassing video moment, or some dramatic piece of tape which showed the President dissembling. That it never happened doesn't detract from the prospect that, in the case of Mr. Callister, it might.

"Mr. Nolan's aversion to a deposition of the only person at Lexington who dealt with Kerry Kilcannon makes me wonder what Lexington has to hide. To videotape both principals seems only fair."

Bond steepled his hands in front of him, the edge of his forefingers touching his lips. Sarah sensed that he was reluctant to concur but, weighing the public perception, felt stuck. "Very well," he said at last. "You may videotape Mr. Callister."

"Your Honor," Nolan said through tightened lips, "given today's leak of documents, and the importance plaintiff's counsel assign to this additional discovery—as well as their insistence on videotaping Mr. Callister—it may be necessary to remind them of their obligations under this Court's order."

Reminded of his own displeasure, Bond faced Lenihan and Sarah. "Need I remind you?" he inquired softly.

If Bond's purpose was to frighten her, Sarah thought, he had succeeded yet again. "No, Your Honor," she said promptly. As did Lenihan, a second later.