“Only If I Yell ‘Duck!’”
Noon was my jogging time, a chance to escape the pressures of being a federal judge. My route was always the same—through East River Park and back again—and so regular was my regimen that the guards at the U.S. Courthouse on Foley Square in lower Manhattan had long ago stopped gawking when one of their distinguished jurists showed up at the door dressed like a gym rat. Today, though, I was wearing a suit when I came down the granite steps, not running gear. The date was Friday, July 16, 1993, and I was headed to Washington, D.C., to meet with Bill Clinton at the White House. If the president liked what he heard, he was going to offer me the position of director of the Federal Bureau of Investigation. If I liked what I heard, I was going to accept.
If only it had been that simple, but in Washington almost nothing is.
The fact that I was being considered at all by the White House for the job was a classic happenstance of politics. Ever since he’d taken office, Bill Clinton had been determined to get rid of the FBI director he inherited from the first President Bush: Judge William S.
Sessions, then less than five years through his statutory ten-year term. Clinton had cover for the move. Outgoing Republican attorney general Bill Barr had recommended it. The judge had thrown his own fuel on the fire, too. The bill of particulars against him included numerous incidents that could be interpreted as using his office for personal gain: business trips to San Francisco, where his daughter danced in the ballet; a security fence around his house that Sessions’s wife insisted be more aesthetically appealing than the usual government issue. Bill Sessions is an honorable man and I still think the case against him was mostly bunk, but blood was in the water, and the capital was buzzing that the new administration was trying to politicize the Bureau.
The president had wanted to replace Sessions with his old Oxford pal, Richard Stearns, an able lawyer who later became a very respected district judge in Boston. Before he could do so, though, the first of many Clinton scandals bubbled up from far down in the bureaucracy. What became known inevitably as Travelgate was basically a patronage dust-up. Opponents in and out of government claimed that the Clintons and others were using the FBI to houseclean the White House Travel Office to make way for cousin Cornelia. It all blew over quickly enough, but the public already had early doubts about the president’s allegiance to strict ethical standards. Add Travelgate to that mix, and it became politically difficult, if not impossible, for the president to put a friend into the sensitive job of FBI director.
Thus it was that the administration decided to find a “stranger” to run the FBI. Not so strangely, maybe, I involuntarily became the one under consideration. I had, after all, spent six years as an FBI agent in New York City and another ten years there with the U.S. Attorney’s Office, winning convictions in some of the office’s highest-profile cases, in the nation’s highest-profile venue. Like Sessions and his predecessor, William Webster, I also had experience as
a U.S. district judge. I’d even put in some time in Washington at what was then the new, massive J. Edgar Hoover Building on Pennsylvania Avenue Northwest.
In 1980, after completing one of the Bureau’s first organized crime–labor racketeering cases, I was ordered to headquarters to set up a labor racketeering program in the Organized Crime Section. I can’t claim the ten months I spent in the capital were the happiest time of my life professionally. The transition from fast-moving investigations, informants, and wise-guy subjects to a windowless room deep in the bowels of the Hoover Building left me feeling suffocated, and I jumped at the chance to get back to the streets of New York via the U.S. Attorney’s Office for the Southern District of New York. Personally, though, Washington proved a bonanza. Not only did I get the chance to work with the legendary agent Jules Bonavolonta—my mentor and close friend—I also met a gorgeous redhead from Pittsburgh named Marilyn Coyle, an exceptional paralegal in the Bureau’s Civil Rights Unit whom I would have the undeserved good fortune to marry.
Politically, too, I wasn’t a bad match for what the Clinton people seemed to be seeking. When I was first old enough to vote, I registered as a Democrat, but that was mainly in deference to my dad, a part-time ward worker for the party in Hudson County, New Jersey. In the years since, both the Hatch Act and my own lack of interest in partisan politics had kept me from associating closely with either party. Senator Alphonse D’Amato had recommended me and Sterling Johnson for judgeships in Manhattan and Brooklyn, respectively, and introduced us to the press at his New York City office. (I later recommended Sterling to replace me as director. A former New York City police officer, federal and state prosecutor, and navy veteran, Sterling was an excellent judge, with the experience, credibility, and—most important—independence to be a great FBI director.) D’Amato, of course, was a Republican, but when a reporter asked him about my
party affiliation, the senator, for one of the few times in his life, I’m sure, had no idea what to say. “You know,” he finally blurted out, “that’s a good question and I don’t know.” In fact, at no time during the nominating process did D’Amato or anyone in authority ask me what party I belonged to. If someone had, I’m not sure what I would have answered. I always respected D’Amato after that, and our New York City and Italo-American roots led us to be friends.
Finally, and President Clinton would come to regret this, I’d never been anyone’s water carrier. Integrity and independence make or break an FBI director. The incumbent has to be able to say no to the attorney general or even the president if no is the right answer. Functioning as merely another direct report and saluting the “General” in all matters was not the role envisioned by Congress when it gave the director a ten-year term, removable only for cause, not disagreement with an improper or unlawful command.
Once, the secretary of state and attorney general asked me to deploy our Hostage Rescue Team (HRT), the FBI’s most elite special operations group, to Bosnia in order to find and arrest fugitives wanted by the United Nations tribunal for Balkan War Crimes. I considered the matter but then I said no—the mission was too dangerous for our agents and could not be logistically supported by military or intelligence operations. I later found out that the secretary of defense had declined to send special operations military personnel for the same assignment after he determined it was too dangerous.
Examples of this are endless. Once, early in the new Bush administration, the acting deputy attorney general told me that the “Department’s” priorities would be guns, drugs, and juvenile crimes. My response was that terrorism, complex economic crimes, and just about everything else we were doing domestically and internationally was of more import. The response I got was “Those are our marching orders,” to which I said, “Those aren’t my marching orders.” Lockstep, blind obedience by the director to an attorney general
without questioning potentially unlawful or even dumb orders is a formula for disaster—both for the FBI and the nation.
So, looking back, I can see why I might have made someone’s shortlist for the director’s job, but the first indication that I actually was on the list came from another of my mentors, John S. Martin. John had been the one who hired me for the U.S. Attorney’s Office back in the early 1980s, a risky move given my lack of experience. More to the point for this purpose, John was an old friend of new White House counsel Bernard Nussbaum, and Bernie, it seemed, had called him to feel out my suitability for the director’s job. After my shock wore off, John and I had a good laugh at the irony that he might be a conduit for forcing me back to the Hoover Building after rescuing me from the place only a decade earlier.
I told John what I deeply believed: that I wasn’t the least bit tempted. He was quick to agree that I would be crazy to forgo the lifetime tenure of a federal judge for a political post that had all the tranquility of a lightning rod in a thunderstorm. Still, John said, I should at least talk to Nussbaum and tell him myself that I wasn’t a candidate.
Every lawyer in New York worth the title knew and respected Bernie Nussbaum. He’d come up through the same U. S. Attorney’s Office where I had cut my teeth, and he’d gone on to earn a well-deserved reputation as both a brash and brilliant litigator and a man of the highest integrity. Bernie was thick with the Clintons, too. Back in the mid-1970s, he had hired a new Yale Law School graduate named Hillary Rodham to assist him when he was serving as congressional counsel for the impeachment of Richard Nixon. Bernie liked to tell people that when Hillary introduced him to her boyfriend, Bill Clinton, in the late ’70s, she nonchalantly described him as a future president of the United States. No sooner had that
prediction come true than Bernie’s New York friends began making book on whether he would choose to be White House counsel or U.S. attorney for the Southern District of New York. Bernie had chosen to be Mr. Inside, and that had led him to me.
In our first telephone conversation, I politely told Bernie that I was honored to be considered but that I had no interest in leaving my job to become director. He was charming and pleasant as he persuaded me that I should at least come to Washington to talk to him about the post. Even if I had no desire to be a candidate, we agreed, I could shed some light on whom the White House should be looking for to replace Judge Sessions, once they officially got rid of him. How could I say no? We set the get-together for late April.
On that early visit, Bernie, his deputy, Vince Foster, and I talked for maybe an hour in Bernie’s West Wing office about the FBI and the issues we thought were important in selecting the next director. Then Bernie took me to meet Attorney General Janet Reno at the Department of Justice Building, on Pennsylvania and Constitution Avenues, between Ninth and Tenth Streets. Completed in 1934 at a cost of $10 million, Justice was built on a monumental scale, and the massive fifth-floor conference room next to Janet’s office is no exception.
I could remember being sent there in January 1981 by then FBI director Bill Webster to argue that Democratic senator Howard Cannon of Nevada should be included in a public corruption indictment as had been recommended by the Bureau’s Organized Crime Strike Force. To me, the case was obvious. Cannon had clearly gone along with efforts by the Teamsters Union to defeat a trucking deregulation bill introduced by Ted Kennedy. Deputy Attorney General Charles Renfrew, to whom I made my case, agreed in principle but declined to include Cannon because Justice had already told the Senate Ethics Committee that he would not be part of the indictment. After the jury convicted Cannon’s coconspirators of bribery, jury members asked—reasonably enough—why the senator had been left
out. Still later, on January 20, 1983, one of those convicted, Allen Dorfman, was gunned down in Chicago while awaiting sentencing.
The attorney general’s office is large enough to house a small dining area and a lounge up a small flight of stairs, where Bobby Kennedy liked to take naps, but compared to the conference room next door, the office seemed cozy, even intimate. Janet Reno herself was perfectly delightful. By the end of our brief meeting, though, I found myself wondering exactly why I had been summoned to Washington. Janet and Bernie seemed to be going out of their way not to mention any of the controversy that had swirled around the Bureau, Justice, or the White House in the few months since Bill Clinton had been inaugurated. As I recall, no one mentioned Travelgate or the fact that Judge Sessions had dug his heels in and seemed to have no intention of leaving of his own volition. Given the “Nanny” turmoil that engulfed the administration’s first two choices for attorney general—another “-gate” that ultimately had landed Janet Reno in the job—I was also surprised that no one wanted to know if I had a similar skeleton in my closet.
The biggest silence in the room that day was Waco, Texas. The bloody end of the Branch Davidian standoff there was less than two weeks old. More than seventy people had died inside the compound. The TV footage of the fires that had engulfed the place were still red-hot in the public memory. In their aftermath, the attorney general and the Bureau had both come under withering criticism, some of it from people who seemed to forget that the entire sequence had been set in motion nearly two months earlier when four Alcohol, Tobacco, and Firearms agents were gunned down by cult members. I feel fairly certain we mentioned the matter, but only in passing. It was clear to me that no one wanted to get into the nitty-gritty of that.
Pondering my meetings as I headed back to New York that evening, two interpretations seemed possible to me. Either I was the only candidate for the job, so that substantive discussion about the serious
issues facing the Bureau was unnecessary, or I was not a very serious candidate at all. It didn’t take me long to come down in my own mind on the latter side, which was just fine with me. I’d had an affable day with pleasant people, April was maybe the prettiest time of the year to visit the capital, and now I could go back to a job I loved, surrounded by dear colleagues and friends and plenty of challenges.
When July rolled around and two months had passed quietly, I was sure I was right. Bernie seemed to have taken my word that I wasn’t interested. Even better, no one had floated my name for the post to see what kind of flak it might draw—an old Washington practice that can leave plenty of scars. Only Marilyn, Bob Bucknam, John Martin, a few other close friends, and the inside-the-loop crew in Washington even knew I had been approached. Like everyone else with a vested interest in the Bureau, I was curious what the administration was going to do, but I also thought I had a good candidate to replace Judge Sessions. My old boss Floyd Clarke, the Bureau’s number-two man, had all the skills necessary to make an excellent director. If anyone in D.C. had asked my opinion, I would have recommended Floyd for the permanent job.
I also was on the verge of solving a time crunch that was leaving me too little space for what I care most about: my family. In 1981, shortly after we were married, Marilyn and I had bought a home in North Bergen, New Jersey, only a few blocks from where I had grown up and within fairly easy commuting distance—by Gotham standards—from my office in lower Manhattan. By rising before dawn, I could generally get in a good run, leave home by 6:15 or so, and be at work no more than thirty to forty-five minutes later. Then, in 1991,just as the first President Bush was about to nominate me for the federal judgeship, I got a call from someone in the White House Counsel’s Office who wanted to vet a few final details. Was
I, for example, a resident of the Southern District of New York, on which bench I would be serving?
No, I said, we live in New Jersey. Was that going to be a problem? (Somewhere in the back of my mind, I think, I was aware of this, but I had been going full bore on a case that involved lots of travel back and forth to Georgia.)
Oh, no, my caller assured me, just buy a little condo or apartment in Manhattan. That’ll take care of it.
“You probably haven’t looked at my financial statement,” I shot back, stunned at the prospect.
Marilyn and I solved that dilemma by quickly buying a house in Katonah at the northern extreme of Westchester County. Our new home was affordable, barely, and large enough for a family that had grown to include three sons, but it left me with a grinding sixty-mile, ninety-minute commute to work. (And incidentally forced me to switch my jogging schedule to midday.) I wasn’t about to give up my job—or so I thought—but when the call went out for judges willing to transfer to a soon-to-be-opened auxiliary courthouse being built in White Plains, only half an hour from Katonah, I jumped at the chance. The great chief judge and all-around great guy Charlie Brieant and I had all but sealed the deal down to my courtroom and chambers, even my new furniture, when Bernie Nussbaum called again.
Just as I had two months earlier, I told Bernie that I wasn’t interested, but this time he was raising the stakes. My prior FBI experience and the recent tradition of selecting sitting federal judges for the director’s post made me the ideal candidate, he said. Then he cut to the chase: What would I say if the president offered me the job? Since I honestly didn’t know the answer and had convinced myself that the matter would never be raised, I countered with a question of my own: Why doesn’t the president ask me and we’ll both see what I say? That, Bernie informed me, was unacceptable. The president
of the United States was not going to make such an offer unless he knew that I would say yes.
Round and round we went until I finally agreed to meet with the president. After we had interviewed each other, we would see if we could come to an agreement. That way, no one would have to lose face, but I had one stipulation that I insisted on in advance. If I read my name in the newspapers in connection with the director’s job, it was all over. Bernie agreed and promised to personally handle all arrangements for the visit in order to avoid any publicity.
It wasn’t until after I hung up that I realized why I had been able to dictate the conditions for my meeting with Bill Clinton. Whatever had occurred during the intervening two months had taken the selection to me. I was the only one being considered. The fact that I really didn’t care about being picked for the post—that I hadn’t done one thing or asked one person to help me lobby for the job—put me in the best position, I figured, and not just for the president’s and my head-to-head. It had to be obvious to the White House now that, if nominated and confirmed, I would be a completely apolitical and independent director—exactly the kind of person the country needs in an office of such immense importance.
In its own way, the U.S. Courthouse at Foley Square is as impressive as the Justice Department building itself. One of the last designs by the famous architect Cass Gilbert, the courthouse was finished two years after Justice, in 1936. Both were part of the massive public building projects meant to help pull the country out of the Great Depression. Both are done in the neoclassical style, although the courthouse has a thirty-one-story office tower jutting out of its top. (The tower is meant to suggest the Campanile in Venice’s St. Mark’s Square.) Both dominate their settings. Most important to me, both are powerful three-dimensional statements
of the nation’s commitment to the rule of law and to blind justice.
Leaving the courthouse this time for Washington, I felt as if I were walking away not just from my job or my place of work but from a good portion of my own history as well. I remembered how nervous I had been back in August 1975 when, as a raw twenty-five-year-old FBI special agent, I had first testified in one of the building’s magnificent courtrooms. Later as a prosecutor, I would try dozens of criminal cases here over a ten-year period, always in awe that I was representing the United States of America in a two-hundred-year-old legacy. My home back then, the U.S. Attorney’s Office for the Southern District of New York, was housed in the modern annex next door. Chinatown, Tribeca, Little Italy—they were all around me. The World Trade Center, which earlier that year had been attacked for the first time, was a dozen blocks away. From its upper floors, I could look down on Jersey City across the Hudson, where I was born. I had done some of my earliest undercover work as an FBI agent across the other river in the Red Hook section of Brooklyn, where my dad had been raised, only a stone’s throw to the south; North Bergen was maybe six miles north as the crow flies. Some of my fondest memories and closest friends bind me to that courthouse and to courageous judges like Mike Mukasey, Kevin Duffy, Pierre Leval, John Keenan, Milton Pollack, Dick Casey, Barbara Jones, and Ed Palmieri, just to mention a few.
All that was on my mind as I took the subway to Penn Station, a crowded and noisy trip at that hour of the day, and boarded the 1:00 P.M. Metroliner for the trip to D.C. The contrast couldn’t have been greater. My car was half-empty; the ride, whisper-smooth. But as we surfaced from under the Hudson and I saw the familiar grimy railscape of my homeland, I distinctly remember wondering if I was riding Amtrak in the wrong direction.
Washington was its usual midsummer self: hot, suffocating, and sticky. (Until the malarial swamps along the Potomac River were filled in to lengthen the National Mall, the British considered the American capital a diplomatic hardship post.) Whatever the weather, though, Union Station remains one of the premier urban gateways in existence. When the station opened in 1908 (the same year the FBI was founded), it was the largest train depot in the world. The Washington Monument could be laid on its side in the concourse with room to spare. Seventy years later, when I first started riding the train to D.C., the building was a mess. Part of the great barrel roof had collapsed, and rain damage had sent the place on a downward spiral. By 1981, Congress had to choose between razing the station or rehabbing it. The second option won out, and five years and $160 million later, Union Station reopened as a vibrant travel and commercial hub. Inaugural balls have twice been staged there, in 1997 and again in 2001. Both galas would have been unthinkable two decades earlier.
The heat and humidity were waiting out front at the cab line, but even there the view of the Capitol dome and all it means to so many people around the world never fails to inspire me. This time, too, there was some cloak-and-dagger intrigue to spice the mix.
Speculation on who would replace the FBI director had naturally risen to a fever pitch. The post had been in turmoil for months, and the journalists who cover such matters abhor a vacuum just as much as I hated the prospect of finding my name in some gossip sheet. To avoid any publicity for my visit with the president, Bernie Nussbaum had instructed me to meet him at his apartment at, of all places, the infamous Watergate complex. From that ironic staging ground, he was going to somehow sneak me into the White House. This was the early ’90s, not the early ’70s. Still, I couldn’t help but sense the ghosts of Richard Nixon, G. Gordon Liddy, and all the rest as my cabbie drove past 1600 Pennsylvania Avenue.
Bernie’s apartment turned out to be a very pleasant, two-bedroom
affair with a nice view over the city. He was waiting there with his wife, Toby, who I would later learn was one of nature’s great hostesses but who would be serving this afternoon as our wheelwoman. Also on hand was Deputy Attorney General Philip Heymann. Traditionally, FBI directors have reported to both the attorney general and her deputy—thus this get-together. I can’t say that Phil and I did much more than meet and greet, but I’d come across him once before, back in the Carter years, and I knew his reputation as a fine lawyer who understood the department and its intricate relationship with the FBI. Brief as our conversation was, I felt confident at the end that we could work well together.
After about an hour, Nussbaum announced that it was time to go see the president. Heymann took his leave, wished me good luck, and without missing a beat, Toby swung into her new duties. Bernie’s plan was simple enough. Toby would drive their car through the West Gate with Bernie in the front passenger seat and me in the back. As we were nearing the White House, I jokingly asked Bernie if I should hunker down on the floorboards. “Only if I yell ‘duck!’ he shouted back. That broke the tension I was beginning to feel, but as we stopped at the heavily reinforced steel gate, I was far from relaxed. I needn’t have worrried, though. The uniformed Secret Service officer immediately recognized the White House counsel and his wife, quickly opened the gate, and waved us in. I’d go through that gate over the next eight years so often that I came to know the names and faces of practically all the guards there, but this time I might as well have been chopped liver for all the attention I drew in the backseat.
Toby pulled up to the West Wing so expertly, with such savoir faire, that I told her she could work the New York City streets with me anytime. Then Bernie ushered me through the West Wing to the elevator that would take us up to the First Family’s private residence. Along the way, we said hello to George Stephanopoulos, a fellow
New Yorker with whom I would come to feel a kinship even though our paths crossed only rarely.
“Do you think the president is going to ask who I voted for?” I said only half jokingly to Bernie as we waited for the elevator.
“We think we know who you voted for,” came the answer, “but the president wants to speak to you anyway.”
We were just filling the time with the usual back-and-forth banter, but Bernie’s passing comment would have a profound effect on my decision making.
Strange as it was getting to the moment, my meeting with the president was about as relaxed as such events can be. From the elevator on the second floor, it was only a short walk down an empty hallway to the library, where Bill Clinton and his chief of staff Mack McLarty were already in conversation. Bernie made the introductions. Then he and Mack stuck around just long enough to be polite before leaving me alone with the commander in chief. With Bill Clinton, there’s no need to break the ice. He’s as engaging and welcoming as anyone could be—a man who could not only sell air conditioners to Eskimos in the dead of winter but also convince them they were suffering from prickly heat rash.
Clinton had done his homework, too. Whoever wrote the briefing memo on me had done a first-rate job, and the president seemed to have absorbed every detail of it. My family, New York City, my few years on the bench, my longer stints with the U.S. Attorney’s Office and the Bureau: he had it all down, and he wasn’t just racing through some memorized list of talking points.
The president was interested in the organized crime cases I had worked on and wanted to know if the succession of major prosecutions under Rudy Giuliani had broken the decades-long power of the so-called five families. I explained that the cases had been done
on a coordinated basis by prosecutors in New York and Italy, and because of that, they had been remarkably effective in undermining the leadership and operations of both our own Cosa Nostra and the Mafia in Sicily. He moved on from there to the string of highly publicized Wall Street cases that the office had undertaken during the late 1980s. Did I think that going after Michael Milken, Ivan Boesky, the Drexel Burnham Lambert Group, and others had had an equal deterrent effect within the corporate community? No, I told him, I thought any deterrent effect on business ethics was only temporary. Sadly, Enron, WorldCom, and too many other examples would prove me right a decade later.
The “library” is that in name only. It’s more a sitting room with three or four big armchairs, some shelves of books, end tables, and the like. The president was having one of his beloved Diet Cokes when I arrived. Soon a butler arrived, asked what I wanted, and was back in a flash with my iced tea. I was just settling into it when the president got more directly to the business at hand.
We’d finished a brief discussion of J. Edgar Hoover and his forty-eight-year tenure at the FBI when Clinton said that the current ten-year term for directors made a lot of sense to him. I was quick to agree. The whole idea behind the unique provision was to prevent another interminable reign while also providing some political insulation, since a director would necessarily have to begin and end his tenure under different presidents. Neither of us added that none of the three directors since Hoover had completed a full term. Only William Webster, the best FBI director in my view, had come close at nine years. Nor did we have any exchange about Judge Sessions’s departure in particular, but at least I felt that the president and I were singing in the same choir loft.
I was also impressed and heartened by the fact that Clinton asked so many questions about how the FBI operated and about the interplay between agents, the U.S. Attorney Offices, and state and local
law enforcement authorities. As a former governor and state attorney general, he was quite familiar with the state and local side of the equation, but he seemed a little surprised when I told him that a fairly skeletal force of ten thousand FBI agents was responsible for enforcing hundreds upon hundreds of federal laws. That’s why expanded interplay is so important, I told him; there simply aren’t enough agents to do the job on their own.
Every case I worked on as an agent and as an assistant U.S. attorney had been a “task force” arrangement: men and women from many law enforcement agencies working together in a unified effort. That was the model I wanted to pursue, I said—one that would enhance cooperation between the Bureau and the nation’s 17,000-plus state and local police departments, which represent over 750,000 sworn officers. Because the FBI had an unfortunate history of limiting its interaction with the larger law enforcement community, we had a great opportunity to make an important change for the better.
The president seemed so receptive to that idea that I jumped our discussion to the larger and equally critical need to expand the FBI’s mission overseas. Most Americans don’t realize it, but the Bureau had been there before: When World War II broke out, the nation had no external security service except for the military branches that collected what was known as war-fighter intelligence. The FBI was thrown into the breach, charged with setting up a network of foreign-based agents who would collect information and conduct operations against German and other Axis targets. By 1945, the Bureau had dozens of its own agents working throughout South America, Europe, and the Middle East. After the surrenders in Europe and Japan, those agents were gradually recalled with most of the Bureau’s overseas offices shut down, only to have the cold war break out.
President Clinton knew all this, and he knew about the power struggle that ensued between J. Edgar Hoover and Allen Dulles for control over America’s war against international communism. That
battle had been settled by the brokered peace of the National Security Act of 1946, which created the Central Intelligence Agency as America’s external security service while giving the FBI exclusive counterintelligence jurisdiction at home. All that was fine then, I told Clinton, but the global nature of crime and terrorism now required the FBI to reestablish itself internationally both to protect America and to bring democratic policing to countries where the rule of law was still tenuous. To me, this was an absolutely critical issue: Elliot Ness might have been able to fight the bad guys from an office in Chicago, but today’s criminals were increasingly stateless and borderless. The fact that the president agreed so readily with me said volumes as far as I was concerned.
At one point he leaned back in his chair, yet another Diet Coke in hand, and asked me what I thought about Waco. At long last, I thought: the eight-hundred-pound gorilla is out of the closet. I paused for a few seconds, then said that the critical point about Waco was that David Koresh and his followers had murdered four Alcohol, Tobacco, and Firearms agents while in the performance of their duties and thus declared war against the United States. Everything afterward had to be weighed in the light of that single, controlling fact.
What would I have done, the president wanted to know? I started my answer by acknowledging the luxury of hindsight. No one was better at civilian crisis intervention than the FBI’s Hostage Rescue Team, which had been thrown into the middle of a very dangerous situation after the failed action by the ATF agents. As for the attorney general, she had struck me as a smart and decent person in our brief meeting; my assumption was that she basically had followed the advice of the FBI. All that said, I told the president, my decision would have been to wait. During the siege at Waco I had become convinced that Koresh and his principal followers hoped to engage the federal government in a biblical duel of Armageddon. Not only were they ready to perish in the process along with their
wives and children, they actually looked forward to the moment.
Waco wasn’t a classic hostage situation, I contended. For the most part, the Branch Davidians inside the compound were willing adherents of a fanatical vision. Just as important, so long as the Texas standoff continued, nobody was getting hurt; nor was there any hard information, at least that I picked up on, that anyone was about to get hurt on either side. Public opinion can never be the final determinant in cases like this, I added, but until the FBI launched its armored assault, the public had clearly been on the government’s side. And public opinion can never be ignored altogether. Events such as Waco take place on a huge public stage. Mismanage the moment, and other potentially dangerous actors can be adversely affected by media images of what can seem an oppressive government. (None of us at that point had ever heard of Timothy McVeigh, but the Oklahoma City bombing was being born in Waco’s ashes.)
Why launch an attack on a fortified compound, I went on, unless circumstances had changed dramatically for the worse? Until then, I would have continued negotiating, erected a perimeter fence around the encampment, and waited for fatigue and boredom to come to our aid. David Koresh wasn’t capable of riding this stalemate out. His dementia was such that he would have either lit the fires himself or begun to kill his own followers to jump-start the final battle. That’s when the FBI could have responded to Koresh’s action by mounting the same attack it did. Yes, the ending might have been no different, no less tragic, but the difference, I told the president, was that the subsequent barrage of criticism against the FBI and Janet Reno—most of it unjustified—would have been muted, perhaps even nonexistent. The Bureau would have been acting to save lives because an insane leader left it no other choice. That’s the difference. When I had finished, the president looked at me and nodded his head in apparent agreement, and with that, another load of doubt lifted from my shoulders.
When Clinton asked me if I had ever visited the White House
before, I saw a chance to address my final concern about the director’s job. No, I told him, not only had I never visited the First Family’s private quarters, I’d never been in any part of the executive mansion, but I had attended a ceremony in the Rose Garden. I went on to describe how, in 1991, just after my appointment to the federal bench, President Bush had given me an award there for prosecuting the mail bomber who murdered a federal judge in Alabama and an NAACP lawyer in Savannah. The president had also used the occasion to announce that he was nominating Bill Barr—then the acting attorney general—for the permanent post. The event wasn’t a big deal, and, of course, Bill Barr’s tenure was cut abruptly short by Bush’s loss in the general election, but I was watching Clinton’s reaction closely. Would he flinch at the mention of this obviously partisan occasion? When he didn’t, I assumed that at least tacitly we had agreed that the director’s job wasn’t about politics, and I was glad that I had raised the matter, even if obliquely.
I finished my part of the interview by posing two questions for which Clinton had the right answers. We had spent at least an hour together by then, and although we had exhausted the FBI as a topic of conversation, Clinton was in no hurry to pull the plug. It seemed odd to me that the president of the free world would have so little to do, but I had heard that Hillary and Chelsea were going to spend the night in Hawaii, on their way back from a trip to Asia. Maybe I was the evening entertainment!
As if in confirmation, Bill Clinton graciously offered to give me a tour of the residence. Room to room we went with the president providing the running commentary about former occupants, their favorite books and furnishings, and other arcane details you might expect to hear from some longtime White House docent. Outside on the Truman Balcony, the president pointed to an unrepaired bullet hole and launched into the story of how the British army had fired muskets at the White House during the War of 1812. Inside, he
would lay a hand on my shoulder as he gave the history of a painting, a clock, some piece of ormolu. After maybe ninety minutes of this, I couldn’t resist asking whether he had known these details before becoming president or had learned them since moving in. Completely matter-of-factly, without a trace of embarrassment, he answered that he had been studying these things since he was very young. I realized at that moment that Hillary wasn’t the only Clinton who had expected him to be living here someday.
As we passed the kitchen, I asked the president if he happened to have on hand any of the various fast foods he was known to favor. The question wasn’t entirely academic. It was now nearly eight in the evening, and my stomach was starting to growl. Yes, the president assured me, fast food was easy to come by in the White House, but he didn’t offer me any. Fortunately, it was just about at that point that Bernie Nussbaum came to the rescue.
“Judge,” he called down to the hall to me, in his best New York City street accent, “what are ya doing? I’m down to one client, my last one, and you’re trying to steal him?”
I took that as my signal to say good-bye and thanked the president for his time and courtesy. Today, I told him, was my son Brendan’s seventh birthday. I couldn’t be there for the little family party, but I wanted to be waiting for him when he woke tomorrow morning.
Again without missing a beat, the president sat down at a desk, pulled out a piece of his stationery, and began to write. When he was finished, he handed the note to me, and said,“Please give this to him for me.”
“Dear Brendan,” he had written, “Happy Birthday from Bill Clinton.”
If I hadn’t thought so before, I knew at that moment that this was the best politician of his generation.
“What the hell were you talking about for all that time?” Bernie asked as he ushered me through the West Wing.
I gave him a quick synopsis. The president was impressive, I told him, on numerous fronts, so much so that I now felt persuaded I could serve as FBI director in this administration.
Bernie wanted to know what the tipping point had been. Had it been one of those long discussions about the fine points of policy for which Clinton had already become so famous? (After all, we’d spent hours together.) No, I told him, what really made the difference for me was a very brief exchange when the president asked me if I had any questions about the job. I had two, I answered. My wife and I had four young sons, and I considered it just as important that I serve them well as that I serve the FBI well. I was offended just about every time some government official justified his (or her) departure by saying he needed to spend more time with the family. To me, that cliché indicated that the person had probably done both jobs poorly, and I didn’t intend to find myself in a position where I had to choose between the two. In response, the president said that he agreed completely and took pride in the fact that his administration was very family oriented. He encouraged people to spend time at home, he said, even when they had important official responsibilities.
“What’s the second thing you want to know?” he asked after a brief pause.
Unlike the first item, which came from the heart, I had spent a bit of time thinking this one out because it was essential for me at a more intellectual level.
“If I’m going to be director,” I said, “it’s critical that there’s no political interference with the Bureau’s work.” I looked the president directly in the eye as I spoke, just as he had been looking at me the entire time we were together. “The Bureau’s investigations must be conducted fairly and vigorously without any political pressure or impermissible attempts to influence how they come out. It’s also
critical that I make all my own appointments without any interference of a political nature.” I firmly believe that absent an act of Congress, the FBI director should fiercely protect the Bureau’s independence and not permit anyone to interfere with his or her personnel appointments.
It wasn’t particularly articulate, but this was the bottom line with me. I’d hinted at it earlier in our discussions. Now I had said it outright, and the president responded in kind.
“This is exactly what I expect in my administration.”
Bernie assured me the president meant every word of it, and then, as if reading my mind, he addressed in particular the departure of the last director. Yes, from the outside, Judge Sessions’s departure could appear to have political overtones, Bernie acknowledged, but he and Clinton had tried in every way they could to get the judge to leave the director’s job voluntarily, even to the point of indicating he might return to the federal bench if he left on his own. Ultimately, Sessions had balked, which was why his removal was proving so messy, but that—and the media dust-up that followed—was the judge’s choice, not the administration’s. Bernie was going to be my immediate contact at the White House, and it was clear to me that he was a straight shooter through and through. On that matter at least, nothing in the years since has caused me to change my opinion one iota. I’ve always been thankful to Bernie for his trust in me and for his oft-repeated remark that he’s most proud of the two presidential appointments he worked on simultaneously: my own and that of Supreme Court Justice Ruth Bader Ginsberg.
No one had ever asked me directly if I would accept the director’s job. Nor, of course, had I officially said yes. But as I walked by myself down the path to the West Gate, I knew the job was mine and felt I could do it well. Now I had to find a way home. I passed through the gate, stepped out on Pennsylvania Avenue, and threw my hand up for
a cab. Hobnobbing with the president at the epicenter of power didn’t count for much when it came to public transportation.
Three days later, on July 19, 1993, Bill Clinton fired Judge Sessions. The next day, July 20, I was back at the White House with my entire family, this time to be nominated as the fifth director in the post-Hoover history of the Federal Bureau of Investigation. Thanks to Bernie’s clandestine operation, the announcement had been kept secret nearly to the last moment.
In 1991, when I appeared before the Senate Judiciary Committee hearing on my nomination to become a federal judge, Marilyn and I had balked at bringing our then three sons along. Finally, we had caved in, at the insistence of my Justice Department “handler,” but with the oldest then only seven, the potential for disaster seemed enormous. This time, of course, there was no question about not including the four boys at the Rose Garden ceremony. What’s more, they were all two years older. Justin had almost hit double digits, Brendan was now seven and Sean three. To be sure, Connor was only a year old, but with my parents, brothers, and other family members on hand, along with some dear friends from New York (including Bob Fiske, an extraordinary lawyer and distinguished Southern District U.S. attorney and later the first Whitewater prosecutor), we had all the backup we needed. Surely they couldn’t get in that much trouble!
The boys, in fact, looked like angels as we walked into the West Wing that morning. Janet Reno and Floyd Clarke were there to greet us with smiles and plenty of warmth. Bernie Nussbaum was no less welcoming when we stopped in to his corner office. So was Vince Foster, who was waiting on Bernie’s couch and who later would sit just behind Bernie and my family.
Marilyn had taken the boys outside, leaving the president and me
alone in the Oval Office just before the nominating ceremony was to get under way. We were standing by the famous Resolute desk that had been a gift from Queen Victoria. (The desk is made from the timbers of a British vessel of that name aided by American sailors when it became lost in Arctic waters back in 1855. In one of the most famous of all White House photos, John-John Kennedy is curled up in its kneehole, peering out from a secret door.) I was silently rehearsing my remarks when I detected out the window one of those slight shifts of field that happen when a crowd starts doing some serious rubbernecking. I had no idea what might have caused the disruption, but some combination of parental instinct and detective hunch told me that one or more of my sons was at the center of it. Before I had time to give the matter any more thought, an aide signaled that it was time, and I followed the president into the Rose Garden as the press cameras exploded and the television cameras began to roll.
The president gave me one of those flattering introductions that I knew my fellow FBI agents wouldn’t soon let me forget. I was just wondering how I would ever escape being called a “law enforcement legend” when I looked at Brendan sitting in the first row in his best church suit and realized he was soaking wet—not perspiration wet, although it was another hot July day, but swimming-pool wet, through and through. The president had also noticed my son’s condition and leaned over to ask if he was okay. By then, I had made eye contact with Marilyn, and she had silently informed me that, yes, the boys had not behaved themselves, that we should have left them in the hotel, and that Brendan’s wetness was not weather related. I was struck even in that instant with the calm and studied pique that a mother of four boys can communicate so professionally without uttering a single word. Brendan was fine, I assured the president … but I wasn’t so sure about my wife.
I didn’t get the back story until the ceremony was almost at an
end and Marilyn and the boys had joined us on the podium. Marilyn, it seemed, had just about managed to herd the boys to their seats when a flurry of music announced that the proceedings were about to get under way. At that moment, Brendan broke ranks and ran over to a little pool that sits in the Rose Garden. He was peering curiously into its shallow depth, leaning forward just enough to be a bit off balance, when three-year-old Sean noticed the target-rich environment, went barreling off in Brendan’s direction, and before anyone could intervene, launched his brother into the water. Marilyn and a bevy of shocked aides had just managed to pull Brendan out of the drink and get both boys to their seats when Clinton and I made our appearance.
Marilyn was just finishing a hurried recitation of this sad tale when the president picked up Connor, our one-year-old, and held him up for the cameras. Thank God, I remember thinking, at least he was dry, or dry for all anyone could see. Even my parents, who like me didn’t want to be asked that morning which box they had checked for president ten months earlier, became instant Clinton supporters as they watched the forty-second president hoisting up their number-four grandson.
The Rose Garden incident, by the way, didn’t end in the Rose Garden. Back in the Oval Office, after Marilyn had filled Clinton in on the details, he asked that Sean be brought before him for questioning. As the White House photographer clicked off a series of memorable stills, the tall and handsome president stood over a remarkably calm Sean and asked: “Did you push your brother into the pond?” Without betraying any evidence of guilt, Sean looked up at the president and shook his head no. Although I was now in the uncomfortable position of observing my three-year-old son lying to the chief law enforcement officer of the United States—and my soon-to-be boss—I couldn’t help but feel as a lawyer that Sean was simply stating what’s known in the trade as an exculpatory no. After
all, according to Title 18, Section 1001 of the U.S. Code, a simple denial of guilt doesn’t constitute a “false statement.”
The president seemed to realize something of the same because he improved his prosecutor’s technique considerably with the next question: “Were you happy when your brother went into the water?” An ever-so-slight smile started to curl the end of Sean’s mouth and the crowd began to sense that he was breaking! Finally, and to my professional admiration, the president took one last run at it. “Did you feel good when you pushed your brother into the pond?” At that point Sean gave it up and, smiling broadly, silently nodded his head yes as we all breathed a happy sigh of relief. Sweet as the day’s outcome was, though, the event could not have had a more bitter ending.
The two-and-a-half-column photo that appeared upper left on page one of The Washington Post the next day shows me giving a thumbs-up sign and holding Connor as a beaming president bends over to greet Marilyn. “Federal Judge Nominated as New FBI Head,” the headline reads. A third of the way down the front page on the right-hand side is a headline of a much different order: “Clinton Aide Vincent Foster Dies in an Apparent Suicide.”
Marilyn and I were at the Key Bridge Marriott across the Potomac from Georgetown when I got the news, sometime after 10:00 that evening. Floyd Clarke, who had been made acting director of the FBI the day before, called to say that Vince had driven to Fort Marcy Park off the George Washington Parkway in Virginia and there, overlooking the Potomac, had killed himself. The body had been positively identified and the White House notified about 9:55, Floyd said. I was stunned as he gave me the details.
Vince Foster was forty-eight years old, the father of three, one of the golden boys from Hope, Arkansas. A photo of the three of them
was on prominent display in his office: Bill Clinton, Mack McLarty, and Foster, taken at some birthday party back in Hope when they were all just kids. Like Hillary Clinton, he had been part of the Rose law firm before joining his old friends in Washington. I could still see Vince’s face from the ceremony, sitting behind Marilyn and the kids, circulating around the crowd afterward. Bernie Nussbaum said later that he and Vince had gone back to Bernie’s office once the festivities broke up. Bernie was in high spirits, not just about my nomination but about the ease with which Ruth Bader Ginsberg’s nomination was moving through the Senate Judiciary Committee. “We hit two home runs!” Bernie crowed. Vince, he said, just smiled and said, “I’ll see you later.” He didn’t.
For the already growing legion of Clinton haters and conspiracy theorists, Foster’s death was, of course, a huge chunk of red meat thrown into the cage. They would feed off it for years to come. To me, whatever Vince’s motivation or demons, his death was simply the horrible end to a life that deserved so much better.
Six weeks later, on September 1, 1993, I was officially sworn in as director at FBI headquarters and began my almost eight-year tenure in office, the second longest of any director in the post-Hoover era. Marilyn held the Bible that day, while Frank Johnson, the courageous federal judge from Alabama, administered the oath.
I’d known Frank personally for only a few years by then, but he had been a hero to me ever since my law school days. Frank was once ostracized by much of the society he lived in. He’d had a cross burned on his lawn, and his own mother’s house had been firebombed. But none of it deterred him. In the dark days of the civil-rights struggle, no jurist in America did more to break down the barriers of segregation in the Deep South. George Wallace, Alabama’s black-baiting governor, once proposed giving Frank a “barbed-wire
enema.” Martin Luther King Jr. called him a man who gave “true meaning to the word justice.” Wallace’s enmity and King’s praise both speak volumes about the man, but I wanted Frank there with me for another reason. He himself had been nominated to be FBI director in 1977 by Jimmy Carter and almost certainly would have been confirmed by the Senate, but a previously undetected heart condition caused him to withdraw his name.
In my own way, I thought that having Frank swear me in might close the circle, for him and for me, but I was far from alone in revering Judge Johnson deeply. Janet Reno and Bill Clinton were both thrilled to have him on hand. His participation gave the event a historical resonance that had everything to do with him and very little to do with me. Goodwill filled the FBI courtyard that day.
After I had resigned as FBI director and many years after Bernie Nussbaum had stepped down as White House counsel, we ran into each other at an event sponsored by the Federal Bar Council.
“I spoke to your friend today,” Bernie said with a laugh.
“I’ve got lots of friends, Bernie,” I told him, already suspicious. “Which one?”
“President Clinton,” he answered, now in full good humor.
Bernie went on to tell me that Bill Clinton had told him: “The best piece of advice you gave me that I didn’t follow was to oppose a special prosecutor for Whitewater, and the worst piece of advice you gave me that I did follow was to appoint Freeh as FBI director.”
“It’ll probably be in his book,” Bernie added.
I’ll leave the special prosecutor comment for legal scholars. As for the president’s comment on me, I wear it as a badge of honor. All the agreements Bill Clinton and I had come to on the day I interviewed for the director’s job, everything that I thought had been made clear between the two of us, I finally came to realize, was clear only to me.