House Select Committee Hearings on Jan. 6 (4 Viewers)

[MT15]

Let’s put our discussion in this thread we can use it for all the hearings.

 

[superchuck500]

I asked if it was common, as I don't know. Maybe someone else does know.

Only someone with substantial experience in dealing with the conduct of congressional hearings would know if it was common.

I have actually represented congressional witnesses before (two to be precise) and there was communication with the committee’s staff office but not directly with any committee members. But in both instances it was a fairly mundane regulatory issue. I suspect in situations where the issues are more acute and of direct interest to a committee member, direct communication would be expected.

It strikes me as not different than a prosecutor or plaintiff lawyer being in communication with a third-party witness who has testimony favorable to their case - or a defense attorney being in communication with a third-party witness with testimony favorable to the defense. That happens very commonly. And if anything, I’d say a committee situation would more accommodating, not less.

 

[Texan1211]

Only someone with substantial experience in dealing with the conduct of congressional hearings would know if it was common.

That is why I asked instead of assuming I already knew the answer.

 

[superchuck500]

That is why I asked instead of assuming I already knew the answer.

If you were to assume you already knew the answer, what do you think it would be?

 

[Texan1211]

If you were to assume you already knew the answer, what do you think it would be?

Here's the thing, I don't know. My GUESS is that it is at best unethical.

 

[superchuck500]

Here's the thing, I don't know. My GUESS is that it is at best unethical.

Communicating with a witness is completely not unethical - and in fact happens quite often in similar contexts so I'm certain it happens in this context. The report makes no claim whatosever about it being inappropriate that Cheney had communications with Hutchinson.

What may be unethical and what the report does make allegations about is that the communication was without Hutchinson's counsel being involved despite the fact that she had counsel. In most contexts, it is unethical for a lawyer to communicate directly with a person who is represented by counsel - without first obtaining the consent of the person's lawyer.

But those rules apply to lawyers in the conduct of their representation of a party to a matter. There is no such rule to apply to parties to a matter . . . in other words, while the lawyer for a company cannot ethically communicate directly with a former employee who has a discrimination suit against the company and is represented by an attorney, there is no such rule about whether someone from the company can communicate with the employee without their attorney present.

While Cheney is a lawyer by background (and thus certainly knows this rule) she hasn't practiced law since 2001 and wasn't acting as a lawyer. She was not counsel to the committee. She was acting as a committee member - and so I don't think the general rule applies. The messages contain some evidence that she stated that she was concerned about speaking with Hutchinson directly without her lawyer present - and then later Hutchinson fired the lawyer. It's possible that Hutchinson responded that she wanted to communicate with Cheney directly and effectively waived her counsel in that regard. In that context, that doesn't strike me as unethical.

 

[Texan1211]

Communicating with a witness is completely not unethical - and in fact happens quite often in similar contexts so I'm certain it happens in this context. The report makes no claim whatosever about it being inappropriate that Cheney had communications with Hutchinson.

What may be unethical and what the report does make allegations about is that the communication was without Hutchinson's counsel being involved despite the fact that she had counsel. In most contexts, it is unethical for a lawyer to communicate directly with a person who is represented by counsel - without first obtaining the consent of the person's lawyer.

But those rules apply to lawyers in the conduct of their representation of a party to a matter. There is no such rule to apply to parties to a matter . . . in other words, while the lawyer for a company cannot ethically communicate directly with a former employee who has a discrimination suit against the company and is represented by an attorney, there is no such rule about whether someone from the company can communicate with the employee without their attorney present.

While Cheney is a lawyer by background (and thus certainly knows this rule) she hasn't practiced law since 2001 and wasn't acting as a lawyer. She was not counsel to the committee. She was acting as a committee member - and so I don't think the general rule applies. The messages contain some evidence that she stated that she was concerned about speaking with Hutchinson directly without her lawyer present - and then later Hutchinson fired the lawyer. It's possible that Hutchinson responded that she wanted to communicate with Cheney directly and effectively waived her counsel in that regard. In that context, that doesn't strike me as unethical.

Thanks.
See this is WHY I asked!

 

[superchuck500]

Thanks.
See this is WHY I asked!

My pleasure -

Another interesting element of this that I didn't mention in the above post about whether communication with a witness is common or unethical is the other allegation - which is that Cheney illegally persuaded Hutchinson to commit perjury (this is called subornation of perjury, 18 USC 1622).

The elements of subornation of perjury here would be that (1) Hutchinson did indeed commit perjury and did for a "corrupt purpose" and (2) Cheney persuaded Hutchinson to do so. In other words, a jury would have to find that Hutchinson's perjury was substantially "procured" by Cheney's efforts . . . or that Hutchinson was materially influenced to commit the perjury by Cheney.

It should be first said that the presentation here by Loudermilk is clearly nothing more than at attempt to make Trump and MAGA happy by feeding their narrative that it's all a false witch hunt and that it's perpetrators like Cheney were lying to America. Notwithstanding that most of what J6 presented was already public, Liz Cheney went to a top 5 law school and worked at various high positions at the State Department and private think tanks for years before coming to Congress. She didn't persuade a federal committee witness to commit perjury on the record.

But she also enjoys clear immunity from any investigation whatsoever under the Speech and Debate clause, the relevant elements of which here are called "legislative immunity". The founders recognized that a president (or judiciary) angered by actions at Congress could use his investigatory and prosecution powers to retaliate against the perpetrating members of Congress. The language is clear that it is not only a privilege from prosecution, but a liberty from "questioning" - which means an evidentiary liberty to refuse to be questioned or respond to subpoena.

The Select Committee was clearly a legislative function and the clause is designed precisely to avoid executive branch retaliation against legislators for activities at Congress. In other words, exactly what Loudermilk is asking DOJ to do. He knows that, he gave some passing comment about the immunity not applying but it clearly does.

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