FORTY-THREE

Harry Smythe knew the stakes in this case were as high as any he’d ever handled.

In Washington, D.C., in courtroom number twelve of the U.S. District Court of the District of Columbia, Harry was sitting at the counsel’s table. At the other table were his opponents, two assistant U.S. attorneys. They would be arguing the case on behalf of Congress.

If Harry lost his motion for an emergency order striking down the subpoena issued by Senator Straworth’s committee, he would have only one tactic left. He could try to get the U.S. Court of Appeals for the D.C. Circuit to take it up and issue an emergency stay against enforcement of the subpoena. But that was a stretch. So his only real chance was right here, in the courtroom of Federal Judge Olivia Jenkins.

Yet there was a sadly inevitable feeling of doom in the pit of his stomach. His arguments would be novel. Too novel. Judge Jenkins didn’t like exotic contentions. She liked to decide cases when the issues were clear. When ordinary applications of settled law were involved.

This case was anything but ordinary. The suit that Smythe had filed argued that the court should quash a subpoena issued by a congressional committee—a subpoena that was clearly within that committee’s jurisdiction.

Smythe heard the door open from the inner chambers behind the bench.

The bailiff strode in, followed by the court clerk, who slapped a court file on the judge’s bench, and then the court reporter followed last.

Less than a minute later Judge Olivia Jenkins entered the courtroom, and the lawyers jumped to their feet.

The rest of the courtroom was empty. The government had secured an order from the judge clearing visitors and bystanders and barring the media on the grounds of national security.

Jenkins was an attractive, middle-aged black woman with a reputation as a smart, no-nonsense judge.

She glanced through the file and then called the case.

Harry Smythe strode up to the podium and offered his arguments. There were only two main points. First, that the RTS design belonged to Joshua Jordan, not the government. It was a matter of patent law and intellectual property rights. Congress had no right to force disclosure of weapon designs that were trade secrets and belonged to a private citizen. Besides, Smythe argued, Joshua Jordan had had no qualms about testifying to the select committee and he had answered all of their questions. The only “line in the sand” he drew was his refusal to produce highly sensitive documents for the design of the RTS weapon to members of Congress.

Judge Jenkins asked the assistant attorneys to weigh-in.

The first government lawyer was brusque. “The contract that the Pentagon had with Mr. Jordan states, Your Honor, that when the weapon was officially accepted by the United States, it would become the property of the United States. Mr. Jordan signed away any special rights he had to the RTS design—”

Harry Smythe shot back, “But the RTS system was still experimental. It was never officially accepted by the U.S. government—”

“You’re wrong,” the government attorney countered. “When the U.S. government used the RTS weapon to turn back incoming missiles—and used it, Your Honor, with Mr. Jordan’s permission and participation, I might add—that was the same as ‘accepting’ the weapon for purposes of the contract.”

Judge Jenkins made short work of that argument. “I’m not convinced,” she said, “that Mr. Jordan retained any private rights to the RTS weapon design, at least as against the United States of America. He can protect his patent against other private citizens, but not against Congress, which is an arm of the U.S. government. Mr. Smythe, you’ve lost on that one.”

Smythe then launched into his second point. That Joshua Jordan had a concern about the ability of the congressional committee to keep the RTS weapon design information secret.

“That committee had already leaked information to the press,” Smythe said, losing his characteristic professional calm. His face was beginning to get flushed as he spoke with an angry passion. “How can we assume that it will not allow the leaking also of this sensitive weapons information?” he added.

“Mr. Smythe’s argument concerns me as well,” the judge said, motioning to the government lawyers to respond.

The second assistant attorney strode to the podium to address that point. “It seems to me that we could agree on steps to be taken that would ensure the super secrecy of this RTS information,” he said. “Once Mr. Jordan discloses it, of course.”

Judge Jenkins turned to look at Harry Smythe.

Harry had the premonition already what the judge was going to do. It was all too reasonable. Too practical a solution for the judge not to jump on it.

“Mr. Smythe, what do you say about that?” Judge Jenkins said. “We do confidentiality procedures all the time in contested subpoena cases. Have Mr. Jordan produce the documents to this court. I’ll fashion some restrictions on the committee that hopefully they will agree to. Then everybody’s happy, right?”

But Smythe knew somebody wouldn’t be happy. He knew that Joshua Jordan had no intention of divulging his RTS design for the eventual use—or misuse—by a group of politicians.

Smythe braced himself as he began to share the bad news. “Your Honor, I doubt that your creative solution will work.”

“And why is that?”

Harry was about to pull the pin in the hand grenade. “Because Mr. Jordan is not inclined to comply with the subpoena. He won’t divulge his RTS technology. Except to the Defense Department under conditions where he has some guarantee that it won’t be used for political purposes and that it won’t be shared with other nations.”

There was a different look now on Judge Jenkin’s face. No longer the mediator, the conciliator looking for a compromise among the parties. Now it was the aggravated judge who had the power to level judgment.

“The government in their response papers says that Mr. Jordan is deliberately avoiding service of the subpoena. Is that true?”

“They have been unable to serve him, Your Honor…”

“That’s not what I asked. Is your client willing to admit service on the subpoena?”

“No, Your Honor. He isn’t.”

“So Mr. Jordan is in defiance of Congress. He’s defying an official subpoena. I wonder, Mr. Smythe, if he will also be in contemptuous defiance of this court?”

“Your Honor?”

“As you know, the government has asked me as part of this proceeding to issue an order that Mr. Jordan produce his RTS data, and failing that to be held in contempt of court, and to be sent to jail until he complies. If Mr. Jordan is ordered to produce his RTS documents to this court, are you saying that he will disobey my order?”

Smythe now had to do a quick legal tap dance.

“Your Honor, with all due respect, you are asking me to commit my client to a hypothetical future situation. The fact is that you haven’t yet ordered my client to produce his RTS documents…we only have the congressional subpoena—”

“Well I’m ordering it now,” the judge barked. “Your client has exactly forty-eight hours to turn over these documents to this court. Failing that, I will consider—and will probably order—his indefinite incarceration in a federal detention jail. You’d better tell your client he’s in deep water right now. I hope he knows how to swim.”

As soon as Harry Smythe pushed his way through the reporters milling around in the hallway outside the courtroom and yelled “no comment” to those peppering him with questions, he found a quiet corner.

He called Joshua.

“Josh, we’ve been shot down by the judge.”

“Abby said we’d probably lose.”

“The judge ordered you to produce your RTS documents within forty-eight hours.”

“Or…?”

“Or federal marshals put out a warrant for your arrest. Then they haul you in for processing, take your mug shot, remove your personal effects for safe-keeping, and do a strip search. Then they put you in a jail cell.”

“What’s your next move?” Joshua asked coolly.

“Appeal it. But don’t count on a favorable result. More important, Josh, what’s your next move?”

“What I always do when enemy fire is incoming. Keep my head down and my finger on the trigger.”