MUCH OF MY TIME DURING THE FIRST FEW WEEKS AS HEAD OF THE Office of Legal Counsel was spent trying to understand my responsibilities, organizing my office, and getting to know colleagues both in my own office and elsewhere in the department. It became clear quite quickly that Bobby saw the department as a group of teammates working to carry out the responsibilities of public servants, not as a bureaucracy composed of principalities over which he ruled. The team was not simply the presidential appointees that he had brought into the department. It included civil servants as well, and he went to great lengths to get to know as many people in the huge department as he could. He wanted everybody on his team, and he made that desire clear and believable to everyone.
There was virtually no formality in his leadership. In shirtsleeves, with a loosened tie, he roamed the halls of the department, dropping in on lawyers unannounced, asking civil servants what they were working on, showing an interest in what they said and speaking words of encouragement. He brought the young lawyers, most of whom were assigned to the Civil Rights Division, to his enormous office, where he engaged them in informal discussions about their work—and his. He never lectured anyone, and he treated everyone as an equal. It was obvious that this was not a calculated performance. It was simply the way Bobby was. And lawyers in the department, who had always envisioned the attorney general as a remote senior government official riding over to the White House in his limousine and far removed from the ordinary people, loved him for it.
Bobby was not a bad lawyer, but he did not hold himself out as superior, the way most attorneys general have done. Most attorneys generals are from Wall Street (or equivalent) firms, with little experience or interest in criminal law, which can be safely left to experts in the FBI and civil servants in the Criminal Division. Their interest tends to run along the lines of their experience—tax law, antitrust policy, large civil cases—and in these areas they want to see high-quality work that will impress their legal peers. These are the areas that interested Bobby the least. He was interested in the quality of investigations that led to results, not the quality of legal analysis in briefs or opinions designed to impress leading practitioners. To the extent that quality was important—for example, in the solicitor general’s briefs to the Supreme Court or the department’s position on constitutional issues—Bobby left the writing to his associates. He was interested in using law as a tool to implement policy and cared more about the bottom line than the reasoning that got one there.
The senior staff at the department was largely a mixture of Ivy League lawyers like myself, recruited by Byron, and those who had worked with Bobby in the Senate. In the former group were Louis Oberdorfer (Tax Division), Burke Marshall (Civil Rights), and William Orrick (Civil Division). Archibald Cox, the solicitor general, was in this group, although he was the choice of the president, whom he had worked for in the campaign while teaching at Harvard Law. Those who had worked with Bobby were Jack Miller (Criminal Division) and two prizewinning newspaper reporters, John Seigenthaler (executive assistant) and Edwin Guthman (public information). Because of Bobby’s relationship to the president, the press was all over Guthman all the time. And there was not a better public information officer, or a more loyal one, in Washington.
Bobby also brought with him Walter Sheridan and Carmine Bellino to head up the Hoffa investigation, as well as his secretary, Angie Novello. Not in either group were Lee Loevinger, who left the Minnesota Supreme Court to head the Antitrust Division, and Ramsey Clark, the only senior appointee younger than Bobby, to head up the Lands Division. Working for Byron as his deputies were William Geoghegan and Joseph Dolan, both excellent lawyers who had worked with White in the campaign. Dolan had worked also in the office of Senator Kennedy and was familiar with the Congress, an important asset, since the deputy attorney general was responsible for the department’s legislative program as well as judicial appointments. John Reilly, another campaign worker with political acumen, headed up the office dealing with U.S. attorneys’ offices.
In retrospect, I think it would have been easy for the department to have split into cliques. But Bobby was determined to have us all working together as equals, and no one was allowed special claims to a particular turf because of title. There were exceptions. J. Edgar Hoover could not be a member of a team with such a young and inexperienced captain, although Bobby did make some inroads in the FBI’s isolated bureaucracy on the organized crime front. And relatively little attention was paid to the Bureau of Prisons, run skillfully by James Bennett, or the Immigration Service, run accommodatingly (to Bobby and to the relevant congressional committees) by Ray Farrell.
What made it possible for Bobby to mold this group into a single team was the fact that all of us quite quickly came to appreciate the very talented people who were on the team and, even more important, Bobby’s ability to engage the loyalty of each of us, both to him and to each other. We all participated in the making of policy, and he treated each of us as a valued colleague, not as the head of a division or someone with turf to protect. He encouraged the opposite—sharing problems and concerns and seeking the opinion of colleagues. The members of the group were sufficiently talented and self-confident to welcome a suggestion and to offer advice when it was sought.
It certainly helped that Bobby was a wealthy young man with a wife who, I sometimes thought, must be a caterer’s dream of heaven on earth. Two or three times a week Bobby would call Ethel at noon and inform her that he was bringing six or seven of us home for lunch. When the weather was warm, we would sit by the pool at Hickory Hill, and Bobby would seek our views on many issues, often matters of policy far from the responsibility of the department but not, of course, this attorney general. More often he would use these informal occasions to get advice on matters within the department as well. I can recall vividly the approach: “Look, you guys, I’ve got a problem. You are all better lawyers than I am, but I’m the attorney general, so it has to be my decision. But that doesn’t mean it has to be uninformed, so let’s hear what you think.”
And he would. The subject matter could be anything—organized crime, Hoffa, civil rights, legislation. The discussion was often vigorous, sometimes argumentative, but more often than not common ground was discovered. I found the comments informed, intellectually invigorating, and fun. It was of course heady to feel so close to the seat of power—a feeling often enhanced by the appearance of Jackie Kennedy enjoying a swim in the pool.
In the early days we were all trying to get a feel for our jobs and our responsibilities as well as each other. For this we depended on the career staff, who, in the case of the Office of Legal Counsel, I found talented and dedicated.
My first assistant, Harold Reis, was a career attorney who was a former editor of the Columbia Law Review and married to the sister of Morris Abram, a Rhodes Scholar classmate of mine at Oxford and a leader in the Jewish community. Harold was bright and energetic, and I would have been lost without him. There were some twenty lawyers in the office, and six or seven of them, like Harold, were of a quality any law firm would have been proud to hire. Of the utmost importance were files going back many years of the legal advice given by the office to the attorney general and to the White House directly. That advice was of high professional quality and free of political taint. I was determined to keep it that way, and Bobby totally supported that view.
There were good lawyers in the White House performing various political tasks but, despite the title of “counsel,” rarely giving legal advice. I encouraged Bobby to make sure they came to the department for such advice and thus avoid the embarrassment of prior differing views. Further, not all the laws that apply within the executive branch are easy for lawyers coming from private practice to find. My credibility with the White House staff went up when they were on the verge of giving General Maxwell Taylor a title similar to one given to Admiral Leahy by FDR and specifically forbidden by statute. Ted Sorensen, who had been President Kennedy’s principal aide in the Senate, and his two associate counsels appreciated the need to be sure the department agreed in advance, and used my office for advice. In addition, at Bobby’s direction, they quickly refrained from meeting with lawyers whose clients had problems with the government, referring them to the proper division in the department. It was important to Bobby’s public image as well as his personal integrity that politics not influence legal decisions, and being the brother of the president helped to insure that others did as he wished.
One problem that came up early in JFK’s administration was the appointment of Joseph C. Swidler as chairman of the Federal Power Commission, an office the president had apparently promised him. This would necessarily involve the removal of the sitting chairman, Jerome Kuykendall, who had a year remaining in his term. Initially the problem of the president’s power to remove the chairman did not come to me through channels. I read about it in the Wall Street Journal and thought we had better research the matter, because I had a clear recollection that the Supreme Court had ruled that presidents cannot remove members of independent commissions. I was concerned that JFK was about to make a mistake, and I alerted Bobby to the problem.
My recollection was correct. The Court’s decision in the landmark case of Humphrey’s Executor was still the law, and I got a memo from my staff saying so. I very nearly gave this advice to the White House, but when I discussed it further with Harold Reis, he said he wasn’t satisfied that removing a person as chairman was the same as removing him from the commission, and only the latter was specifically forbidden. It was a distinction worth pursuing, and we did. There was no precedent one way or the other, but both of us became convinced that while the president’s executive power did not extend to removing Kuykendall from the policy-making function of a commissioner, it might well extend to removing him from the administrative functions of chairman. Harold wrote a quite persuasive memo to that effect, and I signed it.
At the suggestion of the White House, we provided Kuykendall, Swidler, and the chairman of the House Commerce Committee, Oren Harris, with a copy of that memo. Kuykendall had been prepared to fight his removal from the commission, but he became more hesitant over his removal as chairman. Such a fight would be embarrassing to all. He would be locked out of his office and become the center of public attention in a cause he might well lose in court. Chairman Harris negotiated a compromise: his resignation in sixty days. Kuykendall agreed, but Swidler insisted that thirty days was all he would agree to.
Ralph Dungan, a White House political appointee who was following the appointment for the president, asked me to come to his office and talk to Swidler. I did, but he remained adamant, and the matter was obviously going to the president for a decision. I knew Bobby was with the president; I had not had the opportunity to brief him on the latest developments, and I had no idea what Dungan, whom I did not know very well, would recommend. I left Dungan’s office and sent a note to Bobby saying that I had to see him. I got a note back: “Come on in.” So into the Oval Office I went.
I told the president and Bobby, “If the issue of Kuykendall goes to court, I think we will win, but it will be a mess for everyone. He’ll take sixty days and resign. Swidler insists on no more than thirty. I’d take sixty and be thankful.”
President Kennedy said, “So would I.”
At that point Dungan came into the office from the other door and said essentially what I had said, concluding, “Swidler wants to contest this, but I’d take Kuykendall’s offer.”
Without knowing each other and without discussing it privately, Dungan and I had arrived at the same conclusion. It was the kind of event that increased mutual confidence and respect.
In general the White House sought and followed the advice of my office directly and through the attorney general. But occasionally politics trumped law, though not in the way one would expect. In the major example I can recall, Ted Sorensen’s advice on federal aid to parochial schools may have been more conservative than the advice he or I would have given to a non-Catholic president.
At a press conference, President Kennedy was asked about aid to religious schools and gave an answer that was quite knowledgeable and quite conservative. It had, after all, been a subject which, as a Catholic presidential candidate, he knew had been a hot button for many Protestants and Jews. He had been well briefed on the subject by Sorensen, who in turn had consulted a leading Protestant conservative author, Paul Blanshard. Given the importance of the subject during the campaign and the position taken by the candidate, the president’s response was hardly surprising. Nor was the fact that my office had not been consulted.
Nonetheless, late that afternoon Bobby asked me to prepare a memorandum for the president on the constitutional limits of federal aid to religious schools and colleges. It was for an early morning meeting, and I am not sure that Bobby, who was not noted for scholarship or research, realized what a tough deadline he had imposed. With three or four of my most senior staff, I went to work, prepared for an all-night session. A little before midnight we completed our research and spent some time discussing our conclusions. Obviously, for our first Catholic president and his brother, this was a sensitive subject. Further, the president had already opined on the subject of school aid at the press conference and more generally during his campaign.
It would be wrong to say that the Constitution as interpreted by the Court was clear on the subject, and it was not easy to make a coherent rule from its decisions. My staff and I were inclined to think that the president’s stated view was pretty close to the mark as far as elementary schools were concerned but that there might be more leeway if the recipient was a university.
My secretary had stayed on, and I began dictating our conclusions and reasoning, with help from Harold Reis and Leon Ullman, another able career attorney. I finished some two hours later and waited for the typewritten version. When none was forthcoming, Harold went to investigate. My secretary—who, incidentally, was excellent—was bent over her desk in tears. She couldn’t read a word of her shorthand notes.
Harold and Leon got on the phone and located another secretary, who came to the office at about three in the morning. We began again, although this time it was a little easier than the first time. The memo was edited, completed, and sent to Bobby and the White House by seven a.m., and we were pretty proud of our work. It concluded—I think correctly—that the Constitution was quite strict on aid to elementary and even high schools but far more permissive in the case of higher education.
I went over to the White House with Bobby, and we stopped first in Sorensen’s office, where we talked about the problem for a few minutes, and then proceeded to the president’s office. Abraham Ribicoff, the secretary of what was then health, education, and welfare (HEW), was there. Understandably, he wanted as much leeway as he could to improve education in the United States. He was attempting to persuade the president to a more lenient view.
“Well, Mr. President,” said Ribicoff, who was a very good constitutional lawyer and had clearly done his homework, “I think this is an issue under the Supreme Court’s decisions on which you can go either way.”
Bobby looked at me and I interrupted. “That may have been true yesterday, Mr. Secretary, but since the president has gone one way on it, it’s somewhat less true today than it was before. There are areas of some flexibility here—for example, the whole field of higher education—but not much with respect to schools.”
The president ignored me and said to Ribicoff, “What do you mean, Abe, I can go either way on it?”
Ribicoff replied, “I think you can either aid parochial schools or not, just as you please. Under the decisions, I think you are free on this subject.”
While the decisions were not as clear as one would have wanted, I thought this view somewhat extreme, at least in the case of schools, as distinguished from higher education.
The president turned to Ted Sorensen. “How does Blanshard feel about that?”
Ted replied, “Why don’t I call him and see if there is any leeway at all?”
Blanshard, of course, was a dedicated opponent of any aid whatsoever. When Ted called him, he expressed the view—not surprisingly—that in his opinion there was no distinction and no leeway at all.
President Kennedy commented, with some feeling, “Eisenhower could have dealt with this whole problem, but I can’t.”
And there it remained for the moment.
Aid to religious schools was probably the only subject on which it was a handicap to the president to have his Catholic brother as attorney general. It is hard today to understand the religious suspicion that underlay the feelings about having a Catholic president—the fear that religion would be politicized. Today the shoe is almost on the other foot, as God is invoked to justify political decisions. But the fear of many then was that the pope would be running the United States from the Vatican, and the Kennedys were forced to lean over backward to demonstrate that their religious beliefs did not control their political judgments.
We did eventually find a little more leeway than Blanshard would have approved. Later HEW published my memo as its own, and Bobby endorsed it. The press (aside, perhaps, from two or three reporters close to Bobby and the department) did not associate it with Bobby, and HEW was able to use it to aid higher education in some ways in religious universities and colleges.
My office dealt with a hodgepodge of other problems, some important, some far less so. A number of problems came up in connection with Jackie Kennedy’s desire to redo the White House with gifts to make it into a more authentic museum reflecting its history. These problems brought me in contact with that lovely lady and led to a friendship that continued until her death. She sometimes treated me as her lawyer and sought advice on unrelated matters. But I was not always as accommodating as she (or, for that matter, the president) would have liked.
Some of the problems were as much political as legal. I advised Jackie that she should not accept a large gift from Jules Stein, head of Music Corporation of America, because we were about to sue MCA for alleged antitrust violations. That counsel was not well received by her and resulted in a very long phone conversation with the president, who was being the good husband. I suspect he talked to Bobby, and Bobby simply told him to talk to me. Probably both of them agreed with me but preferred to let me take the blame from Jackie. Shortly thereafter, at a White House reception, the president brought it up with me as Jackie stood alongside him in the receiving line.
“Nick, isn’t there something we can do to help Jackie get that quarter of a million dollars? Perhaps later, when it’s all over?”
I played along. “Maybe sometime in the future, but it would be a bad idea to do it right now.”
The MCA case was in fact settled. I have no idea if Jackie ever got the gift.
In the days of the cold war we had problems created by a Congress which, in McCarthy-like fashion, wanted to stamp out the Communist threat within the United States. Both Bobby and the president were skeptical about the threat within this country as some saw it. Bobby, for example, left the Internal Security Division, which was charged with prosecuting such threats, in the hands of Walter Yeagley, which could be viewed as a sop to Hoover or, as I saw it, a way of minimizing its importance. Bobby required all matters to be reported directly to him, and he succeeded, with help from the rest of us, in mooting virtually every prosecution proposed by Yeagley and his staff.
One example was a program run by the post office to inhibit the entry of foreign political propaganda of a subversive nature as a danger to our national security. I discovered that the Eisenhower administration had appointed a committee of the National Security Council (NSC) to look at the program. The committee had unanimously concluded, after thorough study, that the program should be dropped because it had no significance at all in terms of national security. But with the election coming up, the Eisenhower administration had chosen to do nothing and leave it alone. I raised it with Bobby, who took up the issue with his brother on the phone.
The president thought the study by his predecessor provided a good basis to drop the program: “I don’t like it. Let’s get rid of it.”
So we did, first getting the secretary of state, Dean Rusk, and the secretary of the treasury, Douglas Dillon, to join Bobby in endorsing the NSC committee’s findings. All to no avail. As soon as our intentions became known, Congressman Glenn Cunningham introduced legislation to restore the program, which easily passed both houses. Then, as now, national security could be invoked successfully to justify all kinds of idiocy. Clearly there can be times during a war when such a program might be justified, at least in theory. We did not believe a court would uphold the prohibition on the present facts, but we wanted to preserve the theoretical option, so we went back to mooting the cases before they were brought. Corliss Lamont nonetheless brought a case seeking an injunction, and in 1965 the Supreme Court found the statute in violation of the First Amendment.
During the time I worked with Bobby, he was always sensitive to civil liberties and often courageous, as in this instance, in the positions he took. Given the team he had chosen, he would have to have been. But it went beyond that. Even in matters of organized crime and Jimmy Hoffa, where the temptation to cut corners would have been greatest, he never did. Yet during his lifetime he never succeeded in persuading liberals that he took seriously all the guaranties of the Constitution, even though every act he took—or refused to take—supported that position.