Balance of Power

TW O

"Thomas Jefferson did it," Avram Gold told the President. "To Aaron Burr, his own Vice President."

At Kerry's direction, Gold had entered through the East Gate, away from the press, and come directly to his private office. The fact of the meeting would be as private as its substance. Unlike the White House counsel, whose client was deemed to be the public at large, Avram Gold, a Harvard law professor and Kerry's unofficial advisor on legal policy, could counsel Kerry on personal legal matters covered by the attorneyclient privilege. In Kerry's mind, he could hardly do better—Gold was brilliant, imaginative and committed to Kerry's agenda. If there was a way to execute the complex stratagem Kerry had in mind, Avi Gold would find it.

"Jefferson?" Kerry inquired. "How?"

"After Burr shot Alexander Hamilton, Jefferson secretly directed his prosecution for treason. He torpedoed his own Vice President."

Kerry smiled. "The good old days," he said with mock nostalgia, "when Presidents could exploit the justice system in private."

"It's different now," Gold agreed. "Especially in this scenario. If Mary brings a lawsuit, you and the First Lady are very likely to be witnesses. Were I Lexington, I'd argue that Joan died from the effects of inadequate law enforcement and bad advice—including yours. There's no way they won't press for depositions from both of you—on videotape, if the judge allows it."

Kerry shrugged. "I expect that. All I care about is whether we'd have to answer questions about our role in the lawsuit itself. The idea that I'm behind it would be absolutely fatal to what I have in mind."

Gold leaned forward, hands pressed together, the keenness of his gaze confirming his pleasure in the intellectual challenge Kerry had placed before him. "Okay," he said crisply, "let's start with what you can't do.

"First, you as President can never talk to whoever ends up being Mary's lawyer—and I do mean never. It's hard to find a rationale for keeping that confidential, and it's far better for you to be able to say—in absolute truth—that you never met or spoke with her attorney." Gold's bushy eyebrows raised in cautionary emphasis. "That especially means Bob Lenihan, no matter who else you may bring in. Your last chat wasn't privileged, and he's way too self-enchanted to conceal how completely you rely on his advice."

"I appreciate that," Kerry acknowledged. "But I'm afraid we may be stuck with him."

"Bob has his virtues," Gold answered in a sardonic tone. "Chief among them a total lack of shame. As his cocounsel, Sarah Dash would have her hands full.

"Back to the list of 'don'ts.' You and Lara can't pay Mary's legal expenses. While that might create a privilege, it would look like you're doing exactly what you intend to do: run this lawsuit from the White House. And, for exactly the same reason, Lara can't be a plaintiff. Also, it would erode the sympathy you're expecting from her interview on NBC."

"Just so."

"On the other hand," Gold said with cheerful anticipation, "if you and the First Lady can legitimately refuse to answer questions, and do so in a sympathetic way, you leave Lexington and the SSA with the unattractive option of accusing you of doing exactly what you're doing without any proof that you are, in fact, doing it. That could look insensitive."

"And would be," Kerry answered dryly.

"Finally, even if Lexington challenges your assertion of privilege in court, it's a rare judge who will want to rule against you and the First Lady—let alone charge a President with contempt." Gold spread his hands. "So the only problem, Mr. President, is constructing a chain of privilege which holds up. For that, as I suppose you know, the First Lady is indispensable."

Silent, Kerry faced anew his deep ambivalence about weaving this web of his own creation into the fabric of his marriage. "The spousal privilege," he said softly.

"That's the first part," Gold concurred, "and the easiest. The spousal privilege covers any communication between husband and wife, including those which begin with 'Tell your sister.' And the privilege lasts as long as the marriage does."

Eyes hooded in contemplation, Kerry gazed at his desk. "You should know, Avi, that I don't love this. I just can't think of any other way but using Lara."

Gold studied the President with dark perceptive eyes. "You don't need absolution from me, Mr. President, as long as you have it from Lara. I watched the film."

Kerry rested his chin on curled fingers. "What I tell Lara," he said at length, "is only the first link."

After a moment, Gold nodded. "So, let's address how Lara passes your suggestions on to Mary's lawyer. One way is for Lara to hire her own lawyer, and try to set up some joint privilege covering him and Mary's lawyer . . ."

"Too cumbersome," Kerry objected. "Too many people knowing too much."

"Or," Gold continued with a smile, "she could claim to be seeking advice from Mary's lawyer about her lawsuit in the future. Or to be acting as Mary's agent, helping make decisions for a sister too traumatized to cope. Or, under California law, that talking to Mary's lawyer 'furthers the client's interests.' "

"Will any of that work?"

Gold nodded briskly. "All of it, I think. Especially in combination— none of these assertions is mutually exclusive."

Kerry found himself wondering, yet again, how his plans would affect Lara's relationship to Mary. "That leaves conversations between Lara and her sister," he replies. "The most delicate part of all."

" 'Delicate'?"

"Lara's not at all convinced that Mary will take kindly to our directions."

"It's also delicate as a matter of law," Gold cautioned. "But if Lara is a prospective plaintiff, that might create a joint privilege covering both her and Mary. In California, I think you can get by with that. Still, I'd keep those sisterly chats to a minimum."

Nodding, Kerry repressed his sense of foreboding. "We will," he assured his lawyer. "And unless Mary goes along with this, there won't be more than one."

* * *

When Kerry returned to the Oval Office, he called in Clayton Slade. "Did you check those military contracts?" the President asked.

"Yes. Lexington supplies sidearms to the Army. Chiefly for military police."

"Put a stop to it, as soon as possible. Our version of the SSA boycott, a modest attention-getter." Kerry sat back. "Also, I want a report on how long it would take for the Anniston Army Depot to start making M-16s. I'm not in the mood to keep subsidizing companies who think they owe their highest duty to the SSA."

"I'd watch it," Clayton admonished. "The gun folks will say you're abusing your power, and screwing around with national security."

"That," Kerry answered sharply, "depends on how well Anniston can make an M-16. As for abusing my power, I'm simply using it. When companies like Lexington stop making bullets like the Eagle's Claw, I'll use it some other way."

After a moment, Clayton shrugged. "At least we can look into it. Why was Avi Gold here, by the way?"

Kerry smiled fractionally. "To give me legal advice. Of a personal nature."

Clayton folded his arms. "Avi Gold," he said emphatically, "was not here to revise your will."

The President's smile vanished. "True. But if I told you what we talked about, it wouldn't be privileged, would it?"

Clayton studied him. "Have it your way, Kerry. But have a care. For your sake, and for Lara's."