Tilting at Windmills

Prior to joining the Office of the Solicitor General in May 1972, at the age of 33, I had enjoyed a variety of experiences as a lawyer--D.C. Circuit law clerk, Counsel to the Governor of the Virgin Islands, associate in a law firm practicing principally before the now defunct Civil Aeronautics Board--but had argued only two appeals, each time as a court-appointed lawyer in a criminal case. Number three was to be a horse of a different color. In order to reduce the pressure a new lawyer might feel, the practice in the SG's Office was to assign as a first argument a case of comparatively modest importance that was, regardless of the quality of the advocates' oral arguments, either a sure winner or a sure loser. There could be little doubt in which category my maiden effort fell. While the Court's opinion characterized the issue in Bronston v. United States as narrow but important, (1) there was no conflict in the circuits on the issue, which then as now was the main basis for granting review; nor was the issue of such nationwide significance as to require authoritative resolution by the Supreme Court. But in a few cases each Term, the Court would grant review because the ruling below simply seemed intolerably wrong. This appeared to be such a case. Bronston was a perjury prosecution. The defendant was the principal of a movie production company that had filed for bankruptcy under Chapter XI, and the allegedly perjurious testimony was given in the course of the following examination by creditors: Do you have any bank accounts in Swiss banks, Mr. Bronston? No, sir. Have you ever? The company had an account there for about six months, in Zurich. The second answer was literally true, but unresponsive to the question, which concerned Bronston's personal bank accounts. What Bronston neglected to say was that he had personally had a very substantial account in a Swiss bank for over five years. He was prosecuted for perjury on the theory that, though perhaps literally true, his statement was false by implication and intended to mislead. In affirming the conviction, a divided court of appeals held that [f]or the purposes of [the perjury statute] an answer containing half of the troth which also constitutes a lie by negative implication, when the answer is intentionally given in place of the responsive answer called for by a proper question, is perjury. (2) When one of my first assignments as a rookie in the SG's Office was the merits brief in the Bronston case, it was clear that my first-argument destiny was sealed. In the process of writing the brief--defending the basic rationale of the court of appeals while at the same time attempting to articulate a limiting principle that would provide a basis for affirmance yet would not vastly overextend the reach of the perjury statute--I fell prey to the lawyer's common tendency to come to believe that the position he or she is advancing has considerable merit and could be embraced by a reasonable jurist. Indeed, in my most private moments I actually told myself that I might, just might, pull it off and somehow win this most unpromising specimen of a case. When I was being more realistic, the question was whether I could get any votes at all. By the time I was formally assigned the Bronston argument, I had performed the first essential act of the government Supreme Court advocate--acquiring my argument outfit. Then as now, male counsel representing the government in the Supreme Court (and there were few women assigned that role in those days) were required to wear a morning suit with striped pants, a vest, and a silver-colored tie. In my youth, before I gained a fuller appreciation for the value of tradition and ritual, I thought this a silly practice; I showed my rebellion the only way I could: buying used trousers for $5.00 and a used coat for $25.00. I did not buy a vest, however, but borrowed one from a colleague in the Office. …