Balance of Power: A Novel (23 page)

“G
OOD MORNING
, Y
OUR
H
ONOR
,” D
AVID
P
ENDLETON
said softly in the packed courtroom of the District Court for the District of Columbia. The judge could barely hear him and leaned forward as Pendleton spoke.

“Good morning, Your Honor,” said Jackson Gray, one of the senior litigators in the Department of Justice. “Jackson Gray, on behalf of the United States.” His round gold wire-rim glasses gave his large black face a look of intellectual intensity which was heightened by his closely cut beard. He glanced back at Molly, who sat quietly in the back of the courtroom.

“Good morning…” began the judge.

“Excuse me, Your Honor, but I think Mr. Gray misspoke,” interrupted Pendleton. “He said on behalf of the United States. I’m afraid in this case he is here on behalf of President Manchester,
not
the United States.”

“I am here on behalf of the United States,” said Gray, glancing at Pendleton.

“Good morning, gentlemen,” said Judge Konopka, the senior judge for the District Court and on senior status—semiretired. He had volunteered for this case, which none of the sitting judges wanted to handle.

Judge Konopka looked around the courtroom, which didn’t have room for one additional human being. “Ladies and gentlemen in the gallery,” Konopka said quietly, squelching even the light buzz of conversation. “The
courtroom is very crowded. This hearing is very important, and we all need to be able to hear. I am having difficulty due to the whispering and conversations in the back of the room.” He adjusted his rimless bifocals. “If anyone in the gallery utters a sound, the marshal will escort that person into the hallway.” He sternly scanned the journalists and political staffers in the gallery. He returned his gaze to the attorneys.

“Now, Mr. Gray, I believe this is your motion. I have read your application and supporting papers for a temporary restraining order, and your complaint for declaratory relief and a permanent injunction. It is filed on behalf of the President as an individual citizen, as well as on behalf of the President as the Chief of State and Head of the Executive Branch. Is that correct?”

“That is correct, Your Honor. I might add that service was effected in timely fashion and the Speaker of the House accepted service on behalf of himself and Congress—”

“Excuse my intervention, Your Honor,” said Pendleton quietly. “The Speaker of the House did not accept service for anyone. He was served by a courier yesterday morning. He was handed two copies of the complaint. That is the extent of his participation.”

“Thank you for that clarification, Counsel,” said Judge Konopka.

“Now, Mr. Gray, why this extraordinary step? Why an emergency application for a temporary restraining order against Congress? A defendant is normally allowed twenty days to respond.”

Pendleton sat down at the enormous table in the paneled courtroom. His closed briefcase rested on the floor. He had no papers in front of him. Jackson Gray had a notebook crammed full of cases that had been highlighted and tabulated. Gray was trim and tall, and nearing fifty. He was clearly nervous, but well in control of himself.

Gray continued, “I ask that the court take judicial notice of this morning’s newspaper and yesterday’s newspaper,
in which it was outlined that Congress has issued what it has called a Letter of Reprisal to a Navy battle group in the Java Sea. It is Congress’s purpose to usurp the authority given to the President in the Constitution as Commander in Chief, and order the Navy to attack certain people on an island of Indonesia, a country with which we are not at war. This is an intolerable situation which is clearly unconstitutional and must be stopped. The President has ordered the battle group out of the area, but as of this moment it is unknown whether that order will be obeyed. Although it is a remote possibility, the Navy battle group may choose to follow the Letter of Reprisal rather than a direct order of the Commander in Chief. Because of that possibility, and because of the stunning misuse of a very limited constitutional power by Congress, the President thought it necessary for this court to issue a restraining order and a declaration that the order is unconstitutional. Since the court has reviewed our papers, I will yield to the court for questions, if there are any.”

Judge Konopka looked down at the papers and flipped through a couple of pages. He then looked up at David Pendleton. “Counsel?”

Pendleton rose and adjusted his suit coat. He waited for ten seconds, allowing the tension to build, and then spoke. “May it please the court. This court cannot hear this matter today because there is an indispensable party not before the court.” Pendleton paused. Those behind Pendleton began to murmur, which caused a sharp look from Judge Konopka. Silence again descended on the courtroom. Pendleton continued, “Mr. Gray, on behalf of the Justice Department and the Attorney General, has come into this courtroom this morning and requested an order enjoining—prohibiting—Congress from issuing a Letter of Reprisal. That is impossible. The Letter of Reprisal has already been issued. He asks for a declaration that the Letter of Reprisal is unconstitutional. He may ask that, but it cannot be asked in the form of an injunction.
That too is impossible. Any decision on the constitutionality of an issue so deep, so full of history and implications, should be made only after Congress is given an opportunity to respond. No one could argue otherwise.” Pendleton swallowed and began again in the same soft yet riveting voice.

“Most fundamental though, Your Honor, is the failure to join the party that the Attorney General and the President truly want to enjoin. The indispensable party to this case is the United States Navy. It is the Navy, according to Mr. Gray, whose acts may be contrary to the law. It is the Navy that has its battle group poised to respond to the murder of Americans. It is the Navy that will either regard, or disregard, the Letter of Reprisal issued directly out of the words of the United States Constitution Article one, Section eight. It is therefore the Navy that must be before this court.”

Pendleton paused again as there was the indrawing of breath in the gallery. He looked around, then continued. “As far as I can see, the United States Navy is not before this court, has not been named in the action, and has not been served with notice of this hearing. Moreover, this points out the fundamental conflict of interest that exists for the Attorney General to represent one branch of government against another.” He glanced over at Gray and spoke to the judge while looking at Gray.

“What the Attorney General is truly here to do, Your Honor, is to enjoin the Navy, which by definition is part of the
Executive
Branch of this government, part of the government under the President of the United States, which is the branch bringing this case. They do not need an injunction to stop the Navy; they need only an order from the President. It is my understanding that such an order has been issued. It is therefore up to the Navy whether it will follow the order of the President, who does not wish to act in response to an attack on American citizens, or the constitutionally issued Letter of Reprisal from the Representatives of the American People.” The
back of the room erupted and several journalists dashed out of the room with their pads in their hands.

Gray jumped up at counsel table. “Judge, may I respond to th—”

Judge Konopka put up his hand. “Mr. Gray, I gave you your chance to speak, let’s hear Mr. Pendleton out. I will give you a chance to respond.”

Molly felt a sudden wave of panic as she watched Pendleton dismantle her plan. Judge Konopka
had
to issue the restraining order, or a catastrophe would result. It had to be stopped now before people were killed.

Pendleton returned his gaze to Judge Konopka and waited for the noise to subside. “It is clear, Your Honor, that Mr. Gray has a conflict of interest. He is here asking for an injunction by one part of the Executive Branch against another part of the Executive Branch. Mr. Gray has such a conflict of interest that he cannot possibly be here before this court asking for the relief requested. Thank you for your attention, Judge Konopka.”

With that, Pendleton sat down and folded his hands on the table.

Gray sprang up, anxious to speak. Judge Konopka nodded to him. “Thank you, Your Honor. I am shocked by the bold approach of Congress to dodge this critical question of constitutionality. They attempt to throw this over onto the Navy, when in fact it is they who have issued this unconstitutional Letter. They attempt to use it to intrude in the relationship between the Commander in Chief and the Navy by ordering the Navy to do something that the Navy has been specifically prohibited from doing. This argument is a pure red herring. The court has the authority, and it must act. If this court does not act, then the events after the Letter of Reprisal was issued may spin out of control. The implications for the United States military, the foreign policy of the United States, the authority of the President, are nearly infinite, and the very foundation of the United States Constitution will be in jeopardy.” Gray paused and stared at the judge. “You must
act, Your Honor, and you must act
now
. I have prepared a proposed order enjoining Congress from issuing this Letter of Reprisal, and declaring it unconstitutional, pending further briefing and the determination on the permanent injunction. I would like to submit it to the court at this time.” Gray passed a copy of the document to David Pendleton, who put it on the table unread, and handed the original to the court clerk, who walked it to the judge. The judge looked at it and put it in front of him.

“Anything else, Counsel?” the judge said.

“Your Honor,” Gray continued, “I have a lot more to say about all of these issues, and am prepared to argue the merits of the declaratory relief action.”

Pendleton rose slowly. “Your Honor, I am not prepared to argue the merits of this case since Congress received service of this case only yesterday, although I have done some preliminary research and briefing on the merits. I am confident that Congress will prevail and that this act will be clearly constitutional because of the very clear language of the document itself. However, I am not prepared at this point to argue this very complex matter on twenty-four hours’ notice.”

“Mr. Pendleton,” Judge Konopka said quietly, “is it your position that Congress took the step it did, by issuing this Letter of Reprisal, without doing the legal research necessary to justify it? And have they not shared that research with you? Can they issue it and then have you come before this court and claim not to be ready to answer for it?” Judge Konopka paused, then turned toward Gray. “Mr. Gray, I have read all of your papers, which I believe make most of your arguments, do they not?”

“They do indeed, Your Honor. In addition, though, I have read more cases and believe that I can provide additional support for our position, but the gist of our position is certainly in our motion.”

“Very well. Thank you, gentlemen,” said Judge Konopka as he rose.

Gray addressed him with a quizzical look on his face.
“Your Honor, if I might, it is important that we hear something immediately. I don’t mean to imply that the court is inclined one direction or another, but if the court is not inclined to grant this temporary restraining order, it is my intention to file an emergency appeal under section 1292(a)(1) to the Circuit Court for the District of Columbia this morning and ask to suspend the usual timing requirements under Rule 2. Might I ask the court for a ruling within an hour?”

Judge Konopka looked at Pendleton, who said nothing.

“This is a very serious matter, Mr. Gray. I find it remarkable that you expect a District Court judge who received these voluminous motion papers yesterday and opposition this morning to have read through them and be prepared to issue an order on an issue of enormous constitutional significance in an hour. Do you really expect me to do that?”

Gray took a deep breath. “Yes, Your Honor, I must insist.”

Konopka looked at both counsel and the gallery, which was on the edge of its seat, and stood to leave the courtroom.

“All rise,” the bailiff cried.

As Molly stood, she watched Gray for some indication of what he expected. She was reassured. Gray looked confident as he stood next to Pendleton and fought back a smile.

Admiral Billings looked at his staff as he drank his coffee. Dillon sat at the other end of the table. The admiral looked at his aide across the room and called to him, “Drano, get Lieutenant Commander Walker up here, ASAP. I want to get an answer back to this message right now. Mr. Dillon, I would like you here during the discussion in case you have anything to add.”

Dillon raised his eyebrows. “Yes, sir.”

The phone rang and the aide picked it up. “Admiral,
it’s CAG. He says he must speak to you—it’s urgent.” The admiral walked to the coffee table. His aide handed him the phone.

“Admiral Billings,” he said and then listened. The rest of the officers in the room watched his face as it changed from its usual immovability to concern and then anger.