Here I’ve been deluding myself into thinking that my best and highest use is as a public servant. I thought I was a good prosecutor and professor, and a decent legal analyst. It turns out, the chickens have known my best and highest use all along. I’m a really, really good perch for baby chicks.
I learned this because we’ve been taking the chicks, pictured above, out to the coop to hang out with the big chickens first thing in the morning and bringing them back inside after dinner. They have their own enclosure in our big covered run, and even though they can fly in and out of it, they always go back inside. They like being together and seem unhappy when they aren’t. They are adorable and well-behaved.
The big chickens still aren’t interested in them. I’d really hoped one of them would take on the role of adoptive mom. But it’s not happening. So, every morning and every night, I go out there with a box—one of those big ones that hold reams of printer paper. It’s my chick-taxi, and they know what it means when they see it in the morning. They’re happy to hop in and go for a ride.
That was how it worked until tonight. I went out to bring them in, and partway back to the house, they started flying out. I guess I should be happy it wasn’t a disaster—you can imagine four chicks flying everywhere. Instead, they all flew straight at me; my hands, my arms, my shoulders, even the top of my head. Joyce, the human perch. My youngest son, who’d gone outside with me, was too busy laughing to be much help, but at least he managed to get some video. For a minute, I was afraid it was going to turn into the poultry version of the movie The Birds.
But no, it turned out that while they refused to go back into the box—they kept flying out when we tried to put them back in—they were perfectly happy to stay perched on my arms for the walk back up to the house. They seemed very proud of themselves.
There’s a lot going on in Trump news today, but I’m glad I had that moment with the chicks. In the news today, we learned that Rudy Giuliani went in for a proffer session with prosecutors in the special counsel’s office, although it’s not entirely clear yet whether that was his idea or theirs and whether anything came of it. It’s worth contemplating the possibilities, though.
A proffer session is an opportunity for a witness or subject of an investigation to come in and tell prosecutors what they would testify to if subpoenaed, without risk that prosecutors will use their own testimony against them, so long as they tell the truth. It’s a standard procedure prosecutors across the country use every day to move their cases forward. The initial outreach can be made either by prosecutors to the witness/subject, or by the witness/subject’s lawyers to the prosecution. So who initiated the proffer session here? It could be prosecutors, wanting Giuliani’s testimony. It could be Giuliani, knowing he’s about to be charged and wanting to give prosecutors a reason either to not indict or to offer him a good deal with lesser charges and a lighter sentence in exchange for cooperation.
Either way, the process is the same. Let’s assume for the moment prosecutors are interested in hearing his testimony. So far, let’s say, he’s been declining to provide them with information, citing his Fifth Amendment privilege. So prosecutors give him a letter, often called a Kastigar letter after the court decision that approved the use of this approach. It’s an agreement that a person can come in and tell prosecutors what they could testify to without risk their direct testimony will be used against them. So if you are, for instance, the chief target/former president’s lawyer and a subject of the investigation yourself, in a proffer session, you can share information that isn’t covered by the attorney–client relationship (or that is if a judge orders the privilege pierced because of something like the crime-fraud exception). The process gives prosecutors an opportunity they wouldn’t otherwise have to decide if it’s worth giving a witness a deal. Proffer sessions are often called “queen for a day” agreements because the witness can share information without fearing their own testimony will be used against them.
There is still some risk to the witness, because of exceptions that permit prosecutors to use information they obtain in certain ways and circumstances. The Kastigar letter agreement between the prosecution and the witness permits prosecutors to make derivative use of information obtained during the session—they can follow up any investigative leads and use evidence that they obtain independently. And if the witness lies, prosecutors can use that against them. But for a witness who wants to tell the truth, the process offers a real advantage. It gives them a unique opportunity to convince prosecutors they shouldn’t be charged or, in a case where they have significant criminal exposure, that the information they can testify to merits a deal that lets them avoid prosecution entirely, or more likely, reduces the charges and sentence they may face. If prosecutors invited Giuliani to meet with them, it’s possible there could be a cooperation agreement and plea deal in the works.
It’s also possible that Giuliani’s lawyers sought out this opportunity for him to speak with prosecutors. He could have information he doesn’t believe they have access to that he wants to share in hopes of cutting a deal. The timing here is interesting because Giuliani is also at risk of being indicted by Fani Willis in Georgia as soon as the end of July. Giuliani might believe he has information that is so important for prosecutors in both cases that he can persuade them to give him a global deal that covers both cases if he’s willing to come clean.
Although much of the focus has centered on information Giuliani has about Trump, it’s also possible that he has information that could help prosecutors build a case against someone else in Trump’s inner circle, which they could then use as leverage to get that person to cooperate against others, possibly including Trump. We don’t know exactly what is transpiring here or whether it will result in Giuliani testifying for the government. Despite our unsatisfied curiosity, that lack of information while the investigation is ongoing is a good thing.
It means that prosecutors are doing their job, putting together their case in secrecy and protecting the rights of all involved. What we do know is coming from witnesses, like Giuliani, and their lawyers. They are free to speak publicly. But the professionals in the special counsel’s office are doing their jobs, as required, out of sight, and giving every indication that they are on track to make decisions for the right reasons, in the right way, and that they are committed to doing justice not to playing politics.
That is no small thing. A key democratic institution, the Justice Department, is functioning the way it’s supposed to. This week, the Supreme Court refused to endorse a cockamamie theory that would have permitted Republican legislative supermajorities to legally steal elections. Yes, Trump is still here and Ron DeSantis is nipping at his heels. There’s a lot to be concerned about, a lot of important work to do if this country is going to be restored. Voter suppression has not miraculously ended in this country; in fact, even after the Supreme Court ordered Alabama to draw new maps that give Black voters a voice, the legislature seems intent on drawing new maps that don’t. But it’s reassuring to see that we are making some progress and that are institutions have the capacity to be resilient. It gives me confidence that we can commit to working on the issues we are sure to face in the next couple of years, and come up with the right answers.
The sense that justice is coming for Trump means that there is time to enjoy the sunset and let baby chicks stretch out on your arms. Sometimes I get so wrapped up in the seriousness of the moment that I forget to do this, but in many ways, it is my best and highest use, along with being a wife, a mom, a daughter, a good neighbor, a friend. We all need the chickens to remind us of that sometimes. I’m grateful for the reminder I got tonight.
We’re in this together,
Joyce
Best & Highest Use