Saturday, August 15, 2015

The Duffy Senate Scandal: Nigel Wright tells the truth and sinks Harper

Things have veered sharply off course for the most controlling politician Canada has had for many decades. What was to be a tightly controlled and swiftly administered exercise in damage control, has turned into a nightmarish exposure party that is guaranteed to sink Stephen Harper’s government in the coming elections.

The Feint & The Hand Grenade:

What went wrong?

Two things: a highly skilled barrister who uses The Feint and The Hand Grenade tactics in a masterful way during his cross examination of state witnesses, and a former chief of staff who wrote many emails, with copies to a Who’s Who of senior Conservative Party advisors in the Prime Minister’s Office, and the Senate.

And a touch of hubris:

Add to that explosive mix a prime minister who has kept himself insulated from the rough and tough reality of real life for so long that he has fallen into a common trap: a belief in his ability to manage everything, and a belief in the sound bites his government creates in lieu of real dialogue with Canadians.

With hindsight, it is easy enough to see the elements of an ancient Greek tragedy gradually taking shape: Narcissus bending over the water, captivated by his own image; the collision between a man determined to bend fate to his wishes but finding that fate is inescapable; the consternation when what is sown, is reaped.

The Big Question:

Duffy’s counsel, Donald Bayne, has used The Feint to great effect in his cross examination of Nigel Wright. The chattering classes were fixated on The Big Question, which they falsely believe to be What did the Prime Minister know and When did he Know it? Wright came into the court determined to answer this question, if it was asked, and to state that the prime minister did not know about his “gift” of $90,000 to Duffy. The prime minister’s talking points for months had included three themes: (i) the prime minister did not know about the gift until March 15; (ii) the RCMP had not found any evidence that the prime minister knew of the gift; and (iii) the prime minister had taken steps timeously against the only two people responsible for the mess, Wright and Duffy.

Bayne feinted with The Big Question, edging up to it in his cross examination, getting Wright to answer it. But all the time Bayne was working something else: establishing just how many people in very senior positions were involved in a conspiracy to force Duffy to do things they wanted him to do, in order to make the problem go away.

In  his questioning, Bayne used the second effective tactic (which he will use with other witnesses, included a clutch of senators and current senior advisors to the prime minister, when their turn comes in the witness box): the Hand Grenade.

Watch for it; it is very simple.

Bayne asks questions about something sensitive, elicits responses, then lets it rest, while murmuring that he will come back to it later. The witness is left wondering what will come next, when Bayne returns to that topic. This unsettles the witness – it is as if the lawyer has placed a hand grenade in front of the witness, carefully pulled the pin out, then wrapped a thin rubber band around the grenade to prevent it exploding. Then the lawyer leaves the room, figuratively, and the hapless witness stands staring at the thin rubber band and the dangerous hand grenade, wondering when it will go off.

The Big Question for Bayne is not the one the chattering classes think it is. It is something different, but far more relevant to the narrative Bayne is constructing as part of the defence to the charges. What Bayne is working on is to replace the crown’s case that Duffy accepted a bribe in return for an advantage,  with a more plausible story: that Duffy was the victim of duress  by senior officers and senators, who exerted pressure on him to do something he did not want to do.

And to do this, he has walked Wright through page after page of the four hundred plus pages of emails the crown provided to the court, and will walk him through more next week, before starting the same process with every other state witness.

And, to me, that walk-through to date has been very persuasive: Wright’s emails and the emails of others in the PMO and senate, have had many clear statements of Duffy balking and then being pressurized to do something he just did not want to do.

The Big Driver:

The political question the prime minister has to answer in this election campaign is really this: Why did he knowingly participate and encourage his staff and senators to create and implement a plan to shut down an audit?
Andrew Coyne

This is best explained by Andrew Coyne’s article in the National Post:

The secret payment to a sitting legislator by the prime minister’s former chief of staff has understandably attracted most of the attention: it is, after all, at the heart of the fraud and breach of trust case against Duffy. The attempt to tamper with the audit, if it is mentioned at all, is treated as a secondary matter. But it is clear from the emails that the effort to pay off Duffy’s expenses was driven as much by the audit as by any other concern. And that understanding helps to explain one of the central mysteries of the case.

A finding by the auditors that Duffy’s house in Ottawa, where he had lived for many years, was not his “secondary” residence, as he had claimed, would have greatly complicated the storyline Wright & Co. were hoping to construct for him.

If, on the other hand, Duffy were to pre-emptively pay back the expenses, then the matter would surely become moot. 

There would be no need for Deloitte & Touche to make a finding on the residency issue, as there would no longer be any claim for them to adjudicate. Or so it was to be suggested to them, via the Conservatives’ contacts there.

The plan to pay off Duffy’s expenses, then, first by the Conservative Party and then, when the full amount of his expense claims were known, by Wright, was not just an attempt to keep Duffy quiescent, but also, indirectly, the auditors — and through them to influence the Senate committee, and the public at large.

And Andrew Coyne has also ably summarized the serious ethical issues at stake in this dismal development, in his other article, found here. Those issues are what are important in this sorry saga.

The klutz factor:

But why the wish to make the audit go away?

I believe the most plausible explanation is that if the legal right of one or two or more sitting Conservative senators to represent the provinces they claim to represent, was questioned by the audit, then the public will want to know who was responsible for this taking place. And this lands on the doorstep of the prime minister, who would look like a klutz for appointing a senator without taking steps beforehand to make sure the appointment was legal.

Impact on Harper:

The impact on Harper of the developments in the court room has been devastating.
The Big Question

You can see this when you compare his physical behavior when questioned about the Duffy case with his behaviour in Parliament.

In Parliament, he has been able to avoid answering questions by giving carefully crafted media line (sound bite) non-answers to questions during question period. His raucous cheering squad of MPs have helped, jumping to their feet to cheer every evasion.

And before and during the campaign, Harper has insulated himself by voluntarily stepping into a cocoon, keeping away from meddlesome crowds and questions.

Unfortunately, he is being forced by the campaign to answer questions, and his physical distress is apparent.

When one journalist started a question to Harper with the words Good to Go (which will be Harper’s contribution to Canadian political history), Harper visibly flinched, with a sharp, shuddering, painful intake of breath, before forcing himself to breathe and then parrot his media line answer.

And his eyes when answering Duffy questions tell the story of a man under intense pressure, probably conscious that every day of the Duffy trial means his chances of remaining prime minister are diminished.

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