Fasano shrugged. "We both have problems," he acknowledged. "But how bad they are depends on how big an issue you choose to make it." Fasano's words took on a quiet urgency. "Discovery in the Costello case has been sealed. There won't be any more dramatic revelations—the President and First Lady will have to carry this one on their backs.
"People forget, and memories fade. Three months from now, if CNN is still airing that tape of the murders, the two or three people watching will just be numb. Even now, most people instinctively know that suing Lexington isn't right—let alone suing the SSA. But the SSA will never forget a senator who opposed it." Fasano spread his hands in a gesture of entreaty. "I'm here to offer you a way out on this. On this issue, a Senate which is unpredictable is bound to be unpleasant."
This was right, Hampton knew. Already there was a stirring within his caucus, an apprehensive restiveness among those who felt endangered; Vic Coletti, he feared, was the harbinger of things to come. With genuine curiosity, Hampton asked, "What 'way out' do you have in mind?"
"For you to lie back," Fasano answered briskly. "On tort reform, your only means of raising the stakes on gun immunity—making life hard for both of us—is to offer an amendment stripping immunity out of the bill, and force senators to vote on that alone. But you'll never get enough votes to pass it, and any swing Democrat who votes with you may well go down in flames.
"Tell Kilcannon that. Then let the entire Civil Justice Reform Act come up for a vote, and pass—which it will. If Kilcannon wants to veto it, he can. Then he can try to get the thirty-four votes necessary to uphold a veto, and you can decide whether to help him."
"You've clearly thought this through," Hampton answered with a smile. "So doubtless you've considered that, with a mere forty-one votes, I can mount a filibuster and keep the entire bill from ever coming to a vote."
"You could," Fasano retorted. "But you won't. Because you'll lose. Despite the no doubt considerable pressure from the lobby for the plaintiff's lawyers, not enough of your people will want to oppose the most sweeping reform of abusive lawsuits passed in a generation—even if it contains a gun immunity provision. And none of mine will. Including Cassie Rollins."
"Which," Hampton replied, "is why you want me to help you send Kilcannon a tort reform bill with gun immunity still in it. You think you can hold your people, and peel off enough of mine to override the President's veto."
Fasano gave an affirming nod. "Kilcannon loses, I win—and more of your vulnerable Democrats survive. Giving you a fighting chance to take my place if the Democrats pick up seats in the next election. But if you choose to go with Kilcannon—at least in my humble opinion—you've got no chance at all."
Listening, Hampton better understood the skill and guile with which Fasano had taken the SSA's incendiary demands, cobbled together a tort reform coalition and, somehow, managed to co-opt Chad Palmer: his proposal encapsulated Hampton's worst fears and fondest hopes, and suggested a path which, in prudence, Hampton could not fault. Except that, in prudence, Hampton need not yet choose.
"You've given me food for thought," he answered. "Now let me give you some. Because if I were you, and Kerry Kilcannon were coming after me, I'd be a whole lot more worried than you pretend to be." Pausing, Hampton adopted his most affable tone. "How vividly I remember the day when Mac Gage, your sainted predecessor, invited me to his office and urged me not to help the President confirm Caroline Masters. With great reluctance, I turned him down. The next thing I knew Masters was Chief Justice and Mac wasn't leader anymore. And here you are, giving me more good reasons not to help the President with this one.
"Kilcannon looks at the same electoral map you do, and sees the same demographics. But he figures that you can't win—at least in the long run—by pandering to fundamentalists and gun nuts, any more than the Catholic Church could hold back Galileo." Hampton summoned an ironic smile. "The President may be grieving. But I also think he's sitting there in the White House, thinking, 'Please, Frank—please don't stop now.
" 'Please stamp out my sister-in-law's right to sue.
" 'Please spit on a six-year-old girl's grave.
" 'Please set me up for the next slaughter on a playground, or in a classroom, or at a day-care center. Please, Frank, do whatever the SSA wants you to.' " Hampton's tone became crisp. "So ask yourself, Frank, which one of you is right.
"But you have asked yourself, of course. And you're not sure at all. All you know for sure is that you're stuck with the SSA because they've got your party by the balls."
Throughout this sardonic monologue, Hampton observed, Fasano listened with admirable calm and an expression of mild interest. Only a slight edge in his voice betrayed any tension. "Am I to take it, Chuck, that you're keeping your options open?"
Hampton nodded. "For both our sakes," he answered. "There may come a time when you want me to get you out of this."
TWO
Three weeks later, Sarah Dash stood in a cavernous warehouse outside Hartford, Connecticut, watching a team of paralegals comb through reams of paper crammed inside rows of metal filing cabinets.
They would have to read through every document. Sarah was certain that Lexington had provided the documents because their contents were as innocuous as their volume was oppressive. But it was always possible that Lexington had tucked amidst the dross that single, damning memo which would prove Mary's case against it and, perhaps, against the SSA as well. And so, at great expense, this work went on, running down the clock on plaintiff's discovery.
These last three weeks, Sarah acknowledged, had proved to be the nightmare which Lenihan envisioned. John Nolan had deployed an array of tactics to bring plaintiff's discovery to a standstill: producing "document bricks," hundreds of cardboard boxes so crammed with irrelevant papers that the paralegals had been forced to purchase box cutters in order to remove them; scheduling meaningless depositions, which Lenihan's associates were required to attend; serving hundreds of pages of written questions for which still more associates were required to draft responses. All of this, Sarah knew, served two obvious goals: first, to make the suit so costly and so fruitless that Lenihan's firm might prefer to settle than pursue it; second, to assure that the case went nowhere—let alone to trial—before Senator Fasano and Speaker Jencks had passed a law to extinguish it. A third goal was more subtle: to make every day sheer misery for Lenihan and Sarah.
This day, spent in the squalor of an ill-lit warehouse, was Nolan's ultimate revenge.
* * *
Sarah's trip had been prefigured five days earlier, in a discovery hearing before Judge Gardner Bond.
Solemnly, Bond read aloud from the first report by the Special Discovery Master, Professor Ian Blaisdell of the Stanford Law School: " 'The Special Master,' " Bond intoned, " 'has reviewed documents produced by Lexington and the SSA regarding their communications with each other, and with other manufacturers.
" 'At this time, there are no documents which suggest that the SSA conspired to keep Lexington from reaching an agreement with the Kilcannon administration; that the SSA exercised control over Lexington or any other manufacturers; or that it played a role in directing Lexington's affairs. Therefore the Special Master has not provided plaintiff's counsel with any of the documents reviewed.' "
Robert Lenihan stood. "Our problem, Your Honor, is not with the Special Master. But defense counsel are the sole arbiters of what documents he sees."
Bond stiffened. "Are you suggesting that Mr. Nolan or Mr. Fancher are acting in bad faith?"
"What I'm suggesting," Lenihan answered, "is a systematic effort to bring this case to a grinding halt."
Swiftly, Sarah glanced at the benches, filled with reporters; with discovery sealed, Lenihan's only chance to score points in the media was to document defense obstruction. "Our motion to compel," Lenihan continued, "is a litany of abuses: delaying production; forcing us to depose witnesses without the relevant documents; scheduling irrelevant depositions to consume our time; continuing to insist th
at Mr. Callister's time is more valuable than that of the President and First Lady . . ."
"Your Honor," Nolan interposed in his most conciliatory manner, "might I make a proposal?
"If it would help dampen this controversy, we would be happy to give plaintiff's counsel direct access to all our files, without the delay caused by our current practice of culling and copying them for counsels' inspection. In short, we'll simply open up our records."
With an indignation born of deep frustration, Lenihan retorted, "That's even more fraudulent than what they're doing now. They'll drown us in garbage, with no conceivable relationship to our case . . ."
"You and Ms. Dash," Bond snapped, "were the ones in such a hurry. It was you who asked for an injunction. It was you who expanded the case to include the esoteric antitrust and public nuisance theories. It was you who served massive document demands, imposing massive burdens on the defendants to produce them. And now you're casting aspersions on their manner of production, no matter what it is." Bond lowered his voice. "Nothing they do seems to please you, counsel. It's time for you to live with the choices you made—without complaint."
Which was how Sarah found herself in a warehouse, as another day slipped away from them like sand in an hourglass.
* * *
The next morning, she flew to San Francisco to meet with Lenihan.
They settled on lunch at Farallon. Lenihan ate in a cold fury, part of it directed at her insistence on accelerating discovery and naming the SSA. She could not blame him. Nolan's form of Chinese water torture, obstructing discovery while consuming the resources of Lenihan's firm, was driving them further apart.
"It's not over," Sarah said at last.
In obvious disgust, Lenihan put down his fork. "That's what I'm afraid of. You don't have to be a prophet to see that we'll never get to trial before they pass that fucking law. And even if they don't pass it, we'll never get the evidence we need to prove our case." With an accusatory stare, he finished in a tone as acidic as Judge Bond's, "Assuming, as to your case, that the evidence exists."
Unflinching, Sarah took her time to answer. "You've made your point, Bob. A hundred times. And the only winner is John Nolan.
"We can sit here and whine. Or we can suck it up, and try to figure out how to get what we need . . ."
"What we need," Lenihan retorted, "is a fucking miracle. Or, at the least, a whistleblower. Someone inside Lexington or the SSA who despises what they're doing."
Sarah nodded. "That's why I asked them for a list of former employees—I was hoping to find a malcontent, or someone who left in a dispute. You already know what happened: Nolan and Fancher refused to comply, and Bond refused to make them."
Lenihan stared at the remnants of his seared ahi tuna. "Fuck Bond," he said at length. "We'll set up a web site asking for information about Lexington and the SSA, and publicize it in Washington and Hartford. To find ex-employees, we'll hire an investigator.
"The formal discovery process is all that Bond controls. Anything we get outside it, we can feed to the press."
Sarah pondered this. "If anything's traced back to us," she cautioned, "Bond will take it out on us."
"As long as we didn't violate his order, how could things be worse?" Lenihan's jaw set. "We need a mole, and we need publicity. Simple as that."
Sarah toyed with her soup spoon. "Look at Bresler, though. It's hard to imagine what the SSA would do to an employee who betrayed it. Or even what Lexington would do."
Lenihan gave a somewhat melancholy smile. "How many times," he observed, "have I seen a whistleblower who thinks he understands the risks.
"They never do. They never imagine how bad it will be—divorce, bankruptcy, all the friends who turn their backs on them, the ruin of a whole career. The last whistleblower I had killed himself in the driveway of his ex-wife's home."
And yet, Sarah thought, Lenihan was prepared to ferret out another one. With a shrug, he finished, "But what can we do? By tomorrow, we'll have our invitation on the net."
THREE
On the same day, also for the third consecutive week, Senator Chuck Hampton took the floor of the Senate during morning business, and eulogized a victim of gun violence who had died in the week before.
He had begun this ritual on the morning after his meeting with Frank Fasano. Hampton's calculus was simple—the best way to corner the Republicans, including on gun immunity, was to remind the press and public that Fasano had not yet scheduled a vote on the President's gun bill. And his choice of victims from Lara Kilcannon's web site was artful: invariably they were mothers, fathers, or children; in each case the murderer—as with John Bowden—had acquired the gun without a background check; each murderer, because of a criminal conviction or record of domestic violence, would have failed the universal background check required by the President's bill. At the end of his statement, Hampton totalled the number of people killed with guns since the moment Lara's family was murdered. On this morning, after fifty-one days, the toll of death stood at four thousand one hundred and twenty nine—personified by a four-year-old boy killed by his abusive father in a murder-suicide which had also claimed his mother and two sisters.
"If the President's bill were law," Hampton concluded, "Scotty Morris would be dressing for preschool as we speak. How, I would ask, can any of us even look his picture in the eye?"
With that, Hampton yielded the floor, glancing at Frank Fasano. As in the last three weeks, the Majority Leader was impassive in the face of Hampton's daily torment. For the moment, Fasano had little choice: Hampton had stalled the Civil Justice Reform Act by threatening to introduce poison pill amendments—deleting the gun immunity provision, or adding the entirety of Kilcannon's gun bill—which a handful of moderate Republicans like Cassie Rollins, fearing the effects of the First Lady's tour and her confrontation with the Commerce Committee, had no current appetite to vote on. But centrist Democrats, as Hampton well understood, were similarly beset—some fearful of the SSA; others sympathetic to tort reform; still others waiting to gauge the longer-term effects of the Costello murders on the public temper. And so, beneath the surface, a core group of senators waited and watched, as did Fasano, waiting for his moment, and Hampton, watching Fasano.
By tomorrow, Hampton knew, another eighty or so Americans would have died.
* * *
"My people need cover," Fasano told Charles Dane that afternoon. "Especially the moderates. As I've been telling you for weeks."
Once more they met in Kelsey Landon's office. A benign and calming presence, Landon sat in an antique wing chair, Dane and Fasano in matching chairs of polished mahogany. "Whatever you propose," Dane answered, "should be consistent with our message—that the problem isn't guns, it's the violence and permissiveness in our popular culture."
"Scotty Morris," Fasano countered sardonically, "wasn't murdered with a VCR. I don't know about your culture, Charles. But in mine Chuck Hampton's scoring points."
"So take the moral offensive, for Godsakes. Even Lara Kilcannon admits that our movies, TV and pop music are rotten to the core. You should treat yourself to a few gangster rap lyrics about beating women and killing cops . . ."
"I despise that trash," Fasano cut in. "Bernadette and I won't let our kids get near it. So now that we agree on that, let's talk about the U.S. Senate."
Brightly, Landon interjected, "I believe that Charles has a proposal, Frank."
"A law," Dane said promptly. "Establishing a commission to study the effect of violence on American youth; requiring V-chips in all TVs so parents can control what children are watching; and setting up a rating system for TV programs, compact discs, music videos, and movie rentals for children below eighteen. How can our society glamorize violence, Frank—even use it to thrill our young people until it's second nature—and then blame America's gun companies for the sickness in our society?"
At this, Fasano began to laugh. "Maybe because some of the gun companies market their own videos showing kids how to use their guns.
" Turning to Landon, he said, "Skip the fact that this is eyewash, Kelsey. Tell Charles about the entertainment and communications lobby, and why the Senate's collective piety will never be enacted into law."
As well-paid go-between, Landon was too discreet to share Fasano's amusement. "What is it you need, Frank?"
"Something—at a minimum—that addresses the so-called gun-show loophole."
For a brief moment, Dane seemed to reflect. "Then let me suggest this," he answered, and Fasano knew at once that his opening proposal was a ploy.
" 'Gun show,' " Dane continued, "is an elastic term. We can redefine it to exclude outdoors shows, hunting and fishing shows, and other shows where guns just happen to be sold . . ."
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