WALTER Lippmann, journalism’s biggest contribution to liberal democratic thought, called a congressional investigation “a legalized atrocity” wherein legislators (senators or congressmen) starved of legitimate food for thought go on a wild and feverish manhunt.
Before the typhoon rained down the craziness of Antonio Trillanes from the public spotlight, I bailed out on watching the televised Senate committee hearing on September 7 (the one where Davao City Vice Mayor Paolo Duterte and his brother–in-law, lawyer Manasas Carpio, made their appearance and were grilled by Trillanes). So, I missed the furor over tattoos.
When the blue ribbon committee called another hearing on Monday, September 11, I bailed again on watching it on TV, even when I learned that Trillanes would not be present. At that point, I had reached the lippmanesque conclusion that the inquiry was a fruitless hunt, and that the probe of the P6.4-billion drug shipment would be better undertaken by professional investigators like the National Bureau of Investigation (NBI) and the Department of Justice (DoJ).
What did I gain from missing the TV extravaganza? I spent the two days doing research.
First, I watched an episode of Francis Ford Coppola’s Oscar-winning film “Godfather, Part II”. This is the episode wherein the title character appears before a US Senate committee to answer questions about the Mafia from a hostile senator.
Second, I did research on Congress’ powers of oversight and subpoena, and the defenses of a citizen who has the luck to be summoned to a congressional hearing.
How Michael Corleone testified
Because of the wonders of new technology and new media, you can watch the “Godfather” episode on DVD or on the Internet. You can also read a full transcript of the Corleone testimony in one website.
In the episode in “Godfather II,” the new don, Michael Corleone (as played by Al Pacino), accompanied by his consigliere Tom Hagen (played by Robert Duvall), answers questions from a US Senate committee. The scene is brief and telling.
Here’s how Corleone’s questioning went, as transcribed by American Rhetoric in its website.
Committee Chairman: Are you the son of Vito Corleone?
Michael Corleone: Yes, I am.
Committee Chairman: And where was he born?
Michael Corleone: Corleone, Sicily.
Committee Chairman: Did he at times use an alias that was known in certain circles as “Godfather?”
Michael Corleone: Godfather is a term that was used by his friends — one of affection, one of respect.
Committee Chairman: Now, Mr. Corleone you have been advised as to your legal rights. We have testimony from a witness—a previous witness –one Willie Cicci. He has stated that you are head of the most powerful Mafia family in this country. Are you?
Michael Corleone: No, I’m not.
Committee Chairman: The witness has testified that you are personally responsible for the murder of a New York City police captain in 1947 and with him a man named Virgil Sollozzo. You deny this?
Michael Corleone: Yes, I do.
Committee Chairman: Is it true that in — in the year 1950 you devised the murder of the heads of the so-called “five families” in New York to assume and consolidate your nefarious power?
Michael Corleone: That’s a complete falsehood.
Senator Questadt: Is it true that you have a controlling interest in three of the major hotels in Las Vegas?
Michael Corleone: No, it is not true. I own some stock in some of the hotels there, but very little. I also have stock in IBM and ITT.
Senator Questadt: Mr. Corleone, do you have any interests or control over gambling and narcotics in the state of New York?
Michael Corleone: No, I do not.
Tom Hagen: Senator, my client would like to read a statement before this committee.
Committee Chairman: I’m going to allow Mr. Corleone to read his statement. I’ll put it in the record.
Michael Corleone: In the hopes of clearing my family name, and in the sincere desire to give my children the fair share of the American way of life, without a blemish on their name and background, I have appeared before this committee and given it all the cooperation in my power. I consider it a great dishonor to me personally to have to deny that I am a criminal. I wish to have the following noted for the record: that I served my country faithfully and honorably in World War 2 and was awarded the Navy Cross for actions in defense of my country; that I have never been arrested or indicted for any crime whatsoever; that no proof linking me to any criminal conspiracy whether it is called “Mafia” or “Cosa Nostra” or whatever other name you wish to give has ever been made public. I have not taken refuge behind the Fifth Amendment, though it is my right to do. I challenge this committee to produce any witness or evidence against me. And if they do not, I hope they will have the decency to clear my name with the same publicity with which they now have besmirched it.”
Corleone went away unscathed. “Godfather II” went on to win the academy award for best picture.
Citizen vs congressional subpoena
My research led me to a white paper entitled “Understand your right response to congressional subpoena” on the Internet. The paper was prepared by a notable California law firm, Mayer Brown, with the assistance of some veterans from the US Congress.
The white paper said in an explanatory note: “As Congress begins its 2014 session, all signs point to an agenda dominated by aggressive congressional investigations. Mayer Brown’s lawyers discussed the general contours of Congress’ investigative authority and subpoena power. They also provide some practical advice regarding the protections available to the subjects of congressional investigations.”
I will not labor this column by discussing at length what is contained in the white paper. It will suffice to just note the instructive conclusions of the paper:
1. Congress’ power to investigate and subpoena witnesses is quite extensive. It is limited only by the rules of the specific chamber and good sense.
2. The courts are reluctant to interfere with this congressional authority.
3. Having competent legal advice is vital to protecting the witness from being humiliated, browbeaten or bullied by lawmakers. There are effective and useful strategies to employ when giving testimony at a congressional hearing.
How Janet Lim-Napoles testified
Interestingly, Janet Lim-Napoles, the alleged pork barrel scam queen, was attended by able legal counsel when she finally appeared at the Senate blue ribbon committee hearing on November 7, 2013.
With answers like, “I do not know”, “I do not remember”, and “I invoke my right against self- incrimination”, she left the senators completely flustered. I think this was the moment when the blue ribbon chairman Teofisto Guingona said goodbye to his Senate career.
Even the formidable Sen. Miriam Defensor-Santiago was helpless before her. “I invoke my right against self-incrimination,” Napoles replied when repeatedly asked by Santiago if she knew the senators who were facing plunder charges in the Office of the Ombudsman for allegedly channeling the PDAF into ghost projects and kickbacks.
In the end, the Senate committee could do nothing. Janet Napoles \ went away unscathed.
Angie Reyes: What might have been
Now, we are seeing another strategy unfold against the Senate hearing. Former Customs Commissioner Nicanor Faeldon has adopted a policy of total defiance: he would rather be detained by the Senate than testify at the Senate hearing.
Can the Senate detain him indefinitely? Not likely, say many lawyers.
What if Faeldon had just invoked his right against self-incrimination, the way Napoles did?
It saddens me to think that Gen. Angelo Reyes would probably still be alive today had he gotten the advice of a good lawyer before allowing himself to be grilled and humiliated by Trillanes at the Senate (“You have no reputation to protect.”).
The general and secretary of various Cabinet departments just wanted to keep his record of public service intact and with dignity. For his honor, he took his own life.
Would Reyes have survived if there had been no Trillanes at the Senate?
Probably. Reyes was a competent professional (in military and civilian life) through and through. He was taken down by an unscrupulous and much lesser man.