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
U.S. Court of Appeals for the District of Columbia Circuit
Interview conducted by:
Michael P. Socarras, Esquire
February 18, 1994
The following pages record an interview conducted on the date indicated. The interview
was electronically recorded, and the transcription was subsequently reviewed and edited
by the interviewee.
The contents hereof and all literary rights pertaining hereto are governed by, and are
subject to, the Oral History Agreements included herewith.
© 1998 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 who sat on the U.S. Courts of the
District of Columbia Circuit, and judges’ spouses, lawyers and court staff who played
important roles in the history of the Circuit. The Project began in 1991. Most interviews
were conducted by volunteers who are members of the Bar of the District of Columbia.
Copies of the transcripts of these and additional documents as available – some of which
may have been prepared in conjunction with the oral history – are housed in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue,
N.W., Washington, D.C. Inquiries may be made of the Circuit Librarian as to whether
the transcripts are available at other locations.
Such original audio tapes of the interviews as exist, as well as the original 3.5″ diskettes
of the transcripts (in WordPerfect format) are in the custody of the Circuit Executive of
the U. S. Courts for the District of Columbia Circuit.
Historical Society of the District of Columbia Circuit
1. In consideration of the recording and preservation
of the oral history memoir, prepared by Michael P. Socarras and
George E. MacKinnon, by the Historical Society of the District of
C(hoelurembiinaa fCtierrc u”itth,e SWoacsiheitnyg”t)o n,I , DE.lCi.z, abiettsh eDmp. loMyaeceKsi nannodn , apgeenrtsso nal rE.e pMreasceKnitnantoinv, ed, oh heeirre bayn dg rbaennte fiacndi acroyn·voefy tthoe Etshtea Steo coife tGye, origtes
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E. MacKinnon on February 18,. 1994. I also grant and convey to the
Society all right, title, and interest I or he might have in such
tapes, transcripts and their content, including literary rights
saunbdj ecoctp yrtoi ghtthes . sAamlel rceosptireisc toifo ntsh.e tapes and transcripts are
2. I have not previously conveyed, assigned, encumbered
or impaired my rights and interest in the tapes, transcripts and
their content referred to above.
3. It is agreed that access to the aforementioned tape
recordings and transcripts shall be in accordance with the
direction and control of the Society and subject to terms to be
set by the Society. I authorize the Society, subject to the above paundb ltios h,a noy re xpceerpmtiit otnsh ec ounstea ionf e.dsa ihde rteianp,e rteoc odrudpliincgast ea,n de dit,
transcripts in any manner that the Society considers appropriate,
and I waive my claim to any royalties from such use.
;?,=”””‘=:.;:…::.. ___ , 199 G:,. ‘ –
&ir4′ &.1rx,,.1(?.g;;, Ii
me this? day of .
My Commission expires
{kMtff? <L/2t1t7r:? ?
ACCEPTED this ztx… day of M? , Gribben, President of the Historical Society19 9okf t, heby DiDastnriieclt M.o f
Columbia Circuit.
Daniel M. Gribbon
Historical society or the t!strict or Columbia cir cuit
Interviewer oral Hi?torv Aareemeot
1. Having agreed to conduct an oral history fnterview .,.ith Judge George MacKinnon tor the Historical Society of the
District ot ColUllbia circuit, Washington, o.c., I, Michael P .
. Socarras , do hereby grant and convey to the
?ociety and its successors and assigns, all of my right, title, and interest in the tape recordings and transcripts of
interviews, aa described in Schedule A hereto, including literary
rights and copyrighta.
2. I authorize the Society, to duplicate, edit, publish,
or permit the use of said tape recordings and transcripts in any
manner that th• society considers appropriate, and I waive any
claims I may have or acquire to any royalties tr?m such use.
3. I agree that I will make no use ot the interview or the
information contained therein until it is concluded and edited,
and that I will then use such inf?rmation only if and to the
extent permitted ty the Society,
Dec. 11-, 1995
SWORN TO ANO SUBSCRIBED betore·me thia /rday ot
h’ .r-: rv ,rv f,,.:.?,I lllll,i ,’) . j /}.i ./.• /./ /’.· .
. I .XJ’ , ·—_,,,cl 17 /J• ,1, -<‘°’, lj/ · Wandal:SRi?f ry Public
Notary Pu blic, Oislricl of Columbia
Hy commission expires My Commission Expires July 14, 2000
, ,
/ .. _’ /
thia 19/il: day ot AA? , 19 9:( by Daniel M.
President of the Historical Society of the District of
Daniel H, Gribben
United States Court of Appeals for the District of Columbia Circuit
1969 – 1995
Judge George E. MacKinnon received his law degree from the University of Minnesota and was
admitted to the Minnesota bar in 1929. As an undergraduate he lettered in football, basketball and track,
and upon graduation he was awarded the Western Conference Medal for athletic and scholastic
achievement. While in law school, Judge MacKinnon served as an editor on the Minnesota Law Review.
From 1927 to 1932, he also served as Assistant Football Coach at the University of Minnesota.
Prior to his appointment to the federal bench in 1969, Judge MacKinnon practiced law, was
elected and appointed to public office, and served in the military. Highlights from his professional and
public service resume include: Assistant Counsel to Investors Syndicate (IDS) from 1929 to 1942; State
Representative in the Minnesota Legislature from 1934 to 1942; Officer in the U.S. Navy from 1942 to
1946, where he was cited for meritorious service; United States Representative in Congress for the Third
District of Minnesota from 1947 to 1949; United States Attorney for Minnesota from 1953 to 1958;
Special Assistant to the U.S. Attorney General from 1960 to 1961; and as Chief Counsel and Vice
President for Investors (IDS) Mutual Funds from 1961 to 1969. In addition, he was the Republican
nominee for Governor of Minnesota in 1958.
While on the U.S. Court of Appeals, he also served as Presiding Judge, U.S. Foreign Intelligence
Surveillance Court of Review (1979-1982); was appointed as U.S. Delegate to the Seventh United
Nations’ Congress on the Prevention of Crime and the Treatment of Offenders (Milan, Italy, 1985); was
designated by the Chief Justice as Presiding Judge, Special Division of the U.S. Court of Appeals for
Appointment of Independent Counsels (1985-1992); and was appointed by President Reagan as Judge
Member of the U.S. Sentencing Commission (1985-1991). In 1993, Judge MacKinnon assumed senior
status, serving as a Senior Circuit Judge until his death on May 1, 1995.
Michael P. Socarras received his J.D. in 1986 at Yale Law School and his B.A. summa cum
laude in politics in 1983 at Brandeis University. From 1986 to 1987 he was a law clerk to Judge
James L. Buckley of the D.C. Circuit. He also served from 1987 to 1989 as special assistant to
William Bradford Reynolds in the Civil Rights Division of the Justice Department. In 1989 he became
an associate at Covington & Burling, where he practices as a litigator. His interests include animal
research, tobacco, abortion, and civil rights.
– 1 –
FEBRUARY 18, 1994
Q: This is the interview of Judge George MacKinnon by Michael Socarras for the
D.C. Circuit Oral History Project. I am in the chambers of Judge MacKinnon.
Judge MacKinnon, why don’t we begin by asking you to tell us about your
background, your family, where you were born and grew up, and we can pick
up the conversation from there.
MACKINNON: I was born in St. Paul, Minnesota on April 22, 1906. My father was working
on the Great Northern Railroad then, and he eventually became an official. I
started school in Wilmar, Minnesota, where we lived through the 4th grade —
until 1914 — then we moved to Sioux City. I went to high school in Sioux City
until 1920. Then we moved to Grand Junction, Colorado, where I went to high
school with a six-month interval during the winter living in Glenwood Springs
when we couldn’t get a house in Grand Junction. I graduated from high school
in Grand Junction in 1923 and in the fall went to the University of Colorado at
Boulder and stayed there one year. The next year, I went to the University of
Minnesota in Minneapolis and continued there through law school. At that
time two years of preliminary higher education was all that was necessary
before you were eligible for the law school. I served on the law review and
graduated in 1929 and was awarded the Western Conference Medal for
scholastic and athletic achievement. I had earned seven letters in football,
basketball and track. I was sworn in to
– 2 –
the Minnesota Bar on the day the market broke in 1929. While practicing law
from 1929 on I served as assistant football coach at the University for five
After the 1929 football season ended I started as assistant to counsel with a
firm known as Investors Syndicate, which was then a small corporation of $29
million, doing an investment business nationwide and all over Canada. I went
to work for them on December 1, 1929 and for the next 13 years did all the
corporate legal work. I also served in the Minnesota House of Representatives
from 1934 to 1942. As Chairman of Judiciary in 1939 I drafted Governor
Stassen’s principal legislation in his first term. I continued with Investors
Syndicate (later IDS) until World War II started in December 1941.
Early in April, 1942 I went into the Navy and served for four years. I was
classified as an Operations Officer in Naval Aviation. I went in as a
Lieutenant, Junior Grade, and was a Commander when I left in 1946.
When I came out of the Navy I started practicing law in Minneapolis and also
ran for Congress and was elected in 1946. I served a two-year term from the Third
Congressional District in Minnesota. The District was recognized as a Farmer-
Labor district. I was the only Republican ever to get a majority of votes in that
district. I was defeated for reelection in 1948 and then resumed practicing law and
doing some primary legal work in 1952 on the presidential campaign
– 3 –
for Harold Stassen and later Richard Nixon and General Eisenhower. Stassen had
been a candidate for the Presidency in 1948, and generally, was considered to be
certain of nomination when opposition by Thomas Dewey developed in the Oregon
primary, the last primary campaign in the nation. The newspapers played up
Dewey’s close Oregon victory as determinative, and Dewey was nominated — and
defeated by Truman.
When the 1952 campaign came around, Stassen was running again for
President. He had been in my law school class and was a close friend. I had
not been able to do much for Stassen in his governor campaigns or in his 1948
presidential campaign, because I had my own campaigns for Congress and the
legislature. I had a job to carry on in addition to making a living. Stassen had
lost the nomination in 1948 and things weren’t looking good for him in 1952.
So in 1952, I decided I should give him some help and I started helping him
campaign as much as I could. Along with Amos Peasley, one of the great
international lawyers of the world, I filed the Stassen delegates in Ohio,
against Senator Taft. After that I individually filed the delegates for Stassen in
New Jersey.
When we filed a complete slate of Stassen delegates in New Jersey, Governor
Driscoll, who had filed a slate of 27, with himself as the controlling vote under
the unit rule applicable, thought that Stassen might come out for Eisenhower
and win the New
Jersey delegation. He was scared to death of losing
– 4 –
party control, so Driscoll declared for General Eisenhower. His own group of
delegates had been divided 13 to 13, 13 for Taft and 13 for Eisenhower, but
operating under the unit rule Driscoll undeclared controlled the 27 votes.
When he declared for Eisenhower that carried his entire slate and Taft made a
vicious statement: “I’ve been double crossed.” Taft then pulled all his New
Jersey delegates out of the primary campaign. In my opinion, and I was very
close to public opinion at that time, that withdrawal by Taft was the solitary act
that eventually cost Taft the nomination and led to General Eisenhower’s
nomination. Eisenhower only won initially by 17 votes at the national
convention, and those votes were delivered by Minnesota and Harold Stassen.
We were all ostensibly working for Stassen. We were doing that because
Eisenhower was not running in any primary campaign. He never campaigned
and somebody had to take on Taft. Otherwise, the score in every state would
have mounted up for Taft and other delegates, following like sheep, would
have gone with him. But Stassen carried on a very astute campaign in every
state and held off the ability of Taft to claim that he was a cinch for the
nomination because Eisenhower had no delegates. The nominating convention
came on, in Chicago, and Eisenhower was nominated, with Nixon as Vice
I had served in Congress with Nixon. We were both on the Labor
Committee. He sat next to me and Congressman Charlie Kersten from
Wisconsin sat
– 5 –
on the other side. It ended up the three of us were the actual drafting
committee for what became the Hartley Bill. When that Bill came to the
Senate, of course, it became known as the Taft-Hartley Bill. That became the
basis of labor regulation in the United States forever afterwards. The primary
object of that bill was to promote collective bargaining and to require, as
Stassen had required in Minnesota, a waiting period between a declaration of a
strike and the actual strike itself. That continues to this day.
The Hiss Case
Also while I was serving in Congress on the Labor Committee Congressman
Nixon, who was my seatmate and also served on the House Un-American
Activities Committee, became interested in the Hiss Case. He took the laboring
oar to develop the facts in that sensational case. As a result of his skillful crossexamination,
and a great deal of national publicity on the matter, the case was
submitted to the grand jury in New York City. The case had carried front-page
national publicity for months. The allegations involved an accusation by a former
Communist, Whitaker Chambers, that he had received secret State Department
documents from Alger Hiss for transmission to the Soviet Union. Hiss vehemently
denied the charge. However, the secret papers, subsequently known as the
“Pumpkin Papers,” which apparently had been typed on a Hiss typewriter, belied
his denial. While the matter was being
– 6 –
investigated by the New York grand jury considerable delay developed.
During that time I went home to my district during a short recess and the
treasurer of my congressional campaign committee asked me why this
Congressman Nixon was making those charges against this nice fellow Alger Hiss.
My treasurer said that he had been a classmate of Hiss’ at Harvard and he was an
exceptional person. I said well Nixon sits next to me on the Labor Committee and
I will inquire of him as to the Hiss matter.
When I returned to Washington, our labor hearings were still continuing, I
asked Nixon how the Hiss case was coming. He replied:
They know the papers were typed on the Hiss typewriters but there has been
this great delay in the grand jury because they have no evidentiary proof that
the Hiss typewriters were in the possession of the Hisses at the time the copies
of the secret documents were typed.
I immediately thought of a potential way that it might be proved and I told Nixon I
might have a suggestion for him. That was on a Friday. On Saturday morning,
banks were still open on Saturdays at that time, I called my treasurer in
Minneapolis at his bank where he was vice-president and asked him to what
organizations Hiss belonged. He mentioned the Harvard Law Alumni Association
was all that he knew.
So on Monday I looked for Nixon on the House floor but he was not
there. The next day, Tuesday, I saw him on the floor and suggested that he
have the files of the Harvard Law Alumni
– 7 –
Association checked, and also all the insurance companies of America, to find
out if they had any letters that had been written by the Hisses on that typewriter
during the critical period. From my work at IDS, where we had hundreds of
thousands of individual accounts, I knew that matters like insurance and
investments are frequently the subject of letters typed at home regarding
change of address, beneficiaries, status of account, etc. The companies keep
such letters which are most frequently dated and signed. My suggestion was
that he search for such files at Hiss’ Harvard Law Alumni Association. Nixon
gave the suggestion to the FBI on late Tuesday; and the FBI broadened it to
include Priscilla’s Alumni Association files at Goucher College. On
Wednesday the FBI turned up two letters during the critical time period —
dated and signed by the Hisses. One was a Priscilla Hiss letter to her
Alumni Association at Goucher College and the other was a New York life
insurance company letter by Hiss. The next day, Thursday, the FBI took
those letters to the United States Attorney investigating the case before the
grand jury in New York. Those letters caused the United States Attorney to
change an indictment he had drafted charging Whitaker Chambers with perjury
and to replace it with an indictment charging Alger Hiss with perjury. The
letter evidence and the indictment were presented to the grand jury on Friday
and on Saturday morning Alger Hiss was indicted for perjury. Incidentally,
Saturday was
– 8 –
the last day that grand jury was authorized to sit. It was a close call. The
evidence of Priscilla Hiss’ letter to Goucher College was presented to the grand
jury and, of course, was sufficient to indict. The other letter from the life
insurance company was not used because they didn’t want to raise an issue as
to privacy.
When I saw Dick Nixon the next Monday on the House floor he told me:
Is the FBI’s face ever red. They had been looking unsuccessfully for some
such critical evidence for almost a year and they almost blew the entire
The letter evidence led to Hiss’ conviction.
During the 1952 Eisenhower-Nixon election campaign, at his request, I
served as Research Director for Nixon as Vice President. The slate was elected
in November and I went back to practice law. I had no interest in staying in
Washington in the administration.
I was offered the job of Solicitor General to the Post Office Department.
Charlie Halleck, who had been the majority leader in the Republican House
when Republicans had control in the 1947-1948 session, was in back of that
offer. He suggested that I take that job. I told him that I did not want any
temporary jobs in Washington. What developed in Minnesota thereafter was
not at my bidding or at my request, but it was really suggested very strongly
that I take on the job of United States Attorney. Harold Stassen and Senator
Edward Thye, particularly Stassen who had been a fine prosecutor as County
Attorney, saw me
– 9 –
as a United States attorney. Stassen suggested that I take on that task in
Minnesota. I did, and was the first United States Attorney to take office during
the Eisenhower administration. I served for six years and in 1958 was pulled
out late in the campaign to run for governor against Orville Freeman running
for his third term. I lost that election.
The Hoffa Case
Then I received a telephone call late in 1959 from the Attorney General,
William Rogers. He requested that I come to see him in Washington. At that
time Attorney General William Rogers offered me appointments as Assistant
Attorney General in the Civil Rights Division or in the Internal Security
Division. I told him that I was not interested in either one of those positions.
Well, he said:
The real problem we have around here is the Hoffa matter, everybody has
been holding hearings on the Hill for years, unsuccessfully trying to
uncover some crime against Hoffa, everybody in the Justice Department
has been trying to get him, but nobody’s been able to come up with any
case against Jimmy Hoffa.
As stated I had been one of the drafting authors of the Hartley Bill, and before that I
had been active in the labor law matters when Governor Stassen passed his
labor legislation in 1939. This was really the fore-runner of our modern method of
dealing with labor strikes. And I had followed labor matters since 1939 — we had a
lot of strikes in Minnesota. I had been chair-man of the House Judiciary
Committee: . . . and one day
– 10 –
we would have the AF of L, and the next day, some person from the CIO testifying
on labor matters. So I told Mr. Rogers that I wouldn’t mind taking on Hoffa for a
year. So he said, “Come on down.” So I came to Washington, but I ostensibly
continued my practice.
I spent the year 1960 on Hoffa and came up with two cases. One was the Test
Fleet case, and the other was the Everglades Hotel Pension Fraud cases in Miami,
Florida. This was after Congress, investigators in the Labor Department and the
Justice Department had not been able for years to come up with any case on Hoffa.
The Test Fleet case was a laydown case against Hoffa, absolutely and fifteen years
old. As it developed, the Everglades Hotel one was too, but it had not received the
primary attention that the Test Fleet case received. People on the Hill had been
investigating Test Fleet at all their public hearings for years. They didn’t realize
what they had. They didn’t know enough labor law to know what they had. Hoffa
was prosecuted in Nashville, Tennessee under the Labor Bribery Statute which I
had drafted in 1947. Incidentally, the day after that statute became law, the trucking
industry incorporated “Test Fleet” in Tennessee in the name of Hoffa’s and
Brennan’s wives, as a cover for the cash bribes they had been paying Hoffa and
Brennan for years for breaking a Teamsters’ strike.
I finished off that one year in Washington at the time of Kennedy’s
Inaugural. The Kennedys had been most vocal in seeking a case against
Hoffa. I
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had indicted Hoffa’s bag man, Ben Dranow, in Minneapolis in connection
with a case I had dug up out there. This case had come to me in my research
of the Senator McClellan hearings on which Jack Kennedy was serving as a
member and Robert Kennedy was General Counsel. In the turnover of the
administration, the Attorney General, Robert Kennedy, sent a young lawyer
named Jim Neal to watch what I was doing in the Dranow case. He is now
considered to be one of the best prosecution and defense counsels in
America. I stayed over into the Kennedy Administration to give them the
Test Fleet and the Everglades Hotel cases. Then Robert Kennedy asked me
to stay on and try Hoffa. But I told him I was broke from my year in
Washington and I had a job coming up that made it necessary for me to take.
I then became General Counsel of the Investor’s Mutual Funds, which at
that time were the largest mutual funds in the world. I had helped develop
these funds in 1939 before the war. IDS means Investors Diversified
Services. The way mutual funds operate, they have a manager for
investments, they submit their recommendations to the mutual fund, and IDS
also sells the shares of the mutual fund. The mutual funds themselves are
separate and distinct from their manager and their distributor.
I continued as General Counsel of the Investors Mutual Funds until
1969, when one day I received a telephone call from the Attorney General.
He said:
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Your friend the President wants me to find out if you would be willing to
serve on the United States Court of Appeals for the District of Columbia
I responded, “I will call you back tomorrow.” As a judge on the Court of Appeals
at that time, the salary was exactly half of what I was making as General Counsel
for the Funds — $95,000 as against $47,500. So I thought the offer over. I’d been
active in the legislature, law, football, and all athletics and some politics. I had run
for Congress, been elected, run for governor, and served eight years in the
Legislature in 1958 and coupled with my activity in football, there wasn’t a town in
the State where I didn’t know many people. I could walk down the main street of
practically any town and bump into many people that I knew, and I figured that I’d
just about received everything that was available in Minnesota that was in any way
Everything was pretty much a repeat of prior experiences and problems. I’d
been over the legal problems on the Funds from the time I went I
helped organize them in 1939 and on IDS since I went there in 1929, and our last
child just finished high school. Two of them were in college. So Betty and I
talked it over and decided that we’d go down to Washington on a permanent basis.
I called the Attorney General back the next day and told him that I’d take the
assignment. So we moved to Washington in 1969.
– 13 –
Judge Lumbard in the Second Circuit in New York and I were the first two
Circuit Judges to take office in the Nixon administration. The way Dick
Kleindienst, who was Deputy Attorney General, explained my appointment to
me, was that the minute the Nixon cabinet was sworn in, Dick turned to him and
fingered him over and said, “Dick, I want you to see if you can get MacKinnon
to serve on the D.C. Circuit.” So that’s the way it developed. I’ve been here
ever since.
I was not interested in anything else. I might have been interested in
Attorney General, but I think I was better on the court than as Attorney General.
As I think it over, my General Counsel, W. I. Norton, when I was working
for IDS, was very astute and widely experienced in the law. He had been very
active in politics and knew a great deal about government. He’d run the state
legislature there for a number of years before he became General Counsel for
IDS. He told me one day in the late ’30s: “Mac, you ought to be on the Court,
but you need some private practice.” And he said, “You should start practicing,
and you can build up a practice.” And he said, “you have the qualifications for
serving on the Court.” So this wasn’t the only individual who had thought about
the Court. Harold Stassen had previously made the same suggestion to me in
I knew what the work on the D.C. court involved. My roommate in
college had, for 10 or 12 years, been on the Federal District Court in
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Washington and I was very attuned to what was going on down here. I
considered the appellate court needed somebody with my views of criminal
I was referring principally to the decisions of Judges Bazelon and
Wright. They were masticating the criminal law, and I had a reverence for
the criminal law from my service as United States Attorney. We eventually
turned the court around after I became a judge with Roger Robb and
Malcolm Wilkey and Ed Tamm and finally Judges Leventhal and
McGowan. For instance the great opinion by Bazelon known as the
Durham case was overruled.
District Judge Leonard P. Walsh was my great friend. He served until
he developed a blindness that was hereditary in their family, and he
couldn’t read the instructions. He was home for a number of years, then fell
down the stairs one night and was killed. But he and I were very close,
we’d been close together in college. We played football together. He
started football practice at the University of Minnesota in the fall of 1924.
I was the first man on the field as a freshman, and he was the second one.
Q: Judge, before turning to your years on the Court, I’d like to refer to some
references I found in tributes you wrote in honor of Judge Tamm and Chief
Justice Burger concerning the value of upbringing for a judge. I’d like to
read them to you and then ask you to comment. In your tribute to Judge
Tamm in the 74th volume of the Georgetown
– 15 –
Law Journal, you referred to “the sound common sense that he brought
from his Montana upbringing.” In the 100th volume of the Harvard Law
Review, you referred to Chief Justice Warren Burger’s “down to earth
common sense derived from the experiences of a lifetime spent among the
rugged, industrious and productive citizens of America’s prairie heartland,
where hard work and common sense are considered prime virtues.” I’d like
to ask your personal views on the role of upbringing in discharging the
duties of a judge, the impact of particularly a midwestern origin — this idea
of common sense to which you referred in both tributes. Could you
elaborate on that, sir?
MACKINNON: Well, there isn’t any question but what people that have experience and
knowledge in the entire field of the nation realize that midwestern common
sense is a given.
Q: Did you adopt campaign positions that were designed to help attract that
Farmer-Labor vote, at least some elements of it?
MACKINNON: Never. I had opposed the Farmer-Labor party in the legislature. We had
actually driven them out of office. After I was elected to Congress, we had
seven out of eight Congressmen who were Republicans, two Republican
Senators, and a Republican Governor. We made a sweep of the Farmer-
Labor Party at that time. That had begun in the ’37 Session, which is the
one I worked the hardest on and the one where we were the most successful
in killing the socialist program of the
– 16 –
Farmer-Labor Party, pointing out that it was socialist.
Q: Why were you opposed to socialism?
MACKINNON: Any person who had any brains knew it didn’t work. That’s where you get
into common sense.
Q: Your parents came from Canada. Did you have any distinguishable ethnic
background in that, oh, intermixture that was Minneapolis-St. Paul at the
time? A religious background, something that made you identifiable like
some of these other groups?
MACKINNON: Episcopalian, which here again was not disliked by the Catholics. They
would take that sooner than they would a Lutheran.
Q: A lot closer.
Q: Let me take one last swing at this topic. I do believe it fits into your
biography, to understand a man’s thinking to the extent that one can.
Nowadays there is discussion in the judiciary, very little in the law schools,
but some in the judiciary, judging by panels, symposia, and the like,
concerning something called strict constructionism. It’s a label that goes
back to at least the Nixon days and has had different forms. The Justice
Department in the last Republican administration sometimes referred to the
judicial philosophy of original intention of the framers of the law.
According to that view, it really doesn’t matter what the viewpoint,
background, or origins of the judge might be. All
– 17 –
you do is you read the law and you apply it. Does that make any sense to
MACKINNON: I think it does. You’re talking about statutory interpretation.
Q: As well as constitutional interpretation.
MACKINNON: Well, it’s the same thing. I have probably interpreted more statutes than
any person you will ever run into. When I was with IDS, I interpreted
every statute in America and Canada relating to corporations — financial
corporations, insurance companies, banks, savings and loan, investment
companies, mortgages, at one time or another — and drew opinions, drew
draft briefs, on the interpretation of such statutes in every state, practically,
and what they meant.
I don’t think that you can turn this around and say that some particular
rule applies. The rule that applies is the intent behind the statute . You can
develop that in 1,000 ways, and each way in every case might be different.
It depends on the background of the statute, what it says, what has been
said about it by the people that wrote it and the people that enacted it, or the
people that applied it, how it came to be enacted, and what the law said —
what it says. What it says is very, very important. You start with what it
provides. You may have a problem, and you may not have a problem. If
you’re trying to make a certain point, you might have a problem on any
statute, but if you’re reading the substance of it
– 18 –
— what it means — you might not have any problem.
I don’t buy all these contentions about there being a great deal of
difficulty in interpreting statutes. One statute provided that a man who was
indicted could not get his attorneys fees. This is the independent counsel
statute. This man was indicted.
Q: You’re talking about Lyn Nofziger?
MACKINNON: Yeah. Everybody that commented on it said that the fact that he was
indicted meant he couldn’t get his attorneys fees. He was indicted yet met
that requirement. We didn’t give him his attorneys fees in the end because
he didn’t comply with another part of the statute, but so far as that particular
requirement was concerned, he met it, because the indictment was not
valid. It seems highly implausible, even under a strict construction of that
language, that such provision intended an invalid indictment to defeat an
award the same as a valid indictment. The indictment on appeal was held
to be invalid. The question then becomes whether an invalid indictment
bars an award of attorneys fees under the no indictment requirement. The
Court held that it does not. So there you are. In this situation, the letter of
the law killed it. In the statutory interpretation it is a given the statute must
be construed reasonably so as to avoid absurdities. Manifest intent prevails
over the law, citing Justice Brewer in the Holy Trinity case. It is a
– 19 –
familiar rule that something may be within the letter of the statute and not
within the statute because it is not within the spirit, not within the intention
of its makers. If an overly literal interpretation of the words be absurd, the
act must be construed as to avoid the absurdity.
But we went on to hold that he couldn’t get his attorneys fees because
he didn’t satisfy the “but for” requirement. He had been prosecuted the
same as everybody else would have, whether he was an official or not.
Q: You are referring to In re Franklyn C. Nofziger. This was a decision of the
Special Division for the Purpose of Appointing Independent Counsels, and
it’s published at 925 F.2d 428. It was decided February 5, 1991, before
Judges MacKinnon, Butzner and Pell.
MACKINNON: That was the case that the Senate Committee in their report on the
reenactment of a statute said “We agree that the interpretation of Nofziger
is in accordance with Congressional intent.” I’ve cited Holy Trinity 100
times when I was writing briefs back through the last 50 years on statutory
interpretations. Holy Trinity Church v. United States, 143 U.S. 457, 459,
460 (1893), is one of the most cited cases in America on that particular
subject. 1893, by Brewer, one of the great jurists of all time, from Kansas.
I cite many cases to the same effect. All you have to do is read them. All
the great jurists will tell you. Judge Learned Hand said, “There is no surer
way to
– 20 –
misread any document than to read it literally.” Decision by Learned Hand
in Giuseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944). Now, one might
dig up some other case where another principle will apply and strict
construction would apply.
Q: In INS v. Chadha, Chief Justice Burger made the point that although the
legislative veto might solve a great many administrative and legislative
problems, and might be a practical solution to a great many policy
difficulties, nonetheless more than 100 statutes containing legislative
vetoes at that time are unconstitutional. That is another example.
MACKINNON: Warren Burger comes from that same school of interpretation. You don’t
have one rule for the interpretation of statutes. You’ve got a thousand rules,
and the question is the reasonableness of the interpretation, whether they
get to the intent of the drafters.
Q: Doesn’t that open up the door for what you referred to earlier as the
“masticating” of the law, such as you saw occur in this circuit in the
criminal area about the time you arrived at the court?
MACKINNON: No. I read hundreds of their decisions. The mistakes they made were in
alleging that words didn’t mean what they said. It put some unreasonable
twist on the word, created an ambiguity that a reasonable person would not
Q: Is that just dishonesty?
– 21 –
MACKINNON: Well, some of them are just built that way. You know, a lot of people pick
up a statute and they don’t want to read through it, and the first thing they
do is to go to the committee reports and the debates in Congress. Well, the
first thing they should do is to read the statute, read it inside out, figure it
out, what were they trying to do, where did it come from? That’s the way
to interpret a statute, not try to develop something by unreasonable
construction of words.
Q: Turning to the more practical, but still related to this same subject, I
imagine that the masticating of the law, the criminal law, that you referred
to had a very real practical impact upon crime in the city. Maybe I’m
wrong, you will correct me. But what was it about the mentality of the
time, what was it about the country, what was it about the judiciary that led
many judges to interpret the law that way in favor of criminal rights,
notwithstanding that common sense would suggest it would have an
adverse effect on law-abiding citizens?
MACKINNON: Well, the Durham rule was never applied by any other court except the
courts in this district. No other court ever adopted it, and the Supreme
Court never took jurisdiction on it because no other court created a conflict.
There was never any other court that took it up. Justice Tom Clark told me
that the Supreme Court never did anything with the Durham rule because
nobody else favored it.
– 22 –
Q: It wasn’t just the Durham rule.
MACKINNON: No it wasn’t. There were a lot of other decisions attempting to have the law
interpreted against the interests of society.
Q: Do you know why some of the judiciary took that turn?
MACKINNON: I don’t think they did. A lot of our cases here did. They got some support
from the news media because it was viewed as a change — they called it a
development — particularly the Washington Post.
Here is a great development. A soldier on leave in the afternoon
leaves a place where he’d been having some beer and a hot dog or
something, and a fellow comes out and puts a gun to him, takes his money
and starts to run and a policeman sees him do it. They run him down and
catch him. And he is indicted and convicted. Those are the actual facts, no
question about it. And that came up on appeal to a panel involving Judges
Bazelon and Wright. Later it was en banc. I refused to write the en banc
Q: Which decision is it?
MACKINNON: It’s U.S. v. Decoster, Jr., filed July 10, 1979. A black judge, Joe Waddy,
one of the best we’ve ever had here, presided over the conviction in that
case, yet Judges Bazelon and Wright, for no reason at all, sent the case
back to him to hold a hearing to determine whether Decoster’s rights had
been adequately represented by defense counsel.
– 23 –
Waddy had a tremendous hearing that lasted several days and concluded
that Decoster had received all rights.
I wrote a dissenting opinion against their actions. They had absolutely
no reason to send it back. There wasn’t anything to show that there was
anything wrong in the case. Judges Bazelon and Wright were just trying to
dredge up a new theory. And they sent it back again, and Joe Waddy, I told
you how reasonable he was, held another extensive hearing, and he
concluded that Decoster had received all of the rights to which he was
entitled. That was July 10, 1979. U.S. v. Decoster, Jr., filed October 19,
1976, and the panel was Bazelon, Wright and MacKinnon. Read that, if
you want to know what they were trying to do. The two judges were just
trying to do something they thought for criminal defendants. He thought
that these people who were defending accused criminals weren’t giving
them all of their rights, and there wasn’t any point to that. There wasn’t
anything wrong. Once he sent the case back, let me tell you what he did. It
came back with this long hearing by Waddy, who went into everything, and
is as favorable to the black defendant as any person could possibly ever be.
Bazelon and Wright still were contrary. And that is the case here, where I
dissented. And we went to en banc after . . . now this was at the stage, the
developing stage, where the influence of Bazelon and Wright on the Court
was waning, and there were attacks on a lot of their decisions.
– 24 –
And this is the one that indicates we were getting some place, because it
went en banc. And, of course, they wanted me to write the opinion. I knew
that if I wrote that opinion, people thinking like Bazelon or favoring
Bazelon or something like that would say, “Well, that’s a MacKinnon
opinion,” and so I provided the argument and got Leventhal to write the
opinion. We got Leventhal and McGowan, and of course Tamm. Tamm
was always reasonable on criminal matters. There’s the en banc decision, if
you would like to read the decision. Bazelon, Robinson, and Wright, with
Leventhal, McGowan, Tamm, Wilkey and MacKinnon opposite. I didn’t
want to get involved in the en banc decision because I wanted the reversal
to stand and make a target for a changed majority. There was nothing to
begin with that needed the case to be remanded twice. It was a waste of
Q: It’s a huge slip opinion you have there.
MACKINNON: This one’s en banc.
Q: It’s about an inch thick.
MACKINNON: That’s the kind of useless contentions we were running into. That is
symbolic of the opinions they had been writing when we came aboard. It
was one of the primary reasons for me to come on the Court. They had
been knocking down the common law. At that, they lost out. The Decoster
case was about the last attempt. From that time on, it was more or less
subdued because they realized the rest of the Court had changed. After
that, we
– 25 –
repealed the Durham law backed by Leventhal, McGowan, and Tamm.
There wasn’t anything worse than having a reversal by your own
Q: Judge MacKinnon, let’s discuss briefly, if we can, the legal profession at
the time that you first started practicing law. Now, did you start practicing
law right out of law school?
MACKINNON: I did. I went to work right away as assistant counsel for Investors’
Q: There’s a lot of discussion in the bar today about lawyers having a bad
public reputation. Is that something new, or has that always been the case
in your experience?
MACKINNON: That’s new.
Q: What was the reputation of the legal profession back when you were
MACKINNON: Excellent. Lawyers were looked upon as honest, law-abiding citizens of
high stature.
Q: What has happened?
MACKINNON: Well, they’ve gotten too many lawyers. They haven’t applied the rule of
admission and the ethics have become more loose pertinent only as to
advertising. They’re getting better. When I was U.S. Attorney, I had a
defense lawyer in a white slave case, and we’d held the defendant to a
$1,000 bond. The defense lawyer came in — at noon while my staff were
eating in a restaurant, and requested that the bond be reduced from $1,000.
I agreed to a reduction to $500. I estimated that the defendant was not
going to run
– 26 –
away. The lawyer requested a substantial fee for reducing the bail and said
that he had to pay off MacKinnon and his assistant. I reported that to the
grievance committee of the bar association, and they would not do anything
about it. The next case that came along was a fellow named Siegel. He got
dismissal of a white slave case after conviction by having the prostitute
testify that she went to Chicago to work for Spiegel Department Store. He
was convicted but the judge set that aside because he believed that
testimony. So I started looking into whether we could prove whether she
did not go to Spiegel’s for that reason. Of course, we didn’t know that was
going to be the defense until the trial. Spiegel’s reported that the record
didn’t show that the victim had applied. This girl’s name was Mary Kay
Johnson and her pimp was Bobby Banner. To give you a good idea of what
a white slave case is, she was the most popular girl in North High School
and one of the most beautiful. Graduation night, along with several other
people in a crowd, they went to a Black and Tan place and were dancing.
Q: What’s black and tan?
MACKINNON: That’s a colored place. That’s what they used to call it in those days. While
she’s there dancing, on the sidelines, here’s this Bobby Banner, a nice tall,
slender, slick-haired moderately colored individual, trying to cut in, and
Mary’s date wouldn’t let him. They left the party about 1:00 or 2:00. When
she got home, she found that Banner
– 27 –
had picked up her name from someone in her crowd and about 2:30 a.m.
she received a telephone call from Banner to go out with her. She turned
him down cold, and she turned him down for three solid weeks. He called
her every day, not once but many times. Finally, she agreed to a date and in
two weeks time, he had her on the train for Fort Dodge, Iowa to work as a
prostitute for him in a house of prostitution. That’s the way the white slave
traffic worked.
After Banner was acquitted, a couple of months later, a young girl in
prostitution who is known as an “outlaw” because she didn’t have a pimp,
was arrested and told the FBI agent in charge of that kind of case, that
Siegel, who was representing her as a lawyer, had tried to get her to testify
that she went down to Chicago to go work at Spiegel’s, but couldn’t get a
job. She said, “Well, I didn’t.” Well, Siegel said, “Don’t worry about that.
I got Mary Kay Johnson to testify that way, and we got her man off. You
do the same thing, and we’ll get you off.” We indicted Siegel. I didn’t take
it to the grievance committee. Because of the results of my previous
complaint, I just went ahead and indicted him, and they sent him to prison.
In those days, the grievance committee said that they wouldn’t take the
word of a prostitute against the denial of the lawyer. In every white slave
case, you’re taking the word of a prostitute. Juries rely on their testimony.
We never lost a jury, we never lost a white slave, and we used to try more
white slave
– 28 –
cases than any federal court in America. The situation has changed since
Before that, bar committees were slow to enforce the good moral
character requirement. I recall a lawyer named Ray Peterson who served in
the legislature. He would never pass a moral standard, in my judgment.
He represented some female school teachers, in his home town of Anoka,
and he got them a small award. He put in a bill for them, and he said that
he had to buy straw hats for the committee. He hadn’t done that, of course.
He was known ever afterwards as “Straw Hat Peterson”.
I had him later when I was U.S. Attorney and disbarred him on another
matter. The lack of moral standing of Peterson was apparent on the
surface. That’s a hard thing to stop a person, to say, “Oh, I predict a
problem” and to let him get in, and there are a lot of them in. Those ethical
standards are seldom applied. I moved Peterson’s disbarment in federal
court because he misrepresented to clients that he had been included in an
indictment when he had not, and that he could “fix” the indictment. He
forgot that the indictment he drafted was a monstrosity.
Q: Were you ever in Washington in the 1930s?
MACKINNON: Yes, I came down here in 1933 to try to stop building dormitories at the
University of Minnesota because the rooming houses around there were
empty. I was representing the rooming house people. Actually, that’s the
way I got into
– 29 –
politics. I came down here representing them. Of course, I didn’t get
anyplace. The householders wanted me to come, and I did.
Q: Was that your first time in Washington?
MACKINNON: I had been in Washington in December of 1928, coming back from the
Olympics. I came down here to see my roommate, Leonard Walsh, who
was then working as a United States Marshal in the U.S. District Court.
Q: What was your impression of Washington in those early days?
MACKINNON: It seemed to be smaller. Mr. March, who was the head of the Federal Trade
Commission, was from Litchfield, Minnesota. He had plenty of time to see
me. I could go in to see him anytime I wanted. Congressmen were very
receptive, they lived here. At the time I came down, Ernie Lundeen, who
was in the House at that time, was leaving over the weekend. He had a
room all paid up, and he asked me to use it. I said, “No, I don’t want to do
that.” He says, “Well, I want to do something for you, you never can tell
how far a kid will go.” He was very friendly and was later a United States
Senator. I found him to be very receptive.
Q: Did you have sufficient exposure to the legal profession in the city to form
an opinion?
MACKINNON: No, I did not.
Q: Well, I was going to ask you about the concept of a Washington lawyer.
You’ve been here a long time
– 30 –
since then. Does the concept of a Washington lawyer as a unique type of
practice, a unique set of skills, really make sense to you?
MACKINNON: Yes it does.
Q: How would you describe a Washington lawyer?
MACKINNON: Well, a person who’s very knowledgeable in a lot of fields —
knowledgeable on the Hill, knowledgeable about the personnel,
knowledgeable about the departments, how they work, how they operate.
Q: Is it more a lobbying practice?
MACKINNON: I don’t call that lobbying when you’ve got a case in some department and a
lawyer represents a client. Lobbying is up on the Hill where you’re trying
to get them to pass laws. People down here, for instance from the Federal
Communications Commission, are experts in the application of that statute,
and if one has a problem there and you don’t have some person who knows
about it, he just might forget it. And it’s the same thing with the SEC. I
think the SEC is one of the finest departments we have, and I’ve followed
that from the day the bill was introduced in 1933. Of course, with my
company, we were always at the SEC. Not always, but eventually.
Originally, we were like an insurance company, and eventually we came
under the Investment Company Act, which we helped to draft because the
SEC was not then familiar with such companies.
– 31 –
Q: Has the number of public interest organizations litigating in court increased
in the time you’ve been on the Court?
MACKINNON: I think it has since about 1937 when local criminal cases were transferred
to the D.C. courts.
Q: There’s been a debate in the Court, judging from the Court’s decisions the
last 10 years or so, on the question of standing, particularly the standing of
public interest organizations, to bring various challenges against agency
action. Have you developed any strong views on the legitimacy of the role
of public interest organizations having access to the court to press their
views as to what the nation’s public policy should be?
MACKINNON: I’m in favor of people who have a legitimate interest in the problem having
a right to present their case. How that might develop with some particular
public interest group, I don’t know.
Q: We’ve been discussing largely your background in getting up to the Court,
except for some discussion of your views of the law that led us to some of
your cases. Why don’t we turn now, more squarely, to the time you’ve
served on the Court? What was your experience like when you first joined
the Court, in terms of getting used to its work? Did you find it particularly
difficult, or an easy transition from your work as a general counsel?
– 32 –
MACKINNON: I did not find it difficult. I found it an easy transition. I had written scores
of briefs all my life on substantive legal problems involving every state in
the Union and all the provinces of Canada, and interpreted statutes — which
is a large part of the cases that lie here — and I didn’t have any particular
difficulty handling this litigation.
Q: One of the unusual features of this circuit is that all of the judges are in the
same building all the time. Have you found whether that facilitates
MACKINNON: What do you mean by collegiality?
Q: Well, it is a word very widely used. By that I mean the ability to drop into
someone’s chambers and converse freely about a case the way you wouldn’t
be able to do if the circuit was spread around hundreds of miles.
MACKINNON: I don’t think anybody does that around here. You and many others do not
understand what collegiality really means and how it operates.
Q: Does it make any difference that the court is all in one building ultimately?
MACKINNON: I don’t think so. Judges don’t run from one chamber to another trying to
sell an idea. I think Justice Scalia thought that was probably the way it was
going to work on the Supreme Court, but he found out it was different.
Conferences are between judges who have thoroughly reviewed the record
briefs and heard the arguments, and they
– 33 –
note their decisions. You draft your opinion separately. The only
discussion we usually have is the short conference following oral argument.
Q: Another aspect is that the District Court, the only district court in the entire
circuit, sits right below. So you see in the halls, perhaps in the cafeteria,
the judges whose opinions sometimes you have to reverse. Did you find
that difficult in the beginning?
MACKINNON: Not in the beginning or any other time.
Q: How do you deal with it?
MACKINNON: Just apply the law in all cases.
Q: Do you find that it affected the ability to have personal relations if you
wanted to?
MACKINNON: Not in the least. I have lunch every day with the sitting judges on the
district court and have had for the last 25 years. I reverse them and we
turn to another subject of conversation. Incidentally, from the time I started
practicing law, I have always had lunch every day with a group of lawyers
and judges. All my life, as a practicing lawyer in Minneapolis. The juries
used to come in at noon for lunch, and, of course, the lawyers that were
trying cases would come in and sit down with our table. When the lawyers
trying the case followed them to the courthouse — others went to their
offices. Thus, all my life I’ve been around practicing lawyers. I’ve had
lunch with lawyers and judges who are active in the trial of cases. When I
tried my first criminal
– 34 –
case, which was when I was U.S. Attorney, I just walked right in there with
no hesitancy whatsoever, even though I hadn’t had a lot of court practice.
That is the way that the judges learn in England. They have tables, you
know, they have a lunch for all the lawyers in the court and all the judges.
Roughly, all five judges and 40 or 50 lawyers, all having lunch together. I
think that collegiality is misunderstood by the lawyers and the media. It
has an indefinite definition.
Q: Sort of like common sense, isn’t it?
MACKINNON: Yeah, like common sense. For my line of thinking, it refers to a person
who’s ordinary, you can talk to them about something that’s reasonable, and
they’ll listen to you. I’ve never had any problem with anything like that.
Q: Let’s discuss some of your decisions on the court. We have already
discussed a few. I recall earlier in the interview you referred to the role of
newspapers in describing Harold Stassen’s loss in the Oregon primaries as a
great loss. The press has always played an important part in this town.
One of your better known decisions is Washington Post v. Tavoulareas.
The holding of the panel decision of MacKinnon and Scalia, Starr
dissenting, was that the jury could hear evidence that the editor involved in
the case, the Washington Post editor, Bob Woodward, had a policy of
encouraging his reporters to be aggressive, and the objection was made that
that would penalize a
– 35 –
newspaper for being aggressive, if you allowed a jury to hear that evidence.
MACKINNON: I believe that most of the Tavoulareas decision is misunderstood. I do not
think aggressiveness played any material part in the original decision. The
district judge had overstepped his grounds in reversing the jury’s decision.
Adverse media comments weren’t dealing with the guts of the case.
Q: What are some of the cases that you particularly enjoyed or found
interesting in your time on the Court?
MACKINNON: I’ve been sitting for 24 years on D.C. Transit.
Q: Is that still kicking around?
MACKINNON: Still kicking around. New problems develop all the time. Now we have a
tax problem. Prior lawyers who are handling the case didn’t take care of it.
In the course of my active participation on the panels, I used to write
many opinions, Leventhal and I used to take turns at the top of the
producing judges. In addition to that, I had to write numerous dissents. I
forget the exact number. I think it’s more than 25 of my dissents that have
been sustained by the Supreme Court. I believe that’s a record. Many of
them were more based on common sense than anything else.
Q: Are there particular cases among your decisions that stick out in your mind
that you would wish to comment on?
– 36 –
MACKINNON: I wouldn’t comment on them other than what I’ve said in the opinions.
Details of them are not sufficiently fresh in my mind for me to comment on
Q: Very well. Let’s turn the page then to another aspect of your work on the
Court, your seven year service as Chief Judge on the Special Division of
Independent Counsels. As I understand it, one of the statutorily defined
jobs of the Division was to select and appoint independent counsels when
asked to do so by the Attorney General.
Q: You came to Washington to be a judge in the Nixon administration, and
your law practice before then was primarily in Minnesota. How did you
come about to select particular individuals out of either the Washington bar
or elsewhere, to be independent counsels? Did you draw upon knowledge
of the profession in the city, for instance, that you developed during your
tenure here, or did you consult others? Just in general, how did you come
to select particular people, without naming names?
MACKINNON: I prosecuted every case of major importance when I was U.S. Attorney,
personally. I had great reverence for criminal law, and I developed a
knowledge of good prosecutors around the country, from media and our
annual meetings. And I practiced law in every state in the union, so I knew
the standing of every law firm of any major importance, and all the
outstanding lawyers in the country. I knew a great many judges. In
– 37 –
appointing independent counsel, you have a unique problem. Every case is
different. You have to get a person who fits in with that case. That
requires a lot of inquiry. With my knowledge of lawyers, prosecutors, and
judges around the country, and in Washington, and on our courts, I would
call various people and say, “What do you think of so-and-so?”. And, of
course, a few people would suggest names, but we never happened to
appoint any personal friends.
Q: Was that a disqualification?
MACKINNON: No, it wasn’t. Who I know now about the Iran-Contra matter, I am sure we
would make the same appointment. At the same time, there was never any
person that we ever approached who didn’t want to take the job if they
could. Nobody ever turned us down. Conflict of interest was the principal
problem to overcome.
Q: I was going to ask you about that. When the Department of Justice
changed its policy and decided to apply its professional responsibility
standards across the board to independent counsels, did it not affect your
ability to appoint people after that point?
MACKINNON: No. Many people ask how do you select them. Do you have a list? We
don’t have a list. Every case is different. You determine what kind of case
you have. I’ve selected some of the great prosecutors in the country. Dan
Webb, from Chicago, for instance. He went on to convict Poindexter for
Judge Walsh in Iran-Contra. He was
– 38 –
the prosecutor who personally tried all the Graylord cases in Chicago and
many other cases of similar import and importance. A great prosecutor. I
don’t know where I came on Dan Webb. I had followed his Graylord
convictions. I would think that Judge Frank McGarr, who was United
States Attorney in Chicago in the Eisenhower administration and later
Chief Judge of the U.S. District Court in the Northern District of Illinois,
with whom I had experience when I was U.S. Attorney in Minnesota was
called on by me for his evaluation. One of the questions I asked him was,
“Did he ever get into any big problems with the media?”. He says,
“Absolutely none.” I haven’t heard of any since. He’s one fine lawyer. I
also inquired of another lawyer in Chicago, Mitch Reiger, who was
handling the criminal division for the Eisenhower administration. He
knows every lawyer in town. He had wonderful information on people like
that. And then, of course, I always checked the FBI report. Generally, we
always find good prosecutors.
The appointment of former judge Arlen Adams was the result of a
possible conflict of interest problem that the Congress said might come up.
It seemed that every legal firm of any consequence in the country had had
cases that might raise a possible conflict of interest. We went through 45
lawyers until we found Judge Adams. He of course wasn’t an original
prospect at all because he was never a prosecutor. However, we decided
that he would be able to handle that conflict of interest
– 39 –
problem. He has done a great job — 16 convictions to date.
Q: You were discussing the appointment of independent counsels.
MACKINNON: I talked to lawyers that I considered to be highly ethical lawyers in New
York, Philadelphia, Baltimore, Washington, Chicago, San Francisco, Los
Angeles and other places, about people whose names somebody might have
suggested or whom I might have considered. We’d get an FBI report on
them re their ability to handle this particular type of case. Some person
that’s a whale of a prosecutor, storming up and down and raising a lot of
hell, wasn’t exactly the kind of a prosecutor that we want. I wanted some
person who was going to try to represent the Government on an even keel
and be a tribute to the court and who is very successful in that respect.
Q: There is a debate about whether to have a statute for independent counsels.
MACKINNON: There is no debate about that. That’s going to pass overwhelmingly.
Q: You believe so?
MACKINNON: Yes, sir.
Q: You’re in favor of it?
MACKINNON: Very much so.
Q: Why?
MACKINNON: It is an absolute necessity. In every case where a high government official
appears to have committed some criminal offense, the Department of
– 40 –
Justice has a conflict of interest. Every case. No mistake about it. You
just can’t let the Department of Justice handle that particular case.
Q: I served for a brief time at the Justice Department, in the Civil Rights
Division. I did not sense that the civil service career staff were as
subservient to the wishes of the political appointees as, for example, junior
lawyers are in a law firm by far. It was sometimes very difficult to get the
civil servants to carry out administration policy in a controversial area. It
seemed to me that a career civil servant in the Justice Department does
have a sense of independence which, if protected from the reach of political
appointees, might permit the career staff to carry out a prosecution even
against the interests of the President.
MACKINNON: Yeah, but that is immaterial as to cabinet officials and there is not
Q: Also, a possible criticism is the independent counsels may be independent
of the executive, but dependent on a special division.
MACKINNON: Absolutely not dependent in any way on a special division. What do you
Q: The independent counsel may desire to conduct the case in a particular
manner but receive objections from the special division. . . .
MACKINNON: We have no authority to do that. You do not understand the statute.
Q: . . . by expanding the scope of the investigation.
– 41 –
MACKINNON: We have more authority . . . by expanding it?
Q: Debates about the . . .
MACKINNON: Wait a minute, wait a minute. We don’t do that. That comes from the
Attorney General. The Attorney General is the one to expand it, we act on
his request. We don’t do it ourselves. We never do. You’ve got the statute
all wrong.
Q: There’s always a question of interpretation of the mandate. We found it in
Iran Contra.
MACKINNON: No, no. A question of a mandate? Never had a question of its mandate.
To the extent that it was raised with the Court in Iran Contra, Judge Gesell
held against it just like that. The widest mandate ever given any
independent counsel was originally given by the Special Division at the
request of Attorney General Meese and President Reagan, and it was never
changed. Attorney General Meese received exactly what he requested.
Q: It was very broad.
MACKINNON: Well, you couldn’t get any broader. Anybody that ever had anything to do
with North and everybody else that had anything to do with him. Yet that
was the jurisdiction then requested, and when Judge Walsh tried to carry
that out, they began to criticize him and raked him over the coals because
he convicted a couple of high ranking Republicans.
Q: There were some press reports that independent counsel Walsh’s final
report was going to be released but the special division desired
– 42 –
responses from some of the targets of the special investigation included in
that report.
MACKINNON: That is required by standard statutory procedure. Newspapers wrote it up
as something unusual, but it’s usual and required by statute. The Special
Division always asks for comments and printed everything exactly as it was
submitted. The Special Division has no right to comment in the report on
any comment. Read the statute. You can’t rely on the newspapers in many
of their comments.
Q: It seems as though a close relationship, an unusually close relationship,
exists between a court and the prosecutor that the court has itself appointed.
MACKINNON: Absolutely not. There isn’t any relationship. They said that Ed Walsh was
taking orders from the Special Division. In the first two years, I never even
saw him once. Finally, I was coming back from lunch one day and I ran
into him in the hall. There’s no relationship. The independent counsel just
starts out on his own. He doesn’t come back. Once in a while they come
back for some procedural matter or something of that character. They want
to broaden their request, their authority like they did in the HUD
investigation. That was expanded twice at the request of the Attorney
General. We don’t, we never turn a hand to even come close to an
independent counsel and how he’s running his case.
– 43 –
Q: The country went along for a great many decades without an independent
counsel statute. It’s a recent invention, yet you feel strongly about its
necessity. Does what you see as an inherent conflict of interest in the
Department of Justice, investigating wrongdoing in the executive branch,
suggest to you a flaw in the Constitution, an oversight, something that
should have been corrected at the beginning?
MACKINNON: No. I think the Constitution provides for how it could be corrected exactly
the way they’re doing it. It says that the courts of law or one of the people,
heads of departments, may appoint inferior officers, and, well they’ve had
cases like this. Look at the Teapot Dome case. Congress directed the
President to get into that. The Executive Department held that case off for
two years until after the election. Teapot Dome came up, but the Justice
Department never did anything about it until after the election. Then
Congress directed — they didn’t ask, they didn’t request — that the President
appoint a prosecutor, I think to be confirmed by the Senate. And he
appointed Owen Roberts and a defeated Democratic Senator from Ohio (C.
Parmalee). The statute was mandatory. Calvin Coolidge was a very
straight shooter, but he held off on Teapot Dome until the election was
over. Though I’ll tell you, and I told Janet Reno this, I told the present
Attorney General, “Janet, whenever you have a high government official
charged with a major crime, you have a conflict of
– 44 –
interest.” There are so many ways for a prosecutor to cover up a piece of
evidence, critical evidence. So many ways to get rid of cases without
trying them.
Q: Maybe this is a good time to cover one last issue. At the Justice Department
I had a brief stint as a prosecutor. I had one experience involving
sentencing which I think leads us to the work you did as a member of the
U.S. Sentencing Commission. It was in the Eastern District of Virginia.
Albert V. Bryan, Jr. was the judge, one of the great judges in the area, and
the case involved a young man who . . .
MACKINNON: Are you talking about his father?
Q: Jr.
MACKINNON: Talking about Jr.
Q: The case involved a young man who had been convicted of essentially
helping to serve as what they call a “mule” to carry crack cocaine from
New York down to Washington. He was arrested, prosecuted and
convicted. He did not have prior convictions, but as a result of the nature
of the substance, once the sentencing report was presented to the court, the
judge felt obliged and had no choice but to impose a lengthy sentence of
several years. I believe it was in excess of 10 years, although I don’t
remember the exact number. I could tell that the judge was stricken at
having to do this to this young man who had apparently been caught up in
this one instance.
– 45 –
MACKINNON: Actually, he’d been caught in one instance.
Q: Yes, yes. And that’s all we have to go on. We have to ignore the
possibility of other instances.
MACKINNON: Well, you could look around and see how he’s making his living. Go
Q: We have to ignore that. We have to assume that the man is innocent in
everything else.
MACKINNON: Well, you could prove that he was living off the sale of cocaine.
Q: There’s been some criticism of the work of the U.S. Sentencing
Commission, particularly the sentencing guidelines as being too strict.
Have you ever felt that perhaps the Commission, perhaps in an effort to
derive predictable rules for sentencing, for diminished discretion, may have
used it as an opportunity to substantively produce a different policy on
sentencing, namely a policy of harsher sentences?
MACKINNON: Never. What you’re talking about, and what you’re worried about but don’t
mention, is that Congress has provided a minimum sentence for that
particular offense, and we, of course, were required to follow the
recommended sentences.
We had to follow the statute. You can’t go against a mandatory sentence
that Congress has imposed by legislation. On that issue, the Commission
wrote a report and told Congress to cut down the maximum amount of
sentences that they were requiring. They haven’t done it yet. That leaves
the Commission’s hands tied. Why should the
– 46 –
Commission be criticized for following Congress’ mandatory statute?
Q: The Commission had an important task.
MACKINNON: They didn’t have authority to violate a statute on sentencing
Q: No, but to develop guidelines that would in turn be used in implementing
the statute.
MACKINNON: Sure, and they had to follow the statute.
Q: The statute certainly gave the Sentencing Commission potential discretion.
MACKINNON: No, it did not.
Q: Then what was the work of the Commission?
MACKINNON: Read the guidelines and see. The minimum mandatory sentences only
applied to drug and gun offenses. Not on minimum mandatory sentences.
There was no discretion in the judge, the jury, or the Sentencing
Commission. You must follow the statute. Everybody has to follow the
statute. We put out a report on this, told them to cut down their maximum
minimums. The minute they started going in, I knew they were too high.
There wasn’t anything that we could do about it. I figured that somewhere
down the line, somebody would say, “Well, we’ve just been too damned
high here” and pass a general amnesty statute, to a certain extent. I think
that’s the way the thing probably will work out in years to come. But
against the statute, you can’t do anything. They have to follow the statute,
even though some judges don’t think they have to. It’s not an easy job.
– 47 –
Q: How long did you serve on the Commission?
MACKINNON: Six years. A full six years. Until November 1992.
Q: As a member of the Commission, you may have had as much or even more
influence on criminal law than as a member of this Court, don’t you think?
MACKINNON: Oh yes. Actually, in writing statutes in Congress or in the legislature. I
always knew that when I was picking up that pen to write a statute, that I
was reaching broader than frankly any court decision ever reached. You’re
writing for humanity when you’re writing statutes. That’s in effect what we
were doing on the Criminal Law Commission.
Q: Writing statutes?
MACKINNON: In effect, writing statutes. Delegated legislative authority, that’s what it was
held to have been. The authority to do just what they did.
Q: And the Commission did not exercise its discretion in favor . . .
MACKINNON: They don’t have any discretion on a mandatory minimum statute involving
drug and gun offenses.
Q: Well, that was not all that the Commission was involved in.
MACKINNON: Yes it was, as far as mandatory minimum sentences for drug and gun
offenses were concerned.
– 48 –
Q: We were just talking about the implementation of the statute by the
Commission over an extended period of time.
MACKINNON: That doesn’t . . . anything that affects a mandatory minimum sentence.
You’re talking loosely, like some criminal lawyers do at times, to try to get
a judge to do something. No, that doesn’t exist, as far as the Sentencing
Commission is concerned, on mandatory minimum sentences. We wrote a
wonderful report, trying to get Congress to cut down their mandatory
minimum sentences. They haven’t done it. They believe that these crimes
were crimes. They believe that the statute provides for the sentencing of
crimes, not criminals. Any person who commits that crime is supposed to
be subject to that sentence, and that’s the same as the mandatory statute in
England. They have them over there. They’re not as heavy as ours, but
they have mandatory sentences. I can show you many of them.
Q: Well, judge, I think that we’ve covered a lot of ground today. We have
ranged very far and wide. We have stopped where we needed to stop and
gone further when we’ve needed to go further.
Q: Before concluding, Judge, let’s discuss the chapter in your life involving
your daughter, Catharine MacKinnon.
MACKINNON: Well, she stands on her own. What she’s done is entirely her own, her own
ideas, and I’ve never
– 49 –
had any part of it. I was running the circuit conference one year, in
Hershey, Pennsylvania, and Kitty was in law school. One of the subjects I
chose for one day’s explanation was discrimination. I’d heard around the
grapevine, that there were a number of discrimination cases building up in
the departments. On my service in the legislature in Congress over the
years, seeing how statutes turn out little and grow and grow and grow, I
knew how this particular statute might grow.
Q: Which statute is that?
MACKINNON: Discrimination, the discrimination statute.
Q: The Civil Rights Act of 1964?
MACKINNON: It was the statute in which Congressman Smith inserted the word “sex.”
And I knew how these statutes develop, and I knew that there were some
discrimination cases building up down in the departments. And I chose to
put in one day on discussion of those cases. Mr. Powers of Steptoe and
Johnson had already obtained a $12 million verdict against the telephone
company, I can’t remember whether he was the plaintiff or the defendant,
against the Bell Telephone Company for their discrimination against
women. So I felt this case would be worthy of attention because there were
so many cases in the department, they had built up. I outlined a program
for one day, and I had the Assistant Attorney General, who was Thornburgh
at the time, and the official in charge of EEOC, the lawyer who was
defending the cases in
– 50 –
the Department. I had the Vice President of General Motors who was
defending their discrimination cases. I put this on one day, and I heard the
comments from the Washington lawyers saying, “What the hell’s the
importance of this thing?” That was just what I expected. They were
mostly uninformed as to what was to come. But I thought they ought to be
informed a little on what was potentially a very large, swelling scope of
litigation. That was the reason I put on the program. Now, Kitty was a
junior in Yale Law School at that time, and I invited her down just because
I was running the conference. Of course she heard this discussion on
discrimination and apparently got interested in it. She didn’t say anything
to me about it. The next thing, come Christmas time, she came down from
Yale, and she came in at noon on the last day before Christmas vacation.
She was going to stay with us for the holidays. And as she came in, I had
just walked out of a conference on Barnes v. Costle, which is a sex
discrimination case, and we hadn’t really settled on the case at the
conference. The panel involved Judge Robinson, myself, and Dave
Bazelon. I told Kitty the kind of case we were sitting on, and without
saying anything to me, she went down to see Judge Charles Richey, who
had had the case, and asked for the briefs and transcript. She asked for our
copy, so I gave her a copy. The next thing, I heard later, was that she had
reviewed every case in the United States on sexual discrimination. Every
case in America held that
– 51 –
sex discrimination was not gender based. It had to be forced in connection
with sex. She had written all this up, and I never read it until later. I didn’t
know what her work involved, but she had concluded that sex
discrimination was gender based, against every court in the country. When
the Yale faculty read her work, they told her she had to make a book out of
it. So she stayed up there during the summertime and wrote Sexual
Harassment of Working Women. Of course, Kitty’s book was published by
the Yale Press and was then accepted world-wide. In the interim, prior to
publication, Judge Robinson had come to the same conclusion and we
followed his draft. Recently, she’s been taking the world on on
pornography and making progress slowly; but I think she’s making
progress. The Canadian Supreme Court recently held that “pornography
harms women”, which is the guts of the attack.
Q: I did have an item in my notes about a conference on sexual harassment in
1977. It may be the same one you’re referring to concerning Barnes v.
MACKINNON: That was our court.
Q: I believe you said, “Sexual advances may not be intrinsically offensive, and
no policy can be derived from the equal opportunity employment laws to
discourage them.” And you went on, “It is the abuse of the practice rather
than the practice itself that causes alarm.” Is that the part of the issue that
you are referring to?
– 52 –
MACKINNON: I don’t believe so. I was 100 percent for the Barnes opinion and for Kitty’s
analysis. In the Barnes case, because of my long association with business,
where we hired women, that there should be some recognized way so they
can nail down their evidence and not in every case just be one man’s word
against the girl’s, or something like that. They ought to provide for regular
reporting if things develop, and not simply report at some later date that
they were sexually harassed by some person. That’s the gist of my
comment on that, except in our case, I was strongly for a conclusion that
employers should provide for some methods of reporting.
Q: Thank you very much, Judge.
Adams, Judge Arlen, 38-39
American Federation of Labor (AF of L), 10
Anoka, Minnesota, 28
Baltimore, Maryland, 39
Banner, Bobby, 26-27
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), 50-52
Bazelon, Judge David L., 14, 22-25, 50
Bell Telephone Company, 49
“Black and Tan” place, 26
Boulder, Colorado, 1
Brennan, Owen B., 10
Brewer, Justice, 18, 19
Bryan, Judge Albert V., Jr., 44
Burger, Chief Justice, 14, 15, 20
Butzner, Judge John D., 19
Canada, 16, 17, 32
Canadian Supreme Court, 51
Chambers, Whitaker, 5, 7
Chicago, Illinois, 4, 37, 38, 39
Circuit Judicial Conference, discussion of sex based discrimination, 49-50
Civil Rights Act of 1964, P.L. 88-352, 78 Stat. 241, 49
Clark, Justice, 21
Colorado, University of , 1
Congress, U.S.
George MacKinnon’s role in, 2-10
Labor Committee, 4-6
see also MacKinnon, George E.
Congress of Industrial Organizations (CIO), 10
Coolidge, President Calvin, 43
Criticism of decisions of U.S. Court of Appeals for the D.C. Circuit, 14, 21-25
D.C. Transit case, (see Democratic Central Comm. of D.C. v. D.C. Transit System), 35
Decoster, Willie, Jr. (see U.S. v. Decoster), 22, 23
Democratic Central Comm. of D.C. v. D.C. Transit System, 459 F.2d 1178 (D.C. Cir. 1972), 35
Dewey, Thomas, 3
Discrimination, sex based, 49-51
Dranow, Ben, 11
Driscoll, Governor Alfred E., 3-4
Durham rule,(see Durham v. U.S.), 14, 21, 22, 25
Durham v. U.S., 214 F.2d 862 (D.C. Cir. 1954), 14, 21, 22, 25
Equal Employment Opportunity Commission (EEOC), 49
Eisenhower Administration, 9, 38
Eisenhower, General Dwight D., nomination of, 3-4
England, 34, 48
Everglades Hotel pension fraud case, (see U.S. v. Hoffa), 10, 11
Farmer-Labor Party, 2, 15-16
Federal Bureau of Investigation (FBI), 7
Federal Communications Commission (FCC), 30
Federal Trade Commission (FTC), 29
Fort Dodge, Iowa, 27
Freeman, Orville, 9
Georgetown Law Journal, 14-15
General Motors, 50
Gesell, Judge Gerhard R.., 41
Giuseppi v. Walling, 144 F.2d 608 (2d Cir. 1944), 20
Glenwood Springs, Colorado, 1
Goucher College, 7, 8
Grand Junction, Colorado, 1
Graylord cases, (see U.S. v. Devine), 38
Great Northern Railroad, 1
Halleck, Charles (Charlie), 8
Hand, Judge Learned, 19-20
Hartley Bill, (Labor Management Relations Act, 61 Stat. 136), 5, 9
Harvard, 6
Harvard Law Alumni Association, 6-7
Harvard Law Review, 15
Hershey, Pennsylvania, 49
Hiss, Alger, 5, 6, 7
Hiss case (see U.S. v. Hiss), 5-8
George MacKinnon assists FBI and Nixon to find crucial evidence, 6-8
Pumpkin Papers, typewriter used for, 5-7
Hiss, Priscilla, 7, 8
Hoffa cases, (see U.S. v. Hoffa), 10-11
Kennedys’ interest in cases, 10, 11
Hoffa, James (Jimmy), 9-11
Holy Trinity Church v. U.S., 143 U.S. 457 (1893), 18, 19
House Un-American Activities Committee, 5
Independent Counsel, 36-44
Adams, Judge Arlen, 38-39
Appointment of, 36-40
Conflicts of interest, 37-39
Mandate of, 40, 41
Need for and criticism of, 43, 44
Relationship with Special Division, 42
Statute, 18, 19
Conflict of interest, 40, 43-44
Criticism of and need for, 39-44
Need for, 39-44
Webb, Daniel, 37-38
In re Franklyn C. Nofziger, 925 F.2d 428 (D.C. Cir. 1991), 18, 19
INS v. Chadha, 462 U.S. 919 (1982), 20
Investment Company Act, 30
Investor’s Mutual Funds, 11
Investors Diversified Services (IDS), 2, 7, 11, 12, 13, 17, 25
Investors Syndicate, 2, 7, 11, 12, 13, 17, 25
Iran-Contra Affair, 37, 41
Johnson, Mary Kay, 26, 27
Justice Department, U.S., 9-10, 11-13, 37, 39-40, 44
Office of the Attorney General:
Assistant Attorney General Lacy H. Thornburg, 49
Attorney General
Kennedy, Robert F., 10-11
Meese, Edwin, 41
Reno, Janet, 43
Rogers, William, 9, 10
Deputy Attorney General Richard (Dick) Kleindienst, 13
Civil Rights Division, 9, 40
Internal Security Division, 9
See also Independent counsel statute, 18, 19, 36-37
Special Division of Independent Counsels, 36
Kansas, 19
Kennedy Administration, 11
Kennedy, President John F. (Jack), 10, 11
Kennedy, Robert F., 10, 11
Kersten, Charlie, 4
Kleindienst, Richard (Dick), 13
Labor Bribery Statute, 61 Stat. 157, 10
Labor Department, U.S., 10
Lawyers, corrupt:
Peterson, Ray (Straw Hat), 28
Siegel, 26, 27
Leventhal, Judge Harold, 14, 24, 25, 35
Litchfield, Minnesota, 29
Lumbard, Judge J. Edward, 13
Los Angeles, California, 39
Lundeen, Ernie, 29
MacKinnon, Betty, 12
MacKinnon, Catharine A. (Kitty), 48-52
MacKinnon, George E.:
Anecdote about Ernie Lundeen, 29
Career goals, 12, 13, 24
Early life, 1
Education, 1
Experiences with corrupt lawyers, 25-28
Family background, 16
Friendship with Judge Leonard Walsh, 14, 29
Judges’ lunches, 33
Judicial philosophies:
criminal law, views on, 14, 21
criticism of decisions of U.S. Court of Appeals for the
District of Columbia Circuit, 14, 21, 22, 24-25
criticism of views of Judges Bazelon and Wright, 14, 20-25
dissenting opinion in Decoster case (see U.S. v. Decoster), 23
role of public interest organizations, 31
sex discrimination remedies, 52
statutory interpretation:
and Chief Justice Burger, 20
experience with, 17
importance of Holy Trinity Church case (see Holy Trinity Church v.
U.S.), 18,19
independent counsel statute, 18-19, 39-44
manifest intent, 18, 19
rules for, 17-21
strict constructionism, 16-20
Labor law, involvement with:
drafts Labor Bribery Statute, 61 Stat. 157, 10
drafts Taft-Hartley Bill, 61 Stat. 136, 5, 9
Labor Management Relations Act, 61 Stat. 136 (Taft-Hartley Act), 4, 5, 9
Lawyers, change in public views of, 25-28
Legal career:
assistant football coach while practicing law, 2
General Counsel of Investor’s Mutual Funds (1960-1969), 11
Hoffa cases, (see U.S. v. Hoffa), 10-11
Investors Diversified Services (Investors Syndicate):
assistant to counsel, 2, 25
experience with SEC, 30
offered Assistant Attorney General position, 9
offered Solicitor General to the Post Office Department position, 8
U.S. Attorney in Minnesota, 8, 36
Banner inquiry, 26, 27
Dranow case, (see U.S. v. Hoffa, 402 F.2d 380 (7th Cir. 1968)), 11
corrupt lawyers, 25-28
white slave case, 25-28
work for Republican 1952 presidential campaign, 2-4
Legislation drafted:
Investment Company Act of 1940, 54 Stat. 789, assists with, 30
Labor Bribery Statute, 61 Stat. 157, 10
Taft-Hartley Act, (Labor Management Relations Act, 61 Stat. 136), 4, 5, 9
Lobbying experience, 28, 29
Notable lawyers, 3, 11, 37, 38
On U.S. Court of Appeals for the District of Columbia Circuit (1969 – 1995):
changing direction of court, 23-25
Chief Judge on the Special Division of Independent Counsels, 36-43
independent counsel Judge Arlen Adams, 38, 39
independent counsel Dan Webb, 37-38
interpretation of statutory mandate, 40, 41
Iran Contra affair, 37, 41, 42
need for independent counsels, 39, 40, 43-44
relationship between Special Division and counsels, 42
selection of counsels, 36-39
circuit judicial conference, organizes discussion on sex discrimination, 49-
collegiality of court, 32-34
dissents sustained by the Supreme Court, 35
ease of transition to, 31-32
judges’ conferences, 33
notable cases:
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), 50-52
Democratic Central Committee of D.C. v. D.C. Transit System,
459 F.2d 1178 (D.C. Cir. 1972), 35
U.S. v. Decoster, 624 F.2d 196 (D.C. Cir. 1979), 22-24
Washington Post v. Tavoulareas, 737 F.2d 1170 (D.C. Cir. 1984), 34, 35
offered judgeship, 11-13
on U.S. Sentencing Commission, 45-48
discretion granted by Congress, 46, 47
role of Commission, 45-48
prior knowledge of court’s work, 13-14
reasons for accepting appointment, 14, 24
relationship with U.S. District Court for the District of Columbia judges, 33
Political career:
Congress, U.S., in (1946-1948):
drafts legislation, 5, 9, 10
elected to, 2, 3
on Labor Committee, 4, 5
role in Hiss case (see U.S. v. Hiss), 6-8
governor, runs for, 9
in Minnesota House of Representatives (1934-1942), 2, 9-10
anti-socialist views, 15-16
Republican 1952 presidential campaign:
research director for Nixon, 8
role in, 2, 3
Political views, 2, 15-16
Tribute to Chief Justice Burger in Harvard Law Review,
(100 Harv L. Rev. 988 (March 1987)), 15
Tribute to Judge Tamm in Georgetown Law Review,
(74 Geo. L. J. 1571, 1576 (1983)), 14, 15
Stassen, Harold, friendship with, 2, 3
U.S. Navy career, 2
Views on Washington lawyers, 30
Washington, D.C., early experiences in, 28-29
Mandatory minimum sentences, 45-48
March, Charles H., 29
McClellan, Senator Steven, 11
McGarr, Judge Frank, 38
McGowan, Judge Carl, 14, 24, 25
Meese, Edwin, 41
Minneapolis, Minnesota, 1, 2, 6, 11, 16, 33
Minnesota, 5, 8, 9, 36, 38
Minnesota Bar, 2
Minnesota House of Representatives, 2, 9-10
Minnesota, University of, 1, 2, 14, 28
Montana, 15
Nashville, Tennessee, 10
Navy, U. S., 2
Neal, Jim, 11
New Jersey, 3, 4
New York, 39
New York, New York, 5
Nixon Administration, 13, 36
Nixon, President Richard M., 3-8
Hiss case (see U.S. v. Hiss), role in, 6-8
Vice-presidential nomination, 4, 8
Nofziger, Lyn, 18
North, Oliver, 41
North High School, 26
Norton, W. I., 13
Ohio, 3, 43
Olympics, 29
Oregon, 3, 34
Parmalee, C., 43
Peasley, Amos, 3
Pell, Judge Wilbur F., Jr., 19
Peterson, Ray (Straw Hat), 28
Philadelphia, Pennsylvania, 39
Poindexter, John M., 37
Powers, Thompson, 49
Presidential campaigns:
1948 campaign, 3
1952 campaign:
Eisenhower nomination, Judge MacKinnon’s role in, 4
Judge MacKinnon as Research Director for Nixon, 8
Republican party primary campaign, delegate maneuvering in, 3-4
Pumpkin Papers, (see U.S. v. Hiss), 5
Reagan, President Ronald, 41
Reiger, Mitch, 38
Reno, Attorney General Janet, 43
Richey, Judge Charles R., 50
Robb, Judge Roger, 14
Roberts, Owen, 43
Robinson, Judge Spottswood W., III, 24, 50, 51
Rogers, William, 9, 10
San Francisco, California 39
Scalia, Justice, 32, 34
Securities and Exchange Commission (SEC), 30
Sex discrimination, 49-51
Sexual Harassment of Working Women by Catharine A. MacKinnon,
Yale University Press, 1979, 51
Siegel, 26-28
Sioux City, Iowa, 1
Smith, Congressman Howard, 49
Socarras, Michael P., 1
Socialism, 16
Solicitor General to the Post Office Department, 8
Special Division for Appointing Independent Counsels, 19, 36-43
see MacKinnon, George
Spiegel Department Store, 26, 27
St. Paul, Minnesota, 1, 16
Starr, Judge Kenneth W., 34
Stassen, Harold, 2, 8-9, 13, 34
Presidential campaign, 3-5
Statutory interpretation, 17-21
Steptoe and Johnson, 49
Strict constructionism, 16-20
Supreme Court, U.S., 21, 35
Burger, Warren, 14, 15, 20
Clark, Tom C., 21
Scalia, Antonin, 32, 34
Taft, Senator Robert, 3, 4
Taft-Hartley Bill, (Labor Management Relations Act, 61 Stat. 136), 4, 5, 9
Tamm, Judge Edward Allen, 14, 24, 25
Teapot Dome, 43
Tennessee, 10
Test fleet case, (see U.S. v. Hoffa), 10, 11
Thornburgh, Lacy H.., 49
Thye, Senator Edward, 8
Truman, President Harry, 3
U.S. Court of Appeals for the District of Columbia Circuit:
Circuit Judicial Conference, 49-50
Collegiality of court, 32-34
Criticism of courts’ direction, 14, 20-24
Influence of Judges Wright and Bazelon, 23-24
Bazelon, David Lionel, 14, 22-25, 50
Leventhal, Harold, 14, 24, 25, 35
McGowan, Carl, 14, 24, 25
Robb, Roger, 14
Robinson, Spottswood W., III, 24, 50, 51
Starr, Kenneth W., 34
Tamm, Edward Allen, 14, 24, 25
Wilkey, Malcolm R., 14, 24
Wright, James Skelly, 14, 22-25
Judges’ conferences, 32-33
Notable cases:
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977), 50-52
U.S. v. Decoster, 624 F.2d 196 (D.C. Cir. 1979), 22-24
Democratic Central Committee of D.C. v. D.C. Transit System,
459 F.2d 1178 (D.C. Cir. 1972), 35
Durham v. U.S., 214 F.2d 862 (D.C. Cir. 1954), 21
Washington Post v. Tavoulareas, 737 F.2d 1170 (D.C. Cir. 1984), 34-35
Salary of judges, 12
U.S. District Court for the District of Columbia:
Gesell, Gerhard R., 41
Richey, Charles R., 50
Waddy, Joseph, 22, 23
Walsh, Leonard P., 14, 29, 37
U.S. District Court for the Northern District of Illinois, 38
U.S. District Court for the Eastern District of Virginia, 44
U.S. Sentencing Commission, 45
discretion granted by Congress, 46-47
role of Commission, 45-48
U.S. v. Decoster, 624 F.2d 196 (D.C. Cir. 1979), 22-24
U.S. v. Devine, 787 F.2d 1086 (7th Cir. 1968) (Graylord cases), 38
U.S. v. Hiss, 185 F.2d 822 (2nd Cir. 1950), 10-11
U.S. v. Hoffa, 367 F.2d 698 (7th Cir. 1966) (Everglades Hotel Pension fraud case), 9-10
U.S. v. Hoffa, 349 F.2d 2 (6th Cir. 1965) (Test fleet case), 9-10
Waddy, Judge Joseph, 22, 23
Walsh, Lawrence E., 41-42
Walsh, Judge Leonard P., 14, 29, 37
Washington, D.C., 6, 8, 9-10, 12, 28-29, 39
Washington lawyers, 30
Washington Post, The, 22, 34
Washington Post v. Tavoulareas, 737 F.2d 1170 (D.C. Cir. 1984), 34-35
Webb, Dan, 37, 38
Western Conference Medal, 1
Wilkey, Judge Malcolm R., 14, 24
Wilmar, Minnesota, 1
Wisconsin, 4
Woodward, Bob, 34
Wright, Judge James Skelly, 14, 22-25
Yale Law School, 50
Yale University Press, 51