In early August 1965, between trips to prepare for the Selma grand jury, I was summoned to the attorney general’s office on the fifth floor. I had been up there once before. When I was living in the Harvard Varsity Club during my final year of law school, I had noticed an old photograph of Bobby Kennedy’s football team gathering dust. Since the photo seemed forgotten, the manager of the club allowed me to take it. Shortly after I began work at the Justice Department in 1964, I asked to see Kennedy and presented him with the picture. He was pleased to receive it, talked a little about the team, and sent me a thank-you note afterward.
Kennedy had resigned his position at the end of September 1964 to run for the Senate from New York. As his replacement, President Johnson eventually appointed Kennedy’s deputy, Nicholas Katzenbach, who had been the acting attorney general after Kennedy left. He was a tall, dignified forty-three-year-old with a quiet, understated demeanor. He’d been in office for about nine months when he greeted me.
It was unusual for a young staff lawyer to be called upstairs to a private meeting in the AG’s office. I wondered what I had screwed up so badly that required such high-level attention. Though it was a humid August morning, Katzenbach was cool and affable. His quiet manner belied a forceful personality. His office was large, elegant, and imposing, as was Katzenbach. John Doar was there too. After pointing me to a seat, the attorney general did most of the talking.
“Hello, Terry,” he said. “John tells me you have done a good job covering demonstrations in the South.”
“I appreciate that,” I replied.
“We have a protest coming up this weekend here in Washington. It’s an antiwar demonstration, and I’d like you to help us cover it.”
His tone, while not anxious, suggested concern. The protest was scheduled for the weekend of August 6, 1965, to coincide with the twentieth anniversary of the nuclear bomb the U.S. dropped on Hiroshima at the close of World War II. It was one of the first antiwar demonstrations to take place in the nation’s capital. Considering the violence that resulted from civil rights protests in Mississippi and Alabama, I couldn’t blame Katzenbach for being concerned.
“Can you explain what you mean by ‘cover’ the event?” I asked.
“We’d like to know what’s going to happen before it happens,” the attorney general replied.
“Okay,” I said. I understood they didn’t want to be surprised by anything, but I was not entirely comfortable. I didn’t want to mislead anyone about my role. The Civil Rights Division was charged with protecting citizen’s rights, and these marchers were exercising a legitimate right. I thought it would undermine the department’s credibility if I went there undercover. “I’d like to go there dressed like I am now, in a suit,” I said. “And I plan to show my Department of Justice identification to anyone who asks me why I am there.”
“Fine,” Katzenbach said with a nod. “That’s the only way I’d have it.”
He gave me a card with a telephone number that he said would provide me with direct access to him. I was to call him immediately if I had any useful information. Though our meeting was short and cordial, I left still struck by the mood. I’d worked for the department for a year, but I’d never been called to do a special project for the attorney general. It impressed upon me the singular importance of this mission to the United States government. Perhaps the Justice Department officials feared violence similar to that in the South. In retrospect, I wonder if they wanted an observer to document any overreaching police response. Certainly, the FBI would be on the scene, but maybe Katzenbach was not confident that the marchers’ rights would be sufficiently respected.
I tried to imagine how to “find out what was happening before it happened.” All I could think of was to adapt the tactics I’d learned in the South: to be alert as a passive observer, notice everyone and everything, and report regularly to my superiors.
On that Friday, about a thousand protesters assembled in front of the White House. I joined the crowd of protesters, just as I had said I would, in a suit and tie. Most of the marchers were in T-shirts and jeans or shorts. I ambled among them, looking for anything interesting. The crowd was made up mostly of young people, none of whom looked particularly threatening. They carried signs against the draft and the Vietnam War. There was marijuana smoke in the air. Quite fortuitously, I spotted an acquaintance I knew from Harvard who had come all the way from San Francisco to join the protest. Making my way to him, I told him I was observing the event for the Civil Rights Division. He provided helpful information, pointing out the leaders among the crowd: Dr. Staughton Lynd, a Yale professor, and Dave Dellinger, editor of a pacifist magazine. He then told me their goals, including petitioning the White House and staging some sort of demonstration at the U.S. Capitol.
Their plan was to demand to present a petition to President Johnson. If the White House refused, they would occupy the driveway until they were arrested. (This was before high security guarded federal buildings and Pennsylvania Avenue became closed to traffic in front of the White House.)
This was the first real piece of intelligence about future action that I’d gathered, and I was eager to report it to the attorney general. I went to a telephone that I had found earlier at the Park Police station in Lafayette Park, directly across from the White House. I showed the officer there my identification, and asked if I could use the phone. I then reached into my pocket for the phone number that Katzenbach had given me. When I dialed it, the attorney general answered right away, to my surprise.
“Mr. Attorney General, I’ve been with the marchers across from the White House,” I told him. “I’ve got a report on what they are about to do.”
I relayed what I had learned.
“Okay, wait a second, Terry,” Katzenbach replied. “I’m going to hook in the White House.” Within a minute or so, he was back on the line. “Okay, Terry, repeat what you just told me.” I didn’t know who at the White House was on the line listening in, and I never learned who that person was.
I again outlined the plan as I had heard it. Silence followed.
“So that’s what’s happening,” I added, waiting for someone to say something.
Finally I heard Katzenbach ask, “So what should we do?”
Being barely a year out of law school, I was eager to hear how the government would handle this. But the line was silent.
“Terry,” Katzenbach said after several seconds, slightly exasperated. “You’re there. What should we do?”
What should we do? I wondered. He’s asking me?
I was only a rookie, and I began to worry about my government asking someone like me to make decisions. I told him the only thing that made sense. “I think someone should accept the petition. You might even send the agent who looks like the president to receive it.” I’d heard the president usually had at least one Secret Service agent who looked somewhat like him. I thought if that guy came out to accept the petition, the marchers would at least be momentarily unnerved.
“Okay,” the attorney general replied. That was it, and he was off the phone.
I crossed Lafayette Park to rejoin the crowd in front of the White House. Minutes later, a man who slightly resembled Lyndon Johnson walked out of the West Wing. As the protesters near me watched silently, the man continued down the driveway until he stopped at the black iron gate guarding the White House entrance. Addressing the protest leaders, the agent introduced himself, and said he would accept their petition on the president’s behalf.
Members of the group shared surprised looks. The protesters had wanted a confrontation with the White House. Now they didn’t know what to do. When the agent left with their petition in his hand, the marchers took a vote. Some voted to leave without incident while others opted to “sit in” on the sidewalk overnight.
The protest continued through the weekend. On Monday, the demonstrators gathered at the Lincoln Memorial, chosen intentionally to honor the site where Dr. King had delivered his “I have a dream” speech two years before. From there the demonstrators would make their way down the Mall to the steps of the Capitol.
D.C. police were out in force, and the Capitol police were also girded for havoc. I learned the House and Senate entrances, floors, and galleries were packed with security people so that none of the demonstrators might find a way to enter and disrupt congressional proceedings. A cordon of police officers carrying guns made a conspicuous display surrounding the Capitol grounds.
When the marchers got to the Capitol steps, red paint splashed on the pavement and spattered on the front line of marchers. I thought the protesters did this to evoke the blood of Americans and Vietnamese killed in the war, but the next day’s New York Times said the paint was thrown by counter-demonstrators to symbolize the “red” Communism of the peace advocates. As the marchers expected, the police quickly moved forward to arrest them. The marchers went limp on the Capitol steps. Police officers lifted the marchers one by one and literally threw them into nearby police buses. The way this was carried off, treating human beings like sacks of potatoes, struck me as unnecessarily harsh.
I walked to the officer standing by the bus and displayed my identification. “I’m with the Civil Rights Division,” I said.
He stared at me.
“What you are doing seems to be imposing punishment on these people without due process of the law.”
Unblinking, the officer replied, “Get the fuck out of here.” After watching about sixty demonstrators tossed into buses, I followed his advice.
The following week, Katzenbach called me back to his office. Thanking me for the job I did, he gave me a copy of the letter he was going to have put in my personnel file, attesting to the fact I’d participated in the march under the attorney general’s orders. If I were ever under suspicion because my face appeared in an FBI surveillance photo of the demonstration, I’d have evidence that I was not there to demonstrate. This was something I hadn’t thought of. Katzenbach knew that an FBI photo of me standing next to a protester could kill a government career.
I continued to work at the division for more than a year, through 1966, investigating and pursuing cases of racial injustice. Toward the end of my tenure there, I was thrilled to be part of the implementation of the 1965 Voting Rights Act, which finally guaranteed African-Americans their right to vote. Our lawyers covered many bases to make sure that new registrants were able to vote in time for the 1966 primary and general elections. Those elections were historic in the Deep South. I knew there would be more groundbreaking work at the Civil Rights Division, but I didn’t see myself as a career lawyer there.
When I was ready to move on to a new career challenge, I considered various options. Private practice in a law firm held little allure, but legal programs sponsored by President Johnson’s new “war on poverty,” especially the celebrated California Rural Legal Assistance program, seemed enticing. At the same time, I was bold enough to consider the U.S. Attorney’s Office in the Southern District of New York (Manhattan). This “Cadillac” office, headed by the legendary Robert Morgenthau, usually hired only the brightest young lawyers—law review and Supreme Court law clerk types—which I wasn’t. But I applied anyway. John Doar told me that if I wanted to argue cases before a judge and jury, Morgenthau’s shop was supreme. “That’s where you’ll get the best experience as a trial lawyer,” Doar said.
• • •
The U.S. Attorney’s Office in New York City was undoubtedly prestigious. Morgenthau, its leader between 1961 and 1969, set the standard for prosecutorial and ethical leadership. I didn’t have the superior credentials of most of the assistant U.S. attorneys in Morgenthan’s shop, so I was thrilled, honored, and a bit terrified when I was hired. It was most intimidating to see on the walls of the various attorneys’ offices their photographs with the Supreme Court justices for whom they had clerked and framed cover pages of the law review articles they had authored. On my first day, as I was sitting in my office, I heard a knock on the door and met an FBI agent asking for a search warrant. I had no clue how to produce one but, trying not to appear completely helpless, I went down the hall in search of guidance.
After years of working on behalf of rural citizens whose rights were denied and abused, often by law enforcement officials, my new job in New York as a federal prosecutor was definitely different. It never occurred to me to question this particular turn in my career, but it did, apparently, seem odd to some people. Shortly after I arrived, one of Morgenthau’s deputies came into my office. “I hear you’ve been working for civil rights for the Negroes,” he said. “I hope that won’t affect your ability to put one of them in jail if the need arises.”
I was taken aback by the comment. Weren’t the U.S. Attorney’s offices and the Civil Rights Division branches of the same Department of Justice, both trying to enforce the same law?
“No, sir,” I replied. “I can’t imagine that my work in civil rights would affect my ability to prosecute criminals here.”
I was solely responsible for monitoring and prosecuting the federal criminal cases assigned to me as a member of the organized crime unit. The FBI and other federal agencies provided information and investigative resources, but developing each case was up to the lawyers. Without anything but perfunctory approval from my superiors, I could impanel grand juries and subpoena potential witnesses. The authority and scope of our inquiries was so broad I could see how easily our power could be misused or corrupted. Fortunately, Mr. Morgenthau was a man of great integrity. If our office made a mistake or overreached in a prosecution, he insisted that we readily admit it.
The organized crime unit focused on the five families that made up New York’s Mafia. I was assigned to monitor the Genovese crime family. Originally founded by gangster Lucky Luciano, the Genoveses were a large, powerful family—once dubbed the “Rolls-Royce” of organized crime. Its known members were under constant federal surveillance. I received FBI reports every day on who was having lunch or dinner in which Italian restaurant that was known to be associated with the family. The FBI sent agents to these restaurants, most of them in the East Village, to note license plate numbers of cars parked nearby to compare to a database. I advised colleagues and friends to avoid those restaurants, no matter how excellent the food.
One of the Genovese family’s activities included stealing credit cards right out of the factories where they were made. The cards were distributed to Genovese associates, who used them for thirty days and then discarded them before the frauds could be detected. One person implicated in the scheme was Tino Barzini, the manager for Frank Sinatra Jr. Tino was using stolen cards to fly Mr. Sinatra and his band around the country for free. I’d learned that Frank Jr. was scheduled to appear at a club in the city on a particular night. I asked an intrepid federal marshal to go to the club and serve him with a subpoena. It was not easy to get to Sinatra directly, but the marshal on the case was a creative and unusual guy. He decided to go to a performance and waited for Sinatra’s last set. When he sang his father’s classic “My Way,” Sinatra stretched out his arms and the marshal slapped into his hand a subpoena ordering him to appear before the grand jury the next day.
The next morning, Sinatra’s lawyer came to my office. “I have Frank outside,” he said. “He hasn’t done anything wrong, but he’s worried about the photographers. Where are you keeping them?”
I said I didn’t know what he meant.
“Wherever Frank goes, there are always photographers,” he said. “We don’t want anyone taking a picture of him going into the grand jury.”
I looked down the corridor and saw that it was empty. “Where is Mr. Sinatra now?” I asked.
“He’s hiding in the elevator well.”
When I finally persuaded Sinatra’s lawyer that the U.S. Attorney’s Office was not in the business of tipping off photographers, he brought us the singer, who seemed suspicious and wary. I greeted Mr. Sinatra and led him into the grand jury room.
Once we were in the chamber, the foreman asked the witness to raise his hand to be sworn in. Then he asked him to state his name. “Frank Sinatra Jr.,” he said in a whisper.
He was asked his place of residence.
“Hollywood, California,” came a soft reply. Some of the jurors leaned forward as they struggled to hear him.
“Mr. Sinatra, why are you whispering?” I asked.
“I have to sing tonight,” he said quietly. “I don’t want to strain my voice.” Considering my later experiences with the Hollywood crowd, this surreal response should have proved instructive. No evidence ever surfaced linking Sinatra to the crimes, but his manager was indicted and ultimately went to jail.
• • •
When I worked in the Civil Rights Division, I was confident that the federal government was reliably on the right side of justice. My experience in the U.S. Attorney’s Office gave me a different perspective. For example, our attorneys and federal investigators uncovered massive corruption within the Internal Revenue Service. A shocking number of IRS agents were taking bribes in exchange for fixing tax returns. At one point we planted a recording device in a baby carriage to pick up conversations with an IRS agent who was meeting someone for a payoff in a city park. Among my first cases was an indictment of a gambling institution involved with organized crime. Just the day before trial, I was disconcerted to learn that a key witness, an undercover agent, was having an affair with one of the targets of our investigation. Later, when I prosecuted Salvatore Bonanno, of the Bonanno crime family, on charges of using stolen credit cards, I had concerns about the FBI’s wiretap of a conversation with Bonanno. The agent assured me everything was on the up-and-up, but something about it made me uneasy.
I knew that my work as a prosecutor was worthwhile and significant, and I appreciated being one of an elite group of lawyers. But I was afraid to get sucked into the rhythm of a prosecutorial mindset, of seeing everyone as a perp, every suspect as a liar. Toward the end of my second year, I began to wonder where it would lead. I couldn’t see myself as a career prosecutor, nor as a criminal defense lawyer in New York. Fortunately, once again, my path was diverted by my old mentor John Doar.
Doar left the Department of Justice at the end of 1967 after securing convictions in the federal prosecution of the Philadelphia, Mississippi, murder case. He moved with his family to New York, to direct a project founded by Robert Kennedy to rejuvenate a desperately poor section of Brooklyn. Shortly after settling in New York, Doar was asked by Mayor John Lindsay to head up the New York City Board of Education. Though this was a nonpaying job for Doar, as school board president he was allowed to hire staff—one person with an annual salary of $15,000. When he asked me to be his assistant in early 1969, I agreed and left the U.S. Attorney’s Office.
At that time, the New York City school system was in turmoil. In response to attitudes emboldened by antipoverty initiatives, Mayor Lindsay had decentralized the city’s school system, authorizing some local boards to control public schools with “community standards.” When unionized teachers were fired by local boards, the teachers went on strike citywide. John Doar tried to reestablish order while maintaining community authority. We had a lot of dramatic encounters with passionate teachers and community advocates. In the end, the state legislature in Albany dismantled the city’s school board, and oversight of the city schools reverted to the state.
So in the late spring of 1969, I was out of a job. I had been married for almost a year. My wife, Margaret, a Washingtonian who had gone to college in New York, was reluctant to embrace the big city as a permanent family home. By this time, Lyndon Johnson had left the White House, his departure hastened by the divisive war in Vietnam. A very different president, Republican Richard Nixon, had been elected in 1968 on a “law and order” platform.
Doar told me that he knew someone in the new Nixon administration whom he thought I’d get along well with: Donald Rumsfeld. Like Doar, Rumsfeld was a Princeton graduate, though somewhat younger. “He’s become head of the Office of Economic Opportunity,” he said. “I think you should go talk to him.”
I looked carefully at Doar. “You want me to work for the Nixon administration?” I asked. The new president was anathema to almost everyone I knew. I wasn’t much of a fan myself.
“Terry, do what I do,” he said. “Zig when others zag.”
I knew that Doar still considered himself a Republican. There was no one I respected more than John Doar, and his advice sparked something in me. I agreed to go to Washington to meet with Don Rumsfeld.
The Office of Economic Opportunity (OEO), created and first directed by R. Sargent Shriver in 1964, was the central agency of President Lyndon Johnson’s war on poverty. OEO’s operations depended on federal funding of community-based organizations to try to level the playing field for poor Americans through research, advocacy, community action, education, and legal and health services. Opposition to the war on poverty had been part of the GOP campaign platform, so the new president’s agenda for this new agency was not clear. Rumsfeld was a Republican wunderkind, a very young congressman from Chicago’s North Shore suburbs who gave up his seat to take on OEO at his president’s request. No one knew what would happen to OEO under Nixon, but many of its advocates were suspicious.
When I first met with Rumsfeld, I found him enormously likable. He was dynamic and personable, and had a great sense of humor. He’d been a high school football star and college wrestler, and, nearing forty years old, had lost none of that energy. He seemed very hardworking, and had a boundless sense of curiosity. Rumsfeld did not strike me as an ideologue with an agenda, but rather as a practical man who wanted to make things work. I had an instant rapport with him.
In June 1969, I joined the impressive young staff he’d collected, several from Princeton—including Bill Bradley, the basketball player on break from the Knicks who was later a senator from New Jersey and ran for the Democratic presidential nomination in 2000, and Jim Leach, on his way to becoming a congressman from Iowa. Initially, I was Rumsfeld’s special assistant. I worked in his office, and watched him deal with an incredibly complicated and frequently dysfunctional organization.
The antipoverty program brought together well-intentioned people, many experts in diverse fields such as early childhood education, agriculture, nutrition, healthcare delivery, community organizing, civil rights, and jurisprudence. Head Start, VISTA, and Job Corps were all created as part of OEO. Its primary division was the Community Action Program (CAP) that funded local organizations of poor people to benefit their communities. While antagonists viewed OEO as just another wasteful federal bureaucracy, a lot of creative energy and federal money went into funding meaningful programs that could operate effectively at local levels. But managing it all was extremely difficult. Many departments didn’t have adequate filing systems. Funding requests from local programs lingered for months. Guidelines for selecting and shaping programs were vague and often contradictory. At one meeting with some of the research and development staff who developed experimental programs, I asked them, in total seriousness, “Do you R&D guys throw darts at the wall to decide what projects to fund?”
By midsummer, Rumsfeld offered me a choice of three positions at the agency—to remain as his special assistant, to head the Legal Services Program, or to become OEO’s deputy general counsel.
“Deputy?” I asked. “Why not general counsel?”
Rumsfeld roared with laughter. He’d already enlisted a prominent lawyer from a major Chicago law firm to take that job.
I decided I was old enough at twenty-nine to not want to be anyone’s special assistant, so I chose to take on Legal Services. I wanted to remain within the legal arena, and it seemed like an interesting challenge. From my days in the segregated South, I knew how African-Americans were denied access to government programs and services. And I soon learned how many other poor people in America—in urban ghettos, in Appalachia, on Indian reservations, in migrant worker camps—were being similarly deprived.
My decision to take on Legal Services left vacant the position of the director’s special assistant. The job was quickly filled by a serious young man from Wyoming named Dick Cheney, who came over from a congressional office. That set the stage for a Rumsfeld-Cheney partnership that continued over the next four decades.
The Legal Services Program (LSP) operated according to guidelines established by an advisory committee composed mostly of members of the organized bar. The guidelines required that representatives of poor people be on the local programs’ governing boards, and that the programs provide services in all noncriminal areas of the law. That included not only direct legal representation of poor clients, but also class-action lawsuits on behalf of groups of clients, and advocacy for reform of federal and state laws, regulations, and practices. The program had 2,200 lawyers, 850 offices, and a $58 million dollar budget. It was called the largest law firm in the world.
It was easy to embrace the Legal Service Program’s mission and to champion the dedicated lawyers who represented poor clients. So I made a decision early on that I was going to try to make Legal Services do exactly what was envisioned. This was also Don Rumsfeld’s intention when he offered me the job. When he arrived at the OEO, Legal Services was under CAP, and Rumsfeld elevated it to be on par with CAP as a separate division. He saw Legal Services as the premier program within OEO because, as he told me, it allowed people to settle problems through lawyers in courtrooms instead of with mob violence. In announcing my appointment, Don committed publicly to providing poor clients “with representation and advocacy before all institutions and at all levels of government.”
In August, shortly after I assumed my new position, one hundred lawyers from Legal Services programs across the country came together in Vail, Colorado, for their first national conference. I went to Vail to introduce myself. The lawyers knew little about me, and many assumed that any Nixon appointee would be trouble.
I arrived in my usual suit and tie, and looked out of place among the casually dressed lawyers, many with long hair and wearing jeans and tie-dyed shirts. Undoubtedly, my appearance fit their image of a conservative bureaucrat. They were primed for revolt—issuing a list of demands to ensure that the Legal Services headquarters in Washington would continue to support their activities. The atmosphere in Vail did not exactly improve when I commented on their choice of locale. A reporter picked up my comment “Your clients aren’t out here,” which made an irresistible front-page headline. I was profiled in the New York Times, which reported on my appointment and meeting with the lawyers in Vail.
After things calmed down, I told the lawyers that I was confident that once they understood my views, they would be satisfied with my leadership. “We are not going to disband the program,” I said, “or allow politicians to interfere with the goal of representing poor clients as competently as highly paid lawyers represent rich clients.” I let them know that we would continue to support class-action lawsuits and law reform. By the time I left Vail, we had reached a level of trust that grew the more they got to know me.
Back in Washington, I educated myself about the depth and breadth of my responsibilities and assembled a senior staff of some pretty remarkable people. I hired as my deputy Frank Jones, a native Mississippian who had worked with the Chicago Legal Aid Bureau. Dan Bradley and Mickey Kantor, who later became President Clinton’s U.S. Trade Representative, had been associated with the South Florida migrant program. The two women on my senior staff were Kimba Wood Lovejoy, later a federal court judge, and Mathea Falco, who has since devoted her career to drug abuse policy after serving in President Carter’s White House. I sought advice from my friend Charles Nesson, who had just become a professor at Harvard Law School, and from Monroe Price, another law professor who continues to be a creative and out-of-the-box thinker. In my office, I was very ably assisted by Dottie Smith and by Barbara Campbell whose sharp intelligence and ready humor often made my day.
I learned gradually that the close relationship I had developed with Rumsfeld during the six weeks I was his special assistant didn’t hold much water against the authority of longtime OEO staffers and those newcomers who had been close to Rumsfeld for years before he got to OEO. Frank Carlucci, whom Don had arranged to be transferred from the State Department to head up CAP, had been Don’s roommate at Princeton. Another close Rumsfeld friend was Don Lowitz, a Chicago lawyer, who became OEO’s general counsel.
Time became my enemy too as I rushed to deal with political crises erupting across the country over Legal Services programs and lawsuits. I had to fly to Vermont to pacify the governor, who was upset that the LSP office had not closed in honor of the July 20 landing on the moon. Arizona senator Barry Goldwater was upset that Legal Services lawyers representing a group of Navajos had sued the Tribal Council. The Missouri governor vetoed the Legal Services Program in St. Louis based on press reports of inappropriate lawsuits. After the bar association deemed the charges to be unfounded, Rumsfeld overrode the governor’s veto. But the governor then vetoed the Kansas City, Missouri, program, citing “apprehension” over what he said were my statements urging increasing aggressiveness by Missouri Legal Services lawyers whom we had evaluated as too timid in the past. After the Camden, New Jersey, program was revitalized, the new director became involved in a lawsuit against the city for failing to relocate poor residents who were forced to move to make way for a new highway. After Legal Services lawyers there filed a defamation suit against the Camden police chief for calling black community leaders “hoodlums,” the county bar association withdrew its support for the program. In Louisiana, the state bar association called for an investigation of all LSP attorneys in the state when a program in Baton Rouge sued the police department after four black teens were shot by the police. We had a problem in Berkeley, California, when the program’s board voted to support the Black Panther Party in conflict with local authorities, using heated rhetoric that horrified the local bar.
One of our early challenges involved the mayor of Chicago, the legendary and all but indomitable Richard M. Daley. Mayor Daley chaired the Community Action Agency under which the Legal Services Program in Chicago operated, and he had barred Legal Services lawyers from suing the city or from representing groups. And the office spaces that were allocated to the Legal Services Program were totally inadequate. One adjoined a gymnasium, where our clients lined up on the bleachers while waiting to talk with lawyers. That office was virtually shut down whenever there was a game, band practice, or other event. At another office next to an elevated train line, all conversation between the lawyers and their clients was interrupted every few minutes when a train went by. Clients were often referred to an “urban life advisor” instead of meeting with a lawyer in confidence. It was impossible to attract good lawyers to the program under those conditions. I decided that it was important for my office to directly fund the Chicago program to take it out from under Mayor Daley in order for the program lawyers to be effective.
When I made efforts to change that by filing a lawsuit against the city, I was called to the office of Chicago-area congressman Roman Pucinski, who was a Daley acolyte. “The mayor isn’t going to agree to what you’re trying to do,” the congressman said. He looked at the red phone on his desk. “I’m going to call the mayor now and tell him you are insisting on pushing this through.” After he finished his phone call, the congressman told me, “If you continue to pursue this course, the fire department will close down your office tomorrow and the utilities will be turned off.” He said that the city would basically harass us to death. I looked at Pucinski—who struck me as a thug and lackey masquerading as a member of Congress—and was convinced even more that we should sue the city.
I told Rumsfeld about these threats and asked what we should do. Don was from Chicago and the congressional district he had represented included a small part of the city. He knew the power of the Daley machine. To his credit, he told me to move ahead with my plans. I thought it was a gutsy call. Our lawsuit succeeded.
One of the most fractious issues was in California, where Ronald Reagan had become governor in 1967. One of LSP’s flagship programs, California Rural Legal Assistance (CRLA), was a thorn in the side for California’s growers because of lawsuits on behalf of migrant workers. Growers in Colorado and Florida also complained about lawsuits that LSP programs brought to improve housing and work conditions for migrants. CRLA also challenged Reagan’s welfare and Medicaid policies in successful lawsuits. I had to fly to Sacramento to defend the program after CRLA’s lawsuit against the state hospital system resulted in a judgment that restored $220 million for Medicaid beneficiaries that the governor had cut. Governor Reagan was determined to bring an end to the annoying lawsuits brought by federally funded lawyers against him. He and other Republican governors were vociferous with complaints to the Nixon White House about Legal Services programs.
Since LSP’s legal victories were validated by most appellate courts, the solution for the program’s opponents had to be political. In the fall of 1969, my efforts to support individual programs were interrupted by a major legislative challenge in Congress, where the administration’s bill to reauthorize OEO was challenged by amendments in both houses. With Governor Reagan’s urging, Senator George Murphy of California pushed through the Senate an amendment that would give governors legal power over any aspect of the Legal Services programs operating in their states. If the Murphy Amendment was enacted, the entire Legal Services Program would be eviscerated. In the House of Representatives, an amendment was offered to give the states control over most antipoverty programs, including Legal Services.
The Murphy Amendment elicited tremendous support for Legal Services from bar associations and private lawyers, who organized emergency efforts to lobby Congress. Since I didn’t trust OEO’s Office of Government Relations to adequately fight against the amendment, I tasked Mickey Kantor with organizing our assault on the House. And Rumsfeld became vitally engaged. Using his legislative experience and contacts as a congressman, Don joined me as we went from office to office in the House to stop the amendment.
We worked closely with Wisconsin congressman Bill Steiger, a close friend of Rumsfeld’s. At one point Steiger called me to the Capitol and told me were going to lose the vote unless I could come up with language for the legislation that would satisfy members of Congress from farm states who were worried about lawsuits on behalf of migrant workers. Steiger told me we needed to demonstrate that OEO intended to rein in our lawyers. So, as tourists walked by, I sat down on the floor outside the House chamber and began writing. I scribbled some lines on a piece of paper stating that no lawyer could take any action except in accordance with the American Bar Association’s canon of ethics. “This is great!” Steiger said after reading it. “It sounds really tough.” Of course, what I’d written was essentially meaningless. Everything Legal Services lawyers did already satisfied the ABA’s canon.
My amendment was accepted and the House of Representatives voted down that part of the bill that would have given governors control over legal services. The final legislation reported out by the conference committee kept intact the integrity of LSP. Our success further infuriated many governors. They vented their frustrations to the White House, where I had already become known as a troublemaker who, in Nixonian terms, “didn’t play ball.”
My problems were not brought on only by Republicans. I encountered plenty from LSP advocates too. As America’s involvement in Vietnam dragged on with no end in sight, antiwar demonstrations increased, as did the rift between liberal and conservative America. At the same time, the rise of the black power movement led to racial unrest. After Dr. Martin Luther King’s assassination in April 1968, riots broke out in many cities. The antipoverty program was designed to address inequalities, and OEO was ground zero for much of this activity.
The security measures we’re accustomed to today, especially since 9/11, didn’t exist then; government buildings were open to the public. (When I first got to the Justice Department, for example, neighborhood kids used to roller-skate in the building’s hallways.) Now the public’s intrusion into government buildings began to hold more risk.
I once was in a meeting with Rumsfeld when a group of protesters burst into our building, came up to his office suite, and tried to break down the door to force their way into the director’s inner office. Thinking quickly, Don and I shoved his desk against the door. When the protesters managed to nudge it open, we’d shove the desk back until security people came to our rescue. This sort of thing happened more than once.
During a particularly heated Vietnam War protest in May of 1970, Don and I watched from the rooftop of our building on Nineteenth Street as a mob of antiwar protesters stormed the city. As thousands of people, some wearing football helmets for protection, poured through the streets, I felt as if I were watching a revolution. To guard the White House from the teeming mobs that day, buses were parked along the iron gates that surrounded the grounds. Younger members of the administration were called to the White House to confer about engaging the protesters in discussions about the war. At the White House Mess, I overheard someone from Vice President Spiro Agnew’s staff carrying on. “If these hippies try to break through the buses,” the guy said, “we have machine guns.”
Some months later I was in a meeting of the OEO Legal Services board when a group of Howard University law school students showed up and occupied the room. These minority students wanted a $1 million grant for the law school and believed the agency was discriminating against them. Don realized there was no way to reason with them—they were there to make demands, not negotiate. To pacify them, he asked me to take them to a conference room on a different floor. I did so and talked with them for a while, getting exactly nowhere. I knew I’d have to try to leave so that they could not later claim that I’d been free to do so. Unsurprisingly, as I tried to leave the room, the group physically obstructed my departure.
Hearing that I was basically being held hostage by this group—which included some pretty sizable guys and a young law student named Jerry Rivers, aka Geraldo Rivera—Rumsfeld rushed over. He forced his way in, grabbed me by the arm, and tried to pull me out of the room. The occupiers let Rumsfeld through but closed in around me as I tried to exit. I wasn’t going anywhere.
So I did what made the most sense. I waited them out. After a while, the crowd became hungry and bored. Their stunt was running out of oxygen. Finally, they said I could go up to Rumsfeld’s office with a message. They demanded that the grant be awarded that day or they were going to stay and refuse to let me leave.
I looked at them skeptically. They wanted me to leave the room, make their demands, and then come back?
When I went upstairs, I gave Don their message: “They want a million-dollar grant or they’re staying put.”
He laughed. “Tell them if they’re not out in ten minutes, I’m going to have them arrested.” I went back downstairs and delivered the ultimatum from outside the doorway. True to his word, Rumsfeld had them in custody within the hour.
Being at OEO exposed me to occasional White House perks. OEO senior staff spent one weekend meeting at Camp David, and another evening with their spouses on The Sequoia, the presidential yacht. As one of the very few members of his senior staff not to be a Nixon fan, I was subject to Rumsfeld’s occasional efforts to broaden my perspective. My wife, Margaret, and I became friends with Don and his spirited wife, Joyce. One day, they invited us to join them at a White House Sunday prayer breakfast that President Nixon hosted. This was one of the few times I met Nixon in person. Seen on television, Nixon was a tough-talking, powerful presence. But as I listened to his awkward comments in person, I found him more odd than impressive.
The first time I met Nixon was in the Oval Office at a small gathering of OEO officials. He gave a rambling speech about the greatness of America. There were lots of things a leader could cite to support that claim, but what Nixon chose to highlight was the fact that America’s suicide rate was lower than that of Scandinavian countries. So when we went to the White House for the prayer breakfast, I didn’t know what to expect.
I knew that Rumsfeld’s friendly relationship with the president was growing. As director of OEO, Rumsfeld was a member of Nixon’s cabinet—he had insisted on that when he accepted the OEO job—and by early 1970 he was spending more and more time at the White House. My name was known to some there because of complaints they’d received about Legal Services lawsuits.
After the Sunday worship service concluded, Margaret and I stood in a receiving line to shake hands with the president. When we approached him, Nixon shook hands with Don and smiled. Don gestured to me. “This is Terry Lenzner, Mr. President.” Knowing how Nixon respected athletes, he added, “He was captain of the Harvard football team.”
Nixon shook my hand, smiled, and moved to greet the next guest—my wife. He was shaking Margaret’s hand when he figured out what he wanted to say to me. “So you’re the one causing all the problems,” he said. Margaret didn’t know how to respond, at least to the president. As we left the White House, she told me, “Your days are numbered.”
As Don became more involved at the White House, the pressure on him to rein in Legal Services became more intense. I’ve no doubt that he heard plenty of complaints at cabinet meetings from colleagues discussing LSP suits against federal agencies, and charges that they were politically motivated. It didn’t matter that most of those suits were filed before 1968 against Johnson administration officials, or that it was the courts, not LSP, that decided the cases. Eventually, Don agreed to bring over from the White House a guy named John “Fat Jack” Buckley. Buckley moved into an office at OEO as director of the inspection division, supposedly there to evaluate different OEO programs. But I noticed he took a particular interest in my activities. He spent a lot of time around the Legal Services offices when he had no apparent reason to be there. I once delivered a speech to a small gathering in New Orleans. When I looked out at the group, there was Buckley, taking notes. (I learned later that Buckley also monitored the presidential campaign activities of Democratic senator Ed Muskie, one of Nixon’s most formidable rivals for the 1972 presidential election.)
In late February, I was called to a “training session” for OEO inspectors to describe the Legal Services Program and answer questions about specific issues. I pointed out the absurdity of trying to redress legal problems of the poor on only a piecemeal basis through representation of clients individually. For example, the five lawyers in a California program took in 6,800 cases in the previous fiscal year, a caseload that couldn’t possibly be handled effectively. I said it was like trying to bail out the ocean, that such an approach could not produce substantial change. Most of the cases were similar, and handling them individually would lead only to a never-ending cycle. I described how much more effective Legal Services representation is when the programs identify priorities for lawsuits to tackle the most pressing problems affecting groups of clients. I authorized Clients Councils to work with the programs’ boards of directors on defining priorities, and the programs drew on training and technical assistance provided by six law schools in specific areas of legal rights, including education, consumer fraud, welfare, economic development, housing, and medical law.
In May, I funded a new program designed to serve poor people in Appalachian Kentucky and West Virginia. This regional program was unique—encompassing parts of two states and addressing a wide range of legal issues peculiar to the region. I recruited my Civil Rights Division colleague John Rosenberg to inaugurate the Appalachian Research and Defense Fund (AppalReD) program in Kentucky. John moved to Prestonsburg, Kentucky, in 1970 with his wife and infant son and stayed for thirty years. AppalReD’s initial target was the coal industry, recognizing the direct relationship that existed between the coal economy and the profound poverty of the local people. As for every lawyer who worked under John Doar, John Rosenberg’s eight years working on civil rights cases in Mississippi had taught him the vital importance of careful preparation of lawsuits. The first-class law firm that he established for AppalReD proved successful in investigations and legal action against coal companies as well as federal and state entities to address problems in such areas as mine safety, strip-mining, environment, health, and housing, as well as in providing poor residents with lawyers to handle individual cases.
I thought we were on a roll, but by the early summer of 1970 the poverty program’s opponents were again hatching plans to restrain OEO legislatively. In anticipation of the American Bar Association’s annual convention in August, its president, Bernard Segal, issued a warning about “ominous danger signals flashing around the OEO Legal Services Program.” He urged ABA members to be “vigilant to maintain the professional independence and integrity” of the program and its lawyers, citing the “storms of protest” evoked by LSP “successes in cases of public and social concern, the so-called law reform cases.”
I suppose that my dismissal from OEO on November 20, 1970, was inevitable. Legal Services activities were creating headlines the Nixon folks couldn’t tolerate, as I was doing my best to defend controversial programs and personnel. Rumsfeld was taking too much heat from the White House, and our relationship became strained. In New Orleans, the program was being sued for representing criminal clients (which we were not allowed to do). When I learned the program had been cleared of those charges, I let them know without consulting with Rumsfeld. In October, he had ordered me not to travel from Washington without central office approval. I knew what kind of fight I was in, so I traveled to New York anyway to meet with the New York Times editorial board. The paper had championed the Legal Services Program, and I wanted them to know about the effort that was under way to gut it. For Rumsfeld, that defiance was the last straw.
When I returned from New York late in the day, my secretary said, “Everyone is waiting for you in Rumsfeld’s office.” I knew what was coming. In fact, I brought a cigar with me to the meeting and lit it up in reaction to what was about to happen. Don told me that he wanted my resignation because he believed I was no longer willing to comply with his instructions. I told him I’d resign only if he’d appoint my deputy, Frank Jones, in my place. Frank was an African-American lawyer from Chicago who had grown up in Mississippi. He was also as hardcore about the mission of OEO as I was, if not more so. That idea was a nonstarter with Rumsfeld, so he fired me.
Because the situation at OEO was so politicized, the response to my dismissal was significant, reported for example with a photograph on the front page of the New York Times above the fold. Editorials and letters in that paper and many others lambasted Rumsfeld and the White House. Sargent Shriver, brother-in-law to the Kennedys and OEO’s first director, and other Washington politicos rallied to defend Legal Services. One of my assistants, Mickey Kantor, who was preternaturally astute at politics, founded Action for Legal Rights to promote the cause with a fund-raiser at Shriver’s suburban Washington estate. My so-called heroism led to my election to the Harvard University Board of Overseers the following May. I was the first candidate ever elected by petition.
My deputy, Frank Jones, was also fired. He had lost an eye, and often wore a patch instead of his glass prosthetic. (I was told that Frank left his glass eye in the top drawer of his desk for his successor to discover.) Frank amplified matters by accusing the administration of racism, which was not an opinion I endorsed.
At a press conference after our dismissals, I said the decision was “political . . . caving in to the political interests, like Reagan.” I accused the Nixon administration, with a dramatic flourish, of supporting only “bargain-basement justice” for the poor.
The Legal Services Program was fundamentally changed after I left. In 1971, the idea for an independent corporation to manage legal services for the poor began to gain momentum as a way to insulate the program from political influence by removing it from the president’s administration. President Nixon advocated this, asserting that such a corporation would make legal services “immune to political pressure . . . and a permanent part of our system of justice.” The Legal Services Corporation was created in 1975. Two decades later during welfare reform, federal funding of legal services was drastically cut and poverty lawyers’ activities were restricted, including a prohibition on class-action lawsuits. Since then, a number of legal service providers have given up federal funds entirely and many existing programs rely only on private funding.
I look back on the old Legal Services Program with pride in its mission and accomplishments, as well as with disappointment over what it did not achieve. There were twenty million poor Americans then; today there are fifty million living below the poverty line. My experience at OEO was enlightening—and sobering. It taught me a lot about politics, that what motivates even the most high-minded politicians isn’t necessarily justice. It also taught me that politics and money often trump facts, especially where the poor are concerned.
But that’s all in hindsight. The days after my firing were pretty rocky, especially since I was about to become a father for the first time. Emily was born on November 29. (It was rumored at OEO that Joyce Rumsfeld had said to her husband, “Don, you can’t fire him now. Margaret’s about to have a baby!”) Arriving at a career crossroads yet again, I needed to find new work to do, and suddenly the options looked limited. I had spent my career working for the government. Crossing the president of the United States in such a public way had made me radioactive.
After my firing, though I had become a cause célèbre to many people who didn’t know me, I felt alone. I hated being at loose ends and didn’t appreciate being the martyr that my liberal friends envisioned. Government jobs were now closed to me and the private legal establishment had little interest in me. Then a man I didn’t know at all went out of his way to help me. Edward Bennett Williams was one of the most prominent figures in Washington, D.C. He was the founding partner of a premier law firm, Williams & Connolly, and had represented many big-name clients.
Williams brought me into various cases at the firm. He introduced me to lawyers in different parts of the city. He took me to lunch at the famed Palm restaurant, where he knew that all the other well-heeled diners would see him sitting with me. He became a mentor and a friend.
I don’t know why Williams decided to do this for me. He had liked the Legal Services Program a lot, and was concerned about what would become of it. But I think he also wanted to send a message to people in the nation’s capital: that when somebody does the right thing, at least in his view, and gets totally destroyed by it, Edward Bennett Williams will stand beside them and help them get back up. Williams’s assistance would play a major role in the years ahead.
• • •
On November 27, 1970, J. Edgar Hoover testified in a closed-door Senate hearing. The legendary FBI director was almost seventy-six years old, frail, and nearing the end of his life. He requested $14.1 million to hire 1,000 additional field agents and 702 clerks. As justification for the additional funds, Hoover announced that the bureau was investigating an “incipient plot” by “a militant group, self-described as being composed of Catholic priests and nuns, teachers, students, and former students” to undermine the American government and force an end to U.S. involvement in Vietnam. He identified the ringleaders as Philip and Daniel Berrigan, two brothers, both of whom were Catholic priests and had become known for dramatic demonstrations against the war and the military draft. Both men were featured on the FBI’s “Ten Most Wanted” list for destroying draft records.
Initially tied to the civil rights, black power, and antipoverty movements, the antiwar movement began to take off on its own in the late 1960s. The draft was random, enlisting young men over the age of eighteen by lottery. Those enrolled in college or graduate school could be deferred. As the need for troops expanded, and U.S. operations in Vietnam began to seem more dubious, the draft became ever more contentious. Young men scrambled to avoid it. Some became conscientious objectors, rejecting war in all forms; others fled to Canada to avoid being called up. Increasingly the draft appeared to be skewed toward the poor and minorities who were unable to use deferments.
Beginning in 1967, radical Catholics inspired by the Berrigan brothers carried out at least twenty-two nonviolent, dramatic raids against draft boards and corporations they saw as abetting the American war in Vietnam, destroying draft records in Selective Service offices where they were stored, often by pouring blood on them for dramatic effect. Others joined the Berrigans in digging symbolic graves outside the homes of various officials whom they believed had some responsibility for the conduct of the war. J. Edgar Hoover, the archenemy of Communism, felt these actions threatened the United States. He was determined to prevent further disorder.
An aide to Hoover leaked the FBI director’s sensational charges to the Washington Post. In response to a flurry of media attention, Nixon’s attorney general, John Mitchell, felt he had no choice but to pursue the case, as he put it later, “to get Hoover off the hook.”
On January 12, 1971, the Justice Department announced indictments of Phil Berrigan and six others on charges of conspiring to destroy Selective Service records, kidnap Nixon’s National Security aide, Henry Kissinger, and blow up the heating systems carried through tunnels under federal buildings in Washington, D.C.*
Dan Berrigan—a Jesuit priest, noted poet and playwright, and Phil’s older brother—was named as a conspirator but not charged as a defendant. The government chose to prosecute the case in Harrisburg, Pennsylvania, near Lewisburg prison, where Phil Berrigan was serving a term for destroying draft files with homemade napalm. The locale led the group of defendants to be known nationally as “the Harrisburg Seven.”*
As the Berrigan brothers had received enormous notoriety over the years, the trial quickly garnered national attention. Well-known lawyers were called in for the legal defense. Led by former attorney general Ramsey Clark, the team included civil rights attorney Leonard Boudin—whose daughter, Kathy, was then sought by police for her role in violent antiwar actions; Paul O’Dwyer, a New York lawyer who later was president of the City Council; Father William Cunningham, a lawyer and a Catholic priest; and local counsel Tom Menaker.
Having become a mini-celebrity among Nixon opponents, I was brought into the case by my friend Charlie Nesson. Nesson was then a young professor at Harvard Law School whom I’d known when he was Doar’s special assistant at the Civil Rights Division for several months and knew my work there. I’d enlisted his help with some Legal Services projects. Knowing my experience as a litigator with a background in investigations, he recommended me to Ramsey Clark. Though prominent litigators, none of the other attorneys had much background in basic fact gathering.
I had questions about our involvement in Vietnam, but I’d never actively opposed the war. In fact, the assistant attorneys in New York routinely arraigned draft dodgers who refused to comply with draft board summonses. But I believed that every defendant deserved legal representation. The Harrisburg case sounded interesting, and offered reasonable remuneration through contributions to the Harrisburg defense fund, so I signed on.
Trying the case in Harrisburg made sense for the government. There were two military armories in the area, and the conservative community offered a jury pool that was expected to be unsympathetic to the antiwar protesters. It seemed to me that the government had everything in its favor. The prosecution claimed to have letters written by the defendants that proved their criminal collusion—and testimony from an informant, a man named Boyd Douglas, who had befriended Phil Berrigan in Lewisburg Penitentiary, where they were both inmates. And they had a judge, a Nixon appointee, who was not at all sympathetic to peace activists. This was one of those can’t-lose cases coveted by prosecutors.
I met with Phil Berrigan for the first time at Danbury Federal Correctional Institute in Connecticut, where he had been transferred prior to the trial. In the prison visitors room, Phil was surrounded by nuns and other priests. This group was warm and welcoming: their greetings usually took the form of hugs—which I was not used to. As they gathered together, they recited prayers and produced small containers of wine that they had smuggled in. At first I didn’t know what to think, but as my visits continued, I found their ritual communion, performed by Father Berrigan, incredibly moving. Facing the full weight of the federal government against them, they focused on prayer, meditation, and reflection on Jesus. Many of the times I met with Phil, he delivered a homily before we began our legal discussions. Phil took time to discuss the Gospels with me and told Bible stories and parables that held new relevance for me.
To the federal government, Father Berrigan was Public Enemy Number One. But I found a warm, open man who quickly shared the story of his life—a background that explained clearly why he came to be sitting behind those iron bars.
Phil had been an army man who came out of the Depression-ravaged middle of America to serve his country in World War II. During one of his first battles in France, his unit was involved in a friendly fire incident. When a tank company panicked in the fog of battle, Phil witnessed the spectacle of Americans unwittingly killing other Americans. He told me of other times when he had seen “perhaps a dozen” trucks of dead soldiers being driven back from the front, an image of “frozen corpses with rigid arms and legs bumping on tailgates as the trucks bounced over the cobblestone.” At the end of the conflict, Berrigan visited a bombed-out city where bodies of dead children and elderly lay unburied and rotting in the sun. These were images he never forgot.
Returning from the war, he joined the Josephite order, founded in 1871 to serve newly freed slaves, and became active in the civil rights movement. He was the first Catholic priest to participate in the Freedom Rides protesting racial discrimination in the South, and studied the nonviolent practices of Gandhi and King. By the midsixties, he turned his attention to protest against a war he felt was morally unjustifiable.
Phil freely admitted he was guilty of antiwar resistance activities. He was proud that his and his brother’s focus on the draft turned many in the U.S. against the war. Phil described how they had destroyed Selective Service records by throwing blood on draft records and burning them with napalm. He described how they had cased offices so they could attack them when the buildings were vacant and no innocent could get hurt. They would sit outside the offices in station wagons for hours, charting the comings and goings of the staff. By 1971 their activities were well known—Phil and Dan had become symbols of the antiwar movement.
While the federal government seriously pursued the charges against the Harrisburg Seven, many questioned the case as a Hoover obsession. Henry Kissinger was quoted as joking that the plot was the brainchild of “sex-starved nuns.” Though many considered the priests heroes, not everyone in the antiwar movement was a fan of the Berrigans. As the movement developed, the more professional organizers considered them naïve and dangerous to the movement’s success. But because they were unquestionably sincere and men of the cloth, the government was threatened by them. The Nixon administration spent more than $2 million on the Harrisburg Seven prosecution.
Central to the prosecution’s case were letters exchanged between Phil Berrigan and Sister Liz McAlister, a nun and peace activist with whom Phil was romantically involved and soon married secretly. Boyd Douglas, Phil’s fellow inmate at Lewisburg, was often the go-between for them. In one intimate letter, Liz described a plan “to kidnap—in our terminology, make a citizen’s arrest of—someone like Henry Kissinger.” Before giving the letter to Douglas for him to pass on to Phil, McAlister wrote an attachment: “Boyd—the enclosed is dynamite and I mean it.”
Berrigan replied that Liz’s plot was “brilliant but grandiose . . . Nonetheless I like the plan and am just trying to weave elements of modesty into it.” That Berrigan would put musings like that in writing and have them delivered by a fellow prisoner that he didn’t know very well only underscored the defendant’s naïveté and trust.
I had no doubt that Phil and his colleagues believed that, if left alone with Kissinger, they could convince him that American involvement with the war in Vietnam was wrong. To them, the morality of their view was so obvious that no one of good conscience could disagree. But I was satisfied that the abduction and heating tunnel plans never got beyond casual musing. In fact, there was no indication of any overt action to bring the plan to fruition. It was clear to me the conspiracy the government alleged was never implemented, and nothing more than a colorful fantasy of idealistic people who believed their devotion could change the world.
We knew the best defense would hinge on undermining the credibility of the prosecution’s star witness, Boyd Douglas, and placing a question in the jury’s mind about his motivations. Douglas was not only a convicted felon, he was also instrumental in encouraging the defendants. He had been allowed to leave Lewisburg prison regularly to take classes and work in the library at Bucknell University nearby. This was how he became Berrigan’s courier. He took letters from the prison and mailed them when he got to the campus. A professor he befriended was the receiving point for communications to Berrigan from the outside. I scoured the statements Boyd Douglas made to the feds, as well as his grand jury testimony, other statements he made, and articles in the college newspaper, the Bucknellian, that he wrote to promote the resistance movement and enhance his campus standing as a revolutionary.
Among my first tasks was to put together a chronology of Douglas’s history, including a timeline of his recent meetings and phone calls interspersed with activities of the Catholic resistance. I identified his acquaintances, Bucknell girlfriends, and fellow inmates to interview. The chronology totaled sixteen typed pages, listing everything from Douglas’s 1959 enlistment in the army to every phone call or meeting he had with defendants in the present case. Just thirty years old, Douglas had been in prison on a number of occasions—for impersonating a federal officer, forging checks, disorderly conduct, and desertion from the U.S. military. He was a known drug user, and records showed he had twice attempted suicide. In 1968, he had received $15,000 from the federal government in settlement of his claim that he’d gotten cancer through a medical experiment when he was imprisoned. The more I learned about Douglas, the more obvious it was that he was far from an ideal witness for the prosecution.
As the trial approached, I was unusually anxious. I’d never before had trouble sleeping, but I found myself often waking at night. Any error on my part might lead to lengthy prison sentences for people I had come to care about. A lawyer is supposed to remain emotionally detached from his clients, and I usually did that. But I found it hard in this case, because I liked Phil and the others and their commitment to peace so much.
During the months preparing for the trial, I worked out of Ramsey Clark’s office in Washington. Once the trial began, I drove with Clark every Sunday afternoon to Harrisburg, where the defense team headquartered in a rented house. It was like a college dorm, with a party every night. It wasn’t long before I booked a hotel room where I could work in relative peace.
Each member of the defense team represented several defendants, so there were overlaps among us. I worked with other lawyers on the defense of Phil Berrigan, but my clients were Phil Berrigan, Father Neil McLaughlin, and Dr. Eqbal Ahmad.
The Harrisburg case pioneered the use of consultants to guide lawyers in jury selection. They helped us to ascertain how likely a prospective juror was to convict, based on personal history, profession, and other characteristics. The first four weeks of the trial were spent questioning prospective jurors. We struck more than one candidate whose opinion about the defendants was a variation of “they should be hung.”
I knew from prior prosecutorial experience that jurors whose jobs required them to tangle with the federal government were often inclined to question the government’s case. One of the potential jurors we considered was an accountant. Picturing accountants as simply hard-nosed number crunchers, some of the defense lawyers wanted to excuse him. But I argued that his experience challenging government regulations on behalf of his clients meant that he might be good for the defense. “These guys spend every day of their working lives fighting against the government,” I insisted. “He’ll be sympathetic.” That turned out to be true, and it may have helped us enormously that the accountant was chosen as the jury’s foreman. Not every choice was a win, however. We kept a woman whose sons had been conscientious objectors, believing she’d be sympathetic to our side, only to learn later that she was actually against our case from the beginning.
The trial finally began on January 24, 1972, more than a year after the defendants had first been indicted. Phil came to court daily in handcuffs and chains. The courthouse became an ever-growing spectacle. Nearly every leftist luminary came to Harrisburg—Howard Zinn, Joan Baez, William Kunstler, Tom Hayden, and Noam Chomsky—along with reporters from dozens of newspapers and television networks. Bob Hope joked about the plot to kidnap Kissinger: “They suspect three priests because the ransom note was written in Latin.” Many other Americans—what President Nixon famously called his “silent majority”—viewed the Berrigans and peace activists as anything but a laughing matter: Communists and traitors who were undermining their country and aiding the enemy in a time of war.
Before the trial, I met with Phil in his cell. He handed me eighteen typed pages. This, he said, was the opening statement he wanted to read to the jury and, by extension, to the nation. “We have never conspired to bomb or kidnap anyone,” the statement said. “While the government has conspired to bomb and kidnap . . . kidnapping millions of Indochinese by single expedients of bombing them out to forcibly relocate the survivors to refugee camps.” He labeled the Selective Service Act’s conscription of young men as “certainly immoral and possibly illegal” and charged that the government had “virtually kidnapped millions of young Americans” through the draft. The statement went on to rail against American policy with respect to the Soviet Union and sharply criticize the military—in a region of the country that depended heavily on the defense industry. Berrigan’s manifesto praised Boyd Douglas “as a friend.” Phil wanted the jury to know that “none of us bear him any resentment or rancor.”
That Phil sincerely believed all of this and thought that he could convince the jury of his views spoke volumes about the distance between his vision of the world and mine as a lawyer. Boyd Douglas had pretended to befriend Phil so as to betray him, and had given Phil’s private and intimate correspondence to the FBI in exchange for a few bucks. Yet Phil wanted to tell the jury what a swell guy Boyd was. Douglas was preparing to damn Phil Berrigan and his friends with incriminating personal letters he had obtained through supposed friendship. Boyd Douglas was no swell guy. He was immoral and malevolent. What Douglas did not know, however, was that I had obtained some letters of my own.
Through interviewing students at Bucknell, I quickly learned that Douglas had seduced female students by claiming to have close ties to the radical Catholics, and had involved several friends in his betrayal. By the time the trial was under way, they had read about Douglas’s collaboration with the prosecution. They were distressed about having been used, and were happy to talk to us. I asked them about their interactions with Douglas. Had he ever given them gifts? Had he ever written to them? “Oh, yes,” some of the women said. “He sent me this card,” or “He wrote me a letter.” I asked if I could read them. They all said yes. The government had already interviewed most of the women but had never asked about any correspondence. I hoped the letters would come as a complete surprise—not only to the government but to Douglas as well. “Listen,” I added when I left each woman, “if the government comes around asking you any questions, I’d appreciate it if you didn’t tell them about the letters.”
Under the prosecution’s guiding interrogation, during the trial, Douglas portrayed himself as a flawed but patriotic ally of the United States government who had turned against dangerous criminals. For several days on the stand in cross-examination, Douglas listened respectfully to questions asked by my colleagues on the defense team. None of the questions seemed to make much of an impression on the jury.
Most of the lawyers cross-examining him focused on his being a plant for the FBI at the prison. From what I could tell, that approach wasn’t working. Jurors knew Douglas was flawed, but they thought he was reforming. I wanted to illustrate that he was not trustworthy.
I was the third or fourth defense lawyer to have a shot at Boyd Douglas. When it was my turn to cross-examine him, I stood and asked, “Did you ever tell anybody you were a ‘nonviolent revolutionary’?”
Immediately the prosecutor rose to object, stating that the witness had answered the question previously. To my surprise, the judge also came to Douglas’s defense by offering testimony on the witness’s behalf. “I think he said before that he didn’t,” the judge said.
After squabbling with both the judge and the prosecution, I went on. “Did you ever tell people on or off the campus that you were committed to and believed in strategic sabotage?” I asked Douglas.
“No,” he replied.
“You never said that?” I asked. “You never advised anybody of that?”
“I don’t recall that,” Boyd replied. “No.”
Then I showed him one of the letters I’d obtained from my interviews, a letter he had sent to a woman at Bucknell, and asked him to identify the handwriting as his own. He did.
I then read the letter aloud: “This is where I am at politically: A made, totally committed nonviolent revolutionary who believes in strategic sabotage . . .” He’d also written: “There may be an interesting project that would interest you after the turn of this year . . .”
I kept reading until I reached his sign-off at the end: “Take Care. Right On. Peace. Boyd.” I paused for just a moment before reading the letter’s final line: “P.S. Please destroy this letter.”
I turned back to the witness, whose face seemed a bit paler. “Mr. Douglas, there is a reference to ‘an interesting project’ after the turn of the year. What was that in reference to?”
“It was in reference to the tunnel system,” Douglas replied.
“In reference to what?” the judge asked. He seemed as surprised as the jury.
“In reference to the tunnel system, Your Honor,” I replied.
At this point, I heard another objection—not from the prosecutor, or the judge, but from the defense table. Leonard Boudin, the famed civil rights lawyer who rarely shied from the spotlight, jumped into the action by offering a statement that made little sense to anyone. It was so strange that the prosecutor rose to add, “I object to Mr. Boudin interrupting Mr. Lenzner.”
“I have other clients here,” Mr. Boudin replied, “and I don’t believe this interruption is unwise.”
After Boudin rose on another occasion, really just to insert himself in the procedure, even the prosecutor whispered to me: “Can’t you keep your own guys in hand?”
Boudin had interrupted because he was irked that I was making headway with letters he knew nothing about until that very moment. I had told none of the defense lawyers except for Ramsey Clark. I was afraid the correspondence would be leaked to the press and the value of surprise would be lost. Clark had agreed with me. As leader of the defense team, he usually wanted everyone on the team to feel included, but he was also a brilliant strategist. As for me, I didn’t care as much about that collegiality as I did about winning the case.
As soon as Boyd lied the first time, I knew I had him. In a good cross-examination, you get to a point where the witness doesn’t know what’s coming next and starts to visibly struggle to keep his story straight. This happened to Boyd Douglas, who suddenly came off as totally flat-footed.
Douglas admitted it was he, not Berrigan, who first brought up the plot to bomb heating tunnels. He admitted to having alias identifications and making a series of misstatements to the FBI. When I presented another of his letters, he admitted to asking for $50,000 from the FBI as a reward for the information he was providing. As for a list of instructions that Berrigan allegedly had dictated to Boyd for the plot to kidnap Kissinger, Douglas admitted that he had not given the memo to federal authorities until after J. Edgar Hoover discussed the “insidious” plot to abduct a high-ranking official to the U.S. Senate.
My cross-examination was the subject of numerous press reports, with some reporters referring to me as “rumpled” and carrying a “battered briefcase bulging with work.” At least I fared better than Boyd Douglas, who, under intense questioning, was described this way by the press: “He slumps, pouts, his pudgy mouth sullen.”
Of the many blows to Douglas’s credibility, I thought the most damaging was the evidence—by his own hand, no less—that he was a cad. In one letter I presented to the jury, Douglas had proposed marriage to a woman, telling her he had terminal cancer. He wrote an intimate letter to another woman during the same time he was romancing her roommate. To another woman Douglas wrote, “I have given my life to the struggle,” and then added, “I get warm vibrations from you . . . I want our relationship to be real for both of us.” He lied to one woman, claiming that scars on his leg were from machine gun wounds he sustained in Vietnam. There were nine females on the jury. For most of the trial the jurors had sat emotionless, giving little indication as to their leanings. But that changed with Boyd Douglas. One reporter noted that, as they heard Douglas’s testimony, the women on the jury “swallowed smiles and stirred in their chairs.”
During a break in the cross-examination, Phil Berrigan pulled me aside. “Terry, don’t you think you are being too hard on Boyd?” he asked.
I looked at him, slightly incredulous.
“We have to respect humanity,” the priest said.
“Phil, this is the only way to win this case,” I told him. Though what he was saying was unrealistic, there was something touching about it too. Despite our different approaches, I had come to respect and like Phil and many of the other defendants. But I knew that I couldn’t let his attitude soften mine; otherwise, he would likely end up in jail with a substantial sentence.
On March 21, 1972, one of the most important government witnesses, the FBI agent who handled Boyd Douglas, took the stand. The agent—code-named “Molly”—tried to defend Douglas’s credibility. But, crucially, he testified that he had referred to Douglas as an “accomplished confidence man” in a memo to J. Edgar Hoover. Just in case the jury missed the point, we called Boyd Douglas an outright liar every chance we got.
Having worked with bureau agents in Justice Department jobs, I had seen varying levels of integrity and quality, and was more cynical and questioning of the government than I might have been otherwise. During the trial, for example, an FBI agent testified he had questioned some of the priests after a local police officer had stopped them for speeding. I doubted that story. “If the defendants were stopped for speeding,” I asked the agent, “then how did you just happen to be in the same location to question them?” He then admitted that he had called the local police ahead of time to set up a reason to stop the car.
By the close of the prosecution’s case, the defense team faced a critical decision. Should we put our clients on the stand and risk their antiwar sermonizing? Or should we rest our case without their testimony, gambling that the jury would find the government’s evidence was insufficient to prove its case? I had mixed feelings about this. We had witnesses ready to further discredit Boyd Douglas. Some of the information would be very damaging to the government’s case. But I also knew the decision not to call witnesses would be a major surprise—and surprise has its advantages.
It was a gutsy call, and Ramsey Clark made it. When it was the defense’s turn to present its case, Clark rose from his chair and told the stunned courtroom that, since the government hadn’t proved its case, we would therefore call no witnesses. Moving to summations, Clark was far more eloquent than I could have been.
“What distresses me most is the government’s effort to paint people with an enormous passion for peace as violent,” the former attorney general said. He compared the antiwar views of the defendants with those of the martyred John F. Kennedy. Quoting Kennedy as saying, “‘I look forward to a day of peace and freedom,’” Clark added, “That’s why he was killed—violently, with a gun. These defendants also say, ‘We look forward to a world of peace and freedom.’” When he was finished, one of the jurors brought a handkerchief to her eyes.
But closing arguments weren’t over. Each lawyer made his own statements. My closing summation tended more toward the facts. On a blackboard, I listed the names of other Berrigan associates who had been named during the trial. “If this is a major conspiracy requiring the full attention of the federal government,” I asked, “then why aren’t these other people named in the indictment?” It didn’t concern me that I was making a controversial point by focusing the spotlight on the defendant’s friends and others who had escaped being charged. The case, I maintained, was a selective prosecution to punish well-known antiwar activists.
Boyd Douglas, I added, “was the one with the bit in his teeth about illegal projects . . . a streetwise confidence man. He had larceny in his heart from the very beginning.”
“The defendants will always seek peace,” Clark said. “The defense continues to proclaim their innocence—and the defense rests.”
The jury was to decide guilt or innocence on ten counts: three for conspiracy to kidnap Kissinger, destroy federal property, and interfere with the draft; and seven counts for sending letters into and out of federal prison without the warden’s consent. On the first day of their deliberations, after meeting for seven hours, jurors asked the judge for a blackboard and a rereading of the judge’s instructions on the law. This told me there was at least some disagreement in the jury room. After thirty-three hours, the jury reported to the judge that it was deadlocked. The judge told them to go back, but the result did not change. The jury failed to reach a verdict on the conspiracy charges. It did, however, find Father Phil Berrigan and Sister Liz McAlister guilty of smuggling the seven letters. Despite the guilty verdict on these minor offenses, I considered the case a victory.
Shortly after the verdict, Liz McAlister sent me a card. On the cover was a picture of Washington crossing the Delaware, and inside was the inscription “You’ve revolutionized my life.” She apologized to me and the other lawyers for the “pain” the case caused us. In truth, we had received enormous criticism for coming to the defense of the Berrigans. But it was nothing like the criticism they received every day. “The process wasn’t as neat and easy as it could have been,” she wrote, “but it was real and it was human and that may be more important.”
I knew how she felt. The Berrigan case was an eye-opener for me in a number of ways. It was my first glimpse of the federal government from the other side of the courtroom. I listened to wiretaps of the men and women I was defending. Wiretaps had meant something different to me when I was a prosecutor and government lawyer than they did when they were targeted on defendants whom I liked, respected, and called friends. It was unsettling to hear people I knew holding conversations without any idea the government was listening.
The Berrigans demonstrated how people who don’t have a lot of power can have a huge impact on public policy through public opinion. The Harrisburg defendants were confident about their beliefs—and ready to go to jail for them. The consequences of their actions didn’t scare them. As someone who’d tried to keep emotional distance by avoiding that kind of extreme commitment and active witness, my participation in this case had a profound impact on me. It was the first time that I had felt someone’s fate in my hands, something I found more challenging than I had imagined it would be. I received an education in how to handle sensitive documents like Douglas’s letters, and it taught me to trust my instincts: a juror I had fought hard for played a vital role. It changed me in ways that I still probably don’t fully understand.
A less profound result of my work on the Berrigan case is that I suddenly found myself a darling of the political left. Which was jarring, since I never saw myself as an ideologue of any kind. That would soon become clear enough to my new supporters.
• • •
In the spring of 1973, about the same time the Watergate probe was heating up, testimony was heard in the trial of U.S. v. Ellsberg. Daniel Ellsberg was a former military analyst who had served in the Defense Department under Secretary of Defense Robert McNamara. At the RAND Corporation where he worked subsequently, Ellsberg obtained a series of classified documents about the Vietnam War going back to the days of the Kennedy and Johnson administrations. Excerpts of those papers were leaked to the New York Times, which published them in a series that started on June 13, 1971, under the relatively innocuous article title of “Vietnam Archive: Pentagon Study Traces Three Decades of Growing U.S. Involvement.”
The “Pentagon Papers,” as they soon became known, revealed high-level assessments of the situation in Southeast Asia that were far more pessimistic than the U.S. government had been telling the American people. The casualty estimates for the war, for example, were far higher than was publicly disclosed. The documents, as an editor of the Times later put it, “demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”
The Nixon administration couldn’t have cared less about the Johnson White House, but they were furious about the unauthorized disclosures of classified material and the potential damage done to their own efforts in Vietnam. They decided to prosecute Ellsberg on charges of espionage, theft, and conspiracy. Demonstrations against the war were escalating, and the trial promised to be even more highly publicized than the case against the Berrigans.
Ellsberg portrayed himself to the media—very effectively—as a noble man of action and a potential martyr, a patriot who put the country’s interests ahead of his own. “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public,” he told the press. “I did this clearly at my own jeopardy, and I am prepared to answer to all the consequences of this decision.” To this day, he remains a folk hero to many of the left. To many on the right, he is considered a “rat” and “traitor.” Many Ellsberg defenders assumed I agreed with him too. I didn’t know, frankly, what he was. I appreciated the government’s compelling need to maintain the secrecy of confidential information. At the same time, the information Ellsberg leaked had shed significant light on the controversial war effort and how the government had deliberately hidden its prospects for success from the American people.
As preparations for the trial were under way, I was invited by Charlie Nesson, who was involved in Ellsberg’s defense, to fly out to California to meet with Ellsberg. I found a well-spoken man of about forty years of age, thin, with dark hair and piercing blue eyes. He was a graduate of Harvard (where he received a Ph.D.) and Cambridge universities, and had served in the Marines. Ellsberg did not look like a man fearing a criminal prosecution. If anything, he seemed to be enjoying his celebrity. Some wealthy person on the coast put him up at a swanky estate overlooking the Hollywood Hills.
I met Ellsberg behind the house by the pool. He was wearing a swimsuit and a pullover and chatting amiably with his friend Tony Russo, an associate at the RAND Corporation and a codefendant in the case. Russo had been given immunity in the trial in exchange for his testimony against Ellsberg.
When I introduced myself to the two men, they barely said hello and kept up their discussion. At one point I overheard Ellsberg openly discussing with Russo the people to whom he had given documents for safekeeping and where they had been stored. He mentioned various women by name. I wasn’t sure they understood the law, because what Ellsberg was doing was alarming. Not only was he giving information to Russo, a witness for the prosecution, that could be used against him at trial, but Ellsberg was also putting targets on the backs of all the friends who had assisted him.
“Dan, I have to stop you right there,” I said. “Tony here is under subpoena to testify against you. You can’t give him this kind of information.”
Ellsberg looked at me as if I were speaking gibberish. “You don’t know what you’re talking about,” he said. “We’re friends.” He told me, basically, to scram.
After that exchange, I visited a few of the people Ellsberg had named as associates—people who had aided and abetted him to copy and disseminate the Pentagon Papers. One of them was an attractive blond woman who lived in a house on the beach in Malibu. When she told me that she was visiting the United States from Sweden on a temporary visa, I became alarmed, knowing that her status made her vulnerable to pressure from the federal government. I couldn’t imagine why Ellsberg would have stored these sensitive papers with someone like that. Did he think her foreign nationality would somehow protect her? Or did he want to impress beautiful young women with how he was outmaneuvering the federal government? What was worse, he seemed to care not at all that his friends who possessed the papers were vulnerable to prosecution. If any of them received immunity and still refused to testify before a grand jury, the federal government could put them in jail for the life of that grand jury—up to eighteen months. I had just come out of a four-month trial for people I had some respect for—the Berrigans. I didn’t need to spend three or four months with someone’s out-of-control ego. I knew it was going to be a huge, high-profile case, but I told Ellsberg’s defense team I wasn’t interested. I didn’t see myself working for a guy like that.
During Ellsberg’s trial, it was revealed that senior Nixon officials had ordered a break-in of the office of Ellsberg’s psychiatrist to gain information to discredit Ellsberg. That revelation added to the shock waves emanating from the wobbling White House just when the Senate Watergate Committee was beginning its investigation in April of 1973.