83

WASHINGTON, D.C.

“This case presents a simple question: Can the president conspire for political purposes with her chief of staff and the CIA director to send our forces on a rescue mission knowing full well that they will die?”

Paige asked the question forcefully and paused for a breath. She had been warned that this would be an active bench and she should try to summarize her argument in the first minute or so before they started peppering her with questions. She never got that chance.

“If that’s the issue, how can you possibly prove your case without knowing what the president knew?” The question came from Justice Sikes, who was leaning forward and had drowned out a question by his older colleague, Justice Cooper from Texas. “And that would implicate all kinds of state secrets, would it not?”

“No, Justice Sikes, it wouldn’t. State secrets are limited to military or espionage secrets that, if divulged, would endanger the security of our country. The mission in question is now history. Divulging what the president knew going into the mission—as long as names of CIA operatives and specific engagement strategies are kept secret—would not endanger our country or help our enemies.”

The words were barely out of her mouth before the Beard asked his question again. This time he wasn’t going to let anyone speak over him. “It’s naive to think that you don’t have to get into the details to prove your case, Counsel. You’ll put on witnesses to say the president knew the plan was doomed. The defendants will say that’s not true. And the only way for the jury to figure who’s right is for them to know the precise intelligence information the president had and to know who provided that information so they can weigh the credibility of the sources. All of that information qualifies as state secrets.”

To Paige, that sounded more like an argument than a question. But she kept her composure, responding as if she and the Beard were best friends.

“That may be the case, Justice Cooper, or it may not be. The point is that we’ll never know unless this case is allowed to proceed. Judge Solberg was doing a good job of letting us take depositions without divulging state secrets or classified information. Once those depositions are completed, we may find there is no dispute about what the president knew and we don’t need to test the sources. Or we may be able to prove our case without government witnesses, thus negating the state secrets defense. We should at least be allowed to take enough discovery to find out.”

“And as soon as those depositions are taken, they get leaked to the press,” Justice Sikes interjected.

“Which we didn’t do,” Paige shot back. It was a cheap shot from the justice, and Sikes was starting to get under her skin.

“I guess that remains to be seen,” Sikes said, intent on having the last word.

Two justices chimed in at once and Justice Deegan, as the junior member of the Court, deferred. Justice Torres, the former senator from California who had served on the Senate Foreign Relations Committee, was a critical vote if Paige had any hope of winning the case.

“Doesn’t the result you want go directly contrary to our Reynolds decision?” she asked.

Reynolds was a 1953 case in which widows of civilians aboard an Air Force plane tried to get information about what made it crash. The Air Force claimed military secrets, and the case was not allowed to proceed.

“We think the procedure employed by Judge Solberg is consistent with Reynolds,” Paige explained. She and Wellington had carefully crafted this answer. They knew the Supreme Court didn’t like to overturn its own cases, especially ones more than fifty years old.

“In Reynolds, this Court said that it should treat state secrets like it treats a defendant’s assertion of the Fifth Amendment privilege in a civil proceeding. You don’t have to accept the privilege at face value; you can inquire into the circumstances and decide whether answering the question might tend to incriminate that person. That’s what Judge Solberg was doing here—inquiring into the circumstances.”

“But the trial court in Reynolds did not allow depositions like Judge Solberg did,” Torres responded.

Before Paige could answer, Chief Justice Leonard chimed in. It felt like questions were coming from every direction. “In Reynolds, the Court assumed from the circumstances that there was a reasonable danger the evidence would expose military matters of national security. Can’t we assume the same thing here?” he asked.

“I don’t think the Court should assume any such thing, because we already have the deposition of Director Marcano,” Paige said quickly, anxious to answer before another question popped up. “And Judge Solberg did a good job conducting that deposition so that we were able to get the information we needed without exposing state secrets. I think it’s obvious she can do the same with other depositions because Director Marcano’s was the trickiest one.”

“If I believe the reports from the New York Tribune,” Justice Sikes said caustically, making Paige pivot to the left to face him, “you’ve already received classified information that you’ve used in this case. And there is supposedly a grand jury looking into the matter. Are those reports true?”

The question stunned Paige. She knew that the specter of the grand jury proceedings would hang over her argument, but she didn’t expect to field a pointed question about it. She had taken the Fifth in the grand jury, but she certainly couldn’t do that now.

“It would be inappropriate for me to comment on that article, which, by the way, was written by the same reporter who leaked the Marcano deposition,” Paige said. She could feel her face turning red. “But I can assure you that we did nothing wrong.”

“Aren’t grand jury proceedings secret, anyway?” Justice Deegan asked from the far right end of the bench. Her question seemed to be directed at Sikes. “As a former prosecutor and trial court judge, I certainly agree that it would be inappropriate for counsel to comment on grand jury proceedings, no matter how badly you would like to do so.” Deegan shot a quick glance at Sikes, and he scowled back.

The exchange emboldened Paige, not just because she had an ally on the bench but also because Deegan was likely the swing vote.

“Precisely,” Paige said. “The Tribune article seemed insidiously timed to cast doubt over today’s argument. If anything, Justice Sikes, that article makes it clear that the source of information for the reporter who leaked the Marcano deposition was not anyone on the plaintiff’s team.”

It was a high point of her argument, one she would take pride in later. A chance to put the loquacious Sikes in his place was rare for even experienced Supreme Court practitioners, much less someone as inexperienced as Paige.

Her low point came about five minutes later, when Justice Augustini asked a question and for some reason Paige slipped and addressed her as Justice Torres. This brought an awkward smile from the justices and an immediate apology from Paige. But Augustini deflected it graciously: “I’ve been called a lot worse.” Her comment broke the tension in the courtroom and brought a laugh from the gallery far out of proportion to the humor of the statement.

Paige’s time flew by, and ultimately her preparation paid off. She probably hadn’t changed any minds during her time at the podium, but she had held her own. With the exception of the slipup in names, she had acted like someone who had been there before. The SEAL team members in the front two rows of the gallery would be proud.

When the white light came on, Paige fielded two more questions and then launched into her final arguments. “Justice Torres mentioned the Reynolds case earlier. But when Reynolds was decided, the CIA did not have drones and Special Forces teams killing thousands of enemy combatants. Our military is accountable not just to the president but also to Congress, who alone has the power to declare war. But the CIA and all of its firepower are under the direct control of the president and no one else.”

They were letting her go, and Paige took full advantage of it. “The office of president has more power today than it has ever had in the history of the republic. But one thing has not changed since Reynolds; indeed, one thing has not changed since the founding of our nation. There are checks and balances in the Constitution. And the job of this Court is to ensure that everyone in our country complies with the law—from the president to the poorest beggar on the streets of the capital. Equal justice under law—isn’t that what it says on this very building?”

Paige paused and caught her breath. She knew the red light would soon stop her midsentence, and she wanted to finish strong. She and Wellington had spent hours wordsmithing her final plea. To her surprise, the justices seemed content to hold their questions and let her deliver it. The conservatives leaned back and gave her skeptical looks. The others were clearly engaged.

“As Abraham Lincoln once noted, this nation will never be destroyed by outside forces. He said, ‘All the armies of Europe, Asia, and Africa combined could not by force take a drink from the Ohio or make a track on the Blue Ridge.’ But Lincoln also warned, ‘If danger ever reach us, it must spring up amongst us. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time or die by suicide.’”

Paige took one last glance at the Court, surveying the members from left to right. The red light came on, but she ignored it. “To place the president and her cabinet above the law is suicidal. We urge this Court to reject that approach and affirm Judge Solberg.”