ROGER E. ZUCKERMAN, ESQUIRE 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 ROGER E. ZUCKERMAN, ESQUIRE Interviews conducted by: Eugene B. Granof, Esquire November 12, 2013 January 13 and 23, February 11, April 3, May 22, July 22, September 23, and November 25, 2014 January 21 and April 7, 2015 TABLE OF CONTENTS Preface…………………………………………………………………………………………………………………………. i Oral History Agreements Roger E. Zuckerman …………………………………………………………………………………………. iii Eugene B. Granof………………………………………………………………………………………………..v Oral History Transcript of Interviews: November 12, 2013, First Interview………………………………………………………………………1 January 13, 2014, Second Interview…………………………………………………………………….24 January 23, 2014, Third Interview……………………………………………………………………….46 February 11, 2014, Fourth Interview……………………………………………………………………69 April 3, 2014, Fifth Interview……………………………………………………………………………..97 May 22, 2014, Sixth Interview ………………………………………………………………………….121 July 22, 2014, Seventh Interview……………………………………………………………………….142 September 23, 2014, Eighth Interview ……………………………………………………………….157 November 25, 2014, Ninth Interview …………………………………………………………………176 January 21, 2015, Tenth Interview …………………………………………………………………….200 April 7, 2015, Eleventh Interview………………………………………………………………………223 Index ………………………………………………………………………………………………………………………. A-1 Table of Cases……………………………………………………………………………………………………………B-1 Biographical Sketches Roger E. Zuckerman ………………………………………………………………………………………..C-1 Eugene B. Granof…………………………………………………………………………………………….C-2 Afterword………………………………………………………………………………………………………………… D-1 Postscript…………………………………………………………………………………………………………………. D-2 Appendix: Article by Washington Post reporter Thomas Heath, “Boutique law firm strives to stay small, successful,” from The Washington Post, Capital Business section, Monday, January 11, 2016…………………………………………………………………………………….. D-8 NOTE The following pages record interviews conducted on the dates indicated. The interviews were recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded an opportunity to review and edit the transcript. The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements included herewith. © 2016 Historical Society of the District of Columbia Circuit. All rights reserved. PREFACE The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are trained by the Society. Before donating the oral history to the Society, both the subject of the history and the interviewer have had an opportunity to review and edit the transcripts. Indexed transcripts of the oral histories and related documents are available in the Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the Historical Society of the District of Columbia With the permission of the person being interviewed, oral histories are also available on the Internet through the Society’s Web site, Audio recordings of most interviews, as well as electronic versions of the transcripts, are in the custody of the Society. i iv Schedule A Tape recordings and transcripts resulting from 11 interviews of Roger E. Zuckerman on the following dates: Date & Title Number of Tapes Pages of Transcript November 12, 2013, First Interview 1 (Side A & Part Side B) 1-23 January 13, 2014, Second Interview 1 (Side A & Part Side B) 24-45 January 23, 2014, Third Interview 1 (Side A & Part Side B) 46-68 February 11, 2014, Fourth Interview 2 (3 Sides) 69-96 April 3, 2014, Fifth Interview 2 (3 Sides) 97-120 May 22, 2014, Sixth Interview 2 (3 Sides) 121-141 July 22, 2014, Seventh Interview 1 (2 Sides) 142-156 September 23, 2014, Eighth Interview 2 (3 Sides) 157-175 November 25, 2014, Ninth Interview 2 (3 Sides) 176-199 January 21, 2015, Tenth Interview 2 (3 Sides) 200-222 April 7, 2015, Eleventh Interview 1 (2 Sides) 223-240 The transcripts of the 11 interviews are contained on one computer CD. Schedule A Tape recordings and transcripts resulting from 11 interviews of Roger E. Zuckerman on the following dates: Date & Title Number of Tapes Pages of Transcript November 12, 2013, First Interview 1 (Side A & Part Side B) 1-23 January 13, 2014, Second Interview 1 (Side A & Part Side B) 24-45 January 23, 2014, Third Interview 1 (Side A & Part Side B) 46-68 February 11, 2014, Fourth Interview 2 (3 Sides) 69-96 April 3, 2014, Fifth Interview 2 (3 Sides) 97-120 May 22, 2014, Sixth Interview 2 (3 Sides) 121-141 July 22, 2014, Seventh Interview 1 (2 Sides) 142-156 September 23, 2014, Eighth Interview 2 (3 Sides) 157-175 November 25, 2014, Ninth Interview 2 (3 Sides) 176-199 January 21, 2015, Tenth Interview 2 (3 Sides) 200-222 April 7, 2015, Eleventh Interview 1 (2 Sides) 223-240 The transcripts of the 11 interviews are contained on one computer CD. -1- ORAL HISTORY OF ROGER E. ZUCKERMAN First Interview November 12, 2013 This is the first interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place at Mr. Zuckerman’s office at his law firm, Zuckerman Spaeder in Washington, D.C. on Tuesday, November 12, 2013. Granof: Well, we can begin the interview. Let me start with something that is probably the most important thing in your life and that is your family. So, tell me about your wife, your children, your grandchildren. Zuckerman: My wife is Irene d’Ancona Zuckerman. We have been married for almost fifty years and have been blessed with two children – Laura, who is in her early 40s and Nina, who is three years younger. They are both very accomplished women. Both are lawyers. Laura graduated with honors from Georgetown Law School, and Nina graduated with honors from New York University School of Law. Laura had a successful early career in the law, ending up as a general counsel of a company that was involved forensic investigations and was ultimately purchased by another company. Laura took her equity interest, which was substantial, and essentially retired from the practice of law and entered a career in real estate as a home stager. She is now, I may say proudly, perhaps the preeminent home stager in Montgomery County and has built a very substantial business and works very hard at it. Nina, on leaving law school, joined the Public Defender service where she became an advocate for the rights of young offenders having a variety of legal issues with the school system. She advocates for their participation in various educational programs from which they may have been wrongly barred because of their status as offenders. She is engaged in this worthy effort for a long time now, well over a decade, and is recognized as preeminent in this area. Both of my daughters married lovely men. Laura married Glen Donath, a terrific lawyer and partner at Katten Muchin. He does exactly what I do and 2 we have worked together on cases. Nina’s husband is Adam Isaacson, who is a real estate agent, and a close friend. These four young people have given Irene and me five grandchildren, Annie Isaacson, who is ten at this writing; Owen Isaacson who is eight; Nate Isaacson who is four; Alec Donath who is eight and Evan Donath who is seven. So Irene and I have been blessed with five wonderful grandchildren, two wonderful daughters, two wonderful sons-in-law, and a very vibrant family. Irene and I live relatively close to them all in Potomac, Maryland. Granof: So, you are very lucky that way. Zuckerman: We are. We count our blessings every day. My father, Abraham Zuckerman, died about two years ago at 102 and 1/2 and lived out in Olney. And Irene’s mother died about six or seven months ago at 97 and lived up here on California Street. So, we had a family of some age variance in the extreme, I suppose you could say. Almost 100 years, I guess. Granof: So, it was your father lived till he was – Zuckerman: 102 and 1/2. And it is really he, well, it’s he and my mother who are the genesis of the Zuckerman presence in Washington, D.C. My dad, it’s a good way to work into it? Granof: Yes, I was going to ask you because I know we had talked in the introductory session and you were telling me about your dad and how he got to D.C. Zuckerman: Let me go back further and set the scene this way. My father was a civil engineer and came to the District in about 1944 or 1945, right after World War II and worked at the Navy Yard, what was then the Navy Yard. He had put himself through school; first, in New York at Cooper Union, which was a tuition-free school that you could attend in the city, and then he took another degree from NYU. He worked for the Chanin Construction Company in New York doing civil engineering. He took a vacation to Florida, saw this beautiful 3 woman who was actually an inch or two taller than he standing by a car, spoke with her and the two of them ultimately got engaged, got married and she was Frances to his Abe and they were my parents. Granof: What year? Zuckerman: It was the late thirties. The late thirties and both of them were well into their thirties when they got married. One of the oddities is – I actually think this is true – and I don’t think my father would mind me saying it. One of the oddities and it may have been more characteristic of that time than this, after they spent some time together on that Florida sojourn where they met each other, they corresponded with one another by letter. My dad in the late 30s had gone to Puerto Rico to work. He built a post office in Puerto Rico and my mother was in Washington, D.C. working. So, the normal sort of dating protocol that you engaged in was really done over the mails. They saw each other in Miami, they felt they would make a fine pair, they corresponded, he asked her to marry him in the mail, they got together and they got married. They were happily married for 40 or 50 years. Granof: That’s an extraordinary story. Zuckerman: Very bizarre in this day and age. He was a civil engineer, he came to the City, his claim to fame before he came to the City was that he was the supervising engineer on the post office that still stands in San Juan. So, we’ve been to San Juan a few times and looked at the post office that he helped to build. And when he came to D.C. after serving in the Navy in World War II, one of his early jobs was to be a supervising engineer on two large hangars that you see when you approach National Airport. For a time, they were the U.S. Air Terminal probably ten or fifteen years ago. But they’re still standing. They were probably built in 1944 or 1945. I am always reminded of Dad when I drive to the airport and see those two large hangars. But he came to town with my mother. I was born and lived as young fellow – a baby really – with my 4 folks when my dad was stationed at the Sampson Naval Base in Sampson, New York, which was essentially a place for engineers. Granof: I’m trying to remember where that is. Is that upstate? Zuckerman: It’s in the Finger Lakes area – right next to Lake Seneca. Granof: Around Rome? Zuckerman: Yes. It is northwest of Ithaca, and southeast of Rochester and southwest of Syracuse. But it was a large World War II facility – Dad was stationed there. I was probably one or two at the time and have essentially very little memory of it. My early memories of D.C. are memories of my early years in Southeast Washington. Southeast Washington in the mid-40s was, I suppose, like Prince George’s County or Silver Spring in the 1990s. It was a place where you had a lot of young married couples who left the service and were looking for inexpensive housing and we lived – I’ll never forget this – we lived at 2902 Erie Street. And Dad worked for the Navy Department and Mom was a homemaker, and I have in the last year visited the apartment. I did not go inside but I visited the apartment. It’s still there. Naylor Gardens, to my eye, is still a very nice place. It has had some issues, but it is still basically very, very, very nice. Granof: So, you’re a Washingtonian? Your dad was a New Yorker, at least originally? Zuckerman: Yes. Dad was a New Yorker. I was actually born November 3, 1942, at Doctors Hospital. Which if you’ve been in town for a while, you may remember was at 18th & K until the 60s or early 70s. Granof: I do remember. Zuckerman: And I have always regarded it as an odd mark of how far I’ve not come in life over the last forty years in a venue that is about four blocks literally from where I first opened my eyes and took my first breath which, I think, is rather 5 odd. But I consider myself somebody who grew up in Southeast; loved the City, went to Stanton Elementary School, and had, I think, a very unremarkable childhood as the son of a Depression Era couple that were struggling to make it into the middle class, and had relocated essentially from New York to D.C. Granof: I am curious about – did you have any relationship with grandparents? Because when I grew up in New York, I was surrounded by the immigrant generation essentially. Zuckerman: Yes, my father’s father, Barnett, died at 66. His son Abraham, my dad, lived to be 102. So, it’s sort of hard to figure genetics there. But I had no relationship with either my dad’s father or my dad’s mother, Anna, both of whom died relatively young. My mother’s father, Adolf, was a tailor and had come from Albany after Mom and her sister, Sydney Gold – more about Sydney later – had relocated as young women to D.C. Mom worked in the Commerce Department. Sydney worked – I couldn’t begin to tell you. And my grandparents lived at 5801 5th Street – 5th and Nicholson – in one of the row houses up in that Coolidge High School neighborhood from the 50s onward. I had a pretty nice relationship with my grandmother Anna in particular. My grandfather died relatively young. It was a relationship that I remember, probably not intense, but it was a relationship that I remember. Granof: Were your grandparents immigrants? Zuckerman: All four of my grandparents were immigrants. All four came from the Pale of Settlement, I think, between Poland and Russia that housed millions of Jews at the turn of the century. My mother’s father left in his early 20s. He was a tailor in the Russian Army and purportedly had the best fitting uniform in the entire army. That was the family lore. They wanted to re-conscript him for yet another term and he said, “I’m not having any of that,” and came to this country, I think, easily or at least without great difficulty as you could do at 6 that time, and went through Castle Garden (not Ellis Island) and ended up in Albany where he was tailor and had a tailor shop. Later, he was a tailor down here. I have primal memories of him getting into a dispute with the man for whom he worked and going into Small Claims Court to sue him. I was six or eight years old in the late 40s and my mother and I went to Smalls Claims Court with him. I know the building down at the courthouse complex where all of this occurred in about 1948 or 1949 and I have these primal sensations every time I see the building. Granof: So you were six or seven years old at that time. Zuckerman: I was very young but I remember accompanying my mother and my grandfather in court at that point. We moved to Silver Spring in 1951. A bit about my father’s career which is a little informative because it tells you something about me. Dad took a job with a then-fledgling Washington construction company operated by a man whom I knew only as Charlie Smith, and Dad was essentially as an engineer who would go on site and actually supervise the construction of buildings. Dad was Charlie’s right-hand man in the late 40s. I would go to the office sometimes with Dad on the weekends and I have these, again, primal memories of actually visiting this office that was the business home to Charlie Smith, also known as Charles E. Smith, who became essentially the largest builder in the Washington area during the 70s and 80s. Granof: I always remembered him as a major real estate developer. Zuckerman: Yes, he was a huge developer. Developed Rossyln. Dad left in 1951. I have again very vivid memories of this. I think he had done well with Mr. Smith, but Dad wanted to go out on his own and he wanted to be his own boss. By the early 50s he was over forty. And at about that time, Robert Smith (Bob) (who was Charlie’s son and for whom the Robert Smith School of Business at the University of Maryland is now named because it was endowed by the 7 Smith family); Robert Smith came out of the University of Maryland and went to work for Charlie, when Robert was probably twenty-one. And Dad said, “You know, it’s enough. I’m going to go out on my own. I’m not going to hang around. I’m always going to be second fiddle to the kid. I want to be on my own.” And Dad turned out to be a developer in his own right and probably forswore a substantial opportunity by leaving Charlie when he did and going out on his own. At least in retrospect that was the family’s perception. But it was important to him to be on his own and to be his own boss. Granof: It also I suppose was not entirely foreseeable. Zuckerman: No, it was not foreseeable at all, but it did not stop my wife from – I’m exaggerating here – shedding a tear now and then if Dad had hung around and been the number 2 or 3 or 5 person in the Smith conglomerate. Granof: Yes, I guess he went on to be one of the extraordinarily wealthy. Zuckerman: The Smith business became extremely successful. Dad was a developer. He developed some apartments in D.C. But of competent, middling success, but nothing more. Granof: Did your mother work at all? Zuckerman: No, Mom was a stay-at-home mom. We left Southeast in 1951 and went to Silver Spring. Dad had built a house at Colesville Road and Bruce Drive, right where the Beltway now intersects Colesville Road. It’s there that Dad lived from 1951 until the mid-90s. Really until he was quite old. And it’s there that I went to Parkside Elementary School and Montgomery Hills Junior High School – both of which are closed now – then went on to Montgomery Blair from which I graduated in 1960 with a fine group of friends who were very influential on my young life, I think. Granof: I’ll get to that in a moment. First, I want to ask you if you have any brothers or 8 sisters. Zuckerman: I have a sister, Jane, who is nine years younger than I, who followed in my footsteps and became a lawyer and is working as an administrator for a firm called Schnader Harrison Segal & Lewis, LLP, in Philadelphia. She is married to John Makransky, a wonderful guy, who was for a long time an insurance agent and has now branched out. They have a wonderful son, Matt, my nephew, who is probably 23 or 24. Granof: There is a big age gap between you and your sister – nine years. Zuckerman: Yes, nine years. We were close for a while and then as happens when there is a nine-year difference, particularly when I went away to school and came back and got married, I suppose, we were not as close. I’d like to think, at least, that we’re very close now. It’s a very special relationship. Granof: Tell me about your influential friends in high school. The ones that influenced you anyway. Zuckerman: This is so far not the stuff of a really interesting movie. I think my life was a very ordinary life. I loved sports. I played sports. I was pretty good but not great and I went to a 2,000-student high school. I did not play on any varsity teams. I think I was a very bright person, but not a rigorous student, and I hung around with four or five boys who were very bright and much more committed than I. They went off to very fine schools. They went to Yale, Oberlin, Haverford and Cornell and places like that. Irene, I think, would want me to say this because she regards it as rather odd in my life and my upbringing. I received no parental guidance when it came to applying to college. To the extent that I relied on anybody, I relied on the college counselors at Blair. Granof: And what year was this? 9 Zuckerman: 1959 through 1960. Granof: But that was much more typical. Today, parents get so involved. Zuckerman: Well, my wife had some parental guidance. She graduated from high school in 1963. I had none. I fancied myself Ivy League material and I think I applied to Amherst and a bunch of schools like that and was rejected everywhere. I do remember I was wait-listed at Rutgers. I had absolutely no idea what I was going to do but I heard of this thing called the College Clearinghouse, where if you had pretty good board scores and good grades, and I applied and got a thousand acceptances from a bunch of somewhat lesser schools. I asked around and I had a friend who said you can apply late, there are a couple of really good state universities – the University of North Carolina and there is Wisconsin – and they’re very good state schools and you might want to apply there. I applied to both. I got into both. My buddy was going to Wisconsin and so I basically flipped a coin and said I will go to Wisconsin. My folks put me on the train at the old B&O station in Silver Spring in the fall of 1960. I did not have a room at Wisconsin. I had to find a room. I had a duffle bag and a trunk and took the train with my buddy to Wisconsin. Again, my wife finds it astounding that I was not driven to the school with parents supervising, unpacking, and the like. Certainly from my parents’ experience, my dad in particular, he handled his life on his own in his college years and I have the memory of pretty much doing the same thing. I always felt that I was as bright as my friends; but I had not studied as they had, and two of them ended up doing either law school or graduate work at Yale, two of them ended up at Harvard, one as a Harvard physics student and one in the law school. And I vowed when I went to Wisconsin, I would not be second to any of them. So I ended up at Harvard Law School with the two of my buddies who as well had gotten there. And I always felt that the experience of having underperformed in high school, having friends who had performed well and earned the fruits of their success, made me a more competitive person and made me a more driven person when I went to Wisconsin. And I was a much better student there and 10 performed at a much higher level there. Granof: So, in high school, what did you like to do? You said you like sports. Zuckerman: My junior high school and high school years, again, with all apologies to Hollywood and script writers, I think in retrospect were really unremarkable. I was extremely shy with girls. I didn’t date. I hung around with the guys. I played intramural sports and sandlot sports and had a complete succession of odd jobs, had no particular hobbies to speak of and was marginally responsible, but not in any respect driven, distinguished or focused. And I was not pushed by my parents in that sense. I lived a very basic, average middleclass existence that was devoid of failure. It was devoid of significant achievement. I was on the surface pleasantly social. To the extent I had any inclination, I was very interested in student government and ran for a variety of offices and positions; some of which I won and some of which I didn’t win. As I look back, I don’t see that part of my life up until the time I was seventeen as being particularly interesting or distinguished. A very formative influence on me was my aunt. My aunt (Sydney Gold) and my uncle (Oscar Gold) were my mother’s sister and brother. Oscar was a working man and worked on the loading dock at the old Hecht’s warehouse for many long years. I think of him as I drive out New York Avenue to this day. The building is still there although it’s going to be refurbished as condos. Sydney was an unusual woman and, in the story of my life she deserves much mention. She was the last of three siblings to die. She probably died six or eight years ago. She was a very good student and did not attend college, but went directly to – I don’t know whether it was called the Washington College of Law back then – she went to American University Law School as you could do in the old days without having to go to college. Judge Sirica did it. John Sirica and Tom Flannery, Judge Flannery, two local judges of some note, went only to law school. She was one of the few women in her class. She graduated. I don’t know whether she passed the bar or not. But she was a very sophisticated thinker and a sophisticated person who went on to have a long career – first 11 working for the Democratic Party. She worked for Paul Butler, who was the chairman of the Democratic Party, in the 50s, and then went on to work in a succession of government jobs. She had a lifelong interest in politics and she was an influence on me because, as I think back to my teenage days hanging out as it were, I was not so much taken with my dad’s engineering focus, I was very much taken with Sydney’s view of politics and I think probably more so than I recognized. At the time my aunt’s political interests, leanings, and discussions, directed me toward becoming a political science major at Wisconsin and ultimately to becoming a lawyer. The one thing that I remember – and I must tell you I am proud of and I am inserting, by fiat, in this oral history – is that there was an evening again in my kind of bored teenage state when I had nothing to do and began reading. I would read the World Book back in the old days and just flip through the World Book. I was also reading one of my dad’s engineering texts that had “pi” written to probably the first-thousand or five-thousand places. And I said I wonder how much of that I can memorize. Now, the Guinness Book of World Records has people who have done it into the thousands. I did manage to memorize, just sitting there, using what I think was a very fertile mind that was unsullied at that point by the erosion that comes with alcohol and age, I managed to memorize the first hundred places, seemingly to me, without much difficulty. And to this day, as a parlor trick I can do “pi” to the twentieth place. To that extent, my father’s engineering background was an influence on me, but not much. Granof: I can do it to five places only because that was our high school cheer. 3.14159. Zuckerman: 3.14159265358979323846. It’s like a phone number or anything like that. Granof: That’s right. A sport’s score. Zuckerman: A sport’s score. But I don’t really look back on my youth as a time either of extraordinary success or extraordinary deprivation. I think it was remarkable 12 in the degree to which I had a difficult time dating. I went to the dances and events that were required, but for some reason it was not a set of relationships that came easily to me. Very bizarre. Notwithstanding the fact that I was a friendly person and moderately, I think, popular. Granof: And certainly from your personality as far as I can tell now you’re outgoing. No one would call you an introvert. Zuckerman: I am not sure but that I wasn’t more introverted than extroverted. And there came a point in my life, or there was a process in my life, where I kind of visualized what I wanted to be and how I wanted to be and tried to remake myself in those images. And I think thematically that as a mentor and a wise and old observer of life, my message to younger people is you can be not simply whatever you want to be, but you can be in a very fundamental personal sense, you can be whoever you want to be. You can really reinvent yourself in whatever form, whatever fashion you desire and you are not restricted by your chemical make-up, your genes, your personality type or other things that you might ordinarily think require that you go down Path A as opposed to Path B. Granof: When did you come to this realization? How old were you? Zuckerman: Well, I was more extroverted but still not perfect in college. I was very active in student politics. I was chairman of the Campus Political Party. I was the treasurer of the Student Government. I did a lot of that stuff. I was still not perfectly formed so there were periods in my life when if you had encountered me in a social setting, you would have said he’s an outgoing extroverted guy. If you had looked at my insides during that period, you might have concluded he’s under a lot of stress right now and this is all an act! And that tension – this was a big part of my existence – manifested itself in a couple of respects. The first is when I went off to Harvard in the fall of 1960, not knowing what I wanted – 13 Granof: So you were in college from 1956 – Zuckerman: No, no the fall of 1964. Granof: So you were in college from 1960 to 1964? Zuckerman: If you had observed me, you would have said, gee, he’s an outgoing person, he did very well at Wisconsin, he seemed to be a student leader, he seemed to have a pretty aggressive way about him, but if you would have looked inside, you probably would have concluded that that was not quite so natural as it might be to others and it was the beginning of a personality type that I wanted to be but it probably was not completely authentic. And it manifested itself in the fact that in the fall of 1960 when I went off to Harvard. Granof: 1960? Zuckerman: 1964, I’m sorry. I developed ulcerative colitis which was an ulceration of the bowel and the colon. It can be very serious. Granof: Was this as a first year student? Zuckerman: As a first year student. I had actually got it – I spent the summer of 1960 in San Francisco, came back, had all the symptoms – Granof: You mean 1964, the summer of 1964? Zuckerman: 1964. Had all the symptoms. That was diagnosed, started medication, went off to Harvard, worked like a dog, spent a week that year in Beth Israel Hospital, did very well my first year, but had this affliction that was in some sense produced, I think, by stress or tension or something going on inside me. Part of it is genetic, I think. Granof: Part of it is the first year of Harvard Law School. Zuckerman: Yes. But I had it for nine or ten years. It went away on its own. My wife is 14 very responsible for suggesting to me that there was – not a psychosomatic element – but it was very dependent on your mood and attitude. If you controlled your mood and attitude, you simply wouldn’t have the symptoms. The common symptoms were diarrhea and bleeding. When I got out of law school and went to work for the U.S. Attorney’s Office, I would take the bus from Van Ness North (the Van Ness Apartments) down Connecticut Avenue and then down to the Courthouse (the U.S. Courthouse), and I worked in the U.S. Attorney’s Office – I’ll get to that – and I knew every public restroom between Van Ness North and the Courthouse, which is a common aspect of the disease. I knew every office restroom, I knew every gas station restroom, because you simply had to go to the bathroom. And here I was presenting myself to the U.S. Attorney David Bress in 1967 as a trial lawyer, who is going to get into the courtroom and mix it up for hours on end, and I couldn’t make it to the office without running for a bathroom. And the oddity is that in all the time I tried a bunch of cases (long trials, argued cases in the Circuit Court of Appeals) – all that I had to deal with – it never bothered me once when I got on my feet. But I say that to you because I think that feature of my youth was kind of a physical manifestation of the stress that is created as I attempted to kind of remake what was a quiet personality into something that was a little bit more assertive and aggressive and the like. That is manifestation number one. Manifestation number two is: (if Irene were here and she were on this, she would describe instances as follows) I found myself in social settings where I was completely one-hundred percent flummoxed, where this ostensibly convivial, jovial, confident personality that I had strived very hard to concoct simply could not be mastered, couldn’t be used and I reverted to an older style which was much more introverted and much more illat-ease. Granof: But in college. First of all, were you intellectually turned on in college? Zuckerman: Yes. It was a great. Wisconsin was a great experience for me. Where did you 15 do your undergraduate? Granof: Hamilton College. Zuckerman: Yes. It was great for me, because it was the equivalent of hitting in maybe Double or Triple A baseball. I wasn’t ready for Amherst. I wasn’t ready for that kind of school. But I was smart and I was very driven. I worked seven days a week; I worked late at night and I loved my classes at Wisconsin. I could excel; I was rewarded; I could see if I worked hard for four years, it would be a life-changing event; and intellectually, it was incredibly stimulating. And the feature of my life I think that I am most proud of, Gene, is that from September of my first year in college through the end of my first year at Harvard, I really did nothing to speak of but work. I worked like a dog for five straight years. That means working Friday night, Saturday night, and Sunday night studying – saying to myself, “I’m bright enough, but if I work harder than the next guy I will achieve something. Relatively speaking, I was very successful for those five years. And it was transformative. In the main, I remember my college years and my first year at Harvard. Not my second and third. I quit and played cards my second and third year. I thought I could skate by because I figured out the system. But for five years I worked like a dog, and I think it was transformative in that it made me a much more sophisticated thinker and a much better thinker, speaker, and was the most transformative period in my life. Those five years. Granof: But to be in student government at the level you were at, certainly in a big school run for the head of student government, means you were devoting a reasonable amount of time to that. Zuckerman: Yes, I was. Granof: When did you decide to do that? Your first year, second year? Zuckerman: I always had the bug in high school. I always had this vision – it’s bizarre. I 16 had this vision that I wanted to be perceived as a leader. I didn’t have the gravitas, the sophistication, the athletic ability to get as far as I wanted to get, but to the extent there was anything that was animating me, it was this desire to be an officer, a president of this, that. And I think probably at the end of the day this motivation to lead was an animating feature in my law practice. That’s the way I would put it. It did not take away from what I envisioned as – and what I still envision – as this bizarre sense that I have that my life is really a function of adhering to the Protestant work ethic. That I am not entitled to whatever the benefits are of my life unless I have sacrificed and gone through pain. You could psychoanalyze me I think in that sense. But I have no right to feel as if I am entitled to anything unless I have gone through a lot of deprivation. Granof: It doesn’t come easy to you. It’s not as if you were an absolute natural and did it effortlessly. Zuckerman: One-hundred percent right. It is a sense that if I’m not working and if I’m not suffering, I have no right to expect that come Monday morning or Tuesday morning that good things are going to happen to me. I still suffer when I try cases. They’re not the most pleasant period of time for me. I have been in trials that have lasted as long as nine months. There is a lot of tension and a lot of worry and a lot of difficulty. There is an addictive quality – it’s bizarre – it’s different for everybody. There is an addictive quality for me because it feels so good when the case is over. Some trial lawyers who are naturals will say I’m really bummed. I loved the last month standing up in front of the court and jury and doing my closings and whatever – is really great – Granof: Like your client F. Lee Bailey? Zuckerman: Yes. And they love the experience. I revel in meeting the challenge of doing it. But for me when it’s over, that’s the exhilaration. It’s the fact that that was a very high mountain, it was a very hard mountain to climb and is very painful. 17 Granof: So, you were talking about what it was like to be in trials and how you felt. Zuckerman: Yes, and again, for those who listen to this and are looking for a theme, the theme is that I visualize myself as self-made or self-created, not quite in the normal sense, but in the sense that I had an idea of what I wanted to do; it didn’t quite fit with my personality and I tried to reconfigure my personality and my approach so that it was what I wanted it to be and it worked pretty well. It probably took its toll on me. There are still probably from time to time holes or cracks in the façade. But it was not a completely natural thing for me to be a trial lawyer. It was not a completely natural thing for me to try to imagine how one would have a law firm. It certainly wasn’t natural thing for me to represent people like F. Lee Bailey. I always remember – because I think it’s indicative of that – my dad in his later years, he was well into his nineties when he would say this to me, “You know, I never thought you would be a trial lawyer.” And what he meant to say was – “You were not really all that effusive a kid – never occurred to me that you would end up as a trial lawyer.” Granof: Well, you know, from what you tell me, someone looking at it from the outside, I have to say, I’m a little bit skeptical only because when you say even in high school you were interested in running for positions in student government. And then when you get to college, you really as you put it and I’ll ask you about it later, just barely missed being head of student government at a major public university. And that does not fit with a retiring personality. This is someone who clearly has the skills and ability to deal with people in an outgoing way. Zuckerman: Maybe. I mean this is a terrible analogy – but I think there are from time to time people in public life who are in public life to overcome a sense of shyness or difficulty with people. Granof: Richard Nixon. 18 Zuckerman: Yes, Nixon. There are from time to time people for whom this is a mountain to be climbed because that’s the way they want to be and it’s just not natural to them. And I think there are probably other examples of really worthy people who had worthy careers, but Nixon always stood out in my mind as somebody who kind of remade himself and felt that he had to take a path that was not natural to him. Granof: Maybe. But my sense is that you probably, unlike Nixon who really did not have great interpersonal skills, I mean in turn people who – Zuckerman: That’s fair. Granof: That’s not true of you. Zuckerman: Well, you’re just looking at circa 2013 Roger. Okay? Granof: Sure. Zuckerman: If you looked at circa 1960 Roger or 1965 Roger, you wouldn’t quite see the same thing. That’s the only way I can put it. It probably was there in some respects. Granof: Well sure, but we all change. I mean you know that’s – Zuckerman: But again, my mantra, in my view, is that you pretty much could be whatever you want to be in terms of how you approach the world and my life to some degree carries that lesson with it. I guess that’s what – Granof: But you’re really not suggesting you can be a Zelig. Zuckerman: No, but I can tell you that I’ve come across – chameleon might be better, okay. I’ve come across – I’m not going to name them – but I’ve come across people in my life whose affect, who presented themselves to the world in a certain way and I am sure that consciously or subconsciously I’ve tried to copy that. I think that’s actually characteristic of people who are trial lawyers. You look at 19 somebody who is trying a case; you say that’s a terrible style. I would never do that, and then you find somebody else who is very good and much as a doctor says, gee, I like the way that guy did that operation, got to move my hands differently and try this approach. You’re a trial lawyer, you’re basically trying to emulate personality styles and traits and affects and tricks. And I think probably it’s a more chameleon-like profession than dentistry or accounting or something like that. Granof: Maybe. But wouldn’t you say that’s true, up to a point, that is, you can see someone performing in the courtroom and you could say that’s great for him. It really works for him, but will never work for me. Zuckerman: A hundred percent, hundred percent. There are limitations to how much you can veer hither or yon, to left or right, but still I do think that people whose job is to persuade – could be a salesman too. I mean a lawyer is basically a salesman – trial lawyer. Spent a lot of time analyzing their own effect on people and how to change it and how to make it better and how to be different. The ones I think who are successful are not necessarily the ones who are naturals, but they are the ones who can role play and act and change themselves that way. I was never ever interested in and probably never could have engaged in thespian-type activities. Not an actor. Had no desire to do it. Didn’t seem natural or authentic to my personality. I met Irene my second year in law school. Granof: Where was she? Zuckerman: She was attending Tufts. She was an occupational therapist in training at Tufts. A beautiful woman and an absolutely obsessive caregiver. And if I may say this, it was, for me, love at first sight. We were fixed up on a blind date. We met in front of the Harvard Coop. It was an absolute certainty by the time the date was over that I was going to marry her. And I think something like that she felt, and our relationship I am convinced was unique. I don’t 20 know if I consciously did this, but there are two aspects of the relationship that I think were unique. One, I never asked her to marry me. It was always a question of when we were going to get married not whether. There was never a signal moment when I proposed. That’s a good thing, I think, a neat thing. Two, the not-neat-thing is I never bought her an engagement ring, which I thought was indicative of my practicality. I didn’t have any money. I thought it was basically a waste of money on a bauble. In retrospect, I wouldn’t do it that way. And her mother ended up giving her a pearl ring or something that she could call an engagement ring. It set me back a long ways with her mother. The third thing, Gene, we laugh about this all the time. Apart from not proposing – apart from not giving her an engagement ring, I didn’t have any money, I was eager to get to the U.S. Attorney’s Office. We had an apartment in D.C. We got married at her house in Woodmere, Long Island. She said, “Where are we going on the honeymoon?” and I said, “I’ve got a great place in Ocean City, Maryland.” She had no idea what it was. We went to one of these motels on about 50th Street in Ocean City, right near Anthony’s. There’s an Italian restaurant near there. She stayed for a day or two and said, “This is just horrible. Let’s go back to D.C.” Granof: So, you got married after law school? Zuckerman: Got married after law school, lived in Van Ness North. A lot of other great young couples, and started at a dream job in the U.S. Attorney’s Office in the summer of 1967 in a very unique position. Traditionally, Assistant U.S. Attorneys are hired after clerkships or indeed now after they have spent three or four years in the outside world. And David Bress, who was then the U.S. Attorney and was a Harvard graduate, came to Harvard and interviewed law students who were soon to graduate. He hired two members of the “Class of 1967” to start immediately in the U.S. Attorney’s Office, of all things, to be an intern or clerk for nine months. Then you got an appointment as an Assistant U.S. Attorney. He hired me and Reid Chambers who became a very successful Native American Indian rights lawyer. We began right out of law 21 school in the U.S. Attorney’s Office, which is, I think, an absolute rarity. Granof: It certainly is. Zuckerman: And it was a time in the life of that office of sociological change. It was a period in the late 1960s when the career prosecutors, who were talented and wonderful people, were slowly being supplanted by a much younger Ivy League-educated group that turned out to be incredibly talented and turned out to really be the foundation, in many respects, of the trial bar in the City for the next forty years. Granof: But the U.S. Attorney’s Office has two sides to it. One was the criminal side of prosecutors but there was a whole civil side to it. Zuckerman: But this is the side that counted. When I was there it was the criminal side, because it really is where you got to try cases in front of jurors. So there may have been 50 lawyers when I started and maybe 60 or 80 when I finished. The idea was to go to get jury trials, to learn what it was like to win cases, to lose cases, and to work with the cops. As formative as the five years were that I described to you earlier, my last two years at Harvard, as I have said and I confess for the record here, I played cards, skipped class and felt that I learned everything I needed to know – certainly by the end of the second year. I am still of the view that law school should be two years not three. Granof: Certainly at that point Harvard was not giving much – almost no experience – in terms of practical skills to be a trial lawyer. Zuckerman: No, there wasn’t anything I felt I was getting out of the school. Granof: They never taught you how to take a deposition. Zuckerman: No, no, it was different. The three or four years that I was in the U.S. Attorney’s Office were for me – had the same compelling quality – lifetime compelling quality – that you find when you talked to people who have been in 22 the Marine Corps. It’s just an experience that is so different and so intense and so challenging at times and so worthy at times that you never lose hold of it. Granof: I think that is a very common theme. I haven’t met anyone who served in the U.S. Attorney’s Office who hasn’t echoed exactly that sentiment. Zuckerman: And it’s appropriate – we can sort finish on this note – it’s appropriate I am saying this to you today because on Thursday we are giving the Fifth Annual Flannery Lecture, which is a lecture series that many of us who served under David Bress’ successor, Tom Flannery, put together in his memory. This year we are having Mary Jo White as our principal speaker. We’ve had Justice Scalia and others. But it’s akin to the old regiment trying to get together and stay together and memorialize the memories and the person who was our leader at this incredibly formative time, when we were basically young pups just learning what it meant to be a lawyer. It was a very, very special time. Granof: Were you in a fraternity when you were at Wisconsin? Zuckerman: I was a member of Alpha Epsilon Pi for two years. I then decided it really wasn’t for me. I was actually living with the president at the time in an apartment. There were three of us. Two of us had gone to see a movie about jewel thieves and it gave us the idea that what we would do is break into the storeroom – the food storeroom at the fraternity house – and create a secret panel, sawing out a panel of the door such that we could get in and take food without being caught. There is nothing to steal except 10 gallon cans of tomato soup or whatever. We did that and some of the brothers were upset by the prank. Granof: You mean it came out? Zuckerman: It came out. Yes, our jewel thief skills were not really very good. I remained very close to my fraternity, but I decided I really wanted a more heterogeneous, diverse environment and had always really operated outside 23 that. I had a meal job for three years and was a dishwasher in the Alpha Epsilon Phi sorority house and washed dishes and made a lot of good friends that way. A lot of friends and I had a really nice life there. I thought it unorthodox in terms of the scrapes that I got in. I suppose it always gave me the feeling that it’s pretty easy to get – a lot easier than you think – to get yourself in a bad spot. It’s a lot easier than you think and you have to be very careful. Granof: Well it’s a good place to conclude the first interview. We’ve covered a lot here. So thank you. 24 ORAL HISTORY OF ROGER E. ZUCKERMAN Second Interview January 13, 2014 This is the second interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in Mr. Zuckerman’s office at the law firm of Zuckerman Spaeder in the District of Columbia on Monday, January 13, 2014 at 2:30 p.m. Granof: Okay, I think just to go along back on the record here, I think last time we talked about your college career which you, I think, described as not particularly spectacular, but I thought it was more spectacular than you characterized it. But at some point you decided you wanted to go to law school. Zuckerman: Yes. I would say my college career was notable for the high grades I got and the extracurricular activities I engaged in. And in a sense I’m reprising a little bit the college aspect of this that I found myself as a student. I was a good, but not unusually able, student in high school, but I was an exceptionally studious and responsible student in college, and it made a great difference in my life. I graduated from Wisconsin in the early summer of 1964 and had been accepted to Harvard and Chicago and wait-listed at Yale, and picked Harvard and then spent the summer of 1964 in a job that actually served me well in my later years. I was a process server in San Francisco and learned the basics of tracking people down and serving them with legal papers – and in perhaps an understandable and perhaps an odd way – the lengths to which people would go to avoid service. And they were people of all stripes – regular, legitimate, suit-and-tie-wearing, business people. I would appear at their door and announce myself as a process server, ask for Mr. Wilson or Mr. Jones. I would be told with a great deal of sincerity that they weren’t home and then just hang around and see them leave the house an hour or two thereafter. It was extraordinarily surprising to me. Many a service I accomplished by the triedand-true method of flipping the legal paper at the unwilling recipient. The law then being, or at least as I understood it as a 21-year-old kid, that if you 25 effected service, and the person understood it was a legal paper, and declined to take it, that constituted service. So, I would say, “This is for you.” They would hold their hands up, I would say, “Here – Boink, ” try to hit him with it, “You’re served,” go back to the office, fill out my affidavit that I had accomplished service and go on to my next task. The only bad feature of the job really, I think we got paid something like, I’m guessing, two bucks a job or something and the amount of shoe leather that was required to track these people down, give them their papers and the like was such that the job was not very remunerative. Granof: I want to ask you why you decided to become a lawyer, but this summer job – before I get to that – this is interesting. How did you happen to get a job? How did you end up in San Francisco? Zuckerman: The trips that kids now take in between is the off-year trip or the summer trip following graduation. Back in those days the trips then were much more modest. I didn’t go to Europe. I went to San Francisco to see the world. Nowadays, kids take off six months or a year and they’ll slog around Europe. But I went there and I knocked on doors. I actually remember the name. I actually had the card, ABC Legal Process, was what it was called, and I supported myself modestly for a couple of months in San Francisco as a process server. It was interesting and eye-opening. Granof: Had you been to San Francisco before? Zuckerman: I think it was probably the first time I had seen the city. It was absolutely breathtaking, beautiful. But for the fact that I had and have so many of my family on the East Coast, I think I would have considered relocating to San Francisco after law school. But it made no sense. Granof: I can sympathize with that. I had exactly the same reaction when I first saw San Francisco. 26 Zuckerman: I came back from San Francisco and without making this memoir too personal, I will reflect a bit on my physical and my medical condition. Because it’s really part of my life, if not directly part of my career. But I came back from San Francisco in the late summer of 1964 and had developed an inflammatory bowel condition that was diagnosed as ulcerative colitis, which is not an unserious – could be an immunosuppressive disorder or could be an ulcerative condition – but not an unserious thing. It was something that I dealt with from the summer of my 21st year, probably until I was in my early thirties. I had it and was hospitalized twice for it in law school. And I had it as a young prosecutor and a trial attorney and the like. I have been symptom-free and basically cured probably for forty years. But it’s a daunting thing for a young fellow to have and a daunting thing for a trial lawyer to have because the principal symptom of the disease is that you frequently get diarrhea and you have to run to the bathroom. Although I was on medication in law school and I was on medication in the U.S. Attorney’s Office, it was an extraordinary thing to have when you were in court trying cases to a jury. I think the condition and a lot of the symptoms were essentially mental. You’re almost phobic. I was always pleased that it never ever bothered me when I was in court. Never bothered me when I was trying a case. But I knew every bathroom between Van Ness North, where Irene and I moved after law school, and the U.S. Attorney’s Office. It’s the nature of the disease. You get on the bus and all of a sudden you have to go to the bathroom, you get off, find a gas station, go to the bathroom, and get back on the bus. Sometimes you get off the bus again. It’s an extraordinary thing. Granof: I have heard that stress plays a role in that disease. You would know more about that than I would. Is stress a problem? Zuckerman: I don’t know. I truly don’t know. As I say, the psychology of it – the way in which your brain reacts to it – is probably a big part of the symptoms, if not the disease. When you get anxious, you begin looking for a bathroom. But somehow I got myself to a point where I understood, perhaps subconsciously, 27 Rog, “You’re in court now, grow up and try your case and stop worrying about this stuff.” I had a lot of hard trials and a lot of long trials, and it never ever bothered me when I was in the courtroom. Granof: But, you must have had a tremendous amount of self-confidence with that kind of medical problem which you knew could disrupt trying cases and interviews with witnesses, and nonetheless to say I want to be a trial lawyer. Zuckerman: You know, Gene, when we’re looking back from the perspective of forty or fifty years, my reaction is what choice did I have? Granof: You could have been an estates lawyer. Zuckerman: No, I had – we’ll get back to that but I’ll tell you how my career unfolded. I never felt that it was defining in that sense and always felt that, by hook or crook, I would deal with it and live the kind of life I felt I wanted to live. Granof: But since we’re on the medical – the idea that you were cured after ten years. Zuckerman: Yes, it’s about ten. Granof: Do you have any reason for it? Zuckerman: Cured to the point where I must say where there is, in the colonoscopies I get now, there is no evidence of it and doctors will ask me if I may have been misdiagnosed. “Are you sure you had ulcerative colitis?” To which my response is, “you better believe I’m sure.” I have no idea. I think a lot of – in my case – a lot of it was, with the help of my wife, overcoming the anxiety that it caused and getting control of certain kind of emotion and calming myself. I was probably an early practitioner of some sort of biofeedback and got, I think, to become rather adept at utilizing biofeedback, and I think that made a difference. Granof: What do your doctors say about it? I guess you were seeing 28 gastroenterologists. Zuckerman: No, no I haven’t seen – Granof: No, but at the time? Zuckerman: At the time I went to the famed Irving Brick at Georgetown University. He was a dean of gastroenterology and at Georgetown – I’ll never forget that one of the early cases I argued was against his brother, Albert Brick, in the U.S. Court of Appeals. I thought there was something very appropriate about that. There isn’t a whole lot to say. I won’t give you the “super” graphic detail. There are a lot of hilarious stories. The meds I took and how I took them are really inappropriate for the D.C. Circuit Historical Society. Granof: But it’s important that this kind of disease, as I understand it, it can be progressive. Zuckerman: Yes, and it can lead to a lot of problems with your colon and worse. But I mean for whatever value there is for the few who would listen to this or read about this, it’s a circumstance that it is a part of my life and deserves mention because you can get through it and do what you have to do. Granof: That’s what I think is the interesting part. That’s why I asked you about it really, because it is a serious disease and certainly would have affected – normally, you would expect it could influence how you decide to practice law and what to decide to do. And the fact that you decided to work through it and ultimately it got better, got cured, is really quite a story. Zuckerman: It’s bizarre. I’m very lucky. Again, it’s a biofeedback response that I actually was taught by my wife, Irene, and I owe her a great deal for that. Irene was trained as an occupational therapist at Tufts. She has always been an extraordinary caregiver and figured out how she had to help me deal with my head and she got me to a place where I needed to be. 29 Granof: September of ’64? Zuckerman: September of ’64 and I continue a practice that was traditional in our family, at least for me. I packed my bags and took myself to Harvard. I had packed my bags and taken myself to Wisconsin each of the four previous years. Granof: But what made you decide to become a lawyer? Zuckerman: What made me decide to become a lawyer? My focus, perhaps characteristically, perhaps not. I was not focused on pursuing the career that my father had pursued. My father was a very able and extraordinarily smart civil engineer. A profession in which there is a right answer and a wrong answer. If you get the wrong answer the building comes down. If you get the right answer the building stands. In law there is often no right answer and no wrong answer and – Granof: As we find out in the first year. Zuckerman: Right. There is – without denigrating in any respect, and the Historical Society should forgive me for putting it this way – there is a lot of BS in law and a lot of sales and advocacy skill that is very different than the hard sciences. For whatever reason, I was more comfortable as an advocate and a speaker and a presenter than I was as a hard scientist. That’s one, and two, my aunt, Sydney Gold, was the one of the youngest lawyers admitted to the bar in the thirties (I’m guessing). She attended the Washington College of Law without having studied anywhere as an undergraduate. Became a lawyer, had a career working both for the government and for the Democratic National Committee. And she was a very significant influence on me. She was very interested in politics and I related to that and I enjoyed her political insights and enjoyed talking with her about that and felt much more comfortable in the world of politics and law and public service than I did in hard sciences. I have a couple of friends, young men with whom I went to school and grew up with, who became hard scientists or scientists at least. One became a physicist and one 30 became an economist, which, I suppose, is a soft science. I always felt that I was cut out for law. It seemed to have a romantic quality. When I was growing up in Montgomery County, I was a member of the Key Club, which is a public service organization for kids, high school students sponsored by the Kiwanis Club. I would go to the lunches as the student representative and was always taken with a man there, very dapper man named Plummer Shearin, who became the States Attorney in Montgomery County, and then, I think, became a judge. I don’t know that he was much more than a lawyer when I encountered him in high school and he cut the kind of figure that I thought was impressive. So, it’s a mix of those things. It fit my skill-set better. My aunt and my outlook seemed to me to draw – Granof: I believe you mentioned her last time and talked about her. When did you decide that you wanted to be a lawyer? Was it when you entered college, did you know that? Zuckerman: No. I would say I had gotten – I was a political science major and a philosophy minor, basically, and I had a peer group principally of young men at Wisconsin who were government majors. That’s where all of them were headed. So you were influenced in that respect as well. The idea is you would work hard and study hard and do the best you could do. You would take the LSATs and you would then go to law school. It was the career path that my peer group was on. I must say, and my modesty is not false modesty, that it was a lot easier in my recollection at that time to get into the so-called eastern law schools than it is today. It’s really striking how many of my friends ended up at Harvard or Yale or Columbia or Penn. I find it hard to believe that if we had gone through Wisconsin today, even if we had worked as hard as we worked back in the 60s, that the admissions to those schools would have come about in such volume. It was striking to me as I think back on it. Granof: So, you applied to schools and you get into Chicago, which is a fine law 31 school, and was a fine law school then. Zuckerman: I was a little miffed that I did not get into Yale. I was only wait-listed. But even at the time, Yale was very selective I suppose. My classmate at Wisconsin was Jeff Greenfield, who went on to fame as a really right-hand man to, I think, John Lindsay and then Robert Kennedy in the 70s, and then took on a career as a television commentator and the like, and he ended up at Yale. He did very well at Yale. He was the editor of the Wisconsin Daily Cardinal, the student newspaper. Granof: As between Harvard and Chicago. Zuckerman: Doesn’t sound good to put it this way, but Chicago was my safe school, I suppose you would say. Harvard seemed to me to be a better bet and a good choice. I showed up there (just having gotten ulcerative colitis) as one of eight students from Wisconsin out of a class of about 525 in the fall of 1964 and lived in the dorms. I had worked like a dog for four years. I was essentially a pretty competitive person, and I said I am going to basically work as hard as I can work as many hours in the day as I can work without driving myself nuts for at least the first year to see how I do. I took the standard array of courses: Property, Civil Procedure, Criminal Law, Contracts, and Torts. I was very fortunate. I had, I thought, very extraordinary professors, except for a visiting professor, who shall go unnamed, in my Torts class, whom I did not think the world of. I had Charles Fried, for example, for Criminal Law who went on to have a storied career, was the Solicitor General of the United States for a while. At the time he was teaching me Criminal Law he was probably 29. Granof: Who did you have for Property? Zuckerman: I had Casner for Property, A.J. Casner. I never dealt with him later, but I ran across either his son or grandson in later years, who was an attorney in of all places St. Thomas in the Virgin Islands. I had David Shapiro for Contracts, he was probably 28. There were these extraordinary men, maybe 27 years old, 32 and I had Alan Dershowitz in my second year for a course on something like Law and Psychiatry. He was probably 27 or 28. But the three of them were these storied, young and brilliant young men. Granof: Who did you have for Civil Procedure? Zuckerman: Richard Hinckley Field, who at that time seemed like an old man. Granof: He wrote the textbook. Zuckerman: Yes, he seemed like an old man. He was probably 65. Probably five years younger than I am today. But they were just extraordinarily impactful personages to this impressionable kid who had come out of Triple A ball in Wisconsin, and now I was in Major League-95 mile-an-hour fast-pitch at Harvard. It was extraordinary and it was a year – by far and away – the most memorable of the three years that I had at the school. Granof: I think that’s true of most of us here. Zuckerman: It resembled “The Paper Chase,” not in the way so much people behaved, but in the sense of pressure that you felt you were under. Granof: Absolutely. Did you ever think you were going to flunk out? Zuckerman: No, no. Granof: Neither did I. We had all these bright people who had done very well in college and we all wanted to do well in law school. Zuckerman: Yes. It was highly competitive and I think one of the weird secrets of Harvard – maybe it’s not and I don’t know whether I’m revealing proprietary information – but I think it’s very hard to flunk out of law school there. I had a dorm friend who literally never went to class and never studied, who made it through. I think it’s pretty tough to flunk out. I studied very hard. I made good friends. I have a distinct recollection my first year – don’t know whether 33 it was the fall or the spring – but we played touch football outside the dorm, and one of the young fellows who was playing there was a guy who had come up to get his Masters in Tax. He had just finished, I think, a clerkship for United States District Court Judge Howard Corcoran in D.C. His name was Bob Bennett. I became friends with Bob several years later in the U.S. Attorney’s Office. It always struck me as interesting that probably of many of our peer group – these people who came through the U.S. Attorney’s Office – became prosecutors and then trial lawyers – I ran across Bob before anyone. It was in late ’64 early ’65 when he was getting his Masters. Granof: You had mentioned “The Paper Chase,” I think, and I think you said it was competitive but – Zuckerman: No, I think people behaved themselves. Granof: That’s my sense. Zuckerman: People behaved themselves. I didn’t believe in study groups. I wasn’t in a study group. I believed in just doing my work and studying. It took me a while to acclimate myself to the Socratic method, which I have a lot of feelings about. I don’t particularly think it’s a good way to teach, or at least not for me. I spent four years at Wisconsin. Professors gave lectures and you thought about what they had to say. You studied and you parroted it back or dealt with it and tried to learn from it. The Socratic method was very hard for me to follow because I was often not sure of what exactly the point of the professor playing Socrates was, what the right answer was, what the point was, and – Granof: Isn’t that precisely why they do it because they want to convince you in first year that there is no right answer? Zuckerman: Could be. It could be. The class that I mentioned the visiting professor who taught me Torts, his Socratic style was something that I just could never grasp, and it was my last exam – I ended up with the lowest grade. Oddly, the class 34 where I ended up with the highest grade – High A – complete with a letter from the professor, was the class in which you got the right answer and the wrong answer and you couldn’t BS. And that was Property. And the way Casner taught Property – Professor Casner – taught Property was probably anachronistic and whatever. But there are in Property some rather strict rules. He must have spent three or four classes, at least, teaching common law conveyancing, which was a variant of symbolic logic. There is just a whole bunch of rules that you had to learn, but if you learned the rules, you could parse the way in which property was transferred way back when. You had “The Rule in Shelley’s Case” and you couldn’t skip a generation doing this and you had to do that. Then the test, in a bizarre way and in a way that bore no relation to anything useful in life, had a very significant component on common law conveyancing which is pointless but at least it’s something that I understood. I took a bunch of logic classes in college and I always thought it was a bizarre but very pleasurable, but did not add a lot to the sum total knowledge of the law that I got my first year. But it was a good year; I did well. I shared this with you, I think. I don’t want to put your class standing in but your class standing was much higher than mine. Granof: Well, I, it’s very serendipitous. After all, you had one exam at the end of the year. Zuckerman: Yes, but I was 104th which was about the top 19 percent and my dear high school buddy, who had been much smarter than I in high school by a lot and had gone on to become a Phi Beta Kappa at Oberlin, was 124th. So, I felt vindicated. Not so much that I’d come in a few spots higher, but at least I had shaped my brain to the point where I could look him in the eye and say I’m about where you are in life, at least in terms of how we performed at the first year of law school. Granof: I’m just curious. 35 Zuckerman: Out of 525 or so, the folks who were on law review you certainly remember, they were luminaries in the class. It’s like they were wearing crowns and the folks who were in the top 5 or 10 were extraordinary. You always remember the guy (there weren’t many women), but the guy who was Number 1 and Number 2 and Number 3, they were – Granof: They were very smart. Zuckerman: Very, very able, talented guys. Extraordinary. Women, there were 25. It was scandalous, although none of us at the time took it as such. The value of diversity was not a value that was celebrated in the 1960s. I remember going back to interview law students at Harvard for employment at the firm here, 20- 25 years later, and being just awestruck at the diversity of the class in every conceivable respect. It was like going to the UN to interview. I mean it was just an extraordinarily diverse place and they had done a wonderful job over a couple of decades in completely reforming the school. My second year was uneventful and my third year was not uneventful. It was eventful in an interesting way. My second year I took the standard array of courses – Granof: Tax? Zuckerman: Tax from the Dean. Granof: People who took it from Stan Surrey, he did not as I understand teach the Socratic method. He basically taught tax from the textbook. Zuckerman: Yes. Granof: Ernie Brown taught the Socratic method. I guess the Dean did, and I came away with the idea you can’t teach Tax, Estates and Trusts with the Socratic method. Zuckerman: Exactly. Exactly. Well, I had Griswold. I ran across him. I had two interactions with him outside of my class. First, I was hospitalized for a 36 couple of weeks at Georgetown Hospital with ulcerative colitis and my dad called the Dean to tell him I would not be able to take my mid-term exam or exams or whatever. The Dean was pretty decent about it and the Law School essentially, for at least a couple of my courses, just gave me my average at the time I went into the hospital, which was, by my account, okay. And the second interaction is I ran across Dean Griswold in the 80s or 90s after he had left Harvard, when he was “Of Counsel” to Jones Day. He was sitting by himself in a large room – it must have been at some legal convention or something – and I went up to him and as warmly as I could, introduced myself and said he looked well and I was pleased to see him and wanted to tell him how much I enjoyed his class in Tax in 1966 or 1967 or whatever. And he could have cared less. Granof: He was not known for social skills. Zuckerman: No, he was not at all either receptive or whatever. Maybe he had a bad day, but I didn’t get a lot of warmth out of that interaction. Granof: I think I had one interaction with him when he was at Jones Day and it was on the phone, pleasant and businesslike. It was not a bad experience. Zuckerman: My summer jobs deserve a bit of mention. I worked for a small law firm here on Farragut Square doing not much of anything after my first summer. It being a law firm buyer’s market in those days. As I recall, for the One Ls’ – that is, first year law students – a summer job, it was not the easiest of things to get. Granof: That’s right. They weren’t in those days hiring One Ls. Zuckerman: The One L summer job I recall was not easy. The Two L summer job I got was kind of odd and I need to preface it with some stuff. Granof: What law firm were you working for here? 37 Zuckerman: Sher & Harris. It’s about a three- or four-person law firm. They did some litigation and antitrust work. Bob Sher was the uncle of my college roommate, Mike Zola, and through Mike’s intervention, I was hired by Bob, to do what amounted to clerical work on a bunch of discovery that he had gotten in a civil antitrust lawsuit where he represented something like the Puerto Rico Water Resources Authority against a consortium of power providers or whatever. He had gotten a bunch of discovery and he had to start plowing through it. And this bright enough but green kid, who had finished a year at Harvard, was hired to try to make sense out of it which I’m sure I didn’t, but I tried. My second summer job was interesting, but again I preface it with the following. One of my second year roommates was Tom Northcote. He went to a mixer, met a woman whom he liked; she had a friend, and her friend was Irene d’Ancona. Through Tom and his friend, I was fixed up with Irene and met her on a blind date in front of the Harvard Coop on March 5, 1966, on our way to the theater right around the corner from the Coop. You may remember the Brattle Theatre. We went to see “The Man From Uncle” or one of “The Man From Uncle” shows. And then back to party some more at our apartment on Central Square. Granof: Well, I can picture Central Square. Zuckerman: Yes. It was basically love at first sight, I think, for the both of us. And we ended up getting married when I graduated law school. She was at Tufts studying occupational therapy. She graduated in June of 1967 as did I and we got married. Granof: That’s wonderful. So, you met her in ’66? Zuckerman: Toward the end of my second year. We went out together for about two or three months and then by coincidence, she had gotten a job at a hospital in Milwaukee as a training occupational therapist, and I had gotten a job with what was then the highest paying law firm in the country – I remember this – 38 for summer jobs. It was then called Foley, Sammond & Lardner and it paid $140 a week, the normal remuneration at the tony firms being $125 a week. So we got to spend the summer together by complete happenstance in Milwaukee. She had a very rewarding experience at her summer job. I did something that was sort of bizarre and reflecting on it, I can’t tell you why I did it. They asked me – they hired about twelve young men – what area do you want to be assigned to. This is at the end of my second law school year. I had not taken a course in trial law or litigation. They didn’t have those things, maybe they had them the third year, I don’t even remember them then. You just didn’t study litigation as a technique. You might join the voluntary defenders, I think that’s what they were called, and you got a chance to go to court. There may have been a trial practice class your third year taught by a practitioner, that’s what I’m thinking. But up through two years, I had none of that stuff. The Civil Procedure course that Richard Field taught didn’t exactly grab me and the Criminal Law class was very theoretical. It was actually a little bit like philosophy. I enjoyed it. So they asked me what I wanted to do at Foley and I said I really don’t have a preference. You just put me anywhere you want to put me, figuring they would put me someplace where I knew a little and would study a little. The mistake that I made was I should have told them to put me where I had a course that gave me some training. They put me in the probate section, okay, working for a lawyer whose name I can’t remember. I didn’t find him particularly engaging and I’m sure that he thought that I was a nitwit. I had absolutely no training in probate. To be perfectly candid, I had no interest in it. Granof: It’s not the most exciting field. Zuckerman: I thought it very hard to grasp and the like. It was a miserable summer. With all deference to Foley, Sammond & Lardner, I’ve done a lot of work with them afterwards. I had wonderful relations with Foley. It’s a fine firm, but that summer I was mismatched. If anybody from Foley is ever listening or reading 39 this, please be advised that the fault in all of this is mine, not Foley’s. Granof: Why did you choose to go to Milwaukee? You had been at Wisconsin, I know. Zuckerman: Well, at the time Foley had some cachet and I really had enjoyed my time in Wisconsin and thought that this was a possibility for me. They seemed to be a well-regarded firm, and out of the class the year before they had taken one or two people from Wisconsin who had gone to Harvard who had done extraordinarily well, and I thought it might be a good spot. But it didn’t work. I did get to meet – for which I was grateful – I got to spend a little bit of time with Lynford Lardner. He was a fine man and who was the president of the U.S. Golf Association, I think, at some point in his career. That, I carry with me and that was a nice thing. He was a good person. Granof: One thing that you said I want to ask you about. You had mentioned that Foley was paying the most money – and I have a theory – and I want to get your reaction to it, and that is that in the 60s there were a number of firms across the country that started competing with the Wall Street firms for the same talent. People, particularly from places like Harvard, were saying I don’t need to go to Wall Street. I have a better chance of becoming a partner and maybe even a better lifestyle going to some of these other firms. And that’s when the Wall Street firms really felt that they had to jack up the salary structure. I don’t know – Zuckerman: Could be. Gene, the dominant memory I have of that period is that you could go to Harvard, you could get really good grades, but it was hard as the dickens to get a job. There just wasn’t a huge demand for lawyers – for young lawyers. The Wall Street firms at the time – the giant Wall Street firms – had a hundred lawyers. I don’t know how many Foley had but I remember Louis Auchincloss, a great short story writer and chronicler of the upper class in New York, would write these great short stories about these mythical New York 40 firms. They had a hundred lawyers and they were huge firms. So it was very, very hard to get a job. The irony – one of the interesting ironies – goes something like this. It is said that in this day and age in the early 21st century, the life of a young lawyer is much harder and much more precarious than a couple of generations ago because it’s so much harder to make partner or so much more is demanded of young lawyers. It’s not a profession really to seek out. You’re much better going to business school or becoming an artist. Maybe that’s true, but the fact of the matter is, it’s fifty times easier for a kid from Harvard Law School, with a standing where about I was, to get a job now than it was two generations ago. I think that you can probably say that for a wide swath of bright kids at many, if not most, of the top 25 or 50 law schools in the country. It’s just easier to get your start and your start is more remunerative by far than it was two generations ago. If there is a problem, it’s a problem that comes a bit later in time. But getting off the ground strikes me as being much easier now than it was in my experience when I was in law school. When I graduated, my third year was uneventful. My third year I had decided that I pretty much knew everything about the law that I needed to know. There wasn’t a whole lot that I was going to learn that was going to make me a better lawyer – a completely silly, fatuous view of a naïve young person. But I decided that law school really should only be two years. I had learned the way that lawyers think, knew how to read cases, read law books, and taking these – what I thought were fairly narrow-gauged – courses, like corporations, wasn’t going to get me anything. With one or two minor exceptions, you might say, I opted out of law school my third year. I took the courses, took the tests, but I did not attend many courses. I spent my time hanging with Irene. We had a great year. During the evenings I played cards a lot, played intramural basketball a lot, and had a pretty good life. The one course I took that was interesting to me is I took a national security seminar – which absolutely had nothing to do with the law – taught by Henry Kissinger, then a young government professor at Harvard College, and by Leach of 41 Casner & Leach. Granof: Yes, Leach was my Property teacher. Zuckerman: Whose credential was he was a General in the Air Force Reserves – Granof: A Brigadier General. Zuckerman: Yes, I think that’s what gave him the stature to compete with Henry Kissinger in National Security. It was a great class. We had – either through Leach or through Kissinger – we had Robert McNamara come and speak. I think when – McNamara was mobbed on campus – remember this is the second semester, the spring of ’67. Granof: Yes. Zuckerman: I think it’s when he came up and one of the things he did was talk at this seminar. We had McNamara, we had McGeorge Bundy, we had any number of these personages who became historical figures and were certainly luminaries in connection with this failed undertaking in Vietnam. It was a wonderful course. Granof: I would imagine. Were you taking it after the Tet Offensive? Zuckerman: Don’t remember. But I enjoyed it very much and I thought it was very worthwhile. The other stuff I felt wasn’t going to get me to where I needed to go. For me, the value in law school was a little bit less about the substantive information, but it was more understanding style and process and patterns of thought. In retrospect, I was completely wrong. Granof: Why do you think you were wrong about the substance? Zuckerman: Because I think that there is an enduring value in understanding something, for instance, about labor law and corporations. Even if what you’re being taught is the law as it was forty years ago, it gives you a frame of reference and tells 42 you a little bit about how legal problems are resolved in that frame of reference that probably sticks with you. I was wrong to blow those courses off, and whoever is listening from that period – who may still be around and taught those courses – I apologize. Trust me, I blew them off. I was into national security issues, Irene, gin, and playing ball. I would have been into working out, which became a lifelong pleasure, but we really didn’t have – we had Hemenway as a gym – that was not a fad back in the 60s. You didn’t spend half your week at gyms and you didn’t spend half your week jogging. Granof: One of the things that you have said was it didn’t get you – that is – you didn’t think these courses that you didn’t spend a lot of time with wouldn’t get you to where you wanted to go. Where is it that you wanted to go? Zuckerman: At the time, I absolutely had no idea. It’s a good question, I absolutely had no idea. Granof: But you knew it wasn’t there? Zuckerman: I just didn’t think they were going to make a whole bit difference in my life. I could have been completely wrong. I actually think that that perception was true and I can’t say why. I can’t say why. One of the things that I have never enjoyed doing is teaching. I think I am a good mentor. I think people have learned a great deal from me. I don’t want to be immodest. I think they have. I think it’s pretty much from osmosis and being around me. I think the formal act of going down and teaching trial skills to a class of 23-year-old kids leaves me with the same feeling that I had forty years ago when I was taking some narrow-gauge course at Harvard. And that is the likelihood for most of these people that this course will end up being meaningful to them is the same as the likelihood that a narrow-gauge course in corporations would end up being meaningful to me – it is pretty low. So, what am I doing? Is this really a good use of time? Is this really what I want to do? As opposed to – weird but if you forgive me for digressing a little bit – as 43 opposed to teaching botany, geology, psychology – these sort of introductory courses that deal with the human condition and the environment in which we live – which are subjects that everybody should know about, and if reasonably studied, will add immeasurably to your life. Those are worthwhile things to teach because you can say to yourself as the teacher I’m giving you something that a high percentage of you if you ingested and you carry it with you, it’s going to mean something to you as your life goes on. A lot of the arcane and narrowness of law I think is less easy to have that feeling about. In any event, at the end of this period of my third year in law school, I had a quite acceptable resume, but the legal market was very tight. I had heard that David Bress, who was then the U.S. Attorney – this is the spring of 1967 in D.C. – and was a Harvard graduate, had come to the law school to interview and I had missed his interview. It was a little weird, although I did not know it at the time, because the U.S. Attorney’s Office in any city never hired out of law school. You hired people from clerkships or thereafter. But I wrote him and got an interview; I came down to D.C. and interviewed with him. He ended up hiring two people from our class to be, I guess you would say, “clerks” in the U.S. Attorney’s Office for nine months, and then to be appointed Assistant U.S. Attorneys. I was one of the two people whom he hired. You always keep a list of people in your life to whom you owe something great, and as I go through this interview I will give you my list. David Bress is on my list. I feel very fortunate that, for whatever reason, he selected me as one of the two people whom he hired. Granof: Why do you think he did that? I mean, after all you were a bright guy but you weren’t in a clerkship, you didn’t have any trial experience – Zuckerman: He was determined to hire two people out of Harvard, I guess. I think that he was probably taken with the fact that – I’m completely speculating and it sounds immodest – but there are three things that would have struck me if I were he. One is I am a local kid, Southeast, Silver Spring, I’ve got a lot of roots in the community. The second is I seem, however circuitous it is, I seem 44 at least in my undergraduate life to have done stuff on my feet. I was active in student government and politics and seemed to have some ability or willingness to stand up on my feet and say something. And three, I was a reasonably good student. I came down, I interviewed with him, we got on fairly well, and he hired me and a nice fellow named Reid Chambers, who has gone on to become one of the deans of the Native American Indian law bar, I think, in this country. It is the fall 1967 – Irene and I have just been married in her parents’ backyard in Woodmere, Long Island, taken a very brief honeymoon at Ocean City, which Irene thought not much of and decided we were leaving early. She really thought the place was not up to honeymoon status. Granof: She was right about that. Zuckerman: She was right about that. We came back and lived at a new apartment house that had just opened in 1967, Van Ness North on Veazey Terrace and Connecticut Avenue, which was just a lovely place. She worked at the Washington Hospital Center as an occupational therapist making $6,000 a year; I made $7,200 a year. Granof: That was good money then. Zuckerman: We paid $180 a month in rent for a lovely one bedroom apartment on the 13th floor or something at Van Ness and were just in the high cotton. It was extraordinary. It was a nice time in our lives. I will get to the U.S. Attorney’s Office in our next interview. But I’ll forecast that by telling you that two of my very dear friends who become very prominent lawyers in town and were good friends from the U.S. Attorney’s Office, if not before, were (1) John Aldock, who I actually went to grade school with, who became the managing partner at Shea & Gardner, and then a senior manager at Goodwin Procter, and (2) Bob Watkins, who became a partner at Williams & Connolly. They were our dear friends at the time, and both moved into the Van Ness apartments. It 45 was a very special time. Granof: Before you get to the U.S. Attorney’s Office, I should ask you did you look anywhere – did you apply to law firms or the government other than the U.S. Attorney’s Office? Zuckerman: I’m sure I applied. Yes, I did, I know I did, I think. I’m virtually certain I did. I don’t know whether I applied in New York – I applied in D.C. I remember one firm that I applied to for no particular reason whatever. You would go – you may remember this, Gene – you would go and look at these descriptions of law firms that were posted on the board at Harvard and they describe what they paid and who they were. I applied to Surrey, Karasik, Gould & Greene and remember going and interviewing and meeting a very lovely young lawyer, nice guy, named Mike Nussbaum, who became a very prominent lawyer in town, since passed. I did a lot of work with him. His office – Nussbaum, Owen & Webster was his firm – his office was in this building for many years. My impression was that it was a really thin market. A really thin market! You could get a job in the government, but the law firms were relatively small. There were a lot of graduates out there, and they were just not hiring in volume like they are today. Granof: Well, this is a good place to end. Thank you. 46 ORAL HISTORY OF ROGER E. ZUCKERMAN Third Interview January 23, 2014 This is the third interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in Washington, D.C., in the District of Columbia on Thursday, January 23, 2014. Granof: Last time we got you through law school. You graduated from law school and you were hired by the U.S. Attorney in Washington, D.C. What year was that? Zuckerman: Hired by The Honorable David Bress in the summer of 1967. Granof: And you stayed at the U.S. Attorney’s Office for how long? Zuckerman: I was there for five years leaving roughly in the summer of 1972. The first seven or eight months as a kind of Special Attorney who had not yet been admitted. When I got admitted to the bar in early 1968, I got an appointment as an Assistant U.S. Attorney. Granof: Before that as far as when we talked, the closest you came to trial work was being a process server, am I right? Zuckerman: Well, I would say the closest I came to – I had no trial – I might have had a trial advocacy class at Harvard my third year. I didn’t think much of it. I had spent a fair amount of time on my feet at Wisconsin in various student activities, but I certainly had no experience in a courtroom. However, I had no interest in going to court accompanying other lawyers to just carry their briefcases. Granof: Had you even taken a deposition? Zuckerman: No, no. Remember, I wasn’t a lawyer yet. I had never attended a deposition and I don’t know that I had really ever been in a courtroom and watched a 47 trial. So this was something that sounded pretty neat, but I was really a fresh-faced, green human being when it came to the endeavor. Granof: So, all of this was preliminary to the question I really wanted to ask you. You come in with no experience to speak of and five years later you come out as an experienced trial attorney and from an office which has a reputation for excellence. To be sure, they had good material to work with. My question is, “How do they do it? And how did they do it in your case?” Zuckerman: Yes, that’s a great question. It’s actually a profound question because in the modern era – certainly from 1985 or 1990 onward – the U.S. Attorney’s Office here and in, I think, most other jurisdictions – certainly the large cities – have developed a policy of not taking greenhorns but only taking people out of law firms or young lawyers who have had some level of experience. In the Southern District of New York and here, it is currently the case, and it’s been the case for twenty years, that those who went into the U.S. Attorney’s Office were much further along in their thinking and their development as lawyers than back in the day I was there. Back in the day, at least speaking from my own experience, it was comparable to what happens when the Marines take a greenhorn and put him through a bunch of Parris Island-like drills; develop him; throw him into battle; and do a number of other things to prepare him for combat. At the end of the military basic training process, somehow there emerges a qualitatively different person, who is a much more skillful human being at the endeavor than he was at the beginning. It works if you’ve got good material. The way it worked in the U.S. Attorney’s Office at the time – which is not the way it worked for me – but the way it worked – is that you spent your first tour of duty in the 60s going to the Court of General Sessions, which was essentially akin to what is called a district court in the various counties in Maryland and, I think, Virginia. It was a court of limited jurisdiction. It essentially could deal only with misdemeanors and with civil offenses to a certain economic level that’s relatively low. The judges at the time – trying to be respectful but candid – 48 were of uneven quality. There were judges who were thoughtful and serious, and there were other judges who would do such things as spraying deodorant on a defendant who was on the witness stand who had some malodorous quality or taking a vote from the spectators in the courtroom as to whether or not a particular defendant ought to be found guilty. Granof: Did you happen to witness these or just hear about them? Zuckerman: I’m not a personal witness to either, but I am certain they happened because I trust the observations of others. It was a wild and varied place. And the stories of what went on in, what are still called, Building A and Building B in the courthouse complex, are told with hilarity, love and pleasure to this day. The profile was often young lawyers – essentially males – there was no gender diversity to speak of. There was some racial diversity. Young men, 26 to 30, who were eager to become trial lawyers, who were relatively bright – they had gone, for the most part, to good law schools; some had come out of the JAG program – who were thrown into the hurly-burly of this misdemeanor environment, with judges, some of whom bore resemblance to, or had adopted the style of, a somewhat off-kilter drill instructor at Parris Island. Although not particularly a credit to the administration of justice, this style helped to mold you and give you the feeling that you could deal with a lot of aberrant and unexpected behavior in the courtroom. You had jury trials there; you did all manner of things. You stayed for a year, and if your performance was deemed acceptable, you got moved out of General Sessions as it was called, and you went to the Appellate Section of the U.S. Attorney’s Office, which when I was there, was run by Frank Nebeker, who became a distinguished judge on the D.C. Court of Appeals, and then the Court of Veterans Appeals. You honed your craft, writing briefs and arguing both in the D.C. Court of Appeals and in the U.S. Court of Appeals for the D.C. Circuit. If you passed muster there, in roughly the third year of your tenure, you ended up trying serious felony cases in the United States District Court, which had a distinguished bench of about ten judges whom I shall never 49 forget, and who were, in many respects, God-like figures for us twentysomethings. The record should reflect their portrait graces a shelf in my office in a photograph that I inherited as the keeper of a lot of the memorabilia from Judge Flannery, who came to be on the court after a period. To recapitulate briefly, the first few years of an Assistant U.S. Attorney’s tenure in the late 1960s – before the D.C. Court Reorganization Act was enacted – consisted of a three-part process: (1) Misdemeanor prosecutions in D.C. Court of General Sessions; (2) writing briefs for and giving oral arguments before the Court of Appeals as a member of the Appellate Section; and (3) United States District Court felony trial practice. After a couple of years, you were actually pretty fit and actually pretty adept at the give-and-take of the courtroom. That was the normal progression, at least when I was there. I will now give you a general sense of this period, including a discussion of the demographics and the history of the U.S. Attorney’s Office, because it was a significant time. Leo Rover was the U.S. Attorney for the District of Columbia for a long time in the 40s and I think into the 50s, and had as his chief prosecutors a cadre of extraordinarily tough, able – storied in their own right – men. Victor Caputy and Harold Titus and Joe Lowther. These are men who were extraordinarily gifted and colorful. They were essentially career prosecutors. Tom Flannery, who reappears in my life at various points in important ways, was a younger assistant during the 50s. With the appearance of David Acheson, who was, I think, the son of Dean, as the U.S. Attorney probably in the late 50s or early 60s, and then David Bress in the later 60s, the Office had an influx of much younger talent. Then you saw this interesting demographic mixture of (1) a lot of generally eastern lawschooled youth, including young men who had been clerks on the Supreme Court, and came to the Office for trial experience, in combination with (2) these older, crusty, tough senior prosecutors. This mixture of youth and 50 energy coupled with the wisdom and experience of the senior prosecutors made the experience of the younger prosecutors who came in particularly valuable. It wasn’t simply that you got to try cases; it’s that you got to try these cases under the tutelage, direction, criticism and guidance of people who had been doing this for twenty or thirty years, who were, in many respects, wonderful teachers and guides, and who took a terrific interest in what you were doing and didn’t hesitate to criticize what you were doing. It was a wonderful, wonderful learning experience during a period in which you were able to bond at the age of 25 or 28 with people who seemed old at the time – they probably were 50 or 55 – but were doing essentially what you were doing. In that sense, I think the experience was particularly valuable. Let me go to my own experience. It’ll elucidate somewhat of what I am saying. Granof: I’m curious about that, particularly because my own experience was that it was many years before I got to a NITA – National Institute of Trial Advocacy – program, and I thought why didn’t I have this at the beginning of my career? So my question is in your experience did you have anything like that? You obviously had a mentor. Zuckerman: Yes, well we did. One of my dear friends for life is an attorney now in the Virgin Islands who was the head of the Misdemeanor Section or the Deputy Chief of the Misdemeanor Section in the late 60s. The Chief was Chuck Work for a time who went on to run McDermott Will’s D.C. office and had a very exceptional career. The Deputy Chief was Fred Watts. When you went to the Court of General Sessions in the fashion I have described, most Assistants had never tried a case before – they all went to the Fred Watts’ trial school. He had a number of – I have only the vaguest recollection of it – a number of lectures and demonstrations and the like that were designed to give you the basics of what it was like to try a case. But trust me, they were only the basics and the real learning experience came when you dropped into Judge Scalley’s courtroom or Judge Alexander’s courtroom or some other 51 judge’s courtroom with a stack of files. You did a lot of the arraignments – you were on your feet arguing bond questions. You had never seen these case files before in your life, and periodically you had to take one or another of these cases to trial. The trial might last two hours, it might last two days. Granof: But, you had to pick a jury. Zuckerman: You had to pick a jury; you had to learn by the seat of your pants and do it. But truly, truly they were not momentous cases. These were – to the people involved – they were very serious but they were – Granof: Drunk driving? Zuckerman: No, those were Corporation Counsel cases. You might get low-grade drug offenses, you might get low-grade weapons offenses, you might get assaults; things that were relatively minor in the scheme of things. One of the things you did in General Sessions is you charged the cases. It was a wonderful experience. You had a cubicle; police officers would come in in the morning; they would bring you their “PD-251s,” which would include their description of what had occurred generally the day before or the night before. The defendant was oftentimes in jail and was appearing for arraignment or presentment if it were a felony as the case might be, and you made your charging decision. The process was called “papering.” You, the young prosecutor, saw to it that “the charging papers” were created and then these “papers” were sent up to the courtroom where the Duty Judge was calling cases of individuals who were in the lock-up and each one would be brought in. “Mr. Wilson, you’ve been charged with X, Y, Z.” “How do you plead?” “What does the government have to say about bond?” “What does the defense have to say about bond?” Either the individual was granted bond or remanded. Granof: Was he represented by a lawyer at that point? 52 Zuckerman: There were court-appointed lawyers who would sit in the jury box and they would be assigned to these individuals and consult with them in the lock-up before the case was called. It was a real police court and you were learning the business of the administration of justice from the ground up – really from the ground up. It was done – to answer your first question which is a good one – it was done with enough ease that if you were bright and worldly and committed, you could pick it up pretty quickly. You had the camaraderie of your colleagues and you would not only laugh and exchange stories, but also learn bits of wisdom from them. After a few months, you actually felt as if you understood the system and could do basic surgery as it were. My experience was different and in some respects better and in some respects not as good. David Bress had a soft spot in his heart for Harvard graduates and figured that they operated at a speed which was equal to, if not greater, than the graduates of other illustrious institutions. Oftentimes if you went to Harvard or some comparable school – even Yale, if I may say – he would not send you as your first order of business to boot camp in General Sessions. He would say, you can pick this stuff up quickly. I’m going to start you in the Appellate Section. You in effect are going to skip first grade. And that’s what happened to me. I started in the Appellate Section and it created an extraordinary anomaly. I wrote briefs, then I argued briefs, and I developed a good working relationship with Frank Nebeker, who was at that time running the Appellate Section. I would say after being there about a year and one-half, which was relatively little time, I had been an Assistant maybe for six months, I had been on this sort of pre-Assistant status for six or eight months. He called me and asked me if I would take over a position that was being vacated called the Deputy Chief. So I became the Deputy Chief of the Appellate Section – I assigned briefs, I edited briefs, I supervised people. I was a pretty good writer and good enough thinker and could pick this stuff up. 53 Granof: You were a young guy. Zuckerman: I was 25 years old and I had never seen the inside of a trial courtroom, remember. I had been there for maybe a year and one-half. I was the Deputy Chief. I was doing what I thought was competent work. I was arguing in the Court of Appeals. I was defending decisions that judges had made, defending actions of prosecutors. A little bit anomalous because I had never seen the inside of a courtroom. But people can argue appeals and not have tried cases. It’s not a critical necessity. In 1969, while I was the Deputy Chief – I had not been the Deputy Chief for more than six or eight months, I believe, maybe a year – Frank received an appointment to be an Associate Judge on the D.C. Court of Appeals. Probably in early 1969, he left the Appellate Section. I am sitting there – I had just turned 26 – I had been in the Office probably less than two years, and by default I am the Acting-Chief of the Appellate Section of the U.S. Attorney’s Office in Washington, D.C. Keeping the seat warm, to be sure, for its next occupant who turns out to be John Terry, an incredibly eminent jurist on the D.C. Court of Appeals in later years and a wonderful leader of the Office. But I kept the seat warm as the Acting Chief of the Appellate Section probably for about three months. Granof: I remember John Terry. Zuckerman: Well, you don’t remember me. Trust me. I enjoyed it. I think probably I did not fumble the ball, but I was manifestly underage and manifestly too inexperienced for that position. It was good experience. I did a good job. It’s like a lieutenant or major getting thrust into battle at an age and level of experience which is a little beyond his years. I enjoyed it. It was challenging and I ran the place. That’s about the time David Bress left, I think, as I put it in my mind. He left and Tom Flannery came in as the U.S. Attorney. John Terry was his appointee to run the Appellate Section. I left the Appellate Section and my exalted position as Acting-Chief. I was offered the opportunity to go right to District Court to try felony cases. Bear 54 in mind, I had never so much as set foot in a trial courtroom. I argued a lot of cases in the U.S. Court of Appeals and enjoyed that, but I had never been in a courtroom. I declined to go to the District Court. I said, “Why don’t you give me a few months at least in General Sessions to see how the vegetables grow in the garden from the roots up.” Granof: That was a very astute decision. Zuckerman: I thought it was a good decision. So, I went to General Sessions. I went to Fred Watts’ trial school. I had all of the experiences in front of the cantankerous and eccentric bench that existed there. I was put through – here’s another metaphor I will give you – it’s a kind of pledgeship and these judges thought they were your pledge masters in a fraternity, and their job was to hassle you and rile you up and say outrageous things and do outrageous things, partly for their own amusement, but being generous about it, to make you a little bit tougher, a little bit more adept at handling the array human foibles that arise in a courtroom. Granof: It seems to me that law school, at least when we were there, didn’t prepare you at all for trial work but it did prepare you for writing briefs. Even though you didn’t do a lot of it, there was some experience in the first year of moot court, you argued a case and, of course, most of the decisions that you studied were appellate decisions. Still having said that, my own experience at the National Labor Relations Board, where I first argued appellate cases, was that nobody does a good job on their first brief. I mean it takes a breakin period. You must have been a very quick learner. I just wondered what your thought is on that. Zuckerman: In terms of brief writing, how can I put it? In terms of brief writing, I have the following reactions. Ninety percent of the issues were routine and repetitive: the judge had abused his or her discretion in allowing in this piece of evidence; the judge had abused his or her discretion in allowing a 55 defendant to be impeached by certain prior convictions; the judge had abused his or her discretion or committed error by allowing in a line-up identification or photographic identification; or a judge had abused his or discretion in allowing an inflammatory argument by the prosecutor. You can probably list a dozen or two dozen of these. There was a library of briefs that existed in which the legal standard for these had been chewed over a thousand times and it was pretty easy to pick up. These tended to be in the main not overly complicated legal issues, they were very much fact and record specific: “What exactly was the record?” – “What was the evidence that supported the prosecutor arguing X, Y or Z?” – “Tell me the circumstances surrounding the photographic line-up or the like.” Once in a while you had appellate issues that were extraordinarily rare. In my experience, the rarest and the one I lost that occasioned – believe it or not – an editorial in the Washington Post involved Mr. Tatum and Mr. Gaither. They were two defendants and their appeal was handled, I think, by Bob Weinberg, who was a wonderful lawyer at Williams & Connolly. He came up with the following argument: “When they were indicted, the grand jury had received a bill of indictment and charged Tatum and Gaither jointly with robbery or some offense. Although the grand jury voted to indict the defendants for robbery, there was no written bill of indictment before the grand jury at the time it voted. After the vote, the prosecutor went and typed up the indictment in the format that he believed the grand jury had voted, and he then got the foreman to authorize or approve the formatted writing by signing his name to the indictment, which was then filed. Once indicted, these defendants were prosecuted. Weinberg argued that there was only one problem with this procedure, and that is while the grand jury may have voted conceptually to indict, it had never seen or voted on the actual verbiage in the indictment, it had only been ratified by the foreman after the fact. Yours truly had to argue the propriety of that in the Court of Appeals. 56 Granof: U.S. Court of Appeals? Zuckerman: In the U.S. Court of Appeals. When I initially saw the argument, I thought it was silly. I wrote my brief, Bob Weinberg was there, we argued and it was obviously very troublesome – it’s a Fifth Amendment issue – it’s a due process issue. You have a right to be indicted and the process of indictment seemingly includes the vote by the grand jurors on the bill of indictment. I actually did a lot of John Dawson – remember John Dawson – who taught history, legal history, English legal history? Granof: At Harvard? Zuckerman: Yes. I had a lot of John Dawson research on how bills of indictment were voted and whether they were extant when they were voted back in the common law era. I ended up making what I thought was a credible argument, but I got crushed. And the United States Court of Appeals invalidated the process by which thousands of indictments had been voted as being a violation of the Fifth Amendment, calling into question the legitimacy of God knows how many convictions. This is one of young Zuckerman’s cases. Granof: In the 1960s the U.S. Court of Appeals for the District of Columbia was a powerhouse and they certainly had no compunction – Zuckerman: I will get to them in a second. I can’t remember the panel. Granof: I was going to ask you who the panel was. Zuckerman: I can’t remember the panel, but I then went back and, with the guidance of others older and wiser than myself, sought to have the ruling made prospective only, so that at least as to future indictments the indictment in its written form would be returned to the grand jury before it voted. The term “gaitherized” came into vogue for a time. Such a “prospective” ruling would not invalidate a thousand or ten thousand prior convictions. And the Post 57 weighed in on it in an editorial – I will always remember – in favor of that result. This is an example of a case that was not quite a run-of-the-mill case, where one is dealing with fact. The Court of Appeals – Granof: But don’t leave me hanging. Tell me what happened. Zuckerman: Oh, the Court did rule to make the effect of its ruling prospective only so as not to create stupendous havoc. You can look at the issue of when prospectivity as a concept is appropriate. And it’s a close question here, because you’re arguing, not about issues of Fourth Amendment deterrence and the like, but you are arguing about a command in the Constitution, and it is very hard to argue that if a command in the Constitution has been ignored, that the remedy ought to be prospectively applied only. In any event, the mess was somehow – the consequences were avoided – the bad consequences. I think Bob’s approach was okay. His victory was a little bit pyrrhic. I don’t think it made a damn bit of difference in terms of how the system operated, but it’s just another box you had to check in order to vote the indictment. Granof: His clients, at least – Zuckerman: Yes, his clients probably had the benefit. That’s right. The clients had the benefit of the ruling. It’s an important principle. The Court of Appeals in D.C. in the late 60s had three very definable wings. It had a liberal wing that consisted of Judge David Bazelon, the Chief Judge, Judge J. Skelly Wright and Judge Charles Fahy, whom I will always remember and revere because when I lived at Van Ness North, I rode the L1 bus to work. It was an express bus. It was terrific. Right down Connecticut and then down Pennsylvania and Judge Fahy also rode the bus most of the time. That was the storied liberal wing, and you knew exactly where you stood if one of these judges were hearing your criminal case. On the conservative side, you had Judge Edward Tamm, Judge John Danaher, and 58 I’m blocking the third. And you knew exactly where you stood when one of those judges sat. And in the middle, you had three of what I regarded as amongst the best minds and jurists I had ever seen. You had Judge Harold Leventhal, who was just terrific and thoughtful and reminded me actually a lot of David Shapiro at Harvard. You had Judge Carl McGowan, who was just a wonderful human being, and Judge Spottswood Robinson. Basically, you learned that these three judges were where the center of gravity was in any panel that you were arguing to. If you lost one or more of them, you probably were not going to prevail as a prosecutor. Granof: I would have thought, at least from my experience at the National Labor Relations Board, that McGowan and Leventhal – I didn’t know much about Spottswood Robinson, but certainly McGowan and Leventhal who I did argue before – were pretty solid votes for upholding the decisions of the NLRB. We regarded them as liberal. But maybe for criminal purposes they were more middle of the road. Zuckerman: In today’s environment, they would be very liberal. At the time they were, I would say, thoughtful, moderate jurists. Certainly in comparison to the somewhat wiliness of Judge Wright and Judge Bazelon. I mean they were – Judge Wright and Chief Judge Bazelon – were extraordinarily aggressive, creative, pick what you want – at trying to recraft some of the basic tenets of the law. Chief Judge Bazelon, of course, being famous for trying to get out from under the Durham rule, and recrafting the law of insanity in a way that rested very heavily on the medical model – psychiatric model – and much less on deterrence and the ALI standard, as I remember at the time. Anyway, it was a fascinating period that I had in the Appellate Section. The people who passed through it, whom I was privileged to supervise, turned out to be amongst the best litigators in town. They were just wonderful people and it really was a wonderful time. Marred only by the sense that I had never tried a case in a courtroom and that fact 59 gave me a feeling, not of inadequacy, but a feeling probably best described as a feeling of incompleteness at not having had quite the array of experience that one would want when one is arguing, “These remarks could not have had an effect on the jury, there wasn’t any error, it was harmless error.” “Well kid, you’ve never been in a courtroom, you’ve never seen a jury deliberate, you’ve never confronted a prosecutor’s closing and so forth, and your remarks in that sense are a little bit empty.” That’s the kind of feeling that I had. I did manage – I will tell you – since the Appellate Section was on the third floor of the courthouse – I managed to sneak off to other floors of the Courthouse and watch trials. I watched Harold Sullivan, who was a young, but immensely talented prosecutor, and Vic Caputy. I would sit there for a few hours and watch them examine, cross-examine or close, and sometimes talk with them about what they were doing. And in that sense, at least, felt that I was imbibing a little. Granof: Who were some of the people you supervised who went on to be very distinguished that you recall? Zuckerman: Jim Sharp, who was a great, great trial lawyer, whom I supervised in a way that, in at least one case, was quite critical, and he to this day tells hilarious stories about how in the wake of my supervision and my criticism, he was convinced that he could not cut it as a lawyer, and had decided that he was going to go back to Oklahoma. Turns out my criticism of his argument and his brief was completely misguided. The case was affirmed. It’s an extraordinarily funny story. Jim went on to represent President Bush and a number of other luminaries and really has had a storied career as a D.C. litigator. I don’t know that I supervised Bob Bennett. I think I probably supervised John Aldock. There are probably twenty lawyers who came through during that period. Granof: Just turning to some nuts and bolts. I’m always curious as to what your 60 workload was. How many cases did you actually, personally argue? Zuckerman: I’m guessing I argued between fifteen and twenty-five. Fifteen and thirty. A lot of cases were resolved without argument. I probably sat as the second chair in the Court of Appeals for another forty or fifty. Granof: So you were arguing about one a month? Zuckerman: I would say two a month, maybe, and when I was a Deputy Chief and as Acting-Chief, probably supervised five a month. Maybe more. It was intensive, grounding and, I suppose, gave you a sense that if you could deal with the Court of Appeals, you could certainly deal with whatever it was a trial judge was going to throw at you. Turned out to be untrue. Granof: I’m not surprised. Zuckerman: It gave you a false sense of confidence. Trial turned out to be a completely different experience. But I went to General Sessions, did my stint in General Sessions. I kind of flipped the two experiences, and then I was drawn into a case that was not quite a career changer, but really was one of the centerpieces of my career in the U.S. Attorney’s Office. That case involved the prosecution of three New York, purported Mafia-connected, drug suppliers and a huge network of drug suppliers and distributors in the District of Columbia. The case arose in the following fashion. In 1968 at the instigation of Professor Robert Blakey, then a professor at Notre Dame, and an acknowledged expert in, and proponent of, wire interception and electronic eavesdropping, the Congress had voted the Omnibus Crime Control and Safe Streets Act of 1968. Title III of that Act authorized courts under a very strict regime to approve applications in certain circumstances for wiretapping and electronic eavesdropping. The Act was signed into law during the waning days of the Johnson Administration, but the Johnson Administration, through Ramsey Clark or whoever was the Attorney General, refused to implement the statute. Thus, it was little used in 1968. 61 When Nixon became President in early ’69, he thought wiretapping and electronic eavesdropping were appropriate tools in the fight against crime. A position which Nixon took – which may be one of the few – but it was a position that he took, which was eminently correct. Slowly, the various U.S. Attorneys’ Offices around the country began to respond by submitting wire interception applications that had to be approved. In the beginning, they had to be approved, I think, at Justice. There had been probably, I’m guessing, five or ten thousand court-ordered wire interception applications in the last forty years since that happened. The seventh was an application to intercept the telephone at a location, I believe, either in Northeast or Southeast, in the District of Columbia filed by Harold Sullivan, an Assistant U.S. Attorney and the head of the newly-created Major Crimes Unit of the U.S. Attorney’s Office here – probably in the spring of 1969. Whereas the first six applications from all over the country yielded very little, this application yielded a trove of communications by drug peddlers. It turned out to hit the telephone of what was essentially a 24-hour drug delivery service that was being supplied by these three New Yorkers. The interception ran for about forty days. It was – I’m sure to this day – one of the greatest mother lodes of criminality – certainly in the drug area. Granof: It hit the jackpot. Zuckerman: It really did. A good word for it. It really was a jackpot. It was run under the combined aegis of the U.S. Attorney’s Office, what was then called the Bureau of Narcotics and Dangerous Drugs – BNDD – and the Metropolitan Police Department. In early 1969, I was midway through perhaps four, five or six months in General Sessions. I had left the Appellate Section. Tom Flannery had come in as the U.S. Attorney. David Bress had gone. He had not gotten a judgeship which he wanted and would have gotten, I think, if Johnson had been re-elected, but he was not. The new U.S. Attorney was Tom Flannery. The case was named after the principal defendant, Enrico “Harry” Tantillo, and probably sometime in the spring or summer of ’69 62 there were fifty indictees in five separate indictments. The first of which had the core ringleaders in an indictment of about seven people. Judge Flannery decided to prosecute the case himself. He needed an experienced prosecutor to help him – and that was Ted Wieseman. But he said, “I not only need an experienced prosecutor, but this wiretap stuff is new. It will face a very significant constitutional challenge. It’s very important that it be litigated correctly and well. I need an experienced appellate lawyer to basically defend the wire interception.” So, he asked me if I would return from General Sessions and become the third member of the team with responsibility for protecting the wiretap. Sometime in the first half of 1969, I came back and spent the next year working with Tom Flannery and working with Ted Wieseman with primary responsibility to protect the wiretap. We probably did a four-week suppression hearing. I wrote and argued a variety of lengthy motions. The matter was litigated before Judge Aubrey Robinson, who was a great judge and a great person – really a great person. For a time there were death threats – real or imagined. Harold Sullivan was under police protection. He was the prosecutor who had gotten the warrant, but he was not on the trial team. I, at least, remember it as a time when I got a ride by a U.S. Marshal to work from Van Ness North and a ride home. What good that would do I have no idea, but in a slight nod to the lowest member of the trial team, there was a marshal who was assigned to keep an eye on me during my travel. We litigated against a storied group of defense attorneys led by Albert Krieger, who came down and represented Tantillo, a wonderful New York lawyer, who did a lot of mob work and is still practicing, I think, to this day; Bob Kasanoff, who in time formed his own small New York firm that we did a lot of work with in later years, and my personal favorite – John Shorter. John Shorter was one of two African-Americans who had graduated from Georgetown in the early 1950s. The other member of his class was Luke Moore, who became the U.S. Marshal in D.C. and a D.C. judge. They were 63 both whip-smart and Luke took one road – the U.S. Attorney’s Office law enforcement road – and John took the “guys and dolls” road – if I can put it that way – and ended up representing any number of notorious hoodlums, such as they were, at the time – gamblers and dope peddlers around town – but he was a wonderful man, a terrific lawyer, very handsome man, had magnetic presence in the courtroom and came to be in time a very, very close friend of mine. He died relatively young of diabetes. He represented the principal D.C. defendant, Lawrence “Slippery” Jackson – “Slip” as he was known to his friends. I had wonderful relations with all of them during the suppression hearing, during the trial. I took some witnesses in the trial, but the trial was principally Tom Flannery and Ted Wieseman. The trial, I think, was probably a two-month trial. Granof: How many defendants were there? Zuckerman: Seven. One died actually of an ectopic pregnancy, Slippery’s girlfriend, during the trial. There were six defendants. One of the defendants was represented by Tom O’Malley, who was a very nice man, a sole practitioner in Rockville, lovely fellow. I would not say nondescript, but nothing extraordinary about him. He was just a good lawyer. His son has turned out to be the Governor of Maryland, Martin O’Malley. There are a thousandand-one vignettes. This was a trial – it received extraordinary press. These were major drug figures, they were purported New York mafia people who were down here. The case involved the very early use of wiretaps which were played in the courtroom. It was a very, very large trial in its public image. Judge Aubrey Robinson felt that the attendance at the trial might be a problem for a regular courtroom. So he decided he would try the case in the Ceremonial Courtroom to accommodate the crowds that were likely to come to this extraordinary event, and the trial itself went on for six weeks in the Ceremonial Courtroom. I would say the courtroom never had more than about twenty people in it. It was not the draw the Judge thought it would be, but it was a very significant event in the legal history of the City – the 64 national history of the country – in terms of utilizing eavesdropping as a wire-interception tool. The issue has morphed eighty different ways since then and we now talk about the NSA. But back in the day, it was a much more basic conversation about what people’s expectations of privacy were on their phones or in their homes and what level of intrusion was permissible on a showing and what regime was permissible. Granof: You have to get a search warrant to do this? Zuckerman: Yes. But the warrant you had to get was not a “garden-variety” search warrant. It was, as Professor Blakey constructed the regime and as Congress passed, it had purportedly much greater rigor. You had to show, for example, that if I were investigating Gene Granof, that there were no other ordinary investigative techniques that would allow me to get this particular evidence that I needed, apart from the intrusive wire interception. So I had to write a section of the warrant that said ordinary investigative techniques would not suffice, and I had to give a clear and complete statement – not just a summary – but a clear and complete statement as to why that was the case. There are three or four other unique requirements that the statute imposes that in theory create a much more rigorous standard that a prosecutor has to conform to. Granof: Well, that’s interesting. Well, that’s the way the law was written, but why should there be a more rigorous exception for phone interceptions than say for a search warrant that basically says we’ll, look at the guy’s house? Zuckerman: Yes. It’s a fair point. I think you’re trying to decide the balance between the needs of law enforcement and the chilling effect, hard to measure empirically, but the chilling effect on the normal communications that citizens have over the phone that permitting some level of wire interception would create, and you make the judgment it’s about “here” that we want to strike the balance. We think that if we strike the balance “here” then “You, 65 law enforcement, will get what you need,” and “You, Mr. Citizen, will not feel as if you’re likely to be overheard willy-nilly by prosecutors who are taking the easy way out.” Granof: Maybe I misunderstand this, but this was a Congressional judgment, is that right? Zuckerman: No, it was a regular statute. Granof: That’s what I meant. It was a statute – Zuckerman: It was a regular statute, but all the legislative history and the analysis and the “to-ing and fro-ing” is done in Congress, and all of the subsequent litigation about suppression and deviations from the statute and what does this mean and what does that mean, it all is decided in terms of what’s in “the bible” that one looks at here, the legislative history of this statute. Granof: Before there was a statute would you have been able to go to court and simply say I want a search warrant? Zuckerman: No. Katz is the case. I think in the early 60s there were cases out of New York, Berger v. New York and Katz. They were cases that involved wire interception in New York. I don’t know whether the interceptions in both – I can’t remember – occurred without warrants. But they went to the Supreme Court – both cases – and in both cases, the Supreme Court tossed the use of the evidence. But with this inviting language: to paraphrase the Court’s opinion –This is not to say that if there were a rigorous statutory scheme that provided appropriate protections that we would necessarily find that as well to be outside the Fourth Amendment. So there was a cue in either Berger or Katz, and Blakey took it and ran with it, and the powers that be ran with it in Congress, and the result is this sea change in the way in which electronic data is collected and used for law enforcement purposes that has burgeoned into these extremely difficult issues today. But the seedling for all of this 66 was planted in the Ceremonial Courtroom of the U.S. District Court in front Aubrey Robinson back in 1970 in this extraordinary case. Remember, the first case involved only seven of the fifty indictees. Judge Flannery, I think, went on about his business. I can’t remember when he went on the District Court. Ted Wieseman left the Office and here are forty indictments of major drug figures in the City that needed to be tried. After the first case where I was the wiretap protector, the institutional knowledge about these forty people resided principally in me. Therefore, I was tasked to prosecute the remaining four cases, and they were prosecuted before Judge Robinson. I prosecuted one with my dear friend, Jim Lyons, that went on for about two months and we got convictions. Granof: How did the original case turn out? Did you get convictions? Zuckerman: We got convictions. Extraordinary long sentences – 20- to 30-year sentences – for the most part. There was a policeman who was convicted who got about five years, there was a lesser life from New York who got, I think, about five years. They were lengthy sentences. I argued the appeal. I did the remaining cases. We did one jury trial of six weeks, got convictions on all, and then we got pleas basically from everybody else because you can’t – they’re not reasonably defensible cases, and defendants got a much better deal if they pled. Finally, I got rid of those cases and then handled the appeal. The appeal we did as I was leaving the Office. It was a very important appeal because the legality of the tap was the foundation for fifty convictions roughly. I did a chart in an appendix to the brief to make the point that these fifty convicted individuals – Granof: Including those who pled guilty? Zuckerman: Including those who pled guilty. I can’t remember whether the defendants that pleaded guilty were given the right to withdraw their pleas; it is conceivable that they were if the tap was found unconstitutional. Sometimes 67 the government does that, sometimes they don’t. To indicate the importance of the investigative technique, I did a chart – there were roughly fifty convictions – and if you can imagine this, eight-hundred years of sentences. My thesis to the Court of Appeals was that there would have been no other way to break this case, certainly to this magnitude – and if ever you were to look at a wire interception and try to measure its value, this is the paradigmatic case. It’s the example of what a well-crafted wire interception can do to bring crime to heel. I made one mistake in the brief – a copy of which, believe it or not, I still have. I believe it’s the longest brief in a criminal case ever written in the District of Columbia. The brief was bound in book form. It was easily three-quarters of an inch thick, perhaps an inch thick, I think. When it was in typed form, before it was printed, it was probably 250-275 pages, something like that. There were a lot of issues that were raised and I thought the record deserved to be elucidated rather fully. I think at that time Roger Robb, I think it was Roger Robb, who had been appointed to the Court of Appeals, and I think he was on the panel. One of the judges on the Court of Appeals was furious with me and articulated his fury in the oral argument, chastising me for not finding a way to present the issues more concisely than in a book-length brief. I think in retrospect, he was 150% correct. I was imbued with the notion that this was an extraordinarily important case, that there was a great deal riding on it for the community and for lots of people, and that it deserved more than casual or more than regular attention. That was the centerpiece of my work in the U.S. Attorney’s Office for some significant period of time. Granof: Were you doing that full-time during this time? Zuckerman: Not full but a lot. I regarded it as a useful time investment as a public servant because it was, in effect, the equivalent of 30 or 50 separate cases and they were bad people. 68 Granof: Were you handling other cases at the same time? Zuckerman: Yes. Judge Flannery was very kind. I think he recognized that Ted and I had worked very hard and that this was a very significant case nationally. He nominated us for what was then a relatively rare award that was given to maybe a dozen Assistant U.S. Attorneys on a yearly basis for superior performance. Ted and I got such an award and there was a surprise presentation in one of the courtrooms that I will never forget. He invited the wives. Ted’s wife, Mary, and Irene came down. We were doing something and we were told to go to this courtroom. There was everybody in the Office and he made a nice little speech and gave us our award, which is to this day somewhere here. This was given to me as a consequence of the work. Granof: The award reads: “For Superior Performance as an Assistant United States Attorney.” And with that we can end this interview. 69 ORAL HISTORY OF ROGER E. ZUCKERMAN Fourth Interview February 11, 2014 This is the fourth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Tuesday, February 11, 2014, at 2:30 p.m. Granof: The last time we talked, we had discussed for a good part of the time your stint at the U.S. Attorney’s Office as an Assistant U.S. Attorney. The one thing we didn’t cover and we are going to talk about this time is the riots in D.C. in 1969. Zuckerman: Okay. It is perhaps useful to talk about the riots both in terms of my personal memories and the personal experiences that my wife and I had, and to talk about them in the context of the U.S. Attorney’s Office. First, here is a little background that might be useful. When I was a young fellow and a student in high school, I worked for a year, at least, as a clerk and learned the business of selling things at the Kay Jewelry Store at the intersection of 14th & Irving Street. It was a wonderful experience marred only by the fact that amongst the people who came in was my French teacher who absolutely disliked me in the extreme and I was very cowed by her. Isabel Cotton was her name. I learned to deal with the public. It was a nice experience, and I became very familiar with the area around 14th & Irving. There were various stores. There was a diner. I would take the bus from Silver Spring down 16th Street. If you fast forward for many years, when the riots came, Irene and I were living on Veazey Terrace on Connecticut Avenue in Van Ness North. She was working as a young occupational therapist in the Washington Hospital Center, and would drive down Irving Street to get to work and drive back. She was probably twenty-two or twenty-three at the time, and, I think, basically paid no or little attention to the experience which included, among other things, the 70 complete decimation of that area around 14th & Irving, where I had worked several years earlier as a clerk at this jewelry store. So there was a personal component, I think, that Irene and I experienced in that regard that we always think about whenever we are in that area, which is pleasantly and happily now the subject of an incredible renaissance. 14th Street is a spectacular area – many of the young lawyers in the firm live near 14th Street up in that area. Further east – we’ve driven around there – they have new condos and new offices. It’s spectacular. Someday the same gentrification will occur east of the river in Anacostia. It’s another 25 or 50 years, but that’s just the nature – the way development goes. In terms of my memories, apart from putting my wife in that oddly harrowing position, planning your drive to work every day, I don’t have particularly vivid memories for the following reason. When I was in the U.S. Attorney’s Office in ’69, I think the riots occurred when I was still doing appellate work. You had a lot of line Assistant U.S. Attorneys who were tasked with working up the cases that came in that were connected to the riots. I just don’t have a vivid memory of that. I don’t know that I was involved with the “papering” of new cases at the time. Granof: I said the riots were in ’69 but I think I misspoke. I think it was 1968. Zuckerman: Yes it was 1968. In 1968, I was in the Appellate Section of the U.S. Attorney’s Office and a lot of the Assistant U.S. Attorneys who bore the brunt of the work “papering” these hundreds or thousands of cases trying to figure out how to handle the massive stuff were young people of my age and experience in the Office, save that they had gone through the General Sessions entry, and therefore had enough experience that they could be given the responsibility for trying to do this. But those of us in the Appellate Section were not tasked with that effort. It’s a professional experience that passed me by, guess I would say. I have a memory of it. It was a horrific time and a hurtful time in a lot of respects, but one that 71 professionally I was not engaged in in a significant way. Granof: I know my memory of it and maybe this will jog yours. I worked at the National Labor Relations Board and I would walk home in the evening from 17th & Pennsylvania to Capitol Park in Southwest, and I will never forget the lines of police cars with their sirens screaming and you could see the shotguns sticking up in back. That was a very vivid memory. Zuckerman: Yes, I have those memories around the Courthouse area. Most of my private life was spent whipping up and down Connecticut Avenue and Pennsylvania Avenue and those areas were largely immune from difficulty. The person who should be interviewed with the vivid memories is probably Irene, my wife, who literally got in her car and drove from Connecticut & Irving to the Washington Hospital Center to go to work, and did not think twice about it at the time. That’s the best I can do. Granof: At some point you had decided that you were going to leave the U.S. Attorney’s Office. Zuckerman: It’s interesting as I think back. I had come right from law school, as I had earlier said, in the summer of 1967. By the summer of 1972, I had been there five years and I thought it was time to leave. There were a couple of judges who contacted me and indicated that they had recommended me to certain law firms and these firms were interested in speaking to me. I cannot begin to give you the reason – maybe it was hubris or maybe it was foolishness – but I didn’t want to do that. I didn’t want the feeling of beginning at the bottom again in a law firm and felt at the time – I was probably 29 in the summer of 1972 – and I felt like there was enough work out there that I could get and I wanted to see what it would be like if I hung out a shingle. From the summer of 1972 until the end of 1974, I practiced with three – also former Assistant U.S. Attorneys – who to this day, are amongst my best friends: Jim Lyons, Phil Kellogg and Edwin A. Williams. 72 The name of the firm was Kellogg, Williams, Lyons & Zuckerman. There were four of us, who literally went out and subleased space in the Woodward Building, which was at the time in great disrepair. We were on the top floor of the Woodward Building subleasing space from Command Financial Corporation. Each of us had a small office. There was a gym – I’ll never forget this – circa 1972 on the top floor of the Woodward Building at 15th & H. It’s the Woodward from Woodward & Lothrop. Granof: That’s what I thought. Zuckerman: It was at one time a fine old building and by that time it was in some disrepair. The four of us had subleased space within Command Financial Corporation, and for about two and one-half years we really scuffled around doing interesting work that our colleagues who had left the Office would send us. Granof: First of all, did you talk to these guys – get together informally? Zuckerman: There were others. We had talked to Chuck Work, who went on to a great career at McDermott, Will & Emery; John Rogers, whose father was a congressman; and there were a group of us who had talked back and forth about creating a law firm and going out on our own. Granof: All Assistant U.S. Attorneys? Your contemporaries? Zuckerman: All Assistant U.S. Attorneys without a pot to piss in. You should excuse me. We had nothing. We had our life savings – our retirement account. Granof: You did not have kids at the time? Zuckerman: I did not have kids. Granof: You had a working wife? 73 Zuckerman: I had a working wife who was an occupational therapist. I just can’t give you the reason. This was just what I was determined to do. I didn’t want to become an associate at a nondescript law firm. Granof: It does seem that it wasn’t that you were such an outlier because you had other people – your contemporaries who had exactly the same idea. Zuckerman: There were others in the Office who did this. I must say, part of the reason, those are dim times in the past – part of the reason – economically was this. There were established firms in town that did litigation, but they did not do much “white-collar” litigation or criminal litigation. First, it wasn’t a big thing at the time, and second, there really wasn’t a huge amount of demand in the marketplace for young lawyers coming out of the U.S. Attorney’s Office. Nothing in my view like it is today. Even for, immodestly, someone who had a reasonably decent record and resume, it was not the easiest thing in the world. I intuited I could move ahead in life faster somehow, for some indescribably naïve reason, if I said, “Here I am – I don’t have a boss – I understand my way around a courtroom in some basic ways, and I am here to do work for you.” It struck me that I could be more of a presence, if you will, in the marketplace if I did that, rather than if I carried someone’s briefcase as a junior lawyer. Granof: The U.S. Attorney’s Office from everyone I’ve talked to is high – a professional high – in the sense you are doing important stuff and you have a lot of independence. Zuckerman: Well put. I adopt that. Granof: And then to go work as a junior associate, going through files – Zuckerman: It felt like it was almost a step backwards. I’ll put it that way. It just didn’t feel right. For the first year from mid-1970 to mid-1973, it was an awkward year because the engagements that we got, with one exception, 74 were minor engagements. The one case that was interesting and was a little bit impactful in my life involved the representation of three senior officials of the United Mine Workers, who were members of the Tony Boyle administration. Boyle had just lost an election to a reform group led, I think, by Arnold Miller. The general counsel of the new administration was Chip Yablonski, who has become a lifetime friend and is a great guy. Granof: He was a colleague of mine at the National Labor Relations Board. Zuckerman: Yes, a great guy, great labor lawyer, and he was a young fellow. At the time, he had some young colleagues with him. He went on to take his young colleagues out of the Mine Workers and they started their own firm, Yablonski, Both & Edelman. We sued the Mine Workers claiming that they had violated the Labor Management Reporting and Disclosure Act by firing, for political reasons, these three officials. It put us in contact, as our adversaries, with Chip and Danny Edelman and a third lawyer who is very bright and went on to teach at Harvard. We litigated well and won one of three cases. Granof: How did you get the case? Zuckerman: I have not the foggiest idea. It was a case ultimately on which we prevailed. It was a good experience. I think it made us feel as if we had, as it were, the right stuff in civil litigation and it was fun. The only other case of great significance during this period was a defining moment in my life in a lot of respects and it could be the subject of an hour-long interview. It was a famous case – the wire and mail fraud prosecution brought by the Postal Service and the Department of Justice in the Middle District of Florida against a very charismatic promoter by the name of Glenn Turner. Glenn had a cosmetics company called Koscot Cosmetics. You could either sell the cosmetics or you could sell distributorships. It 75 was an early example of a fairly sophisticated multi-level “Ponzi” scheme. He was a charismatic South Carolinian and had a very charismatic presence at opportunity meetings – almost old-time tent meetings that he would conduct with his South Carolina colleagues and officials. He would raise huge amounts of money from people who purchased distributorships. Those people would get money from others to whom they sold distributorships and from those to whom the successors sold distributorships. It was a classic “Ponzi” pyramid scheme. The State Attorneys General had tried to shut this down. It was quite popular. Glenn went out and hired as his advocate F. Lee Bailey. Lee being in 1971 probably 39 or 40 at the time. A part of Lee’s fee was a Lear jet that helped Lee to do this – Lee being a pilot and somebody who loved these kinds of toys. Lee flew around and spoke at mass meetings about the propriety and legality of what Glenn and his people were doing. They had meetings in Madison Square Garden and elsewhere. A lot of it was videotaped or filmed at the time. The Postal Service, believing that this was a “Ponzi” scheme, began an investigation. Ultimately, Turner, seven or eight of his senior executives, and F. Lee Bailey were indicted. Bailey was indicted principally on the theory that he became not simply a lawyer, but a business endorser of the program knowing that it was an illegal “Ponzi” scheme. The nine or so defendants went to trial. The case was brought in Orlando, but transferred to Jacksonville. They went to trial before Judge Gerald Bard Tjoflat, then a district judge, later to become Chief Judge of the Eleventh Circuit, in a trial that occurred from the late summer or early fall of 1973 until the spring of 1974. Nine months of trial in which the government presented probably on the order of 150 witnesses, I would guess, prosecuted by Hugh Smith and two or three others – good lawyers in the U.S. Attorney’s Office in Florida. Through the reference from a great friend and colleague in the U.S. Attorney’s Office and a great lawyer in his own right – Ken Robinson – I and Jim Lyons, my partner at the time, were referred two of the nine defendants: Glenn’s uncle, Harry 76 Atkinson, who was a young company official; and a younger man, Jess Hickman. I became the principal attorney for both of those men and commuted from Washington, D.C. I had an apartment in Jacksonville, Florida and I commuted Sunday nights on an Eastern Air Lines flight to Jacksonville, spent the entire week there and came back Friday nights. I did have, at that point, a young daughter. I had Laura, my young daughter, who was probably two or three, and it got to the point where when Irene would pick me up, Laura could identify the different airlines – knew Eastern and United and all those. I commuted faithfully for nine months, often staying the weekends, mainly coming home, representing these two against an onslaught of evidence which the government brought. Lee Bailey represented himself for about five months and then got a severance under the “Echeles-Shuford” doctrine, wherein he was able to show that one of the defendants had averred that he would testify for Lee in a separate trial, but would refuse to testify for Lee in a joint trial. That created a pickle for Judge Tjoflat and the government out of which they could not get, and Lee was able to get a severance. Before then, he appeared in court and simply represented himself. But in the main, I think, Lee disdained the proceedings and would often spend much of the day in a room that was made available to the defense during trial; it was actually an empty judge’s chambers, which was somewhat adjacent to the courtroom in the old post office in Jacksonville. Lee absented himself from the courtroom in part to give evidence to the jury – to give the jury the impression that these proceedings, and the events they were describing, really had nothing to do with him and that he was quite disinterested in them. He was simply a lawyer. Granof: This was a tactic on Bailey’s part? Zuckerman: It was a tactic on Lee’s part, and indeed Lee slept and would take naps on a 77 big sofa in the chambers. Granof: The jury didn’t see this. Zuckerman: The jury never saw it, but it was an interesting pose for a talented, brilliant, and, in his own right, charismatic young lawyer, who by that time had written the book The Defense Never Rests. Granof: I didn’t realize he was that young. Zuckerman: Lee, to back up for a moment, I got to know Lee extremely well and became extremely close to him during the five months we were together. Granof: He is an enjoyable character? Zuckerman: He is a brilliant and wonderful person whose career began when he was in his early thirties. He had gone to law school after Korea, I think, where he had been a pilot, going to Boston University School of Law, and he hung out a shingle and had a succession of cases, involving: “The Boston Strangler,” Dr. Carl Coppolino, U.S. Army Captain Ernest Medina of the “My Lai Massacre,” and Dr. Sam Sheppard, which he took to the Supreme Court on grounds of prejudicial publicity. For a young man in his early to mid-thirties, he had established an incredible mystique and had a national reputation. He had a small firm and I met and became very close to a few of his younger partners, who would come down to see how he was doing. This was a terrible event in his life and put a big crimp in his career. But he survived to go on to his first big post-trial engagement – the representation of Patty Hearst. I was down there in Florida for nine months. Our fees and expenses were paid for roughly the first five months. The last four months, fees and expenses were not paid. The cast of folks in the foxhole dwindled somewhat. Periodically, the electricity in our apartments was turned off and it became something of a grim experience to make it through. 78 Granof: How could you afford to do that? Zuckerman: Well it cost me and us, but I made it through. The closing arguments – if you can believe this, I will never forget this – the closing arguments in the case occupied a period of at least ten days. My closing was four hours – I was hoarse at the end – I would say the average closing was in the two-to four-hour range. The government’s closing initially was much longer and the government’s rebuttal was much longer. The jury went out and the jury deliberated for ten or eleven days, at the end of which two jurors were taken to the hospital suffering some sort of anxiety or exhaustion. The judge declared a mistrial. Nine months of trial went down the drain. We believed we had a majority of the jurors with us. You could tell after eight or nine months just by the affect of these jurors who they were rooting for. The thing that I find most amazing in retrospect – I find it mind-boggling in retrospect – is that the jury was sequestered the entire nine months. These are people who were forced away from their jobs, their homes, their families, to live in a dorm room for nine months – being allowed only one afternoon on a weekend to go home and re-establish their relationship. They were locked in. Granof: And why was that? Zuckerman: Turner was a charismatic fellow. The judge was concerned that he had a following that would not quite be described as a cult following, but he had a very active and loyal following, and the judge was concerned about publicity or about contact. The original estimate of the length of the trial was three months. The government, in retrospect, made massive mistakes in not paring its case down. There was too much overkill and it became kind of World War I trench warfare. It was awful. Granof: What I was going to ask you, first, how do you pick a jury? This was I assume a cooperative endeavor? 79 Zuckerman: We had an early version of a jury expert as best I can recall. Granof: How many lawyers did you have on the defense? You had how many defendants? Zuckerman: We had nine defendants, I think. Lee represented himself, so we had eight represented by their attorneys. Turner was represented by a wonderful, wonderful Atlanta attorney who has gone on to great fame, Ed Garland. The other lawyers were very talented Florida lawyers. Ed probably had five lawyers on his team representing Glenn. The others had one or two. It was, by today’s standards, not a huge group. There were probably between 12 and 20 lawyers who cycled through at some point. The prosecution team, I think, had four lawyers. All of this was done back in the day before anything remotely approaching electronic documents or discovery existed. There must have been ten file cabinets of documents in the case that were kept in a file room that was an adjunct to the courtroom. For the most part, I would say that the lawyers were well-behaved. There were some conflagrations that were memorable. It was an extraordinary experience. The reason that it was meaningful to me is because I saw the prosecutors, I saw the other lawyers on the defense, and I saw Lee. Again, I intuited – I was 32 or 33 – they were all very young – the whole crew was under 40, many were under 35 – and I said I think that I can do this about as well as they can. I don’t think there is any real difference between them and me and, in many respects, I think I can do it better than most. Granof: It gave you a huge amount of confidence? Zuckerman: It gave me confidence and it gave me double confidence because Lee was looking for an ally (as I will describe in a minute) and basically asked me from the group if I would be his lawyer in his efforts not to be retried. He had been severed out and he didn’t want to go back to trial; he wanted to 80 file double jeopardy claims. After the trial, Lee asked me to represent him. He also asked me to work with him on an antitrust case that he had gotten, and he asked me if I would write the motions for him in the Hearst case, which I did. Granof: That’s a lot of stuff to cover. I want to get to that, but before I do I want to ask you about this trial because trying to envision a trial with nine defendants and fifteen or twenty lawyers in a sea of ten filing cabinets full of stuff. That is sort of like trying to think of the fourth dimension. It’s just so hard to imagine. How do you this physically? How do you seat nine defendants and their lawyers? Zuckerman: Well, it was a very large courtroom. Remember, I had said we had done six weeks in the Ceremonial Courtroom. It was configured so that it held everyone. The trick for me, at least, was there is a pattern of activity and behavior that you establish for yourself. Some of the lawyers went out at night and caroused. I went back and tried to be conscientious. I took notes – I was a very good note taker. I reduced the notes to summaries at the end of each trial day so that by the end of the trial I had summaries of two hundred or three hundred witnesses that I could work with. Remember, I had no computer at that time. I was diligent and organized and committed. Somehow in a subconscious way I said to myself – and Irene, who put up with this craziness, stayed at home for nine months with a two-year-old kid, I think, intuited it as well – this probably is an important experience. Granof: Was she working during the time? Zuckerman: She was not, no. It was always her attitude I will give him free rein to do what he thinks is required of him professionally. I am sure there were moments of frustration and depression and thoughts like “what am I doing here.” But in the main, particularly because we hung the jury, you look back on it as just a wonderful experience. One of the things I came to 81 learn in doing this for forty years is a trick of human memory that is very bizarre, which is that your experiences when you have them in these long trials are fixed. I have had a bunch of long trials. You either have a good dinner or bad dinner. You either have good friendships or bad friendships. But your memory, when it’s all over, is massively colored by whether you won or lost. If you won, it’s just the most wonderful thing in the world to think back on. You had the greatest time and your friends and colleagues and stories from the foxhole are spectacular. If you lost, notwithstanding that your experiences were just as great, the whole thing has a completely different feel to it. I have been on both sides. It’s amazing. And this one is sublime and golden, because we fought off the government through a lot of hardship. Granof: I have two questions. The first is the testimony with nine defendants is going to sometimes pertain to your clients and sometimes you really wouldn’t care what they are doing. Zuckerman: I would say, in the main, the principal categories of witnesses were either people who had invested – investors from different states – or State Attorneys’ General. Those two were big clumps of witnesses. Then you had some insiders. And to be sure, a lot of the witnesses had nothing to do with Harry Atkinson or Jess Hickman. So there were periods of time where you would sit in the courtroom and days would go by. You would participate a lot in the legal arguments and the objections, but not in the actual cross-examination of witnesses. There would be a lot of time that would go by. Granof: Were there any conflicts between the defendants? Zuckerman: I would say no. Granof: Did you guys talk strategy and who’s going to object? 82 Zuckerman: Yes. There were very intense meetings at the beginning. Again, it’s characteristic of a lot of long trials. Then the thing took a routinized aspect. It’s another day, and there are another seven victims who will be appearing. It’s another day, and there are three Attorneys’ General who are coming in. I was given an Attorney General, you go find and interview him, and ask him the questions we ask. This is what we do. The thing had a routine, very much like a tennis match, and you understood where they are hitting their ground stroke and it was your job to hit it back. There were long periods of routine. No novelty. Then, of course, as the case begins to wind up, there is a ferment of activity, because you’re dealing with instructions and closing argument and the like. My vignette I tell for posterity is a cute one, and it shows you how the foibles occur in these kinds of situations. As I said earlier, I had very good notes and I had two defendants and a lot of good ideas for closing and I wrote – actually typed, I had my typewriter down there – about a 60- or 80-page outline of my closing argument. I had practiced it. It went for four hours. I had a rental car, and court began every day at 9:30 a.m. The day I was supposed to deliver my closing, I drove to the courthouse, opened my briefcase and my outline was not there. I had left the outline back at my apartment. If I had done this at the age of 70, I would have simply notified the clerk, you’ll have to tell the judge I can’t begin at 9:30, you’ll have to give me some time. There are papers I absolutely need. The judge probably would have barked a little, but it was okay. But at the time, I was still young and was in a complete panic and must have driven 90 miles-an-hour back to my apartment to get my outline and 90 miles-anhour back to the courthouse to get there by 9:30. Very, very bizarre and I will always, always remember it. Granof: I would think so. Did you ever think you would do it without your outline? 83 Zuckerman: No, no. Granof: That would be hard with four hours. Zuckerman: It would be hard to go four hours without my outline. I had a very nice relationship with the judge who, for no particular good reason, favored me. It was apparent he favored me and one other lawyer on the defense side. Maybe it was a mark of how ineffective we were and how noncontentious we were. I think he favored us because he thought we were good lawyers. Granof: As Irving Younger would say, straight shooters. Zuckerman: Yes. It was that as well as my developing a relationship with Lee that gave me the feeling that I could really do this. As I said, Lee left after five months, and after the trial was over and the jury hung, I went back to D.C. – it must have been the spring of 1974. I began working with Lee on some of his matters, again representing him. Granof: Can I ask you some more questions about this trial such as the mechanics of, the potential difficulties, in a trial that size with nine defendants and twenty lawyers? First the lawyers. They were all, perhaps not all, you said were some of the top trial lawyers in Florida? Zuckerman: Yes, they were good. They were young, but good. Granof: And trial lawyers have a lot of self-confidence. So, you have all these egos. Was that a problem? How do you work these things out? Zuckerman: No, I don’t think the egos were a problem. I think it was viewed as a plum case with publicity. You were getting paid what seemed like a substantial amount for a trial that was expected to last three months. Ed Garland was Glenn’s lawyer and probably the preeminent defense personality. I think people respected that and respected their positions in the case. The case became problematic for many of the lawyers, who were sole practitioners 84 or small firm lawyers, when the money stopped. Several of them went out and got junior lawyers. Some may have even employed junior lawyers to sit in court with their client, with the client’s consent, while they absented themselves, with the client’s consent, and went on to do other paying work, which is technically permissible under the rules, but not the kind of thing that I thought would reflect well if I were to do it myself. I’m there for the duration. I care about these people. My job is to keep them out of jail and keep them innocent, and I’ve got to stay regardless of the financial situation. Granof: Where did the money come from? Who was paying the fees? Zuckerman: Turner’s enterprises paid the fees and the bills were enormous. His enterprises apparently had a very substantial amount of money, but the money ran out. But in any event, they were re-prosecuted after the hung jury. We were not involved in the re-prosecution. Many, including our clients, took misdemeanor pleas and probation. Turner was actually tried and was convicted the second time around and went to jail. Granof: Just selecting a jury, I mean, how do you select a jury? This was expected to be a three-month trial. Zuckerman: The point you raise is really a good one. I don’t have a clear memory of what was an earth-shattering event for these twelve jurors plus four alternates. They were initially selected on an assumption that it was a three-month trial and were somehow reassured that they could live with the burden for three months. My recollection is that although the judge set hours that were reasonable, he didn’t do what I think a lot of judges would have done in the modern age, and that is he didn’t badger the government to pare its case down. He didn’t sense that this is spinning into a disaster for this jury and for the criminal justice system and for the result here. There was not enough of that pressure from the Court. 85 Granof: Did you interview the jurors afterwards? Zuckerman: No. I got out of town. Granof: Did anybody do that? Zuckerman: I don’t have a clear memory. I do have a sense that the split was something like 7 to 5 for acquittal. Either version would have been accurate. Granof: For all of the defendants or just your clients? Zuckerman: I think all. I think they were split by – it had become political – the prosecution and defense had become in essence political parties by the end. There were very fixed views I think the jurors got. It’s the nature of trying a case. Well short of the end of a nine-month trial jurors have pretty much made up their mind. A lot had to do with whether they viewed the aggregate antics and behaviors of the defense as attractive and populist – that was who Turner was portrayed to be – or insidious and dishonest. I think for a number of the jurors they found the defense lawyers – none of the defendants testified – to be sufficiently attractive, and the prosecution to be sufficiently narrow and straight arrow, and to the modern world would be viewed as “corporate.” It was more fun rooting for the defense than it was for the prosecution. It was an extraordinary trial. It certainly at the time was one of the longest federal trials ever to end in a hung jury. It got a lot of press. Granof: Did you say the jury was hung or there was a mistrial? Zuckerman: The jury hung and therefore there was a mistrial. Back to square one. Granof: Two of the jurors had to be taken to the hospital? Zuckerman: The judge, of course, having invested nine months, was determined to require this jury to deliberate until a verdict. The jury deliberated for ten 86 or eleven days and then two jurors became emotionally incapable of continuing at least without going to the hospital. It’s at that point that the judge threw up his hands and said, in essence, we are going to have to declare this a mistrial. Can’t have any more deliberations. We all went home. Granof: Was the judge asked to give – don’t they give – Zuckerman: Allen charge? I don’t have a memory. I am sure the judge gave something like an Allen charge. We argued over it. Again, as I said, the cement surrounding the affiliations that the jurors felt for either the prosecution or defense had so hardened by this point that it really didn’t matter. Granof: I could see why it was a defining experience for you. Zuckerman: It was extraordinary. I actually became very good friends – the two relationships that were most significant to me were – the relationship that I began with Lee and the relationship I began with Ed Garland. I ultimately came to do a great deal of work with Ed in and around Atlanta, including the representation of essentially the Estate of Michael Thevis in the midand late 70s, who was probably the country’s wealthiest and premier pornographer and who was prosecuted federally for a number of crimes. The government sought to forfeit, under RICO, a vast amount of money – something like 12 million dollars – that he had put in trust for his wife as well as other assets. We represented the trust and his wife. It was the first case that Bill Taylor did with me when he came and joined me in 1977. I will finish out this chapter thusly. I came back from the trial. It was the summer of ’74. I had been exposed to fastball pitching and felt that I could hit the fastballs, and indeed hit the curves. I wanted to exploit what I perceived to be my new set of relationships and felt that I could do that. But I didn’t feel comfortable that I could do that as a partner at Kellogg, Williams, Lyons & Zuckerman. 87 Granof: Why was that? Zuckerman: I felt that it was easier for me to present myself as a presence, if you will, if I was not the fourth lawyer in a four-lawyer firm and if I were on my own. It’s an intuitive feeling. I think it was also rational. So with a great deal of sadness in probably October or November of 1974, I went to my partners and I said, “Look, I think I am going to try this on my own.” One of the reasons, I suspect, was that I had the feeling that I could attract and build something with other lawyers, but I really didn’t have the autonomy to do that in a firm where I had three other equal partners. I wanted the feeling that I had more control. In the summer or fall of 1974, I took my furniture, which included, at the time, the desk on which we are now working, that plant behind you, and a few other odds and ends. I found a sublease office on the fifth floor of The Ring Building. You can see the windows from where I am sitting. In the offices of a great, recently deceased, wills and estates lawyer, Ira Siegler. A great man, who subleased me an office in the Ring Building at 1200 18th Street, N.W. In October or November 1974, I established an office there and began to park at 1800 M Street, N.W., in the same parking lot where you may have parked today, and where I have been parking for, in October, what will be the last forty years. I have parked here every day that I have worked. Granof: They should gold plate your space. Zuckerman: They treat me like the Chief Judge. I hung out my shingle as “The Law Offices of Roger E. Zuckerman.” Granof: Did you have a secretary? Zuckerman: I had a succession of secretaries until mid- or late 1975 when I hired the 21-year-old Judy Elam, who knew a secretary for Ira Siegler, named Joan 88 Spire. Judy was Joan’s friend and worked for a trade association in The Ring Building. She had never before been a legal secretary. She grew up on a farm outside of St. Louis. She was a Missouri girl who had been in the big city for a year or two. I liked her and she was pretty detail-oriented and very conscientious. By the end of 1975, it was Judy and I. Then, I began to get work from Lee Bailey. I began to get other cases. I could sense that I would be able to support myself, and that this was working. Also, I had more freedom and flexibility and could spread myself more effectively than if I had remained a partner in a four-lawyer firm. Granof: A few minutes ago, we were starting to talk about your relationship with F. Lee Bailey and some of the work that he was giving you and what happened after the trial. Zuckerman: After the trial, Lee came to me and said that he thought there was an argument that double jeopardy should preclude his retrial. One normally in a criminal case cannot take an interlocutory appeal. However, one can take an interlocutory appeal if there is a claim that to put you on trial would subject you to double jeopardy, because that’s an irreparable harm and you are entitled to go to the court of appeals whenever that occurs. At that time the law stated that the only basis upon which a double jeopardy claim could be made in connection with a mistrial was if the mistrial had been caused by deliberate government misbehavior. It was not an argument that we could make, or at least easily make, since Lee’s mistrial was the result of an “Echeles” or “Shuford” claim that his co-defendant would testify for him, but only in a separate proceeding. I can’t tell you the argument we constructed. We also made a speedy trial argument, which I think is not subject to interlocutory appeal, but as an appendage to the double jeopardy claim we could make it. I wrote the brief. We filed it in the Fifth Circuit. The case was set for argument. I remember I went down and stayed at the Royal Orleans in New Orleans. I had prepared, as I always did, my argument quite carefully, and I had rehearsed it. I knew 89 exactly what I wanted to say. I had not spent a lot of time counseling with Lee and met with him – probably the night before I was to give the argument – and gave him a sense of it. Lee who is very opinionated and has a very powerful personality said, “You got it all wrong. It can’t be argued that way.” Then he completely spun out the argument that he felt was appropriate. At this last minute, I had to completely rejigger what I was going to say. I went with Lee and argued the case in the Fifth Circuit. Granof: Was that in the Old Fish & Wildlife Building? Zuckerman: No, that was in the world’s most spectacular courtroom with a beautiful purplish red rug – burgundy rug – in either the courthouse or the post office building. It was a palace, I thought. I argued the case and we lost. My memory is hazy here, but I think what happened is Lee went back to trial, represented himself, and somehow obtained a dismissal on speedy trial grounds. He certainly never went to trial. He certainly was never convicted. I think he got a dismissal on speedy trial grounds; either that or the government dismissed against him. He escaped, as he should have, because in my mind, clearly he was innocent. He went on to his next adventures with me. His next adventures involved the following. Granof: Before we you get to that, what happened to your clients? Did you continue to represent them? Zuckerman: No, we did not represent our clients for the second proceeding. They had court-appointed counsel with whom we worked. They entered pleas of guilty to misdemeanors and received probation, which was a good ending. They had originally, you might say, spent nine months incarcerated in the courtroom in Florida, and this was an appropriate ending. From that mid70s period with Lee, the three cases of consequence which are interesting are these. I wrote the motions for him in the Patty Hearst case. He argued the motions. Also Lee and Gerry Alch, his partner, as young hotshots, had 90 represented in the Watergate period James McCord, one of the Watergate burglars. This representation occurred concurrent with the Department of Justice investigation of Lee to see whether he ought to be indicted for mail fraud in the Turner case. The representation was probably in 1971 or 1972. So there is an early 1973 investigation of Lee at Justice and he is representing McCord at the same time. When the Watergate tapes became available in the mid-70s, it’s apparent that one of the things that Attorney General Mitchell is talking about is the fact that they believe that, in some indirect way in 1972, they had access to Lee. And McCord, in the mid70s, went to a very fine lawyer, Rufus King, Sr. Rufus King, Jr., his son, was a good friend of mine; he worked on the case with his father, and later became the Chief Judge in D.C. Superior Court. Rufus King, Sr. and Rufus King, Jr. filed a complaint against Lee and Gerry Alch in 1975 or 1976 asserting that Lee and Gerry Alch had conspired with Mitchell to keep James McCord quiet and not let him cooperate with the prosecution of Watergate, which in all likelihood would have included John Mitchell as a defendant. In return for Lee’s help, Mitchell allegedly gave his assurance that Lee would not be indicted in the Turner case. It was Mitchell helping Lee to avoid indictment if Lee helped Mitchell avoid indictment by keeping McCord silent. That’s the allegation. There was a complaint filed in the United States District Court for the District of Columbia in or about 1976. Lo and behold, for a young fellow who is out there trying to earn a living, Lee had a malpractice policy, and the St. Paul Insurance Company was obligated to pay the costs of Lee’s defense. Lee came to me and said, “Would you defend me?” The essence of the case was trying to determine whether Lee had been a member of the Watergate conspiracy, basically keeping McCord quiet in return for trying to get some favors from Mitchell and his cohorts. I, along with Roger Spaeder, defended Lee. Roger Spaeder had become my partner by early 1976. Rog, I love dearly, and we can talk more about him. I asked him to come to work for me in early 1976. He became a partner at some point thereafter. 91 The case probably went on for three or four years – went on for a long time – and it was a good piece of business for us. It was a particularly interesting case because the essence of Lee’s defense was to obtain statements from, or at least confirm from, John Dean, Jeb Magruder, William Bittman, John Mitchell – all these people – that Lee was not in cahoots with them in connection with his work for James McCord. I, yours truly, at what was then, I think, paid $70 per hour. But it was a goodly sum of money. Granof: Well, it was good money then. Zuckerman: I went all over interviewing every significant human being that I could find who had participated in Watergate. Granof: Who was the Assistant Attorney General for the Criminal Division at the time? Zuckerman: Henry Petersen. Did not interview Henry. Either Mitchell was deposed or I talked to Mitchell. I went to California. I interviewed Jeb Magruder, who had entered the pastorate, I think, at the time. Granof: You talked to Mitchell? Zuckerman: I think I talked to Mitchell or he may have been deposed. I talked to Dean. We deposed Bittman and probably a half dozen others, whom I can’t remember. It was extraordinary. On the other side were these perfectly lovely lawyers, Rufus King, Sr. and his son, Rufus King, Jr., who went on to become a judge and indeed a beloved Chief Judge. It was a wonderful case and ended up – I cannot describe to you the terms. We ended up essentially settling, on what I thought, were very favorable terms. It was a very interesting case. Roger Spaeder argued Defendant’s Motion To Grant Summary Judgment on collateral estoppel grounds before U.S. District Court Judge John Lewis Smith, sometime in late 1977 or early 92 1978. Spaeder won at that level as Judge Smith granted that motion. Judge Smith held that since the U.S. Court of Appeals for the D.C. Circuit, in affirming McCord’s criminal conviction, had decided against McCord on these same precise facts when he claimed that he did not receive effective assistance of counsel from Bailey’s law firm. [United States v. James McCord, 509 F.2d 334, 166 U.S. App. D.C. 1 (en banc 1974), cert. denied, 95 S. Ct.1656 (1975)] McCord was collaterally estopped from relitigating these claims under the guise of a civil malpractice case. Judge Smith’s decision in the civil malpractice case was appealed to the U.S. Court of Appeals for the D.C. Circuit, which upheld Judge Smith on all his findings, but one. It found that McCord still had a colorable claim under the first clause of 42 U.S. Code, Section 1985 (2) (Supp. II 1978) that had not been addressed in the appeal from his criminal conviction, and thus was not barred by collateral estoppel. The Court of Appeals sent the case back to the District Court on that issue. [McCord v. Bailey, 636 F. 2d 606, 204 U.S. App. D.C. 334 (1980)]. Sometime after the Court of Appeals decision, the case was settled. I had an antitrust case with Lee in the folding carton industry in Chicago that I did in the mid-70s. My client who was Bill Hart, William S. Hart – not “the” William S. Hart, the cowboy – but a good guy, who became a friend for the next thirty years. We did a lot of work for and had a lot of good adventures with Bill. My connection with Lee and my connection Ed Garland were just terrific sources of exposure and business during that period and years and decades to follow and really were the cornerstones of my ability to grow the little business – first, by taking Roger Spaeder, and then a year or so later, teaming up with Bill Taylor and aggregating others throughout the remainder of the 70s. By the early 80s, we were probably ten or twelve. That was just an important high-octane aspect of it. Granof: Up until you had mentioned this antitrust case for the folding carton industry, that’s the first time you had said anything about a case that was 93 other than a criminal case. Zuckerman: This was criminal. Granof: Oh, this was a criminal antitrust case? Zuckerman: Yes. In terms of your asking did we do much civil stuff, we did Lee’s malpractice case. I guess you could say that was the biggest civil case that we had at the time. I am sure there are others that do not really stand out to the same degree. My recollection is that we, I and Spaeder, had a good reputation by the mid-70s. We were solid – still young – I was 33 – Spade’s a year younger – still very young people – who had some pretty good experience and had some pretty good relationships. Granof: You had gained a reputation in town? Zuckerman: Yes, I would say – I don’t think that’s overstating it. I had a good reputation with a slice of the young bar, in the main. But as important as that was, I began to sense what I think has long been true, and that is it’s not the people in D.C. who end up necessarily giving you the work that is important. It is prominent people outside the City, who are looking for D.C. lawyers – or looking for good lawyers – that decide if you can do the job and they can trust you, then they will often hire you for the important work. I think that proved to be true. The other thematic facet of my early apprenticeship, my early inculcation into the practice, was a sense that in the years to come the practice of law – I saw this in Lee – that the practice of law, or at least the kind of trial law that I thought we would do, was almost national in scope. You just wouldn’t focus on your local courthouse. You would hold yourself out as somebody who would get on a plane and go anywhere and exist for nine months if you had to. That was actually more fun than going to the local courthouse. It was the away game. There was no exhilaration like being under the gun in an away game, in a foreign courtroom with a hostile adversary and putting up your 94 best fight and one hopes prevailing. That was just neat. And it made you feel good. I think in many respects that’s – more about this when Bill comes along, because I think Bill felt it too – but that’s the nature of the practice that we imagined. I think not just for ourselves, but we thought that’s the way the law was trending. Local lawyers would do well, but that if you were a lawyer who had the ability to go to Montana or San Francisco or Dallas or Boston or New York, you could find a lot of work – people would ask you to do that. Increasingly, the practice of law, at least litigation, was becoming national. And lawyers were increasingly fungible geographically. Granof: Litigation is hard on family life to begin with because it’s so intense. But litigation nationally, where you’re traveling and away, must be even harder. Zuckerman: Yes. Again, as I said earlier, my wife, Irene, was and is extremely understanding of the sacrifice that’s required of her for me not to be around for long periods of time. She has been wonderful about it, and, although you are not doing psychoanalysis, you could observe that it probably impinged on my skills and abilities as a father. I was very committed to the firm, very committed to my practice. I have two wonderful daughters to whom I tried to pay attention, but I suspect in many respects Irene was by far the dominant influence in the lives of my daughters until they were sixteen or eighteen. I got passed the ball at college age, I guess you could say. It is a sacrifice. I think that, in many respects, today’s young lawyers who don’t travel have it just as hard, in some firms at least. I hope not here. Granof: Yes, because the hours are killing. Zuckerman: The hours, the tension and the anxiety are killers. 95 Granof: And I think without the joy. Zuckerman: Yes, that could be another interview on joy and the practice of law. It could be a fairly thin, short interview. Granof: Last question – antitrust case. What do you know about antitrust and did you have to know anything, because essentially it’s a criminal defense case? Zuckerman: The question is a great question. It goes to the broader point that you end up leaving the U.S. Attorney’s Office, in some sense an empty vessel. You have no significant substantive expertise, you understand a little bit about the basics of evaluating people, cases, juries, handling yourself in the courtroom, but the substantive expertise that comes is not there. It’s really not there. You learned how to try cases and the thing that distinguishes, I think, really extraordinary trial lawyers is their ability to pick up the substance of what you are arguing about pretty quickly. In many respects, I have that, and in some respects, I don’t have that. There are areas of litigation that I have absolutely no interest in or aptitude for when it comes to the underlying substance. I think antitrust – sort of the basic broadgauge areas of corporate litigation, antitrust and that kind of stuff – you pick up or rely on somebody else. This was pretty easy. It was pricefixing. It was just a conspiracy. It was a standard run-of-the-mill conspiracy, except instead of selling drugs, like the Tantillo case or doing a “Ponzi” scheme, you’re meeting with your fellow competitors and trying to fix prices. What is actually harder than picking up the substantive rules and trying the case is understanding the backroom policies that exist at the Department of Justice when the prosecutors are evaluating these different categories of activity and deciding whether or not they are prosecutionworthy. There is a mass of arcana and very opaque policy that exists in the antitrust area as to when you get prosecuted and when you don’t. The same can be said for half-a-dozen other major areas, for instance the FCPA 96 area. That’s the contest in which the lawyer who comes out of the antitrust division or the lawyer who comes out of the fraud section at Justice has a distinct advantage. Once the case is indicted, it’s easy pickings for the trial lawyer. However, the ability to figure out what it is that will appeal to the head of the fraud section when you are asking for a declination in a FCPA case is a much tougher prospect. Granof: FCPA? Zuckerman: The Foreign Corrupt Practices Act. Granof: I see. Zuckerman: How it is and when it is to go into a criminal antitrust investigation, that has in the last decade become a much more complex undertaking and it’s characterized increasingly by the creation of policy and memoranda that are substantive and that are a little bit like the Sentencing Guidelines. It’s an effort to rationalize things so that your exercise of prosecutorial discretion doesn’t appear to be so anecdotal or arbitrary – here’s what we go after, here’s how we go after it, here’s how the process of review occurs – all very much hide bound in these memoranda. It is sometimes daunting to capture that and understand it and deal with it. Granof: This concludes the fourth interview. 97 ORAL HISTORY OF ROGER E. ZUCKERMAN Fifth Interview April 3, 2014 This is the fifth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Thursday, April 3, 2014, at 2:30 p.m. Granof: The one thing I wanted to ask you, maybe to begin with, and I got thinking about it this morning, whether in light of your comments about the excitement of being in a court and being away and presumably an adrenalin rush, and I was thinking are trial lawyers/litigators quirky? But quirky really isn’t the word I wanted to use. They’re different – there is something different and intense about them. Zuckerman: Well, yes. They are probably a little click of the dial off center, I suppose you could say. It is, I think, in significant measure a function of an egodriven need to compete. Not so much in a physical environment, although there is a lot of physicality in keeping up with the grind that a trial imposes on you. But in matching wits with an adversary over things that are different than the outcome of a chess match or card game or a parlor game, but matching wits in a very demanding and intellectual way, where there is someone’s future or some company’s future that’s very much on the line. And it’s swordsmanship – it’s really a type of dueling – that creates a high if you succeed and creates a sense of incredible excitement. I think in that sense it’s something that’s attractive, but certainly not attractive to everyone. Granof: I mean litigators – and I have heard this from other litigators – that they find it difficult to give it up. Zuckerman: Yes. I would put it a little differently. I think it is difficult to do and difficult to give it up. The basketball player Bill Russell always used to 98 vomit before he went on the court because of his anxieties and the tension that was created. I think for many litigators – certainly for me, it’s not in all respects – I think I may have said this earlier, it’s not in all respects a process that is natural to my personality and my body. It probably over the years has taken its toll in a variety of ways. It’s probably more natural to others who are more naturally extroverted and combative. For some deep psychological reason there is a need that many people have to test themselves in one way or another. You can test yourself in rock climbing or you can test yourself in sky diving. But you can also test yourself by having somebody put their life in your hands in a very difficult environment, where you have a lot of hostility thrown your way and you can deal with it. Such a test was the test that I and others confronted in the Knisely prosecution, which I don’t think I have discussed. Granof: I don’t think you have. Zuckerman: It’s an example of putting yourself in a position of extreme difficulty and then trying as best you can to extricate yourself and more significantly, to extricate your client. We were engaged in the early 1980s – I was engaged in the early 1980s – by William Knisely, then incarcerated in a federal penitentiary in Lewisburg, Pennsylvania. Bill had been indicted for the murder of a grand jury witness shortly before the witness was to testify. Allegedly Bill had received directions from another to kill the grand jury witness. It was not the first homicide case that I handled, but it was amongst the most hostile in that it was indicted as a federal civil rights violation before United States District Judge Louis Bechtle in the Eastern District of Pennsylvania in Philadelphia. I and my partner at the time, Steve Glickman, who is now a judge on the D.C. Court of Appeals, tried the case against Greg Miller, who was a very fine Assistant U.S. Attorney and became the head of the Criminal Division of the U.S. Attorney’s Office in Philadelphia. Our client was not the principal defendant. The principal defendant was the man who purportedly paid Bill to kill the witness, and the 99 principal defendant was represented by F. Emmett Fitzpatrick, who was at that time the former District Attorney for Philadelphia and a very prominent man. Emmett had a lot of juice at the courthouse, was highly regarded by the judges, and since his was the principal client it was agreed that he would do the lion’s share of the cross-examinations. The government’s case primarily relied upon a cooperating witness, who claimed that he had been at the junkyard where Bill had fired the fatal shots into the body of the victim after the cooperator and Bill had kidnapped the victim and taken him bound and gagged to the junkyard. The cooperator was due to testify at trial; there were a few other witnesses. Granof: The guy they bumped off was this a – Zuckerman: Mob. Granof: Was it a state grand jury proceeding? Zuckerman: It was a federal proceeding. Granof: I can understand why the Feds would be pretty upset about whether their witnesses – Zuckerman: It was a federal proceeding. It was a life count. It was not a death count. We prepared for trial. The environment was needless to say quite hostile, but we were at least in good company because Emmett Fitzpatrick, the former DA, was representing the lead defendant. Two weeks before the trial began, I received a telephone call from Emmett. Emmett said, “I’m out of the case.” I said, “What are you talking about?” He says, “Well, my client was murdered last night outside Cuz’s Restaurant, which is a south Philadelphia restaurant. So, I have no more client and I’m out of the case and your client has risen to the top of the indictment, so good luck.” Granof: And prepare your cross-examination? 100 Zuckerman: Prepare your cross-examinations. There was another smaller defendant in the case represented by Bobby Simone. I became the principal lawyer in the case. Zuckerman: I appeared before Louis Bechtle, who is a former U.S. Attorney, now a district court judge, who had to some degree – I will say this gently – retained his mien and his affinity for the world of prosecutors and prosecutorial activities in general. He was not a naturally sympathetic judge to the defense in the average case, particularly unsympathetic in this mob hit man case, and extremely unsympathetic to this fellow Zuckerman and his partner Glickman, who had driven up from D.C. and were ensconced at the Bellevue-Strafford which had been ravaged by Legionnaires’ disease. We unpacked our goods – made the hotel our Command Center – and began the process of our week or two-week long trial defending this alleged hit man before a judge I can only describe as very hostile. My treatment was sufficiently bad that my client considered discharging me midway through the trial because he felt that his ability to get justice was being compromised by the beating that I seemed to be taking from Judge Bechtle. I can’t say that I blame him. But I persisted nonetheless. I did what I regard as one of the better cross-examinations of my career – I’m trying to be modest here – of the cooperator, the informant, and gave what I thought was a very powerful closing. I will never forget that the judge was insistent that I limit my closing to one hour. I presented to the judge the fact that my client, who was in fact in jail on an unrelated charge, but if convicted on this charge, could get life. It seemed to me that he deserved more than an hour for his lawyer to tell his side of the story. The judge did not agree. I literally had an hour to close. The trial lasted six or eight days. The jury went out. Fifty-five minutes later, there is a note we’ve reached a verdict. Now a 55-minute verdict in a criminal case – not 90% but 99 times out of a hundred – portends conviction. So Greg Miller, the prosecutor, who has since become a very good friend, invited – as the 101 custom – all of his “buds” from the U.S. Attorney’s Office to come and watch the jury return its anticipated guilty verdict and then to join him in a very polite celebration of the case well tried. Judge Bechtle took the bench and received the jury’s note from the Foreman, looked at it and his face turned ashen white, because in fifty-five minutes, the jury had returned a “not guilty” verdict. My client almost fainted. The judge was beside himself with frustration because as a former U.S. Attorney and as a jurist trying to do justice, he was convinced that my client was a killer who had just cheated the system. But justice is as justice is given by the jury, and there was nothing the judge could do about it. I turned and looked to my partner, Steve Glickman, and I said to Steve, “I think the prudent thing is for us to get out of town as quickly as possible.” We hightailed it back to the Bellevue-Strafford, checked out, loaded up my car with the files and got on 95 and sped back to Washington. The postscript is that in my experience, at least, it was one of the harder experiences that I have had as a visiting team in someone else’s stadium. I have generally done very well with judges around the country and with prosecutors around the country and have tried to be polite and personable and deferential, as appropriate. This was for me a situation where none of that worked. There was an extraordinary degree of hostility expressed by the Court, I think more than was appropriate, and it was a source, I would say, of perverse pleasure, but I think the pleasure was legitimate that we were able to persevere and that we were successful in what was a very hard case. Granof: How does the hostility manifest itself? You already said he limited your argument time to an hour. In what other ways? I suppose the judge has to be somewhat careful that he doesn’t become so hostile that an appellate court will overturn it. Zuckerman: I think experienced trial lawyers may feel this more than non-trial lawyers. But there is a texture and style to the Court’s treatment of you that can be officious, brusque and otherwise unpleasant. It can be neutral; it can be 102 complimentary, understanding, and supportive. The human personality has an unusual ability to convey those attitudes even within the constructs of the dynamic that surrounds making an objection, getting it ruled on, and moving ahead with your business. You can feel it. One might say it’s almost palpable. I think it’s clearly noticeable to lay people. You can see it in the judge’s eyes, attitude, hear it in the court’s tone of voice. And what you hope is, that in those circumstances, the jury will look at you, the jury will look at the judge, and the jury will say, “I have a certain degree of sympathy for and support of the lawyer who is doing his or her job even in the face of this difficulty.” I have been in cases where other lawyers have had that problem and I haven’t. The last case I tried, which was in New York, was a month-long trial in which that same kind of hostility existed. It was clear that the judge, who was a former Assistant U.S. Attorney, did not like the defense that we were putting on. My partner and I, who both had been Assistant U.S. Attorneys earlier in our careers, were acutely aware of the Court’s attitude, and I think it was clear to many who watched the trial that there was a level of hostility and distaste that the judge manifested. Granof: Can you say who the judge was? Zuckerman: It’s too recent. I would rather not. The case is not actually over but – Granof: Can you say at least what kind of case it was? Zuckerman: It was a month-long securities fraud trial. It goes with the territory and the lawyers who have done this for a long time develop a Teflon-type personality and style. It rolls off your back, you maintain your civility, you maintain your deference, you keep your eye on the ball, and you hope that you have jurors who pay attention to the witness and do not pay attention to the byplay. You hope at some point that the Court understands, accepts and sympathizes with the fact that you’re a good person and an honorable lawyer, who is simply trying to do the best job that one can and the job that 103 the client deserves. It’s a very significant problem. It’s why many clients – many individuals – feel much more comfortable with lawyers who “know the judge” because they feel, with some justification, as if the interplay between the Court and the lawyer is not an issue they’re going to have deal. Their case has other issues. They may be short on evidence, the prosecutor may be overbearing and all kinds of other problems, but at least they don’t have to worry about a judge who is going to be hostile. Granof: Did you ever find out or learn why the jury acquitted your client so quickly or at all? Zuckerman: They acquitted my client because I did a great job and because there was a reasonable doubt that he was the killer. That’s basically why they acquitted my client, and my assumption is that they felt that the government’s evidence was beyond thin and that it was highly inappropriate for them to rely on so sketchy a figure as the cooperating individual. Granof: So the cooperating individual was clearly the key witness for the government? Zuckerman: Yes. Granof: On your cross-examination you must have done, as you said, a good job. Zuckerman: I destroyed him. What is interesting about the whole thing is that the prosecutor became the head of the Criminal Division there and later went out and started his own firm. We did a lot of work with him and his firm. We became very close friends. It’s now 25 or 30 years later, he has a vacation home near Rehoboth Beach that’s about two blocks from mine, I attended his 60th birthday party about two years ago, and we still talk about the case and the experiences that we had – my perceptions and his. To carry you back to the point you were making earlier, it was an experience that remains very vivid to me even now in the degree to which it indicates – the 104 kind of resolve, the kind of commitment, the ability to withstand pain – that a trial lawyer has to have. Granof: You have to have a thick skin. Zuckerman: You have to have a thick skin and, however many nights you sleep in a fetal position because you’ve taken a beating, you have to persevere, you have to persevere. The three most hostile judges that I confronted, that occur to me at least now, were first Louis Bechtle in this case – the hit man mob case in the 1980s. Second, Maurice Paul, since deceased I believe, in 1995 was the Chief Judge of the Northern District of Florida, who superintended and handled the matter of F. Lee Bailey’s departure from the Claude Duboc case in circumstances that I will describe later in which Lee was required to return a vast sum of money that he had paid himself. He was required to return that money to the Court. There was a hearing on the Court’s order to show cause and subsequent proceedings in which I represented Lee in the Northern District of Florida before Chief Judge Paul and against the U.S. Attorney and his Principal Assistant. The level of hostility was extraordinary – I think in part because of the perception which is natural for judges to have because they are human, but something they all fight against – the perception that justice lay overwhelming with the government in that case. That was Judge Paul’s perception. Granof: I’m sure they did not like F. Lee Bailey down there. Zuckerman: No. But that was in the 1990s, and I had similar experience in the Southern District of New York in 2008 before a judge who is third on my list of the three most hostile jurists that I appeared before. These cases appeared throughout my career, at least, relatively significant, “bet-the-ranch” cases that affected the future lives and well-being of our clients before judges who were very hostile, very hostile. I want to swerve, if I can and you will permit me, from that to a few minutes about the growth of the firm. 105 Granof: How many cases do you think you have tried over your career? Zuckerman: I haven’t tried as a private attorney more than twenty to juries. I tried 15, 20, 30 in the U.S. Attorney’s Office. However, the breadth and depth of my trial experience cannot be found in the number of cases that I tried, but rather in the length of some of my cases and the amount of time that I spent in a courtroom. I can give you four cases, which in the aggregate, kept me in front of a jury in a courtroom for more than a year. My longest was nine months, my second longest was six weeks, and two were probably month long trials. They were relatively long experiences. It’s not been a trial lawyer’s life of the kind that you see in the old TV show L.A. Law where you are in front of a jury every other week. What we do here, and what I do, has involved cases that have two characteristics which make them unlikely to go to trial. One is they are criminal cases, and the number of criminal cases that go to trial in this day and age are few are far between, because the Sentencing Guidelines exacerbate the fears that defendants have about the length of sentences they will receive if they fully litigate their cases. And two, they are immensely complex cases. These cases often involve millions or tens of millions – or in the case of Enron – a hundred million documents. The gestation, the maturation period of these cases, is oftentimes years or years and years and years. That phenomenon as well ultimately reduces the number that go to trial. The three biggest cases that I have had in the last ten years have involved first, Lou Pai, who was the head of Enron’s Retail Unit, whom I represented from 2001 almost until the present. He was sued for having sold his Enron stock shortly before the company collapsed and for receiving gross proceeds of $271,000,000, which made him the insider executive who had liquidated the largest amount of Enron stock. The aggregate insider sales were about $1.1 billion, and more than a quarter of those sales were Lou’s. Second, I represented the President of the Stanford International Bank who sold $7 billion worth of bogus Certificates of Deposit. This was a case in 106 which my client’s employer, Allen Stanford, went to jail for 100 or 150 years in the mid- to late 2000s. And third, the President of REFCO, Tone Grant, who was prosecuted for securities fraud violation in the mid-2000s. Those were major business frauds of their day. Cases of incredible complexity and length. The optimal result for the client in this day and age is not to have to deal with a trial. If you have to deal with a trial, your chances of success are dramatically reduced. Your big victories are oftentimes really no longer pleasurable “not guilty” verdicts that juries render. Your big victories are really when the prosecutor calls you and says, “We’ve decided not to take this case any further.” That, as I said, is a function of the Sentencing Guidelines. It’s a function of the record complexity that surrounds these cases in that what you have is a pre-indictment period in which the parties – the government and the defense – although not formally joined because there is no indictment, are engaged nonetheless in combative grappling over a million e-mails and three dozen witnesses in an effort to see whether or not there is criminality that would merit a formal charge. And that’s really the nature of the modern battlefield that a defense attorney deals with in the vast number of cases that he or she has. It’s very different from the preGuidelines, pre-e-mail era when you had much less documentation, much less material and a much greater propensity to accept risk and go to trial because of the absence of Guidelines. Granof: Let me go back to that murder case. I had two questions. One is, I think it’s Irving Younger who said that one of the tests of a trial lawyer is to get the jury to trust you. They may not be in favor of your client, but they at least trust the lawyer as a straight shooter. Do you think he is right about that? Zuckerman: I do. They may not like you, they may not want to have a drink with you, although both of those would be good things, but they trust you, they 107 believe that you are being honest and honorable and they have sympathy for your effort. I think that’s 100% true, but I have long said that the practice of law – the practice of trial law and in many respects the practice of law generally – is as much the ability that one has to deal with people, to understand them, to relate to them, and to figure out a way to put them on your side; it is as much about that skill as it is understanding a particular set of regulations or rules of law. I had lunch with one of our young associates a week ago. She had had a clerkship in the Ninth Circuit, and she’s been with us for a year-and-one-half, so she’s a very young lawyer. I asked her “What has been the most surprising thing to you in the practice of law over the last year and one-half?” Well, she said, “What’s most surprising to me is there are oftentimes no clear answers, a lot of what we are doing is common sense and a lot of what we are doing involves the ability to relate to people.” I think that’s true. I think it’s not something that you glean so easily in law school. Granof: Since you raised the issue of L.A. Law, I can’t resist asking you this. I remember years ago I asked a federal district judge “Have you ever had a Perry Mason moment or seen one where the witness breaks down on the stand.” And he said, “No, he had never.” Have you ever had that? Zuckerman: I would say I have never had a moment in which the witness was so completely flummoxed that the case evaporated before our eyes. In that sense, no. I have had two cross-examinations where I felt that it was apparent – not only to neutral observer, but also to a hostile observer – that I had done great damage to the government’s effort. The first we’ve talked about and that was the informant in the Knisely case. I felt that I had seriously hurt that individual. Whether the judge and the prosecutor could recoup the government’s position was unclear, but I felt that I had really hurt the witness. The second, oddly enough, was my cross-examination of an Assistant U.S. Attorney. It occurred again in hostile environs before Judge Paul in the Bailey case. Lee had a particular version of an agreement 108 that he had made with the government that he believed allowed him to pay himself, without court approval, for the work that he was doing in repatriating assets from a client who had pled guilty. He went abroad, with his client’s authorization, to sell a variety of very expensive property and to deposit the proceeds in accounts which would then be turned over to the U.S. government as a part of the plea bargain. Lee expended a lot of time and a lot of money, without court approval, thinking he would get the approval from the judge at the end of the proceedings. Then Lee paid himself about $3 million out of the proceeds from these sales without any approval from Judge Paul. And there was no written agreement that either allowed him to do that or disallowed his doing that. There was a hearing before Judge Paul in which any number of people testified. Things looked pretty grim for Lee and I would say the judge was close to locking him up in civil contempt – he’s got the key to his cell – requiring him to repay the $3 million and only then letting him out of jail. Granof: I remember that. That made it in the newspapers. Zuckerman: Yes, there was a New Yorker article about it. One of the last witnesses of the second day’s hearing – it was a two-day hearing – was a young Assistant U.S. Attorney who had made the deal with Lee. I believe, or choose to believe, that Lee was on his way to jail in the eyes of the judge until that cross-examination. I cross-examined, I think, the young Assistant U.S. Attorney very effectively. I was able to show the ambiguity of the relationship that the government had with Lee, the ambiguity of the oral agreement between the two, the loose – and, indeed, irresponsible – way the government sought to protect its position compared to the plausibility of Lee’s position. I think the judge got it and at the end of the hearing he declined to hold Lee in civil contempt. The Judge said, “Here’s what I am going to do. I am going to give Mr. Bailey thirty days to return $3 million to the Court. If he does it, fine. We’ll move forward. If not, we’ll hold him in civil contempt.” It was a signal victory and Lee was thrilled and felt sure 109 that he could return the money in thirty days and avoid civil contempt. Granof: And did he? Zuckerman: No. He thereafter came to be incarcerated for 44 days in a federal facility in Tallahassee, Florida, attempting, with some assistance from me and others, to raise something around $3 million. I finally convinced the prosecutor that when Lee had raised $2.4 million, that we could finance the remaining $700,000. The prosecutor agreed with that and said, “I will not oppose Mr. Bailey’s release.” I notified the Clerk of the Court on a Wednesday or Thursday that we had resolved the civil contempt, and after Lee’s more than 40 days in jail the government no longer opposed Mr. Bailey’s release. The judge, Chief Judge Maurice Paul, was at the Eleventh Circuit Judicial Conference in Atlanta, Georgia. Remember, I described him as having no love lost for Lee. The Judge then advised, through the Clerk, that he would set a hearing for Mr. Bailey’s release upon his return the following Monday or Tuesday which meant as of Wednesday or Thursday, my client, the lawyer F. Lee Bailey, would have to spend the next four days in jail awaiting the Judge’s return from the Judicial Conference. We either filed or threatened to file a petition for a writ of mandamus to require the Judge to hold the hearing forthwith. The Judge then thought the better of staying in Atlanta for the next four days, and returned for a hearing either the next day or Friday at which time Lee was released, boarded an airplane, which was his style, in front of maybe 25 members of the Press, waved and left town. I want to return back to the cross-examination of the young prosecutor, which was, in my view, about as impactful as anything that I had done in materially affecting, in an obvious cause and effect sense, something very bad that was about to happen to my client in a courtroom. Granof: When you do an effective cross-examination, you really feel good when you sit down, don’t you? It’s a unique and very good feeling, isn’t it? 110 Zuckerman: Yes. It’s not a zero sum game, Gene. But there are subtractions because for every good cross-examination – if you’re hard on yourself or at least honest – you realize on occasion you have conducted a cross-examination that you would do differently, that didn’t work, the witness was more than you had anticipated, your approaches were befuddled by the Court, the witness or the prosecutor. Those are bad feelings and detract from your ego-driven feelings of goodness. I do think, and maybe it’s just human nature, that the vast number of lawyers who try cases when asked how it is going, feel like it’s going really well and in the vast number of cases will say something like, “We could not really be doing any better in getting our message across in destroying these witnesses” – in criminal cases at least – in blunting the government’s case. There may be a need to feel that way in order to keep going. Maybe the Germans felt that way in World War II. In a large percentage of the cases that I’ve tried – as a prosecutor as well as a defense attorney – I’ve always had the view that things seem to be going pretty well. Granof: Have you ever had a situation in which, for whatever reason, your client insists on going to trial or a hearing, and you know that the odds are really stacked against you and the likelihood of winning this is almost zero but you have to go ahead anyway? Zuckerman: Yes. I don’t want to give you specifics there. I’ve had cases in which we’ve done what lawyers frequently do, and that is we have mock tried the case to test juries and the test juries come back with consistency and indeed unanimity against the positions that we are advocating. But there is no choice because there is no alternative to trying the case. In a criminal setting, it would mean the government has offered no plea that’s worth taking. So, you go ahead and do your best. Granof: Have the results been what you expected? 111 Zuckerman: Yes. Granof: When you mentioned mock juries, tell me how that works. Zuckerman: There are a very sophisticated series of business models in firms that deal in jury research issues. They have developed an incredibly nuanced and sophisticated series of methods to select jury pools that perfectly mirror the jury pool that you are likely to get in demographics – completely in demographics, for example, in Houston. I went through this business in Houston, and there are terms of using precise analytics to get people to serve who mirror what you are likely to find from the jury pool of the venire – the group the jury pool is being selected from. They are extraordinary. They are extraordinary as well in complexity and nuance in what they tell people. You have to be extremely careful what you say to Gene Granof about a case that’s being tried down here. You can’t simply say to Gene Granof: “We’re beta testing some arguments that we would like to make on behalf of Jeff Thompson or Mayor Gray or defendant X. Would you sit on a jury pool?” So you have to cloak what you do in reasonable anonymity, and then you have to make sure it’s presented compactly and effectively on both sides. Then on occasion what you have are interlocutors who will question the jury – the mock pool – after it renders its verdict about what it thought about this, that or the other. It’s expensive, but it’s an extraordinary process that has developed over decades that can be extremely useful. In one particular case, we had not one but three mock juries, twelve people each, who listened to two- or three-hour presentations – some are like these, some are not – these were videotaped presentations by a prosecutor, by a defense attorney and the client, who testified on direct and cross, all compacted into say three hours. Granof: What happens? Zuckerman: There is an opening statement from the prosecution. This is what we intend 112 to prove, this is what the witnesses are going to say. The defense attorney gets up and says this is what we intend to prove, this is what the witnesses will say. And in this case, we had a mock examination and crossexamination of the actual defendants – all in about a three-hour period. The jury then deliberated. The lawyers and the defendants and the person who monitored this then watched everything through a one-way mirror. We did this with three groups of twelve in a single day and 34 of the 36 voted to convict. They voted to convict all three defendants. We still went ahead and tried the case because we had no choice. It’s a very useful, very sophisticated process. Very expensive, very hard to do in the normal case. I am sure in every big trial of any consequence where there is a money defense, it’s done. To give you an example on the civil side – I’m going to shield the participants – but in a major malpractice claim against a major institution, the plaintiff had wanted X. The institution had wanted to pay one-tenth X, and the institution which was being defended by people I knew did a series of mock juries. The mock juries came out way closer to X than one-tenth X leading the institution to make a settlement offer for an amount much closer to X than where the settlement offer otherwise would have been. As a result, the case was settled. So it’s a very useful thing. Granof: It’s just amazing to me that you can duplicate with enough reliability in compressing it into three hours when they don’t really see the witnesses except for maybe the defendant. Zuckerman: There are holes in the process. The firms that do this spend an inordinate amount of time and money developing approaches that seemingly have a relatively high social science sense of reliability. There is a lot of social science that attends these processes. Granof: From what you said, you seem to be persuaded that given the high cost of 113 these and the benefit, that in many cases, at least, it’s worth it. Zuckerman: I think it is. There are some lawyers who will tell you that they feel this or feel that. It has a second value. And that value is it helps you evaluate what type of jurors are likely to be most sympathetic to your client’s position. Also, you get to see different people of different backgrounds debating with one another in a civil case or a criminal case. You get to make judgments about them, but that part of it, I think, is much harder to engage in. It’s much harder to engage in deductive reasoning because some guy who has spent thirty years in the Navy thinks that your client is guilty, does that mean that the vast majority of people who spent thirty years in the Navy are likely to conclude similarly. That one is a lot harder. Granof: Do these firms also help you decide what kind of jurors that you would like on your panel? Zuckerman: Half the selling point is to try to get some sense of how from the broad demographic you will see them. You will get a sense of how people react and whether young people, old people, different sociological groups – that one, I think, is much harder. The much more reliable result is simply to get a broad sense of the gestalt that is likely to occur when all of this stuff is thrown at jury. What’s the chemistry or the vibe likely to be? Is it going to be overwhelmingly bad, overwhelmingly good or is it going to be a real wrestling match? I think you can get that out of this. But I want to go back and talk about my firm. Can we do that? Granof: Of course. Zuckerman: This is an interlude from talking about my cases and talking about some of the broader issues that you nicely raise in the profession of trial advocacy. Going back as how we, as group, developed in the early 1980s. It was a significant period. The firm through the 70s beginning as it did in late 114 1974. By 1980, there were eight or ten of us. The practice was a good practice. We were all located in D.C. All located, oddly enough, in the very building in which you and I are sitting now at 1800 M about seventy feet below on the third floor instead of the tenth floor. Sort of unimaginable to me that we were here as young people – I with hair – thirty-four years ago. Bill Taylor and I had been doing a lot of work in Miami. We were flying back on a plane one night and we had a colleague named John Evans, who had been a prosecutor with me at the U.S. Attorney’s Office in D.C., was a tennis buddy and a friend of Bill’s , a University of North Carolina grad, as Bill was. He had left D.C. and gone to his native Coral Gables, Florida, where he joined the U.S. Attorney’s Office in Miami and then the Department of Justice’s Miami Strike Force. We said, “You know, for no particularly good reason except it sounds neat, we think we ought to have a Miami office.” We thought that would give us a bigger footprint. We told John that “we don’t have many clients down there – but you can do the same thing that we did in D.C. We can all do this together. Maybe if we have an office that’s in Miami, and we advertise ourselves as a firm that’s in D.C. and Miami, it will make us look more substantial.” We visited John and he agreed to leave the government. In 1981, I think, we opened an office of the firm in a sublease on the top floor of 1001 Biscayne Boulevard. We had an office and some rented furniture. John came and practiced with us and was our partner, and now we were a firm with an office in Miami. We actually were able to grow the Miami business because the market was not mature. It was an easy market to grow in. We ended up taking very high-grade lawyers from the U.S. Attorney’s Office – Mike Pasano came with us a couple of years later and there were others. The office grew to six, eight or ten toward the end of the 80s when John tragically died of a heart attack in his sleep at the age of 46 in 1988 in the middle of the night. I remember getting the call. It caught all of us off guard, obviously, and we mourned him in a series of services down there, but continued the office for some time thereafter, growing it to about twenty. In about 1983, we did the 115 same thing in Baltimore with an Assistant U.S. Attorney, Herb Better, who was the Deputy Chief of the U.S. Attorney’s Office, and we planted a flag in Baltimore. We did the same thing in Tampa in about 1991with Sandy Weinberg, who was a former Assistant U.S. Attorney in the Southern District of New York who had gone to Tampa, and the same thing in New York in the early 90s with Ed Little, who was a former Assistant U.S. Attorney in the Southern District. We made it to five cities using this template of finding former Assistant U.S. Attorneys whom we had practiced with, had a lot of confidence in, and getting them to replicate the same “from the ground up” experience that we had here in D.C. It was not without a lot of difficulty because unlike 500-lawyer firms, we were still a little boutique. There was a lot of interpersonal loyalty, and it worked. It gave us by the early 90s – it gave us over a ten-year period – a much more expansive national footprint than we had had before, which was consistent with my view, and I think Bill’s view. My view was born of the Glenn Turner case that I described to you where I went to Florida for nine months very early in my career. It was born of the view that in the final analysis, we could pretty much go anywhere and do as good a job or better than any local lawyer could do, particularly in a complex case. We had the ability to be lawyers who could do work nationally. That was the coming thing. Lawyers were a little bit more fungible. Traveling lawyers were more acceptable than they had been in the past. The country was a little bit more homogeneous than it had been in terms of the practice of law. We were, after all, a Washington-based firm, and Washington is where they made laws. It might look odd if a lawyer from Buffalo went to Houston. It was a little less odd that a lawyer from Washington, D.C. would go to Houston. Not that we discovered it. I think there were many who sensed that wave, and in 2014 you can see the “genericizing” – if there is such a word – of law and law firms, such that lawyers from Chicago or Miami will show up in cases in Duluth, Minnesota or San Francisco, or Portland and nobody will think twice about it. The practice of law is much more a national activity 116 than it was forty years ago. It’s one of the bets, one of the perceptions that we had, I think, that was correct. What has made it hard for us is we’re still a boutique. In many respects, that’s good, but it’s a little bit easier for a firm with one-thousand lawyers to maintain a bevy of separate offices, to have the infrastructure that you need to do that than it is for a firm of one hundred lawyers. There are infrastructure costs in having to manage not just one hundred people in D.C., but one hundred people in which twenty of whom are New York, sixty of whom are in D.C., ten are in Baltimore, and ten are in Tampa. Managing that is more burdensome and costly than having one hundred people in D.C. Granof: Now you have about sixty here? Zuckerman: I would say yes. Granof: Ten in New York? Zuckerman: There’s twenty in New York, ten in Tampa and ten in Baltimore. I say this with a sense of pride that the lawyers – certainly the principal lawyers – are lawyers of extraordinary stature not just in the cities in which their located, but in their regions, if not nationally. They are all very impactful lawyers – very impactful offices – that are highly respected in the regions in which they are operating. Granof: What happened to Miami? Zuckerman: Miami is a sad story. It is an office that we ran from 1981 until March 2008. We had not one but two deaths in the office of key people. John died in 1988 in his sleep and a dear young partner and very close friend of mine, Bert Peña, died in his sleep of the same kind of inexplicable heart problem in 1994. In my view, there was a leadership void in the office. If either or both of them had survived, the leadership of the office would have been different. The leadership of the office was not what it might have been. 117 The business of the office declined a bit and it was, I think to some degree, inevitable that the office would fragment. Half of the lawyers went to Carlton Fields and the other half went elsewhere. We still have very close relationships with virtually all of the lawyers there. I would say four or five months ago I went to a funeral down in Miami for one of the lawyers who was in the Miami office in the 1980s, and I saw virtually all of the people. We have very close relationships. We still do a lot of work in Florida, but the Miami office, into which we poured so much of our effort and which was our first out-of-town location, only made it about twenty-five years. Granof: When you say leadership, what do you mean? Is that a code word for rainmaking? Zuckerman: No. No. It is a way of saying that there is oftentimes no congruence between rainmakers and good law firm managers. Rainmakers have quirky, assertive, egocentric personalities that create presence in the marketplace. They are people who, by the nature of what they do and want to do, elbow others out of the way and say, “You got to look at me because I can do that better than any of these guys here.” It’s oftentimes not a personality that has a sensitivity – the deference, indeed, the humbleness – to be attractive to a lot of one’s peers. Managers are firm, kind people who, I think, have a lot of sensitivity to the needs of others; are focused in that direction or not focused inwardly to their own needs; are willing to defer or postpone their pleasures for the needs of others in the group; and have a very different skill set. We have been fortunate in most of the offices that we’ve had at most times that we have been able to identify people who have this ability to create cohesive, positive relationships and, at the same time, to enforce pretty decent businesslike protocols and regimes in the way the office operates. On occasion, we have not had that. As I said, in a multi-office boutique – if you stop and think about it – it is easy to find somebody who has got really good leadership qualities of the kind I described in a 100- lawyer office. In a ten-lawyer office, it may not be so easy because the pool 118 of partners you are looking at may be three partners or four partners. Nobody wants to do it or nobody is quite suited to that. I think in Miami we had a lot of terrific lawyers – a lot of terrific trial lawyers – a lot of good rainmakers – but the centrist personality who could cause a group to cohere, who had a selfless commitment that would make that happen, we just didn’t have that person. Granof: How did you grow the Washington office? Zuckerman: The D.C. office grew differently. Its growth in the 1970s was principally a result of the coagulation of cells that had originated in the criminal justice system in the late 1960s and early 1970s. I hired Roger Spaeder. Bill Taylor was at a very fine firm but wasn’t happy. He came to me and said, “Let’s have a drink. You and I would be a great team.” I said, “I’d be honored to be on your team, as I am sure you would be on mine.” It was the three of us and then it became four of us with Peter Kolker and five of us with Mark Foster and six of us with Bruce Goldstein. Granof: Were these all former U.S. Attorneys? Zuckerman: No, some like Bill had been in the Public Defender Service. Peter, Bill and Mark had been in the D.C. Public Defender Service together. Bruce was a bankruptcy lawyer. Spaeder and I were prosecutors. That’s pretty much the basic corps and we began to hire people in a weird way that is incredibly flattering, and I must say, a way that we were very lucky to experience. In the early 1980s we were attractive enough to a group of lawyers who had graduated from law school probably five, ten or fifteen years after we did. We got an extraordinary generation of lawyers who are now sixty years old, plus or minus. They are ten years younger than we are. They came with us as young lawyers and are still around. For whatever crazy reason, we were attractive to them and they were phenomenal lawyers – Mike Smith, Steve Salky, Blair Brown and Tom Mason. 119 Granof: Did you guys seek them out? Zuckerman: They were looking for a job and they didn’t want to go to a big firm. It was essentially we and Miller Cassidy that were relatively high-tone smallish boutique firms doing white collar work. They are incredible lawyers who are here to this day and really have become in many respects the core of the firm. We were phenomenally lucky in this regard. We attracted just a whole group of phenomenal Harvard, Yale and Stanford trained lawyers – even an odd Columbia grad, that’s Tom – who were spectacular and who were looking for a place that did high quality work and didn’t want to go to Miller Cassidy and didn’t want a large firm. I think that one of the things that attracted them to us was the fact that by the early 1980s, we were pushing forty in age and we had terrifically interesting cases – phenomenally interesting cases for relatively young people. The menu of opportunities that existed for these people was off the charts. It was a great time. What I would like to do next time is go through some of the cases we handled in the 80s and the 90s to the present. Granof: That would be very interesting. I could see why the firm would be so attractive in the 80s to young talented lawyers who did not want to go with big firms. Zuckerman: Here you have Steve Glickman, who is now on the D.C. Court of Appeals, and in the early 80s, was a Yale Law School grad, clerked on the Connecticut Supreme Court, drives up with me to try a hit man homicide case in Philadelphia, which was impactful in his career. At his Investiture Ceremony to the D.C. Court of Appeals, Steve was presented by our partner, Peter Kolker, to the full court, and at that point his chair next to the other judges on the bench was empty. Peter made a speech about Steve, as happens in these investiture proceedings, and then Steve was welcomed by the full court and asked to take his place on the bench. In his speech, Peter described two or three of the major cases on which Steve had worked and 120 wouldn’t you know that one of the cases he described to the full D.C. Court of Appeals – one of the cases he described in some detail, and I can’t say it was not to the horror of at least some of the judges on the Court – was his hit man case in which Judge Glickman had gone up and represented a possible hit man in a mob execution in a junkyard and won an acquittal. It was, I’ve always felt, an interesting – one might say a curious – choice that Peter talked about that case. It obviously had a significant effect on Steve. Circling back, I think those kinds of cases – we had major trials in New York and we had major proceedings on behalf of the Church of Scientology – we had just phenomenal stuff. Those major cases proved to be very attractive to these young people. Granof: This concludes this interview. 121 ORAL HISTORY OF ROGER E. ZUCKERMAN Sixth Interview May 22, 2014 This is the sixth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Thursday, May 22, 2014, at 2:00 p.m. Granof: In our last interview, number 5, we talked about the growth of the firm in other cities and then about the growth of the firm in D.C. in the 80s and 90s. When we ended last time, you were going to describe the cases that came to the firm in the 1980s and 1990s and you mentioned major trials in New York and your involvement in representing the Church of Scientology. I just have a quick question before we get to it that I can’t resist asking. You talked about the ten year period in which the firm developed a national footprint and particularly where in D.C. high-quality lawyers came to the firm because they wanted to do interesting work but didn’t want to be in a big firm. You also discussed the Florida office and you made a distinction between rainmakers and firm managers and their different skill sets. You described rainmakers as quirky, eccentric, and self-centered, whereas managers had an entirely different skill set. The question is, “Where do you think you fit?” Zuckerman: I think I am more in the former category. I was, just by virtue of my seniority as the first lawyer here, required to be a manager. I think I have certain strong managerial qualities. I think I am a very good conciliator and try to set a caring, non-self-centered tone that’s very important. I try not to be an egocentric person – I fail sometimes, but I try – and I think that that example has translated into a so-called ethos for the firm that’s made it a fairly humane place. On balance I am really not a great manager. I am not really interested in systems and the like. I think, although I have some good qualities as a manager, my personality skill set is more effective in its marketplace impact. So, I would put myself in that category. 122 Granof: More of a rainmaker but still without some of the qualities that you describe. Zuckerman: I don’t have the passion for systems and detail that a really good manager has to have. What I do have is a good feel for how lawyers ought to interact with one another and get together and treat one another. I think that is pretty useful. I think there are others in the forty years or so of the life of the firm who have run it much more effectively than I could have run it. Granof: Are you doing much managing now? Zuckerman: No, I am not. What we’ve done is transition the firm to the next generation – we would like it to be multi-generational. I and my older partners have done the George Washington move of transferring from positions of power back into the body politic and letting other younger people have a feeling that it’s as much or more their firm. It’s their future, indeed, more than it is our future, and they deserve to make the decisions about the direction of where the firm will go in in the next twenty or thirty years. It’s not an easy thing to do for a father or grandfather who has been instrumental in starting a business to turn it over to his daughters and sons and his granddaughters and his grandsons, and then watch them fiddle with it and keep his fingers at a distance. I am a practicing lawyer; I am a member of the firm; but other people are tasked with the responsibility of running the firm and you must accept that and you must live by that. And you hope your influence still can guide people, without being overbearing, in directions that you think are useful. There is one area where I think it is fair to say, historically, that I left a mark on the firm or an area. It is that it was principally I who was interested in seeing the firm become a multi-city firm. I thought it would be fun to have offices in other cities, and I think in fairness that it was probably not a feeling that many of my partners shared. They looked at me as if I were crazy, but I think in the end it pretty much worked. Granof: It seems to me that the one office that has an almost compelling justification 123 would be New York because that’s the site of so much white collar crime. Zuckerman: It is. We had been doing that for almost twenty-five years. It’s been the hardest office to sustain in some respects because it is the most competitive legal city in the country. The lawyer costs are high, the real estate costs are high, and the quality of the bar is exceptional. It’s a big economic commitment and a big competitive task to compete in New York effectively. For the moment, I am making the sound of knocking on wood here. But like a lot of these things, there is complete one-hundred percent “free agency” in the practice of law. There was not free agency, at least, in the virtuous moral sense back when I started in the 60s and you read Louis Auchincloss’ novels and short stories about the great New York firms. Then, people joined a firm and stayed with the firm because that was the way it was done. You didn’t have people moving around with the ease that they do now. You did not have the mergers, and you didn’t have the spinoffs. There is now no shame in leaving a firm and going somewhere else. It’s an issue that has bedeviled us. You’re always fearing that your key players – young lawyers and older lawyers – will be solicited because of their talent, the size of their practice or whatever, solicited to go elsewhere, including your offices; your offices may be solicited to go elsewhere. It’s not an easy thing. Let’s move on. They were good questions. I want to go to the 1980s to try to give a flavor of sorts for what the firm was doing and what I was doing, returning a bit to the theme that in the 80s the core older lawyers of the firm were in their early to mid-40s. It was still, relatively speaking in the scheme of things, a youngish group of people. As was characteristic of law firms who did this kind of rough-and-tumble litigation that we did in the 80s, that’s the way the bar was. You still had very large numbers of young people and a sophisticated litigation bar. Particularly in the white collar or quasi-white collar areas, the mean age was very young. There are two cases that stand out for me in the 80s of significant interest. They are both out of town cases 124 and they took me out of the city for six weeks apiece, more or less. The first was a trial that I had in New York in 1983 – I was 40 – and I came to represent one of the principals in a case involving a tax shelter. Back in the 80s, there were tax shelters that you could invest in, and you could write off a vast amount of your investment. Many of these tax shelters were bogus in one sense or another. Eventually, the IRS gave people who did this enough trouble – changed their rules – so that participating in these tax shelters became not worth it. I represented an individual named Herman Friedman, who was one of the principals in a series of shelters involving coal mines in West Virginia. You invested your money and you got fabulous write-offs. The shelters were investigated by Robert Morgenthau and his principal investigative prosecutor at the time, John Moscow. John’s father was a prominent New York Times editor. John was a very dogged fellow. I have known him since the trial – thirty years at least. He is now in private practice and we speak from time to time. He was a longtime and well-known prosecutor in New York. Granof: Was this when Morgenthau was the U.S. Attorney? Zuckerman: Was the District Attorney for New York County. Granof: Oh, he was the New York District Attorney? Zuckerman: Yes. John secured an indictment of about six or seven individuals including Herman Friedman, who was the head of the sales force that sold these tax shelters. The shelters were allegedly fraudulent – there were a number of misrepresentations in the Offering Memoranda that had been created and disbursed. It was purportedly a fraud. It was the first big trial that I had following the “Dare to be Great” trial in Florida back in 1973-1974. I remember my mother died on January 7, 1983. The Redskins won their first Super Bowl with John Riggins in that iconic picture in which he is pulling away from one of the Dolphins who is grabbing on to his jersey and running 125 to his left around the left end for a touchdown to make it something like 27- 17. That occurred later that month. The trial began soon after that. One of the worst days of my life and one of the best days of my life shortly before the trial began. I went up to New York in early 1983 and was there for about six weeks at 60 Center Street, which was this gritty state courthouse right next to Foley Square. It was grit – a state court – rough-and-tumble. The case was a significant case so it had some of the deans of the New York trial bar, and also it had a young lawyer – younger than me even at the time – named Ben Brafman. Ben has become a good friend, has since worked a great many cases with the firm, including Dominique Strauss-Kahn, and is now probably the dean of the New York criminal trial bar – at least the nittygritty trial bar. He represented Puff Daddy. He has represented a lot of wellknown people. Granof: An interesting clientele I guess you would say. Zuckerman: Yes, he’s a very talented man. Interesting among other things because he is a highly religious Jew and has a second home in Israel and flies back and forth to Israel something like once a month to visit his kid or kids who are there and to spend time there. There were a number of other very prominent lawyers who were involved. And some good lawyers from Boston whom I became very close to. I rented the upper floor of a townhouse on the East Side at 61st and Second. I went down to court and fiddled around in a crazy case for about six weeks and had a blast and did, I think, a really good job. The judge was kind of an odd duck. The courtroom was not well managed. The judge, for example, walked around in his socks, some of the defendants had candy on the table in front of them. It was the antithesis of a formal federal proceeding but serious stuff. All of the defendants, but one, including my client were convicted. I had done enough of a good job that my client was given a probationary sentence. It’s probably more of personal anecdote than a professional anecdote, but I 126 got to know New York City. I was there for six weeks – I got to know the East Side – Irene came up and spent some time with me. It was pleasurable in the way the Turner case was, with one exception which is very interesting, and which I remark on very briefly here. Even though my client didn’t go to jail, we technically lost the case and it demonstrated to me that the quality of memory that you have from two absolutely similar experiences is completely affected by the jury verdict. You can have a great time at a trial, feel as if you are doing a great job, feel as if you made many new friends, feel as if the court loves you, feel as if you’ve grown professionally, and if the jury comes back “not guilty,” it’s one of the great experiences of your life. However, if the jury comes back “guilty,” it taints and affects your memory of all of the prior activities. I had that sense and it foreshadowed exactly the same experience that I had in New York in 2008 in a federal case when I was there for six weeks in a securities fraud case living on the West Side. A much tougher case, a much tougher judge, much tougher lawyers, much tougher facts. Did a great job, felt as if we had done professionally magnificent work, had a great time, enjoyed the city, felt as if we had persevered – same deal. The jury came back and convicted and it tainted the memory of the entire six-week war. Tainted memories of New York in these two six-week trials. It must be similar to a soldier who goes off to war and acquits himself well on the battlefield, and where the war is won he feels great and looks back on his wartime experiences very proudly and happily. However, where the war is lost it’s just terrible. Yet, his experience, at least by my hypothesis, is the same in both instances. Granof: In the first trial in New York and you represented Mr. Friedman there were other defendants? Zuckerman: The lead defendants who were convicted got eight years. It was a serious case. There was a lawyer who was convicted and disbarred named Peter Gettinger. Richard Firestone and Milton Dorison got eight years. Herman Friedman was convicted, but was sufficiently portrayed as a marginal 127 character and got no jail time. Granof: Was he? Zuckerman: Yes, I think the conviction was a little bit unfair. What was very painful to Herman was that he had spent his life as a securities salesman. He was divorced and got whatever human connection he had in his life from his professional work in the securities marketplace. Thus, to lose your license and really not be able to pursue that activity – and not to have the personal contact that it included – I think was very hard for him. It was not an easy result even though he got probation after his conviction. That observation is further to the point, from my forty-year perspective that, although it is the lawyer’s first job to keep his client from going to jail, most non-jail resolutions while seemingly great victories often have unexpectedly harsh consequences to the people who endure them, such that while the lawyer may feel as if he is a hero – he has kept his client out of jail – the client receives deep scars. Granof: So Friedman was effectively barred from his profession. Zuckerman: Actually barred from his profession. If I have seen it once, I have seen it a lot – those kinds of wounds are very deep even where you don’t go to jail. That was an early 80s case for me. It kept me rolling and led to an equally impactful case, professionally, but a much longer case. Granof: There were five other defendants? Zuckerman: Yes. Each defendant probably had one primary lawyer and a secondary lawyer to spell him. I was spelled by Steve Glickman, who was my partner at the time, and is now a judge on the D.C. Court of Appeals. Steve came up and spelled me. One problem with the case, I will tell you Gene – it’s a problem that is characteristic of white-collar defense work often – and that is there was no insurance money, there was no D&O coverage, in that sense 128 there was no corporate indemnification. The money that you got, you got from the pocket of the client, and that inhibits – a gentle way to put it – constrains how you live in a foreign city during a lengthy trial. It means that you eat hamburger or something like for dinner, you’re not at a restaurant, and if you are at a restaurant, you’re not getting a bottle of wine. I’m not ashamed to say that the one feature of out-of-town work that’s important to me is about one hour at the end of the day – say 8:00 p.m. to 9:00 p.m. – when you can find a reasonable restaurant, and get a reasonable glass of wine and eat a fairly decent meal. That’s not so bad. You got a lot of work to do before you get there, and a lot of work to do from 9:00 to 9:30 p.m. onward, before you go to sleep. There is a period in which you ought to be able to eat dinner and decompress for an hour. We had that, fortunately, in my second New York case because we had insurance defense money, but the Herman Friedman case was a tight budget case. Granof: I guess he had to be able to afford you. Zuckerman: I would say in a significant percentage of those cases way back when – Florida, Philly, New York to be sure of those – they were cases in which the money, in one sense or another, ran out. So you were basically supporting yourself. Doing it because you were a professional. You were living a very tight existence and knowing that you were not contributing to the firm’s coffers. Granof: How did you ever get Friedman as a client? Here you are a Washington, D.C. lawyer. Zuckerman: The lead defendants had come to D.C. lawyers for whatever reason. The D.C. lawyers that they came to referred one of the remaining defendants to me. I remained friendly with Herman for a long time after that. It was a good experience. It was very much like the experience I had had in Florida. It’s being in the trenches with a half-dozen other buddies, having a common 129 foe, trying to live and work collegially, toward a common strategy, and realizing that one of the skill sets I had was not just being a good lawyer, but understanding how to get along. I always felt, and feel now, that I was a good, accommodating, collegial participant in foxhole trial work. I understood how to compromise; I understood how to be convivial; I understood how not to be too egocentric; I understood the limits of what you could do and that there were certain things you couldn’t do. It is a pleasurable environment for me. Putting it politely and deferentially, there are some lawyers who have very powerful personalities, extraordinarily talented in many respects – perhaps more talented than I am – who find it very difficult to be on a team. Granof: F. Lee Bailey? Zuckerman: Yes, I think Lee is probably one of those. There are many of them. They are very able, but they’re much more comfortable being in controlling positions. They’re much more comfortable not having to compromise their views, not having to modify the strategies that they are interested in. It’s not a question of right or wrong – it’s just a personality style – and my style for whatever reason, more or less, fit these larger groups of lawyers who would get together and team up and hang in a foxhole together and bond. It was fun. Granof: How does it in fact work on a daily basis your interactions with the lawyers? Do you get together at the beginning, do you have a meeting, do you decide on strategy? How did it work in the Herman Friedman case? Zuckerman: I guess you could say the rhythms of these cases differ from case to case. I think in general if your team is working well, there is an effort to meet with some frequency on general strategy. There is an effort to know before the courtroom day begins who is doing what cross-examination. There is an effort to assign responsibility for cross-examination, and there is certainly an effort to assign responsibility for who is drafting a particular motion. There 130 are periodic defense meetings covering any number of issues. These protracted cases with many defendants and lawyers assume a rhythm. When the case begins, the lawyers are unfamiliar with the judge, the judge is unfamiliar with the lawyers, and everybody is getting to know one another. It’s like the first ten minutes of a dinner party or a regular party – getting to know each other is a little bit intense. After a few days, the rhythm settles in and you get accustomed to what the government’s style and approach is going to be in presenting its witnesses, you know the cross-examination styles of the various lawyers, you get a sense of the direction in which the lawyers are going, you understand who you are going to talk to in the morning and who you are going to talk to in the evening. I don’t know that one can generalize about it. It differs from case to case. A lot depends on the court and a lot depends on the other lawyers who are involved. Granof: Why the court? Zuckerman: If you are dealing with a judge who is constructive and reasonable, life’s a whole lot easier. If you are dealing with a judge who is seemingly constructive and reasonable, but really has it in for your side of the case, it’s a lot harder and I think changes your view of what to do. The comparable experience I had in the 80s – it’s actually of interest to me now because I’ve just settled a case. It’s not an out of town case; it’s a civil case that I’ve just settled, in which we were essentially lead counsel. We had six or eight other law firms involved for six or eight other parties. It required this effort to congeal a workable unified group. It was a lot like proverbially herding cats. You had to have a sense of where you wanted to go and you had to be, at the same time, very deferential and very collegial and the like. The other case that I had that was like this during the 80s was the case involving the Church of Scientology. Granof: Was the judge in this case reasonably constructive or seemingly reasonable 131 and constructive? Zuckerman: I think my characterization of the judge in this case in New York was that he was less helpful than he could have been as a jurist because he was indecisive and weak. He did not grab hold of the case in a controlling way and give it good direction. Granof: He did not manage it? Zuckerman: He did not manage it well. I think he was fair-minded. I think the case was a little bit beyond his capacity at the time. Granof: I guess you get that with state court judges. Some are very good and some are not so good. Zuckerman: Yes. But it made it hard. In effect, there were periods in which the parties were essentially trying the case against one another without much of the referee in between. Granof: In dealing with other lawyers, when you have interchanges do you find it’s useful for your case and that you make a contribution to their case? In other words, where you can say, “You can do what you want, but here’s a suggestion you might want to consider.” And they do the same for you. Do you find that useful at all or does it happen? Zuckerman: It’s not something I am keen on doing. I try to do it very judiciously. I don’t mind when people make suggestions to me, but generally I feel like I’ve figured everything out. I think, particularly if you are not cross-examining, you might pass a note to your colleague and say, “See if you can get them to say X, or see if you can get them to say Y, but be careful of Z.” Where the examination you are watching is an examination that affects his client but doesn’t really affect your client, yet it might affect your client so you put your two cents in and you have to be careful. Some lawyers react better to 132 that than others. Do you play golf? Granof: No, I’m not a golf player. Zuckerman: I’m a golfer. I play golf with some golfers that if you say to them, “Look out there is water on the left or what club are you hitting or the like,” they take it quite well. But other golfers will bark at you, “Don’t tell me what to do. Let me play my own game.” It’s very surprising. Granof: You were going to talk about the Church of Scientology. Zuckerman: This was another one of these multi-defendant cases, and it began what for our firm was a twenty-five-year relationship with the Church. The engagement began in 1978 and involved a campaign that the Church of Scientology had waged to obtain tax exempt status as a formal, recognized religion with the IRS – something it had been unable to do. The Church was at the time composed at its leadership levels of very bright, very sophisticated, very dedicated people. We represented two of its leaders. The two leaders were part of a group of about six or eight who were alleged to have put together a campaign in which they infiltrated, through the use of their agents, the IRS and indeed the U.S. Attorney’s Office that was litigating some of these issues – for example, “religion or not religion”– and purloined documents and materials from the IRS and from the U.S. Attorney’s Office. One or another of their members was arrested in the U.S. Attorney’s Office in D.C. or found to have entered. Their plan unraveled, and six or so of them were indicted in D.C. for a variety of crimes related to this break-in in a very notorious case. The indictment was sealed in order that the U.S. government could execute a search warrant on the headquarters of the Church of Scientology, then in the Los Angeles area, to look for documents that had been purloined from the federal government. This occurred in July 1977 and about fifty or one hundred FBI agents descended on “The Celebrity Center” – it’s a huge complex in Los Angeles, California – and searched the entire 133 premises for a long period of time for these documents and rifled all of the files that the Church had. The case was a very topical and notorious event. The indictment was returned here in D.C. and was assigned to United States District Judge Charles Richey. In my humble view, Judge Richey was not a good choice to administer justice in these circumstances as he had a very jaundiced view of the Church and the Church’s activities. The core issue in the case was the issue of whether or not the raid on the Church premises was legal. If the raid was legal, the documents that were seized were admissible, the clients were guilty. If the raid was not legal, then the documents were suppressible, there would be at least not as much evidence against the clients, and the result would be different. Granof: When did you get in the case? Zuckerman: We got in the case very early. Granof: Had you had a relationship with the Church of Scientology? Zuckerman: No, again, it was a referral. I can’t remember. It was one of the lawyers in town. We got into the case after the raid and before the indictment, which came down in the late summer of 1978. After the indictment was unsealed they were looking for lawyers. We were interviewed and two of them hired us. Granof: Who did you represent? Ron Hubbard was the head of it, right? Zuckerman: I represented Greg Willardson and Richard Weigand. Granof: I take it there was no problem representing two of the defendants. Zuckerman: No. There were conflict waivers and there was no problem. It was unclear whether L. Ron Hubbard was alive. His wife, Mary Sue Hubbard, a lovely lady, was one of the defendants. It was unclear whether Ron still existed or not. There were rumors that he was dead. There were rumors that he was 134 still alive. One just didn’t know. Mary Sue was the face of the Church. Granof: How come nobody knew? Zuckerman: It’s not exactly clear to me why no one knew or not. The Church was mysterious in this regard. Granof: Was he indicted? Zuckerman: No. L. Ron had passed from the scene and nobody knew whether he was alive or not. Granof: So, his wife was the face of the Church. I remember reading some years ago a long article in The New Yorker about the Church of Scientology. Who was actually running the Church, managing it? Zuckerman: The current president of the Church is a person named, I think, David Miscavige. We represented two of the defendants of nine or eleven defendants. On the joint defense team were two very notable attorneys – a lot of very fine lawyers including Earl Dudley, who had a long and illustrious career as a University of Virginia law professor, has written an autobiography in which he has devoted large portions of the book to this case and to his unvarnished dislike of Judge Richey. But the two most prominent lawyers on the team were Phil Hirschkop, who is well known and a wonderful civil liberties lawyer, now in his mid-70s in Virginia, and a fearless fighter; and his friend and semi-mentor, Leonard Boudin, of Boudin, Rabinowitz, Standard, Krinsky & Lieberman. Leonard at the time he was in the case was probably well into his 70s and was kind of a scion/denizen of the liberal civil liberties bar of the fifties. He was just an extraordinary person whose children included Michael Boudin, who had been on the First Circuit for a long time, and Kathy Boudin, who was a Weather Underground bank robber and fugitive for, not years, but decades, and was captured during the pendency of 135 this case. I remember it extremely well. She was captured at some point in the 80s. Leonard and Phil became very close friends of ours and we had long and enduring relationships with them and worked very closely with them on a number of matters. The focal point of the case was whether or not the documents seized on this raid at the Church headquarters by the hundred FBI agents would be suppressed. There are a host of very stringent rules that govern how you search for documents and how you deal with the intrusion into private areas that occur where there is a search warrant – say, for Gene Granof’s 1983 tax returns – and the police go in and rummage through every private document that you got in your house looking for one tax return. It’s a fertile area of law to litigate and the conduct of the FBI in conducting this search was, as you can imagine with fifty or one hundred agents, in many respects open to criticism. We filed a very substantial motion to suppress. It really was the defining event in the case and the judge, Judge Richey, made the decision that because most of the FBI agents who would be witnesses to how this search was conducted were in California, we would all go to California for the suppression hearing. Those of us in the case – prosecutors, defense attorneys, judge, and court personnel – all journeyed out to Los Angeles and lived in Los Angeles for about four or five weeks during a suppression hearing. Granof: Awful long hearing. Zuckerman: A long hearing. We went to Los Angeles and litigated. Judge Richey was a quirky person to deal with, to put it gently, and it was a difficult judicial environment in which to litigate. Granof: I’m surprised. Even if you have fifty FBI agents, it seems a lot easier for them to fly out here than it is to transport court personnel, U.S. marshals, all the defendants, all the lawyers, etc. out there. 136 Zuckerman: We lived in this big round cylindrical-shaped hotel in downtown Los Angeles, I can’t think of the name of it, but we lived well. We were there a long time, a long time. Granof: This was a client who had money? Zuckerman: The client had money and we were paid. My partner, Roger Spaeder, and I shared the duties. My recollection is that often we were both out there. The two of us were out there most of the time. It was highly contentious because the government prosecutors had more than the normal antipathy for the Scientologists. The perception was you were dealing with skillfully subversive people who were motivated above and beyond the levels of the normal fraudsters. The government was convinced that the defendants had this enduring committed cult-like attitude that made them dangerous even in the confines of a courtroom with a bunch of marshals – they were up to no good, somehow, some way. As the case moved along, we litigated aggressively, argued our motions, and the judge ruled against us and found that the search was lawful. We then decided we needed to plead our clients guilty because we had no chance at trial. We tried to negotiate pleas with the prosecutors. That got snagged in a number of ways. Then the case took an odd turn. The odd turn began on a Sunday with my receiving a phone call to come to Phil Hirschkop’s office right away. There was a video that was going to be played. I came to Phil’s office and there was a video of a woman being deposed. She was placed under oath, she was being deposed and she said, “My name is so and so. How are you employed? I am a prostitute. Will you describe what happened on XYZ day. On XYZ day, I was near or around the pool at this particular hotel. I was approached by a man who said he was a U.S. marshal and asked to go to a particular room and when I got there, an individual was there whom she described – I forget how she identified him – but she did identify him as Judge Richey. She thereupon described how she had sex with the Judge and then got paid and left. How had this been unearthed? The Scientologists claimed they found her. We 137 then discussed, however unseemly this was, what exactly the relevance was to our situation. We had a judge who clearly didn’t like our clients, who was clearly giving us a lot of difficulty, who seemed to have a certain degree of bias, but what does this prostitute have to do with it all? It was decided that the Judge had put himself in a very vulnerable position by his behavior and that the Judge may have been concerned that not merely the marshals were aware of his behavior, but that the marshals may have raised it with the U.S. Attorney’s Office. Because of the possibility that the U.S. Attorney’s Office was aware of his behavior, his reactions to the case intentionally or unintentionally were skewed. This was cause for requesting his recusal. Somebody had to write him a letter and ask that he voluntarily withdraw from the case because of these concerns. And if he failed voluntarily to withdraw, advise him that we would be forced to seek his recusal. I drew the short straw and it was I who was tasked to write a letter to a sitting federal judge asking that he withdraw from the case because we had certain reasons to believe that his behavior was affected by certain events that occurred in California to the detriment of our clients, and that he if he did not withdraw we would be forced to seek his recusal. I wrote such a letter, sent it to him with a copy to the prosecutor, as was proper, but without referencing in any detail what we believed to be the case. He then called me on the phone. Granof: Ex parte? Zuckerman: Ex parte although in a convivial way to ask me what I was referring to. And I said to him, “I am not going to speak with you, Your Honor unless the prosecutor is on the phone.” He tried very hard to push me to talk and I refused. I said, “I cannot deal with you in an ex parte way.” What he did not tell me at the time was he was taping the call. Granof: How did you know that? Zuckerman: I don’t know how I knew it but somehow it came to light. I can’t remember 138 the details of why this occurred but there was a conference with all of the lawyers and all of the prosecutors where the tape of the call was played in his jury room. I know – I’m assuming that what he intended to do was to get me to say something and then send the tape to the FBI and claim that I was engaged in blackmail or obstruction of justice or something. I wouldn’t say anything. I said, “I’m happy to talk you, I’m happy to discuss anything you want, but not unless it is in the company of a prosecutor.” He then took the matter of my letter under advisement, and without our having filed anything, wrote an opinion which has not been published in F. Supp. in which he withdrew from the case claiming that he was being harassed by counsel and could no longer function effectively and identifying me by name as having attempted to blackmail him. He withdrew from the case. The matter was duly reported, including with my name and his allegation that I attempted to blackmail him, in the Post by Laura Kiernan, who was a reporter I knew, who at that time was dating Bill Taylor, my partner. I was annoyed that she had both reported his words in their verbatim context and not had the decency to call me for a comment because I would have said something. This was in the early 80s. For a long time thereafter, for whatever reason, the windows in his courtroom door were card-boarded in so you couldn’t look into his courtroom. The oddest thing. And for years thereafter, if he spied me in the courthouse – or if he spied Spaeder, for example – he would in the most convivial way imaginable give you a hug, including me. For some, he would invite them to his chambers and regale them with verbatim recitations of events that had occurred during this case, which obviously was as emotionally impactful to him as virtually anything that had happened to him on the bench. Granof: You were invited into his chambers? Zuckerman: He did not do that to me but he did treat me publicly with as much respect and friendship as any human being whom I have ever dealt with. And he taught me something for which I am very grateful and that is the social 139 lubricant of being “hail and well met” – even when it’s completely disingenuous, you know it to be disingenuous, your counterpart knows it to be disingenuous – that that’s just the way people behave in public. It is a great social lubricant. It absolutely works – and all of this stuff notwithstanding – in a million years you would have never guessed in public that he and I weren’t the best of friends. It was an extraordinary clash between a group of very determined defense attorneys confronting a very determined adversary. As a side light, the prostitution aspect of this was leaked by somebody and it was reported, I think, by Jack Anderson in the Post. I was 41or 42 or 43 at the time. There was probably on my part a rough-andtumble gunslinger attitude or foolhardiness that I am not sure I would display at my current age. Granof: If you hadn’t done it, it’s pretty clear that since neither Phil Hirschkop nor Leonard Boudin were shrinking violets or gave a damn what federal judges thought about them, they would have done it. Zuckerman: True, true. In retrospect, I try to be a gentle soul, but there are times when you have to do what you have to do. The rest of the story is that the clients did indeed plead guilty. Mary Sue, I believe, got four or five years. These were not good crimes; they were bad things these people did. Our clients got something in the three-year range. The Scientologists loved us and among other things we ended representing Mary Sue in connection with her parole. We were honorable, well-regarded lawyers, who believed in the fairness of the system and they appreciated our commitment. We ended representing the Church in connection with some very serious matters a decade or two later in connection with the death of a parishioner in Tampa, who was denied psychiatric and other medical care during a period of extreme disorientation, and the parishioner died. The Church was sued for intentional or negligent homicide and investigated by the States Attorney’s Office in Tampa. It was 140 a long, long case. We did a lot of work for the Church in connection with that and in connection with other matters. At the time we did this in the late 70s and early 80s the Church was an outlier and not a lot of orthodox firms would represent it. In the competition fueled world of the 90s and 2000s, if you have the money, they’ll represent you and it became a completely different turn of events and law firms were much less “white shoe” about taking controversial clients. We were there early. Granof: Perhaps we can go into those subsequent representations. What was the position of your clients in the Church? Zuckerman: There was a leadership group. These were among the five or six major leaders of the Church. Granof: How did they tie those leaders, each of them individually, into the crime? Zuckerman: I think the government had turned one or more Church members as witnesses. So there were some key insiders, I think, who were going to testify as to what the campaign was. It was a spying campaign – these were the people that planned it, this was the way it was going to work. Granof: So they had the confirming documents from the search plus testimony. Zuckerman: I believe so. Granof: Judge Richey had issued an opinion refusing to suppress? Zuckerman: That was the nail in the coffin. As I recall, my view is that his opinion – you could have gone either way – was reasonable. I have no criticism of the intellectual quality of his thinking. It’s where he came from in the process that struck me as unfortunate. Granof: It seemed to me odd to go to California anyway for a hearing – to move so many lawyers, prosecutors, the judge and U.S. marshals out there. But he made that decision. When he wrote this opinion accusing you of blackmail 141 which was not a published opinion, but clearly a part of the court docket records and subsequently reported in the Post, what did you do about it? They besmirched your name. Zuckerman: I really don’t remember what my reaction was except pleasure at the fact that we had gotten done what we had hoped would be done; that is, with minimal debris and minimal casualties, we had gotten a judge whom we felt to be biased off the case. Granof: But still, a judge writes an opinion accusing a lawyer of trying to blackmail him and nothing happens? That seems odd. Zuckerman: I felt as if I had protected myself well. I was very oblique in what I wrote. I refused to say anything to him when he called me. Granof: This concludes our session for today. 142 ORAL HISTORY OF ROGER E. ZUCKERMAN Seventh Interview July 22, 2014 This is the seventh interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Tuesday, July 22, 2014, at 2:00 p.m. Granof: Okay, we’re on the record now, and just before we went on the record I had asked you about your continuing relationship with the Church of Scientology and particularly – I’m not sure how to put this – the fact that it is sort of regarded in many quarters as a cult or a fringe group and here this very reputable firm has this longstanding relationship with it. Zuckerman: I will take what I think is a good question and use it as the basis for digressing a bit, and talking more generally about our relationship with the Church and other comparable organizations. We long ago made a decision that – probably it was not so much a conscious decision – but we ended up deciding that we would be willing to represent the widest array of institutions and individuals possible. Another firm, I think, that has used that model has long been Williams & Connolly, and I think since the 70s and 80s when we began doing that, many other firms have adopted that approach. If the client can afford to pay fees, the client gets representation. So, to give you a very contemporary example, we are engaged now on behalf of a number of Jewish-American families in a suit against the Arab Bank for paying bounties to the families of purported martyred bombers who in Israel have detonated themselves and injured or killed Israelis and Americans. Under various federal statutes, those payments constitute sponsorship of terrorism. A family of the victim would show up at the Bank and get $5,000 or $10,000 as a payment for the martyrdom that the bomber went through, and we and any number of others have sued on behalf of hundreds of Americans. We have sued the Arab Bank. It’s in litigation in 143 New York. Well, the Arab Bank is alleged to have engaged in statesponsored terrorism and will be held to account if it is found liable, which it likely will be for hundreds of millions of dollars or more. It is being defended by one of the most reputable law firms in the country, DLA Piper. And that firm I’m sure talked about it, but they see it as perfectly proper to defend this entity on allegations of terrorism. The Palestinian Authority in other matters, probably not a terrorist organization, unlike Hamas, but the Palestinian Authority is represented by a very reputable firm here in D.C. today. I mention those two recent examples because I think it’s now much more commonplace to do this kind of work. In the 80s, we felt that organizations and individuals affiliated with such entities as Lyndon LaRouche and the LaRouche Democrats or the Church of Scientology or Synanon – very fringy type outfits – were clients that needed good lawyers. They were respectful of the advice they got, followed the advice they got, and the relationships established were decent relationships. And that probably arose from the fact that we had, in the 70s, grown up representing equally – but lower-level – maverick, rogue, outcast clients. People who were charged with drug offenses and pornography and the like. We had a burgeoning business representing national pornographers and their local outlets in the 70s, and the work was done by all of our lawyers, some of whom are now on the bench. I also represented Ron Humphrey in a major espionage case with a gentleman named David Truong, who was Vietnamese. They were both convicted of espionage in Alexandria. Truong just died about a week ago and the case was actually written up in his obituary. So in the 70s and then again in the 80s, we felt comfortable enough in our abilities and our skin to embrace clients like this, point one. Point two is, without being disingenuous or saying anything inappropriate, we nonetheless were able to befriend on a personal level many of these people. We are generally, well-adjusted, normal people – we are not particularly doctrinaire. We found many of our clients, apart from their somewhat odd world views, to be pretty decent, interesting people. I think 144 they sensed that there was a degree of friendship and “ease” to the relationship that made it professionally more effective than it would have been had we been uptight and distant in our personal relationships with these people. The two clients, for example, who I represented with the Church of Scientology were every bit as normal and American in their upbringing and their way as I was. They were regular guys. We went out and visited their homes in California and met their families. They just had a fixation with Ron Hubbard and his Dianetics. As long as you – Granof: Dianetics? Zuckerman Yes, it’s the use of scientifically questionable devices like an E-meter to audit you through various stages of inquiry to the point where you are able to get at your inner issues and obtain a state of, I think they called it, “clear.” It cost a lot of money and you would go through an auditing process, which is kind of a psychoanalytic counseling that had some electronic measures to it. At the end of the long process, you would be cleansed of a lot of bad feelings and attitudes. To this was married a much more complex world view that involved a lot of “science” that arose from Hubbard’s early days as a science fiction aficionado and author. The Church was also encrusted in a bureaucracy with a lot of militaristic positions. You rose up through the ranks. There was a sea organization – a so-called “Sea Org” that had certain responsibilities. Much of it I can’t really give you in detail. It was strange, but very popular and very attractive and very cult-like. After we represented them in the 80s in their espionage case – their government espionage case, in which they infiltrated the government, stole materials regarding their tax debts from the IRS – the Church was essentially run in a normal – this is going to sound oxymoronic – in a moderate way for a cult. There was nothing overtly vicious about it. It became a much more aggressive, and difficult organization in the 2000s with the passing of Mary Sue Hubbard, and with the passing of the 145 generation of leadership that we were involved in. We became involved with the Church in two of its most difficult matters. The first was the criminal matter in D.C. where its leaders all went to jail that I described. Granof: Yes. Zuckerman: And the second occurs probably a decade and a half later with the death – did we go into this the last time – of a parishioner? Granof: No, you just mentioned it. Zuckerman: With a death of a parishioner in Clearwater, Florida. The Church had amassed a huge war chest and opened a second major headquarters in Clearwater. Its earlier headquarters had been in LA and it transferred to a leadership group called the “Sea Organization” in Clearwater a lot of its major leadership figures and they purchased a hotel, I think. I’ve been there once I think in Clearwater. At some point, I’m guessing now, in the early to mid- 2000s, in connection with their counseling, their auditing and their treatment of parishioners, they became involved with an unstable woman whom they were counseling. She, I guess, manifested some sort of psychotic indicators which allegedly required traditional medical psychiatric care, but because of their embedded antipathy to psychiatry they withheld the care and she died. Granof: She committed suicide? Zuckerman: I don’t know how she died. I don’t whether she committed suicide or died in some other fashion. The case was handled by our Tampa office, and the Church was sued and was prosecuted by the State’s Attorney in Clearwater or the like for years as a serious criminal case and our firm defended the Church in both the civil and the criminal matter. 146 Granof: What was the criminal charge? Zuckerman: Manslaughter. There was a long, long Grand Jury investigation and a civil suit and I’m guessing the matter went on for two to three years. Granof: Were you involved personally? Zuckerman: I was not involved directly. It’s my understanding I think that the suit was settled and the Church was not indicted, but I can’t be certain of that. But it was, at least in our experience, the second of the big cases that the Church confronted. I’ve had some contact with them personally since then, but I would say in the last four years or so we’ve done nothing for the Church. It’s still, however, a part of the firm’s essential culture that we will represent roguish, maverick groups in connection with their legal problems, if they need our advice, if they want our advice, and if they are able to pay for our advice. As I said when I began this little chapter, I think it’s much more characteristic of American legal practice now across the board than it was when our firm began, to be open to representing these types of clients. In part, I think lawyers are more mature about those things now and more understanding of it, and in part for the reason, unfortunate or not, that there’s an economic imperative that drives law firms. Therefore, if there’s a client out there who can pay fees on a regular basis to be defended by a first-rate law firm, that is acceptable. There are limits. An example of a limit: a large firm was asked to represent a major Columbian cartel drug figure and declined, I think properly, to do it because there were all kinds of risks that involved criminal culpability and the like. The cartel ultimately went to a lawyer who just at the time this issue arose had left the Department of Justice where he was involved in international criminal enforcement. He was opening his own office, I think, at that time was a very reputable guy. He ended up not only representing the cartel figure, but ended up becoming a major lawyer for the cartel, and he got to 147 the point where he became, the government alleged, too close to the cartel, was too much a policymaker and too much involved in their affairs. As a result, he was indicted and was convicted in the Southern District of Florida. My client and friend, F. Lee Bailey, in the 70s – as we discussed – was engaged by Glenn Turner, a then controversial marketer, to do legal work, but ostensibly strayed from the legal work he was doing to become an advocate and endorser for what Turner was doing – his pyramid marketing program. Lee got very close to that and ended up getting indicted, not convicted, but getting indicted for mail fraud along with Turner, who was convicted. There are strict limits. You’re a lawyer. That’s all you are. You’re not an advocate. You deal with legal problems and only legal problems (a), and (b) the money that you get has got to be good money. It cannot be money that is derived from criminal activity. Under the money laundering statutes, lawyers – over the last ten or twenty years – have become increasingly sensitive to the fact that when an individual comes along, who is, for example, charged in a fraud – a white collar fraud – if the individual doesn’t have funds that are free of fraud, the money is probably, at best, forfeitable to the government and at worst, to the extent you take it knowing of its illegal origins, you’re potentially committing a money laundering violation. That’s a circumstance, I think, that has for the better changed the scene. There are some lawyers, who are “dyed-in-the-wool” defense lawyers, who believe in the primacy of the defense function. They argue that the inability of individuals to use their funds to obtain counsel without regard to the source of the funds misbalances the rights at issue and jeopardizes the individual’s Sixth Amendment right to counsel which should trump many of the strictures that limit the use of funds under various money laundering regimes. It’s a continuing debate, and the lawyers who advocate this position continually lose. The normal response to this position being that it’s not a Sixth Amendment violation because the individual at base has a right to counsel under the Sixth Amendment and the Court will appoint him one. His right to court-appointed counsel vitiates or 148 overrides any argument he may have that he’s got the right to expensive downtown counsel under the Sixth Amendment. That’s not how the Sixth Amendment is written according to the courts, and therefore, the argument that he’s suffering grievously because he has no access to his money doesn’t fly. One of the more recent examples – amongst the more recent examples of that problem – are situations of world-class fraudsters like Bernie Madoff or Allen Stanford. These are people, on the one hand, who had access to vast sums of money and, on the other hand, the money at least they had access to was pretty much not usable because it’s all from tainted proceeds. Therefore, they had great difficulty lining up counsel and finding a way of getting counsel compensated. The normal way that counsel is compensated in those circumstances is by friends and family who presumably will make available the funds from untainted sources or from D&O insurance. However, there are limits to D&O insurance and the degree to which an insurance company will make available the proceeds from a D&O policy to a person like Stanford, who is a known fraud and cheat. That’s for another day. It’s a long history of litigation. That’s my peroration on our firm’s experience with Scientology and some of the other fringe groups. The only coda that I would put on it at the end is that I think experiences like that – experiences representing outliers – experiences representing people in horrific crimes like murders, first-degree murders, murders punishable by the death penalty – experiences like that broaden your range of skills and your sense of the great breadth of humanity that exists in this world. It broadens your ability to relate to and deal with people. Finally, I think amongst most people, in what I think is a maturing world, lawyers with this type of experience are respected. I think people feel much more at ease with lawyers who have seen all kinds of litigation combat than with lawyers who have tried nothing but business disputes, for example. I’ve described the work we did in the 70s and the work I did in the 80s. So let me turn to the progression of my career into the 90s and the early 2000s. The firm as well was involved in growth, and our growth and maturation as relatively 149 more senior members of the bar contributed to the growth and maturation of the firm, which probably grew to 50 or 60 lawyers by the early 90s. I guess what I want to do is speak first, if I can, about the firm and then about me. By the early 90s the firm had opened its New York office and so we had five offices. I’m guessing we had 60 or 65 lawyers. Granof: Overall? Zuckerman: Overall, with the main office in D.C. We lost, tragically John Evans, the partner who opened the Miami Office. Granof: Yes, you mentioned in an earlier session that there were two deaths of relatively young attorneys. Zuckerman: John died in 1987, after six years as our principal Miami partner, in the middle of the night of a still inexplicable heart malfunction. We continued the office quite successfully thereafter. Thereafter, I had a case in Central America involving a woman who was at odds with her husband. She was in the States. We were protecting her from the efforts of her husband to get custody of her child who was in the States. A younger partner named Bert Peña, a wonderful young man, went down to Central America in the early 90s, did some work and came back, and that first or second night he was back he got in bed and went to sleep and he never woke up. Granof: You had mentioned these two inexplicable deaths. Zuckerman: The exact same phenomena. We actually were concerned because there was more than acrimony between the client and her husband. There was some sense of physical danger. We were concerned that Bert had been poisoned when he went down to Central America, and we had not one, but two autopsies done. They could find no evidence of poison. But he died six years after John in pretty much the same circumstances. What makes it even more tragic is that John had a son, Tim, who was a very lovely young 150 man and a very talented lawyer. After John’s death, we tried to support and guide Tim in his career. Tim married a lovely young woman from a wealthy family. After John’s death, Tim was given a full battery of tests to make sure he did not carry – I think it’s called “hypertrophic cardiomyopathy” – an enlarged heart with the propensity for sudden death. Tim and his bride were married and in 1997 or so – this is three years after Bert Peña died – they had a child who was christened one weekend at the local church that they attended in Coral Gables. Then, in the days that followed, Tim went and played racquetball and dropped dead of a heart attack, probably at about age 30 or 31, on the racquetball court. His funeral occurred in the same church about a week after the christening of his son. Granof: What a tragedy. Zuckerman: So, within a ten-year period or so, we lost John, we lost Bert and we basically lost John’s son and it was extraordinarily devastating. Granof: I think you had said in one of the previous interviews that the loss of those two lawyers made it very difficult to continue the Miami office. Not because there weren’t good attorneys there, but because it needed a certain kind of leadership, and the attorneys didn’t have that special quality. Zuckerman: You’ve put it perfectly. These things happened in the late 80s and early 90s. They robbed us of two people who really were very forceful personalities who could have guided the office growth very efficiently. We ultimately grew to twenty. By 2003 or 2004 we had a huge office on the 8th floor of the Miami Center, which is right next to the Intercontinental Hotel. We were moderately, but not highly, profitable for a period of years down there, but the stress of declining profitability in combination with the absence of great core leadership caused the office to fragment in about 2005, 2006, 2007, something like that. A number of the partners went to Carlton Fields and a number went to Akerman Senterfitt – two very good 151 firms there. We’ve enjoyed very close relationships with those lawyers since then. I had invested a huge amount of my life trying to keep alive this office, which was the first of our offices outside of D.C., and although I accepted that we could not make it happen, it was a wrenching loss nonetheless. One of the early cases that I had in Miami in the 90s is indicative of the way in which the firm and its clientele were maturing. In 1980 or so, Iraq and Iran became engaged in a war with each other, and geopolitically we favored the Iraqis who were very anti-Iran. They were at war from 1980-1988. We favored the Iraqi’s very much, and Iran had a natural advantage in that they could muster many more troops on the ground. So Saddam needed what in the trade is called a force multiplier. Saddam conceived that cluster bombs would be that force multiplier. He needed bombs that you could drop on a battlefield that would explode in such a way as to kill or maim large numbers of troops. He had a relationship with a very sophisticated and very able Chilean man, who was trained as a mining engineer, named Carlos Cardoen. Carlos Cardoen was a man of about my age. He was educated in the States at either the University of Utah or Utah State in mining engineering and he understood explosives. He was also a very prominent Chilean businessman and very well connected throughout Chile and the political establishment there. He was aware that under Saddam Iraq was in the market for these kinds of armaments. He was also aware as well that the United States and the CIA, implicitly at least, favored Saddam. So he conceived the development of a cluster bomb in Chile that he would sell in a perfectly lawful way to Saddam. Cardoen traveled to Iraq and met with Saddam, and undertook to develop these munitions for him, believing that he was engaged in a legitimate business undertaking. He also believed that the United States didn’t give a hoot about this, and if it gave a hoot, it really supported what he was doing. In order to make the cluster bomb, he needed a particular explosive that utilized zirconium. Zirconium was a mining 152 explosive, and zirconium was not manufactured in many places. The place that manufactured most of it was Teledyne, located, I believe, in the state of Washington in the United States. So Carlos negotiated with Teledyne to purchase large quantities of zirconium to put in his munitions to sell to Saddam for, probably at that time, hundreds of millions of dollars. It was a terrific opportunity and there was only one problem. The problem was that there was uncertainty about whether one could export zirconium from the United States for use in munitions, there being certain statutory and regulatory limits on such exports that came under what is called The Arms Export Control Act and other statutes. The uncertainty was resolved through the export of zirconium, not as a munition, but rather as a mining explosive. In the documents filed – the export documents filed – when referencing the use to be made of the chemical, zirconium, the use was described as a mining explosive. Granof: So the company lied? Zuckerman: So, let me simply put it to you this way, the export license and the documents underlying it were allegedly inaccurate. Whether Dr. Cardoen knew it, and if he knew it whether he believed that he was authorized by the CIA to do this is in my view still an open question. But the export documents were allegedly wrong, and one thing led to another and a criminal investigation began in Miami, and he was indicted in 1993. Carlos initially was referred to my partner, Roberto Martinez, a very prominent, young, talented, Miami litigator, who was with our office until about 1995 or 1996 when he became the acting U.S. Attorney. The initial engagement that Carlos made with our Miami office, our firm, involved Roberto and me. We flew to Mexico City in the early 90s. I’ll never forget this flight. It should have landed about midnight, but it didn’t land until about 4 in the morning. We met Carlos and his colleagues at what was a large table in the center of a huge ballroom, and it had a rather odd feel to it. We were engaged. For the next, probably, six years, I probably made a half dozen to 153 a dozen trips to Santiago to deal with Carlos and his firm. Bob Martinez made some trips, but ultimately he left the office, and Carlos became my responsibility alone. The case was intractable in its problems because one of Carlos’ principal allies, one of his principal partners, was induced to cooperate with the government in Miami, and was debriefed by the government under a proffer agreement which essentially gave him immunity. This was Augusto Giangrandi. Augusto implicated Carlos. With that information the government had enough in its arsenal that, despite my advocacy, it could indict Carlos. It indicted him in the mid-90s, charging violations of The Arms Export Control Act and other statutes. It also indicted Teledyne in what was at the time a very high profile case. It indicted Teledyne and the Teledyne executive. Teledyne and the Teledyne executive were, of course, U.S. citizens, and could afford the burden of a trial. It ended up going to trial. A long case in Miami. They ended up being convicted and the executive – this is relevant – ended up getting a three-year sentence. Carlos, as a Chilean, was not extraditable, or at least at the time of the indictment there was uncertainty about whether he would be extradited. Chile declined to extradite him. Carlos owned a great deal of property in south Florida, and his property was seized by the United States Government. So I spent years negotiating a deal whereby for the payment of a certain sum of money to the U.S., his property would be free. After I did that, he was able to liquidate the property and presumably do better than he would have otherwise done. I spent years trying to negotiate a resolution of this impasse between an indicted individual in Chile and prosecutors who were intent on getting him, but couldn’t really get him because he wasn’t extraditable. However, Carlos could not travel, because once you are indicted there is an “Interpol red notice” that is filed by the U.S., and if you enter any Interpol member country you are interdicted and arrested. My approach was to try to negotiate a benign plea. Something that’s classically done in cases where a foreign individual is indicted who can’t be 154 extradited. I’ve had many of these situations, many of them involving antitrust cases in which the executive of a foreign construction company or a foreign airline company who is indicted for antitrust violations in the states is not extraditable. Their wish is usually this, “If you could cut a deal for me, if the deal is reasonable, I’ll take the deal and be done with this.” However, the U.S. Government generally does not negotiate deals without the person being within its jurisdiction. On occasion, it will – generally, it doesn’t. It might have in Carlos’ case except that the two prosecutors took the following position: “The Teledyne employee who didn’t make a lot of money off of this went to jail for three years, and it also happened that he died in jail. Put that to one side. He went to jail for three years. If a Teledyne executive who was a peripheral participant at best, who didn’t make a lot of money, and who only participated in this scheme to create false export documents got three years, then Carlos has got to get a whole lot more than three years, even putting aside the Sentencing Guidelines.” And that, of course, was unacceptable. As a consequence, after six or eight years of going to Chile, hanging around Santiago, meeting with Carlos, and going to Miami, the intractability of the matter became sufficiently real that Carlos and I threw up our hands. I think that a high percentage of these unextraditable matters that deal with the parties who are at complete impasse result in the client in effect being sentenced, as it were, to nothing more but also nothing less than severely restricting his ability to travel the world. Now, if he were in the European Union, it’s a bit of a different story. I’ve had clients in the European Union who feel as if they can risk being tagged with an “Interpol red notice” because they can travel freely within the European Union without dealing with border crossing issues – without dealing with passports and the like. All of that is surely true until you’ve had your first auto accident or you get your first ticket and you’re a foreign national in France or Italy and you begin to have issues regarding your passport. This was a matter, however, that was, I think, a matter of more topicality and greater significance with a more substantial client than I had 155 dealt with for the most part in the 70s and 80s. F. Lee Bailey probably being an exception. It was, I think, one of the two most significant cases that I had during the 90s. The second case I propose to you that we leave until next time. Granof: Yes. Where is Carlos today? Zuckerman: Carlos is in Chile. Granof: And you still have any communication with him? Zuckerman: I have not communicated with him in a long time. He suffered for a good while from cancer – he’s beaten it, I think. He’s got a lovely family. He’s extremely well-known. He’s very philanthropic. He’s a very good person. He’s sophisticated. He supports the Arts. If you ask most Chileans of middle-class or above, they will have heard of him. Granof: This is – there’s something that strikes me as maybe missing which is, why was the government, how’d the government find out about this and why was it so interested in pursuing this export license matter as a criminal matter? There must have been some real interest in it. Zuckerman: They are really good questions. I can’t remember the event that triggered the government’s interest, but I think the government’s interest emanated from a rigorous enforcement policy that the Department of Justice had adopted for dealing with violations of The Arms Export Control Act and arms merchants who were running around the world engaged in arms trading in a way that was uncontrolled and oftentimes very dangerous. This was a big phenomenon in the 80s and thereafter, so it was conceived as a significant problem. This concludes the seventh interview. 156 157 ORAL HISTORY OF ROGER E. ZUCKERMAN Eighth Interview September 23, 2014 This is the eighth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Tuesday, September 23, 2014, at 2:00 p.m. Zuckerman: I am going to try to cover today at least the Bailey case and the beginnings of life into the 2000s, even though in the first or second interview I talked somewhat about the Bailey case because I remember talking about my early years with Lee. The case that engaged me for an extensive period of time in the 90s was really the last and hardest case, in which I represented my friend and client of several decades, F. Lee Bailey. In simplest terms, Lee had begun to represent Claude Duboc, an international marijuana dealer, who had been arrested and was being prosecuted in the Northern District of Florida before Maurice Paul, the Chief Judge, in both Jacksonville and Tallahassee. Lee had just come off the O.J. Simpson case, and Lee was brought into the Duboc case by Robert Shapiro, another prominent member of the O.J. Simpson defense team. Lee defended Mr. Duboc aggressively and ultimately reached a plea disposition in which Duboc was to enter a plea and among other things forfeit or repatriate his tainted assets, including the repatriation of tens of millions of dollars in real and personal property located in Europe, to the U.S. Government. After the repatriation of that property, his sentence would be reviewed and theoretically reduced. Lee, as his lawyer, was to superintend the repatriation of the property, which was no easy task because it involved residences and other illiquid items. In addition to the real property, there were funds, however, that were also subject to forfeiture that were taken from Duboc, specifically, stock in a company called BioChem 158 Pharma. So there were funds available. Since there was property in Europe, Lee set about in 1994 or so to travel to Europe to inventory and then cause the sale of the property there and effect its repatriation. In the process, he incurred a wide variety of expenses – travel expenses, hotel expenses, expenses hiring local individuals and personnel, and of course, he invested a lot of his own time. Before seeking the approval of the Court, Lee made the decision to reimburse himself for all the expenses that he had incurred, including the time that he invested in this project, from the stock which Duboc had posted and which he controlled. Granof: Lee Bailey controlled it? Zuckerman: Yes. In early 1995, after this process had gone on for a couple of years, Duboc grew weary of Lee’s representation, wrote the court that he wanted to terminate Bailey, and wanted to hire a new lawyer. And Judge Paul in early 1995 said, “Fine, Mr. Bailey will you appear in court on a set date and time in January and bring with you, or be prepared to turn over, the property that you were given control of a couple of years earlier.” Given that the Court had ordered Lee to turn over the repatriated property in fairly quick fashion, Lee, I think, was resistant to Duboc terminating him for certain reasons, but also was unable to comply with the Court’s directive, because – of the roughly $5 or 6 million in stock proceeds that he had controlled, at least half, something like $3 million had been expended – unbeknownst to the Court and unbeknownst to the government. Lee came to us and we appeared on Lee’s behalf – I did – at a series of hearings in the Northern District of Florida before Judge Paul, who was increasingly intemperate and frustrated with Lee. The hearings morphed into a show cause hearing as to why Lee ought not to be held in contempt for violating the court order, namely, to return to the Court all the assets that Lee had been given two or so years ago to hold in trust for the government pending the outcome of this repatriation process. Lee and we insisted that the agreement that he had with the government allowed him to liquidate the assets on an as-needed basis during 159 the previous two years, and to apply to the Court at some point in the future for what amounted to retroactive approval of the expenses that he had incurred, including what it is that he paid himself for his time and efforts protecting and liquidating Duboc’s former assets. There were furious arguments and evidentiary presentations. Lee testified; Bob Shapiro, his referring lawyer who was a part of this at the beginning, testified; and the prosecutors who made the repatriation deal with Lee testified. After this testimony, Judge Paul found that the agreement with the government did not allow Lee to obtain retroactive approval, but required “pre-approval by the Court” before any funds were taken. The Judge gave Lee something like 30 days to return all the funds, including the $3 million that he had paid himself, or be held in contempt of court and put in jail. Much of this I spoke about earlier. Granof: So he had 30 days to either return the funds or – Zuckerman: Or go to jail. At some point in mid- or late February 1995, Lee set about raising at least $3,000,000 to deposit in the Registry of the Court to make up the shortfall for the funds that he had reimbursed himself for his fees and expenses. We had extensive hearings about what Lee spent, whether he was entitled to spend it and the like, but the net result was that the Judge really never ruled that Lee was wrong. Rather, I think his ruling was, in effect: “Before I render a ruling, I want the money back in the Court.” And Lee, over the ensuing 30 days, could not raise the funds. Ultimately, we took an appeal to try to keep him from being incarcerated on civil contempt. I argued in the Fifth Circuit in Atlanta. That argument failed, and at some point in March or April 1995, Lee was incarcerated in the Federal Detention Center in Tallahassee, Florida for having committed civil contempt; there to remain until he paid the Registry of the Court 3 or 3.5 million dollars. He remained in jail for approximately 41 days. I negotiated with the prosecutor an arrangement ultimately by which Lee was able to pay some of the money in cash that he borrowed, and he collateralized the rest with property that he 160 owned. Judge Paul, who was none too happy that the government supported my request for his release, and still being very intemperate and testy, ultimately agreed to release Lee. And the litigation continued before Judge Paul with questions about whether Lee was entitled or not entitled to take the money he did. It ended in circumstances in which we terminated certain of our claims, and, for want of a better phrase, “got out of Dodge,” because the litigation before Judge Paul was going poorly and we held very few cards. That litigation terminated in about 1996. After that, the question arose, much like a cancerous cell, whether the findings by Judge Paul that Lee had held a vast sum of money in trust for the United States and breached that trust by invading it, and whether that “finding” would metastasize into a bar complaint against Lee. The result in front of Judge Paul, the ignominy of 41 days in jail, the loss of the funds, all of that we could abide. The bar complaint, that would be a lot tougher. Lee, at the time, was in his mid-sixties so he had a lot of years of practice ahead of him. And in this very slow but inexorable way that cases sometimes take two or three years to develop, the Florida Bar appointed a state judge in Tampa, I think a Special Master to look at the repatriation case and make a recommendation to the Florida Supreme Court. I got the most eminent Florida practitioners I could find to represent Lee in the bar action, and worked with them, and the matter slowly made its way to the Florida Supreme Court, I am guessing in about 2001. The matter was argued before the Florida Supreme Court and the Florida Supreme Court voted, I think unanimously, to disbar Lee. That decision was reciprocal to the bar membership that he held in Massachusetts. Thus, Lee was disbarred in 2001, and he was no longer able to practice law – the disastrous end of a brilliant 40-year legal career. To give you some idea of the full extent of Lee Bailey’s fame – fame that is not known to the younger generation of this day and age – sometime in the 1980s, I think, The National Law Journal conducted a poll of practitioners to identify the most famous lawyer, real or 161 fictional, living or dead. The results were roughly this – Abraham Lincoln was 3, Perry Mason was 2, and F. Lee Bailey was 1. Although again it’s very hard to get this across to the twenty-something generation, many of whom have never heard of him, but in the period of the mid- and late twentieth century, Lee Bailey was visualized as the epitome of what a great trial lawyer should be. Granof: Did he have already have a Florida bar license or did he have to take the Florida bar? Zuckerman: Finally, there is a postscript that you will find interesting. Lee decided to try and get back in the bar, and has spent the last six or eight years in Maine as a kind of legal consultant and a businessman. He is very well known to senior members of the Maine Bar and has been through two or three years of very intense litigation to try and get his law license in Maine, the matter going on several occasions to the Maine Supreme Court and the Maine Supreme Court coming close to granting the license. I will spare you the details. The end result of this is that in its last iteration before the Maine Supreme Court, the issue of Lee’s fitness to practice was decided negatively. And the Maine Supreme Court decided not to grant the license. One of the things, however, that was required in this process was that Lee take and pass the Maine Bar, and at the age of roughly 79 he took and passed the Maine Bar Exam. Lee believes he is – it could be true – that he is one of the oldest, if not the oldest human being in the history of this great country, to have taken and passed a state bar exam. He is an extraordinary fellow and has had an extraordinary career, and one hopes that this tale, which spanned the last fifteen years or so of his life, does not detract from the great work that he did, which really runs back to – and I’ve talked about it before – runs back to the early 1960s when he was an extraordinarily young person in his 20s having come back from Korea, having gone to law school after he flew jets in Korea, having done very well, having come out of law school as this brash young man in Boston, and then having this string of extraordinary cases – Carl Coppolino and the 162 Boston Strangler and Sam Sheppard and the William Calley/Ernest Medina case – I mean a whole classic set of cases back then, that this brash very talented lawyer handled during what I guess turned out for him to be his “heyday.” Granof: Why do you think Judge Paul was so angry with him? It seemed like Judge Paul believed that it wasn’t just an innocent mistake, that there was some bad faith there on Bailey’s part. Zuckerman: I think what you’ve said is perceptive and fair. I think from Judge Paul’s viewpoint, it was unimaginable that a lawyer holding vast sums of money in trust for the government would pay himself “millions of dollars” from those funds without first seeking the approval of the Court or the government. I think it became apparent to Judge Paul that the young prosecutor had failed miserably to paper the transaction. There were no letters back and forth between the government and Lee. There were no internal memoranda that the government had prepared explaining Lee’s obligations and duties. The government’s course of dealing, after the “repatriation agreement” with Lee had been negotiated, was in many respects inconsistent with, and in fact antithetical to, the idea that Lee was not able to liquidate any of the funds to pay himself along the way. So there came to be a point, I think, where there was some recognition by Judge Paul that Lee and the government probably missed each other very badly. And in a weird way, the third witness to the transaction was the Judge himself. Lee and the prosecutor had gone to see Judge Paul when the agreement was first negotiated to tell Judge Paul that this was to be “the deal.” Although Duboc had appeared in front of Judge Paul in May of 1994 with the lawyers saying beforehand in chambers, in essence, “Duboc’s going to plead guilty, we’re going to liquidate his assets, and we’re going to repatriate those assets,” at that point Judge Paul did not really nail down Lee’s obligations and duties in regard to the repatriation process. 163 Granof: You would think at some point he would – you know when it got up to be half-a-million dollars, some substantial amount, he would say, well, maybe I ought to get some approval for this. Zuckerman: It was a hard case. Granof: For a guy as smart as Bailey. Zuckerman: Well, but as I said, Lee had an unerring sense of the rightness of his own positions which made him, in some regards, unassailable as an advocate in a courtroom –and I’ll leave it at that. He’s a dear, dear, special part of the American legal landscape at the end of the twentieth century, and he deserves to be remembered and revered for a lot of great lawyering, this episode notwithstanding. Now, the experience with Lee in the 90s ended in one sense happily, because Lee was not prosecuted criminally. We had a number of lawyers in the firm who worked on the case that had some concern that it would be referred to a U.S. Attorney’s Office for criminal prosecution. I mean his actions might have been asserted to be embezzlement, but that never happened, thankfully, and it shouldn’t have happened. But in retrospect, at least in my career experience, this was the first of three or four cases that I had in the seventeen years from 1995 through 2012 that brought home to me what I think is a salient psychological fact that afflicts very important people in particularly high positions. That “salient fact” is that these important people – that is, senior executives and other people of high rank – are under the illusion that when you do something wrong flashing lights will go off, bells will go off, you will know that you have crossed the line, and some sort of electric shock will pass through the atmosphere to warn you or advise you that you’ve just gone too far. And invariably when you deal with senior executives who find themselves “all of a sudden” under criminal investigation or involved in a non-criminal experience of the kind that Lee found himself caught in, their 164 reaction – and I’m speaking generically here, not revealing confidences – but their reaction is: “I had no idea!” or “It never occurred to me that this was wrong.” Their thought always being that, if they had done something wrong, they would have experienced something akin to an epiphany that a bank robber has when he goes in to rob a bank that “This is wrong!” But when you are engaged in simply a day of business – and it’s the 427th day you’ve been engaged in such business – and you write down a particular number on an inventory sheet knowing that number is understated or overstated, or knowing that certain of the facts you’re putting in the company’s books are not quite correct, those actions are just significantly different from taking out your gun and robbing a bank; that is just business – no lights are going off – it is just the way life is. Granof: Yes. And the question I had was your involvement. You had indicated that you were clearly involved in litigating it before Judge Paul because you said you did a cross-examination of the – Zuckerman: Yes, I did all the litigation. Granof: And so you argued in the Fifth Circuit? Zuckerman: Yes, argued in the Fifth Circuit. Again, I think I said this already, argued in the Fifth Circuit to a panel of three judges in 1995. The question was: “Whether the order putting F. Lee Bailey in jail should be stayed?” This is 1995. Ironically, the head of the panel was the Chief Judge at the time – I think he was – Gerald Bard Tjoflat. Judge Tjoflat must have been in 1995 in his mid- to late sixties. In 1973, that same Gerald Bard Tjoflat – who was in his forties – was a then District Judge in Jacksonville, Florida, who presided over the trial of Glenn Turner and eight other defendants, including one F. Lee Bailey. So, Lee, having escaped the clutches of Judge Tjoflat by gaining a severance in the Turner case, and then avoiding re-prosecution totally in that case in 1973 and 1974 by claiming Double Jeopardy and Speedy Trial 165 violations, found himself in front of the Judge Tjoflat on a freedom-related issue for the second time in a quarter of a century. I was effectively his lawyer for a part of 1973 and 1974, and we appeared again in front of Judge Tjoflat in the Court of Appeals in 1995 – 22 years later. Granof: What was the argument like? Zuckerman: A number of lawyers from the old Turner case came to the argument. In my view, the argument went poorly and I thought there was no question but that the Court of Appeals would affirm Chief Judge Paul, and Lee would have to surrender himself. That’s what the Fifth Circuit ruled. First, I would say that the best work I did in the case was my cross-examination of the prosecutor. That cross-examination made a big difference in softening the judge’s reactions, and I think in probably keeping the case from going criminal. And the second, I have a style which is not offensive to my adversaries, so I generally try to have extremely strong personal relationships with the lawyers against whom I advocate. I think “this personable style” is actually – in a modest way – effective for a lot of reasons, one of which is it is disarming and makes those adversaries somewhat less aggressive than they might otherwise be in some instances. I had very good relationships with the prosecutors, and I think, at the end of the day, these relationships got Lee out of jail quicker than might have otherwise been the case, and they paid other dividends, but it was a very hostile environment, very hostile. Granof: Did you argue against his disbarment issue? Zuckerman: No. The federal work I felt was appropriate for me to do, because lawyers who do federal work are sort of homogeneous in nature, at least they were then. It’s not unusual for attorneys to appear in federal court all over the country. But the state work, particularly (1) appearing before the local state judge and the Florida Supreme Court, and (2) dealing with issues regarding membership in the Florida state bar, that’s purely Florida – purely local – and 166 there are many others who are much better at it than I. Although we have a very substantial professional liability/disbarment practice in the District of Columbia, you can’t export that local expertise to other jurisdictions. The law is so sui generis from jurisdiction to jurisdiction, and the personalities and the politics are so local, that you are really better off with an in-state bar member providing the representation. Granof: And I take it that was true in Maine too? Zuckerman: Yes. Granof: You raised an issue, which I think is really interesting because it goes to the way you practice law. That is, this notion of in-your-face, the aggressive lawyer, you think that’s not as effective as a lower key, more disarming style? Zuckerman: Yes, you can only speak in generalities. I think there are lawyers who are most effective as lawyers, who are very strong courtroom advocates and powerful courtroom advocates, and are confident and speak loudly and are extremely well-prepared. But there are also lawyers who treat the judge well and treat their adversaries well, and I think that pays dividends in front of a jury. It also pays dividends in the hallway where you are dealing with your adversary and he needs things, she needs things and you need things. I think as a general proposition it’s much more effective than a lot of the posturing that you used to see on these old time TV shows, where the lawyers refer to each other as counselor and they speak in a kind of a jargony, “Not this time counselor,” and so forth. No, that’s just not where I am. My philosophy has always been, and I don’t think it’s something that lawyers are taught in law school – quite wrongly – that the practice of law is about 50% knowing the law and about 50% knowing people. I have said this before: it’s a people profession. There’s a sales quality to it. There are some effective lawyers who grow up to be mediocre legal analysts, but have an extraordinary feel for 167 people; they can read people and know the angles by which to move people and they are really great. But the lawyers who are even greater are the ones who know the angles, can move people – are great at that – but are also really legally adept. In my view, one of the characteristics of the lawyers at our firm is that the people here are very nice, decent, caring and well-liked. And I think if you talk to people about the firm, you will find that this perception about our lawyers generally exists within the local legal community. While that may sound superficial and unrelated to the practice of law, what that means in “everyday” reality is that they are very effective advocates because they understand how to deal with people. They understand how to get the most out of people. They are respected. Doors open for them. Judges listen to them. It makes them much more effective than they would be if they were jerks. I don’t think you get that in law school. I don’t think you get that from a lot of mentors of young lawyers. Granof: You know this last two or three minutes of advice, if nothing else comes out of this interview, that should be posted on every law school bulletin board or given to every law student. Zuckerman: That’s what I tell people. You are really not doing much other than – this is going to sound bad – than selling shoes. You are selling justice, at least your version of what justice is, but the operative word is “selling.” You are trying to find a way to get your customer – a judge or somebody you are trying to settle a case with, or a recalcitrant client who can’t buy into what he ought to be doing – you are trying to get him to buy your argument. Generally, most people think that it is about – that it is all about – the kind of argument you are making, the quality of your argument: “Did you cite the judge the right cases?” “Did you make to your adversary the right arguments?” “Did you make the right and persuasive remarks to your client?” But it’s way more than that. It’s like, if I can say, a gestalt. It is a whole universe of interpersonal dynamics that you have engaged in long before the argument, long before your adversary and you wrestle, long before you and your client 168 have that one critical conversation that leads the person who is receiving your words to be more receptive to what you are saying than he or she would be to what some equally, or more, brilliant lawyer who is a jerk might say. That, I think, is something that some lawyers never get. The ones that are still practicing in their 60s and 70s probably got it. Granof: I think that’s just great advice. Irving Younger says the same thing. He says the jurors want to trust you and have confidence in you, and I think it’s true even in the Supreme Court. Zuckerman: But it’s not only jurors. It’s your adversary. Your adversary doesn’t want his pocket picked. He wants to feel as if you are being fair to him. He wants to feel as if you are not conning him. He wants to feel as if your way is a very effective way, and might indeed be pretty effective with the jury or a court. I mean I went through, and we can talk about the litigation with the Circus, in which I was brought in to defend “The Fund for Animals” and to a lesser extent “The Humane Society.” In a matter in 2011 and 2012, these organizations were being sued by the Circus for allegedly committing RICO violations during another piece of civil litigation that was badly mishandled, badly received, and resulted in a horrific judgment from Judge Emmet Sullivan. Granof: This was Ringling Brothers? Zuckerman: It was the Ringling Brothers who had been sued by these animal rights organizations. The judge basically found that the primary plaintiff in that initial civil case had been wrongfully paid by these animal rights organizations? Did I talk about this? Granof: I don’t know that you did. Zuckerman: It was acrimonious in the extreme, and when we entered the case I believed that we needed to adopt a completely different tone and approach. In a 169 future time, we can discuss that case more fully. For now I want to go chronologically, but that case required a different tone and approach that I think was extremely useful as the case progressed. So veering back, Lee’s deviation from the norm without cosmic bells and whistles was a precursor of what I was to confront in three very interesting cases in the first decade of 2000 – the 21st century. Granof: Before you leave F. Lee Bailey, I have to ask you one question. Was F. Lee the kind of attorney that you’ve tried to be, which is works well with his opponents, doesn’t undermine them, doesn’t come across as “I’m F. Lee Bailey you know?” Zuckerman: No, Lee had, as many lawyers do, a very powerful sense of his own power, which he should have had. As a consequence I don’t think he was as – I’m trying to think of the psychological concept here. “Insecure” is the wrong word. I’ll put it to you this way, he was not as outwardly focused as many lawyers, including myself, are. For me, it is very important to pick up any cue that I can from you. “Did you laugh at this?” “Have I offended you with that?” “Do you want to talk to me about certain things?” “Do you interrupt me?” “Are you uncomfortable talking about yourself or me?” Again, it may be a defense mechanism because of insecurity. But I have a very strong antenna for other people and how they respond unfavorably and favorably to me. That was not a strong thing with Lee; he basically didn’t care, I think. He wanted people to like him and be friendly with him, but it was not high on his list to look at others’ reactions to him. Do you watch the Larry David show? Granof: Yes. Zuckerman: You know Larry will say something and then he will stare at the person that he is talking to, like this, in an exaggerated way, visually conveying the idea that he is asking that person, “How am I doing?” Lee was too powerful and 170 too proud to be bothered with that. Granof: I guess if you have his talents, you could succeed in spite of that. Zuckerman: Well, I think there are pluses and minuses. I think it’s useful to have the traits of a keen observer of people’s reactions. It’s useful to be able to tell when somebody is saying something to you that they probably don’t mean. It’s useful to be able to tell when someone is tired of listening to what you have to say, and all of those things are extremely useful to be able to recognize at the time. In truth – I’m not sure any of us can always spot these reactions – but when somebody thinks you’re being pompous and disingenuous it’s just helpful to know that. Not that I’m particularly great at it, but it was not something that interested Lee. Granof: Maybe if he’d been more like you, he wouldn’t have gone to jail. Zuckerman: Well, if he’d been more like me, Duboc might have never come to him in the first place. As you say, greatness in the market has its price. One of my theories – another of my theories, born over fifty years of doing what we do – is that the people who succeed, the people who develop reputations as great men or great women in the law, oftentimes have personalities that are in many respects impossible. They are egocentric, powerful, controlling, but they appeal to – very much in the manner of John Wayne – very powerful individuals; they are very appealing to certain kinds of people, more so than they appeal to companies. Certain types of people visualize that their lawyer needs to be a “great man” in every sense of the word. Therefore, at times those lawyers are overbearing and insufferable. It is a style that oftentimes not only produces really good results, but it also produces a steady flow of very important and interesting clients. There’s a lot of conditioning and reinforcement. Granof: It’s not just in the law. For example, business – one example is Steve Jobs. 171 Zuckerman: Yes, sure, or celebrity doctors are kind of self-promotional. Dr. Oz is selfpromotional in the extreme in a way that most doctors find distasteful, and it has worked for Dr. Oz and he’ll be damned if he’s going to change it. So, they are who they are and there’s a place for all of us. Granof: Yes, so maybe enough of philosophizing although I think that’s some of the more interesting part of it, but you wanted to talk about other cases. Zuckerman: Yes. Granof: And we can certainly start on that. Zuckerman: Yes, I’m going to start there. One other case of note in the 90s, the firm was engaged to defend the Hospital Corporation of America – Columbia HCA – which was allegedly involved in a huge Medicare fraud in Florida, and in particular in Tampa. Columbia HCA – HCA as it was called, I think, at the time – was one of the largest chains of hospitals in the country run by Tommy Frist, out of Tennessee. HCA was a very lucrative company and it was thought to have in various technical ways engaged in massive medical fraud. We, along with Latham & Watkins, were engaged to represent the company – we more so in Florida, because we are Florida-centric. We had a lot of very fine lawyers in our Tampa office, and I did a lot of work in that case with Sandy Weinberg. And the case ultimately resulted in a negotiated resolution for the company which I don’t think involved – it may have involved disgorgement of money – but I don’t think it involved a conviction, and after several years, it was successfully resolved. It was a big, but garden-variety, health care fraud case that was interesting to me for a number of reasons. I got to spend a fair amount of time with Sandy Weinberg, who is a wonderful lawyer, and a very close friend in Tampa. I spent a lot of time in our Tampa office, and it really helped cement the relationship between the Tampa office and the D.C. office, which remains very close to this day – twenty years later or so. It also put me in contact with Michael Chertoff, the 172 principal lawyer at Latham for this case. Mike and I became very good friends, and I remained close to him even after he left Latham for a Third Circuit Appellate Judgeship, and then left the U.S. Court of Appeals to come to D.C. as the head of the Criminal Division at the Department of Justice, and then the head of Homeland Security – or is it Criminal Division, then to the Third Circuit, and ultimately the head of Homeland Security. He is now the head of “The Chertoff Group,” a private consulting firm. Granof: What is “The Chertoff Group”? Zuckerman: “The Chertoff Group” is a phenomenon that exists more so now in Washington than ever. “Kissinger McLarty” is another one. And so are “The Albright Group” – Madelaine Albright – and “The Cohen Group” – William Cohen, Senator Cohen. If you have a high government position, particularly if you were in the executive branch at a Secretary level, that’s significant. And if you’re looking for private employment, you set up a consulting group and name it after yourself and focus on what you know. So “The Chertoff Group” has, among other people, working for it the senior most people out of the CIA, the senior most people out of MI6 or 5 whatever it is, the senior most people out of other national security related entities, and it does national security consulting at the highest level. So, for example, if you ran the Port Authority in New York and you needed a security assessment, or you ran a multi-national corporation and needed a security assessment for your executives, or you needed anti-corruption advice – there’s a whole host of things – you would go to an outfit like “The Chertoff Group.” It’s a very common phenomenon. Putting aside Columbia HCA, in October of 2001, Enron went belly-up, and its accounting figures masked the fact that it had lost hundreds of millions, if not more, in its trading activities. Enron was located in Houston. In October 2001, Enron went into bankruptcy after last-minute efforts by 173 Kenneth Lay, its President, to save it. After a long of series of efforts by Jeff Skilling, its theoretical architect and operational leader, billions of dollars in market value were lost. I received a call from one of its senior executives in late 2001, and was engaged to represent the executive in early 2002. The executive was Lou L. Pai, one of the most interesting, nicest, and best adjusted human beings I have ever met, and a friend to this day. What I am going to describe is all publicly available information so that when I give you information about Lou, it is publicly accessible, and not anything that is protected by the attorney/client privilege. Lou, at the time, was about 55, and had been at Enron about five or six years. He was a protégé of Jeff Skilling, who liked Lou very much and thought him to be a brilliant fellow. Lou was from the D.C. Metropolitan area. He grew up in Prince George’s County, Maryland. His father was a professor of aeronautical engineering, I believe, at the University of Maryland, and the family had come to the United States in the very early 50s as expats from China and the Communist Revolution. The father obtained a job as a mathematician or engineering professor at the University of Maryland, purchased a nice house, and raised Lou and four or five siblings in Prince George’s County. Lou attended the University of Maryland, became an obsessive Maryland football and basketball fan, and made his way in the business world. He veered off into commodities and commodity trading and loved the arcana associated with that, and ultimately found his way to Enron where he did well under Jeff Skilling’s tutelage. He was married at the time to Lanna Pai and they had, I think, two children. Lou rose progressively in the hierarchy of Enron, and as befitting an Enron executive, got not only a substantial salary, but got very lucrative stock options to buy Enron stock. By 1998, Lou came to hold a vast amount of Enron stock – a vast amount. He also came to head Enron Energy Services –“EES” – which was what the retail arm of Enron was called. Enron Energy Services was not involved so much in the wholesale trading of derivatives and energy-related items, but was involved in selling Enron’s retail services to shopping centers/malls – services that Enron could 174 perform that would dramatically reduce the energy costs that large companies confronted in any one of a number of ways. Although it was a start-up division, it was considered to be an important division of Enron in 1998 and 1999. To Lou’s discredit, which he has admitted, and is publicly known, he began an affair with a young woman and he had a child out of wedlock with this woman, probably around 1998 or 1999. Thus, Lou became part of, what for want of a better way to describe it would be, a clandestine second family as some businessmen do in their lives, and led a not-particularly-disciplined personal existence. All of this is very relevant. In essence, Lanna, his actual wife, found out about the affair in 1999, and insisted on a divorce. They both got lawyers. The divorce was contested and acrimonious, and ultimately required that Lou sell all of his shares in Enron in 1999 and 2000 in order to split the proceeds with Lanna. He kept a little toward the end, but he sold $271,000,000 worth of Enron stock in 2000 and 2001 giving roughly half to Lanna and half to himself. Various class actions were filed, including a number of class actions against about two-dozen insiders. The lawsuit against the insiders alleged that the insiders, with knowledge of the precarious state of the company, had liquidated their stock in 2000 and 2001 to the tune of about a $1.1 billion in the aggregate. Vast amounts of damages were sought. Lou was one of the named defendants, as you can imagine, since Lou was responsible for about 26% of the insider sales. Of course, Lou had a bulletproof defense. Granof: The court made me do it. Zuckerman: Yes. Lou said, “I sold my stock for one reason and one reason only – that’s the only way I could divorce my wife.” An incredible defense, and essentially with the exception of a little stock he held at the end, it prevailed and it kept him from being prosecuted either criminally or having to part with a huge amount of his money. It’s just the most incongruous juxtaposition of events. If he had remained married to Lanna, if Lou had 175 remained married – if he’d been a faithful husband, if he’d lived by the “Good Book” – he’d be broke and maybe in jail if he had sold his stock. Or, at least he’d be broke because the stock would be worthless. Granof: And his wife was rewarded. Zuckerman: She was greatly rewarded and the whole economic arc of the family was completely changed because of his indiscretion. This concludes the Eighth Interview. 176 ORAL HISTORY OF ROGER E. ZUCKERMAN Ninth Interview November 25, 2014 This is the ninth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on November 25, 2014. Zuckerman: We have now reached the iconic and momentous date of around the year 2000. The year 2000 I turned 58. The firm turned 25 – something like that – and I had reached a point where I was relatively senior in the Bar and began a period from 2000 to the present in which I and the firm were consulted by senior executives of relatively significant firms on matters that were very serious. There are, according to my “cheat sheet” as Judy calls it, a dozen or a dozen and a half who are on the list for problems, many of which are civil and some of which are criminal. There are criminal anti-trust cases and the like which we can talk about as filler, but there are 3 dominating cases that took periods of years – indeed, one took a decade – that really filled the landscape of the period from about 2000 to 2011. The first of these three cases, as we have discussed, involved Lou Pai, who was the highest, most senior executive at Enron to escape prosecution, and he did so keeping 90% or so of the proceeds of $271,000,000 in stock that he was able to liquidate in the year before the termination of Enron. Granof: I guess he did have to share it with his wife or his former wife. Zuckerman: He had to share it. Well, the reason he was able to keep it is because he did share it with his wife. That was the reason. The demonstrable, incontrovertible reason for the liquidation of his shares – not any insider information. He had misbehaved, was getting a divorce and needed to pay off his wife, which he did. It was an extraordinary stroke of good luck. This is something that has been commented on publicly in the press. But Lou’s case was the first dominating case I handled in the 21st century. During the 177 representation of Lou, we became very good friends. He is a very decent person – these events notwithstanding, and I believe that he has succeeded admirably in his life since then. The representation of Lou ran from the end of 2001 oddly enough until the present. Even now there are still some loose odds and ends with the SEC that are being wrapped up. That’s 13 years of travail; most of it, however, was wrapped up, I think, by 2010. The second dominating case and one that I may have talked about previously and if I have, we’ll simply strike this. But the second case is a case that began in about 2004 or 2005 with a company called REFCO. The second case involved Tone Grant. What I describe to you now is a matter of public record, since the case was tried and commented on extensively in the press. Granof: It’s spelled Tone? Zuckerman: Tone – it’s the Scandinavian spelling. Tone Grant was a great, accomplished American whose background I will describe. He became the first president of a company that was a brokerage company that sold and traded in futures issues in New York. The tale I will tell involves the growth of the company, the demise of the company, and its sale in about 2004 or 2005. The discovery that the books of the company were inflated when the company was sold resulted in the prosecution of at least three senior executives, the then existing president, several financial officials and Tone, REFCO’s first president. The matter involved 3 trials – 2 trials of Joe Collins, the General Counsel of REFCO, who was convicted. But for our purposes, we will focus on the approximately 5-week trial of Tone in 2008, in which he was convicted and received a 10-year sentence of which he is about halfway through. We still represent him and are trying to get him a compassionate release. Let me describe that, and you will get a sense of my life in New York. I think I’ve commented on this: my life in New York in a major fraud trial in the mid-2000s, an event that occurred about 25 years after my life in New York in the Herman Friedman tax fraud trial in the early 80s – a case that was lost as well. The background facts: Tone Grant went to Landon 178 High in Bethesda, Maryland; was a storied athlete; went to a prep school for a year; and thereafter I think was recruited as an athlete to go to Yale and went to Yale. Granof: In other words he went to Landon and then went and spent a year at another prep school? Zuckerman: Yes – I think so – a New England prep school. And then went to Yale where he was the quarterback of the football team immediately before Brian Dowling. One of Tone’s teammates in the mid60s when he was the quarterback at Yale was Calvin Hill, the great NFL running back. Another one of his friends, who was also a fraternity brother, was George W. Bush, who was then at Yale. Tone was a good student. He had a fine career at Yale; he was well-liked and well-known. After college, he joined the Marines – he went to Vietnam and saw combat. He then went to Vanderbilt Law School, and when he left Vanderbilt Law School he went into banking and then the financial services industry and became fairly noteworthy. He was philanthropic. He supported various entities in the inner city, and had an altogether admirable existence. He went to work for a company called REFCO in the 1990s. Granof: So, let me see if I can get the timeline right. If he fought in Vietnam, he had a twenty-something year career? Zuckerman: Long enough – yes. And his work at REFCO was essentially focused outside the main offices of the company, on various other offices and divisions. It was a large company with locations outside New York and in many respects outside the United States. And the financial affairs of the company were an area that Tone was not conversant with, and an area in which he did not have particular skill. It was not part of his skill set; he was not a finance guy. The company’s financial affairs were managed by other 179 senior officials, the CFO and by others. Granof: When he went with REFCO – went into his career – did he ever practice law? Zuckerman: He practiced law briefly in the 70s in Tennessee. Granof: But at least as far as when you saw him, he was an executive and had been? Zuckerman: Yes, he had been an executive and was a terribly nice person and a decent person, and his skill as an executive came from the force of his niceness. He was magnetic in the degree to which he seemed genuine, honorable and people liked him. His skill set did not involve, as I said, finances. REFCO had bank relationships and regulatory relationships that required that at yearend it show a financial statement and balance sheet free of debt, or at least free of an amount of debt that would have created insolvency. Its assets had to equal or exceed its liabilities. And what began to occur in the 90s was that REFCO sustained, for a variety of reasons, various trading losses which in many respects were severe. Granof: What exactly did the company do besides trade? Zuckerman: That’s what it did – it was a big company – it traded. It was a brokerage. It had clients who traded. It traded. Granof: So it had a retail operation in essence? Zuckerman: Yes, and its stock-in-trade was the futures market. Because of positions that it took, and because of positions that its clients took that it backed, beginning in the late 90s its year-end financials, if accurately portrayed, would have shown that its liabilities exceeded its assets, which would have put it at risk and in violation of its bank covenants with certain financings that it had. Granof: The banks would call the loans? 180 Zuckerman: And it would have put the company in various types of regulatory jeopardy. Therefore, it conceived through its financial officer a plan by which at yearend, in essence, it would engage in a series of financial machinations called round-tripping, in which a liability would be paid by a short-term loan made by an outside controlled entity. The loan would show up on the books as being repaid as of December 31st, and the liability would disappear as of December 31st . Because they had borrowed money to pay it, the liability would reappear on January 1st. Thus, there was a series of circular movements of money that occurred at year-end. The last day or two of the year funds would be transmitted in such a way that those funds would void or eradicate the liabilities to the point where the books were at least in a positive state on December 31st. Then the monies would flow out again on January 1st or 2nd and the books would once again show themselves the liabilities. Don’t ask me about the particular mechanics of the so-called round-tripping because I can’t give you the details 6 or 7 years after the fact. It was a kind of maneuver that purportedly large publicly-traded entities engaged in at year-end to cleanse their balance sheet for year-end purposes, but it was decidedly wrong. These actions were intentionally engaged in for the purpose of masking the fact that there was insolvency at year-end, and the practice of doing this masked what became known in the company as “The Hole.” The company was short $100,000,000 to $200,000,000 – some large amount of money – it was in a hole, but “The Hole” was obscured at year-end from anyone who might scrutinize the company’s accounts. And it became increasingly apparent to these strategists – not to Tone, but to the man who was Tone’s partner, whom I will describe in a moment – that the only way out of this dilemma was to sell the company. It was a kind of – not truly conscious – but it was a kind of thing where one was operating a company that simply had an insolvency that could not be eradicated, but the company seemed to be solvent and profitable. If one could only find a willing buyer, then one could take in dollars, take a share of the profit, put 181 some of that new money back in the company to fill the hole, and take the rest and put it your pocket. Nobody would be the wiser and the company would be solvent. But you couldn’t raise – you follow me – you couldn’t raise the capital sufficient to fill the hole except at the end of the day by selling the company and taking the profit that you were able to make and putting part of it back in the company to fill the hole. Without a sale, you were trapped in an insolvent company where you were continually masking the insolvency at year-end without ever solving the problem. Granof: When some company is going to pay more than the company is worth? Zuckerman: But the company is a good company. Granof: But the company is a good company? Zuckerman: And you will then take your profit out of that, put it back into the company, the company will once again be solvent and a going concern and no one in theory will be the wiser. Granof: But the buyer was at some point – Zuckerman: Going to discover it. Granof: The buyer would say wait a minute, I paid $3 billion dollars for this company and – Zuckerman: You’re quite right on and you’ll see what happened. The company was owned 50% by Tone and 50% by another man who was a bit senior to Tone, but they split the company. Tone knew little, if anything, about “The Hole” because that was a financial matter. Our position during this litigation was – and I think it was a fair one – that the complicated finances of the company were really handled by others, not Tone. Those finances were, in fact, handled by the other owner and by some financial managers. Tone had been forced out of the company essentially because he was thought to be 182 ineffectual. He was perceived, at least, as ineffectual in about 2000. So from 2000 onward although he owned half the company – this futures brokerage – he was not involved in its management. Tone was not involved in the company. It was run by Phillip Bennett, the other owner, and it was run by the financial managers. And as “The Hole” grew bigger, the year-end machinations to move money around by various documents continued, so that for technical accounting purposes, Ernst & Young or Arthur Andersen, when they looked at the year-end books would say, “It’s a solvent company, it’s got so much in assets, so much liabilities and everything is fine.” Then, the money would be repaid to the outside controlled entities in early January and the company would look sick as a dog. That process continued. In about 2005, through a broker, the senior executive, Tone’s partner, found a glowing buyer in Thomas H. Lee Partners –Tommy Lee – a big investment house that was willing to head a syndicate that through it and its ability to raise capital, and through some banks and their financing, put up somewhat in excess of $2 billion. They reviewed the books, and the books that they reviewed showed that the company was clean. “The Hole” was masked and could not be identified from these books. Thus, the company was sold and out of that sale, in theory, Tone as half-owner of the company, over time, should have reaped in excess of $100,000,000. The reality was, that in order to make the company solvent, much of that – that he stood to make and much of what the other executive would have stood to make – had to be in some fashion that you and I find hard to imagine funneled back into the company in order to make sure that these concealed liabilities disappeared and were no longer liabilities. In other words, most of the money was needed to fill “The Hole” before it was discovered by the buyer. How you would do it, of course, is hard to imagine. The due diligence was done. The company passed due diligence and the new owners came in. Some of the old financial guys stayed. Tone received very little in the way of money, because he couldn’t get very much in the way of money since – 183 Granof: It all had to be brought back? Zuckerman: It had to be brought back and life went on. Granof: Well, at that point he didn’t know anything about it? Zuckerman: I’m going to get to that in a second. About 6 months to a year after the company was sold, the new financial team, during the course of its financial analysis, realized that the company had huge liabilities which had been hidden from them. At that point, “the shit hit the fan” – to use the vernacular. It was reported in the press. The company made an immediate statement that they had found a bunch of concealed liabilities. The company went into a chapter proceeding – a bankruptcy proceeding – a criminal investigation ensued and the financial people were indicted and the then existing president at the time of the sale was also indicted. Tone had not been active in the company for 5 years, and there was no evidence at the time that Tone either knew of, or participated in, the masking of “The Hole.” The presumption – or the assumption – in the U.S. Attorney’s Office was that Tone had been gone for 5 years and that all of this stuff maybe occurred after he left. There was an SEC inquiry into the matter, and Tone was represented by two attorneys in Chicago – a father and a son, whose names I will not use here – and the SEC subpoenaed from Tone all of his personal files about his experiences at REFCO. Tone had assiduously maintained his files; he’d done nothing wrong. And the lawyers looked over the documents that Tone had kept and amongst the documents was a handwritten set of notes which became known as “The Notes” and the “The Notes,” which were notes of a meeting that Tone had had with his partner. The partner came to Tone and said, “Tone, we’re selling the company. This is how the proceeds are going to be distributed. You haven’t been around for a long time. I want you to know what’s what.” And Tone listened to the partner and then made notes of what the partner 184 said. And “The Notes” appeared to show to Tone, who had not been in this company for 5 years, that what the then owner/president was saying to him was – and I’m trying to be illustrative here, so the following is not a verbatim quotation – “This is what the books show; this is reality. There were two sets of numbers and while the books showed plus, plus, plus – a lot of money – the reality was minus, minus, minus. Therefore, at the end of the day, Tone, you’re not getting hundreds of millions of dollars, you’re getting much less over a much longer period of time.” The clear, regrettable, inference from “The Notes” – is that Tone received from his partner about as clear an explication to the listener that REFCO had two sets of books. Don’t expect to get a lot of money. We have got to fill ‘The Hole’ first.” Those notes that Tone took and kept in his private file would have allowed the government to argue that he took and saved those notes because he wanted to make certain that when the time came, he understood how much money he was supposed to get and when he was supposed to get it. When the SEC subpoena came along, the Chicago lawyers looked at the documents, including “The Notes,” and found nothing wrong with them. Indeed, Tone said, “I have these notes of a meeting that I had with the president. I assume they’re okay – is there anything wrong with them?” And the son said, “They’re fine. They just show you cared about the deal.” And the documents, including these incendiary notes, were handed over to the SEC. Now, you might say to me, well, suppose they had identified these notes as being problematic – being virtually a confession. Wouldn’t one still have had to turn them over? There’s no Fifth Amendment right not to. But, of course, the answer is a creative lawyer would have searched for ways not to turn “The Notes” over. One of the ways was that “The Notes” arguably – arguably is an important word here because it’s not clearly, but arguably – were prepared in anticipation of a meeting that Tone was to have with one of his attorneys. “Attorney Granof, my company is being sold. This is the way the money is being cut up. I need some legal advice.” If “The Notes” were 185 prepared in anticipation of a meeting with counsel, they were privileged and needn’t have been turned over and might have been withheld on grounds of privilege. That would have been the end of the matter. As a consequence of this inability to see the significance of “The Notes,” they were handed over to the SEC here – I think it’s here in DC. And Tone, who at that time was a nonentity in the criminal investigation, saw his status change 180 degrees overnight. As soon as the attorneys at the SEC looked at “The Notes” they said “OMG – Oh My God – send ‘The Notes’ to Chris Garcia and Neil Barofsky in the U.S. Attorney’s Office.” Garcia and Barofsky were the attorneys in the U.S. Attorney’s Office in New York. Barofsky later became head of TARP, and Garcia went on to run the U.S. Attorney’s Securities Fraud Section. At the time, they were the two best lawyers handling securities fraud prosecutions in New York City. They took one look at “The Notes,” and they called the Chicago lawyers representing Tone. These federal prosecutors from New York said, “You know, we’re the prosecutors in New York who had no interest in Grant, but we’re now going to indict him because we now have evidence that he knew the REFCO books were cooked.” At that point, Tone, about two weeks before his indictment, came to us. We immediately recognized that “The Notes” were incendiary. We figured out that what the government had done is, after seeing some evidence that in 2005 Tone knew of “The Hole,” it probably went back and talked to some of the financial people more aggressively. By that time, two or three of the financial people had cut deals and were not only pointing fingers at the existing president, but also to some degree pointing fingers at Tone, and saying, in essence, that Tone knew that the books were cooked at year-end in order to get by bank covenants and get by regulatory rules. Granof: And the deals were cut with the prosecutors? Zuckerman: With the prosecutors and the financial people. So, we surmised correctly that the evidence against Tone was (1) a bunch of insiders who had made deals with the prosecution, which we felt we could deal with, and (2) “The 186 Notes” in Tone’s hand, which we couldn’t quite figure out how to deal with. “The Notes” were confounding as well as a mark of Tone being an innocent in a world of financial machinations. At trial, I tried to describe him as an ingenuous, nice person, not a clever financial guy. Indeed, if he was a devious person, he would not have retained “The Notes,” or relinquished “The Notes” to the SEC, or remarked to his lawyers, “These aren’t going to hurt me are they?” Granof: I have a question. These notes were turned over five years right after they were made so when Tone’s partners sat down with him and he made the notes and they said we’ve been keeping two sets of books, you don’t have to be a financial genius to say “Wait a minute, what’s going on especially since it’s costing me a huge amount of money because I thought I had X amount of dollars.” Zuckerman: Basically, you’re asking what was Tone’s explanation for “The Notes?” What was he possibly thinking? And we’ll get to that. But I can’t invade the privilege. Granof: It’s a great story. Zuckerman: So, I am engaged to try Tone’s case along with the young cream of the firm, including (1) Aitan Goelman, who was a former Assistant U.S. Attorney on the Oklahoma City Task Force that prosecuted Timothy McVeigh for the Murrah Federal Building bombing – he was assigned there – he was an Assistant U.S. Attorney in the Southern District and very, very smart, and (2) Norm Eisen, who was a Harvard grad who went on to be the White House Counsel for Ethics and later served as the United States Ambassador to the Czech Republic. Also, some younger lawyers, lawyers younger even than they worked on the case. Given that the market loss at REFCO was $2 billion – the company people put $2 billion into this company and it still went belly-up – the sentencing guidelines covering potential conviction for a 187 massive fraud of this nature did not bode well for Tone if convicted. It was a major case. Tone insisted that he was innocent – believed in his heart that he had done nothing wrong. After all, he was a decorated Marine veteran who had lived a life of absolute rectitude, and thus there was no possibility that the case could be pleaded out. We ultimately went to trial before Judge Naomi Reice Buchwald, a former Assistant U.S. Attorney, a former federal Magistrate and now a U.S. District Court Judge, whose husband is Don Buchwald, a defense attorney in New York, whom some of my New York partners knew. Naomi was in the U.S. Attorney’s Office at the same time as my Tampa partner, Sandy Weinberg. Therefore, she had, I think, an appreciation for the quality of the firm and the work that we did. Our strategy involved three elements: Element One was, “Get the damn notes back.” Thus, we moved for their return on grounds that they were within the attorney-client privilege, and were inadvertently turned over to the government. We failed in that effort. Granof: Well, you had to have had an affidavit, I guess, from Tone Grant to say “I prepared the notes in anticipation that I would be consulting counsel?” Zuckerman: I must tell you that I don’t remember the details of the effort, but I know we tried and we failed. The second strategy was to destroy by crossexamination the insider witnesses. Granof: Let me ask you a question about the first. If “The Notes” are turned over voluntarily by Tone and his attorneys, isn’t that a waiver of the privilege? Zuckerman: That’s what we confronted. He had counsel. He reviewed the documents. I cannot remember the details of the effort. I think that we were confounded by the waiver problem and what we would have been required to prove, as I recall. I’m speculating a little here and my memory is hazy. In order for this to fly, what we needed was the acquiescence and an abject apology delivered on the record by the Chicago lawyers who represented him at the time, to the 188 effect that they had not properly perused the documents, and had failed properly to inquire of Tone about the details of his meeting with his partner, Bennett. And one of the things that we were concerned about is that there was some intimation that Tone had said things to the Chicago lawyers that would not be helpful if the privilege were waived, and they would have been required to testify about explanations that he had given them. Thus, in varying respects, we were boxed in and our effort was constricted. The judge ruled against us. For that reason, it was a precursor of what we were going to confront in trial. So, we failed at getting “The Notes” back. I and Aitan, in my respectful opinion, destroyed the insider witnesses, and I will tell you that we had confirmation from the jury that we did destroy those witnesses’ credibility. Then we get to “The Notes.” We get to your question and your question, and the question that anyone would ask, and the question that we asked ourselves and Tone – that we need an alternate explanation for what this piece of paper says – “What is it?” Tone doesn’t have to testify to it and we don’t have to put him on the stand, but we can certainly suggest the alternate explanation to the jury. Granof: That’s a lot of money. Zuckerman: Yes, and we could come up with nothing, and without invading the privilege, Tone was no help. He basically had no memory of these events. And it got to the point where in order to create an epiphany, I took “The Notes” and blew them up on 32 x 48 inch poster board, and put the poster board right smack in the corner of my office in front of my desk – where it was for months – believing that if I spent long enough looking at it, long enough thinking about it, that at some point as sometimes happens in the middle of the night when you least expect it, you get this crazy epiphany that it could have meant this. Week after week and month after month passed, and we could come up with no satisfactory explanation for what a person might have heard that would cause the person to write “The Notes” in this fashion. Now 189 the owner of the company didn’t testify so “The Notes” were not –- Granof: You say the owner – the new owner or the old owner? Zuckerman: The old owner, who told Tone the information in “The Notes,” did not testify. So “The Notes” were just one document buried in the record. The dynamic of the case was such that we had destroyed the witnesses; we, I think, clearly outargued the government in our main closing argument; but unfortunately the government, in its rebuttal, spent about 20 minutes on “The Notes.” The prosecutor said, in effect, “You got to look at these notes because that’s just the handwritten confession.” We were told the initial vote of the jury was 7 to 5 for acquittal, because the 7 jurors did not look at “The Notes.” One of the 5 voting for a conviction went to “The Notes,” and the jury returned a verdict of guilty. Granof: And you didn’t put Tone on the stand? Zuckerman: Tone did not testify. We put on seven character witnesses, including Calvin Hill, Carm Cozza who was the renowned coach of the Yale football team from 1965-96, a federal bankruptcy judge, a number of very prominent businessmen, and some philanthropists – an extraordinary group. Judge Buchwald could not have been more dismissive in her body language of the character witnesses. It was a very frustrating experience. The jury came back and convicted. We took an appeal to the Second Circuit and lost. Tone received a sentence of 10 years. Zuckerman: Aitan argued the appeal. Aitan and I escorted Tone to the federal correctional center in the minimum security camp in Minnesota where he was designated to serve his 10 years. He adjusted well. About two years into his sentence, he developed problems with his hips and was transferred to the Federal Medical Center in Rochester, Minnesota, where he’s been for the last three years having sustained a double hip replacement, having now some heart problems. We are trying to get him into the compassionate release 190 program that now exists for older inmates who have served at least half of their sentence, where the sentence is for a non-violent offense, and where they have very substantial health problems. Granof: How old is he now? Zuckerman: He is approaching 70 – 69 and change. Granof: Should have a good case on that. Zuckerman: And it was an awful case. It’s a case that was awful – putting aside I think Tone fundamentally believes that he was innocent. I think you could argue that he was innocent. I think – I appreciate the intellectual force of the government’s argument – that “The Notes” rather reflect that he knew something that he shouldn’t have known and that technically pushed him across the line. What was so frustrating to me about the case, as you can imagine from my telling of the story, is how capricious his involvement in this case was. Granof: How could Tone afford you guys? I mean it was a lot of legal talent at the time. Zuckerman: He had D&O insurance – Directors and Officers Insurance. Again, I don’t know that we’ve spoken about this before, but in the scheme of things, even more important than your factual innocence as an indicator of your ability to surmount criminal legal problems, is your ability to call on D&O insurance or advancement of legal fees by your company to support your defense. I think, in many respects, it is the single most critical circumstance that exists when an individual has a real serious problem. As witness my next story which is indicative of that. Granof: I still have a question that’s bothering me, and it is that Tone Grant is not a naïve bumpkin. I mean, he’s well educated, been to law school, had experience as an executive even though not on the financial end of things, 191 but even so if a significant amount of his wealth or all of his wealth was tied up in this company and he believes his worth – I mean, first of all you would think that if you were worth millions of dollars – Zuckerman: I hear you and again I don’t want to invade the privilege so I will just speak in generalities. I think the vagaries of the human personality are such, that for many people they are just not sensitive to matters of money or their own personal wealth. They’re excessively trusting, they’re supremely uncritical when it comes to financial affairs and naïve, and there is not necessarily a correlation between (1) a Yale education, a Vanderbilt Law School education, some experience in the financial services industry, and (2) the acuity that’s required to see that something may be amiss. That’s all – that’s all that I want to say. When you – bumpkin is the wrong term – but I am convinced that, in his heart, he did not sense that anything he did, or what his partner told him about, was violative of the law. He may have been wrong, but I do not believe that he felt that he had violated the law in any respect. Granof: But, you know, I take your point on this because it seems to me that there are people who are smart and don’t have a particular interest in finance. They say “I’m interested in X or this part of the business or this area that I’m really interested in and I do well in, and I trust these financial guys. That’s why I don’t have to pay attention because I think I’ve got really good people doing this.” It really never occurs to them that the people that you trust would be engaged in fraud. But I can see that it’s hard to explain. Zuckerman: I respect Tone and indeed love him and feel very bad for what happened to him and don’t want to invade the privilege. And I want only to discuss what’s on the public record. But I do believe that he genuinely, genuinely in his soul, believed and still believes that he did not do anything wrong. I think what the case posed, what this fabric of evidence revealed that the jury could not look away from, what a common sense view of the case suggested one should conclude, is this: “Somebody who is told, in essence, that there 192 were two sets of books should have known that something was rotten there.” Granof: I’ve got another question. Did you consider putting him on the stand? You probably considered it, but did you seriously consider it? Zuckerman: No. Granof: Why not? Zuckerman: Again, I want to preserve as much of it as I can – I mean all of it I need to preserve. We’d done some mock jury work – mock jury testing – and the results were such that we felt that we could not put him on the stand. Granof: So he would not have come across as a very persuasive witness? Zuckerman: That was our judgment. Granof: I guess that’s the judgment you always have to make and I think that hurt your case as well – it had to. Zuckerman: Well, I think not. I think even if he had come across as persuasive – let me put it to you this way, the number of times that a witness takes the stand and helps himself is miniscule. Granof: Oh, that’s interesting. Zuckerman: It’s a rarity, and the conventional wisdom is and it’s correct, that if the government has an iffy case, you’re far better off keeping your client off the stand. In my experience I believe the conventional wisdom to be true – generally my experience is to honor the presumption of innocence. I don’t feel that the defendant has to counter the element of scrutiny in order to be acquitted. The jury will acquit a defendant if the government’s case is weak, even when the defendant does not take the stand. Indeed, 98% of the time when you’re faced with a weak government case, and you put a defendant on 193 the stand, it moves the needle in the government’s favor. Granof: This is a fascinating case, and I have one final question. You didn’t put Tone Grant on the stand, but did you tell the jury anything in your argument about “The Notes?” And if so, what did you say? Zuckerman: That’s really a good question and this is the answer. I had indicated before that “The Notes” came into evidence. I don’t think they were published – they were not put up on the screen when they came into evidence – because they didn’t come into evidence through a witness. Neither of the two people who attended the meeting testified. “The Notes” were part of a large package of documentary material that came into evidence. The “Notes” were also not a part of the government’s opening statement, and the prosecutor did not refer to “The Notes” in his opening remarks. As a result, we were left with a choice – do we deal with “The Notes” or don’t we deal with “The Notes” in our closing? Because to that point, although “The Notes” were in evidence, they were completely unmentioned to the jury. Granof: So you sort of got sandbagged by the government in their closing rebuttal? Zuckerman: We made a choice, and not the choice I would have made again. Obviously, I’m not hard-headed. But we made a choice to leave “The Notes” alone in the hopes that they would not occupy a significant part of the government’s closing or the jury’s thinking and, in retrospect, I would not do it the same way again. Granof: This is a case where hindsight is wonderful. Zuckerman: Yes. There was no good choice. There was nothing really useful to say about “The Notes,” except that it was not clear what they meant, and there was no testimony given to clarify what they meant. If you were to see “The Notes,” you would think that they were pretty clear in what they meant. We succeeded to a degree with our decision to avoid “The Notes” in closing 194 argument since, as I said, the first vote of the jury was 7 to 5 for acquittal. We were told of this split by another lawyer who had interviewed the jury. And that was, in a personal sense, the case. In both a personal sense and a professional sense, this case was very frustrating for me, very hurtful. I respect and care for Tone a great deal. I’ve told Tone that one of my obligations as a lawyer is to sit here at this desk until he can come into this office again, and that will happen sometime, I hope, in the next three years, sooner rather than later, if his health holds out and we will see. Granof: Was he the only defendant? Zuckerman: In this case? Granof: In that case – yes. Zuckerman: Only two individuals went to trial. Two or three financial people pled. The president pled and got 16 years – his partner. He should never have received 10 years, but because the president got 16 years and had pled earlier and did not cooperate, his 10-year sentence was pegged to that. It was far too harsh. And the general counsel or the outside counsel, Joe Collins, who roundtripped the money at year-end – at Mayer Brown he was – by creating purportedly sham transactions. Granof: Oh, so he was the general counsel, but he was a partner at Mayer Brown? Zuckerman: He was the outside counsel at Mayer Brown who handled the year-end legal transactions that moved money in this circular non-functional way. Granof: So he was a partner at Mayer Brown and he was engaged in this fraud? Zuckerman: That’s what the jury found. He was tried separately. He was convicted and received a seven-year sentence. The first time his conviction was reversed, retried, convicted again, received a one-year sentence from a sympathetic judge but he was – Joe Collins was convicted of being the lawyer who 195 technically handled the round-tripping. Very well-known case. Very sad. Granof: Well, we spent a lot of the hour on this case partly because it’s such an interesting case. Zuckerman: Let me move to some non-legal stuff in my life that you should find, I hope, interesting and those who listen to this will find interesting. There are two items, and we can cover at least one today and that is the creation of what is now known as the Flannery Lecture Series, named after Judge Thomas Flannery, who died around 2007, and who was a sitting United States District Court Judge for 35 to 40 years – probably second in tenure to Bill Bryant, Judge William Bryant, who is the longest sitting Judge in the jurisdiction. Judge Flannery served as the U.S. Attorney into the early 1970s. He was, for many of us who came through the U.S. Attorney’s Office in the late 60s and early 70s, an iconic figure, a mentor and just a terrific human being. After he died, there was a desire by that group of former Assistant U.S. Attorneys to memorialize his impact on the administration of justice in the District of Columbia by doing something. He was born in a section of Capitol Hill known as “Swampoodle”. His father, I believe, was a carpenter. He did not go to college and went into the Army Air Corps, and then directly into Catholic University Law School or vice versa. It’s one or the other. He was a practitioner from the mid-1940s onward. He went to the U.S. Attorney’s Office in the 50s. He was part of a group of very storied prosecutors in the 50s. He went to a law firm called Hamilton & Hamilton in the 60s and was called back to be the United States Attorney for the District of Columbia in about 1969. He remained the U.S. Attorney for 2-3 years, and then became a United States District Court Judge. Referring back to the Tantillo case which I described earlier to you – the criminal wiretap conspiracy involving drugs with about fifty indictees that I handled as an Assistant U.S. Attorney – it was Judge Flannery who put me on the case and it was he who tried the case with me and two others. Therefore, I had fairly intense contact with the judge in 1970 and 1971. I 196 also came to know his daughter, Irene, very well. I always visualized him, for those who are fans of old-time movies, as having the mien of Gary Cooper in High Noon. He was a tall man. He was soft-spoken. He was very decent and he knew right from wrong. He was a man with a tremendous sense of integrity. And he touched many of us who were in the U.S. Attorney’s in the early 1970s greatly. In 2009, a group of former Assistant U.S. Attorneys who had served under Judge Flannery set about to create a lecture series in his honor, believing, that it would be more of a living memorial than a plaque, and would have some functioning benefit to the City. Two of his acolytes were on the U.S. District Court bench at that time, Judge Paul Friedman and Royce Lamberth, who was the Chief Judge. They were extremely supportive, and indeed helped to engineer the process of the program. We had a number of our colleagues who also contributed their time. For this record I give you four – Jim Lyons and Phil Kellogg, who actually I was partners with in the early 70s for a brief sliver of time, Dan Toomey and Steve Grafman. I was nominally, I suppose, the chairman because I, unlike most of them, have a law firm and the law firm can cover the expenses and logistics of a lot of this stuff. It made sense that we do it here and it be superintended principally by me. This lecture series has become a successful institution in the life of the city. The lectures are now given in October and November. The first year we had Chief Judge Royce Lamberth who spoke. The lectures are given in the Ceremonial Courtroom. They are attended by anywhere from three- to four-hundred people. At times we use an overflow courtroom. We had Chief Judge Lamberth the first year. The second year it was Justice Scalia. The third year, I think, it was former U.S. Attorney Earl Silbert, who also was an Assistant U.S Attorney during Judge Flannery’s tenure as the United States Attorney. The fourth year was former Senator George Mitchell. Last year was SEC Chair Mary Jo White, and this year was former FBI Director Bob Mueller. We’ve had preliminary speakers that have included Eric Holder, Ron Machen, Irv Nathan and others. It’s a joyous event in Judge Flannery’s memory. He is remembered. 197 The speeches are provocative at times. At times, they are recycled speeches that people have given four or five times earlier, but it’s a nice thing. It’s followed by a reception in the Atrium of the United States Courthouse. It has held this old group of assistants together and it’s something that’s – it’s a nice thing. It’s something I’m proud of. So, it has worked, I think, and we’re going to do it again next year. We’ll see how long we can do it. Granof: It sounds like a wonderful thing. Zuckerman: The second thing in my life that I want to talk about – we can talk about some more cases next week – is the development of our current New York office, because that is a signal event in the life of our boutique litigation firm, and it deserves a 5- or 10-minute discussion. It has been my desire that the firm have a New York office for twenty years. We began a New York presence in the early 90s with Ed Little and ran that office until about 2000 or 2002 when Ed departed for Hughes, Hubbard and Reed. After Ed left, the office fragmented, and we stumbled along with a skeletal group of lawyers. About three or four years ago, Steve Cohen, a colleague of mine who is probably a half generation younger, came to me and said that he was leaving his position as the principal aide to Andrew Cuomo. One of the options that he wanted to consider was re-opening our New York office. Steve had been an Assistant U.S. Attorney, had been a principal assistant to Andrew Cuomo when Cuomo was the Attorney General, had been a partner at Kronish Lieb, and was the Chief of Staff – and a very powerful person in that position – for Andrew Cuomo, when Cuomo was Governor. We hired Steve to be a major partner in our re-opened New York office – about four years ago, I’m guessing. We also hired a number of very prominent individuals – Paul Shechtman, who is a very prominent criminal lawyer in New York City, and Andy Tomback, who is a very prominent lawyer, Mitra Hormozi from Kirkland & Ellis, and a wonderful woman, Barbara Jones, who was a longtime and revered sitting federal judge in the Southern District of New York. The New York office, in the last four years under the tutelage of Jim Sottile, 198 who has really run the office, and under the tutelage of Graeme Bush in D.C., our Managing Partner, has grown to almost twenty lawyers. Barbara’s practice has grown and, among other things, she has just concluded the Ray Rice – Roger Goodell NFL arbitration appeal, in which Mr. Rice and Mr. Goodell and others appeared and testified before her. Granof: So, she was the arbitrator? Zuckerman: She was the arbitrator and the hearing was in our New York office. It is pleasing to us and I think it is a mark of the success and growth of the firm that that office is very robust. The growth of the new York office is another event in the last 5 or 6 years that I’m very pleased about. Granof: And, what role did you play? Did you do some of the recruiting? Zuckerman: It’s very interesting. I was the contact for Steve Cohen, but the – Granof: And how did you know him? Zuckerman: I have known Steve for 25 years from the time he was a young partner at Kronish Lieb, and we had done work together. I had referred him cases and thought the world of him, and we stayed in contact in one respect or another. But the lawyers who were around at the beginning of the firm are now 70 or older and have a position in the firm, forgive me if I’ve said this before, much like either the Queen of England or the House of Lords. There is a certain moral suasion we have, and there is a certain, not insubstantial, economic contribution that many of us make, but the management of the firm, like any institution, is best handled by people who are younger than we and invested for much longer periods of time in the future than we. Regarding the revival of the New York office, I made certain initial contacts, and then trusted the managers of the firm to really follow up on the project and make it happen. In answer to your question, I spent a lot of time with Steve, but the nitty-gritty of getting him back in was really in Graeme’s 199 hands, and, at some point, we won’t do it today, but at some point when you finish off this whole history, it will be interesting to you and to those who listen perhaps, because you will hear the perspective I have now forty years into the life of the firm from a time when it was just I, to a time in which I’m getting to the point where the firm will exist quite well, and perhaps even better, without me. You feel as if – “full circle” is the wrong expression. You’ve gone across an extraordinarily broad spectrum from being the creative force at the time of the “Big Bang” to being indispensable to being reasonably dispensable to being someone who should be dispensed with. Granof: I think you’re a ways from that. Zuckerman: I don’t know, but it is my closing chapter. Granof: Well, it’s something that you’ve created and you can look back on with great pride. Zuckerman: Sure, but it’s an interesting, intellectual and indeed emotional journey and topic that you wrestle with. Anyway, that’s a good stopping point. Granof: Okay. This concludes interview number 9. 200 ORAL HISTORY OF ROGER E. ZUCKERMAN Tenth Interview January 21, 2015, This is the tenth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Wednesday, January 21, 2015, at 1:30 p.m. Zuckerman: Today, I think, I would like to accomplish three things. One, I want to talk a little bit about the Tone Grant case from the present perspective. Two, I want to talk about, in compressed form, a case that is just winding down involving The Fund for Animals and The Humane Society. A case that I’ve been involved in for about three years now and was involved in a trial concerning it in the last week or two. Then I would like to add some closing thoughts if they come to me, and if they don’t, we’ll adjourn and meet up again. The postscript on the Grant matter is this: on Friday of this week, I will be out of the office and I will be flying to LaGuardia and then going by car to Huntington Long Island to the Memorial Cemetery of Saint John’s Church, there to be present at the funeral service for Tone Grant. He died this past Friday, somewhat unexpectedly, somewhat I suppose expectedly, at the Federal Medical Center in Rochester Minnesota after having suffered either a heart attack or a stroke. The cause of death is not clear to me at this point, although we’re getting his medical records. Tone was, as I hope the record of this interview reflects, an extraordinary man. He was a decorated Marine – I’m sure I’ve said this. He was a fine college athlete at Yale. He was a successful lawyer and business man. He was a wonderful family member and friend, and despite our best efforts he had been convicted in what he regarded as a manifestly unfair conviction in a trial occurring about seven years ago in the Southern District of New York. Tone was convicted of securities fraud and received a very difficult ten-year sentence – a circumstance he accepted on the one hand with a great deal of frustration because of his belief in his innocence, and on the other hand a circumstance 201 that he accepted stoically and with some serenity. Aitan Goelman, my partner, and I traveled with him to Duluth, Minnesota where he surrendered himself to serve his prison sentence. We were with him, as it turns out, on the last days that he spent as a free man, having lunch at the Duluth mall before getting in our rental car and driving over to the institution where he had to present himself about 1:30 in the afternoon. He was a model resident. As a leader and a mentor, Tone was somebody who the other inmates in this minimum security facility naturally gravitated to. Tone had a very successful two- or three-year residency there. Unfortunately, his stay there was increasingly complicated by his bad hips, leading to his transfer at our request to the Federal Medical Center at Rochester, Minnesota, which is affiliated with the Mayo Clinic. Granof: So it’s top-notch. Zuckerman: And he got first-rate care. The Bureau of Prisons was probably remiss in not transferring him there a year earlier. He was in pretty bad shape, orthopedically, when he was transferred. He had two hip replacements that were marginally successful. His hips were, I think, in much worse shape than they should have been by the time he got the replacements. So, he never really got his normal gait back, and on occasion stumbled and on occasion walked with a walker. But if that were all there was to it, I would not be going to the cemetery on Friday. After he had been at the Federal Medical Center for a year or two dealing with his hips, he began to encounter heart problems and we endeavored to get him a compassionate release. Tone qualified in every respect – by age, by amount of sentence. Granof: How old was he? Zuckerman: He was 70 when he died. And I think privacy concerns compel that I leave his feelings and his sense of where he was in his life off this record, and simply reflect the fact that, at Tone’s request, we did not file the Motion for 202 Compassionate Release. His health continued to decline, and he underwent about 3 to 5 months ago a quintuple bypass that was for the most part successful, but he began to develop other problems with his heart and his circulatory system. He was very upbeat and was dealing with those problems, but he was clearly – notwithstanding the very fine care he got – in declining health. Granof: You said he was at the Federal Medical Facility for a year. Zuckerman: Well, he was there all told about 3-4 years. Granof: In the medical center, not just in Duluth? Zuckerman: He was in Duluth I’m guessing 2-3 years, Federal Medical Center 3-4 – something like that. He was a long-term resident at the Federal Medical Center. Granof: That seems unusual. Maybe it isn’t in the federal prison system. Zuckerman: I don’t know. I don’t think it’s as transient as one might think. There are almost a quarter of a million federal prisoners – 225,000 men roughly, 25,000 women – and there is an increasingly large portion of that population which is made up of aging prisoners. The stress on the system is very severe, and that led to the initiative of the Department of Justice to clear out many of the aging prisoners who had served more than half of their sentences, who had sentences for crimes that were not violent, and who had quite serious health issues. I don’t know that the program has gotten off the ground in a big way, but at least conceptually a year or so ago at the Department of Justice somebody sat down and said we can clear out 5 or 10 thousand people over time if we look at the people who are over 60 who have served more than half of their sentences and are ill. We’ll save a lot of money and they’ll simply take early parole. Tone was a candidate for that, and for a variety of reasons which I will not go into here it was not pursued. But it 203 was a very sad moment on Sunday afternoon about 2:30 p.m. when I got an e-mail from his girlfriend indicating that he had died. So that’s a sad postscript to what was a very difficult case. And I think I’ve said this earlier, it was a case in which I felt as if the trial did not quite accurately reflect who he was and what his intention was. It was a case that I think we came close to winning, but for some circumstantial or direct evidence that I talked about – the note in his hand – that was extremely difficult to deal with and that the prosecutor made much use of. I will say further that I have communicated the fact of Tone’s death to a number of people, including the prosecutors, and I got a lovely e-mail this morning from Neil Barofsky, who was one of the two prosecutors, saying how sad he was to hear the news and, putting the REFCO prosecution aside, how it was apparent that Tone had done great things with his life. I sent Neil an e-mail and I said, “Thank you very much. I’m sure that Tone would be pleased that you had spoken those words.” Granof: The case as you described it – not the particulars but in a broader sense – when you have these aging prisoners, it’s fine if they are people who have some wealth and a support system but if you just release them –I mean here’s a guy who is needing top-notch medical care and if you just put him out and he’s ill, I don’t know if you’re helping people like that. Zuckerman: Well, your impression is insightful, and you’ve hit the nail exactly – exactly on the head. If you have individuals who fit that profile, it’s very hard to see how a compassionate release is going to work. Problem A, because of the nature of the conviction they have a debt that they confront. In Tone’s case it was $2.3 billion, which was the amount of his fine because that was the socalled market loss. That renders the individual essentially incapable of accumulating any wealth in the future. Problem B, I suppose the individual could qualify for Medicare, but where there’s a complex illness and the individual has been seen by a stable set of medical personnel for a period of years at one of the finest medical facilities in the world, it’s very hard to sort of wrap your head around the fact that you’re going to the mean streets of 204 New York and must find a couple of doctors to treat you there. Even if, as you may assume occurred, Tone’s friends found him a couple of physicians who were willing to accept him as a patient, what then? And Problem C, if you’re fortunate, at 70 you’ve got a set of family circumstances that give you a structure of caregivers who are within arms’ length – arms’ reach – who will take care of you. But if you have neither kids nor a spouse who is likely to be proximate, it’s a pretty daunting future that you face alone. No caregivers of consequence, no medical care that is easily available, no income, and in the broadest sense no structure. Even if you’re living rent free in a one bedroom apartment somewhere, what do you do between the hours of 9 and 5 or 9 and 6? You don’t have a gym, a library, a mess hall, a bunch of acquaintances, and, but for the custodial aspect of the Federal Medical Center where you can’t walk out the front door, it’s like an assisted living facility with medical care that’s off the charts. It’s very easy for an individual who is in serious and declining health to say, “I’m basically better off here than I would be trying to do this on my own.” That’s very sad but speaking only hypothetically and abstractly, it’s – Granof: Very understandable. Zuckerman: In any event, the record should reflect that I’ve indicated, in a way that is now sad but was true then, that I wanted to continue practicing until I could welcome Tone back to the office, where he and I spent so many days trying to figure out how to handle this problem. Granof: You know the impression I get is you get fairly close to your clients emotionally. Zuckerman: Yes. Granof: Maybe emotionally is the wrong word. Zuckerman: I think you can’t fail to recognize the humanity in virtually all of the people 205 who come through here – we all deal with them. Fundamentally, they are people and fundamentally there are a portion of them who are good, but the system in which we exist – particularly the criminal justice system, besides the civil justice system – the criminal justice system is inexact, unrefined and gross. I don’t mean that in a pejorative way, but given the way our system deals with issues, it’s a little bit like the proverbial notion of watching how sausage is made. It’s just an unrefined process. Even on its best days – where you have the best judges, the best lawyers, and the best resources – the system is very unrefined in the judgments that it grinds out and the consequences that flow from its machinations. In this case, the criminal justice system basically took somebody who was a very decent human being with a great deal of dignity and with a great deal of life accomplishments and with a great deal of strength. Granof: He had a lot going for him. Zuckerman: It took this individual who was confronting ambiguous, gray-area circumstances, neither all black or all white, and it ground him up – just ground him up. Notwithstanding that he had very good lawyers – notwithstanding that the lawyers on the other side were very good – notwithstanding that the judge was a very bright judge, and notwithstanding that he was a very astute guy, it just ground him up, and literally ground him into dust. Anyway, the next topic after this postscript will be the last big case that I want to talk about. I can talk about it with some clarity because I’ve just finished testifying in a trial about it. And, again, I’m going to try to adhere to the limits of what is appropriate in what I can say and not say. First, an introduction. The longest cases in my career that I have handled oddly have both run 14 or 15 years, and both began at virtually the same time. My entry into these cases differed, but they are both matters that began, one in July of the year 2000, and one, the latter one, which I’ve talked about previously, 206 Enron, beginning either in September or October of 2000, when Enron went bankrupt. In the Enron matter, in which our client was Lou Pai, we became involved from early 2001 until the present. For the last many years the matters have simply involved SEC resolutions, but Enron been going on in one form or another for 15 years. The other case began in July of 2000 and has ended for the moment, although it may continue given a court decision made about a week ago. This is a case involving our client, The Fund for Animals, which is an animal advocacy organization now affiliated as a business entity with The Humane Society of the United States, and what I am going to say mirrors what I have said as a witness in a trial that just concluded and is otherwise, I think, pretty much a matter of public record as it should be. The Fund for Animals, our client, and the Humane Society joined together as a business combination early in 2005, and remain together today. As such, they are – perhaps with the American Society for the Prevention of Cruelty to Animals – the largest animal advocacy organization in the country, whether measured by contributors or budget or whatever. They are a very sophisticated, elegant, prominent, committed organization fighting for a more benign and humane way to deal with animals in a variety of different modes. One of their long-term adversaries, as you can imagine, is “The Circus,” and in particular, The Ringling and Barnum and Bailey Brothers Circus, which is owned by Kenneth Feld and his family through an entity called Feld Entertainment Inc. or “FEI” for short. FEI is the largest entertainment organization in the world, if measured by the number of people who attend live performances – live events. Indeed, Feld Entertainment puts more people in seats to attend live shows – including Disney on Ice performances as well as the Circus – than any other entertainment organization in the world. FEI is immensely powerful and immensely committed to its own protection, its self-protection. Its circus, The Ringling Brothers and Barnum and Bailey Circus, is a venerable entity, which since 1872 has featured elephants as its trademark and defining symbol. They are the only circus, in the United States at least, that utilizes a large number of 207 elephants who are trained to perform tricks of the type which many argue to be wholly unnatural to the behavior of elephants, and those same people assert that elephants should not be made to do these tricks, such as standing on pedestals, standing on one knee, standing on their back legs – doing all this kind of stuff. These same people claim that elephants cannot be made to do these tricks without being subjected to abusive behavior, without the use of pain and various chains and devices that are completely inhumane. In addition, it is urged by animal advocates that the way in which the elephants are housed is equally inhumane. They are transported in boxcars. It is alleged they are made to stand in their own waste, not given water when it’s 125 or so degrees going through Arizona on a circus train, not given protection from the cold, not being fed properly, and being routinely beaten. For years, if not decades, animal advocacy groups have taken out after the Circus in an effort to pressure the Department of Agriculture and other regulatory groups to preclude the Circus from using elephants, because of the history of abuse that these groups perceive to have occurred. In July of 2000, The Fund for Animals was one of three or four groups that filed suit against the Circus under the Endangered Species Act. Granof: July 2000? 2000 – claiming that the Circus ought to be precluded from utilizing elephants for a variety of reasons. In one of life’s great coincidences, the fine jurist before whom the case landed, was Emmet Sullivan, who was an interviewee I think in this program. And a very fine judge – a very fine judge. The alignment of lawyers is very critical to the next nine years of litigation as is an understanding of the core issue. I will begin with a discussion of the core issue and then give you the lawyers. The core issue under the Endangered Species Act is standing. The Act describes the “imperiled” endangered species. The Asian elephants that the Feld Circus uses are recognized belonging to an endangered species as 208 they are specifically named on the endangered species list. But an ordinary person cannot file suit under the Endangered Species Act and claim that those Asian elephants in the Circus are being abused. An elephant cannot file suit under the Endangered Species Act. You can only file suit as an individual under what is called the citizen suit provisions – section 5.16 – if you are injured – if you as an individual are injured. An injury is defined as the inability to enjoy or satisfy a powerful aesthetic interest that you have – something that is very compelling to you. It may be a compelling desire to fish in the Potomac River or a compelling desire to view elephants at the zoo, but it must be a strong attachment that has been befouled by the behavior of a defendant in such a way that you can no longer experience the protected or endangered species. Granof: Was that written into the statute or was that judge-made law? Zuckerman: That’s written into the statute. It’s an aesthetic interest that you have, partially judicially made and partially statutorily made. So it is very difficult, notwithstanding the broad advocacy efforts that animal advocacy groups have, very hard to find somebody who is an individual who has such an interest and who claims such an interest to have been destroyed by the behavior of the defendant. And in 2000 these advocacy groups came upon “a barn man” – someone who had been an elephant caretaker for the Circus and who had quit because he was so sickened by the abuse of elephants that he had witnessed that he could no longer stand to work there. Also, he could no longer stand to see these animals – his beloved elephants that he had handled – because seeing them reminded him of the abuse that they were undergoing. This man’s name was Tom Rider, and he became in the year 2000 a principal plaintiff in this litigation, along with The Fund for Animals. The law firms that were involved were these: The Fund for Animals and Mr. Rider and a few other advocacy groups were represented by Katherine Meyer and Eric Glitzenstein. The firm was known as Meyer Glitzenstein – there 209 were several other lawyers at the firm – but it was a small public interest firm of immense skill in the animal advocacy area. The Circus was represented by top-drawer legal talent. First, Covington & Burling was its representative, and then in about 2005 or 2006, they switched to the law firm of Fulbright & Jaworski. There was a certain David and Goliath quality to this litigation, given the disparity between the numbers of lawyers and paralegals that each side was able to utilize. Over the nine-year life of the case, the Circus was represented by no fewer than 200 separate timekeepers – 75 to 100 at Covington, and over 100 at Fulbright. The core litigation team at Fulbright numbered 15. Notwithstanding Meyer & Glitzenstein’s commitment, there was a persistent imbalance in their resources that persisted over the nine-year life of the litigation. Not only was this imbalance in their resources a significant problem, but because of the nature of the Endangered Species Act and its emphasis on standing, the nagging question of Tom Rider’s credibility was a constant thorn in the side of the plaintiffs. Was Rider really injured in his ability to enjoy the elephants? Why was he engaged in this crusade? These questions became a central target for the defendant’s lawyers. Rider basically walked around with an X on his back for nine years. One of the pieces of evidence that was developed against Rider, which was true, was that he was as impoverished a human being as you would imagine “a barn man” to be. He did not have much formal education. He did not have a job. Obviously, he was no longer working for the Circus. He had no real way to support himself during the nine-year period that the case went on. It ultimately went to trial in early 2009 before Judge Sullivan. Rider’s sole source of income emanated from funds that he received from the advocacy groups. They paid him roughly $20,000 a year, somewhat for the purpose of going around the country as a kind of a truth-squad lobbyist. Rider would appear in cities and towns where the Circus was performing. He would be interviewed in the press; he would have his picture taken; he would testify before the legislature; he would say that “I would appreciate it if you don’t go to the Circus because I was there and they are really abusing these 210 elephants.” He was a very credible person, but he was not in good health. He too has died since all this began. On occasion he would work at his sister’s house via e-mail. For a time he traveled around the country in a van, slept in a van. Rider was genuinely altruistic and very committed to this cause. Basically, the mark he wanted to leave on the world was to achieve somewhat better treatment for these Asian elephants. Despite his compassionate motivations, he did receive $190,000 over nine years for his work as an advocate. That fact was effectively exploited by the 200 or so lawyer timekeepers for the Circus who argued to the Court periodically that this man was nothing more than a paid plaintiff. He had sold out for money. He didn’t really care about elephants. If he had cared about elephants he could have gone back to see his wonderful elephants in one respect or another, which he didn’t do. And they picked away at him to great effectiveness, particularly on the compensation side, which led to two consequences, both of which worked together to the detriment of The Fund for Animals. Consequence Number 1 was that the Circus and its lawyers, when they discovered in 2007 the full extent of the payments made to Rider, filed an independent lawsuit against the plaintiffs of the Endangered Species Act case, which basically claimed that the animal rights groups had bribed the witness, Tom Rider. These “improper” actions, they claimed, violated the RICO statute – the Racketeer Influenced and Corrupt Organization Act statute – and amounted to obstruction of justice, bribery, and litigation misconduct. This separate lawsuit was also assigned to Judge Sullivan. Judge Sullivan stayed the lawsuit in 2007 until the outcome of the Endangered Species Act case. The second event, Consequence Number 2, occurred in 2009. The second event was the outcome of the Endangered Species Act case after a non-jury trial in early 2009 that was decided by Judge Sullivan. Granof: Was it non-jury? 211 Zuckerman: Yes. And in December 2009, Judge Sullivan wrote a very lengthy opinion, that he had obviously spent a lot time on, in which he excoriated – probably too mild a term – the institutional plaintiffs and Tom Rider – saying that Rider was a paid plaintiff. Judge Sullivan found him completely and 100% unbelievable – found him completely unbelievable – and intimated that he had been improperly paid, although the Judge never specifically held that the institutional plaintiffs’ behavior in paying Rider was wrong. This case is reported as ASPCA, et al. v. FEI, 677 F. Supp. 2d 55 (D.D.C. 2009). At that point, the previously stayed racketeering lawsuit was un-stayed and unfrozen. The judge’s opinion infused the stayed case, which was now going to move forward, with a renewed viability – it was like filling your gas tank with high test gas. From early 2010 onward, having won the Endangered Species Act – “ESA” – case in grand style, Feld now decided to take out after The Fund for Animals, The Humane Society, and the ASPCA to get his legal fees back and then some. The legal fees asserted by Feld’s lawyers over the nine years of the case, by their count, amounted to $25,400,000. Since the legal statute provides for trebling damages plus additional legal fees, Feld was, in the RICO case, conceivably seeking $80,000,000 or more in damages. Moreover, in Judge Sullivan’s lengthy opinion he now had in his hand a seeming validation for some of what he claimed. In 2011, after a period in which the mediation efforts handled by Meyer Glizenstein failed and the case began to move forward toward a trial, our law firm was engaged to represent The Fund for Animals. We were involved in the case from the Spring of 2011 to the Spring and early Summer of 2014 – directly involved for a period of a little over three years, and during that time we served as lead counsel for The Fund for Animals because of our litigation experience and resources. We really served not only as the lead, but also as coordinating counsel for the whole group of RICO defendants. The RICO case involved as defendants not only the institutional plaintiffs and Tom Rider, but also the lawyers, Meyer and Glitzenstein, and others who had been sued as well. In sum, there were in all 13 defendants – 6 people and 7 institutions. It was, I 212 assure you, an incredibly serious case because it seemed to have acquired a legitimacy given to it by the very adverse opinion by Judge Sullivan. The case was assigned, quite properly, as a related case to Judge Sullivan. However counterintuitive that might be, we were defending ourselves before a judge who had made findings in the underlying case that seemed potentially, at first blush, to have some collateral estoppel consequences in the RICO case. Undaunted, we constructed at least three lines of defense. In 2011, we moved to dismiss the complaint as the lawyers should do, and failed in that effort in an opinion by Judge Sullivan issued on July 9, 2012. Granof: Because it failed to state a claim? Zuckerman: We particularly urged that the RICO count failed to state a claim. The RICO claim failed because it did not show a pattern of misbehavior. RICO applies in the marketplace to repetitive anti-commercial criminal behavior. RICO does not apply to the one-time bank robber. It applies to the bank robbers who get together and say let’s start a business robbing banks. Granof: Yes, because otherwise it would catch every criminal offense. Zuckerman: Exactly. And we urged that this was a single scheme litigation case. There are actually a lot of these kinds of cases out there. We had another at the time in Delaware where litigation misbehavior is said to constitute, among other things, a violation of RICO, and the response that it is only one piece of litigation and essentially one course of misbehavior. It’s not a repetitive, multiple victim kind of approach. And Feld’s response, which was creative, was to grab ahold of the piece of the complaint that had been filed that I’m sure Feld never thought would have served this purpose. One of the things listed in its complaint was that The Fund for Animals not only bribed Rider and obstructed justice, but it also solicited money from its contributors by telling its contributors that it needed funds to prosecute the Endangered Species Act case. Thus, the Fund committed fraud on its contributors by 213 failing to tell them that The Fund was using its money to bribe Rider and by otherwise mischaracterizing its activities to its contributors. Therefore, in reality there were two schemes and two sets of victims. One set of victims included the court system and Feld who were getting hammered by this bribery, and the other set of victims consisted of the contributors who were defrauded of their contributions. Granof: Clever. Zuckerman: Trust me, I remember page 73 of the 129-page complaint as where this is in one paragraph. Very clever resuscitation of the RICO claim. The Judge bought it. We felt comfortable that it probably wouldn’t fly in the Court of Appeals, but the judge bought it. Our principal RICO claim was that defense, and that’s how we lost it. Judge Sullivan’s opinion is reported at FEI v. ASPCA, et al., Civ. Action No. 07-1352 (ESG) (Mem. Op. July 9, 2012). We then sought an interlocutory interim appeal, and lost that in early 2013, which is reported at FEI v. ASPCA, et al., Civ. Action No. 07-1352 (EGS) (Mem. Op. Jan. 8, 2013). Granof: That is, you lost the appeal or you’re not certified? Zuckerman: We’re not certified as a controlling issue of law or fact decided in the District Court and material to the resolution of the case. So they had breached our second perimeter. Third perimeter was to try to advantage ourselves in the discovery regime that was set up, and on balance we lost that because the discovery that we sought – which I won’t bore you with – we really did not get as much of it as we wanted. Feld sought discovery that involved – because of page 73 that I’ve described to you – all facets of our donor solicitation that our clients made use of in prosecuting its Endangered Species Act case. Thus, if the case continued much further the Fund would be risking the revelation of its donor lists and that was manifestly unacceptable. 214 Granof: Why would the organizations object to that? Zuckerman: I think there was a sense – if you’re involved in an advocacy organization – the identity of your donors, their right to their First Amendment association with you, their right not to be chilled and harassed, is sacrosanct. The idea that the Circus could begin to depose the donors who supported these organizations was just offensive, to say nothing else. That was in the air, and as a consequence of all this we set about to try to settle the case. The ASPCA settled, and at the end of 2012 it paid Feld $9,300,000. This is all public. The consortium of the remaining defendants passed the hat, and collected $15,750,000, a very substantial portion of which, $10,650,000, came from The Fund for Animals and the Humane Society. Again it’s a matter of public record. Much of it was covered by insurance, although I can’t say how much. The case ended in May of 2014, with these events having gone on before United States District Judge Emmett Sullivan for more than 14 years. Now I remember calling Judge Sullivan, who is a great guy, and advising him, with the other counsel on the phone – counsel for the Circus – we think we’ve settled the case. To say he was most grateful was an understatement. The remaining odds and ends of the case, again all public, dealt with a second feature, and that is the fact that The Fund for Animals had insurance against claims that it had engaged in malicious prosecution or trade defamation or other wrongs. It had a number of policies, and there were issues with regard to each of the policies. So for the last several years, in addition to fighting off the Circus, I and we have fought on behalf for the Fund for Animals to get coverage under three or four sets of insurance policies. Granof: So I guess one of the issues must have been intentional torts? Zuckerman: We succeeded in getting substantial, though not complete, coverage. One of the issues that we confronted was the following: for reasons that may have been legitimate, but that were subject to being contested, The Fund for 215 Animals did not give notice to its insurance company in 2007 that the RICO lawsuit had been filed against it. It did not give notice until the failed ESA lawsuit was over, and the stay was lifted and the RICO then began in earnest. So it gave notice 2-3 years after the complaint was filed. The insurance carrier: (a) refused to pay; and (b) refused even to discuss settlement. Over the last six months or a year there has been very intense and I think good litigation on both sides. We represented the Fund, and Goodell, DeVries, Leech & Dann, a good Baltimore firm, represented the insurance company in Circuit Court, Montgomery County. Maryland has a rule that if you give late notice it really doesn’t affect the ability of an insured to collect unless the insurance company was prejudiced and could have done something to mitigate its damage that it didn’t do because it didn’t get notice early enough. Over a four-day trial occurring about a week or two ago in Montgomery County, a jury trial before Judge Michael Mason, an excellent judge, we litigated the question of whether or not the National Insurance Company was prejudiced because it was not told of this old lawsuit in 2007 when it was brought and stayed, and was not told until 2010. We argued there was no prejudice. Although it’s an argument, however obvious it might seem, that did not occur to the insurance company until a week or two before trial, the insurance company said “Look, so much of what Judge Sullivan ruled in 2009 seemingly had a collateral estoppel consequence in defending the RICO case. Maybe it was a little, maybe it was a lot, but it seemed to have constricted in some respects the ability of our insureds to defend themselves. If you had come to us and said in 2007 look this is what the allegations are, we at least had the chance to enter the Endangered Species Act case as cocounsel with you, make some suggestions, see if we couldn’t help you avoid what you suffered, and that is a catastrophic loss which is now going to dog you and more significantly dog us in our collective ability to get through this together, and we think in that sense, that’s pretty classic prejudice.” Our firm was extraordinarily well-represented by my Baltimore partner, Bob Shaffer, and staff from our Baltimore office. Since I had been involved in the RICO 216 case, my job was to describe the RICO case, why we settled, what it’s course of conduct was, but at the same time to respond to the question of collateral estoppel. Granof: So you were a witness? Zuckerman: I was a witness and you are viewing here [pointing] – let the record reflect – about 8 or 10 black binders which reflect fourteen years of litigation which I was required to be knowledgeable about. And, trust me, to this day, because it’s less than two weeks after the insurance coverage trial, I can tell you the date on which any significant event in this case occurred. I had to go through a lot bills and the like, but the most significant thing I had to do, I think, was to describe to the Court why in my judgment there was minimal collateral estoppel risk. Also, to explain why it is that we believe that we would not be hindered in any respect by collateral estoppel; why we would try the case anew; and why therefore it made no difference to the insurance company that it did not get prompt notice. Judge Mason, who is a very smart person, asked a number of probing questions, thought about it for a day or two, and ultimately decided to disagree. The judge found on the record, at the end of the case, that the insurance company as a matter of law – because of the collateral estoppel issue – in two respects had been prejudiced, and he took the case from the jury. The two respects to his ruling were: (1) there was at least a reasonable possibility that some material collateral estoppel would occur and (2) even if it didn’t, the overarching, crushing decision that the Endangered Species Act plaintiffs had suffered, magnified or increased the settlement costs of the case to the defendants. We had to pay more. We paid more than we would have if the case were not decided as badly for us as it was decided. And in that sense, there was a consequence. The earlier case had a consequence on the latter case and that, in the judge’s mind, was enough to suggest that the insurance company should have been told about this early enough so that if it were participating in some fashion, it could 217 argue its case. Granof: Why was the case in Maryland? Did Maryland law apply? Zuckerman: The Fund for Animals had connections to Maryland, its headquarters in many respects is in Gaithersburg, Maryland – it’s got a DC facility – and its insurance broker, I think, is in Virginia. The law in DC and the law in Virginia are both very unfavorable and hold that if you give your insurance company late notice of the suit against you, you’re out of luck. Granof: Had you ever been a witness in a case before? Zuckerman: Yes – I think it’s probably the second or third time I was a witness. This was an odd experience because I was in one sense a fact witness – I was describing what happened. In another sense, within what was permissible as a witness and obviously a truth telling witness, I was to describe a position that we held and believed to be legally sound – that is, that there was no collateral estoppel consequence that was material to the second case and it was a harder – it was a heavier lift, and a harder experience I think by that fact. But I’m very complimentary of counsel for the insurance company who I think did a really good job, and I think the Court was very perceptive even though we can obviously disagree with its ruling. Granof: Just let me ask you. I’m curious about being a witness. I’ve been a witness in a deposition once or twice. And one time in particular I wound up being so grateful for the amount of preparation that our counsel made me go through. I realize that being a witness is different. But even if you’re a lawyer, you need that preparation, and I wondered if you had had that experience. Zuckerman: Yes, I remember you saying that and I couldn’t agree more. It’s interesting and appropriate, I think, to talk about this now, but I’ve been doing this for 46 years. I remember the end of my first year at Harvard and the degree to 218 which I did nothing but sleep, eat and study. Granof: Yes. Zuckerman: I remember studying for the Bar which was not in any respect the same and I had the feeling that what I was doing here 48 or 49 years after my first year at Harvard was pretty much the same thing that I had done 49 years earlier. I had to feed into my head and organize and be able to get out some aspect of a vast amount of material. Even though I might only testify for four hours, it was unclear to me, because this is a little different kind of examination, what the other lawyer was going to ask. Would they focus on the year 2000? Would they focus on 2009? Would they ask me a lot of what happened in 2007 or 2013? So you had to go through and master all this stuff intellectually and by memory, and then you had to prepare yourself for your direct examination and have your lawyer go through the direct. Then you have to be pummeled and prepare yourself for your cross, and so the last two experiences are as important to the process as the first. Granof: So you were sort of both an expert witness and a fact witness? Zuckerman: I wasn’t really technically an expert. I wasn’t qualified as an expert, but there was an orientation that my testimony had that reflected the truth. It reflected what we were thinking, and it would be perfectly proper for the Court or the opposition lawyer to say, well, how could you have thought that? Didn’t you know that collateral estoppel can apply in this circumstance or that circumstance? Granof: But, you really weren’t engaged until 2011. Zuckerman: We were engaged when it became apparent that the mediation would not settle the case, that the case was about to be argued on a motion to dismiss, and that probably the individual parties at that point needed their own counsel. So we got in at 2011 and began to shape our client’s position. 219 Granof: But you were testifying about events that occurred well before you got into it and wouldn’t have had personal knowledge. Zuckerman: Correct. Granof: How did you get away with that? Why did they allow that? Zuckerman: I think it was a combination of the following in the exercise of the Court’s discretion. There’s a court file with documents, and I was describing the court file. So you can in your discretion say tell us what’s in the file. Beyond that, much of what I had to say, I suppose, came in under the oftenused default that it’s not admissible for the truth, but what the witness is saying is admissible to give you a sense of what the witness’s perception was at the time when he or she carried the case forward and made decision a and b and c. Granof: I was thinking that as a practical matter the judge was very sensible, but this was probably the only way. Zuckerman: I think that’s right. That’s what I said – I thought it was – I’m sure the Court would describe it as a very awkward case to adjudicate because it involved such an expansive time because you didn’t want to turn it into a two- week long matter and you wanted to compress it as best you could. Zuckerman: Those are my two cases. We have a few minutes and can talk about where I am in life now, and what’s going on and it’s kind of appropriate. On Thursday of this week Amit Mehta, who is a partner at the firm, will be sworn in a United States District Judge, taking the seat of Senior Judge Ellen Huvelle, and he will appear in Courtroom 9 to be sworn in at 4:30 in the afternoon. Granof: That’s wonderful. Zuckerman: His wife is a partner here and is a Harvard graduate. 220 Granof: And is he a partner? Zuckerman: He is a partner here, and he’s the second of our partner group to take the bench. The first is Steve Glickman who went on to the D.C. Court of Appeals and Amit, let’s see, was born, give me a moment here, about a year or two before the firm began. It would be too nice to say that he and the firm were born at about the same time. I suspect he’s in his early 40s, and was probably born about 1971, ‘72 or ’73. But he was essentially a baby when the firm was a baby and grew up, and we were fortunate enough to have him as a partner for a good while. He’s a very talented man and will be a very fine judge, and his swearing in is Thursday and thus begins a new life on the bench. He will be – because you can figure these things out – he will be the longest serving judge on the District Court bench here because one knows the ages of the judges who were appointed before him. He will be the longest serving judge not over the age of 65 in about 2035 or thereabouts – 2030 – so he will be the Chief Judge. The Chief Judge is the longest serving judge not over 65. He will have about a year in which he will be the Chief Judge, but it’s nice to see that on Thursday and to revel in it and enjoy it and ascribe at least a part of it to the period of gestation that he spent at the firm. And then on Friday I will be at the Memorial Cemetery of St. John’s Church in Laurel Hollow, NY at 1:30 helping to say goodbye to somebody who became a good friend and certainly was an important client for seven or eight years, and who died under very difficult circumstances if I may say. Dying is sometimes easy, sometimes not easy, but generally when you go through these heart health experiences, you need a healthcare advocate by your side. When your knee is replaced or your back operated or just after quintuple bypass, it’s unimaginable that you’re doing it in circumstances in which your wife, your loved ones, your brother, your sister can’t come to your bedside when you awaken and say, “Hey, you’re fine, I talked to the doctor and everything went well. Do you need anything from the gift shop?” And he went through a series of health – Tone did – very severe health 221 entanglements; first, without the ability to have a healthcare advocate with him before or after this happened; and second, without the ability to have, in any effective way, a healthcare advocate to deal with the doctor. They would tell him we’re going to give you a quintuple bypass. But they would not tell him when and they would not tell his family when. For security reasons, they do not want any foreknowledge on his part or his family’s part as to when he will be wheeled out of the Federal Medical Center and over to the Mayo Clinic to be operated on. But the idea that you are being operated on without anyone giving you the specifics surrounding a serious operation is just very hard to get your head around. Without warning, the people who are charged to take you to the hospital just come to get you. The exact timing of the operation is a complete surprise to you, and your wife, your girlfriend, your family doesn’t even know when the operation is occurring. Granof: Seems harsh. Zuckerman: It’s incredible – it’s just incredible. I mean you go through a lot of anxiety when you get a quintuple bypass. By our computation, he had been in surgery for at least 17 hours in the various operations which he had – that’s a long time. So that’s my perspective as of today. There are a lot of good things that have happened and there are a lot of bad things that have happened. Granof: I’m curious how Judge Mehta. How did he become a federal judge? Zuckerman: You tend to think that you have some friend on high who calls you and says, hey, we’re looking around for some judges, you might be a good choice here, are you interested? If you are, file your application. Ninety-nine percent of the cases do not happen that way. It’s initiated by you, and you wake up one morning and you say “I’d like to be judge and I can be a good judge and I’m going to file an application and see if I can get some support and run it through” – very surprising. 222 Granof: And that is what he did? Zuckerman: Yes, that’s what he did and benefitted I think – as did my friend Amy Berman Jackson, who just became a federal judge – by the fact that the Obama Administration rightly and commendably and finally is very intent on diversifying what has been for the history of the Republic a white male bench. Gender diversity, racial diversity, ethnic diversity is really a hallmark of Obama’s appointees. But despite this emphasis in the last seven years, in particular there has been an underrepresentation of Asian Americans. In 2009, Preet Bharara was appointed to be the U.S. Attorney for the Southern District of New York; another Indian American, the Honorable Sri Srinivasan, was just appointed in 2013 to the U.S. Court of Appeals for D.C. It’s an underrepresented ethnic group that is finally getting its due. Granof: Congratulations to him – it’s wonderful. Zuckerman: He is wonderful. Anyway, that’s a pretty good place to stop. Granof: Okay. This concludes the tenth interview. 223 ORAL HISTORY OF ROGER E. ZUCKERMAN Eleventh Interview April 7, 2015 This is the eleventh interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman in Washington DC on Tuesday, April 7, 2015 at 2:00 p.m. Granof: The last time we talked, you had just finished talking about the animal rights/Ringling Brothers case which, I guess, is still on-going in some respects. Zuckerman: Yes, we’re still engaged in litigation over insurance coverage that we believe we have – that regrettably one insurance company believes we don’t have – and that litigation will go on for a bit. If you count all of its iterations, the case is now in its fifteenth year at least, which is painful, not silly and a real diversion of focus from what people ought to be doing. Granof: I don’t know if you saw the article in one of the papers this morning about the delay in getting similar cases heard in the courts, particularly the federal courts. Zuckerman: No, I didn’t see that. Actually, I must say it surprises me a bit because are the federal civil dockets that crowded? Granof: Well, at least according to this article they referenced one particular district I believe in California in which the plaintiff had filed a discrimination case in 2007 and it’s still not resolved. Zuckerman: Yes. California being the mother of all anomalies – weather extremes – and in this case judicial extremes, but the phenomenon I guess that expresses itself in California, now that I think about it, is that the system deals so poorly with civil disputes that there is a huge and burgeoning 224 private mediation business that retired judges do. My impression, derived from a colleague who had been a state court judge there for many years and is now a mediator, is that private mediation is a real burgeoning business. If you’re a litigator in California, your typical course is to hire a private judge to do a real hard mediation to try to bring the case to conclusion. Granof: Or they do arbitrations. Zuckerman: They do it here, but my impression is that it is much more vibrant as a matter of necessity in California. What I thought that I would talk about today is my perspective. I would talk about the firm which is about to celebrate its fortieth birthday. A little bit about my perspectives as they have been formed over forty years. Granof: What I wanted to ask you before you get to perspectives, where are you now in the firm? Zuckerman: I want to get to that and I think later a reader will find this interesting. It has a certain instructive quality. The firm began in the mid-seventies. We have, I think, been through its origins and the buoyant and probably overconfident young people who started the firm when they were in their early thirties, many of us, and how we’ve had to negotiate the marketplace to stay alive. We’re now roughly 100 lawyers and many of our peer firms have disappeared. Shea & Gardner, Miller Cassidy, firms like that, which we admired, and which were first-rate firms, have for one reason or another not been able to get, in a meaningful way, to the second generation and beyond, and we, I think, all of us were of the view that we wanted to try to accomplish that. We felt an obligation to the younger lawyers who came with us – the lawyers who had tremendous opportunities elsewhere but came with us, made their lives and careers here – to keep this place as a place that they would enjoy, control, and 225 prosper in, after we reached our retirement or semi-retirement ages. Granof: One thing that you said that fascinates me is that you started this in your thirties when you were overconfident. People wouldn’t start these things in their fifties. Isn’t it that you have to be that age to do it? Zuckerman: It’s much easier I think if you’re 30 or 32. You haven’t known failure. Your professional and personal responsibilities are not great. You tell yourself if it doesn’t work out, I’m still young, I can go to a law firm. I mean it’s classic. You’ve seen it in the somewhat irrational buoyancy that young people have in all fields. You know you’re going to take on the world, you can’t fail. Granof: I can do this. Zuckerman: Yes, and you haven’t been smacked around too badly. For us, it was a good time. I think we’ve – the founding partner generation is now late sixties to early seventies – we’ve made a conscious effort in the last five years at least to turn the management over – the last ten years – to the proceeding half generation. The existing manager partner, Graeme Bush, I think, is 65. That generation or half generation is now kicking the management of the firm down a notch with our pleasure. And we ideally would like the firm to be a law firm where the core is a group of lawyers in their forties – early forties to mid-fifties – which in some respect are the core years, the key years in many lawyers’ lives. To some extent, we’ve been frustrated in that wish, but we’ve been frustrated because we have been, in some sense, victims of our own success, or at least victims of our own success in recruiting people. Many of our fortyish or 45-year-old partners have been importuned to take major government positions – to go to the White House Counsel’s office or to go to the Commodities Futures Trading Commission or to go to the Justice Department or to run for political office. 226 Granof: Or to become judges. Zuckerman: Or to become judges. Positions that are very, very significant, but that rob us. That type of job movement has been much more impactful in our demographics than in the normal firm. We have probably always had 20 to 30 partners, and we’ve lost 5 to10 over time to these very senior government positions. Granof: Do they come back? Zuckerman: Some come back. We just got Gregg Bernstein back who was the elected District Attorney of Baltimore. But I think, in fairness, many who have enjoyed the responsibilities and perquisites of being an Ambassador or being in the White House Counsel’s Office – many in those circumstances do not easily want to return to a life in which you are sitting around billing by the hour and looking for clients. It’s a – I don’t mean this in a pejorative way – but it’s a coarser, less elegant, more pressure-filled existence than where you have a big office and you have a high government position. Therefore, we have not gotten all of them back and, in the life of the firm, the demographic of the firm has been affected to some degree because this key generation that should be there with a great deal of fullness is not there in a great deal of fullness. Those of us who are seventy plus or minus would like to contribute to the firm in meaningful ways. We confront the very same issues, I think, that larger firms confront when larger firms decide how to deal with 65- or 70-year-old partners, retired partners, senior counsel partners, how to give them a meaningful existence and yet how to center the firm in all respects – management, income, case responsibilities and the like – how to center that firm in a fortyish to fiftyish range. The notion, I think correctly, is that a vital institution in the marketplace is generally – there are exceptions – but is generally not superintended by a politburo of 70- year-old people such as ran the Soviet Union in the 50s and 60s. My 227 generation has been very encouraging of that transition to younger firm management. But speaking only of myself and personally, there’s a very interesting psychological phenomenon that a founding partner – particularly a founding partner who was there pretty much at the first – has to go through to convince himself that it’s better to let the kids run the store and better that you keep your hands out of it and let the kids make these decisions. Granof: Yes, because after all, your name is on the door. Zuckerman: I am 72 years old, but even at 72 there is a period of growth and development and wisdom and maturity that you have to go through before you can say that it is better for the institution to allow a younger group of people to develop and flower and feel as if in a genuine way that they are driving the bus. As time goes by, you are much further to the edge of the action. But there are competitor firms that we have nationally where lawyers of just tremendous national prominence continue to be impactful in the marketplace well into their seventies, seemingly, I think, without adverse impact on the firms, but you never know. You really never know. But the idea at this firm is to, slowly and effectively, transition whatever brand we have developed to a younger group of people, and for the older lawyers to accept their somewhat diminished position with equanimity and satisfaction. I suppose if one were being philosophical about this, to accept that at the end of the day as your future years diminish somewhat, there is much more to life than being in a legal dispute five days a week. You can do very meaningful stuff for the D.C. Historical Society or you can paint or write or travel, and your ego and self-worth are not bound up in sitting in a law office and writing briefs. Now Jake Stein would disagree and Plato Cacheris would disagree. 228 Granof: And F. Lee Bailey would disagree. Zuckerman: And Lee Bailey would disagree, but we all make our own choices. However, I assure you it is a fabulously interesting transition particularly for somebody who is a founder. When he or she begins to give the keys to the kingdom to another generation of people in a meaningful way, the following interesting issues materialize. “Should we let founding partner Jones keep his office?” “Do we have enough office space to allow founding partner Jones even to come around at all?” Firms answer those questions differently. I have many friends in their 70s who are extraordinarily prominent in the lives of major firms in town, who have basically been encouraged or told outright, “This is your last year. We love you. We’re going to give you a big going away party, but you better find another outlet if you want to practice law.” And it’s the way the world is. Not all firms are like that, and we are wrestling with those issues as the founding generation here. Granof: Doesn’t it to some extent depend on individual circumstances? So, for instance, if you have a partner who may be in his 70s but he’s bringing in $10 million a year in billings and he has clients who are extraordinarily loyal to him personally, I would expect that the management committee of the firm would encourage him to broaden that so that if something should happen or if he’s going to retire, his clients will still stay with the firm but at the same time you just can’t shove him out the door. Zuckerman: I agree. There is a balance and deft way to deal with that that is very important. The dilemma is that you, from an institutional point of view if you were a management consultant, what you would really tell the firm’s management partners is something like this, “It’s bad to have a significant portion of the firm’s business within any significant control of somebody who is 75 years old. You want to transition that business 229 to someone who is 55, and you want to do everything humanly possible to get that business on a more stable, more secure footing, so that you don’t have to worry about what happens when the 75 year old doesn’t practice anymore.” Granof: That may be easier when the 72- or 75-year-old realizes that – as you do – and says that makes a lot of sense. It’s much more difficult if the very reason that the 75-year-old has $10 million worth of billings is because he has a tremendous ego, a tremendous sense of self-worth and selfconfidence. Zuckerman: Or is simply uniquely able and extraordinary. Again, it’s all just incredibly personal but to me it is very important – I feel this very strongly – there are talented younger lawyers – younger, they’re now 60 – who came with us when they were 35 or 30 and who could have gone to the best firms in town, but came with us. You want them to say, if not every day or every week, you want them to say at some point, I really made a great life decision. I’m really thrilled and I made a great life decision. The firm has an obligation to them, I think, to really make that a reality – not to squeeze every nickel you can out of the firm such that their position at 60 in the hierarchy of things in the firm is not much different than it was when they were 30 and you were 40. You want them to feel that (1) they have inherited this law firm that you have helped to develop, and (2) it’s just the most wonderful thing that could have happened to them, and (3) they would not have had their life develop in any other fashion. If the seventy year old lawyers don’t feel that way, then they, in my view, possess an attitude that is very selfish and tends to take advantage of people. At least, that is my view and that is what I have tried to do, and to their credit I think that’s really – there are 5 or 6 of us who have been around since the beginning – I think that’s really the way all of us see it. It’s just a wonderful gift to be able to give to people who have cast their lot with you when they could have 230 gone anywhere, and who deserve all good feelings and every reward you can possibly give. Granof: And this raises a question. Zuckerman: I want to keep my office – that’s the only thing I’m trying to keep. Granof: You have a nice office. Zuckerman: Don’t make me leave my office. Granof: Nobody is pushing you out of your office yet. Zuckerman: Not yet. Granof: Not yet, but your firm has a 100 lawyers or so? Zuckerman: Yes. Granof: By today’s standards, it’s got to be qualitatively different than DLA Piper which has 3,000 lawyers or something like that or these mega firms that basically have different departments, have continuity of clients. Zuckerman: While we are not a one-and-done client relationship firm, we are very different than the large firms because we do not have quite the large amount of institutional relationships that create some level of stability for those larger firms. Some of that is illusory, as for instance when the General Counsel of Exxon changes and it’s not clear that Exxon stays with the same law firm or whether the firm loses a huge amount of business. We have a fair amount of institutional work, but we have a much higher percentage of work – I’m sure I talked about this – that involves individuals. Generally we don’t represent “the company,” we represent “the president,” we represent “the senior vice president or 231 some executive.” Granof: And what do they ask you to do for them? Zuckerman: Well, typically in a white collar case where Company X is in trouble, Company X will have an internal investigation. In order to conduct that investigation properly and have top-notch representation in any related litigation – criminal and/or civil – that may follow, Company X will need to hire outside counsel. The Company X has a president and a series of executives who are also in trouble, and they need counsel. Typically, if you were the general counsel of a Fortune 50 company and the company was confronting a major FCPA issue that could cost the company not millions, but tens of millions. Granof: FCPA? Zuckerman: Foreign Corrupt Practice Act Investigation. Your thought process would be, “My butt is on the line. Foreign Corrupt Practice Act compliance is an area that I am responsible for. I’ve got to find a firm that is so well regarded, at least superficially, that if this thing craters nobody can say to me, ‘Why did you go to them? Why didn’t you go to x, y or z?’” And in this marketplace, that insurance for the general counsel is provided by firms, in my view, that have between 500 and 4,000 lawyers – mega firms. If as a general counsel I go to Akin Gump or if I go to Sullivan & Cromwell or I go to DLA Piper, nobody is going to bat an eyelash. If I go to Zuckerman Spaeder, a 100- lawyer boutique, I may or may not be criticized if the thing doesn’t turn out well. Granof: I’m not so sure, and you would know better than me, but it seems to me that if Zuckerman Spaeder is at the point in terms of reputation that if you went with Zuckerman Spaeder, people would say they’re specialists in this area – they’ve got a 40-year reputation. 232 Zuckerman: And I don’t mean to denigrate what we’ve done in the FCPA area because we’ve done Fortune 50 firms, but I do think the phenomenon of general counsel types believing that the safe course – Granof: The CYA course? Zuckerman: The CYA course is to take a 1,000 lawyer firm, not a 100 lawyer firm. This is something that’s real in the marketplace, and it’s not necessarily bad for us. For example, we did not represent Enron – we represented the third highest executive at Enron, which was an important engagement. We didn’t represent REFCO, we represented the President of REFCO. We do not represent Massey Coal in the West Virginia coal mine disaster case, we represent Don Blankenship, the President of Massey Coal. We did not represent the Stanford International Bank when it went down, we represented the Bank’s president. That’s just the way it is, and the reality is the amount of legal work that you end up doing for the executive oftentimes is greater than the amount of legal work you would have ended up doing for the company. That’s (A), and (B) – our skill set includes not only the capability to understand the law and litigate effectively within the framework of the particular law that’s involved, but I think we are especially good with people who are in crisis periods of their lives. I think we have good people skills. Where you represent people who are significant, who have never had any bumps in the road, and who all of a sudden see their world crumbling, it’s challenging and it is within our sweet spot. Granof: Why isn’t this more one-and-done? Zuckerman: It is. Ours has a much higher percentage of one-and-done cases, I think, to address your point. This creates a lot less institutional stability circling back to the institution and requires a level of aggressiveness and optimism in the marketplace that you do not quite have when you are at 233 Sullivan & Cromwell just waiting for the next phone call. You are a little bit on the frontier. The future is a little bit less certain. It can oftentimes be a pressure-packed environment. We are at “a transition point” – to use the language of the 21st century – an inflection point, where we are hopeful that the firm will flourish over the next twenty years in the hands of younger people. We have a new managing partner who will take over at the end of 2015, Dwight Bostwick, who is a great leader. We’ve got an increasingly younger management committee, and those of us who are founding partners find ourselves in the role of the House of Lords as opposed to the House of Commons, and in some respects even much more in the role of the Queen of England than the House of Lords. We give moral suasion and make observations, but we recognize that the decision-making authority no longer resides with us, and, in our view of how the institution should develop, we acknowledge that it really ought to be elsewhere. Granof: So, what do you do on a day-to-day basis? You have an office and you come in and what do you do? Zuckerman: I still do my cases and the phone still rings. People and entities are still in need of our services. However, if you ask me what I do that’s different – and I don’t know that it’s all that different – but I try very hard to involve other partners in my cases, in particular younger partners, partly because my rate is very high and it becomes off-putting to some clients, and partly because it’s the correct thing to do institutionally. I still travel. Without becoming too introspective about this – I don’t have a lot of avocations – my sense of self-worth or selffulfillment is still very much bound up in my ability to do legal work, my ability to accept stress, to be challenged, and to feel at the end of some period that I somehow met the challenge that I’ve been facing, and that I am pretty much about as good as I was 20 or 30 or 40 years ago. I 234 think that’s not particularly healthy. I have learned that part of growing and evolving is to take some time off to enjoy food, wine, good books, travel, and my grandkids, and put this legal stuff that we’re doing to one side during that time. I think doing that has probably been harder for me than for the average lawyer. For whoever reads this, my observation about myself would be that a by-product of being a founder of the firm is that one becomes almost obsessive and compulsive about its success, its continuation and your life in it, because without that 24-hour-a-day attention, without going to bed every night worrying about some facet of your business, you have the feeling you are not going to make it. My current narrow view of the world is very much, I think, a by-product of what I’ve been through for 40 years and its effect on me, and to be perfectly candid to future lawyers who may read this, I’m not sure it’s particularly the healthiest thing in the world. Granof: It seems to me that what you’re doing is very much like what you’ve done, except a little bit pleasanter and a little bit lighter. Zuckerman: You are very perceptive and I think that’s 100% right, but it’s not enriched with the kind of eclectic catholic – with a small c – studies and activities that many of my friends and people I know engage in that have not the slightest thing to do with the law, but that have to do with researching ancient this, that or the other, or with painting or sailing or building something. I have a very spiritual partner who is a vegetable gardener and has started the vegetable garden equivalent of a Johnny Appleseed movement – developing vegetable gardens around the city and elsewhere under his tutelage so that people can learn about the Earth. Anyway, that’s my insight. Granof: Are you able – how is the firm able – to recruit? Do you recruit people out of law school or do you recruit people out of the US Attorney’s 235 office? Zuckerman: We used to recruit very heavily out of law school. We had a summer program and we got very good people. The best summer program we ever had and the best people we ever got came out of Obama’s class – the Class of ‘91 at Harvard – we got four really good people. Currently, I would say for the last ten years, we recruit only out of clerkships and we take laterals out of other law firms or we take associates out of law firms, but for a lot of reasons recruiting directly out of law school is not going to work for us. I think that one of the interesting features of this process of looking back over forty years is to recognize how people’s insights, perceptions and preconceived notions have changed. We did a time capsule at one of the firm retreats – we have had wonderful retreats where we go places and try to get to know each other. We did a time capsule probably twenty years ago in which people were asked to predict the size of the firm in the year 2000 or 2005 or whatever. Some people predicted that we would have merged. Other people predicted a particular number – I can’t remember what it was. And I will tell you what was interesting when I thought about that question. I would have predicted that we would have been much larger than we are. That we would have grown to 150 or 200 or whatever, and I think that we have been around 100 for six or eight years. I can’t possibly give you the reason in the market why the firm stabilized at that number of lawyers, but I think it has to do with our niche in the market. It’s got to do with – I don’t want this to sound funny – a very narrow limited sense of who we will accept as a lateral partner. It doesn’t really matter if Jones has $5 million in business. There are other things that Jones must have for Jones to be compatible with the other partners at the firm. He or she must be of a certain quality intellectually and professionally. If Jones does not possess these critical strengths, then we just don’t want Jones. And I 236 think that obsession – and I’ve tried to put it in a nice way – but our firm’s commitment to accepting only partners who possess these qualities of intelligence, integrity, compatibility, and empathy has kept us from going down a path that a lot of larger firms have traveled. They may be more profitable, they may be less profitable, but at least from our perspective the quality of their work and the quality of their personnel is probably diluted somewhat compared to us. Granof: Would it be accurate to say that you want your people to be hands on, to be able to be the litigators? Zuckerman: Yes, I think that’s true. We want our people to be perceived by the market as professionally among the best. So the rainmaking in and of itself, and the compatibility in and of itself, or even if the two are joined is not the complete package. There is a necessary condition as well that people in the market generally perceive, and in fact that it be true, that Jones is a superior lawyer. We have a number of partners in the firm who feel very, very strongly about that. So I thought what I would do at the end is to wind this up with a vignette. Granof: Can I ask one question? Zuckerman: You can ask more than one. Granof: Just one. You found that taking people right out of law school is no longer working for you, and I’m curious as to why because at the same time you think that a clerkship – say you’re working for a district judge or an appellate court judge – seasons a lawyer. 237 Zuckerman: I think people coming out of law school are too green and too expensive for what they will do for you and a young lawyer who’s a year or two out of clerkship is much better for us. I think their quality is easier to identify because they’ve experienced a year or two, ideally, with a really good judge. Their sophistication is much greater, they’ve been in the market in some fashion for a year or two and understand what they want a little bit better. Thus, the idea that you can marry up in a relationship that works for you and works for them for a long term I think is much more likely to happen with a judge’s former law clerk than students hired from law school recruiting days. Law school recruiting is more like speed dating. I mean, if you’re a 1,000 lawyer firm, you have a class of 30 coming in at the beginning of the year and you know that at the end of the process you’ll have weeded out three quarters or 80% of those people well before they’re up for partnership. I thought what I would do – because in a neat way after you’re lovely interviews of me over the last year and a half, I thought it would make a nice at least tentative end piece – is to put on a postscript of two, three or four minutes to describe to you that, as we had mentioned earlier, Amit Mehta, my young partner and one of the many whom I am sorry to have lost, has become a district court judge. Granof: A U.S. District Judge? Zuckerman: A U.S. District Judge. He’s been on the bench a month or two is all. He called me yesterday and asked me whether at a swearing-in that he is conducting on Monday of new lawyers, whether I would come down and give the swearing-in speech to the class of new lawyers of April 2015. I would have only have ten minutes, and I agreed of course. I thought that I would reflect on my experience at the bar over 45 years that you and I have talked about. I want to try to spend ten minutes telling these fine young neophytes everything they should have learned in law school, but 238 didn’t; everything they should have learned when they were studying for the bar, but didn’t; and to leave them some life-lessons from the perspective of a 45-year lawyer about what they could have learned, but didn’t. I want to give you – this is by no means final – but it’s to some degree thematically what you can distill out of what you and I have talked about for the last year. Things that occurred to me that I would tell them that are of real value that your law school professors probably don’t tell you and they don’t tell you in your bar review course whatever it was – whatever they’re using – and here they are. First, something that you and I talked about here at some length, which is that the practice of law involves rules, it involves statutes, and it involves regulations, and you have got to know these things. It’s an intellectually demanding practice, but it also involves people. At the end of the day the practice of law is not a mechanical, formulaic undertaking, as medicine or engineering is to some degree. It’s a process by which people are moved in one respect or another to a position that benefits your client, and it’s an aspect of the practice which is very much underemphasized in law school education. Second, civility. If you look at LA Law, or at some of these old TV shows or some of the new TV shows, you see a level of formality and abrasiveness that pretty much does not accurately characterize the real world and the way lawyers are. Third, because one is involved with people, there is not just an intellectual aspect requiring that you have to master rules, but there is an emotional need that you have to master in your personality. You have to figure out the correct way to meld compassion and passion, humor and fairness, and other personality attributes that will make you as effective as you would be if you genuinely understood every rule of law there is in the book. Fourth, my personal favorite, which I don’t know that I’ve talked about, and that is that the future is inherently and extraordinarily less foreseeable than you think it is. When you get up in the morning you oftentimes have the feeling, because people need to have this feeling because it gives them 239 stability, “Well, here’s what I have on my plate today.” At 6:00 at night when you come home, your plate oftentimes was 100% different than what you thought it would be. In a broader context, when things are going badly, you assume they will never turn around, and when things are going well, you assume that’s a permanent condition as well. Neither one is true. You need to have a kind of buoyancy that comes with knowing that your experiences are going to be like the steel ball in a pinball machine bouncing all over the place. You can’t get too high or too low based upon where you think you are today, because oftentimes that is not where you’re going to be tomorrow. And finally, the last point – which is sort of obvious and I suppose you are taught it in law school – is that the practice of law is a solemn and serious profession. This fact is not often recognized or believed by people, I think – at least not enough. It is the highest obligation and honor you can have to be a counselor to somebody who is in need of advice and wisdom. It is a very serious, real obligation that needs to be treated with the greatest possible solemnity and honored as amongst the highest callings there are. In some respects, many people don’t see that or feel that. But those notions are the notions that I would convey to a group of neophyte lawyers about to be sworn in by my former partner and mentee who is now a district judge. Granof: I think that is a wonderful exposition. Zuckerman: There you go, and I say again this could not have been nicer for me and I am truly lucky to have had the opportunity to spend all this time with you. Granof: Well, I’m the one who is lucky but I think particularly that last – the speech that you’re going to give – that’s a wonderful way to conclude. Thank you. 240 I thought it was interesting. I thought that the coincidental aspect of that. Granof: So I guess that we could conclude. Zuckerman: Well, except for our lunch and I would tell the listeners – those who listen or read this – I don’t know whether I could do as good a job with Gene but I intend to poke around Gene’s life. Granof: It’s not as interesting. Zuckerman: I’m sure it is, I’m sure it is, and see what I can find and to say as well that if you could see – if we were on tape and you could video you see Gene Granof: today, you would see as young and fit and handsome a guy as is out there and somebody who has figured out, obviously, to lead his life in his mid-seventies. Granof: A little older. Zuckerman: Lead his life in a very fulfilling and successful way. Zuckerman: Congratulations. Granof: Thank you. This concludes the eleventh and last interview. A-1 Oral History of Roger E. Zuckerman Index Acheson, David, 49 Akerman Senterfitt, 150 Akin Gump, 231 Alch, Gerry, 89 Aldock, John, 44, 59 Alexander, Harry, 50 Allen charge, 86 American Society for the Prevention of Cruelty to Animals, 206, 211, 214 Anderson, Jack, 139 Arab Bank, 142-43 Arms Export Control Act, 152, 153, 155 ASPCA. See American Society for the Prevention of Cruelty to Animals ASPCA, et al. v. FEI case, 211 Atkinson, Harry, 76, 81 Auchincloss, Louis, 39, 123 Bailey, F. Lee, 16, 17, 75-77, 80-83, 86-93 104, 107-9, 129, 147, 155, 157-65, 169-70, 228 Boston Strangler, 77, 162 Calley, William, 162 Coppolino, Carl, 77, 161 Defense Never Rests, The, 77 Medina, Ernest, 77, 162 Sheppard, Sam, 77, 162 Barofsky, Neil, 185, 203 Bazelon, David, 57, 58 Bechtle, Louis, 98, 100-1, 104 Bennett, Robert (Bob), 33, 59 Bennett, Phillip, 182 Berger v. New York case, 65 Bernstein, Gregg, 226 Better, Herb, 113 Bharara, Preet, 222 BioChem Pharma, 158 Bittman, William, 91 Blakey, Robert, 60, 64, 65 Blankenship, Don, 232 Boston Strangler, 77, 162 Bostwick, Dwight, 233 Boudin, Kathy, 134 Boudin, Leonard, 134, 139 Boudin, Michael, 134 Boudin, Rabinowitz, Standard, Krinsky & Lieberman, 134 Boyle. Tony, 74 Brafman, Ben, 125 A-2 Bress, David, 14, 20, 22, 43, 46, 49, 52, 53, 61 Brick, Albert, 28 Brick, Irving, 28 Brown, Blair, 118 Brown, Ernie, 35 Bryant, William, 195 Buchwald, Don, 187 Buchwald, Naomi Reice, 187 Bundy, McGeorge, 41 Bureau of Narcotics and Dangerous Drugs (BNDD), 61 Bush, George W, 178 Bush, Graeme, 198, 225 Butler, Paul, 11 Cacheris, Plato, 227 Calley, William, 162 Caputy, Victor, 49 Cardoen, Carlos, 151-52 Carlton Fields, 117, 150 Casner, A.J., 31, 34 Chambers, Reid, 20, 44 Chertoff, Michael, 171 Church of Scientology, 120, 121, 130, 132-34, 139, 142-45 Sea Organization (Sea Org), 144, 145 Clark, Ramsey, 60 Cohen, Steve, 197, 198 Collins, Joe, 177, 194 Coppolino, Carl, 77, 161 Corcoran, Howard, 33 Cotton, Isabel, 69 Covington & Burling, 209 Cozza, Carmen (Carm), 189 Cuomo, Andrew, 197 d’Ancona, Adolf (maternal grandfather), 5 D&O insurance, 127, 148, 190 Danaher, John, 57 David, Larry, 169 Dawson, John, 56 Dean, John, 91 Dershowitz, Alan, 32 Dianteics auditing, 144 E-meter, 144 Defense Never Rests, The, 77 District of Columbia Court of Appeals, 48, 49, 53, 98, 119-20, 127, 220 A-3 District of Columbia Court of General Sessions, 47, 48, 49, 50, 51, 52, 54, 60, 61, 62, 70 District of Columbia Court Reorganization Act, 49 District of Columbia Public Defender Service, 118 DLA Piper, 143, 230, 231 Donath, Alec (grandson), 2 Donath, Evan (grandson), 2 Donath, Glen (son-in-law), 1 Donath, Laura Zuckerman (daughter), 1, 76 Dorison, Milton, 126 Dowling, Brian, 178 Duboc, Claude, 104, 157, 158, 162, 170 Dudley, Earl, 134 Durham rule, 58 Echeles-Shuford doctrine, 76, 88 Edelman, Danny, 74 Eisen, Norm, 186 Elam, Judy, 87, 176 Endangered Species Act, 207, 209, 216 Enron, 105, 172, 176, 206 Evans, John, 113, 149 Fahy, Charles, 57 FCPA. See Foreign Corrupt Practice Act Investigation FEI v. ASPCA, et al. case, 213 Feld Entertainment Inc. (FEI), 206 Feld, Kenneth, 206 Field, Richard Hinckley, 32, 38 Firestone, Richard, 126 Fitzpatrick, F. Emmett, 99 Flannery, Irene, 196 Flannery, Thomas (Tom), 10, 49, 53, 61, 62, 63, 66, 68, 196 Flannery Lecture, 22, 195-96 Swampoodle, 195 Foreign Corrupt Practice Act Investigation, 95, 231 Foster, Mark, 118 Fourth Amendment, 57, 65 Fried, Charles, 31 Friedman, Herman, 124-29, 177 Friedman, Paul, 196 Frist, Tommy, 171 Fulbright & Jaworski, 209 Gaither, Tyrone, 55 Garcia, Chris, 185 Garland, Ed, 79, 83, 86, 92 A-4 Gettinger, Peter, 126 Giangrandi, Augusto, 153 Glickman, Steve, 98,, 100, 101, 119, 127, 220 Glitzenstein, Eric, 208, 211 Goelman, Aitan, 186, 188, 189, 201 Gold, Oscar (uncle), 10 Gold, Sydney (aunt), 5, 10 Washington College of Law, 29 Goldstein, Bruce, 118 Goodell, DeVries, Leech & Dann, 215 Goodell, Roger, 198 Goodwin Procter, 44 Gould & Greene, 45 Grafman, Steve, 196 Grant, Tone, 106, 177, 185, 189, 200 D&O insurance, 190 Yale education, 191 Vanderbilt Law School, 191 Greenfield, Jeff, 31 Griswold, Erwin, 35 Hamas, 143 Hamilton & Hamilton, 195 Hart, William S. (Bill), 92 Hearst, Patty, 77, 80, 89 Hickman, Jess, 76, 81 High Noon, 196 Hill, Calvin, 178, 189 Hirschkop, Phil, 134, 136, 139 Holder, Eric, 196 Hormozi, Mitra, 197 Hospital Corporation of America (Columbia HCA), 171 Hubbard, L. Ron, 133, 144 Hubbard, Mary Sue, 133, 139, 144 Hughes, Hubbard and Reed, 197 Humane Society of the United States, 200, 206 Humphrey, Ron, 143 Hussein, Saddam, 151 Huvelle, Ellen, 219 Isaacson, Adam, (son-in-law), 2 Isaacson. Annie (granddaughter), 2 Isaacson, Nina Zuckerman (daughter), 1 Isaacson, Nate (grandson), 2 Isaacson, Owen (grandson), 2 A-5 Jackson, Amy Berman, 222 Jackson, Lawrence “Slippery”, 63 Jobs, Steve, 170 Jones, Barbara, 197 Kasanoff, Bob, 62 Katten Muchin, 1 Katz case, 65 Kellogg, Phil, 71, 196 Kellogg, Williams, Lyons & Zuckerman., 72, 86 Kennedy, Robert, 31 Kiernan, Laura, 138 King, Rufus, Jr., 90, 91 King, Rufus, Sr., 90, 91 Kirkland & Ellis, 197 Kissinger, Henry, 40 Knisely, William, 98, 107 Kolker, Peter, 118, 119 Koscot Cosmetics, 74-75 Krieger, Albert, 62 Kronish Lieb, 197, 198 L.A. Law, 105, 107, 238 Labor Management Reporting and Disclosure Act, 74 Lamberth, Royce, 196 Lardner, Lynford, 39 LaRouche, Lyndon, 143 Latham & Watkins, 171 Lay, Kenneth, 173 Leventhal, Harold, 58 Lindsay, John, 31 Little, Ed, 113, 197 Lowther., Joe, 49 Lyons, Jim, 66, 71, 75, 196 Machen, Ron, 196 Madoff, Bernie, 148 Magruder, Jeb, 91 Makransky, John (brother-in-law), 8 Martinez, Roberto, 152 Mason, Michael, 215-16 Mason, Tom, 118 Mayer Brown, 194 McCord, James, 90-92 McCord v. Bailey case, 92 McDermott, Will & Emery, 50, 72 A-6 McGowan, Carl, 58 McNamara, Robert, 41 McVeigh, Timothy, 186 Medina, Ernest, 77, 162 Mehta, Amit, 219, 237 Metropolitan Police Department, 61 Meyer Glizenstein, 208, 211 Meyer, Katherine, 208 Miller Cassidy, 119, 224 Miller, Arnold, 74 Miller, Greg, 98, 100 Miscavige, David, 134 Mitchell, John, 90, 91 Mitchell, George, 196 Montgomery County, Maryland, Circuit Court, 215 Moore, Luke, 62 Morgenthau, Robert, 124 Moscow, John, 124 Mueller, Bob, 196 Nathan, Irv, 196 National Insurance Company, 215 National Law Journal, 160 Nebeker, Frank, 48, 52 New York Times, 124 New Yorker, 108, 134 NFL, 198 Nixon, Richard, 17, 18, 61 Northcote, Tom, 37 NSA, 64 Nussbaum, Mike, 45 Nussbaum, Owen & Webster, 45 O.J. Simpson, 157 O’Malley, Martin, 63 O’Malley, Tom, 63 Omnibus Crime Control and Safe Streets Act of 1968, 60 Oz, Mehnet, 171 Pai, Lanna, 173, 174 Pai, Lou, 105, 173, 176, 206 Palestinian Authority, 143 Pasano, Mike, 113 Paul, Maurice, 104, 107, 109, 157, 158, 159, 160, 162, 164 Peña, Bert, 116, 149 hypertrophic cardiomyopathy, 149 Peña, Tim, 149 A-7 Petersen, Henry, 91 Puff Daddy, 125 REFCO (“Ray E. Friedman and Co), 106, 177-79, 183-84, 186, 203, 232 round-tripping, 180 Rice, Ray, 198 Richey, Charles, 133, , 134, 135, 136, 140 RICO (Racketeer Influenced and Corrupt Organization Act), 210 Rider, Tom, 208, 211 Riggins, John, 124 Ringling Brothers and Barnum and Bailey Circus, 168, 206-210, 214 Robb, Roger, 67 Robinson, Aubrey, 62, 63, 66 Robinson, Ken, 75 Robinson, Spottswood, 58 Rogers, John, 72 Rover, Leo, 49 Rule in Shelley’s Case, 34 Russell, Bill, 97 Salky, Steve, 118 Scalia, Antonin, 22, 196 Scalley, Thomas, 50 Sentencing Guidelines. See United States Federal Sentencing Guidelines Shaffer, Bob, 215 Shapiro, David, 31, 58 Shapiro, Robert “Bob”, 157, 159 Sharp, Jim, 59 Shea & Gardner, 44, 224 Shearin, Plummer, 30 Shechtman, Paul, 197 Sheppard, Sam, 77, 162 Sher & Harris, 37 Sher, Bob, 37 Shorter, John, 62 Siegler, Ira, 87 Silbert, Earl, 196 Simone, Bobby, 100 sister Schnader Harrison Segal & Lewis, LLP, 8 Sixth Amendment, 147 Skilling, Jeff, 173 Smith, Charles E., 6 Smith, Hugh, 75 Smith, John Lewis, 91 Smith, Mike, 118 A-8 Smith, Robert, 6 Sottile, Jim, 197 Spaeder, Roger, 1, 24, 90-93, 118, 136, 138, 231 Spire, Joan, 88 Srinivasan, Sri, 222 Stanford International Bank, 105 Stanford, Allen, 148 Stein, Jake, 227 Strauss-Kahn, Dominique, 125 Sullivan & Cromwell, 231, 233 Sullivan, Emmet, 168, 207-14 Sullivan, Harold, 59, 61, 62 Surrey, Karasik, Gould & Greene, 45 Surrey, Stan, 35 Synanon, 143 Tamm, Edward, 57 Tantillo case, 95, 195 Tantillo, Enrico “Harry”, 61-62 Tatum, Charles, 55 Taylor, Bill, 86, 92, 94, 113, 118, 138 Teledyne, 152, 153, 154 Terry, John, 53 The Fund for Animals, 168, 200, 206-8, 210-12, 214-15, 217 The Humane Society, 168, 200, 206, 211, 214 The Paper Chase, 32, 33 Thevis, Michael, 86 Thomas H. Lee Partners, 182 Titus, Harold, 49 Tjoflat, Gerald Bard, 75-76, 164 Tomback, Andy, 197 Toomey, Dan, 196 Truong, David, 143 Turner case, 164, 165 Turner, Glenn, 74-75, 78-79, 84-85, 90, 113, 126, 147, 164 United Mine Workers, 74 United States Attorney’s Office, 44, 73, 75, 98, 100-02, 104, 107-08, 114, 124, 132, 137, 152, A-9 163, 183, 185, 195-96, 222 Appellate Section, 48-49, 52-53, 58-61, 70 Bress, David, 43 Misdemeanor prosecutions, 49 United States District Court felony trial practice, 49 United States Court of Appeals for the District of Columbia Circuit, 48, 56, 57, 60, 92 United States Court of Appeals for the Fifth Circuit, 159, 164 United States Court of Appeals for Veterans Claims, 48 United States District Court for the District of Columbia, 48, 90 United States District Court for the Eastern District of Pennsylvania, 98 United States District Court for the Northern District of Florida, 157, 158 United States District Court for the Southern District of New York, 197, 222 United States Federal Sentencing Guidelines, 96, 105, 106, 154 United States v. James McCord case, 92 Washington, D.C. riots, 69 Washington Post, 55, 56, 138, 139, 141 Washington Redskins, 124 Watergate, 90, 91 Watkins, Bob, 44 Watts, Fred, 50, 54 Wayne, John, 170 Weigand, Richard, 133 Weinberg, Robert (Bob), 55-57 Weinberg, Sandy, 113, 171, 187 White, Mary Jo, 22, 196 Wieseman, Mary, 68 Wieseman, Ted, 62, 63, 66, 68 Willardson, Greg, 133 Williams & Connolly, 44, 55, 142 Williams, Edwin A., 71 Work, Chuck, 50, 72 Wright, J. Skelly, 57, 58 Yablonski, Both & Edelman, 74 Yablonski, Chip, 74 Younger, Irving, 83, 106, 168 Zola, Mike, 37 Zuckerman, Abraham (father) Chanin Construction Company, 2 civil engineer, 2 National Airport hangars, 3 San Juan, Puerto Rico, Post Office, 3 Sampson New York Naval Base, 4 A-10 Zuckerman, Anna (grandmother), 5 Zuckerman, Barnett (grandfather), 5 Zuckerman, Irene d’Ancona (wife), 1, 2, 8, 14, 19, 26, 28, 37, 40, 42, 68, 69, 70-71, 76, 80, 94, 126 occupational therapy, 37 Tufts University, 19 Washington Hospital Center, 69 Zuckerman, Jane (sister), 8 Zuckerman, Roger E. – Personal birth, 4 Harvard Law School, 9 Socratic method, 33, 35 Kay Jewelry Store, 69 Kiwanis Key Club, 30 Montgomery Blair High School, 7 Montgomery Hills Junior High School, 7 Parkside Elementary School, 7 Silver Spring, MD, 6 Stanton Elementary School, 5 ulcerative colitis, 13, 26, 31 biofeedback response, 28 University of Wisconsin, 9, 24 Alpha Epsilon Pi, 22 Campus Political Party chairman, 12 political science and philosophy, 30 Student Government, 12 Zuckerman, Roger – Professional ABC Legal Process, 25 Casner & Leach., 41 District of Columbia Court of General Sessions, 47, 48, 49, 50, 51, 52, 54, 60, 61, 62, 70 Foley, Sammond & Lardner, 38 Hospital Corporation of America (Columbia HCA), 171 Kellogg, Williams, Lyons & Zuckerman, 71-72 interpersonal dynamics in the law, 167 process server in San Francisco, 24 Sher & Harris, 37 The Fund for Animals, 168, 200, 206-8, 210-12, 214-15, 217 The Humane Society, 168, 200, 206, 211, 214 United States Attorney’s Office, 14, 20-22, 26, 33, 43, 44-45, 46-49, 60-63, 67, 69-71, A-11 75, 95, 98, 105, 113, 115, 186-87, 195 Appellate Section, 48-49, 52, 58, 59, 61, 70 Acting Chief, 53 General Sessions, 54-55 Superior Performance Award, 68 Zuckerman Spaeder, 90, 231 Baltimore office, 115-16, 215 growth of firm, 148-49, 150 management, 198, 225-28, 233 managerial qualities, 121-122 Miami office, 114, 116, 117-18, 149-50, 152 New York office, 116, 197-198 rainmaker qualities, 117-118 sharing duties, 138 Tampa office, 116 B-1 Oral History of Roger E. Zuckerman Table of Cases Table of cases discussed, in which Mr. Zuckerman or Zuckerman Spaeder was counsel in some stage of the matter. Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 677 F. Supp. 2d 55 (D. D.C. 2009), 211 Estate of McPherson ex rel. Liebreich v. Church of Scientology Flag Serv. Org. Inc., 815 So.2d 678 (Fla. Dist. Ct. App. 2002), 145 Feld Entm’t, Inc. v. A.S.P.C.A., 523 F. Supp. 2d 1 (D. D.C. 2007), 213 Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969), 55-57 Florida v. Church of Scientology Flag Serv. Org. Inc., No. CRC98-20377-CFANO (Fla. Cir. Ct. Mar. 2, 2000), 145 Janvey v. Rodriguez-Tolentino, No. 10-CV-2290-N (N.D. Tex. May 6, 2016), 105 Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571 (E.D.N.Y. 2005), 142-43 McCord v. Bailey, 636 F. 2d 606 (D.C. Cir. 1980), 92 Fund for Animals, Inc. v. Nat’l Union Fire Ins. Co., 130 A.3d 1155 (Md. Ct. Spec. App. 2016), 214-17 People v. Firestone, 111 A.D.2d 696 (N.Y. App. Div. 1985), 126-27 People v. Simpson, No. BA097211 (L.A. Super. Ct. Sept. 24, 1994), 157 Thomas v. United Mine Workers of America, 422 F. Supp. 1111 (D. D.C. 1976), 74 United States v. Alton Box Board Company, No. 76 CR 199 (N.D. Ill. 1976) (represented William S. Hart), 92-93 United States v. Cardoen, 898 F. Supp. 1563 (S.D. Fla. 1995), 141-52 United States v. Duboc, No. 94-cr-01009-MP (N.D. Fla. Sept. 13, 2011), 104, 157-59, 162, 170 United States v. Grant, S4 05 CR. 1192, 2008 WL 4579992, at *1 (S.D.N.Y. Oct. 14, 2008), 106, 177, 185, 187, 190, 193, 200 United States v. Hearst, 412 F. Supp. 877 (N.D. Cal. 1976), 77, 80, 89 United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), 133 B-2 United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) (represented Ronald Louis Humphrey), 143 United States v. James, 494 F.2d 1007 (D.C. Cir. 1974) (Tantillo case), 95, 105 United States v. McCord, 509 F.2d 334 (D.C. Cir. 1974), 92 United States v. Skilling, No. H-04-025SS (S.D. Tex. Oct. 25, 2006), 173 United States v. Stanford, 769 F. Supp. 2d 1083 (S.D. Tex. 2011), 105 United States v. Koscot Interplanetary, Inc., No. 73-71-Orl-Cr (M.D. Fla. May 30, 1974), 74-75 United States v. Knisley, No. 81-00243 (E.D. Pa. Mar. 15, 1982), 98-99 Other cases and statutes cited Berger v. New York, 388 U.S. 41 (1967), 65 Commonwealth v. Albert H. DeSalvo, 353 Mass. 476 (1968), 77 Coppolino v. State, 223 So. 2d 68 (Fla. Dist. Ct. App. 1968), 77 Katz v. United States, 389 U.S. 347 (1967), 65 State v. Sheppard, 128 N.E.2d 504 (Ohio Ct. App. 1955), 77 United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), 76 United States v. Capt. Ernest L. Medina, 43 CMR 243 (March 9, 1971), 77 United States v. Shuford, 454 F.2d 772 (4th Cir. 1971) 42 U.S.C. § 1985 (1978), 76 Endangered Species Act of 1973, 16 U.S.C. § 1540(g) (2007), 207-10, 216 Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, 96, 231 Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3711 (1974), 60 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (2009), 86, 168, 210-16 Arms Export Control Act of 1976, 22 U.S.C. § 2751 (995), 152 Biographical Sketch Roger E. Zuckerman Roger Zuckerman was born November 3, 1942 at Doctors’ Hospital, then located at 18th & Eye Streets in the District of Columbia. He was raised in Naylor Gardens in Southeast Washington and for many years attended the Stanton Elementary School. In 1960, he graduated from Montgomery Blair High School in Silver Spring, Maryland. He attended the University of Wisconsin and graduated in 1964. Thereafter, he graduated from Harvard Law School in 1967. Immediately after his graduation from law school, he went to work for the United States Attorney’s Office for the District of Columbia. He became an Assistant United States Attorney in 1968 and served until the summer of 1972. While there, he was acting chief of the Appellate Section and thereafter was active in the prosecution of the Tantillo series of cases, the first significant wire interception prosecutions in the United States under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and still the largest narcotics conspiracy prosecution ever in the District of Columbia. In 1974, Roger began his firm. He was joined by Roger Spaeder in 1976 and Bill Taylor shortly thereafter. The firm, now known as Zuckerman Spaeder, has existed for over forty years and has approximately one hundred lawyers, with its main office in the District of Columbia and others in New York, Baltimore, and Tampa. It is a litigation firm and has been involved in many of the most notable cases nationally over the past four decades. Roger is a Fellow of the American College of Trial Lawyers. For the last eight years, he has served as Chairman of the Flannery Lecture Committee, a group of former Assistant United States Attorneys sponsoring a lecture series each year devoted to the administration of justice in the District of Columbia in memory of former United States Attorney and United States District Judge Thomas A. Flannery. Roger is married to Irene d’Ancona Zuckerman. They have two daughters, Laura and Nina. Both are lawyers, Laura having attended Georgetown University Law School and Nina New York University Law School. Laura is married to Glen Donath, Nina is married to Adam Isaacson. They live in suburban Maryland near Roger and Irene and have added five grandchildren to the family: Annie, Alec, Owen, Evan, and Nate. D-1 AFTERWORD Having read through the two hundred or so pages chronicling my life and legal adventures a couple of times now, and having tried to give five or six decades of life some perspective, I have decided to add the following postscript. Nothing that I have done in my legal career would have been possible without the guidance, commitment and contributions of two people. First, of course, there is my wife Irene. She gave me free rein to do whatever I thought was necessary to develop my practice and our firm, enduring a nine-month trial that I had in Florida, my long trials in New York, and other assorted travels. I suspect that over the course of my career, I was away from home between one and two years certainly. She willingly endured that, running our household, raising our children, and otherwise taking care of all of us without complaint. She was an invaluable sounding board, knowing when to offer her thoughts and when to keep them to herself. She has been my biggest cheerleader, my best friend, and my most significant partner. The second person to whom I owe whatever the foregoing pages reveal in the way of accomplishment is my friend, assistant, sometimes colleague, and often boss Judy Elam. I was fortunate to encounter a few people very early in my career who were instrumental in the success of the firm and indeed my own success. Roger Spaeder and Bill Taylor are certainly two. Most significant, perhaps, is Judy. Judy and I joined forces in late 1975. She had been in Washington, D.C. for perhaps a year, coming here from her hometown in Missouri. As a legal secretary, she was about as green as I was as a lawyer in private practice. We taught the ropes to one another and leaned very heavily on each other. Over the years, we have had great victories and a few misadventures. No person in the life of the firm has been more devoted to me or my success or the success of the firm than Judy. Her memory of people, events, pleadings and other relevant circumstances going back decades is better than mine by far and indeed better than any computer. Her judgment is impeccable. Her discretion is equally impeccable. For the most part, she operates at least at a paralegal level. I suspect she could actually pass the bar. I would not be where I am, and the firm would not be where it is, without this extraordinary person. Judy, as you are typing this, I hope you understand that. D-2 POSTSCRIPT I have mentioned earlier in this oral history the importance of my years in the United States Attorney’s Office, particularly those under the leadership of United States Attorney Tom Flannery. Those years, and particularly my time with Tom, helped immensely to shape me. I hope I have made this point with clarity. In the event I have not, I include with this oral history a reminiscence that I delivered at the 50th anniversary reunion of the Flannery era Assistant United States Attorneys, just held at the United States Courthouse on April 8 and 9, 2016. It is entitled “The Noon Train.” It follows. THE NOON TRAIN He stood right over there, almost forty-six years ago. Tall, quiet to the point of reserve, behind the lectern, as I recall, facing twelve jurors and six alternates. Early October of 1970, forty-six years ago. Behind us sat Judge Aubrey Robinson, presiding. In the well of the court were seven defendants. All were charged with serious drug offenses. All would be convicted. The trial lasted about two months. All of the defendants received lengthy jail sentences, many without parole. It was Tom Flannery’s last case, his last ride as a trial lawyer and a prosecutor. October 1970. Two years later he would be a judge. Those who saw him that October morning as he presented his opening statement would never forget him. He spoke quietly, calmly, commandingly, presenting himself with great decency and strength, but also with appropriate modesty. D-3 An iconic, almost mythic combination. That certainly is how he struck me on that October morning. And that was not the first time I had been moved by the power of his presence. The first time was about a year or so earlier. It was as impactful as anything I had experienced to that time in my young life. I shared it with many of you (and indeed with Tom) twenty or twentyfive years ago. This is a retelling. Every generation has its iconic figures. People who embody a set of idealized values in ways so powerful and so profound that they resonate broadly across the cultural landscape. For ten- or fifteen-year-old kids in the 1950s (of which I was one) one of those iconic figures was Will Kane. Now few of you will remember him today as Will Kane, or Marshal Will Kane. Many of you may remember him as Gary Cooper, the sheriff who met the noon train and the Miller Gang on the Silver Screen in High Noon – the movie that transfixed me and a generation of young, impressionable kids, coming of age in the 1950s. Frank Miller, whom Gary Cooper had sent to prison years earlier, had inexplicably been released. He was arriving in Cooper’s town on the noon train, there to meet up with his old gang and exact revenge on Cooper. The movie, done in real time, begins at about 10:30 a.m. For the next hour the Marshall canvasses the town for help in fighting off the Miller gang. The feckless townspeople, having initially been supportive, fade away at crunch time. Gary Cooper is left alone in a cold, fickle world, there to do his duty at High Noon. And in a way that powerfully illustrates to a young boy the real human experience that we confront in times of great difficulty, Gary Cooper responded. He showed despair at having to D-4 confront life’s greatest challenge alone. In one scene he wept. He obviously felt fear. Beneath these very human feelings, he found within himself a conviction to stand, to fight, to do the right thing regardless of cost. His conviction was steely, firm. It was quiet, not flashy, and came from the core of his soul, his being. You learned as a young boy that honor and integrity matter. Doing the right thing matters. Even if you are alone. Even if you are afraid. Well, that message, embodied in that mythic figure, profoundly affected a generation of young people who came of age in the 1950’s and 1960’s. It affected me. So there I was, perhaps fifteen years later, a greenhorn, a tenderfoot, in the United States Attorney’s Office, when I encountered the same mythic figure in the flesh. It was 1969. I had been in the Office for a couple of years. I had been hired by David Bress. I was still as green as could be, quite unformed, as many of us were. We looked for guideposts, people on whom we could model our behavior, our way of dealing with legal and human problems and dealing with life. And here in the flesh in 1969 was this same mythic figure – tall, rangy, quiet, commanding, modest – wonderful human qualities that overlay a core that was as tough as nails, firm, unyielding and uncommon in its rectitude and commitment to the rule of law and to doing the right thing. All that was missing was the horse and the hat. This time, though, it wasn’t Will Kane, it wasn’t Gary Cooper. It was Tom Flannery. D-5 Tom Flannery had come back to the Office to run it. He had served there between about 1950 and 1960 as a distinguished Assistant, having come from private practice in the late 40’s and the service as an air force officer in Europe before that during World War II. By 1969, he had obviously seen a great deal of the world. And he came to lead, really to revitalize, an office that probably had between 50 and 60 assistants – some extraordinary experienced prosecutors and a huge number of wet, young, inexperienced pups. He became a leader of unparalleled strength and vision. From an administrative and professional perspective, Tom Flannery developed and molded us and our office into a much more effective, contemporary prosecution force. The prosecution of white collar crime and organized crime; the increased jurisdiction of the local courts all developed during his tenure. The building blocks of the office were put in place – through Earl and Carl Rauh – for the initial prosecution of Watergate and the maturation of the office into the 1970’s and beyond. It was a period of ferment and renaissance that left its mark on the structure and effectiveness of the U.S. Attorney’s Office for years and indeed for decades to come. But the mark that Tom Flannery left is deeper than just that. The mark he left may be found, and found to this day, in the hearts and souls of the young men and women whose lives he touched and who were moved by the extraordinary qualities that he possessed. Those qualities – exhibited by a tall, gentle man who rode into our lives and was our leader for a few years in our relative youth – have served many of us as guideposts for the past fifty years. For it’s really true that the noon train comes to all of us at some point in our lives. Understanding how to respond, how to do the right thing, understanding what it is expected of us as lawyers and human beings is one of the profound insights of life. D-6 Well, the noon train arrived here on that October morning in 1970. It wasn’t the Miller Gang, but an outfit – in modern parlance a conspiracy – just as rough. For a time, the judge was under police protection. Various members of the Office received police protection. It was a serious case, with upwards ultimately of 50 convicted conspirators, and jail time that probably exceeded 500 years meted out to those who were convicted. Every conviction was affirmed by the Court of Appeals. It took Tom a bit longer than Gary Cooper to mete out the justice that was done. Thankfully, he had a bit more help than Marshal Kane did. But the rectitude, the commitment, the decency, the modesty, the grace – the mythic figure was exactly the same. And for me, at least, in a personal sense it will ever be thus. Whenever I enter this courtroom, I see that figure standing before the jury box on that October morning in 1970. And I give thanks to whatever providence there is that gave us Tom and our time with him and with one another. Tom passed away in 2007. At that the time of death, he had served as a United States District Judge for thirty-four years. Many of us got together after he died and talked about what might be an appropriate memorial. Our dear friend and colleague Roger Adelman came up with it. Roger suggested a lecture series. We took that suggestion and developed and implemented the Thomas A. Flannery Lecture on the Administration of Justice, to be given once a year. Appropriately, it is given in this courtroom from Tom’s old lectern. Additionally, and also appropriately, it occurs in the fall of the year, the season when Tom met the noon train here in October 1970. D-7 Under the direction and tutelage of Paul Friedman and Royce Lamberth, we have had a wonderful collection of speakers. Royce, as Chief Judge, was our first speaker in 2009. There followed the late Justice Antonin Scalia in 2010, Earl in 2011, former Senator George Mitchell in 2012, SEC Chair Mary Jo White in 2013, and former director of the FBI Bob Mueller in 2014. Our 2015 speaker was former Attorney General Eric Holder. In addition, we have had shorter presentations from leaders of the local bar, including U.S. Attorney Ron Machen, former District of Columbia Attorney General Irv Nathan, District of Columbia Attorney General Karl Racine, and others. We have often had overflow attendance in these presentations, and I estimate the aggregate number of attendees who have seen our Flannery lectures over the years is in the range of 2,500 to 3,000. What is particularly rewarding is that most of the speakers have taken the time to review Tom’s life and to speak a few words about him. His daughter, Irene Flannery, and his son, Tom, Jr., attend these lectures. Irene herself has spoken at a couple of them. So, once a year in the fall, Tom and his memory get a lot of recognition in this very courtroom and, if only for a brief hour or so, we are all here with him once more. Awaiting, yet again, the arrival of the Noon Train.