What’s going to happen to Mayor Ed Lee?
That’s the big question after a series of news reports have suggested that the mayor was less-than truthful under oath in his statements to the Ethics Commission. If he actually lied on the stand, that would be considered perjury, which is a felony.
But the reality is that the mayor’s not going to jail. First of all the District Attorney’s Office would have to investigate and file charges -- and does anyone really think this DA, George Gascon, is going to subpoena Walter Wong and demand that he talk under oath about his interactions with Lee (who is a close friend)? I think Gascon ought to do it; there’s clear evidence that a crime may have been committed, and the public has a right to know about it, but I suspect that will never happen.
And even if the DA pushed, and Wong told the truth, and the truth contradicted the mayor, would a jury believe Wong over Lee?
It’s really hard to prove perjury. Maybe one of Lee’s staffers talked to Wong and the mayor wasn’t directly involved. Maybe the recollections of the two men have faded in the past few months. Maybe the mayor’s defense would be able to throw up enough chaff that nobody in the courtroom could figure it out.
So it’s not going to be about a criminal case against the mayor. But the revelations of what’s gone down here go far beyond any possible perjury indictment.
For starters, Ross Mirkarimi’s lawyers have every right and responsibility to demand that the Ethics Commission members hear from Debra Walker, Walter Wong, and -- I would argue -- every member of the Board of Supervisors. Here’s why:
The crux of Mirkarimi’s legal case at Ethics is that the mayor had no grounds to remove him from office -- and that Lee never gave Mirkarimi due process or a chance to explain himself. The way the suspended sheriff tells it, the mayor never asked for an explanation of what happened that New Year’s Eve, never tried to talk to Eliana Lopez -- never, in short, did any investigation into the incident before deciding the file misconduct charges (except for talking to Ivory Madison).
The way the mayor tells it, Mirkarimi refused to provide an explanation.
That distinction is critical, and the only basis for deciding what happened is for the judges -- the commissioners -- to use their best information and judgment about who’s telling the truth.
In other words, the mayor’s credibility is central to the entire case.
So if there’s any evidence that Lee lied about his discussions with Walter Wong or about whether he talked to any supervisors, then the commissioners would have the responsibility to consider that when evaluating the rest of his testimony. If you can’t believe everything he said, can you believe anything he said?
Some commissioners may argue that it’s not their business to determine if the mayor perjured himself, and on one level, that’s true -- Ed Lee isn’t on trial here. But his credibility either makes or breaks the case. So the panel needs to hear from witnesses who can address that question.
Then there’s the much larger, more disturbing possibility that the mayor sought to influence (or might have been in a position to influence) members of the Board of Supervisors, who will be sitting as the final judges of Mirkarimi’s fate.
There’s a reason that the City Attorney’s Office has advised board members not to talk about the case. They’re sitting in a judicial role, and they can’t legally fulfill that obligation if there’s any indication they’ve already made up their minds. And if the mayor has talked to any of them -- and there’s any indication at all that anything he said could be seen as seeking to influence their votes -- well, in a courtroom you’d call that jury tampering. It’s a little different in a political forum, but still: Any supervisor who had a conversation with the mayor will be under pressure to recuse himself or herself -- and every recusal helps Mirkarimi.
It doesn’t matter how many supervisors are in the room, in the country, recused or otherwise unable to vote -- the mayor still needs nine to remove the sheriff. Three recusals and the whole thing collapses.
That’s why all of this is so fascinating and potentially explosive.
Oh,and by the way: When Lee set this process in motion, he should have known that he'd be testifying under oath and that anything he said or did might come out. You'd think he'd have been a little better prepared.
So what's going to happen to Ed Lee? Legally, nothing. But he may have done serious damage to his own case.
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