By Bruce Alpert, New Orleans Times-Picayune, April 7, 2008

7 Apr 2008 // An attorney who has represented Sen. David Vitter, R-La., told a federal judge Friday that a client of his who was subpoenaed by the defense to testify in the so-called D.C. Madam case would assert his Fifth Amendment privilege against self-incrimination if the court insists he appear as a witness.

The attorney, Henry Asbill, did not name his client in his brief appearance Friday before trial Judge James Robertson in Washington, D.C., District Court.

After his appearance, he said he was "not commenting" when asked if he is still representing Vitter.

The trial, in which Deborah Jeane Palfrey, known as the D.C. Madam, is accused of running a prostitution ring, is scheduled to begin Monday.

It was first reported last July that Vitter's phone number appeared on Palfrey's escort service between 1999 and 2001 when he was a member of the U.S. House. At the time, Vitter admitted to a "very serious sin."

Asbill, who represented Vitter in some earlier motions related to the Palfrey case, told Robertson that the defense has a responsibility to establish that it has a valid legal reason to call his client other than to simply "harass and embarrass him." He also said that it's hard to imagine a legitimate reason to call him as a witness given that the escort service had hundreds, if not thousands of customers, and the defense hasn't even spoken to his client about whether he would have anything to say that would assist its case.

Preston Burton, Palfrey's attorney, told Judge Robertson that he shouldn't be required to reveal his reasons for putting people on his witness list because it would disclose his defense strategy to prosecutors.

The judge declined Asbill's suggestion that he hold a hearing in chambers, and declined to nullify the subpoena. Robertson said he didn't know the name of Asbill's client and "didn't want to know."

After the judge's decision, Asbill suggested it would be unproductive to call his client because he would assert his Fifth Amendment privilege against self-incrimination. Robertson, an appointee of President Clinton, said that though he trusted Asbill, the courts have long established that a declaration of privilege must be made in the courtroom directly by the subpoenaed witness, not a lawyer.

Vitter's office, asked for comment, issued a brief statement that did not confirm whether Asbill was representing the senator at Friday's court hearing.

"I want to reaffirm how sorry I am to have hurt the people I love so deeply, starting with my family and certainly including the people of Louisiana," Vitter said. "I continue to work every day to make up for that."

He continued: "I continue to focus on crucial challenges for Louisiana families like health care reform and good-paying jobs."

Jean Rosenbluth, a former federal prosecutor who teaches at the University of Southern California Gould School Of Law, said a judge could hold a hearing in chambers to determine if an assertion of Fifth Amendment rights is valid -- meaning that the witness has a legitimate reason to fear that answering the questions from defense lawyers or prosecutors would force disclosure of potentially illegal conduct.

It's possible, Rosenbluth said, that prosecutors could grant immunity from prosecution to a defense witness -- though she sees that as highly unlikely.

Palfrey maintains that the women employed by her escort service were instructed to engage in sexual fantasy talk, but were not to engage in sex.