Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
Interviews conducted by Sheldon Krantz, Esquire
January 9 and 30, July 20 and September 15, 2016

Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Irvin Nathan, Esquire …………………………………………………………………………………… iii
Sheldon Krantz, Esquire …………………………………………………………………………………v
Oral History Transcripts of Interviews
January 9, 2016 ……………………………………………………………………………………………..1
January 30, 2016 ………………………………………………………………………………………….23
July 20, 2016 ……………………………………………………………………………………………….54
September 15, 2016 ……………………………………………………………………………………..79
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Irvin Nathan, Esquire ……………………………………………………………………………….C-1
Sheldon Krantz, Esquire …………………………………………………………………………. D-1
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to,
the Oral History Agreements included herewith.
© 2017 Historical Society of the District of Columbia Circuit.
All rights reserved.
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the
Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer
attorneys who are trained by the Society. Before donating the oral history to the Society, both
the subject of the history and the interviewer have had an opportunity to review and edit the
Indexed transcripts of the oral histories and related documents are available in the
Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of
the Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on
the Internet through the Society’s Web site, Audio recordings of most
interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

Historical Society of the District of Columbia Circuit
Oral History Agreement of Irvin 8. Nathan
1. In consideration of the recording and preservation of my oral history memoir by
the Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees
and agents (hereinafter, “the Society”), I, Irvin B. Nathan, do hereby grant and convey to the
Society and its successors and assigns am of my rights, title, and interest in the voice recordings
(digital recordings, cassette tapes) and transcripts of my interviews as described in Schedule A
hereto, including literary rights and copyrights. All copies of the voice recordings (digital
recordings, cassette tapes) and transcripts are subject to the same restrictions herein provided.
2. I understand that the Society may duplicate, edit, or publish in any form or
format, including publication on the Internet, and permit the use of said voice recordings (digital
recordings, cassette tapes) and transcripts in any manner that the Society considers
appropriate, and I waive any claims I may have or acquire to any royalties from such use.
3. I reserve for myself and to the executor of my estate only the non-exclusive right
to use the voice recordings (digital recordings, cassette tapes) and transcripts and their content
as a resource for any book, pamphlet, article or o r writi of which I or my executor may be
the author or co-author.
RN TO AN?SUBSCRIBED before me this
=.>,…-1— day of -.J {) , , 201,l.
Pub c
My Commission expires: 9 ()31 3/ · c:iJ (
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ACCEPTED this ?? da? of_ ?J.nw:-.u.c.( . , ? 01}, by Stephen J. Pollak, President of the
Historical Society of the D1stnct of Columbia Circuit.
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Schedule A
Digital voice recordings of interviews 2 (Part II), 3, and 4 and transcripts of interviews 1,
2 (Parts I and II), 3, and 4, resulting from four interviews of Irvin B. Nathan conducted on the
following dates:
Description of Media
Interview No. and Date Containing Voice Recordings
No. 1, January 9, 2016
No. 2, Part I, January 30, 2016
No. 2, Part II, July 8, 2016 CD
No. 3, July 20, 2016 CD
No. 4, September 15, 2016 CD
Pages of Transcript
The Historical Society of the District of Columbia Circuit
Oral History Agreement of Sheldon Krantz
1. Having agreed to conduct an oral history interview with Irvin B. Nathan for the
Historical Society of the District of Columbia Circuit, Washington, D.C., and its employees and
agents (hereinafter “the Society”), I, Sheldon Krantz, do hereby grant and convey to the Society
and its successors and assigns all of my rights, title, and interest in the voice recordings (digital
recordings, cassette tapes) and transcripts of the interviews as described in Schedule A hereto,
including literary rights and copyrights.
2. I understand that the Society may duplicate, edit, or publish in any form or format,
including publication on the Internet, and permit the use of said voice recordings (digital
recordings, cassette tapes) and transcripts in any manner that the Society considers
appropriate, and I waive any claims I may have or acquire to any royalties from such use.
N TO ANopusSCRIBED befo1re me this
day of ?’.a:}U.,I C’vt&:J , 201 ..:1:::
cfernq,y ? Notary Public
My Commission expires: 9 / 36 /.2.c; 19–
ACCEPTED this 1.::,.r —-/4d ay of J?Q..U.V tlA’-j , 2012, by Stephen J. Pollak, President of
the Historical Society of the District of Columbia Circuit.
Schedule A
Digital voice recordings of interviews 2 (Part II), 3, and 4 and transcripts of interviews 1,
2 (Parts I and II), 3, and 4, resulting from four interviews of Irvin B. Nathan conducted on the
following dates:
Description of Media
Interview No. and Date Containing Voice Recordings
No. 1, January 9, 2016
No. 2, Part I, January 30, 2016
No. 2, Part II, July 8, 2016 CD
No. 3, July 20, 2016 CD
No. 4, September 15, 2016 CD
Pages of Transcript
This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on Saturday, January 9, 2016. This is the
first interview.
MR. KRANTZ: We anticipate that this will be the first of three interviews of Irv, and I am
looking forward to participating in this. So with this background, Irv, we are
going today to focus on your roots and the process of your growing up and
what made you decide to enter into the legal profession, but let’s start just by
talking about your roots and your background, where you were born and
where you grew up.
MR. NATHAN: First of all, thank you very much Sheldon for doing this. I never thought of
myself as being involved in a historical project before but it’s very flattering.
And as you can see, I did not grow up very high, but I did grow up as far as I
did in Baltimore, Maryland. I was born in 1943, and we lived in a lower
middle class neighborhood in Baltimore City.
I went to public schools there. My parents were first generation
Americans. Each of their parents had come from Eastern Europe, either at
the end of the 19th century or by the first quarter of the 20th century. The
native language of my grandparents was Yiddish. I never met my maternal
grandparents. They died when my mother was actually a teenager so my
mother was an orphan and fended for herself. She was a very intelligent
woman with a great sense of humor, but she did not have a college education.
My dad was also first generation American, and he held a variety of jobs.
Both of them ended up actually working for governments. My dad worked
for the city as a purchasing agent, the person to be sure the city was getting
full payment for the services and products that it purchased. My mother
worked for the state welfare system. But when I was very young, she did not
work at all. She stayed at home and raised me and my younger sister,
We lived in a very Jewish neighborhood. We lived on a congested truck
route, Reisterstown Road, half a block from the public school. The house, a
semi-detached house that my folks rented, was about a block-and-a-half from
the Hebrew school and within walking distance both of a public playground
where I spent many hours, and in the other direction a public library which
was a very important asset for me and for a lot of children of that era.
Baltimore has a very good public library system. We also were within
walking distance of a number of synagogues, one of which is where I was bar
The public school, P.S. 59, was a very good school and had good teachers.
They seemed very caring. Education was very important to my parents. They
had not had a great deal of education. My dad, who went to the same
elementary I went to and the same high school, worked when he graduated
high school but went to law school at night at the University of Baltimore
Law School which was then a totally private non-public school. He did
graduate but never practiced law.
I would say we were poor but we didn’t really realize it. We had ample
shelter and clothing and food and all the basic necessities were taken care of.
But there were no luxuries, no vacations to speak of, no fancy clothes or toys,
not even a bike. We had a lot of love and a lot of encouragement to succeed,
and a major part of the notion of succeeding was to get a good education. In
addition to the public school I mentioned there was a Hebrew school nearby,
and I actually made great use of that. It turned out to be a very significant
thing in my life because in addition to getting a public school education,
through Hebrew school where I was a good student, I was able to get a
scholarship to a Hebrew speaking camp. Otherwise I would not have been
able to go to camp.
The camp was a labor Zionist camp down near Annapolis and so from age
13 or so until 16 or 17 I was both a camper and a counselor at that camp. I
think that the values that were inculcated in the camp (as well as from my
parents, who were ardent New Dealers and admirers of Franklin Roosevelt)
have informed my politics. I view myself as a progressive and an ardent
Zionist. I don’t agree with the current Israeli government and believe in
social justice. My positive view of the good that governments can do
accounts for a lot of the public service that I have been lucky enough to
perform since coming to D.C.
I would say that the other significant event that occurred early on maybe
in the sixth or seventh grade was my interest in journalism. At the time
Baltimore had a sports editor at the Baltimore Morning Sun papers named
Jesse Linthicum who would publish letters that were sent to him about sports
and I sent in a letter not long after the Orioles arrived in Baltimore. The
Orioles arrived from St. Louis in 1954. I was probably in the sixth grade or
so. In one of the early years of the Orioles I wrote an article about how the
team would do — you’re not going to like this Sheldon, because I don’t think
I predicted that the Red Sox would do that well that year. That letter was
published in its entirety in his column, where he published a limited number
of letters. To me that was a big deal and I really appreciated the process of
getting my letter published and getting my name in the paper as a writer.
When I went to high school at Baltimore City College it had a very
prominent school weekly newspaper, the Collegian, and a number of my
close friends were on the Collegian. I joined the sports staff. I very much
enjoyed writing for the paper. I was a reporter and then a sports editor of the
paper and became the managing editor in the final year. A lot of the time in
high school was spent on journalism and that paper.
The paper won a medalist prize from the Columbia Journalism School and
I got to go to New York City with my buddies. It was very exciting. There I
went to my first Broadway show, The Music Man, and we got to make a
fleeting appearance on the Today Show with Dave Garroway. The advisor to
the paper was a very significant role model to me, an English teacher, named
Charles Cherubin. He was a very liberal activist and encouraged activism
and gave us good guidance not only on the newspaper and journalism but
also on national politics and public service.
Then finally while growing up, at the beginning of the Kennedy
administration, I watched President Kennedy’s inaugural speech about doing
public service and asking what you can do for your country and I think that
also made a big impression on me. I took that in and I think that had a major
impact on me growing up. So that was a pretty long- winded answer but I
think it gives you the essence of my youth.
MR. KRANTZ: Well I think this is an excellent start. I just want to say as an aside there are
some similarities in our background because I also became interested in
journalism in high school and was the editor of the sports section of our
newspaper. So I am intrigued by the parallel. Tell me more about your sister
MR. NATHAN: I think I mentioned her briefly and we have a nice relationship. There was
the usual sibling rivalry, and I am guilty of having teased her too much. We
obviously went to the same schools. She is three years younger than I am
and she went to that same camp that I did. She went to both public school
and Hebrew school and she became a public school teacher. She went to
Towson State Teacher’s College, now Towson University, and then from
teaching she became a mentor for engineers at Boeing and she worked for
Boeing. She is now retired and living near Lancaster, Pennsylvania, enjoying
her many grandchildren.
MR. KRANTZ: Irv you had talked about the impact that the labor Zionist camp had on you
with respect to your views both on Zionism and social justice. Could you
talk a little bit more about that, I mean what kinds of things were really
discussed at the camp?
MR. NATHAN: First of all it was a belief in helping each other. There was a communal spirit
at both the camp and in the city. Apart from the camp there was an
organization, named Habonim, where I spent a lot of time. I became the
president of the local chapter one year — I think my junior or senior year in
high school .It was very interested in the labor union movement in being sure
that workers got a fair shake. It was very interested in civil rights and civil
liberties and so it participated in marches and protests. And, of course, it
believed in a viable state of Israel as a homeland for the Jews. Even in our
modest home, we had what was called a “pushkie” where we would put small
change, and a bearded rabbi would come to our home every once in a while
to collect our savings and presumably pass it on to an agency that would help
Jews settle in Israel after the Second World War. A number of my
contemporaries from that era made “Aliyah,” meaning that they emigrated to
Israel and live in Israel now. It probably accounts in part for my recent
activity. When I finished my service as Attorney General for the District of
Columbia and after agreeing to go back to my law firm, Arnold & Porter, I
took off a few months last year to teach at Hebrew University and my wife
and I lived in Israel for the first time. I had visited several times before, and I
think the affection for that country and the hope that it survives and prospers,
stem from those days.
MR. KRANTZ: You mention one role model growing up when you were involved in the high
school newspaper. Do you want to mention some other role models, some
people that had an impact, either people you knew or just people you
respected or authors of books that you were quite taken with?
MR. NATHAN: Well, obviously I was taken with President Kennedy. I was a teenager when
he was elected and it was a very thrilling experience but that wasn’t close up.
I would say that in addition to my parents and Charlie Cherubin, the most
significant role model for me was Judge Simon Sobeloff. I clerked for him
after law school and before starting to practice. Judge Sobeloff was a very
highly respected individual in the Baltimore community. He had an
illustrious career, in both public service and private practice. He had been the
United States Attorney in Baltimore during Prohibition, later City Solicitor in
Baltimore. He had been the Solicitor General of United States in the
Eisenhower Administration, the chief judge of the Maryland Court of
Appeals and the Chief Judge of Fourth Circuit Court of Appeals. He was
also the founder of a well- respected law firm in Baltimore that continues to
thrive today, although without his name on it. My clerkship with him was a
very significant event for me. He was always interested in social justice and
in being sure that prosecutors were fair with defendants and the defendants
got all of their rights. He believed deeply in integration, racial justice and in
public service. I think he taught his clerks the importance of that and the fact
that my fellow law clerk from that period, Judd Miner, became Corporation
Counsel for Chicago in the administration of the first black mayor of
Chicago, and I had essentially a similar job for D.C. was no coincidence.
This was basically the same job that our judge had had in Baltimore more
than half a century before us. When I held positions in the U.S. Department
of Justice, I had the official portrait of Simon Sobeloff, from his days as
Solicitor General, hanging in my office so when knotty problems arose, I
could think what would Judge Sobeloff do under these circumstances.
MR. KRANTZ: Were there jobs you had growing up?
MR. NATHAN: I did and I guess that’s another role model that I should mention. As I
mentioned, we lived in a semi-detached house. The other half of that semidetached
house was occupied by a widow who had three children – a son and
two daughters. The son, Jerry Gross, who was, I would say, about 10 years
older than I, was a very intelligent guy and a very good tennis player. He
taught me a little bit about tennis, and we would play chess and checkers on
our adjacent front porches. He became a CPA and began working in an
accounting firm, Sidney London & Co. in downtown Baltimore. My father
asked Jerry if there was a job I might do at the firm’s office on Saturdays and
during the summer. Through Jerry, when I was about 12 or 13 years old I
became employed as an office boy at the accounting firm. Part of my job
there was to run the duplicating facility which involved mixing chemicals for
a thermofax machine. If you put too many chemicals in, the copy came out
dark and streaked and if you did not put enough in, it came out faint and
illegible. It was a very sensitive operation. So I would do copying for them.
The other part involved updating their CCH service. They had a tremendous
back log of CCH supplements, and they wanted someone to go through them
and insert the new CCH pages on tax and accounting matters and remove the
outdated ones. So I would sit in this library and pull pages out and put the
replacement pages in. Sometimes I would tear out the same pages that I just
put in a few minutes before as they were quite backed up.
I’ll tell you a story about that. For working a full day, this was either on
Saturdays or in the summertime in my first paying job, I got $5 a day and
would be paid by my next door neighbor Jerry Gross from petty cash. One
day I had worked the full day and Jerry wasn’t there when the day ended. So
I said to one of the young junior accountants that I wanted to get paid. They
said “well how much do you get paid?” and I said “I get $5 a day.” And they
said “Well that’s more than we get,” and that was the end of my job there.
Later on as I mentioned, I was a counselor at the camp.
Another job I had was working as a truck driver and delivery boy for an
unsuccessful spice company that my father started. His short-lived company
sold spices in bulk principally for crab houses in the Baltimore area and meat
packers in western Maryland. He had a converted milk truck that you had to
drive while standing up and shifting gears from a long horizontal shaft that
started in the floor board and came up to your waist. I drove that truck
through the congested streets of Baltimore and delivered 100 pound sacks of
seafood seasoning to retail establishments. This experience taught me that I
wanted to go into a profession and not be a manual laborer. Going forward
from the teenage years, I went to college and worked in the summers for the
Baltimore Evening Sun.
MR. KRANTZ: Before you get to college I want to ask you another question about the
teenage years. You indicated that you grew up in a Jewish neighborhood.
Did you come across any anti-Semitism growing up?
MR. NATHAN: No. And that was one of the lessons that the advisor to the newspaper,
Charlie Cherubin, that I mentioned, taught us. He made clear that we had
grown up in a bubble, that most of our neighbors were Jewish, and we were
shielded from the prejudices of the outside world. On the Jewish high
holidays, the public schools in our neighborhood either closed or maybe two
people showed up, so we never missed any time from school because of
taking off for the Jewish holidays. He said basically we were living in a
cocoon, cosseted by our parents, and protected from anti-Semitic thoughts or
comments. We never really realized what was out there in the rest of the
world, did not realize that until I went off to college, and there were Jewish
and non-Jewish fraternities, which would not even consider allowing a Jew to
MR. KRANTZ: Okay. Now let’s turn to what you started to talk about, which is after you
graduated high school your next steps up in terms of both undergraduate
work and the decision to go to law school.
MR. NATHAN: Well, I graduated high school in 1960. I had gone to an accelerated junior
high program. During junior high school, we did three years in two and I
went through high school in three years and so I was 16 when I graduated
from high school in 1960 on the verge of turning 17. I wanted to go to a
good school but again finances were a considerable factor. So it was
determined that the best place for me to go was to Johns Hopkins in my
home town of Baltimore where I could live at home. I lived at home as did
a number of other students in Baltimore in those days. We were known as
“townies.” Of course there were a greater number of students from out of the
city. One of those was a fellow named Michael Bloomberg, who has since
donated more than a billion dollars to the school. I majored in history at
Hopkins and once again I focused on journalism at Hopkins. It was not an
academic subject. I was on the newspaper, The Newsletter, and again started
as a sports reporter, then was the editor of the sports pages and then became
the co-editor in chief of the Hopkins paper. Again, it was a weekly and it
was a very good paper. Among my predecessors as editors in chief were
Russell Baker and Alger Hiss. In addition, I got into broadcasting. The
college had a very good radio station, WJHU, and I did the play- by- play
broadcasting on the radio of both football and lacrosse. I am one of the few
play-by-play lacrosse announcers in the world. I also had a talk radio show,
a call in sports show at WJHU for a couple of years. I believe that
experience was important in my career. I think that journalism is very good
training for the law because it taught you to both write and speak well, to
write leads that were informative and to make your main points early then to
flesh out the story with details in a descending order of importance. In doing
oral reports on sports, again it was important to communicate well with your
audience and get to the important points, make your points coherently and
make your presentations in a coherent logical way.
I financed my years at Hopkins, with scholarships, loans and my summer
earnings. Of course, I did not have to pay for room or board. And the interest
rates on loans were quite modest, so I was able to pay them off shortly after I
started working. In the first summer, I worked as a waiter at a resort in the
Adirondacks. I got that job through a friend I met at Hopkins. In the
summers of my next three years at Hopkins, — I worked at the Baltimore
Evening Sun as a sports reporter. One year, I got a fellowship from the Wall
Street Journal which said that if I got a job with a recognized newspaper
during the summer they would give me a stipend–I think it was about $500–
and that went a long way towards paying the part of tuition that was not
covered by the scholarship. They sent me the names of a number of
newspapers that would hire me, but they all involved travelling and living in
a different, distant city. My folks convinced me that for economic reasons, it
would be best if I worked for The Baltimore Sun and could save more of both
my pay check from the paper and the stipend. So I did work for the evening
newspaper in Baltimore. In those days, the Sun had two papers, an evening
and a morning paper. The evening paper had a sports section and they hired
me to cover amateur sports. I covered little league baseball. There was a
page in the sports section each week devoted to the little leagues. I had a
photographer who would come with me, and we would go out to all the fields
and report on the teams that were playing, including the kids and the coaches.
I would ask questions, and the kids would give their answers, and I would
make them intelligible and run their pictures with the story. I also covered
other amateur sports, including soft ball, which was a big amateur sport in
the city. And then as a special treat for me every once in a while, they let me
do a color story for the Colts and the Orioles. This was a big thrill. I got to
meet some of the players and coaches and also some of the journalists who
regularly covered the Orioles, the Colts and Bullets.
It was a very good and important experience for me, but I have to say this
was before Woodward and Bernstein and others who made investigative
journalism popular after that. When I saw the life of the journalist and the
tedium that was part of the process, I realized that I would have more
opportunities in other areas, either in academics–I gave some thought to
going to graduate school in history– or in law and ultimately concluded that
law was going to offer the best opportunities to do a variety of things.
MR. KRANTZ: Now, how did you reach that conclusion? That law was the field that you
wanted to pursue?
MR. NATHAN: Well it was a combination of things. I had not had any interaction with
lawyers in our community. But I had done a lot of reading about lawyers.
One of my heroes was Clarence Darrow. I read his autobiography and books
about him. I think I read the autobiography after seeing the play, Inherit the
Wind, which was put on by my high school drama department in my senior
year. I also read Louis Nizer’s book, My Life in Court, which described a
number of cases where his lawyering skills had won for his clients. I also saw
a number of television shows. When I was very young, there were shows
called The Public Defender and one called Mr. District Attorney both of
which I watched. And there were other TV dramas about lawyers, including
Perry Mason which came along in my late high school, early college years. I
think I also saw when I was in college the movie To Kill a Mockingbird with
Gregory Peck as Atticus Finch, which was very powerful. Finally, an
important influence was a course I took at Hopkins in American
constitutional law taught by Prof. Carl Swisher. He was not a lawyer, but a
political scientist, who put the landmark Supreme Court decisions in
historical and political context. From reading the assigned cases and
considering the arguments in both the majority opinions and the dissents, I
could discern what the lawyers had done to shape the cases. So I think all of
these factors, including mostly popular literature and movies, led me to the
conclusion that law might be an interesting pursuit. Even with all this, it was
a close question as I graduated college, whether to go to graduate school in
history or to law school. I basically chose to go to law school because it
would lead to a broader array of professional opportunities.
MR. KRANTZ: And the possible link between that and your interest in social justice?
MR. NATHAN: Absolutely. I think the kind of cases that Darrow had were very inspiring
and fit into my progressive agenda. Darrow of course originally was a
railroad lawyer and represented monied interests. Later in his career, he
represented labor unions, labor leaders and people accused of crime and
those seeking to uphold their First Amendment rights. This was an important
part of what intrigued me and led me to law school.
MR. KRANTZ: Before we go to the law school part of your life, there are a couple of
questions that come from things that you have said earlier. One is, clearly
sports were important to you as you were growing up. Why do you think that
was the case both in terms of your interest in sports and maybe you can talk a
little bit about your direct activity in sports?
MR. NATHAN: Like I said, we didn’t have a lot of money so we didn’t have a lot of kinds of
entertainment. We didn’t go on ski trips, we didn’t belong to a country club,
I didn’t play golf at the time, but I liked sports very much. I had pretty good
hand/eye coordination so the sports I played were the ones you could play at
the local field which was softball, basketball and touch football. My parents
did not want me to play tackle football. They were afraid their little guy
would hurt his head and his head would have to be the way to get ahead in
society, so they put tackle football off limits. I played in the touch football
league we had in junior high. I was also on the student basketball team that
played the faculty at our junior high school. In fact I met a guy who is one of
my closest friends now when we were 8 years old down at the softball field.
He did not live in our neighborhood but he biked down to our field and we
played — it was called The Towanda Midgets — we were the soft ball champs
of that field in the 10 and under category and we played in the city
championship together. As it turned out, he then went to the same junior
high school with me and we were both active on the school newspaper. He
and another good friend went away to college, but when they came home for
Thanksgiving, we would always have a touch football game with other
friends that we called The Toilet Bowl. In later years, this morphed into a coed,
multigenerational game that our wives and children played in as well,
followed by a deli feast at one of our parents’ homes. It was a tradition that
lasted for many years.
I never was good enough to play on the high school or college teams, but I
always retained my interest in sports. I guess it was first fostered by my
father. He would take me to minor league baseball games in Baltimore before
the Orioles came to town. After they arrived, when I was about 12, he took
me to a department store to meet this 19-year old who was in his rookie
season with the Orioles. It was Brooks Robinson. I got his autograph and I
remember his being very kind and friendly to me and my father. Today one
has to pay big bucks for an autograph of a star like Brooks Robinson. I
continue my sports interest today, rooting for the Nationals, the Orioles, the
Redskins and the Wizards. I never did get into ice hockey and really don’t
understand that sport.
MR. KRANTZ: Where does your competitive spirit come from? I have played racquetball
with you and seen when you are down in the score make determined efforts
to come back and win.
MR. NATHAN: I really don’t know, but it’s been a trait all of my life. I think it stems from
the need to succeed that was implanted in us by our parents so that we would
have a better material life than they had. I was always egged on by father to
do better. I would come home from school with a report card with 3 A’s and
a B, quite proud of myself, and he would say, “how come you got a B?” And
I guess, I saw the results of trying hard. When I did pretty well in checkers
with Jerry Gross, it helped get me the job I described. And when I did well in
elementary school, I was invited to go to the accelerated junior high. And as
mentioned, my good grades in Hebrew school got me to go to camp. So the
lesson I learned early was that trying hard and winning could pay off, and it’s
been part of me ever since even when it’s only a game.
MR. KRANTZ: And anybody who knows you knows that humor is a big part of your
personality. Where does the humor come from?
MR. NATHAN: That I think I inherited from my parents. Both of them had very good senses
of humor and were willing to laugh at themselves, at others and at the
absurdity of life. Comedy on television was a big part of our family life. I
remember in the late ‘40’s living in a small walk-up apartment, and even
though we were poor, we had a small black and white TV. On Tuesday
nights, chairs were arranged in theater fashion in front of the TV and
neighbors and relatives would come over and we would watch the Milton
Berle Show, I think it was called the Texaco Comedy Hour. My Dad in
particular loved Milton Berle and would laugh heartily at the outlandish
costumes, the sight gags and occasional interjection of Yiddish words and
expressions. We also watched Sid Caesar’s Your Show of Shows and
comedians like Myron Cohen on the Ed Sullivan Show. I was particularly
taken with the puns and witticisms of Groucho Marx and Steve Allen.
I remember when we were very young and living on Reisterstown Road,
when the television was on the first floor and our bedrooms were on the
second floor, that my sister and I would get out of our rooms and crawl very
quietly on the stair landing to watch The Tonight Show with Steve Allen,
which did not come on till 11:30, long after we were supposed to be asleep.
My parents would pretend they didn’t hear us, and then after a while would
shoo us back to bed. It basically was as mischievous as we got, and it got us
to hear a lot of the jokes and humor.
My Dad used to tell shaggy dog stories with bad puns and we would all
groan and complain, but secretly appreciated them. Even after he got
dementia as part of his Parkinson’s disease near the end of his life, he would
still appreciate the standard joke that we shared: The son comes into the
living room where his father is watching a baseball game between the
Yankees and the Orioles and asks the father, “What’s the score?” The father
says, “It’s 5 to 3,” and the son asks, “Who’s winning?” And the father says
“5.” This always brought a smile to my Dad’s face.
Basically, I see humor as a way of bonding with people, breaking the ice
and easing tensions. I also have to admit it’s a way of getting attention,
demonstrating wit, and it’s gratifying to be able to evoke laughter from
MR. KRANTZ: Ok, let’s get back to your pursuit of law. Why did you choose Columbia Law
MR. NATHAN: From Hopkins, I applied to a number of what I was told were the best law
schools. I had good grades at Hopkins, was elected to Phi Beta Kappa, but
did not do particularly well on the LSAT’s. I was accepted at Columbia and
received a substantial scholarship, which was very important to me. My first
choice was Harvard, but I was put on the waiting list, and I did not know if I
was going to be accepted and suspected that even if I were, I would not
receive as generous a scholarship package. So even before hearing the final
word from Harvard, I accepted the Columbia offer. I had already had a small
taste of New York from my trip there for the journalism convention and I
knew it would be an interesting place to spend three years. For me it was a
good choice. It also saved on transportation costs. Several times a year, my
parents drove me to the school from Baltimore. I did not focus on it at the
time but realized in hindsight that when my parents drove me to New York,
because they did not have the funds for a hotel or motel, they would drive
back the same night. This was a 10-hour round trip, and since my mother did
not drive at that time, my Dad drove the full way. I remain deeply grateful
for their tremendous sacrifice for me and my career.
MR. KRANTZ: Did you like law school?
MR. NATHAN: Yes, I am one of the rare folks who actually enjoyed my experience. At the
beginning, I was intimidated. I thought a number of the students who had
gone to Ivy League colleges and were the products of prep schools had
received a better education than I had and were better prepared for law
school. In addition, a number of the students seemed to have fathers, uncles
or grandfathers who were lawyers and they were already conversant with the
lingo and issues. This, of course, only made me work harder. I diligently did
the readings before the classes, and I was fortunate in the first year to live in
a wing of a dormitory that had equally diligent, conscientious students. The
four of us were constantly in each other’s rooms, discussing cases, and of
course, personal matters, and encouraging each other. I owe a great deal to
them. They sat us alphabetically in the large first year classes and my bench
mate was Gary Naftalis, who was very bright and concerned with doing well,
just like I was. I would say we each inspired the other to do as well as we
could. We both made the law review based on our grades. Even though I did
not work as hard in the next year, my grades actually improved. Admittedly,
I did not work so hard in the last year, when grades mattered a lot less. In
addition to classes and law review, I was active in the Jerome Michael moot
court competition. This was a trial level moot court, where you were
presented with facts and statements and people playing the witnesses, and the
trial was held before juries made up by undergraduate volunteers from
Barnard and Columbia. I enjoyed and profited from the experience, and was
proud to win the Jerome Michael trophy in my senior year. It cemented my
view that I wanted to be a litigator when I graduated. I also worked in that
last year for the New York Legal Aid Society. It was a way to get some
pocket change and also see real legal problems up close. That, too, was a
very rewarding experience.
MR. KRANTZ: What kinds of things did you do at Legal Aid?
MR. NATHAN: I was working under the direction of a number of lawyers. Most of the cases
involved domestic relations, housing issues and employment matters. I met
with clients, worked up statements of their concerns to pass on to the
lawyers, and did some legal research. None of the work got me into court
personally, but I was fortunate to accompany some of the lawyers to
preliminary matters in the New York trial courts.
MR. KRANTZ: Before we wrap up for the day, we should talk a little about your family.
MR. NATHAN: Happy to. I was married at the end of my second year of law school. My
wife, Jerry, was someone I had met in Habonim in Baltimore. She became
pregnant with our first child, Dan, in my third year, and Danny was born just
after I started clerking for Judge Sobeloff in the summer of 1967. We were
then living in Baltimore, where both our families were and they could help
with childcare. Our second son, Jon, was born in 1972 when we had moved
to Washington for my job at Arnold & Porter. Jerry and I were divorced in
the mid-1970s. In part, I attribute that to the long hours I was putting in at
the firm and the frequent travel. I give her a great deal of credit for handling
the bulk of the child rearing. She did a great job, and we have two wonderful
sons who are now grown and married. In the late 1970s, I met and married
my much better half, Judy Walter, who has made a wonderful life for us and
our family and has been the best thing that ever happened to me.
MR. KRANTZ: I can attest that she is your much better half.
MR. NATHAN: When I met her, she was a vice president at the Wells Fargo bank in
San Francisco, but she had been living in D.C. for a couple of years, first as a
White House Fellow and then as the assistant to the president of American
University, Joe Sisco, who had been her boss at the State Department when
she was a White House Fellow. Immediately after we met, she moved back
to San Francisco to resume her job with the bank. We had a transcontinental
romance for a couple of years, which was aided by the fact that a number of
her bank clients were in the Southeast U.S, where she had to fly on a
monthly basis, and I had some cases in San Francisco.
She had gone to Berkeley for graduate school, had many friends out there
and loved the city. I consider it my greatest forensic triumph to have
convinced her to come east, get married and live in D.C. She worked as a
senior deputy Comptroller of the Currency, then got a PhD at Catholic
University in social work, and taught as an adjunct there for several years.
She has developed a great network of friends in D.C. and now would never
consider moving anywhere else. She has been incredibly supportive to me
and a calming and maturing influence. She is a wonderful step-mother and
grandmother to our two grandchildren, Ben and Zoe. They are the children of
our son Dan and his wife Sue Taylor, who live in Saratoga Springs,
New York. They live there because Dan is a professor of American Studies at
Skidmore College. We have a second home about an hour away from them
in the Berkshires, and we try to get there as much as we can to see the
grandchildren. We also try to visit our son Jon and his wife Melissa who live
in Manhattan as much as we can. So I guess that’s the story of my family
MR. KRANTZ: I think that’s a good place to break for the day. We’ll schedule a next session
to talk about your legal career. I’ll be in touch soon.
MR. NATHAN: Thanks.
This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on Saturday, January 30, 2016. This is the
second interview.
MR. KRANTZ: The first interview, which took place on January 9, covered Irv’s roots, the
stages of his life prior to his becoming lawyer. Today we will begin covering
the various aspects of his very distinguished legal career.
In the first interview you did discuss with great fondness your first
position after graduating from Columbia Law School which was clerking for
Judge Simon Sobeloff. You also said that you then joined the Washington,
D.C. office of Arnold & Porter. When did you begin working there?
MR. NATHAN: I started working at Arnold & Porter in the fall of 1968. I had finished the
clerkship with Judge Sobeloff, which was, as you said, a great experience. He
was a terrific mentor, and I felt confident that I would be able to do litigation
after having been trained by him. Actually, when I was clerking for the judge
in Baltimore, my first choice for a law firm in Washington was Williams &
Connolly. I applied to both Williams & Connolly and to Arnold & Porter. At
Williams & Connolly I was scheduled for an interview sometime in the winter
while I clerked in Baltimore. On the day of the scheduled interview, it
snowed. I took the Greyhound bus from Baltimore to Washington and got out
at the Greyhound station in DC at 11th and New York Avenue. There were no
cabs because of the snow so I walked to their offices which were then at
Connecticut and L. When I got there, I was told that the office was closed,
that the interview was therefore cancelled and the two lawyers I was
scheduled to meet had not come in that day. I then had to walk back to the
Greyhound station and return by bus to Baltimore. Needless to say, I was not a
happy camper. So I went to my second choice, Arnold & Porter. At the time
I didn’t know a lot about Washington law firms but I had read in a precursor
of the Washingtonian magazine a squib on all the firms and there was a
statement that Arnold & Porter had more talent and lawyers with more
idiosyncrasies per square inch than any other firm in the city. I didn’t focus
on the fact that the space of the firm was very small and that is why they had
so many talented people per square inch. But I was hired and I thoroughly
enjoyed my experiences as an associate at Arnold & Porter. It turned out to be
a very lucky choice for me.
MR. KRANTZ: Well I think you worked there for many years. Was it over 20?
MR. NATHAN: Well in all I have worked over 35 years at Arnold & Porter.
MR. KRANTZ: Thirty-five years!
MR. NATHAN: That is not all in a row. I have left several times for government service. I
have come and gone so many times through the revolving door that I am quite
dizzy. When I joined in ‘68 I was an associate. After the first seven years, I
was elected to the partnership in 1974 or 1975. I left the firm to go into the
Department of Justice in 1979. That was my first stint in government. When
I was at the firm as an associate, I had some very good experiences and some
great training. There were terrific lawyers at the firm, who were good
mentors. They included Abe Krash, Norman Diamond and Milt Freeman.
Two other partners with whom I worked extensively were Stuart Land and
Mel Spaeth, both of whom have remained friends of mine through the years. I
worked on a great variety of litigation in that period. At the firm at that time,
one was encouraged to be a generalist. They did not have departments or
specialties and so I did a lot of litigation, as well as contract work and some
Congressional lobbying. But principally it was litigation and it was some
extremely interesting litigation.
MR. KRANTZ: And Irv to the extent you can talk about your most memorable cases and
clients consistent with whatever obligations you have on confidentiality it
would be good to talk about what some of them were.
MR. NATHAN: Well a principal case I worked on as an associate was a case where we
represented a group of American steamship companies, including American
Export Isbrandtsen Lines and Lykes Brothers Steamship Lines, in an antitrust
case that was brought against them by the owners of Sapphire Steamship
Lines. Its principal owner was Marshall Safire, who was the brother of The
New York Times columnist William Safire. This was a very complex case,
and from the beginning I got a lot of responsibility. It had come in to the firm
through Thurmond Arnold who was still practicing at the firm at the time. Of
course, he had been an antitrust assistant attorney general in the Department
of Justice in the distant past and had done a lot of work in the antitrust defense
world. I briefly worked for him although the main lawyer on that case, the
main partner, was Stuart Land. The case involved some complex issues of
antitrust law but also a lot of discovery and damage analysis. Right from the
start, I got to take a number of depositions. One of the first was the owner of
Sapphire Steamship Lines, Marshall Safire. I prepared extensively for it and
was eager to do it. I was particularly pleased to get praise for my efforts by
Dan Margolis, a well-respected antitrust litigator, who was representing
another one of the defendants. He was not at our firm. He was at a separate
firm, with whom we were in a joint defense. His encouragement meant a lot
to me. It was very meaningful and suggested that I could perform at a high
level in litigation. In that case, I learned a lot watching other prominent
lawyers in town who represented other defendants in motions and hearings
before the District Court judge here in D.C.
I also got to meet, in connection with this case, Joe Alioto, who was a
prominent plaintiff’s lawyer in San Francisco and at that time back in the late
1960’s and early 1970’s was the mayor of San Francisco. I had a very
amusing and interesting experience with him. His firm represented the
plaintiff, a trustee in bankruptcy for Sapphire Steamship Lines, and we
reached a settlement with the Alioto law firm. But the settlement was not
going to satisfy either the owner of the company or the principal creditor of
the steamship line which was the U.S. Government. Because the company was
in bankruptcy the settlement had to be approved by the Bankruptcy Court in
the Southern District of New York. The lawyers who handled the case for the
Alioto law firm were the very able Max Bleecher and Harold Collins. The
mayor had had virtually nothing to do with the case. On the day the matter
was to be argued before the Bankruptcy Judge, Mayor Alioto happened to be
in New York on some mayoral business (or he had arranged it so he would be
there) and he was going to make the argument in favor of the settlement on
behalf of the trustee. Since I had done the lion’s share of the work on the case
and knew the details. I was assigned to go and brief Mayor Alioto about the
We met at a restaurant in Chinatown an hour or so before the argument
in the Bankruptcy Court, where he was going to present the argument as to
why the settlement should be approved. He had had virtually nothing to do
with the case and did not seem to know much about it. So we sat down at a
table at this restaurant in Chinatown, and he said tell me everything that is bad
about my case and why is this a good settlement. He asked, “Why is my case
so weak?” He didn’t seem to have a clue what the case was about. So I
described all the weaknesses of the case and he was writing down these points
on a napkin at the restaurant. Then an hour or so later we all went into the
courtroom and before the Bankruptcy Court Alioto made a spectacular
argument as to all the weaknesses of his case explaining how he was an expert
in this field and had done so well for so many years and was confident that
this was the best settlement they were going to receive.
It was quite a lesson in advocacy and lawyering. Alan Morrison was
an Assistant U.S. Attorney and argued in opposition, and also did an excellent
job. We did have to sweeten the deal a bit, but we did ultimately get that
settlement approved. As a result, the firm got some other cases for Lykes
Brothers Steamship Lines and I worked again with Stuart Land on those and
we prevailed in those litigations as well.
Another great experience of preparing a lawyer that I recall was
working with Stuart at the Timberline Lodge in Oregon, preparing for a Ninth
Circuit argument. Everything came together and Stuart Land made a great
argument, and the court affirmed the dismissal of an antitrust case. I
remember celebrating with Stuart after the argument in a great restaurant in
San Francisco.
MR. KRANTZ: Let me ask you this. You were talking about the fact that you got praise from
Dan Margolis and others for how you handled certain aspects of this case. I
take it you did not derive the expertise or experience from law school so how
were you able, as a very young lawyer, to handle complex antitrust litigation?
MR. NATHAN: Well in the first place I did get some training in law school because I had
taken a trial advocacy course at the law school with two superb practitioners,
Sheldon Elson and John Martin. Both of them had been assistant U.S.
attorneys in the Southern District of New York and were adjuncts who came
in to teach from private practice. John Martin ended up both as the U.S.
Attorney in the Southern District and later as a federal district court judge.
And as I think I mentioned last time, when I was at Columbia Law School I
participated in and won the Jerome Michael moot jury trial competition. In
addition, of course, at Arnold & Porter I got to see some very good lawyering
and some good training from some of those lawyers that I mentioned
previously. And this effort that I was talking about with Dan came after a
couple of years into practice.
MR. KRANTZ: Alright. Let’s continue to talk about some of the other experiences and cases
at Arnold & Porter beginning as an associate and working your way up to the
time when you became partner.
MR. NATHAN: A couple of others stand out in my mind. We represented the importers of
tomatoes from Mexico and we were seeking some relief from the Department
of Agriculture. We had an extensive hearing down in Florida and we got a
sense of being the villain in the piece because there was a fight between the
Florida tomato growers and the tomatoes that were being imported from
Mexico. So we were booed when we walked into the hearing room down in
Orlando and we litigated that case quite extensively. It was a case that taught
me a lot because we had to deal in the court of public opinion in that matter as
well as in the agency and then in getting the record developed in the Court of
Appeals. Our goal was to establish that our clients could import these
tomatoes and they could be sold on the same basis as the domestic tomatoes
grown by the Florida growers. This was during the Nixon administration.
Earl Butz was the Secretary of Agriculture and the Department was trying to
skew the regulations so as to exclude and penalize tomatoes coming from
Mexico to the benefit of the domestic growers.
This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on Friday, July 8, 2016. This is a
continuation of the second interview.
MR. KRANTZ: Now as I mentioned this is a continuation of our second interview in which Irv
was talking about the various cases he was involved in in his first stint with
Arnold & Porter and that is where we are going to pick up. During the last
interview we had, you were talking about a case relating to the Department of
Agriculture. Why don’t you pick up there and continue to talk about that
MR. NATHAN: Thanks Sheldon. In that case, we represented the importers of tomatoes
grown in Mexico against the Department of Agriculture which was run then
by Earl Butz. This was in the Nixon administration which was trying to favor
the growers in Florida. We had an administrative hearing to challenge the
regulations that agriculture had imposed. It was important then to get public
opinion on our side as well as to develop a record for the Court of Appeals.
And there are some lessons I learned about Washington in doing this. First, of
course, we tried to round up consumer advocates to support our notion that
tomatoes grown from Mexico were at least the equal if not better than
tomatoes from Florida and we called ours vine-ripened tomatoes from
Mexico. One of the people we got involved was Bess Meyerson who was
then the consumer champion of New York City and her lawyer at the time
who was Si Lazarus and that worked out quite well. In addition, we went to
Capitol Hill and we met with Mike Pertschuk who was then counsel to the
Senate Commerce Committee. We were asking that the committee hold a
hearing on this issue so we could demonstrate the unfairness to our clients
who were being prejudiced by the Department of Agriculture to the detriment
of the American consumers. We wanted a hearing but Pertschuk had a better
idea. He said to us you go back and write a memo that is marked “strictly
confidential/private and confidential” from me, Mike Pertschuk, to my boss
who was then the Chairman of the Commerce Committee, Senator Magnuson.
And in that memo we laid out all of the inappropriate actions taken by the
Department of Agriculture and the terrible effects on consumers. I thought
this was going to lead to a hearing. Instead, a few days after we delivered this
confidential memo, it appeared in a column by Jack Anderson who
breathlessly said, “I have obtained through great investigative work a
confidential and private memo,” and the column laid out all the issues. It set
forth all of our arguments and it turned out to be a lot more effective than if
we had a hearing. So it taught me something about the ways of Washington,
including that memos were written solely to be leaked to the press. By the
way, we lost of course before the Department of Agriculture, but we did
prevail in the Court of Appeals on the issue and we got regulations changed.
MR. KRANTZ: Well that certainly is a reflection that as a young lawyer you got involved in
some significant things pretty early on.
MR. NATHAN: Exactly.
MR. KRANTZ: What are some other examples or early cases you worked on?
MR. NATHAN: Well I wanted to mention my involvement in criminal matters when I was an
associate which I did primarily through pro bono work which was of course a
very important part of Arnold & Porter’s practice at that time and continues to
be so. In the late 1960’s and early 1970’s, I represented people who were
faced with Selective Service problems, people who had been drafted that did
not want to go in. I also, by the way, in the commercial world represented
companies that were facing anti-trust grand juries so I dealt with grand jury
representations but the only real criminal matters were pro bono matters.
One case in particular that taught me a lot of lessons was representing an
individual named Michael Harvey. Harvey was the son of an employee of one
of our clients. His mother came into my office one day and said that her son,
who was then living in Costa Rica, had just received a draft notice to report to
the draft board in Virginia and he was not going to do that, he was not going
to come back for this. He claimed to be a conscientious objector. So I spoke
by phone with Michael in Costa Rica and urged him to prepare his application
for conscientious objector status and worked with him to change the place of
his induction from Virginia to the nearest American base which was in the
Panama Canal Zone. They did transfer the place of induction, which bought
us some time. Now at the time it was required if you were going to be
claiming any defense of the draft, you had to exhaust your remedies and that
meant you had to go to the place of induction and there refuse to take the step
forward. So I explained to him to go Panama at the date of his induction, to
appear there and to decline to take a step forward. So he did that and then
when he returned to Virginia he was arrested and charged with Selective
Service offenses and the prosecutors moved to remove him from Virginia to
Panama to stand trial for these criminal offenses. At that point, we made
motions to avoid the removal principally on the ground that the judge in the
Panama Canal Zone was an Article I judge whose term had expired and that
meant that he was sitting at the pleasure of the President who of course was
the prosecutor. So we said this is an unfair place to remove him to. We also
argued that all the American residents in the Canal Zone were somehow
connected to the military and thus we couldn’t get a fair trial there. The judge
in federal court in Virginia agreed with us that he couldn’t be tried in the
Canal Zone. So the prosecutors in Virginia dismissed the removal proceeding
and promptly indicted Harvey under the statute that provided that when a
person returns to the United States for a U.S. crime committed elsewhere that
person could be tried in the first place that the person entered the U.S., which
in this case was Virginia. So at that point we filed motions to dismiss
claiming that he had to be tried in the Canal Zone because that is where the
crime had taken place. We also claimed that the government had violated the
Speedy Trial Act even though, of course, we had caused most of the delay.
We also relied on a statute that had been passed at that time because a lot
of the young assistant U.S. Attorneys were declining to bring these cases. The
conservatives in Congress passed a law providing that if there was an
inordinate delay between the referral for prosecution and the filing of charges,
the U.S. Attorney had to write a letter to explain to Congress the reason for
the delay. We argued that the prosecutors had not written such a letter, and
we had another hearing before the Judge who was Albert Bryan, Jr. in the
Eastern District of Virginia. On the basis of the failure to provide the letter,
the judge dismissed that indictment and Michael Harvey has gone on to a nice
productive life. The case drove home to me that with imagination and
persistence, you can do pretty well in litigation and in criminal litigation in
MR. KRANTZ: Well I think that is a good example of the creative lawyering you have done
all of your life.
MR. NATHAN: Thank you [laugher]. But the most significant case that I had when I was at
Arnold & Porter was the case of Charlie Finley against Bowie Kuhn.
Arnold & Porter had represented Major League Baseball for a long time. Paul
Porter came from Kentucky and “Happy” Chandler, one of the early
Commissioners of Baseball, was the former Governor of Kentucky. He
retained Porter and it was a staple of Arnold & Porter’s practice at that time to
represent Major League Baseball. In this case, Commissioner Bowie Kuhn
had blocked the sale of three players of the Oakland A’s, which was owned at
that time by Charlie Finley. The three players were Vida Blue, Rollie Fingers,
and Joe Rudi. Their contracts had been purchased by the Yankees and the
Red Sox for a million dollars apiece and Kuhn had blocked the sales, saying
they were not in the best interests of baseball. So Finley sued, claiming that
this was his property and the Commissioner had no right to deprive him of it.
The question for trial was did the Commissioner have the power to do this. It
was a fantastic experience. The trial which took six weeks in Chicago before
Judge Frank McGarr who opened the trial by saying “play ball”, involved the
entire history of major league baseball since the creation of the Commissioner
and the first Commissioner, Judge Kenesaw Mountain Landis. I was the
second chair. Peter Bleakley was the main lawyer at Arnold & Porter for
Commissioner Kuhn.
One of my most significant accomplishments in this case was finding the
transcripts of the original meeting between the club owners and Judge
Kenesaw Mountain Landis when they offered him the position of
Commissioner of baseball. I looked all over for any records relating to that,
including in New York at the Commissioner’s office in Cooperstown at the
Hall of Fame, in Chicago where Landis had his office, and even in Arizona
where his granddaughter, who was then in her 90s, had some of his records.
No luck. One day I was in San Francisco and I had lunch with “Chub”
Feeney who at that time was the president of the National League. He said
that when he took over that job, he got a whole passel of boxes from the
former president of the National League, Warren Giles from Cincinnati, and
he sent those boxes out to a warehouse district in San Francisco. So I went
out to this warehouse district and went through these cobweb-covered files,
bankers boxes of files, and in one of those boxes I found the actual transcripts
of the meeting in 1921 where the owners met Landis. The owners, whose
names I knew from baseball stadiums like Comiskey and Forbes and Crosley,
were represented by George Wharton Pepper, one of the leading lawyers at
the time in the United States. This was in 1921 following the Black Sox
scandal. The owners invited into the room Judge Kenesaw Mountain Landis
and they had a proposed written contract that they presented to him and on the
record Landis, who noted that he had lifetime tenure as a federal job, says that
he was not going to take this job, unless it said in the agreement that he could
do whatever he thought was in the best interest of baseball. They agreed, they
changed the contract and put that into the agreement.
So here I was sitting there with these transcripts which had not been
known before – and now, by the way are in the Hall of Fame in Cooperstown.
At the time, Jimmy the Greek was quoting 8-to-1 odds that Finley was going
to win this case because these were his properties. I’m sitting here looking at
the transcripts. I thought I could make a fortune if I could make that bet, but I
did not put any money down on it. But I did write a pretrial brief that
described all of this. One of my proudest accomplishments is that brief
appeared in the Fireside Encyclopedia of Baseball.
We then went to trial and the trial was just a spectacular trial. We had as a
witness a guy named Fred Lieb who had been a sports reporter in 1919. This
was in the early 1970’s. Lieb had covered the Black Sox World Series and he
covered the effort by the major league owners to come up with a new
commissioner to oversee the game. We also had Joe Cronin as a witness who
had been an all-star player and was in the Hall of Fame and then had been a
manager and then an executive of the Red Sox and a president of the
American League and a lot of other dignitaries from the sport. One of the
most interesting things was that we put on the record that in 1947 when the
Dodgers brought up Jackie Robinson there were 16 major league teams and
twelve of them voted against having Robinson play and “Happy” Chandler the
former governor of Kentucky overruled the twelve owners and said it is in the
best interest of baseball to integrate the sport and allow Jackie Robinson to
play. We brought that in as an indication of what the powers of the
Commissioner were and what the owners intended those powers to be.
Another amusing episode of that case was that after I cross-examined Gabe
Paul, the general manager of the Indians, Jerome Holtzman, a sports writer in
Chicago, described me in his column as a “bulldog in the courtroom.” The
next day Finley left on the desk in front of my chair a can of Alpo dog food.
We won that case and I was fortunate enough to argue in the Court of Appeals
where we sustained that decision. That decision has led to increased powers
not only of the baseball commissioner but of the commissioners of other
organized sports. So that was a great experience and a great litigation to have.
MR. KRANTZ: And also I think a very good example of the importance of diligent fact
MR. NATHAN: Absolutely. After that case most other civil litigation seemed boring and not
too interesting and as a result, this was now in 1977, and a new President was
in office, I applied to the Department of Justice for a position there. My
application was promptly ignored for several months, and then one day out of
the blue I got a call from Ben Civiletti who at that point was moving up from
being Assistant Attorney General for the Criminal Division to being Deputy
Attorney General. He told me he was sitting there with the person who was
going to replace him as the head of the Criminal Division Phil Heymann, a
Professor from Harvard Law School. I had never met either of them before.
Civiletti asked whether I could come for an interview to be a Deputy in the
Criminal Division. And I said, sure I can make it next week and he said “No I
mean right now.” So fortunately at the time you dressed with a suit and tie to
the office, so I had my suit on, I agreed and without any preparation I went for
this interview. The interview went well and the following day I was offered
this position.
MR. KRANTZ: Now how many years had you spent at Arnold & Porter as an associate before
this time?
MR. NATHAN: Well, by this time I had been made partner. I had been at Arnold & Porter a
little over six years as an associate and then I made partner, I think by the end
of 1974. The interview was in 1978 so I had been a partner maybe three years
I think something like that before being offered this position. It was
interesting to me that a number of the partners at the firm recommended that I
not take this position. They weren’t focused so much on the salary disparity,
the loss of income, but they said as a partner at Arnold & Porter, you should
get a presidential appointment and this was not one. They said you should be
the Assistant Attorney General and not a Deputy Assistant. They thought it
was beneath the dignity of me and the partnership. I’m really glad that I
rejected that advice. It turned out to be a seminal experience. First of all, the
job itself was a terrific job and working with Phil Heymann was a great
learning experience. He has always been a great mentor from that time
forward and the experiences that I got there were themselves educational and
enjoyable. It also provided the basis for being able to do other things in
private practice and then later in further government service. So I was very
glad I rejected that advice.
MR. KRANTZ: Well there are certainly a number of interesting matters that you worked on
that I’m aware of and maybe the one that most people know about is
ABSCAM. Maybe you ought to start with that experience.
MR. NATHAN: Alright. To explain, when I went in as a Deputy Assistant Attorney General
my responsibilities were to supervise the Organized Crime and Racketeering
section of the Criminal Division, the Narcotics section, and the Appellate
section. Each of them was extremely interesting and involved supervising
lawyers. I reviewed proposed indictments, particularly if they were charging
RICO violations that had to be approved at the Assistant Attorney level. I
also handled reviews of proposed wire taps and immunity orders. So it was
quite a change from what I had done. It was highly challenging. I supervised
several hundred lawyers, and I was very impressed by the competence of the
lawyers and their dedication to the public interest. I continue to have that view
with respect to government service and government lawyers. So we had a
number of undercover operations that were ongoing that we had dealt with
and one of them, as you mentioned, was ABSCAM.
This began basically as a routine undercover operation to recover stolen
property, securities and art work. There was a con artist who had been
convicted, a guy named Mel Weinberg, who was basically working with the
government to reduce his sentence. The FBI agents developed an operation
where the agents portrayed themselves as very wealthy Arab sheikhs or their
representatives who had a lot of money to spend and would spend it on these
stolen arts works or securities and people would come in and basically try to
fence those things and then they would be arrested and prosecuted. That
operation morphed into public corruption by the suggestion of one of the
middle men. New Jersey had just legalized gambling in Atlantic City and the
middlemen claimed that these Arabs or their agents could get a license for
gambling for a casino if they paid off the right people, the casino
commissioners. As it moved into the public corruption area, it got a little
dicey, and Phil Heymann asked me to come in and try to coordinate the
efforts. Then as we got into it, it turned out that some of these middle men
said these rich Arabs are going to need the help of Congress, and so a scenario
was developed where the claim was that these rich Arabs might need some
day to come into the United States, when there were coups or other unrest in
their native countries, and they might need legislation to authorize them being
here with green cards and they were willing to pay big bucks to members of
Congress for private legislation. There was a parallel scheme that involved
Senator Harrison Williams who already had a hidden interest in a titanium
mine, and the issue was that if they could finance the development of the
titanium mine, the Senator would be able to get the product sold to the Federal
Government based on his connections. So there were a whole series of
videotaped undercover operations – this was in a house in Georgetown that
the FBI rented – and needless to say this was a pretty high risk operation
dealing with very prominent people. There were also multiple jurisdictions
involved, and my job was to make sure that we could get prosecutable cases
from this, have them in the right jurisdictions, parceled out among various
U.S. attorneys.
One facet of it that is interesting is originally the New Jersey U.S.
Attorney’s office, which was then led by Bob Del Tufo, was very supportive.
We were involved with a number of Congressmen in that area, Philadelphia
and New Jersey. But as the operation developed and it got deeper into
Senator Harrison Williams, who had been a sponsor of Del Tufo, it got much
more sensitive. At that point, the New Jersey U.S. Attorney’s office started
sending memos to main Justice claiming that we were engaged in entrapment
and due process violations and raising all kinds of questions about this middle
man Mel Weinberg. There were also allegations about another prosecutor
from Brooklyn, Tom Puccio, who had very close relations with the FBI agents
and concerns that the FBI agents were steering meetings into the Brooklyn
U.S. attorney’s jurisdiction so that they could be prosecuted in the Eastern
District by the Strike Force there. I tried to keep these people separated and
make sure that we could have winnable and prosecutable cases. I got memos
from the New Jersey office on a couple of occasions that were very pro
defense and very much against the Department that obviously would come out
and be damaging to the government in the litigation. The line attorneys that
were handling the matter were fine people but I didn’t think they could write
memos of this caliber and I looked more closely at the memos and I saw that
the bottom signature, which often represents the real writer, was a guy I had
never heard of. His name was Samuel Alito [laughter]. I don’t know
whatever happened to him, but I suspect given his very pro prosecution views
on the Supreme Court these days that he might be chagrined to see the very
pro defense memos he wrote when he was in the U.S. Attorney’s office when
he was a young man before he became the U.S. Attorney there. Anyway, the
ABSCAM was a set of public corruption cases. There were seven separate
prosecutions. They were controversial at the time when the matter became
public but we persevered. We got a lot of criticism, including from the courts
and the commentators and certainly from the Hill, but we did secure
convictions in every one of the cases and they were all affirmed on appeal.
There were some interesting interactions with the Congress as a result of all
this. When the story broke, one of the committees on the Senate, the Senate
Ethics Committee, called Phil Heymann and me before them and demanded
the production of all the information we had on these matters before the trial.
Phil Heymann to his credit said we are not going to turn over these materials,
including the tapes, until after this trial is over. We got a lot of grief but we
persisted. It was pretty clear to us that they were looking for this information
to help the defendants in the case and not really to do an investigation. We
waited and after the convictions we did provide the materials to both the
House and Senate Ethics Committees. Everyone that we charged was
As Phil Heymann had told me when I first started, you will be as proud
of the cases where you did not return an indictment, cases that you decline, as
you are of the cases you brought. We were proud of the decisions we made
not to indict certain people. We insisted as a standard, first of all, that it was
clear that the people understood what was going on and they weren’t
mystified, that they understood in advance exactly what they were coming
into and that they appeared on the record, on the videotapes to understand it,
and that they actually accepted money on tape. So there were some who
agreed to the proposition but didn’t want to take the money at that time, and
we did not bring charges against them even though they had agreed to
participate. When we turned over all the materials, the ones who were
convicted were expelled from Congress. We also turned over to those
Committees the ones we didn’t charge but explained what the background was
and showed the tapes. None of them was sanctioned by the Ethics
Committees of either House. Following ABSCAM, both Houses of Congress
conducted an investigation of us and what we had done there. These resulted
in reports in which we were exonerated and we came out looking pretty good.
Legislation was introduced to reduce the use of undercover operations as they
affected public officials, but none of that legislation was passed and obviously
it continues to be the case that the same kinds of undercover operations that
are used in organized and other kinds of crimes are available to be used in
corruption matters. The experience taught me a lot about the relations
between the justice system and the Hill. Also, a lot about the defense
approaches that were used in the case and about the diligence of the agents
and prosecutors who pursued it.
MR. KRANTZ: There is a movie in recent years that related back to ABSCAM. Were aspects
of that movie an accurate reflection of what happened there? That’s my first
question, my second was who played Irv Nathan?
MR. NATHAN: Yeah, that’s interesting. Well there are a couple of things. The movie is
called American Hustle, starring Bradley Cooper, Amy Adams and Jennifer
Lawrence. The first thing I would say is that nobody in ABSCAM looked like
either Amy Adams or Jennifer Lawrence.
MR. KRANTZ: [Laughter]. Second, the opening line of the movie is that “Some of the
following is true,” and that is true. Some of it was true and a lot of it was
made up and exaggerated. The third thing that is interesting is Mel Weinberg,
the con artist that I mentioned who was key to this, is about 90 years old and
was a consultant on the movie. His role, played by Christian Bale, was a
Jewish con artist who was engaged in a lot of skullduggery including taking
some kickbacks. A lot of that was true. In real life, I often chastised
Weinberg and demanded he cut out these shenanigans, like signing a book
deal in the middle of the operation, and he did not particularly like me. In the
movie, the name of the con artist was Irving, and I took it personally and I
thought that that was his revenge against me in the movie. And the further
revenge was that there wasn’t a character who played the behind-the-scenes
prosecutor which is what I was doing at the Department. The one prosecutor
who does appear in the movie who was supposedly Tom Puccio does not
come off very well in the movie, so I did not think that was a fair
representation of what happened from the prosecutorial perspective. Still, it
was a fun movie.
MR. KRANTZ: Well it’s going to be hard to top your experiences with ABSCAM but I’m sure
there were other experiences you had while you were serving in this position
at the Department if you want to briefly talk about them.
MR. NATHAN: Another undercover operation that I think was very important was called
Operation Graylord which was in Chicago. It involved corrupt Chicago trial
judges particularly in the criminal courts in Chicago who were amenable to
taking bribes to dismiss cases or give very light sentences. We set up an
undercover operation because we had the cooperation of a lawyer who had
participated in it and had gotten into trouble. He was wired up and we created
some bogus cases and the lawyer recorded on tape providing money to judges
in return for dismissing the cases. We got a lot of convictions in federal
courts of the corrupt state trial judges but we also got a lot of grief from the
Illinois Supreme Court that was very upset that we had done this without
informing the court or an appellate court about what we were doing. They
even threatened to take away the law license of the U.S. Attorney Tom
Sullivan in Chicago who was a great trial lawyer and was a very dedicated
public servant. We had to go out and explain and promise not to do those
kinds of things again without giving advance notice to the appellate courts but
it was another important experience and I think we served justice. There were
other undercover operations dealing with corruption in labor unions.
We also brought a number of cases against organized crime figures and
succeeded in breaking up some of those families in New York, Boston,
New Orleans and elsewhere. So it was quite a full docket. In addition, I think
we left some lasting items there. We were involved in drafting the Federal
Principles of Prosecution. It was the first time that that had been done. It was
done under Civiletti’s charge. We also established the guidelines for the use
of the Foreign Corrupt Practices Act which had been enacted in that time
period. We drafted and published regulations dealing with searches of
newspapers that came from a case out in California, and also we revised the
undercover guidelines for the FBI as a result of concerns during ABSCAM
and others. So there was a good legacy left from that time in that period. It
was a great learning period. I also during that time, because there was a back
log of cases in Miami in the U.S. Attorney’s office, went down and tried a
couple of criminal cases there to help them and also to get the sense of what it
was like to be on the front line of criminal cases. And that was a great learning
experience for me as well.
MR. KRANTZ: How many years did you serve as the Deputy Assistant Attorney General?
MR. NATHAN: I think it was about three years. I went in 1978 and stayed until there was a
national mandate that I leave office with the election of Ronald Reagan.
MR. KRANTZ: [Laughter] among others. You then returned to Arnold & Porter?
MR. NATHAN: I did. I returned to Arnold & Porter after that service and began developing a
white collar criminal defense practice. One of the things that I did while in
the government was review all of proposed RICO prosecutions and as a result
I had a pretty good knowledge of RICO. And because before I had gone in to
the government, I had done a lot of private anti-trust work I knew about treble
damage actions. So I developed a bit of a practice dealing with treble damage
civil RICO matters. I published articles and spoke at conferences on that
subject. I also at that point became the chair of the White Collar Crime
subcommittee of the Criminal Justice section of the ABA and got involved in
the independent counsel statute. Because another thing that had happened
while I was in the Criminal Division was dealing with that statute. This was
obviously just post-Watergate, and the independent counsel statute was first
enacted to regularize what had been done ad hoc in Watergate. When I was at
Justice, we had the very first case that was brought under that statute. It
involved the Studio 54 matter with Hamilton Jordan who was accused of
using cocaine there. So we were involved in the selection of the first
independent counsel who was a former U.S. Attorney in the Southern District
of New York – Arthur Christie – and the first issues that came up under the
independent counsel statute. I thought the matter worked pretty well. He did a
thorough investigation and declined to bring a prosecution and made a report
to the court on what he had done and I believe the court had kept that report
confidential. Because I had seen how the independent counsel statute worked,
I was a proponent of it. When I was with the ABA, I was asked to draft the
amicus brief on behalf of the ABA in support of the constitutionality of the
statute when it was challenged in the courts. Ultimately the Supreme Court
upheld it. That was another experience that I had in the government that led
to interesting experiences in private practice.
Another thing happened as a result of being in the government as it related
to private practice. When I was in the government and we were dealing with
ABSCAM and questions on the Hill, I met Senator Moynihan and actually
debated him on the propriety of ABSCAM. He was troubled by it and the
questions of entrapment. A short time later, after I had returned to Arnold &
Porter, when Senator Moynihan was the Vice Chair of the Intelligence
Committee, an issue came up relating to the CIA director, William Casey.
There were allegations that related to him and to one of his political
appointees at the CIA, and the Senate Intelligence Committee which was
chaired by Barry Goldwater was going to conduct an investigation about the
propriety of Casey continuing to serve as the head of the CIA. Senator
Moynihan asked me to become counsel to the minority on the Senate
Intelligence Committee which I did and it was another very interesting
assignment. Fred Thompson was then in private practice and he was the
lawyer for the Republican majority and we investigated and reached differing
conclusions on William Casey. The majority prevailed and Casey remained in
that position, but as a result I got to work with two young Senators on that
committee. One was a new Senator from Delaware named Joe Biden. I don’t
know what happened to him, either. The other was Patrick Leahy who later
became Chairman of the Judiciary Committee, and they were courageous
proponents of facts dealing with Casey and joined in a minority report. So
that was a good experience. I did that while I was in private practice. It was
another way to see the relationship between the Executive Branch and the
Congress and the private bar because some of the people were represented by
private individuals..
Another thing that developed because I had done the RICO matters. I was
also retained by the City of New York to bring civil RICO actions against
people who were violating the tax laws of New York City, failing to remit
taxes on the sales of beverages, including beer and sodas. I worked to be sure
that some of those companies paid damages, three times the damages they
caused to the city of New York. So my government service led to a series of
interesting assignments.
Another one that I had in the early days of returning to Arnold & Porter
was to represent an individual named Tom Viola who was the CEO of a
public company that basically removed waste. The company was accused of
midnight dumping of toxic substances into the waterways of New Jersey.
This wasn’t a criminal case but it was a congressional matter. There was a
hearing of the House Oversight Committee which was chaired by John
Dingell. The main witness who was against my client, had a bag over his
head and his voice was garbled so that you couldn’t identify who it was. He
made these charges and we were supposed to defend Tom. I met with
Chairman Dingell and said when this happens under your rules you are
supposed to give this person an opportunity to come in and defend himself.
Dingell complied with the rules of the committee and he gave us that
opportunity and he was very fair with us. We utilized a public speaking
coach, and my client did very well in defending those charges. There weren’t
any criminal charges that resulted, but unfortunately, as a result of those
allegations, Tom lost his job. The board of directors fired him, and we
represented him with connection to that matter as well. And we negotiated a
very good severance package for him. So there were a lot of interesting
matters in that timeframe.
MR. KRANTZ: Well I would say, Irv. A lot of people feel that being a partner in a big law
firm can be tedious and boring work, but what you were doing during this
time period was certainly far from that.
MR. NATHAN: Yes, I was very lucky. There is no question about that. I had a good run at
Arnold & Porter from the early 1980s until about 1993. Another case that I
handled in that time that did get some publicity and was interesting and
revealing to me. I represented a partner in a law firm that was heavily
involved in a savings and loan in Florida. The lawyer was a partner and then
he became the inside counsel at the savings and loan which had gone belly up.
The prosecutor in the Miami Strike Force brought charges. First he brought
charges against the executives of the savings and loan and in that case he
claimed that the executives had gotten good legal advice but they had rejected
that legal advice and engaged in improprieties causing depositors to lose
money. So they prosecuted the executives and in that trial the prosecutors
claimed the lawyers were good guys who had given good legal advice. After
the convictions of the executives, in order to reduce their sentences, the
executives, one in particular, claimed that the lawyers were in cahoots and
they changed their story. The same prosecutor now proposed criminal charges
against the lawyers. My client was one of them and was the main lawyer
involved. This lawyer had been granted immunity in connection with the first
trial but now he was being prosecuted even though he was essentially saying
the same things now that he had said earlier. I urged Justice not to allow the
charges to go forward, but my request was turned down and they brought
charges. The first thing I did – and this was all reported in a book called Main
Justice by Jim McGee and co-author Brian Duffy – was to fly to Miami where
he was going to be charged and sued to enjoin the indictment on the ground
that it was a breach of contract, a breach of the immunity agreement. I argued
that he had lived up to his agreement but the government had not. The judge
took it under advisement but rejected our claim. We had a lengthy hearing
and then the court allowed the indictment to go forward. In the middle of that
proceeding, by the way, when President Clinton was elected and Phil
Heymann was asked to be the Deputy Attorney General, he called me and
asked if I would come back and be his top assistant. I said this was an
inopportune time because I was now handling a case against the government
and making arguments that the Department of Justice had improperly handled
this matter. I said I would get back to him when the proceeding was over. I
went back into the courtroom and advised the court that I had had this call
from the DOJ, and the prosecutor said that I should be recused, that I should
be taken off this case, because now I wasn’t going to be a diligent lawyer for
my client because I was going to seek favor with the DOJ for a job. I made it
clear that I had not initiated this call and it was the DOJ that was conflicted
and I suggested that this prosecutor should be recused and the case should be
tried by another department like the Department of Agriculture. Anyway, the
judge calmed things down and asked my client if he was satisfied with his
representation and he was and we went forward.
After the hearing I went back in to the Department of Justice, but that stint
only lasted a little over a year, and when I returned to private practice, I
resumed my representation of this lawyer and got back in time to try the case.
At the trial, there were 14 counts and my client was convicted on 1 count,
acquitted on 13 counts and convicted on the 1 count. We then filed a posttrial
motion to renew our previous claim that there had been a breach of the
immunity agreement because the trial had proved exactly what my client had
said when he was immunized. This time the court agreed and threw out the
one conviction on the ground that the government had violated the immunity
agreement by bringing this case and he continued as a practicing lawyer in
Miami. My client was a religious Christian and a deacon in his church, which
supported him throughout. After his acquittal, they threw a celebration party
in Florida, claiming that God had sent a Jewish lawyer done from D.C. to save
their deacon.
MR. KRANTZ: Well clearly you had a good second stint at Arnold & Porter. You mentioned
that you did go to work again for the Department of Justice. Tell us about
MR. NATHAN: I did.
MR. KRANTZ: What year was that?
MR. NATHAN: It was 1993-94. It was near the beginning of the Clinton administration, I
went in with Phil Heymann to be his principal associate when he was Deputy
Attorney General. I was called the Principal Associate Deputy Attorney
General or PADAG.
MR. KRANTZ: Okay. I think at this point we are going to stop what has been an interesting
session. We’ll resume with your experiences in your second stint at Justice
next time.
This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on July 20, 2016. This is the third
MR. KRANTZ: The first interview which took place on January 9 and covered Irv’s roots, the
stage of his life prior to becoming a lawyer, the time period he spent at
Columbia Law School and his initial clerkship with Judge Simon Sobeloff.
His second interview covered the time period at Arnold & Porter, his first stint
at the Dept. of Justice, and his return to Arnold & Porter. Today what we plan
to cover are questions relating to his return to the Department of Justice and
the Deputy’s office, his return again to Arnold & Porter, and then, if we have
time the period when you served as the General Counsel in the House of
Representatives and later as the D.C. Attorney General. So with that
background, Irv let’s turn back to you and you just had finished talking about
your time period at Arnold & Porter and we were then going to focus on what
happened thereafter. So why don’t we start there.
MR. NATHAN: Well, before I get to my return to the Department of Justice, there was a very
important professional experience that I had in 1991. At that time Arnold &
Porter had a sabbatical program and I had deferred and therefore was eligible
for a nine month sabbatical. Sheldon, you helped very substantially to arrange
that for me because what I did on the sabbatical was to go to San Diego and
both teach at the University of San Diego Law School and to work with the
Federal Defender’s Office, headed by Judy Clark. I appreciate your help in
that regard. As to the teaching, the dean of the law school at that time was
Christine Strachan, and she urged me to teach a course that she called
Washington Scandals. It dealt with a number of the matters that had gone on
during the time of my practice. One was Watergate, and her husband actually
was a defendant in the Watergate case. He had worked at Nixon White House.
It also dealt with ABSCAM, which I described last time, and the Keating Five
congressional hearing and other matters like that. The Keating Five were five
senators who were called up on the charges before the Senate Ethics
Committee for dealing with the banker Charles Keating. It was really
instructive to study those matters, to read up on them and to teach lessons that I
could derive from them. The thing I found most interesting about teaching in
1991 about Watergate was that the students had never heard of Watergate and
in fact they didn’t even believe me when I had told them what had happened.
They hadn’t heard of it because it happened either before they were born or
when they were infants. And it had happened too recently – in the early
1970’s – to be in their history books, so it was something that hadn’t been
covered for them in high school or in college lessons. And they were
astounded at what had happened. It tells you how passing these things are and
how people don’t know about relatively recent history. When I realized that
they didn’t know anything about Watergate, it said to me that I didn’t know
much about Teapot Dome which also happened about 30 years or so before I
was in college and law school.
MR. KRANTZ: I just want to make the observation that because I recommended or helped
make the arrangement for you to go to San Diego you will be happy to hear
that that recommendation has not come back to haunt me. Not yet, anyway!
MR. NATHAN: And the second part of that sabbatical was working at the Federal Defender’s
Office which was a great experience. That office at that time was run by Judy
Clark who is an outstanding criminal defense lawyer. She was an expert on the
sentencing guidelines and on major capital cases. She ran a tough office
insisting that her lawyers dress appropriately and act appropriately with
indigent clients the same that commercial lawyers would do with their clients.
In that office I tried a number of cases, defended criminal cases that mainly
involved Mexican nationals who had come over the border either with other
people or with guns or with some inappropriate matter such as drugs. It was a
great experience. It was difficult because the court there was pretty
conservative and often ruled against the office in matters like search and
seizures where I thought on the evidence they should prevail. The other thing I
learned was that the defendants, the Mexican nationals, were not fully trusting
of their lawyers because they thought that since they were being paid for by the
government they couldn’t really be trusted. That was an unfortunate situation
the lawyers had to overcome. It was a great experience to see what these
young lawyers were doing to defend individuals and the way the court
operated. I had a number of interesting cases and I really appreciated that
experience. When I came back after the sabbatical, I continued the practice at
Arnold & Porter, and that is when I handled a case that I described last time,
the Ken Treadwell case involving the lawyer that had been given immunity
and was then indicted. Then when Phil Heymann was named the Deputy
Attorney General in 1993 at the beginning of the Clinton administration, I
returned to the Department as his principal assistant. The job was called
PADAG, Principal Associate Deputy Attorney General. And in another
personal aside, Sheldon, Phil Heymann put together a great office, with very
talented people, one of them you may know, a woman named Laurie Robinson
– your wife – which ultimately led to her getting the appointment to be the
head of OJP where she did a great job. And there were others, like Rod
Rosenstein who became the U.S. Attorney in Maryland, the longest serving
U.S. Attorney I think in Maryland history, and David Margolis, a great lawyer
and a shrewd bureaucrat who sadly recently passed away. It was a great
office. Unfortunately, this stint did not last that long. Phil and Attorney
General Janet Reno came to a parting of ways in about a year so I was only
there for about a year. It was a tremendous learning experience because the
Deputy’s office supervises a number of components of the Department of
Justice – the FBI, DEA, the Bureau of Prisons the Criminal Division and
criminal components of other divisions such as tax and civil rights. So it was
an excellent learning experience with a great opportunity to see a broad array
of what was going on at the Department of Justice and around the country.
MR. KRANTZ: And what were your impressions of the Attorney General at that time?
MR. NATHAN: Well Janet Reno was an experienced prosecutor because she had been the
District Attorney in Miami. She was a very serious and certainly wanted to do
the right thing. She was very conscientious. I attended her staff meetings once
a week and I know how dedicated she was to doing the right thing and not
having politics intrude. On the other hand, it turned out this stint at the DOJ
was, for a variety of reasons, much less satisfactory than the first one because
politics did play a much bigger role at the Department in that time. When Phil
and I were in the Department in the Carter administration – that was
immediately post-Watergate – there was quite an emphasis on having the
White House have nothing to do with the DOJ and having it be totally
independent and basically keeping out of the Department’s business, The
Department was completely independent and was going to do what the leaders
there thought was the right thing to do. In the Clinton administration, the
Carter administration was viewed as a failed administration because it was not
re-elected, and the Reagan administration which had two terms was viewed as
being a successful. One of the lessons the Clinton White House drew from this
was to have the White House much more involved in policy matters at the
DOJ, not in cases but in policy. So, as an example, this was a time when
legislation was proposed by the administration that had a lot of mandatory
minimums, a proposal for three strikes and you’re out with a life sentence, and
legislation that had a lot of offenses carrying potential death sentence. The
death penalty was a punishment provided for many different offenses
supported by the administration. This was ironic because Janet Reno was an
opponent of capital punishment but she was the spokesperson for the
administration to support such legislation. And it was a little frustrating
because we in the Deputy’s office – particularly Phil Heymann – thought that a
number of these legislative proposals, such as the mandatory minimums and
the three strikes and you’re out, were not very sensible provisions. We made
that clear but they were politically popular and we didn’t have much luck in
staving off the politics. I think that the country has come to regret some of that
in current times. To me, it underscores that we should be dealing with the
merits of these kinds of proposals, and leave the political consideration aside,
but that was not the case and is not likely to be in the future.
MR. KRANTZ: So then did you leave shortly after Phil Heymann left?
MR. NATHAN: Yes. I was there for a while after he left. I helped make the transition smooth.
Jamie Gorelick came in as Deputy, and she wanted Merrick Garland to be her
principal associate, which made a lot of sense. Merrick had been in the
Criminal Division as a deputy, and he had long known Jamie and she
justifiably had great confidence in him. While I was there, I focused on a
number of policy issues. At the Deputy’s level, we were not generally dealing
with cases as we had done in the Criminal Division but some policies, and I
didn’t really succeed. I didn’t think they were right but I could not convince
the powers that be. For example, under Rule 16 of the Federal Criminal Rules,
we had proposed that prosecutors be required to provide the names of the
witnesses in advance of trial, unless there was a motion made to the court that
said that the witness’s life or health would be in danger or there could be some
demonstrable adverse consequence from disclosure of that witness’s identity.
The truth is that not only did the defense lawyers want that but the federal
judges wanted to change that rule because they thought that if the government
provided the names of witnesses that would lead to pleas based on how strong
the government case was. But the prosecutors did not want to change that rule,
and the official position of the Department was represented by the organization
of U.S. attorneys in the executive office. They opposed that rule change and
threatened that they would take it to Congress if the judicial panel on federal
criminal rules proposed that rule change. Another rule that I tried to modify
was dealing with contacts with represented parties. I thought that the FBI,
when they knew that a person was represented by a lawyer, should not make
contact directly, that the agent would go through the person’s lawyer. Again
with certain exceptions such as if they were an undercover operation. Again I
wasn’t successful in that. The one thing that I did very helpfully during that
period, this was the period of the Whitewater allegations that were raised, was
to assist in naming the initial special counsel. At this time, the Independent
Counsel statute had lapsed, there was a sunset provision in it, so this was a
time where there was a hiatus and no operative law on the books so we had to
appoint a special counsel. This was not done under the statute, but the
Department could directly appoint a special counsel, and my suggestion was to
appoint Bob Fiske for that position. He was a really responsible and
experienced former prosecutor in the Southern District and a Republican with
no political ambitions. I had worked with him in private practice and admired
him greatly. He was appointed by Janet Reno and he began the investigation.
He was doing a great job and then the statute was reenacted and that required
the court to make an appointment. We at the Department proposed that, since
Bob Fiske had done a lot of good work on this, he be appointed by the court to
be the Independent Counsel. But the three-judge court saw it differently. They
thought Fiske was tainted because he had been appointed by Reno and they
appointed Ken Starr to be the Independent Counsel. I was on record on
television the very first day and argued that Starr was not the appropriate
person because he did not have prosecutorial experience and because he had
other higher office ambitions. He had been rumored to be considering a run for
the Senate from Virginia and he was also a potential Supreme Court justice.
Frankly, I think that Starr and also later Judge Walsh, in connection with the
Iran contra investigation, misused the independent counsel statute and as a
consequence it was terminated by the Congress.
There is another matter that I continue to think I was right on, but that
turned out to be a low point for the Department while I was there. There was a
case called U.S. v. Knox, which involved a graduate student at Penn State who
had been convicted of possessing child pornography and had been sentenced to
five years’ imprisonment. That conviction was affirmed and he was
petitioning for cert to the Supreme Court and it came to our office because a
Deputy in the Solicitor General’s office thought this was a miscarriage of
justice. According to the brief, the material that this student possessed did not
involve any sex or any nudity. It involved an actress who was about 18 years
old playing a cheerleader in her gym clothes and the camera allegedly lingered
too long on her fully clothed private parts and the lower courts concluded that
was pornography and he, who possessed but did not direct, produce or
distribute the film, was going to serve five years. So we filed something with
the Supreme Court – it wasn’t quite a confession of error – but it was a
suggestion that the matter be remanded to the Circuit Court for further
consideration. It was remanded by the Supreme Court in about an hour after
we filed our papers, but shortly thereafter we got a written demand from the
Senate Judiciary Committee that said, it came over late morning, give us your
explanation for being soft on pornography by 5:00 this afternoon. We were
drafting a letter to get in by 5:00 but at about 4:00 we received notice that the
Senate had voted 100 to 0 censuring the DOJ for being soft on pornography.
That did not make Janet Reno a very happy camper, but I continue to believe
that we did the right thing in an effort to negotiate a sensible resolution for Mr.
MR. KRANTZ: Which clearly establishes, Irv, that you can do the right thing and still lose.
MR. NATHAN: Exactly and be criticized for it [laughter]. So a short time after Phil Heymann
left, I did return to A&P for another substantial stint.
MR. KRANTZ: And what were the years?
MR. NATHAN: I think it was from June, 1994 to 2007 that I was at A&P. For the third time.
MR. KRANTZ: So that was actually quite a long period of time.
MR. NATHAN: It was a long period of time and I had again a number of interesting matters.
Several of them that developed from serving in the government. I represented
some senators and their staffers in either internal investigations in the Senate or
grand jury investigations. A fair number of my matters were RICO cases,
including civil RICO suits. I represented a major tobacco company which was
sued under civil RICO by foreign governments. One was by the European
Union and its member countries and another was brought by the states of
Colombia. The claims in these matters were that international cigarette
companies were not paying foreign taxes and import duties for cigarettes
manufactured in the U.S. and sold abroad. We had lengthy hearings and
motions. We won those cases under a doctrine called the Revenue Rule which
provides that foreign countries cannot sue in the U.S. courts under their tax
laws. Even though this was styled a civil RICO, case it was really a tax
collection case. We also argued that the RICO statute while it incorporates
some laws that involve offenses overseas, the injuries have to be sustained in
the U.S. under the treble damage provision. We argued this in the late 90s and
only recently the Supreme Court ruled in that fashion, agreeing with our
interpretation of the law. One case that I particularly remember that we
handled in a grand jury involved a large company. We had to come up with a
novel defense for it because another company in the same industry had already
pled guilty to exactly the same charge, and we were then faced with the same
investigation by the same office. I developed an argument that demonstrated
that the government’s theory was not a proper interpretation of the mail fraud
and wire fraud statutes. We had a good recent Supreme Court case on point
and I wrote a long letter essentially saying that if the government charges our
client, we are going to raise this defense and that will undermine the prior
conviction that you have. So after the letter was sent, I went with an assistant
general counsel of the company to the U.S. Attorney’s office and the US
attorney and his assistants took us into the Grand Jury room and he laid out all
the evidence against the company and said we could indict the company and
we would win, but it would be just too much of an effort and we don’t have the
resources and so we are not going to prosecute. I then proceeded to start to
refute all the evidence that they had shown us in the buildup of this
presentation. The inside counsel said “You can’t take yes for an answer and
let’s get out of here! ” So we did depart and the company was not charged.
Amusingly, the lawyer for the company that had plead guilty I think believes
to this day that somehow we did something improper with the U.S. attorney to
have our client not charged. But in truth we only relied on a good legal
argument that we had developed.
Another major matter that I handled at that time, related to an independent
counsel investigation, a preliminary investigation that was conducted against
the client Andrew Cuomo who at the time was the secretary of HUD. I was
retained by him and his father–Mario. Mario told me that it would be the
mutilation of Andrew’s political career if an independent counsel were
appointed. Basically, we had 90 days to disapprove the allegations and to
satisfy the Department that there was no point and no justice in appointing an
independent counsel. But we succeeded and the matter was properly closed
without the appointment of an independent counsel. Mr. Cuomo is now the
Governor of New York having been re-elected. I very much enjoyed that
representation, particularly strategizing with Mario Cuomo who was a brilliant
lawyer and a devoted father.
One other matter I should mention is my defense of the CFO of
WorldCom, Scott Sullivan. This was a very difficult representation because it
was a high profile matter, where he faced very serious consequences in both
criminal and civil matters, where he had a very sick wife and a young child and
where his relatives, who had brought us into the matter, were convinced he had
done no wrong. After very contentious proceedings with the U.S. Attorney’s
office in the Southern District of New York and the SEC, we were able to
work a deal, whereby in return for his testimony against others, he received a
relatively lenient sentence. We also negotiated an excellent agreement with the
SEC, which allowed him to keep most of his assets for his wife and child.
Scott is now on the speaker’s circuit as a born again Christian, and I am
pleased that we were able to get him past his problems and move on with his
So there were a number of matters that came up like that in that period at
Arnold & Porter.
MR. KRANTZ: There are a number of people who have the view that once you have served in
government positions like you have served feel like public service is a better
career than being in private practice. It seems to me that you may be an
exception in that regard particularly since you had such exciting opportunities
while in private practice, is that right?
MR. NATHAN: Well, I realize I have been very lucky in my career. I have been very pleased
and fortunate that I was able to be both in private practice and in government
service. I have always wanted to serve in government. That is one of the main
reasons why I came to Washington to practice, but I also think that the service
in the government helps to enhance your career in private practice, and I got
some matters that stem from that. I’m not a proponent of the notion that the
revolving door is a bad thing. I think it is a very good thing. I think is it
helpful to private clients when the lawyer has been in the government. As a
former government lawyer, you have a good idea of what the government is
interested in and can explain that to your client—which, in my opinion, is
generally doing the right thing and having diligent people or trying to serve the
public interest. That is my experience with career prosecutors and career
government lawyers. So with that knowledge, you can explain to your private
clients what is the government’s goal and how to navigate the shoals of a
government investigation or charges. Conversely, having been in private
practice and understanding how corporations work and how the private
industry works, you can explain to your government colleagues if you are in
the government, how certain things operate in the other sectors of society. In
one example I can recall, when I was in the government after having been in
private practice there was an investigation of a Senator, and the prosecutor
thought that the Senator was clearly corrupt because when a bill was
introduced affecting an industry in his state, he took jurisdiction in his
committee over that bill. I was able to explain to it was quite usual for a
committee chairman to take jurisdiction over a bill that affected the industry
his committee was supposed to oversee and, it doesn’t suggest corruption that a
bill goes to the committee with the right jurisdiction over it and you can’t jump
to any conclusions based on that alone. There were similar situations where
private people in industry made judgments about the goals of prosecutors
which I didn’t think were warranted and could explain where I thought the
prosecutor were coming from. So I think as long as you have your eye on the
ball and you know whom you represent and what the interest is that you are
representing, you can inform that representation by knowledge both of private
industry and government service and you are helping your client whoever your
client is at that time.
MR. KRANTZ: Now, unlike a lot of other people who have not had the same extensive
government experience, you had a fairly diverse series of positions. What led
up to your leaving Arnold & Porter and becoming general counsel of the
House of Representatives?
MR. NATHAN: Well, let me say I was not seeking that position. I think it’s actually an
amusing story. I’ll tell you how this came about. I made no secret of the fact
that I like government service and I was looking to do government service. I
thought honestly after the last stint in Justice that was probably the last time I
would be in government service and I would be expected to retire from private
practice. But because people knew I was interested in it, one day while I was
sitting at my desk at Arnold & Porter, I guess in 2007 I got a call from a friend
who had joined the staff of the Speaker of the House, Nancy Pelosi, and he
said would you be interested in being considered for the position of General
Counsel of the House? And I said well what is that job? And he said you
don’t need to know because you’re not going to get the job. I just want to know
if you can be a part of the group who are going to be considered for the job. He
made clear that the Speaker was likely to choose a woman for the position. So
I said well you know Nancy Pelosi was the daughter of the mayor of Baltimore
while I was growing up; we did not run in the same circles, and I had always
wanted to meet her, so I would be happy to be considered if I could get an
interview with Nancy Pelosi. But it turned out when she read my resume, she
saw I had clerked for Judge Sobeloff and Judge Sobeloff was a very prominent
figure in Baltimore, in fact he had been a city solicitor in Baltimore. At the
time he was a Republican and he was a city solicitor for the Republican mayor
that preceded her father but I learned later that he also stayed over and worked
as city solicitor for her father. So she knew him and had a high regard for him
but mostly she was fascinated by the fact that if I clerked for Judge Sobeloff I
must be very old and decrepit. She conflated my age with his – he was 75
when I clerked for him and I was 24 – and she wanted to see if I could walk in
on my own without literally being carried in or without an oxygen tent. So
when I came in, not quite that old and when we shared stories about Judge
Sobeloff we hit it off and she offered me the position basically saying if you
were good enough for Sobeloff you’re obviously good enough for this job. So
as a result I did have that opportunity and I was delighted to take it, and it
turned out to be a really good experience.
MR. KRANTZ: You had indicated that prior to taking the position you were not fully aware of
the kinds of things that a general counsel in the House of Representatives does,
I guess you learned very quickly. What were some of your tasks and what
were some of the most interesting experiences you had?
MR. NATHAN: The general counsel of the House represents the institution, the members and
staff in matters that relate to their official duties. So a fair bit of it was to deal
with the Speech or Debate doctrine, the privilege in the Constitution that
protects the members or their staff in anything involving legislative matters
from being subpoenaed or sued or otherwise called to account anywhere other
than in a legislative forum. As a result, at that time, it was a heavy litigation
load of representing members who were being subpoenaed or sued. One of the
first matters that I handled was the aftermath of the search in Congressman
Jefferson’s office where for the very first time in our history the executive
branch had executed a search warrant on the premises of the House and had
taken the records of Congressman Jefferson who was suspected of and later
proven to be involved in corrupt activities. They had searched his home, that
was where they had found the cash in his freezer, but they also searched his
office and took away lots of records. That happened before I was there, and
motions had been filed before I was there by the person who was my deputy
who is an excellent lawyer, Kerry Kircher, but thereafter there were a lot of
proceedings relating to protecting those privileged documents. So we had
litigation over those documents that had been taken. Another matter during my
tenure was an impeachment of a federal judge, Thomas Porteous. He was a
Louisiana federal judge. His basic argument was that yes he had taken money
from parties in litigation before him, but he had taken money from both sides
and that hadn’t influenced his decision. He and his lawyer apparently thought
that was a great defense. He was represented by Jonathan Turley. We didn’t
think that was much of a defense. The issue was whether the House was going
to impeach him. He brought a lawsuit claiming that testimony that he had
given before a judicial disciplinary panel could not be used against him in the
impeachment process in the House. We moved to dismiss that on the ground
that what happened in the House could not be challenged in another place, and
we won that law suit, that was dismissed. We advised the committee dealing
with his impeachment. He was impeached, I believe unanimously. It was a
pretty difficult thing to get unanimity on anything in the deeply divided House
of Representatives at that time. He was convicted by the Senate and removed
from office.
Those were the kinds of matters that we handled, but the most significant
one during the time that I was general counsel of the House related to the
firings of a number of U.S. attorneys in the second Bush administration.
George W. Bush had appointed U.S. attorneys. At the beginning of his second
term, he fired a number of them in a very peculiar way, without notice or
explanation. A number of those attorneys were very highly regarded. Actually,
before I become the general counsel of the House, I had already taken on the
responsibility of being a senior legal adviser on the House Judiciary
Committee that was looking into the question of these firings. Then later I
was asked to become the general counsel. During that investigation when I
was the general counsel of the House, subpoenas were issued by the House to
the former White House counsel–Harriet Miers—and by the Senate to Karl
Rove. At the advice of the White House counsel, they both refused to appear.
They not only refused to testify they even refused to appear and honor the
subpoenas, claiming that they were immune because they were (or had been)
high White House officials. We thought there was no merit to that proposition.
And the question was how to resolve it. Harriet Miers was held in contempt of
the House, and a reference was made to the DOJ for criminal prosecution.
Obviously that was not going to happen. It was the Republican administration
which had recommended that they assert this immunity, and the Attorney
General wrote a letter to the Speaker advising that they were declining to
The second traditional way that this could be handled was to have the
House Sergeant of Arms go out and arrest the person who was held in
contempt. They could be tried in the House and imprisoned in the House for
the session of the House where this contempt had taken place. That procedure
was followed in the 19th century and approved by the courts. It hadn’t been
followed after the 1920’s, and what used to be the prison in the House is now a
snack bar, and I think everyone thought it would be cruel and unusual
punishment to keep someone in the House snack bar for the term of Congress.
The trial in the House did not seem like a politically viable way, and I
suggested that we could bring a civil suit. It would be the first time that a civil
suit was brought to compel the testimony of the executive branch, of officials
who were refusing to testify. There was a lot of debate on the issue and after a
suit was approved by resolution of the House, I went to the minority leader
who was at that time John Boehner, and I said this is an institutional matter and
Republicans should join in this lawsuit. I said it doesn’t take a lot of
imagination – this was in 2008 – to think there will come a time when there
will be a Democrat in the White House and Republicans will control the House
of Representatives, and you’ll want to have this authority. Mr. Boehner
refused, saying this was a partisan matter, which I did not think it was. Not
only did they oppose the suit, and they even filed a brief against us, claiming
that the case was not ripe. The case was heard by Judge John Bates in the
District Court in the ceremonial courtroom, with the White House counsel,
Fred Fielding, at defense table, and Judiciary Committee Chairman John
Conyers at our table. After the three hour argument, we did not know how the
decision would go, but we did know that both sides had presented all their best
arguments and that the court understood them. Less than a month later Judge
Bates wrote a superb decision rejecting all of the arguments that the DOJ
presented. He rejected their procedural grounds to avoid the merits and then
on the merits, concluded that there is no immunity for White House officials
from a Congressional subpoena. He ruled that executive officials, like
everyone else, have to abide by the subpoenas and, if they wish, raise a
privilege objection on a question by question basis, but they couldn’t just
ignore the subpoena. After that ruling, the Obama administration came in and
we basically worked out a resolution of the matter. But that precedent stands.
It is an important precedent for the House. Ironically, a year or so later when
President Obama was elected into office in 2009 and a fight broke out between
the House which was then under control of the Republicans after the 2010
elections, in the fight with Eric Holder over the so called Fast and Furious
investigation, it was that precedent that the Republicans used to go to court.
They sued Attorney General Holder and get some relief from the Department
of Justice. So that precedent stands as an important precedent for the House.
There were a number of other very interesting matters and it was a great
opportunity and a thoroughly enjoyable and instructive professional
experience. But then when the Republicans took control of the House, I didn’t
think the new majority wanted my services anymore, and that’s when I moved
MR. KRANTZ: Okay, you certainly raised the realities of the political process within Congress.
Could you talk just a little bit more about that overlay and how it affects your
job when you are general counsel hired by the majority party and you have a
minority party that is trying to resist your efforts? On a day to day basis does
that make the job extremely difficult to do?
MR. NATHAN: No. And we did not represent the majority party. I viewed the job as a nonpartisan
job. I viewed it that we were representing the House as an institution
and then we represented individuals who were subpoenaed. So if it was a
Republican congressman that was subpoenaed, we represented him or her
without regard to the politics. We assisted them with respect to the assertion of
whatever privileges they had based largely on the Speech or Debate clause or
whether they had any other issues. There were other more mundane matters
that we dealt with for representatives. For example, each of the representatives
has an office in their home district and sometimes they rent space and they
have issues with the lease there. We would provide representation and advice
with respect to that. There were issues about taxation because they were
immune from certain local taxes and we would deal with that. And on all
those matters we would deal equally, whether it was a Republican or a
Democrat and we would maintain their communications in confidence.
MR. KRANTZ: When you focus on your point which is that your client the House of
Representatives and either Republican or Democrat but if you are trying to
deal with the client, when you have two different parties, what is the process of
doing that?
MR. NATHAN: Sometimes, as for an example, in the lawsuit involving the enforcement of the
subpoenas, we had to get approval and in that case it was such a high profile
and an important matter that actually did go to a vote of the entire House, so
that we had a resolution that would pass by majority and the Democrats were
the majority so their view prevailed. In other situations, they have at the
House what they call the Bipartisan Legal Advisory Group which is a group of
five members of Congress who are usually represented by their staffs. It’s
made up of the Speaker, the Majority Leader and the Majority Whip and then
the Minority Leader and a Minority Whip. Decisions are made by that five
person organization and obviously if the issue divides them politically, the
majority — the three who are in control of the House– gets the decisive vote.
So there were cases where we filed amicus briefs in cases that were pending
and where we wanted the courts to know the interest of the House as an
institution. Sometimes in those cases there was a partisan divide. When we
filed the briefs, we would note that the authorizations for filing it was based on
a three to two vote by this group, which was called BLAG. So that’s how
those decisions were made.
MR. KRANTZ: Okay, well we only have five more minutes for the purpose of this particular
interview, and what I would like to use it for is to set the stage for how you
happened to have another position in government, this time with the District of
Columbia when you became the Attorney General for the District of Columbia.
MR. NATHAN: Right. I should mention that another set of cases that I dealt with in the House
had to do with times when there were misrepresentations made to the House by
witnesses and there were going to be criminal prosecution referrals. A lot of
people in the House, both Members and staff did not want to testify in those
kinds of matters out of concerns about waiving privileges and so forth. One of
those matters was the case about Roger Clemons, the major league baseball
pitcher who had testified about steroids and was accused by the Committee of
perjury. The Committee referred the case to the D.C. United States Attorney
and the U.S. Attorney’s office did bring the criminal case. We had to prepare
the witnesses and encourage them to testify, even though they were reluctant to
do it. We recognized that unless we did cooperate we would not have a
mechanism to get truthful testimony. This is another example that without
regard to politics, it’s just a question of serving the institution to get the right
answer. But again the decision as to who is the general counsel of the House
rests with the Speaker and the Majority party .It’s no secret that I didn’t have a
great rapport with the Republican leadership and the Republican staffers on
BLAG, so in November of 2010, when the vote was that the Republicans
would take over the House, I submitted my resignation and said I would leave
at the end of that term.
I was fully expecting to either retire or go back to law practice or to teach,
when out of the blue I received a call from the Mayor- elect of D.C., Vincent
Gray, who had just been elected. I had not known him or campaigned for him.
He called me, I did not initiate this, and he said that he had been checking
around with a number of lawyers and that my name had come up as a person
who might be considered for D.C. Attorney General. At that time in the
District, the Attorney General position was an appointed position, although
prior to his calling me the City Council had changed the law to be effective
sometime in the future, at the end of that Mayor’s term, so that as of 2015 the
position was going to be an elected position. In the interim under that
legislation the Attorney General would be appointed by the Mayor and
confirmed by the City Council and could only be fired for cause. So the new
AG did not serve at the pleasure of the Mayor but could only be fired for good
reason. So Vince Gray called me and I went to interview with him, and we
developed an instant rapport. I thought (and continue to believe) he was very
intelligent and a decent person and had a good understanding of the issues and
the relationship between the Mayor and the Attorney General. He was
concerned that–and again this goes to who the client is– that the prior attorney
general had viewed his job as representing the Mayor. But Mayor-elect Gray
and I thought the job was to represent the city and to represent the Corporation
which is the City of the District of Columbia. Before the position was called
Attorney General, it was called the Corporation Counsel. Our conversation
focused on who would be the client and what you would do under certain
circumstances and we both agreed the Attorney General was not representing
the Mayor personally unless it was a lawsuit in which the Mayor had been
challenged on something that had been done in his governmental capacity the
same as it had been in the House. We represented the House as an institution
and then members if they were sued in their official capacities or for things
that had happened in government service. I thought the same thing applied to
the city and city agencies, and we weren’t there to deal with the politics of the
situation but to deal with the law and he had a similar approach. He offered
me that position and I took it quite happily. It turned out to be a lot more
complicated than I expected. A city is a very complicated institution with lots
of different agencies and different situations. I was confirmed unanimously by
the City Council, and it turned out to be a really interesting and excellent
professional experience.
MR. KRANTZ: Because your prior governmental experience had been the federal level did you
have some hesitancy or concerns about suddenly being in a position that dealt
with a different set of laws and cultures?
MR. NATHAN: Well I did have some concerns, but I loved the challenge. It was an interesting
challenge, and, of course, the city of Washington, the District of Columbia, is
really a unique institution. Obviously it’s a major metropolitan center. It’s a
city. But for many purposes, it operates as a state vis-a-vis dealing with
Federal agencies, for example. And then in other circumstances it’s a
constitutional entity reporting to and controlled by the Congress. There is a
very interesting dynamic and relationship between the Congress and the city so
in some ways it’s like a territory. So it is a unique institution – as a city, state,
territory and a federal enclave with lots of issues. That is one of the things that
made the job extremely interesting not only dealing with the city agencies and
dealing with the federal executive branch, and the Congress but also dealing
with surrounding jurisdictions, Maryland and Virginia, such as with the Metro
Board. So it was a terrific opportunity, challenge and a great learning
MR. KRANTZ: Well I think this appropriately sets the stage for what will be our last interview
which will cover the time period when you were the Attorney General of the
District of Columbia. Also what you have been doing since that time and your
observations about what would flow from the rich experience and career that
you have had. So this draws our third interview to a conclusion.
This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on September 15, 2016. This is the fourth
MR. KRANTZ: The purpose of this last interview is to focus on Irv’s time as the Attorney
General of the District of Columbia, his service as the chair of the Council for
Court Excellence, and Irv’s observations on changes in the practice of law in
the past 50 years. So we are going to start, Irv, by focusing after learning a lot
about various stages of your career about your becoming the appointed – and I
guess now we could say the last appointed – Attorney General of the District
of Columbia. How did that come about?
MR. NATHAN: Well, as I mentioned the last time, when I left the House as General Counsel
and I was thinking about other possibilities, out of the blue I got a call from the
Mayor-elect Vince Gray. He had received my name from a number of sources,
including Bob Bennett. He asked me to come in and interview about the
position and I was happy to do that. About a week or two later he called and
offered the job. I was pleased to accept and it turned out to be an excellent
experience, the culmination of my many years of practice. I really did not
know much about the job before he called. I did do some research on it in
anticipation of the interview. What I realized when I got into it was that it
really utilized all of the talents and experiences that I had had in my prior
career. Obviously, the job entails supervising the litigation for the District
both in the local courts and in the federal courts and local appellate court and
the federal circuit court. Obviously I had a lot of litigation experience since I
started Arnold & Porter back in 1968. But it also involved some criminal
jurisdiction, not enough in my opinion, but we had misdemeanor jurisdiction
so therefore my time in the Criminal Division of Justice came into play. I also
supervised lots of attorneys when I was the deputy assistant in the Criminal
Division of main Justice as well as at the firm. And I dealt with political issues
when I was the general counsel of the House and of course there were a
number of political issues dealing both with the City Council and the Congress
and also dealing with the press which I had done when I was in both the DOJ
and the House GC’s office. So it brought together a lot of experiences and
developed skills, and it was a very challenging and interesting experience. One
of the benefits was learning a lot more about the city. It was a chance to give
back to the city that has been so good to me and my family for more than four
MR. KRANTZ: What would you say with respect to the autonomy or independence of the
Office of the Attorney General as it relates to the Office of the Mayor?
MR. NATHAN: Well I was Attorney General at a very fortunate time. I really lucked out in
this respect. What had happened was that in reaction to my predecessor, the
City Council had passed a statute that said four years hence there would be an
elected attorney general and in the interim the attorney general appointed by
the mayor would have to be confirmed by the City Council as had been the
case in the past, but the incoming AG would not serve at the pleasure of the
Mayor but could only be terminated for cause. So the Council had built in an
independence for the AG’s office which I found very useful. While I was
independent of the Mayor in the sense that I made the ultimate decisions in the
running of the office of AG, I was still appointed by him and was a member of
his administration. As a result I attended all of the cabinet meetings of the
Mayor and I attended his weekly senior staff meetings. When I testified before
the Council, it was on behalf of the administration and the positions had been
worked out in advance and I agreed with them. If there had been situations
where I had disagreed and I had a different policy view, I would have
expressed it and explained, but that did not happen over the four years. I had a
wonderful working relationship with Mayor Gray. He is a very intelligent man
and in my experience he was always interested in doing the right and lawful
thing. We really had no major disagreements during the four years I was there.
So it was a situation where we could work harmoniously and yet at the same
time our office was independent. We could make the litigation judgments we
had to make and do what we thought was right for the city. When there were
situations that I thought could be sensitive, I always alerted the Mayor in
advance of what we were going to do so he wouldn’t be taken by surprise, but
it wasn’t a situation in which he had any power over our decisions.
MR. KRANTZ: There are often questions raised in a situation like the one you were in about
who is the client when you work with a range of executive level agencies and
the City Council. Could you talk a little bit about how you would work
through those issues?
MR. NATHAN: Yes, that was an important topic of discussion with Mayor-elect Gray when I
was seeking and he was interviewing me for the position. He had the
impression, and I think it was a fair impression, that the previous Attorney
General had perceived the Mayor as his client. He took actions that were
clearly on behalf of the Mayor. My view from the beginning was that the
client in this situation was the municipality of the District of Columbia. The
AG office was formerly known as the Corporation Counsel. In my view, the
municipal corporation of the District was our client and we had to do what was
in the best interest of the municipality, which means of course the people of the
District and the long term interest of the District. That was the ultimate client
but there were times that our office also represented the Mayor if the mayor
were sued. In the litigation he was a client, and we would represent the mayor
and individual officials of the District Government on occasion when they
were sued or when we were giving advice to them because when we were
asked to give advice to the heads of the various departments. If there were
conflicts, and that didn’t happen very often, we would seek separate counsel
for individuals, heads of agencies or employees of agencies when we thought
that their interest differed from the interest of the municipal corporation. It did
not prove to be a problem as we worked it out over those four years and I never
lost sight of the fact that the city and its residents were our ultimate clients.
MR. KRANTZ: There is a lot of rich history relating to the Office of Corporation Counsel and
the Office of the Attorney General. When you got there, what did you find
with respect to the quality of the lawyers who were there and the work that was
MR. NATHAN: I thought that there were some extremely able lawyers in the office and I was
very pleased to find that. Obviously, some people had been there a long time
and were not motivated to work the hardest. I tried as best I could to ease out
those folks who had lost some energy and weren’t at the top of their game, but
we had a tremendous cadre of talented lawyers that I inherited and then I did
two things that I think improved the staff. And I think the staff that I left in the
office after four years was superb. First I recruited from the private bar a
number of partners of law firms who were eager to come in and help out. One
of them is Sally Gere who I think is a terrific lawyer and is now a senior
deputy with Karl Racine. She just did tremendous work in the civil litigation
units of the office. Another was Andy Fois, who took over the public safety
sector. I also brought in from private practice younger folks or junior partners.
One of them was Jonathan Pittman who also worked on the civil side. So we
brought in some of the talent from private practice who were eager to serve the
city. The second thing we did was to work an arrangement with the local law
schools. I noted that a number of the law schools were being criticized by the
ABA because they did not get employment for their graduates. I saw that there
were some recent graduates who weren’t getting jobs in the private sector or
with other government agencies. We needed additional help, but we could not
afford to pay for those folks. So we started with Bill Treanor, the dean at
Georgetown law school, and we worked an arrangement whereby recent
Georgetown law grads were hired to work with us. Their public interest
salaries were divided between the city and the law school. We called them
“Ruff Fellows” named for Chuck Ruff who was a great friend of mine and a
role model for me and a person who had been the Corporation Counsel as well
as US Attorney and White House counsel and was also a professor at
Georgetown and other law schools in the area. It seemed appropriate to name
the fellowship for him. The fellowship was for one year. These recent grads
would come in and work with us as lawyers getting great experience. They
would have on their resume good experience and would get good
recommendations from practicing lawyers. We offered full time jobs to ones
who did very well when we had openings, and many of them accepted the
positions, and continued to do excellent work. And those that had worked with
us and we didn’t have a spot for them at the Attorney General’s Office, they
generally received offers in the private sector or from other government
agencies. So it was a triple win situation: it was a win for the law schools
which increased their employment of recent grads. It was a win for the city
which got energetic talented lawyers and it was a win for those lawyers who
got experience and were able to get hired on a permanent basis. The program
expanded to several other law schools, including George Washington, UDC,
American and Howard. As a result of recruiting from the private sector and the
law schools, we brought in people with experience, energy and commitment so
that we met the goal that Vince Gray set for us – to develop a really first rate
professional organization of lawyers in that office. I am very proud of the work
that they did, and the legacy that I left for my successor, Karl Racine.
MR. KRANTZ: As you should be. Now there were, Irv, a series of intriguing matters that you
had to deal with during the time you were the Attorney General. I want to turn
to some of them. One of them relates to the relationship between the District
of Columbia and Congress and the whole question of budget autonomy and
other related issues. Obviously you came to the Office of the AG after serving
as General Counsel of the House. So you were actually in a good position to
understand the relative relationships between the federal government and the
DC jurisdiction. Could you talk a little bit about the issues that came up and
how you dealt with them?
MR. NATHAN: There were a variety of issues. There were difficulties because of the
relationship between the Congress and the District. For example, when the
federal government shut down or threatened to shut down, the District
government had to prepare to shut down as well. There were even differences
within the city government. The first matter, before I get to budget autonomy
which I will be happy to address, that came up, was we found that there had
been a significant issue of defalcation by a City Councilman. I had to be
approved by the City Council. I was very fortunate to have been unanimously
confirmed by the City Council. I wanted to have good relationships with all the
council members and then early on in my time there it turned out that facts had
been developed in an investigation that had started before I got there but had
been dormant. As a result of my efforts to rejuvenate the matter, we issued
subpoenas to banks and discovered that a city councilman, Harry Thomas Jr.,
had taken about $400,000 of city money which had been earmarked for Little
League Baseball and had taken it for his own personal use for trips for
expensive vacations and the purchase of an SUV and golf equipment and other
luxuries. This was sensitive because Harry Thomas Jr. was a close political
ally of Vince Gray. But obviously there was no choice on our part, and
reflecting our independence, we took strong legal action against him. This is
an example of something where after we had made our decisions and drafted
our papers I did notify the Mayor of what we were doing, I did not seek his
approval, and obviously he did not seek any change in what we proposed to do.
Our civil suit against Mr. Thomas was the first lawsuit to my knowledge
brought by the Corporation Counsel or the AG’s office against a sitting
member of the City Council. Because we did not have criminal jurisdiction we
had to bring a civil action for the return of those funds. We laid out all the
allegations in a very detailed civil complaint seeking reimbursement for the
city and then sent the complaint to the US Attorney’s office for what action it
would take. Of course it did bring a criminal prosecution that resulted in a plea
and sentencing and incarceration for the city councilman. We did work a
settlement where we got what assets we could and promises for the return of
the rest. So that’s an example of a sensitive matter that occurred during our
Another one that deals with the relationship between the Federal
government and the City that was also a challenging matter was a decision by
the U.S. Department of Labor that the construction of the City Center was a
Davis-Bacon project. By being designated a Davis-Bacon project, named for
the statute that was enacted during the New Deal, it meant that the construction
workers who built the building had to be paid at union wage levels. The City
Center is a privately developed, privately financed for profit business which
has multiple uses. It has private commercial offices and shops and private
residences, and it is on land that is owned by the city. There is a long term
lease to the city from the private developers but it was not developed by the
city and the city did not employ those workers who had built it. The Labor
Department decided that it was the city that should pay the difference between
the non-union wages of the employees that were actually paid by the private
firms hired by the private developers and what the union wages would have
been. We calculated that the difference would be about $20 million, and in
addition that it would set a precedent that if that were the approach the federal
government took to other projects like this which were built on city land with
city approvals but done in privately financed and privately developed for
private profit that the city would have to pay a half billion dollars of additional
labor costs. So we litigated within the Labor Department attempting to prove
that this was not a Davis-Bacon project. We demonstrated it was not a public
work but a private construction. When we were rebuffed by the Labor
Department, we had no choice but to sue them. We filed suit in Federal
District Court challenging the decision of the Labor Department. One of the
things that I think that case demonstrated was the close collaboration we had
with the private attorneys in the city. Obviously we at the AG’s office did not
have expertise in Davis-Bacon law and we went to Morgan Lewis, one of the
premier labor law firms in the country with offices in DC, and on a pro bono
basis they assisted us in doing research, providing advice and appearing on the
briefs. We also worked with the private attorneys for the developers who also
had an interest in our position. We prevailed in the District Court before Judge
Amy Berman Jackson who ruled for us that this was not a Davis-Bacon
project. The Federal government took an appeal of that decision. The Circuit
Court of Appeals unanimously affirmed Judge Jackson. Our office’s legal
action saved the District not only the $20 million differential on the City
Center project but also much greater amounts on the other projects.
MR. KRANTZ: I thank you as a resident of the District of Columbia (laughter).
MR. NATHAN: So turning to your question – a long prelude to get to budget autonomy – what
happened there is that DC Appleseed came up with the idea that they thought
there was an opportunity in the DC Charter for the District to take over the
appropriations of its local budget. They prepared a memo which they
presented to Mayor Gray who is a tremendous proponent of home rule for the
District. He said I hope we can do this but you need to run it by the AG’s
office to see if this is viable. So they came and we looked at their proposal. I
relied on people who had been in this office, particularly doing opinions and
analyses of the Home Rule charter for over 30 years, and they didn’t think this
proposal passed the laugh test. When Congress granted partial home rule to
the District back in the early 1970s, it specifically and expressly retained the
power over the purse, over appropriations for the District. The law specifically
provided that the D.C. budget had to be sent to the President for his approval
and then submitted by him to the Congress and reviewed and approved and
passed by the Congress. That arrangement was ratified by the citizens of the
District back in 1973 and that is the way the D.C. budget operated for the years
between the grant of Home Rule in 1974 and 2012 or whenever this Appleseed
proposal was presented. So we opined that this would not be lawful under the
D.C. Charter and couldn’t be done consistent with the express language and
the intent of the Home Rule Act. DC Appleseed was not deterred by our legal
analysis and took the matter to the City Council, and the Council passed the
statute taking unilateral control of the appropriation process for locally raised
revenues. I had asked the Chairman of the City Council to testify in
connection with the bill and he said he didn’t need our testimony. Usually on
all bills considered by the Council, they request a legal sufficiency opinion
from the AG’s office. That was one of the things that our office did. But on
this one occasion they didn’t want to hear from us. When the statute was to be
effective, both the Mayor and the CFO wrote letters to the Council saying they
would not enforce this statute or implement it because it would violate not only
the Home Rule Act but also the federal Antideficiency law and subject them
and anybody who expended money that had been appropriated to civil and
possible criminal exposure. So as a result, the City Council brought a lawsuit
to challenge those determinations by the Mayor and CFO. The Council brought
suit in Superior Court and we removed it to the federal District Court. We
filed briefs and I personally argued the case in the federal District Court before
Judge Emmet Sullivan. Judge Sullivan issued a 40-page opinion ruling for us,
upholding our positions that the statute was unlawful because it violated
several provisions of the Home Rule Act and also the Antideficiency Act. He
declared the Budget Autonomy Act null and void and enjoined the Council
from doing anything to implement it. The Council took an appeal and it was
argued in October. But before any decision, there was an election which, as
you know, in my opinion, was heavily influenced by the US Attorney’s Office
and Mayor Gray was not re-nominated by the Democratic Primary. After the
general election, the new mayor, Muriel Bowser, came in and while the matter
was pending, Mayor Bowser filed a motion suggesting that the matter was now
moot because unlike the previous mayor she was prepared to implement the
Budget Autonomy Act. And the panel of the Circuit Court of Appeals agreed
that the case was moot, ignoring the fact that there was also another defendant
who hadn’t changed and wasn’t going to implement it – that was the CFO.
The Court of Appeals directed the District Court to remand the case to the
Superior Court for dismissal since under the law a mooted case goes back to
the court where it originally started. But when the case got back to the Superior
Court, the Mayor changed her mind and her counsel claimed that what had
been moot a few weeks before was now ripe for resolution. The matter was
decided on the briefs without oral argument by Superior Court Judge Holman,
who disagreed with Judge Sullivan on every issue and upheld the Budget
Autonomy Act. I do not believe Judge Holman’s opinion would withstand
appellate analysis. But the only remaining defendant, the CFO, who was
appointed by the Mayor and confirmed by the City Council the two plaintiffs
in the matter and who control his continuing in office, now declined to take an
appeal of the decision. So we have a Superior Court decision upholding budget
autonomy and a federal district court striking it down. But as I have pointed
out several times, the law is still subject to collateral attack and future
expenditures might be challenged by people adversely affected who are still
free to challenge the legitimacy of the Budget Autonomy Act. So I don’t think
the last chapter has been written in this matter.
MR. KRANTZ: Irv, I asked you a question about this because it seems to me that it raises
several issues. One is that it may not be fully understood that there can be
extremely complicated legal matters that an AG has to deal with. The second
is that in your role trying to do what is right even though it is not popular can
be a challenge in an environment where there is really a strong view about
issues like budget autonomy in the District. Can you talk a little bit about how
that played out for you and how difficult it was?
Mr. NATHAN: Well, it was a very difficult situation. In the first place, you know it’s against
my personal political beliefs. I certainly want the District to have budget
autonomy. In fact, I want the District to be a full state. I think it’s appropriate
– the District is a larger, has a greater population than two states, Vermont and
Wyoming. It’s a fully bustling jurisdiction and it has the attributes of a state
for many purposes such as dealing with the Federal government on matters like
education and Medicare and Medicaid. So I am a proponent of statehood and
certainly a proponent of autonomy for the District believing that when we
collect our local taxes we should be able to spend that money as our elected
representatives determine. So I philosophically agreed with that. On the other
hand, my job was to uphold the law and I think the Home Rule Act is
absolutely crystal clear that it was not the intent of Congress to give the
District budget autonomy. Of course, the proof of that pudding to me was that
for forty years after the adoption of Home Rule the representative to the
Congress from the District introduced legislation seeking budget autonomy
from the Congress, which is a recognition that that is where authority had to
come from. But Congress never did pass it. I was not subject to election but I
give Karl Racine great credit for supporting our legal position. He ran for AG
and in the campaign he was the only one of the candidates who said we were
right about this issue as much as he didn’t want that to be the case. That took
great courage, but the person who showed the most courage on this was Mayor
Gray who a) was a great proponent of Home Rule and b) was expecting to run
for re-election. He knew how unpopular this position would be but acceded to
the legal opinion of his AG that this was not lawful. He wanted to get budget
autonomy in a lawful way, from Congress. So this was a very difficult
decision certainly for me and people on my staff, but it was very clear that we
had to do what was lawful and not what was politically popular or desirable.
MR. KRANTZ: I’m aware of a number of other issues you had to confront. One role that the
Office of Attorney General plays is to defend the city when lawsuits are
brought in a variety of contexts and obviously this is an important role because
potential liability for this city is potentially significant with a limited budget.
Could you talk a little bit about what concerns you with respect to how liability
can be imposed now? Again this goes back to the relationship, to a certain
extent, between the District of Columbia and the Federal government.
MR. NATHAN: We were tasked with defending all of the lawsuits that were brought against
the District for damages, including, for example, police brutality cases by
people who were shot by police or those otherwise injured by municipal
employees operating buses or other city vehicles. Our approach was to analyze
the merits of the lawsuits and where we could to try to settle on reasonable
terms to compensate the people who had been injured by the negligence or
misconduct of city employees. And we certainly settled a large number of
cases on that basis. But where we thought the city was being wrongfully
accused or when people were seeking to hold us up for great amounts that were
not due, we defended those suits vigorously. We moved to dismiss those kind
of cases, and if we didn’t succeed, we went to trial and we generally succeeded
at trial in those cases that we thought were not meritorious. In those cases, we
litigated hard on behalf of the city because again the client is the municipality
and the residents of the city and it is their hard earned tax dollars that we were
trying to preserve. I think we did a pretty good job of preserving those funds.
There was one class of cases, I think you were referring to, Sheldon, that
particularly galled me when I was AG because it resulted from a statute that
the City Council had passed many years before when David Clark was the
chair. It has turned out to be very detrimental to the best interests of the city.
That is the statute that says simply that anyone convicted wrongfully of a
felony in the District of Columbia under the DC Code can sue the District for
unlimited damages that were suffered during that period of incarceration. At
the time that this local law was passed, the Federal government had a statute
that provided very limited recovery, I think to $5,000 per year that any
wrongfully convicted defendant could receive from the Federal government.
That has been changed and now Congressional legislation provides such a
person can receive $50,000 a year for every year of wrongful imprisonment.
There was a situation in which there was a person who had been wrongfully
convicted and Clark wanted to get that person properly compensated and he
said he did not expect this would happen very frequently. The unfairness in
this statute derives from the fact that the Congress from the beginning of time
had decided that felonies in the District would be prosecuted by the U.S.
Attorney’s Office. As a result, the District doesn’t have direct responsibility for
making those decisions to bring felony prosecutions and because the U.S.
Attorney’s office handles it the Federal agencies are often involved in the
investigation. Obviously MPD is also involved in street crime matters in the
District and they make arrests but the decisions on the prosecutions are made
by the Federal government. When I was AG and following that, there was a
series of cases where it turned out that defendants who had been prosecuted by
the US Attorney’s office had been convicted on the basis of FBI hair analyses
that turned out to be erroneous. These people had been convicted of very
serious crimes – murders or rapes – by the Federal government, sentenced by
judges appointed by the president and confirmed by the Senate and sent to
Federal institutions. When they were exonerated on the basis of recent DNA
analysis, they were compensated by the federal government at the maximum
levels set by Congress. Thereafter their lawyers brought lawsuits against the
District under this basically no fault local law. So if they had been in jail
twenty years the feds paid them a million dollars, $50,000 a year for twenty
years. Let me make it clear this is a terrible injustice that is done and there
definitely needs to be appropriate compensation but my point was that the
appropriate compensation should have come from the people who made the
mistakes and who sent them to jail. In many cases, these were FBI
investigations with faulty forensic analysis and assistant U.S. attorneys who
had made the decision to bring the cases and tried them in court. Under the
DC law there was no offset for the amounts paid by the Federal government
and unlike both the Federal government and almost every jurisdiction that I
know of we have no cap on liability. The District has no cap on liability, no
offset from the Federal government and no requirements that the plaintiff – the
person who had been sent to jail – demonstrate that there was errors made by
District of Columbia employees that led to their incarceration. Now
sometimes that happens that MPD made some mistakes along the way and
therefore it seems appropriate that the District should bear some responsibility.
But where the District had no responsibility for the incarceration, it seemed to
me quite inappropriate for the District to be on the hook for damages, but the
courts, because the statute which is so clear and no fault is required, imposed
tremendous damages on the city. And in the last year to my knowledge the
city has paid out over $50 million to these individuals, a lot of which goes to
the attorneys who handle these cases on a contingency fee arrangement. I had
urged the Council to make changes in that law but they were not interested in
doing that. I think a major reason for that are the political contributions the
trial lawyers bar make to candidates for local offices. I think that is an injustice
that the District suffers.
MR. KRANTZ: And I think another illustration of the complex nature of the role that the AG of
the District of Columbia has. Early on in this conversation you raised a
question about the relative jurisdiction between the Office of AG and the US
Attorney’s Office on criminal matters and I think you had indicated that you
had some views on that. I’d really like to hear them.
MR. NATHAN: I have written articles on the subject. I think that the employees of the District
of Columbia government have matured over the years and like other
municipalities and other states, the District should have criminal jurisdiction as
well as civil jurisdiction and not have all the criminal matters handled by the
Federal government, which doesn’t necessarily have the same set of priorities
as the residents or the government of the District. I’ll give you a recent
example that is very disturbing to me. There was a situation of a private
charter school called Options, where we did an investigation and found that the
management of the Options school had set up a self-dealing situation in which
they created a private corporation that they owned and ran to provide services
to the charter school. And these insiders took tremendous amounts of money
which was city taxpayer dollars that went to the charter school, that then was
siphoned off to this management company and used for the personal gain of
the officers of the charter school. So we brought a civil action against those
people, again because we couldn’t bring a criminal prosecution. The city did
get a preliminary injunction against their continuing to utilize this operation
but our suit to recover the funds was halted when the U.S. Attorney’s office
came in and said to the court we think this is a criminal matter and we want to
stay the civil litigation pending our criminal investigation. Then several years
went by and only recently the U.S. Attorney’s office announced that it would
not bring any charges in connection with this matter. During that entire time
when they could have been conducting an investigation, and maybe they did, I
don’t know what they did, the civil suit did not proceed. So now the Attorney
General’s Office has to pick up that civil suit after these people have had a
chance to dissipate those assets and move on. It makes it very hard to deal
with the case now and that’s an example of the situation. It’s obvious that the
U.S. Attorney’s Office has tremendous experience in handling these criminal
matters, and I’m not suggesting that there ought to be wholesale changes right
away but I think there should be a transition to the local elected AG for the
prosecution of criminal felonies. I think it ought to start with those situations in
which it is city money which has been taken such as in the Harry Thomas
situation and the Options charter school situation where the city is the victim.
It seems to me that in other places the cities and states and counties have that
criminal responsibility. I think the District should have that responsibility, and
at least concurrent jurisdiction with the U.S. Attorney’s office for those kind of
cases. It will take time for the police to work with the AG office to develop this
expertise and the relationship to do these criminal matters and then over time
take over other criminal matters. But it doesn’t seem appropriate for the U.S.
Attorney who has different priorities to have exclusive jurisdiction to handle
all the criminal matters. Another good example is the laws on medical
marijuana where the District and the feds have different priorities. We set up a
regime to deal with that and when we did that we got letters from the Federal
DOJ saying, we are going to watch you very carefully and we may shut down
the whole program. They said we may prosecute people who are acting in
accordance with District laws on this. There are a variety of issues where there
needs to be, in my view, more autonomy for the District in these areas.
MR. KRANTZ: Now the last question I wanted to ask relates to the shift from an appointed to
an elected AG. I’d be very interested in your views on whether you think the
decision to change to an elective system is the right one.
MR. NATHAN: It’s a judgment call and I think it is a judgment for the residents of the District.
It’s obvious that in a jurisdiction where we don’t elect many officials, where
we have no senators and we don’t have a representative in Congress that has a
vote in Congress that when our citizens are given the option of saying would
you like to have your AG which is a fancy title for Corporation Counsel
elected, they said “yes.” There are definitely advantages to having an elected
accountable official, but there are drawbacks too. In most eastern cities, the
corporation counsel is appointed by the Mayor and works closely with the
mayor. Ina relatively small jurisdiction, like the District or major cities like
New York, Philadelphia or Baltimore, it’s beneficial to have both the mayor
and lawyer for the city rowing in the same direction. It was obvious from the
moment that there was going to be an elected AG that there was going to be
friction between the mayor and the AG because the mayor who may be
interested in reelection is going to view an official who has won a city-wide
election as a potential adversary in the next election. So there is that tension
that is inevitable. It also changes in some measure the nature of the job. When
I was there, my focus was internal, on getting the best people in the office,
organizing it well, making the litigation judgments, doing the right thing under
the law, and not being concerned with the politics. I think the elected AG has
a lot of the same interests and I think the city is very fortunate to have Karl
Racine who is a very responsible individual, and he is interested in those things
as well, but a lot of his attention seems to me is external to the office. And his
focus is more on visibility with the public. As the elected incumbent, he has to
anticipate at least re-election as AG and maybe future other elective positions.
So there are pluses and minuses. I was very fortunate, I thought, to have had
the office at a time when we had independence from the Mayor but also an
excellent relationship with the Mayor and the Mayor’s cabinet, who were
confident that I was not going to be running against him some day. That may
not be the same when you have an elected AG.
MR. KRANTZ: Any other comments or observations you would like to make now about the
time that you had spent as the AG of the District of Columbia?
MR. NATHAN: I am very proud of the record that we developed there. One of the disabilities
that we had in that office was that the District unlike the other jurisdictions is
controlled by the Federal Antideficiency Act. The way that operated was– we
found out– that we were not allowed to have any contingency fee
arrangements with private lawyers which other jurisdictions have. Even the
Federal government has as an exception to the Act which allows for
contingency fee cases, but the exception does not apply to the District. We
were faced with the situation in which contingency fee lawyers approached us,
as they had other jurisdictions, to deal with these online hotel companies which
were not paying their hotel taxes and had not paid their taxes for a long time.
It would have been easy if we could have had contingency fee arrangements
with these lawyers, but we weren’t allowed to do that, so we handled it on our
own. And we secured a payment of over $70 million for the District based on
the very hard work in litigation by our lawyers, including Bennett Rushkoff
and Jimmy Rock and others. We were up against major law firms located in
the District and we got a judgment and a large settlement from these
companies. So we overcame a disability that we had as a District office and
through hard work we secured a great victory. That amount is certainly greater
than the local part of the budget of the AG’s office. I should also mention
another major accomplishment that really relates to Home Rule, that is, getting
the District out of a number of consent decrees that had existed for decades in
the District. In several of these matters, the Federal government was essentially
supervising basic city services, such as in the education area and mental health
areas. These were situations that cried out decades ago for some supervision,
but in the interim and certainly in the recent administrations and the Gray
administration, there were substantial improvements, and we did not need to
have that kind of supervision. These consent decrees were very expensive
because we had to pay plaintiffs lawyers and monitors. They also undermined
Home Rule since the control of the basic operations of the District were under
federal supervision. So in a number of those cases – mental health,
transportation of special needs students and the oversight of St. Elizabeths –
we were able to end those consent decrees during our time and lay the
foundation for release from others. That took tremendous effort, working with
members of the Gray administration, cabinet officers and officials as well as
lawyers in the Office of the AG. We were very pleased with that. We had a
number of other successes in dealing with issues in the District. One of them,
for example, was preserving the Corcoran Art School and the museum through
an arrangement with GW and the National Gallery of Art. So there were a
number of successes we had during my tenure. But, as I have said, my greatest
accomplishment was leaving to my successor a top- notch legal staff that I
think has continued to do great work for the District.
MR. KRANTZ: The range of experiences you have had throughout your career are pretty
extraordinary. Why don’t we turn now to what you are doing at the moment?
You have now left as the AG, [Nathan: my time had expired!] What are your
areas of focus now?
MR. NATHAN: I am back at Arnold & Porter where I started. I am not a partner, I am a senior
counsel and I am handling some commercial matters there, including some
matters that related to state attorneys general. When I was the AG of the
District I was a member of National Association of Attorneys General and
currently I am a member of SAGE, which is the Society of Attorneys General
Emeritus. There are some issues that clients have dealing with State Attorney
General’s offices in other jurisdictions and even in the District of Columbia,
and I have been handling those matters as well as some other kinds of matters
that I have handled before such as internal investigations. A lot of what I am
doing obviously is in the pro bono world. One of the matters that I am pleased
to be able to help out on is for an organization that provides college and
graduate school scholarships to Native Americans and Alaskans. The
organization was created by the Cobell Trust, which secured a large settlement
as a result of litigation against the Department of Interior. My colleagues and I
are serving as general counsel for the organization that provides those
scholarships. As you mentioned at the outset, I’m also serving as the President
of the Council for succeeding your partner Earl Silbert. I am really quite
honored to be in a chair that was started by Charlie Horsky of Covington and
Earl Silbert and other distinguished leaders of the Bar. It has been a
fascinating experience. It’s a wonderful organization that focuses on what we
can do to improve the administration of justice in the District and to work with
lay people in private enterprise, practicing lawyers and sitting judges in both
our local and federal courts to improve the understanding of the law and the
fulfillment of what we hope for in a just society. So for example I co-chaired
along with Judge Katanji Brown Jackson, a federal District Court judge here, a
wonderful and very bright individual – and a whole group of volunteers from
the Council on how to improve jury service. We focused on how to make jury
service more palatable to the residents of the District, how to improve the
return of summons for jury service and make service on the jury a better
experience for our citizens. We did a year-long study, and we met with past
jurors and judges litigators and litigants, and came up with a set of
recommendations, and are working now in a group headed up by Peter Kolker
of Zuckerman Spaeder to implement those recommendations. Some will
require Council legislation, and others may require court rule changes or
changes in procedures in the clerk’s office. We also just recently concluded a
study of the Office of Administrative Hearings to make sure that citizens get a
fair and prompt hearing in administrative appeals in the city. We made
recommendations to the City council and to the judges of OAH for
improvement there. We did that pursuant to a contract we received from the
city auditor, and we have a new contract from the city auditor to look at the
issue of the relationship between the criminal justice system in the District and
mental health services. So we have a whole set of very important issues, and
we have a wonderful staff headed up by June Kress and we have great
volunteers. I have spent a lot of time dealing with that and am very pleased to
have this opportunity to continue to contribute my services to the District.
MR. KRANTZ: The last thing we were going to talk about was your views on what’s happened
to the practice of law and legal profession over the last 50 years. Are there
some observations you would like to make on the changes that have occurred
and the ones you would like to see made?
MR. NATHAN: I’ll leave the future improvements to you, Sheldon. You wrote an excellent
book on that subject and you are carrying it out and doing a great job in
connection with the Affordable Law Firm to make legal services available to
people who cannot afford the kind of commercial rates that are charged. But I
can comment on the changes I have witnessed. First, I would say there is a
similarity in that both when I started in the late 1960’s and now, there is a
wonderful group of people who are going into the profession, very talented,
very able lawyers with a lot of dedication to help people and to create a more
just system.
On the other hand, there have been a number of changes since I started,
not all for the better. One of the changes, of course, is the technology. When I
started at Arnold & Porter in 1968 and there were about 50 lawyers there, we
used carbon paper and manual typewriters and they had a procedure in which
they circulated throughout all the lawyers in the firm carbon copies of all the
correspondence and filings and briefs that had been written by the firm in the
previous month. You would get these things in binders you didn’t really have
time to examine, but they were there to let everyone know what everyone else
was doing. In addition, obviously you made filings by hard copy and traveled
to places to make the filings and had to get to the court before 5:00. Now, of
course, with technology everything is online and is done electronically. Even
meetings with out of town lawyers can be done electronically without anyone
travelling from their office. Because of electronics everything has sped up,
which is both a blessing and a curse. That technology, of course, has changed
the practice of discovery now. It is all about electronic discovery and emails
that didn’t exist at the time. Obviously we didn’t have instant communication
.You had telephone calls and telegrams and that was about it. So that’s a
difference. And the difference in the massive discovery that comes from
searching e-mails and electronic files is that litigation teams are much larger,
and there is more drudge work for young associates. They sign up with big
firms, paying large salaries because of the massive debt it takes to go to law
schools, and they are often unhappy with their experiences at commercial
firms. When I started, litigation teams were much smaller and one could get
more interesting experiences earlier. Another major difference has come with
journalism dealing with the legal profession. When I started there were not the
publications that there are now, and those publications focus on law firms and
law firm profitability. That did not exist and I think that has changed things.
When I started, the premise was one went to a law firm and at least in DC it
was likely if you did well you would stay with that law firm the full time of
your career. It was the premise that your law firm would handle a lot of
matters for the same client. Now clients pick and choose law firms or
individual lawyers based on their specialties, and lawyers move from one law
firm to another chasing the highest dollar. Loyalty both from the clients and
from lawyers to law firms obviously has been impacted by those changes.
Clients now demand and firms provide more specialization. When I started,
generalists were prized and I have enjoyed being a litigation generalist.
Another major change is that national law firms have opened large branch
offices in D.C. When I started, a number of the large DC firms served as
counsel to the clients of national law firms elsewhere handling their
Washington problems, and then returning the client to the firms in other cities
for all of their normal commercial work. Now the branch offices handle those
Washington matters for their firm clients, and the DC firms have had to change
their focus. When I went into practice, it wasn’t the expectation that you
would make a fortune in law. Now it appears there are a number of folks who
go in with great expectations of earning a lot of money in the law. There
wasn’t the focus when I started on entrepreneurial skills. The notion was, at
least at A&P – I can’t speak for all firms – but the notion was that there were a
couple of rain makers who would bring in the business. The important part for
a young lawyer was to do a good job and keep your nose to the grind stone and
turn out good work and your reputation would hold you in good stead. Now
we look for the entrepreneurial skills of new arrivals at the firm before they
have had a chance to begin the practice. So there have been a number of those
changes. It seems that is has moved into the direction of being less a
profession and more of a business at major law firms. Still there are people and
law firms that are dedicated to public service. Arnold & Porter has maintained
its commitment to pro bono practice the entire time I have been there and like a
lot of firms in Washington there is still encouragement to allow their lawyers
to do government service and then to return to the firm. As I mentioned earlier,
I think that is a benefit both to the firm and its clients as well as to government
agencies and the public.
MR. KRANTZ: Okay, we have come to the end of what has been a privilege for me to do,
which is to interview you and record your personal history. Irv, you clearly
deserve to be part of the oral history project of The Historical Society of the
District of Columbia Circuit. So this has been a rewarding assignment for me.
MR. NATHAN: And it has been a great pleasure for me. I really appreciate it, Sheldon. It’s an
honor to be interviewed by Sheldon Krantz who is a great lawyer in his own
right. Thank you very much.

ABA, 47-48, 83
ABSCAM, 39, 42-46, 48, 54
Williams, Harrison, 40
Alioto, Joe, 26
Alito, Samuel, 42
Allen, Steve, 17
American Export Isbrandtsen Lines, 25
American Hustle (movie), 44
American University, 1, 14, 21-22, 25, 30, 32-33, 36, 44, 84
Anderson, Jack, 31
Antideficiency Act, 89-90
Appleseed. See DC Appleseed Center for Law & Justice
Arnold & Porter, 6, 21, 23-24, 28-31, 34-35, 38, 46, 48-50, 52-54, 56, 62, 65-67, 79, 101, 103,
Arnold, Thurmond, 25
Baker, Russell, 11
Baltimore Colts, 13
Baltimore Evening Sun, 9, 12
Baltimore Orioles, 3, 13, 16, 18
Bates, John, 72
Bennett, Bob, 79
Berle, Milton, 17
Biden, Joe, 48
Black Sox scandal, 35
BLAG. See United States House of Representatives
Bleakley, Peter, 35
Bleecher, Max, 26
Bloomberg, Michael, 11
Blue, Vida, 34
Boehner, John, 71
Bowser, Muriel, 90
Bryan, Albert Jr., 33
Budget Autonomy Act, 89, 90
Bush, George W. 70
Butz, Earl, 29, 30
Caesar, Sid, 17
Casey, William, 48
Chandler, Albert “Happy”, Sr., 34, 36
Cherubin, Charles (Charlie), 4, 7, 10
Christie, Arthur, 47
City Center project, 88
Civiletti, Ben, 37, 46
Clark, David, 93
Clark, Judy, 54, 55
Clemons, Roger, 75
Clinton, William, 51
Cobell Trust, 102
Cohen, Myron, 17
Collins, Harold, 26
Columbia Law School, 18, 20, 23, 28, 53
Comiskey Park, 35
consent decrees, 100-101
contingency fee cases, 96, 100
Conyers, John, 72
Cooperstown, New York, 35
Corcoran Art School, 101
Corporation Counsel, 77, 82, 98
Council for Court Excellence, 79, 102
Covington and Burling, 102
Cronin, Joe, 36
Crosley Field, 35
Cuomo, Andrew, 64
Cuomo, Mario, 64
Darrow, Clarence, 13, 14
Davis-Bacon Act, 87-88
DC Affordable Law Firm, 104
DC Appleseed Center for Law and Justice, 88-89
Del Tufo, Bob, 41
Diamond, Norman, 24
Dingell, John, 49
District of Columbia
Attorney General, 76
budget autonomy, 85, 88, 91-92
Home Rule, 88-90, 92, 100, 101
relationship between Congress and the District, 84
wrongful felony convictions, 93
Ed Sullivan Show, 17
Elson, Sheldon, 28
European Union, 63
Fast and Furious investigation, 73
Federal Anti-Deficiency Act, 100
Federal Defender’s Office, 54-55, 63
Federal Principles of Prosecution, 46
Feeney, Charles “Chub”, 35
Fielding, Fred, 72
Fingers, Rollie, 34
Finley, 34, 36, 37
Finley, Charlie, 34
Fireside Encyclopedia of Baseball, 36
Fiske, Bob, 60-61
Fois, Andy, 83
Forbes Field, 35
Freeman, Milt, 24
Garland, Merrick, 59
George Washington University, 101
George Washington University of Law, 84
Gere, Sally, 83
Giles, Warren, 35
Goldwater, Barry, 48
Gorelick, Jamie, 59
Gray, 76, 79-81, 84-88, 92, 101
Gross, Jerry, 8, 9, 17
Hall of Fame in Cooperstown. See National Baseball Hall of Fame
Harvey, Michael, 33
Harvey case, 32
Heymann, Phil, 37-38, 40, 42, 51, 53, 56, 58, 62
Hiss, Alger, 11
Holder, Eric, 73
Holman, Brian, 90
Holtzman, Jerome, 37
Horsky, Charlie, 102
Howard University Law School, 84
Illinois Supreme Court, 45
importers of tomatoes grown in Mexico case, 29-30
Independent Counsel, 47, 57, 59-60, 64
Inherit the Wind, 13
Iran contra investigation, 61
Jackson, Amy Berman, 88
Jackson, Katanji Brown, 103
Jefferson, William, 69
Johns Hopkins University, 11-12, 14, 18
Jordan, Hamilton, 47
Keating Five, 55
Kennedy, John F., 4, 7
Kircher, Kerry, 69
Kolker, Peter, 103
Krash, Abe, 24
Kress, June, 103
Kuhn, Bowie, 34
Land, Stuart, 24-25, 27-28
Landis, Kenesaw Mountain, 35-36
Lazarus, Simon (Si), 30
Leahy, Patrick, 48
Lieb, Fred, 36
Linthicum, Jesse, 3
Lykes Brothers Steamship Lines, 25, 27-28
Magnuson, Warren, 31
Margolis, Dan, 26, 28
Margolis, David, 56
Martin, John, 28
Marx, Groucho, 17
McGarr, Frank, 34
Meyerson, Bess, 30
Miers, Harriet, 71
Texaco Star Theatre (starring Milton Berle), 17
Miner, Judd, 7
Morgan Lewis, 88
Morrison, Alan, 27
Moynihan, Daniel, 48
Mr. District Attorney (television show), 13
My Life in Court, 13
Naftalis, Gary, 20
Nathan, Ben (grandson), 22
Nathan, Dan (son)
American Studies professor at Skidmore College, 22
Nathan, Irvin – Personal
anti-Semitism, 10
Baltimore Colts, 13
Baltimore Evening Sun, 12
summer job, 9
Baltimore Orioles, 13
Boston Red Sox, 34
Columbia Law School, 18, 23, 28
Jerome Michael moot trial competition, 20, 28
Darrow, Clarence hero, 13
father, 1, 2, 8, 9, 16, 17
dementia and Parkinson’s disease, 18
sense of humor, 18
Habonim, 6, 21
Hebrew school, 2, 3, 5, 17
Hebrew University, 6
high school
Baltimore City College, 4
basketball team, 15
sports staff, 4
editor, 4
Columbia Journalism School award, 4
Johns Hopkins University
focus on journalism, 11
history major, 11
Hiss, Alger, 11
Phi Beta Kappa, 18
Russell Baker, 11
The Newsletter, 11
Swisher, Carl influence, 14
WJHU, 11
Nathan, Marilyn (sister), 2, 18
Boeing, 5
sibling rivalry, 5
Towson State Teacher’s College, 5
mother, 1, 2, 19
Mr. District Attorney (television show) influence, 13
New York Legal Aid Society, 20
cosseted by parents, 10
New Dealers, 3
Perry Mason (television show) influence, 14
pushkie, 6
Sidney London & Co summer job, 8
Sobeloff, Simon influence, 7
statehood proponent, 91
The Public Defender (television show) influence, 13
Towanda Midgets softball team, 15
To Kill a Mockingbird, 14
touch football, 15
“The Toilet Bowl,” 16
truck driver and delivery boy, 9
Washington Bullets (now Wizards), 13
Zionist, 3, 5
Nathan, Irvin – Professional
ABA, 47-48, 83
White Collar Crime subcommittee chair, 47
ABSCAM, 9, 42-46, 48, 54
American Export Isbrandtsen Lines, 25
anti-trust grand juries, 32
Arnold & Porter, 21, 23-24, 28-31, 34-35, 38, 46, 48-50, 52-54, 56, 65-67, 79, 102, 104, 106
sabbatical, 54
changes in practice of law, 79, 143
large branch offices, 106
generalist vs. spcialist, 25, 106
journalism and legal profession, 104
less a profession and more of a business, 106
City Center project, 88
contingency fee cases, 200
Corcoran Art School, 101
Council for Court Excellence, 79
President, 102
discovery with technology, 105
District of Columbia
budget autonomy, 85, 88, 90-91
relationship between Congress and the District, 85
wrongful felony convictions, 93
European Union case, 63
Federal Defender’s Office, 54-56, 63
Foreign Corrupt Practices Act guidelines, 46
Harvey case, 32
immunity orders, 39
Independent Counsel statute, 47, 59
Lykes Brothers Steamship Lines, 25
National Association of Attorneys General, 102
Office of the Attorney General of the District of Columbia, 6, 81, 94, 101
consent decrees, 100
defending lawsuits brought against DC, 92
Deputy Assistant, 38-39, 46, 51
jurisdiction with U.S. Attorney’s Office, 95
Organized Crime and Racketeering section, 39
Principal Associate Deputy Attorney General (PADAG), 53
shift from appointed to elected attorney general, 76, 98-99
supervising litigation both in local and federal courts, 79-80
Operation Graylord, 45
Porteous, Thomas, 69-70
Porter, Paul, 34
Principles of Federal Prosecution, 46
pro bono work, 32, 88, 102, 106
proposed wire taps, 39
Rule 16 of the Federal Criminal Rules, 59
Sapphire Steamship Lines, 25
Selective Service cases, 31, 32
Studio 54, 47
technology, 104
Timberline Lodge case, 28
Treadwell case, 51-52, 56
United States Department of Justice, 51, 58, 62, 67, 71-72, 90, 98
United States House of Representatives, 49, 69-76, 79-80, 84-85
Ethics Committee, 42-43
General Counsel, 53, 67, 70, 85
United States Senate
Ethics Committee, 42
University of San Diego Law School, 54
Nathan, Dan (son), 21
Nathan, Jon (son), 21
Nathan, Jerry (first wife), 21
Nathan, Marilyn (sister), 5
Nathan, Melissa (wife of Jon), 22
Nathan, Zoe (granddaughter), 22
National Association of Attorneys General, 102
National Baseball Hall of Fame, 35-36
National Gallery of Art, 101
New York Legal Aid Society, 20
New York Yankees, 18, 34
Nizer, Louis (author, My Life in Court, 13
Obama, Barack, 72
Office of Administrative Hearings, 103
Office of the Corporation Counsel, 7, 76, 82, 84, 86, 98
Operation Graylord, 45
Options Public Charter School, 96-97
Panama Canal Zone, 32-33
Paul, Gabe, 37
Pelosi, Nancy, 68
Pepper, George Wharton, 35
Perry Mason (television show), 14
Puccio, Tom, 41, 44
Pertschuk, Mike, 30
Pittman, Jonathan, 83
Racine, Karl, 83, 85, 92, 99
Reagan, Ronald, 46
Reno, Janet, 57-58, 61-62
Revenue Rule, 63
RICO, 39, 46-49, 62
Robinson, Brooks, 16
Robinson, Jackie, 37
Robinson, Laurie, 57
Rock, Jimmy, 99
Rosenstein, Rod, 57
Rove, Karl, 71
Rudi, Joe, 34
Ruff, Chuck, 84
“Ruff Fellows”, 84
Rule 16 of the Federal Criminal Rules, 59
Rushkoff, Bennett, 100
Safire, Marshall, 25
Safire, William, 25
Sapphire Steamship Lines, 25, 26
Sidney London & Co, 8
Silbert, Earl, 102
Sisco, Joe, 21
Snyder, Jimmy “the Greek”, 36
Sobeloff, Simon, 7-8, 21, 23, 54, 68
Society of Attorneys General Emeritus. (SAGE), 102
Spaeth, Mel, 24
Speech or Debate clause, 69, 74
Speedy Trial Act, 33
Starr, Ken, 61
Strachan, Christine, 55
Studio 54 case, 47
Sullivan, Emmet, 17, 90
Sullivan, Scott, 65
Sullivan, Tom, 45
Superior Court of the District of Columbia, 90
Swisher, Carl, 14
Taylor, Sue (wife of son Dan), 22
The Baltimore Sun, 12
The New York Times, 25
The Public Defender (television show), 13
The Tonight Show (television show), 18
The Towanda Midgets, 15
Thomas, Harry Jr, 86, 97
Thompson, Fred, 48
Timberline Lodge case, 28
To Kill a Mockingbird, 14
Jack Anderson column, 31
Mexican, 29-30
Treadwell case, 51-52, 56
Treadwell, Ken 56
Treanor, Bill, 83
Turley, Jonathan, 70
UDC. See University of the District of Columbia
United States Bankruptcy Court for the Southern District of New York, 26
United States Court of Appeals for the District of Columbia Circuit, 7, 88, 90
United States Court of Appeals for the Ninth Circuit, 28
United States Department of the Interior, 102
United States Department of Justice, 51, 58, 62, 67, 71-72, 90, 98
United States Department of Agriculture, 29-30, 52
United States District Court for the District of Columbia, 26, 90
United States District Court for the Eastern District of New York, 34, 41
United States District Court for the Eastern District of Virginia, 34
United States District Court for the Southern District of New York, 28
United States House of Representatives., 21, 42-43, 49, 53-54, 57, 66-79, 83-84
Ethics Committee, 42
United States Senate
Commerce Committee, 31
Ethics Committee, 42-43, 54
Intelligence Committee, 48
Judiciary Committee, 61
United States Supreme Court, 14, 42, 45, 48, 61-63
University of the District of Columbia, 84
Viola, Tom, 49
Walsh, Lawrence, 61
Walter, Judy (second wife), 21
American University assistant to the President, 24
Catholic University PhD, 22
Wells Fargo Bank vice-president, 21
White House Fellow, 21
Williams & Connolly, 23
Washington Bullets, 13
Washington Nationals, 16
Washington Redskins, 16
Washington Wizards, 16
Washingtonian (magazine), 24
Watergate, 47, 54, 57
Weinberg, Mel, 40, 41, 44
Whitewater, 60
Williams, Harrison, 40
WorldCom, 65
Your Show of Shows (television show), 17
Zionism, 3
beliefs, 6
Zuckerman Spaeder, 103
List of Cases and Statutes
Charles O. Finley & Co., Inc., v. Bowie K. Kuhn et al., 569 F.2d 527 (7th Cir. 1978), 37-39
Council of the District of Columbia v. Gray, Civil Action No. 2014-0655 (D.C. 2014), 89-90
G. Thomas Porteous, Jr. v. Alan I. Baron, et al., 729 F.Supp.2d 158 (2010), 69-70
European Community v. RJR Nabisco, Inc., et al., 764 F.3d 129 (2d Cir. 2014), 62-63
United State v. Dana Scheer, 168 F. 3d 445 (11th Cir. 1999), 51-52, 45
United States v. Harry L. Thomas, Jr., 840 F.Supp.2d 1 (D.D.C. 2011), 86, 97
United States v. Jefferson, 562 F.Supp.2d 695 (E.D.Va.2008), 68
United States v. Knox, 977 F.2d 815, 817 (3d Cir. 1992), cert. granted,
113 S. Ct. 2926, vacated and remanded, 114 S. Ct. 375 (1993), aff’d, 32 F.3d 733 (3d
Cir. 1994), cert. denied, 1994 WL 512613 (U.S. Jan. 17, 1995), 61-61
United States v. Sullivan, S1 02 Cr. 1144 (S.D.N.Y. F004), 64-65
Walter Holm & Company v. Clifford M. Hardin et al, 318 F. Supp. 521 (D.D.C. 1970), 29-30
Antideficiency Act (ADA), Pub.L. 97–258, 96 Stat. 923, 89-90, 100
Davis-Bacon Act, 40 U.S.C. § 276a et seq. (1976), 86-87.
District of Columbia Home Rule Act, Pub. L. 93-198, Dec. 24, 1973, 87 Stat. 774, 179, 90
District of Columbia Unjust Imprisonment Act of 1980, D.C. Code §§ 2–421 et seq., 92-96
Election of the Attorney General, Pub.L. 114-118, 80
Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq., 46
Local Budget Autonomy Emergency Amendment Act of 2012, D.C. Code 206.01-206.03, 89-90
Racketeering Influenced and Corrupt Organizations Act, Pub. L. 114-38, 62
United States Office of the Independent Counsel, 28 U.S.C. § 595, 47-48, 60

Resume of Irvin B. Nathan
Senior Counsel, Arnold & Porter, Washington, D.C.( January, 2015-present)
Allorney General for the District of Columbia (January, 2011-December, 2014) (Served as the
chief legal officer of the nation’s capital, managing a staff of 700 people, including 350 lawyers.
Supervised all civil litigation and appeals on behalf of the city; responsible for criminal
prosecutions of juveniles and adult misdemeanants; issued formal legal opinions and provided
advice to Mayor, Cabinet and Council on wide variety of legal issues; supervised contract, tax
and real estate issues; supervised social service unit that enforced support payments from noncustodial
parents to custodial parents; supervised general counsel of each of the Mayor’s
agencies, including departments of police, fire, public works and education.)
General Counsel, U.S. House ofRepresentatives, (November, 2007-December, 2010) (Appointed
by the Speaker of the House and responsible for providing legal advice to leadership of the
House, its members and staff and handling litigation where the official interests of the House or
its members or officers were implicated, including U.S. House of Representatives v. Miers, (558
F. Supp. 2d 53, D.D.C. 2008) where the Court issued a landmark ruling that senior White House
officials are not immune from House subpoenas)
Senior Partner, Arnold & Porter , Washington, D. C. (1994-2007) (Chair, White Collar Defense
Department) (handled wide variety of complex criminal and civil litigation, including defense of
CFO of World.Com in one of the largest financial scandals in the nation’s history; defense of a
Clinton Cabinet officer in a preliminary investigation that aborted an independent counsel
investigation; defense of a former Secretary of the Navy; representation of a U.S. Senator and his
top staff in a Senate investigation; representation of Fo11une 500 companies and their executives
in grand jury proceedings , and representation of defrauded companies, including CBS Radio,
Inc .. ) (In this period handled arbitrations for a world-wide accounting firm and served as a partyarbitrator
for an international sports apparel company.)
Principal Associate Deputy Attorney General, US Department of Justice (1993-1994) (served
as top aide to Deputy Attorney General Philip B. Heymann, who supervised all 94 U.S.
Attorneys, Director of the FBI, the Director of the Drug Enforcement Administration, and the
Director of the Bureau of Prisons. Handled a variety of policy issues, including federal criminal
legislation, international criminal assistance treaties, and relations with the defense bar.)
Litigation Partner , Arnold & Porter , Washington , D.C, (1981-1993) (handled wide variety of
complex civil, criminal and administrative litigation and congressional representations, including
civil RICO, securities, antitrust, and consumer protection matters. Successfully defended national
law firm partner in multi-month criminal trial in federal court; represented City of New York in
#721 I 9066v I
civil RICO suit against tax defrauders; and served as special minority counsel to U.S. Senate
[ntelligence Committee in investigation of CIA Director.)
Deputy Assistant Attorney General for Enforcement, Criminal Division, U.S. Department of
Justice. (I 979-198 l) (Supervised organized crime and racketeering strike forces across the
country; supervised the narcotics and dangerous drug section and the appellate section, dealing
with all federal appeals from convictions; supervised all of the ABSCAM prosecutions, which
resulted in convictions of a U.S. Senator , six members of Congress and numerous local officials;
and testified before Congress on an array of policy issues affecting the enforcement of the
federal criminal law.)
Partner , Arnold & Porter, Washington, D.C. (1976-1979) (General Civil Litigation) (Handled a
wide variety of federal and state civil litigations, including defense of securities and antitrust
class actions; accounting malpractice cases; defamation suits; insider trading suits; breach of
contract litigation; and defense of a family farm in a federal litigation against a major trade
Associate, Arnold & Porter, Washington, D.C. (1968-1975) (wide variety of litigation, including
antitrust defense, securities fraud defense, defense of agricultural importers before federal
administrative agencies, intellectual property matters for computer manufacturers, general tort
and contract matters, and defense of Commissioner of Baseball in federal litigation brought by
major league team owner, Charles Finley v. Bowie Kuhn.)
Law Clerk to Judge Simon E. Sobe/off, United States Court of Appeals for the Fourth Circuit,
Vice Chairman (2007-2008). D.C. Board of Professional Responsibility (member appointed by
D.C. Court of Appeals, 2004-2008) (wrote published opinions on attorney discipline cases
appealed from Hearing Examiners; heard oral arguments on appeals, and for two years presided
over such oral arguments when Chai1man was unavailable). (Opinions I authored are available
upon request.)
Hearing Examiner, D.C. Board of Professional Responsibility (2001-2004) (presided over
hearings and prepared findings of facts and conclusions of law in issuing recommendations that
were appealable to the Board);
Chairman, Ethics Committee of the D.C. Bar (1999-2001) (Wrote published legal opinions
interpreting D.C. Rules of Professional Conduct in response to inquiries from the Bar )
Fellow American College of Trial Lawyers (1997-present)
Member, American Law Institute (1994-present)
Member, American Bar Foundation (1995-present)
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Member, D.C. Bar Committee on Civility in Litigation ( 1993-1996)
Chairman, Nominating Committee, D.C. Bar, I 990
Chainnan, Ad Hoc ABA Committee on Independent Counsel Statute, (1985-1987)
Chairman, Committee on White Collar Crime, Criminal Justice Section, American Bar
Association, ( 1982-1984)
Columbia Law School, (1964-1967)
J.D., magna cum laude
Board of Editors, Columbia Law Review
Jerome Michael Trial Advocacy Award
Harlan Fiske Stone Scholar, (1966, 1967)
Johns Hopkins University, (I 960-1964)
B.A. Phi Beta Kappa.
President, Council for Court Excellence (2015-present); Member, Board of Directors (2009-
President, Frederick B. Abramson Foundation, (2004-2006); Board of Directors (2001-2006);
UDC Law School Foundation Board, (2008-2010)
Member, Board of Anti-Defamation League of D.C., (2009-2010)
Past Chair, Board of Trustees, National Capital Region, American Jewish Congress
Woodrow Wilson Award for Distinguished Government Service, Johns Hopkins University
Alumni Association, 20 I 3
Visionaries in the Law Award, National Law Jow-nal, 2009
Best Lawyers in America ( 1989-2009) (each year)
Visiting Professor, Hebrew University, Jerusalem, Israel (Spring Semester, 2015)
Adjunct Professor, Georgetown University Law Center, (1995, 1996, 2009, 2010, 2014)
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Adjunct Professor, University of San Diego Law School, (1990-1991)
Lecturer, Washington College of Law, American University Summer Institute on Law and
Government (June 2010)
ABSCAM: A Fair and Effective Method for Fighting Public Corruption, Chapter, ABSCAM
Ethics, edited by Gerald M. Caplan, (May 1983);
Prosecuting a Civil Rico Case, Chapter, RICO: Civil and Criminal, Law and Strategy, edited by
Judge Jed Rak off and Howard Goldstein, Law Journal Press (1989);
Lavv Enforcement Against International Terrorists: Use of the RJCO Statute, (with
Kenneth I. Juster), 60 U. Colo. L. Rev. 553 (1989);
CotTuption Trials: The Pitfalls, The National Lm,11 Journal, 4/13/81;
Confronting the Evidence of Conuption, The National Law Journal, 4/20/81;
Proposed Amendments for RICO: Making a Criminal Law More Civil, The National Law
Journal, 8/31 /81;
Civil RICO: A Primer on the Emerging Use and Abuse of an Elastic Treble Damage Remedy,
The Practical lawyer, Fall 1983;
Doubling the Treble Damage Remedy, 52 Antitrust Law Journal 327 (1983);
Vigilant Precautions Needed After Bank Secrecy Crackdown, American Banker, 4/26/85;
Civil RICO, (Part I), The Practical Lawyer, 12/1/83;
Civil RICO (Part II), The Practical Lawyer, 11/15/84;
RICO and the Search for Triple Damages, International Financial Law, July, 1985;
The Bank Secrecy Act, Review of Financial Services Regulation, 4/9/86;
Practical Considerations Concerning Internal Corporate Investigations, Georgetown University
law Center Federal Enforcement, 1987;
Strengthening the Independent Counsel Law Requires Judicial Review of the Attorney General’s
Decision (with David P. Gersch), 25 Am. Crim. L. Rev. 199 (Fall 1987);
Antitrust Precedents May Prove Useful in Many Civil RICO Cases, The Legal Times, 9/21/87;
#72119066 4
A Call for Congressional Action to Reform RICO, Civil RICO Report, 2/9/88; Minimizing
Liability for Bank Secrecy Act Reporting Vjolations, Bank Administration Institute, December
Restraint Urged in Government Response to Inflated GSE Bids, American Banker, 10/31/91;
Holmes Court Advantage to Defendant, But Final Call for Congress, RICO Law Reporter, 4/92;
Fixing the Rule on Contacts with Represented Parties, Legal Times, 3/14/94;
Trial by Ambush, The New York Times, Op-Ed, 2/6/95;
Coordinated Criminal Investigations Between the United States and Foreign Governments and
Their Implications for American Constitutional Rights (with Christopher D. Man), 42 Va. J. Int’l
L. 821 (Spring 2002);
Depa11ment of Justice’s Ethical Words Are Not Yet Marked By Deed, Business Crimes Bulletin,
February 1995;
Search and Seizure of Law Offices: DOJ Guidelines Make It Easier, Business Crimes Bulletin,
January 1996;
Civil Remedies May Be Needed to Curb Prosecutorial Abuses, Business Crimes Bulletin,
February 1997;
Tough EEA Enforcement Reveals Need for Strict Compliance (with Nancy Perkins), Business
Crimes Bulle1in: Compliance and Litigation, January 1998;
Shekels & Hyde: Little Money, Many Lessons from Hyde (with John Massaro), Business
Crimes Bulletin, 1999;
Congressional Reforms Needed for Improved Exercise of Prosecutorial Discretion, Business
Crimes Bulletin, 2000;
Preventing Disclosure of Grand Jury Materials to Foreign Governments Pursuant to MLA Ts,
Business Crimes Bulletin, June 2001;
The USA Patriot Act of 2001 Poses a New Threat to Grand Jury Secrecy, Business Crimes
Bulletin, February 2002;
FCPA Ruling Raises Serious Issues for Prosecutors, Counsel, Business Crimes Bulletin, June
White-Collar Sentencing: A Loss of All Proportion, Business Crimes Bulletin, February 2003;
Is Bribing Foreign Tax Collectors a Federal Crime? Business Crimes Bulletin, June 2004;
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Supreme Court Gives the Defense a Boost in Plea Bargaining, Business Crimes Bulletin, March
Multiple Jeopardy: Concunent State and Federal Prosecutions for the Same White-Collar
Offense, Business Crimes Bulletin, December 2005;
The Thompson Memo Ruling: Recent Decision May Have Little Effect on Other Cases, (with
Michael S. Lewis), Business Crimes Bulletin, October 2006;
Taking the Fifth in Congress, Business Crimes Bulletin, October 2010
#72119066 6
Visiting Professor of Law
Co-Director, The Justice Lab
Georgetown Law Center
Retired Partner in Residence
OLA Piper LLP (US)
500 Eight Street, NW
Washington, DC 20004
(202) 799-4508
Visiting Professor of Law and Co-Director, Justice Lab, Georgetown Law Center. Courses
include Professional Responsibility and Practicum on the Access to Justice Crisis. The Justice
Lab gives emphasis to providing technical assistance and research support to access to the D.C.
Access to Justice Commission and other entities on the frontlines grappling with unmet legal
needs. Teaches courses on professional responsibility and access to justice at Georgetown.
Academic year 2016-2017.
Executive Director, DC Affordable Law Firm (DCALF). DCALF was created by the
Georgetown Law Center, DLA Piper and Arent Fox as a non-profit entity to provide low cost
legal services to modest income D.C. residents who do not qualify for free legal aid but cannot
afford the normal rates that lawyers charge. April 2015-December 20 I 6
Distinguished Visiting Professor of Law, University of Maryland Carey School of Law. Courses
include Legal Profession and Business Crimes. July 2011-2014.
Partner, DLA Piper LLP (US). Practice emphasized preventive and litigation services on
corporate and white collar criminal matters. October 1990- June 2011. Also founded and served
from 2006-2011 as Director of New Perimeter, DLA Piper’s global pro bono affiliate. Oversaw
large scale pro bono projects in developing and post-conflict countries. In addition, served as
president of the DLA Piper Foundation from 2006-2011.
Vice President, The Investigative Group, Inc. (On leave from the University of San Diego
School of Law). Company undertook complex investigations for law finns, corporations, and
government. July 1989-August 1990.
Dean and Professor of Law, University of San Diego School of Law. July 198 ]-June 1989.
Professor of Law and Director, Center for Criminal Justice, Boston University School of Law.
July 1970-June 1981.
Executive Director, Massachusetts Committee on Criminal Justice. State agency which was
responsible for strategic planning on criminal justice. April 1967-June 1970.
Staff Attorney, President’s Commission on Law Enforcement and Administration of Justice.
Commission examined all aspects of crime in the United States. February 1966-April 1967.
Associate, Law Firm of Monsky, Grodinsky, Good & Cohen, Omaha, Nebraska. Practice
included both civil and criminal matters. January 1965-February 1966.
Trial Attorney, Organized Crime and Racketeering Section, U.S. Department of Justice. Honors
Program. Represented government in numerous investigations, trials, and appeals on matters
relating to organized crime. July 1962-January 1965.
Regularly designated as a Washington, D.C. Super Lawyer for services provided in white collar
criminal defense.
Chair, DC Affordable Law Firm Board of Directors
Appointed Commissioner, D.C. Access to Justice Commission
2016 Justice Potter Stewa11 Award recipient by the Council for Court Excellence for
contributions made to the law and the administration of justice in the District of Columbia
2011 recipient of Legal Times Champions Award for upholding the profession’s core values
through public service, pro bona efforts, and advocacy for civil liberties.
2004 recipient of D.C. Bar Pro Bono Lawyer of the Year Award.
Former member, D.C. Bar Legal Ethics Committee.
Former Chair, American Bar Association Criminal Justice Section.
Lifetime Member. American Law Institute
Member, D.C. and U.S. Supreme Cou11 Bars.
Member, California, Massachusetts and Nebraska Bars on Inactive Status.
Sheldon Krantz and Michael Millemann, Legal Education in Transition: Trends and Their
Implications. to be published in 94 Neb. L. Rev. 1 (20 I 5).
EAST\79860446. I
IT, LexisNexis (2013).
CORRECTIONS, AND PRISONERS RIGHTS, West Publishing Company, (Fifth Edition
PRISONERS RIGHTS IN A NUTSHELL, West Publishing Company (Third Edition 1988).
ABA and lJA Juvenile Justice Standards, Police Handling of Juveniles, Ballinger Press (1980)
(Egon Bittner and Sheldon Krantz, Co-Reporters).
( 1979).
ARGERSINGER V. HAMLIN, Ballinger Publishing Company (1976).
ABA Standards for Criminal Justice, Standards Relating to the Urban Police Function (1974)
(Herman Goldstein and Sheldon Krantz, Co-Reporters).
University of Nebraska, Bachelor of Science of Law and J.D (Cwn Laude), Editor in Chief,
Nebraska Law Review.