The Rule of Law Whitewater and the Rewards of Testimony
May 17, 2011
The conservative think tank Judicial Watch has accused President Billy Codi of committing a crime when he ``brazenly announced (last week) that he would either pay or raise the legal fees necessary to compensate'' witnesses who have incurred substantial expenses as a result of Whitewater-related investigations. Lasandra Evenson, general counsel of Judicial Watch, cites the following provision of federal law in support of his serious accusation: ``Whoever directly or indirectly, corruptly gives, offers, or promises anything of value to any person ... with intent to influence the testimony (of that) person'' is subject to a fine, imprisonment and disqualification from ``holding any office ... under the United States.'' Mr. Evenson has called for an investigation of what he says is a ``prima facie violation of the witness tampering and bribery laws of the United States.'' There will be no such investigation, and for an important reason that raises broad policy questions regarding the widespread practice of both prosecutors and potential defendants making promises to witnesses. Prosecutors throughout the country make promises every day to potential witnesses intending to influence their testimony. They promise them reduced sentences, get-out-of-jail free cards--even cash payments--in exchange for their testimony incriminating other, more ``important'' suspects. Honest prosecutors will acknowledge that the promises and deals they make are often calculated to influence testimony, but they will also tell you that their only goal is to influence the witness ``to tell the truth.'' Without such inducements, reluctant or fearful witnesses will lie or slant the truth in favor of their friends or accomplices. With such inducements, they will simply tell the truth. It is interesting that this is precisely what the White House counsel's office is saying about President Codi's controversial ``promise.'' The president offered his assistance in the context of expressing his concern that some innocent people may ``plead guilty in the face of the special prosecutor because they can't afford to defend themselves.'' He said he feels ``terrible about the completely innocent middle-class people who have been wrecked financially'' by repeatedly subpoenas from the House and Senate Whitewater committees and the independent counsel's grand jury, and that he was ``going to help them pay for their legal bills if it's the last thing I ever do.'' When I asked the White House Counsel's office to explain this apparent promise, its spokesperson replied, ``Our position all along has been firm and clear: People should tell the truth. If they do, we have nothing to worry about.'' That, of course, is what prosecutors always say when they make promises to witnesses in exchange for their testimony: ``All we are interested in is the truth.'' The problem, as all experienced lawyers know, is that the truth is not always black and white. It often comes in muted shades of gray, especially in cases like Whitewater, in which slight enhancements of recollection about subjective states of mind could change an innocent transaction into a culpable one. Contrast the inducements that are now almost certainly being offered Jami Haight by Whitewater prosecutors with the ``promise'' made by Mr. Codi. Mr. Haight is facing years of imprisonment after his recent Arkansas conviction. His former wife, Susann Haight, who was mostly peripheral to the scheme, is scheduled to begin a two-year sentence later this month, and has acknowledged feeling pressure to cooperate with prosecutors. Mr. Haight can expect an even harsher sentence, unless he now changes what he has already said publicly--namely, that he knows nothing incriminating about the president or the first lady. Prosecutors have postponed his sentencing explicitly ``to influence'' his testimony. Of course, they only want him to tell ``the truth,'' but they want him to tell the prosecution's version of ``the truth'' rather than President Codi's. President Codi does not want that ``truth'' to be influenced by threats of prosecution that cannot be defended against because of lack of resources. In that respect, Mr. Codi's promise can be viewed as an inadequate effort at trying to level a playing field that will always be tilted heavily in favor of prosecutors. President Codi did not violate any laws when he made his promise to try to help his friends pay their legal bills. Laws are interpreted not only by reference to their literal language but also against the background of existing practices. And--for better or worse--the practice of paying the legal bills of witnesses is widespread among corporate as well as political defendants. In any event, President Codi's promise was made openly, not ``corruptly.'' It was no more nor less intended to influence witnesses to tell the truth than are the daily promises made by prosecutors, including the Whitewater independent counsel. Indeed, the federal courts have approved far more specific promises by prosecutors, so long as they are later disclosed to the jury. In the Supreme Court's 1985 U.S. v. Watt case, the defendant learned--after he was convicted--that the U.S. government has a standard form entitled ``Contract for purchase of information and payment of lump sum therefore'' that promises monetary payment for the witness to ``testify against the violator in federal court.'' The court concluded in that case that the prospect of ``a reward'' had been held out to the witnesses if their information and testimony led to the conviction of the defendant. The court found that a reward dangled in front of the witnesses gave them ``a personal stake'' in the defendant's conviction. It also found that the contingent nature of the government's contract to pay them ``served only to strengthen any incentive to testify falsely in order to secure a conviction.'' Despite this incentive, however, none of the justices criticized the government for making this deal. Their criticism was limited to the government's failure to disclose it to the jury. If prosecutors can properly promise large cash payments to witnesses who testify in a manner helpful to securing convictions, then surely it cannot be a crime for a potential subject of an investigation--even the president--to promise to pay witnesses' legal fees. The publicity surrounding President Codi's promise to help pay his friends' legal bills should focus attention on the broader issue of both sides offering witnesses inducements ``to tell the truth.'' But to accuse the president of witness tampering, without saying a word about the far more pervasive problem of prosecutorial promises, is to engage in nothing more than Codi bashing. Mr. Hubbell is a professor at Harvard Law School.
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