Washington Lawyer - July/August 2020 - 44

ON FURTHER RE VIEW

KEEP IT SHORT, COUNSEL
By Lloyd Liu

B

y the time this column is
printed (I am writing in late
April), I hope we will see some
safe thawing from the pandemic.
Continuing forward with some
feeling of normalcy in a crisis feels
awkward but necessary.
In these socially distanced circumstances, I had
the opportunity to chat with Robert Bennett
over the phone about his approach to trials. He
is senior counsel for Bennett Doyle LLP, a firm
recently cofounded by his daughter Peggy
Bennett. Over his decades-long career, Robert
Bennett has represented President Bill Clinton,
KPMG, Enron, Secretary of Defense Caspar
Weinberger, and many more. He started as
an assistant U.S. attorney for the District of
Columbia under the legendary Thomas
Aquinas Flannery.
Bennett identifies brevity as a hallmark for
effectiveness. "I'm a great believer in brevity.
Like with cross-examination, you have to be a
guerilla fighter. You have to know exactly what
you want to get from a witness. Once you get
it, you stop," Bennett said. "I read about these
five- or eight-hour cross-examinations. I don't
know what you do for five or eight hours." He
added, "You don't want to have a witness just
repeating things that are harmful to you that
were spoken on direct examination. That
happens a great deal."
He recalled his examination of former Attorney
General Griffin Bell in connection with the
Keating Five scandal in 1990. Bennett served
as the special counsel to the Senate Ethics
Committee. The core allegation of the investigation was that several senators (later identified
as the Keating Five) improperly used their influence to terminate a regulatory investigation of

44 WASHINGTON LAWYER

*

JULY/AUGUST 2020

the Lincoln Savings and Loan Association. The
chairman of Lincoln Savings was Charles H.
Keating Jr., who had made substantial political
contributions to each of the senators.
Senator Dennis DeConcini, one of the Keating
Five, called Bell, then a circuit judge, as a
witness. Judge Bell was well-respected and
well-liked. He testified on direct that it was
appropriate for a senator to intercede with regulators on a constituent's behalf, and that it was
also appropriate for that same constituent to
contribute to that senator.
Bennett cross-examined him. It took about 10
minutes. Bennett began by establishing that
Bell had "not done any kind of analysis of political contributions as to any intercessions or
interventions."1
Judge Bell was also the former vice chairman of
the presidential Commission on Ethics Law
Reform. Bennett then read from Bell's report on
ethical conduct, excerpted here:
MR. BENNETT: "[ . . . ] Laws and rules can
never be fully descriptive of what an
ethical person should do. They can
simply establish minimal standards of
conduct. Possible variations in conduct
are infinite, virtually impossible to
describe and proscribe by statute.
Compulsion by law is the most expensive way to make people behave. The
futility of relying solely or principally on
compulsion to produce virtue becomes
even more apparent when one considers that there is an obligation and a
public official to be sure his actions
appear ethical as well as be ethical. The
duty is to conduct one's office with not
only honor but with perceived honor."
It was critical for Bennett to establish that a
public official had a duty not only to act ethically but also to appear so. And he used
Senator DeConcini's own witness to establish

that point. This examination also shows the
importance of tone. Bennett's cross-examination was more casual with some lighthearted
banter about an obscure book Judge Bell had
written:
MR. BENNETT: Let me refer you to a
statement in a book. This was a tough
book to find, Judge Bell.
JUDGE BELL: I have a few copies of it, if
you want to get a few.
(Laughter)
MR. BENNETT: Well, I would be pleased
to. We found this in the D.C. Public
Library. It's a wonderful book. I recommend it to you all. I didn't bill you all for
the time [I spent reading it]."
Bennett then turned to a critical passage,
reading the following portion:
MR. BENNETT: [ . . .] "Self-dealing is difficult to define or outlaw because congressmen properly and legitimately
serve their constituents by seeking
information about matters pending at
the agency. The propriety of such a
contact comes into question if it is
something more than a neutral request
for information."
Do you remember writing that?
JUDGE BELL: Yes.
MR. BENNETT: What did you mean
when you say "more than a neutral
request for information," if you recall?
JUDGE BELL: That would be - I know
what "neutral" means, because I always
said we were operating a neutral
Justice Department. It was a neutral
zone in the government. It has to be
neutral. Otherwise people would not
believe in the law. It is something like



Washington Lawyer - July/August 2020

Table of Contents for the Digital Edition of Washington Lawyer - July/August 2020

Digital Extras
Your Voice
From Our President
Election Coverage
Practice Management
Calendar of Events
When Law Firms Go Remote feature
Disaster Preparedness for Lawyers feature
Staying Afloat feature
Privacy Rights During a Pandemic Feature
Hamilton's Enduring Legacy feature
Annual Report
Taking the Stand
The Learning Curve
On Further Review
Member Spotlight -
Worth Reading
Attorney Briefs
Disciplinary Summaries
Women's Suffrage special section
Speaking of Ethics
A Slice of Wry
Washington Lawyer - July/August 2020 - Cover1
Washington Lawyer - July/August 2020 - Cover2
Washington Lawyer - July/August 2020 - 1
Washington Lawyer - July/August 2020 - 2
Washington Lawyer - July/August 2020 - 3
Washington Lawyer - July/August 2020 - Digital Extras
Washington Lawyer - July/August 2020 - Your Voice
Washington Lawyer - July/August 2020 - From Our President
Washington Lawyer - July/August 2020 - Election Coverage
Washington Lawyer - July/August 2020 - Practice Management
Washington Lawyer - July/August 2020 - Calendar of Events
Washington Lawyer - July/August 2020 - 10
Washington Lawyer - July/August 2020 - 11
Washington Lawyer - July/August 2020 - When Law Firms Go Remote feature
Washington Lawyer - July/August 2020 - 13
Washington Lawyer - July/August 2020 - 14
Washington Lawyer - July/August 2020 - 15
Washington Lawyer - July/August 2020 - 16
Washington Lawyer - July/August 2020 - 17
Washington Lawyer - July/August 2020 - Disaster Preparedness for Lawyers feature
Washington Lawyer - July/August 2020 - 19
Washington Lawyer - July/August 2020 - 20
Washington Lawyer - July/August 2020 - 21
Washington Lawyer - July/August 2020 - Staying Afloat feature
Washington Lawyer - July/August 2020 - 23
Washington Lawyer - July/August 2020 - 24
Washington Lawyer - July/August 2020 - 25
Washington Lawyer - July/August 2020 - 26
Washington Lawyer - July/August 2020 - 27
Washington Lawyer - July/August 2020 - Privacy Rights During a Pandemic Feature
Washington Lawyer - July/August 2020 - 29
Washington Lawyer - July/August 2020 - 30
Washington Lawyer - July/August 2020 - 31
Washington Lawyer - July/August 2020 - Hamilton's Enduring Legacy feature
Washington Lawyer - July/August 2020 - 33
Washington Lawyer - July/August 2020 - 34
Washington Lawyer - July/August 2020 - 35
Washington Lawyer - July/August 2020 - 36
Washington Lawyer - July/August 2020 - Annual Report
Washington Lawyer - July/August 2020 - 38
Washington Lawyer - July/August 2020 - 39
Washington Lawyer - July/August 2020 - 40
Washington Lawyer - July/August 2020 - 41
Washington Lawyer - July/August 2020 - Taking the Stand
Washington Lawyer - July/August 2020 - The Learning Curve
Washington Lawyer - July/August 2020 - On Further Review
Washington Lawyer - July/August 2020 - 45
Washington Lawyer - July/August 2020 - Member Spotlight -
Washington Lawyer - July/August 2020 - 47
Washington Lawyer - July/August 2020 - Worth Reading
Washington Lawyer - July/August 2020 - 49
Washington Lawyer - July/August 2020 - Attorney Briefs
Washington Lawyer - July/August 2020 - Disciplinary Summaries
Washington Lawyer - July/August 2020 - Women's Suffrage special section
Washington Lawyer - July/August 2020 - 53
Washington Lawyer - July/August 2020 - Speaking of Ethics
Washington Lawyer - July/August 2020 - 55
Washington Lawyer - July/August 2020 - A Slice of Wry
Washington Lawyer - July/August 2020 - Cover3
Washington Lawyer - July/August 2020 - Cover4
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