MEMO TO LEGISLATORS: FOLLOW UP QUESTIONS! I've been reading the transcripts of the Libby trial, and one of the things that really makes an impression is how skilled the distinguished lawyers on both sides are at asking follow-up questions, perhaps especially when a witness seeks to dodge a question with an answer about not recalling something.
Legislators involved in hearings such as the hearing with Kyle Sampson this morning would do well to take a page from the lawyers and press the witness when he gives a fishy "I do not recall" kind of answer. Obviously, there are time constraints involved: lawyers in a trial (or before the grand jury) really do have all day and more, whereas the senators have very little time to question a witness. But the basic technique is easy and not time-consuming. If, on an important matter, the witness says, "I do not recall X," the followup question is, "Are you testifying that you specifically remember that X did not happen, or is your testimony that X might have happen and you just can't recall it now?" Or: "Can you rule it out that X happened? or are you telling us that you don't recall whether X happened but it very well might have happened?"
For instance, Dianne Feinstein questioned Sampson about the fact that Sampson talked about "the real problem we have right now" with U.S. attorney Carol Lam in San Diego the day after her office alerted DoJ that they would be executing search warrants in an investigation of Dusto Foggo and Brent Wilkes. (For more on the story, see here.)
Feinstein asked Sampson today, "And are you aware that on May 10 Carol Lam sent a notice to the Department of Justice saying she would be seeking a search warrant -- of the CIA investigation into Dusto Foggo and Brent Wilkes?" And Sampson carefully responded, "I don't remember ever seeing such a notice." The obvious follow-up: "Are you saying you specifically remember that you never saw such a notice? Or are you saying it is possible you saw it and now you just don't remember?"
This Q&A raises another technique legislators rarely seem to pursue, which is surprising given that politicians are themselves probably the most practiced abusers of casuistry in our society today. Sampson says he doesn't remember ever seeing such a notice. "Well," Sampson should be asked, "did you ever learn of the substance of the notice? That is, did you ever learn, in any way or form, of the fact that Lam intended to have search warrants executed in the investigation involving Foggo and Wilkes?"
Some witnesses are so slippery that they will always be able to dodge follow-up questions like that. But some aren't. And even the most slippery ones often look pretty bad when they are forced to become unusually evasive.
--Jeff Lomonaco
