Why do witnesses testifying before congress need lawyers?

July 6, 2009 6:21 AM

Why do witnesses testifying before congress need lawyers?

I'm thinking of Whitewatergate, when the committee hauled in all sorts of pathetically minor bit players and-by standers, none accused of wrong doing, many of whom later bemoaned their being ruined by lawyers' fee. Lawyers? What gave? They were not being indicted, why did they feel obliged to hire the lawyers? Having been hired, what exactly might the lawyers say to their clients to justify their apparantly hefty fees? Not a lot of taking of the fifth as I recall, so one has to assume that that piece of advice wasn't offered. Besides, by the time they reached the lesser staff the likelihood of wrongdoing seems a bit remote. Call me flat footed, but I'd think that a clean conscience and absolute truth telling would make the mouthpieces superfluous.

(I raised this question at the time and got a lot of eyerolling and withering comments about how naïve I am (no doubt true), but no real answers to my question other than vague and dark suggestions of Powerful People putting the squeeze on the underlings. Seemed a little melodramatic to me, but what do I know? Anyway, I'm hoping some of the more savvy people here can get me a more concrete explanation.)

posted by IndigoJones to law & government (18 comments total)

No eyerolling from me, but, yeah maybe there is some naivete here.

In short, the lawyers are there to help you protect your rights. Just because someone doesn't plead the fifth in a certain line of questioning, doesn't mean that situation would never have come up. And, melodrama or not, it's not uncommon for the "little guys" to become the "fall guys."

Like you, I want to believe that if you have nothing to hide, and simply tell the truth, then all will be right. Unfortunately, there are many people behind bars right now who thought the same thing. Keep in mind that there are powerful forces who are NOT interested in the truth, but interested in finding a scapegoat for their own political advancement or to protect themselves from being punished for their own crimes. Just because you would be honest doesn't mean everyone would be. What if 2 or 3 powerful people all decide to lie about your involvement in something?

If I am ever accused of a crime, or even think that I am being questioned to determine whether or not I should be accused, you can bet that I won't say a word without having an attorney present, even if (especially if) I am 100% innocent. (Which I would be, of course.)
posted by The Deej at 6:32 AM on July 6 [3 favorites]

Probably many of the issues are similar to those that arise when talking to the police.
posted by procrastination at 6:35 AM on July 6

"A clean conscience and absolute truth telling" meets up with "Are you now, or have you ever been, a member of the Communist Party?" and it ain't the former that wins out.
posted by Tomorrowful at 6:39 AM on July 6 [2 favorites]

Minor political bit players and by-standers will only testify before Congress once or twice in their lives, if that. The lawyers that they tend to hire, in contrast, should guide clients through interrogations regularly, as part of their job description. Consequently, they can help the client figure out what to expect, who to expect it from, and what files to review and have ready for recall (or what not to review and have ready for recall). Perhaps most helpful of all, they'll teach the client how to best handle nightmare questions, like those of the "When did you stop beating your wife?" variety.
posted by joyceanmachine at 7:13 AM on July 6

I guess my version of this question would be something like:

What specific negative consequences would someone testifying have to fear?

I can think of some hypothetical situations, myself, but if anyone has examples that would probably be helpful.
posted by amtho at 7:16 AM on July 6

The same reason anyone dealing with a legal situation does: the law is often very complex, and if there's a risk of you running afoul of some part of its complexity, you'd be smart to hire someone who knows a lot more about it than you do. In particular in your Congressional testimony example, there are subtleties to perjury and related laws that, just because you haven't been formally charged with anything, you'd be naive to ignore.
posted by aught at 7:43 AM on July 6

Remember, that Scooter Libby was not brought down on the basis of the supposed wrong-doings he had done on behalf of the Bush-Cheney administration, but for perjury and obstruction of justice related to his testimony to federal agents conducting an investigation.
posted by aught at 7:48 AM on July 6

Call me flat footed, but I'd think that a clean conscience and absolute truth telling would make the mouthpieces superfluous.

Aww. That's so cute. I bet you really believe that too.

The law is complex and if you don't KNOW it you'll get fucked over without even knowing it's happening. They won't make allowances for you just because you clearly have no idea what's going on. And they can't. The judge is impartial and everyone else has their own goal, or agenda if you will. Helping you with yours would be the job of your lawyer. Conflict of interests and all that. Think about it.

Plus you're talking about America. You guys have all kinds of neat little loopholes and things. You know, like rights and stuff. We don't have any of that kind of crap here (.au).

So, is it a legal matter? Is it potentially a legal matter? Then you NEED a lawyer! Or at the very least you need to chat to one...
posted by mu~ha~ha~ha~har at 7:56 AM on July 6

Congressional testimony is admissible against a person in a court of law. Any time that situation arises a person making a statement must have access to an attorney throughout the process.

Also, don't say Whitewatergate. Ever. There's Whitewater and there's Watergate. They're different things. They just happen to both have the word water in them.
posted by Doublewhiskeycokenoice at 8:15 AM on July 6 [1 favorite]

Oh yeah! Also, congressional testimony sort of is a court of law because if you lie to them you can be found guilty of perjury. Congressmen know this and ask questions designed to make the witness worry about this fact. Just as in regular court, you wouldn't want that person to face such a situation without a lawyer, you wouldn't want a person testifying before congress having to worry that every answer he gives puts his liberty on the line if it can be proven that he wasn't 100% truthful.

I know how that sounds. You want 100% truthful, we all do. But if you don't give people some opportunity to cover their asses then all you're ever gonna get are 5th amendment please since there's almost no answer that's worth the risk of a perjury charge. Legal advice is essential to make the question process work.
posted by Doublewhiskeycokenoice at 8:20 AM on July 6

This reminds me of a scene from The West Wing. I know it's fictional and all, but it actually sorta kinda answers your question. To give context, the White House Counsel (Oliver Babish) is telling Charlie Young (the President's personal aide) that he'll need a lawyer when he appears before a Grand Jury investigating the President's concealing that he had multiple sclerosis.

OLIVER: Today, the President is going to direct the Attorney General to appoint a Special Prosecutor.

CHARLIE: Yes.

OLIVER: Now, you know what that means, right?

CHARLIE: Yeah.

OLIVER: Okay, so you'll need a lawyer.

CHARLIE: Actually, Mr. Babish, I don't think I need one.

OLIVER: You do.

CHARLIE: I think I'll be fine.

OLIVER: Really?

CHARLIE: Yeah.

OLIVER: [sits down] He's going to ask you about everything you'd seen and heard since you started working at the White House.

CHARLIE: I can answer those questions truthfully.

OLIVER: Then he's going to call you back a month later and ask you the exact same questions. If your answers change even a little bit, he'll prosecute you for perjury.

posted by jaffacakerhubarb at 8:35 AM on July 6 [1 favorite]

Oliver North and some other high-profile witnesses have been granted immunity from prosecution in exchange for their testimony. This is not normally the case.
posted by dhartung at 8:37 AM on July 6

The end to that scene jaffacakerhubarb posted is this:

CHARLIE: How much? You know, how much do you think...

OLIVER: Assuming you did nothing wrong, saw nothing wrong and heard nothing wrong -- about a hundred thousand dollars.

posted by Jeff Howard at 12:43 PM on July 6

When Oliver North testified before Congress, his attorney was Brendan Sullivan. Sullivan took umbrage at a congressman's attempt to prevent him from advising his client. In a comment that appeals to hearts of lawyers everywhere, Sullivan said, “I'm not a potted plant. I'm here as the lawyer. That's my job.”
posted by Sculthorpe at 2:48 PM on July 6 [1 favorite]

Thanks to the serious answers, less so for the condescending ones. At least you addressed the question, which is more than I've gotten before.

My memory of the whole tiresome thing is imperfect, but I have had over the years a recurrent image of some poor aging file clerk who could not have been more harmless. Not the Hubbells of this world, that is. Would such a woman really be in danger of prosecution for wavering memory? Would the political cost of shooting her down really have been worth it? Clearly she was convinced that they would, though I have always wondered if she, like me, on her own, would not have gone up there stag.

That said, I'm still curious. Using the West Wing script as a take off point, did anyone get nailed for perjury because, absent any other possible crime, he told slightly different stories when cross examined on different months? Or were those prosecuted prosecuted for other misdoings that were illuminated in the hearings?

And while we're at it, how is a lawyer going to prevent you from being asked the same question a month later and getting it slightly muddled? (Or protect you if you have?) I didn't hear a whole lot of fifth amendment taking at the time. What might have been whispered between mouthpiece and client?

Just curious.
posted by IndigoJones at 5:48 PM on July 6

Your example of the 'poor aging file clerk' seems like a very unlikely scenario, at least in my view. There are plenty of congresspeople and senators more than capable of being politically vindictive, but there would be precious little to be gained from using the pulpit to verbally beat up someone of no real value to an enquiry. Quite aside from any procedural justification for questioning such an individual, the negative press would most likely be considerable.

As far as whether having a lawyer can 'prevent you from being asked the same question a month later and getting it slightly muddled' — IANAL, but from my aforementioned West Wing viewing and general knowledge of such things, the sitting next to you during questioning is perhaps the most straightforward part of a lawyer's job. A lot of preparation can be conducted prior to Congressional testimony, partly to practise being interrogated and partly to fully reacquaint themselves with the facts. If you're a senior politician, saying 'I can't remember' a lot at best makes you look silly, and at worst like you're hiding something. Plus, a lawyer will be well versed in record keeping and if you contradict or omit something, even if it's an inadvertent mistake, they'll be on hand to correct you. In the Godfather Part II, when Michael's testifying to Congress regarding his 'alleged' mafia involvement, he is asked about his financial interests, and after acknowledging ownership of a small amount of stock, he is reminded by his lawyer (Tom Hagen, if you recall) that he also owns stock in IBM and AT&T.
posted by jaffacakerhubarb at 7:26 PM on July 6

This article, which discusses 18 U.S.C. 1001 (the relevant law here, more or less), explains why it's so important to have an attorney in situations like this.
posted by Conrad Cornelius o'Donald o'Dell at 11:01 PM on July 6

there would be precious little to be gained from using the pulpit to verbally beat up someone of no real value to an enquiry.

Exactly my point. I've not been able to find the name/position of the woman in question, I just recall that she was fifteen minutes of good news fodder as an example of a small cog whose finances were ruined by having to have the lawyer. A secretary? File clerk? Something really really minor.

I suppose my question should have been- what are the lawyers doing for the client? Exactly? Some of the above lightly touched on it, for which thanks, but - and not to be snarky - examples from Hollywood do not inspire the greatest degree of confidence. (Never could take to West Wing. All the characters talked the same, no character differentiation by speech. Rat a tat tat, like refugees from The Front Page. But perhaps it was subtler and I simply gave up too early.)

(And since Ollie got immunity, what was the potted plant telling him? Or was he protecting someone else's interests? And was congress in granting immunity not stepping on the Justice Department's bailiwick fairly big time?)
posted by IndigoJones at 6:16 AM on July 7