>>24899847
I'm Not a Potted Plant; Or Am I?
By Joel Cohen, Contributor
Lawyer
May 27,2015
[from now-closed HuffPost Contributor platform…]
"On July 9, 1987, the defense attorney Brendan Sullivan became an icon, stridently refusing to stand mute as his client Lieutenant Colonel Oliver North was questioned – sometimes inappropriately - before a Joint Committee of the House and Senate investigating the Iran-Contra scandal that actually implicated the President of the United States. In strikingly plain language, Sullivan made clear to the Committee and - more important in some ways, the viewing public - that one who is subjected to questioning by prosecutors or politicians (who many times have their own agendas) should not be deprived of the true assistance of counsel. In an unforgettable colloquy, Sullivan told the world that the lawyer's role was not to stand mute, particularly when an interrogation seemed to have run amok. The public, even a public that is sometimes prone to render kneejerk decisions about those whom it sees as villains, needed to hear that. And it did.
"Here's how it went - the last line of the excerpt being the headline forever associated with Sullivan, and indeed Iran-Contra:
//_/
"Arthur Liman: [Colonel North] would you have shredded less documents on the 22nd if you had been told that the Attorney General was acting at the specific request of the President, your commander in chief?
"Brendan Sullivan: Objection. Pure speculation. Dreamland. It has two ifs in it. And Mr. Liman knows better than most that those kinds of questions, Mr. Chairman, are wholly inappropriate, not just because of rules of evidence, not because you couldn't say it in a court, but because it's just dreamland. It's speculation. It says if you'd done this and if you'd done that and what about this? Come on. Let's have, Mr. Chairman, plain fairness.
"Senator Inouye: May I speak? I'm certain counsel realizes that this is not a court of law.
"Brendan Sullivan: Believe me, I know that.
"Senator Inouye: And I'm certain you realize that the rules of evidence do not apply in this inquiry.
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"Brendan Sullivan: That I know as well. I'm just asking for fairness. Fairness. I know the rules don't apply. I know that Congress doesn't recognize attorney-client privilege. Husband and wife privilege. Priest penitent privilege. I know those things are all out the window. And we rely on just fairness, Mr. Chairman, fairness.
"Senator Inouye: We have attempted to be as fair as we can. Let the witness object if he wishes to.
"Brendan Sullivan: Well sir, I'm not a potted plant. I'm here as the lawyer. That's my job."
//_/
"One would think that the point which was made succinctly, yet forcefully, by Sullivan needed to be made only once, given the viral publicity over the retort.
"… 30 years earlier when the legendary Edward R. Murrow televised the rebuke by the … Senator Joseph McCarthy - chairman of the Senate Permanent Subcommittee on Investigations - of counsel's efforts to speak. Annie Lee Moss, a widowed [African American] and allegedly card-carrying member of the Communist party, was subpoenaed to testify on March 12, 1954 at the televised Senate hearing choreographed by McCarthy, looking at that time into the supposed Communist infiltration of the Army. McCarthy introduced his … attempt to get Moss to "name names" as to how she supposedly secured a position in the Pentagon code room… Then, her … attorney .. was … shut down as the questioning of Mrs. Moss began:
//_/
"McCarthy: Mrs. Moss, … We have the testimony that you are, have been a communist. We are.. curious…to know how you suddenly were shifted from a worker in a cafeteria to the code room. …
"Hayes (Moss Counsel): Mr. Chairman . . .
"McCarthy: We will not hear from counsel. You've been told what the rule is. If you have anything to say, say it through your client.
//_/
….
"And it doesn't stop at the Beltway. Along with others, the well-regarded New York State Attorney General's Office has taken the same position going back over 40 years - counsel can be present, so long as he or she remains mute….
…[C]ase law supports this position, on the theory that the proceeding before the Attorney General is "investigative rather than adjudicative in nature and there is no constitutional right to the assistance of counsel in administrative proceedings which are purely investigatory . . ."
"… counsel can have no speaking role other than to assert privilege… The penalty if couns [speaks up]? Simple. He will be dismissed from the room. …"
[further commentary removed for space]
https://www.huffpost.com/entry/im-not-a-potted-plant-or_b_7443442