John Silber, tough witness, R.I.P.

Freedom Watch
By HARVEY SILVERGLATE  |  October 2, 2012

John Silber, like anyone, had his faults. (I even sued him once, as part of a Massachusetts ACLU team, for trying to get rid of some progressive Boston University faculty members in violation of their academic freedom.) But in important ways, he represented a highly principled attempt to save higher education from lapsing into politically correct idiocy (a battle being lost on many college campuses).

Less well known, however, was the courage and integrity he showed in 1986 when federal prosecutors tried to get him to finger then-Boston Mayor Kevin White in a corruption investigation of City Hall. United States Attorney William Weld, intent on using the investigation to launch a run for the governorship, had just lost his best hope of coercing another witness to testify against White: Theodore Anzalone, represented by my then law partner Nancy Gertner and me, had just won acquittals in both of the criminal cases brought against Anzalone for bribery and money-laundering. Weld found himself without sufficient pressure to force Anzalone to tell the tale that prosecutors wanted to hear.

But the prosecutors had one more arrow. Upon announcing that he would not run for a then-unprecedented fifth mayoral term, a battered and bruised White left politics and assumed a life-tenured teaching post at BU. Weld's office concocted a theory that the post was payback for White's facilitating, while Mayor, the sale of the Commonwealth Armory to BU at a substantially below-market price. To flesh out this criminal scenario, Weld subpoenaed Silber to testify before a secret anti-corruption grand jury.

Most individuals in Silber's position, innocent or guilty, would invoke their constitutional Fifth Amendment privilege against self-incrimination, and refuse to testify on such a loaded subject without immunity from prosecution on the basis of their testimony. Normally, the prosecutor then asks a judge to impose immunity on the witness and then order him to testify.

Silber fooled the prosecutors. He appeared before the grand jury, where he was widely rumored to have refused to seek immunity (these rumors perhaps came from what he himself told colleagues, since the witness is the only person not bound by the grand jury secrecy rule). He instead freely answered the prosecutors' questions, vehemently denying that he and Kevin White entered into a corrupt deal. Word spread like wildfire throughout the legal community that Silber ripped the prosecutorial team a new asshole. (His lawyer, Boston's Bob Popeo, refused to verify or deny this scenario, citing grand-jury secrecy and the attorney-client privilege.) Silber exited the grand jury room with his head held high, having refused not only to incriminate his friend, but also having resisted the pressure (in the immortal phrase invented by Alan Dershowitz) "not only to sing, but also to compose" in order to mollify the prosecutors.

The prosecutors reached the end of their hunt for the great White. Silber had proved more than a match for their scare tactics.

Harvey Silverglate recounts the pursuit of Kevin White in his 2009 book Three Felonies a Day: How the Feds Target the Innocent.

Related: Human rights watch, The Big Hurt: Clench and release(1), Elena Kagan’s shaky record, More more >
  Topics: News Features , Kevin White, John Silber, Nancy Gertner,  More more >
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