107 ORAL HISTORY OF JOHN ALDOCK Fourth Interview May 11, 2010 This interview is being conducted on behalf of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewee is John Aldock, and the interviewer is Judy Feigin. The interview is taking place in John’s office in Washington, DC, on May 11, 2010. This is the fourth interview. Ms. Feigin: Good afternoon. Mr. Aldock: Good afternoon. Ms. Feigin: When we left, you had finished a big gold case with Judge Gesell. I know you were involved in the Rules Committee with Judge Gesell. Was that a result of this case or how did that come about? Mr. Aldock: I must say I can’t remember the order. I can’t recall whether the Rules Committee preceded the gold bug case or not, but it certainly was very early in my private practice. There never had been a Rules Committee of outside lawyers for the US District Court for DC, and Judge Gesell was very interested in having one. Fairly early, I would say 1973, Judge Gesell appointed a Rules Committee with Jake Stein as the Chair. The court’s criteria for the other members was that we had to have been DC District Court law clerks. The committee was Bill Jeffress, who had clerked for Gesell, then Justice Stewart, and is now at Baker Botts; Bob Higgins, who had clerked for Judge Jones and is presently at Dickstein; and I, who had clerked for Youngdahl. We were the committee with Jake as the Chair and were tasked to rework the rules from scratch, because the court had some rules and many orders, some of which were published and some that were not. It was a mess. It was a huge project because we rewrote and 108 reorganized all of the rules, criminal and civil, to make sure they were consistent with the Federal Rules. We worked with the clerk’s office; the Clerk of the Court at that time was Jim Davey, and he was an active participant with us. It probably took us a year and a half. When Jake stepped down, I was appointed Chair. Bob Higgins and Bill Jeffress have departed, and now there are five other lawyers on the committee. I am the only link to the original group. I do not recall exactly when Jake resigned, but I probably have served as Chair for twenty years. We meet with the court several times a year. Yesterday, our committee lunched with Judge Kennedy, Chief Judge Lamberth, and Judge Roberts, along with the new Clerk of the Court. We discuss issues before the court that may or may not memorialize themselves as rules. We also get submissions from the bar which the court asks us to evaluate. We try not to make changes. Jake’s philosophy, and one that I have followed, is that change generally is a bad idea unless what we have is not working. The bar wants the rules to be predictable. We can tinker with the rules but, if we only marginally improve them, we should not make the change. There should be some problem with the rule or some legal development that requires a change. It has been a productive committee over the years. Some things have been controversial, others not. It’s all confidential so I can’t talk about any of it. But there have been some interesting moments when the press was involved. I have been on the committee for more than 30 years, so I have become the institutional history. Ms. Feigin: Can you share with us if the press was hounding you? Were there articles? 109 Mr. Aldock: We stand between the court and the press because the judges don’t like to talk to the press. They don’t think it’s appropriate in most cases. If there are questions to be asked and answered, oftentimes the answer is “no comment,” but sometimes I talk to the press on background to explain why some allegation is untrue or based on a misunderstanding of the facts. On occasion, the press will seize on something that has a bad appearance, but they’ve got the facts and context wrong, and it is not the problem they think it is. Ms. Feigin: So you’ve been on the Rules Committee continually for 37 years? Mr. Aldock: Yes. It’s embarrassing. Ms. Feigin: No. [Laughter] Mr. Aldock: [Laughter] It’s been a very long time. I will step down at 70, if not before. I serve at the pleasure of the court. The Rules Committee work was a part of my relationship with Judge Gesell. I think the securities case we discussed followed my appointment to the Rules Committee. The SEC case, the one with the gold bugs, was I think during 1976. I know we redid the rules in 1973. But there were other cases before Judge Gesell in the 1970s. There were several White House cases, by which I mean somebody tries to break through the White House gates. In all of my cases, the person was mentally ill and not really a threat. In today’s terrorism climate, these people likely would be shot on the spot and not prosecuted. The one I remember best involved a man dressed as an Arab who somehow got through the gates. If the 110 president had been in town, the guards would not have permitted him on the grounds. Since the president was not there, the guards surrounded the intruder, who had wires coming out of his clothes. When the guards went to diffuse the bomb, they quickly determined that the wires weren’t connected to anything, and the intruder wasn’t an Arab; he was just a nut. Can you imagine how that case would turn out today? The prosecutor charged the man with destruction of government property, i.e., the gate. He was found incompetent to stand trial and sent to St. Elizabeth’s Hospital. Ms. Feigin: What was your role in it? Mr. Aldock: Occasionally, in some of those cases, I represented the defendant. But on this one, I didn’t. The issue was the old DC doctrine whereby the court had the power to appoint a lawyer to raise an insanity defense over the objections of both the defendant and the prosecutor. Usually, I was the court-appointed attorney. A pernicious doctrine, it came up in the Frendak case, which is worth mentioning. In 1974 Paula Frendak murdered Willard Titlow, a co-employee at Congressional Quarterly in DC, seemingly for no motive whatsoever. Titlow didn’t know Frendak. He had never met her, even though she worked elsewhere in the office. After the murder, Frendak was arrested in Abu Dhabi, brought back to the United States, and charged with first degree murder. Ms. Frendak announced her defense was that the CIA and the judge on the Superior Court had plotted to entrap her. The judge had her examined by psychiatrists. The psychiatrists found that while competent to stand trial, Ms. Frendak was mentally 111 ill. Ms. Frendak’s view was that she was not sick and would not raise a mental illness defense. Judge Ugast of the Superior Court was confronted with the wellintended but pernicious doctrine that had spawned from the DC Circuit’s decision in Whalem v. United States, 346 F.2d. 812 (D.C. Cir. en banc). There the court held that the trial court has the discretion to raise an insanity defense over the objection of a defendant found competent to stand trial and that appointment of Special Counsel was required to explore the issue. The result of Whalem was that there were three lawyers in the courtroom. The prosecutor, the defense, and what I would call the judge’s lawyer, because it was hard to say whom exactly the appointed lawyer represented. So I took the appointment in part because I respected Judge Ugast, and also because I’m not in the habit of turning down requests from judges. In addition, I saw this as an opportunity to explore the possibility of convincing the DC Courts not to follow Whalem, which I considered inconsistent with more recent Supreme Court authority. I also thought Whalem could lead to bad consequences in some cases, particularly when the defendant was charged with a misdemeanor and the insanity defense was raised over the defendant’s objection. The result in such a case would be that the defendant could be committed to a mental hospital for life for a 6-month misdemeanor. That certainly wasn’t the intent of the Whalem court, but it could have been the result and, I think, was the result in some cases. This case came to trial with three lawyers: the prosecutor, the defense attorney, and me. The facts made the case somewhat tricky. First, Ms. Frendak was apprehended by a CIA agent in Abu Dhabi. Second, the first psychiatrist 112 who examined her on a court appointment also was an outside psychiatrist for the CIA. I could see a jury possibly buying Ms. Frendak’s psychotic version of the facts, despite an otherwise airtight case on the murder. On the other hand, my view always had been that if I represented the judge, and the prosecutor and the defense were at the other table, the jury was siding with me as long as they didn’t dislike the judge. Nobody disliked Judge Ugast. Eventually, Miss Frendak took the stand, and that was the end of the case. Her story got even more bizarre and, by the time she finished testifying, the jury saw that she was mentally ill. Ms. Frendak’s view was that she had a love affair with the victim who was stalking her, despite testimony that the victim never had met her. In any event, Ms. Frendak was found not guilty by reason of insanity. When the case went up on appeal, with the permission of Judge Ugast, I was appointed amicus and took the position that the Whalem doctrine was wrong and that the court should at least prospectively change the law. The prison system has resources to treat mental illness, whether or not an insanity defense is raised. The court, in an opinion in 1979 by Judge Ferren of the DC Court of Appeals, declined to follow Whalem prospectively. I believe that the DC Circuit subsequently followed the DC Court of Appeals, which is not the usual progression. Subsequently, Ms. Frendak somehow escaped from jail. As a result, Judge Ugast was under armed guard for a considerable period of time, because there had been death threats that Ms. Frendak had made to him and to me over this period. The death threats never bothered me. I had been threatened by defendants as a prosecutor. It was not unusual that, after sentencing, a defendant 113 would turn to the prosecutor and say, “I’ll get you!” But then I would pass the defendant in the courthouse, and he/she never recognized me. So I didn’t put a lot of stock in the threats. Frendak, however, was different, and Judge Ugast was concerned. I don’t think Frendak ever was caught. I saw the judge many years later, and he hadn’t heard anything either. Ms. Feigin: He gave up the guard? Mr. Aldock: He’s now retired and gave up the guard many years ago. Another interaction with Judge Gesell was a dispute for dissolution between partners in a large real estate venture. As I recall, Gesell said, “The partners of the joint venture need a divorce and I am not a divorce lawyer.” At some point Judge Gesell decided he’d had it with the case, and he appointed me as the receiver for all the assets and said, “Liquidate them.” As the receiver, I was selling property all over town. At the outset, I knew very little about this field but soon learned a lot. There was one episode that was both amusing and a bit scary. We couldn’t seem to get the permits from the fire department to sell a particular building. The fire inspector said we had to replace the bars on the windows, so we did; then he said the bars were the wrong thickness, and we replaced them again. After the third time, I had an instinct that this was not going well, so I called in the inspector. I said, “You understand that I’m a courtappointed receiver? If this is a shakedown for a payment, it is not a good case for you. You should pick a different one.” [Laughter] The inspector said, “You will 114 get your permit tomorrow.” [Laughter] That was an insight into DC government at its worst. Ms. Feigin: Are we talking in the 1970s? Mr. Aldock: In the 1970s. The next big case I had before Judge Gesell was the Leatherman case, which was another thwarted Supreme Court argument. This was a case where Mr. Leatherman had been caught robbing the Watergate branch of what was then the Riggs Bank, now PNC. It was a very sophisticated robbery. Leatherman pretended to be a bank examiner, talked his way into the bank, and got into the vault. He had to be a great con man. Leatherman fled and disappeared. He had a getaway car and had rented a helicopter. The police never would have solved this crime, but Leatherman left his passport in the rented car, so he was arrested. For reasons I could not figure out, Judge Gesell found this man “not guilty by reason of insanity” in a nonjury trial. In a case like this with such pre-planning, I couldn’t conceive of how that could have happened. Roger Adelman was the prosecutor, and he couldn’t understand it either. To us, the only explanation was that this somehow resulted from Judge Gesell’s partiality to doctors. Gesell’s father was a world-famous doctor, and he deferred to their expertise, apparently finding Leatherman’s court-appointed psychiatrist more persuasive than those at St. Elizabeth’s, who testified for the US Government. Judge Gesell appointed me to represent Leatherman after he was found not guilty by reason of insanity and committed to the highest security ward in St. Elizabeth’s Hospital. The St. Elizabeth’s doctors who testified that Leatherman’s 115 crime was not the product of any mental illness were most distressed by Judge Gesell’s ruling. At some point before my appointment, the hospital doctors announced their intention to treat Leatherman with controversial antipsychotic drugs. Leatherman objected and, through me, took the position that, since he had been held competent to stand trial, he was competent to reject the drugs. Indeed, my position was that to forcibly subject him to potentially dangerous drug therapy violated Leatherman’s constitutional rights. Judge Gesell emphatically rejected my position. At one point, I said, “If you have no respect for my position, why did you appoint me to argue it?” Then Judge Gesell toned down, although he did not change his position. Interestingly, St. Elizabeth’s general counsel at that time was now Judge Colleen Kollar-Kotelly. I previously had known Colleen through her husband John, who served in the US Attorney’s Office with me, but got to know Colleen much better during this case. (She is a friend, and I have been appointed by her to interesting pro bono matters and even represented her in a frivolous case.) I took an interlocutory appeal from Judge Gesell’s ruling which was accepted by the DC Circuit. My associate on this matter was a brilliant lawyer named Bruce Swartz, a former Supreme Court Clerk and one of Shea & Gardner’s very best. I let Bruce argue the appeal, which he did extremely well. Bruce is now the head of the USG’s International Crimes Section which he has headed ably in both Republican and Democratic administrations. 116 At the end of the DC Circuit argument, Bruce and I concluded that we would lose 2:1 but, given the composition of the court, we would have an excellent chance that the court would grant rehearing en banc. When I met with Leatherman to report on the argument, he made a point of “reminding me” that he was in St. Elizabeth’s Hospital “as a volunteer.” I frankly didn’t think much about the remark until a few weeks later when I was informed that Leatherman had escaped from the highest security section of the hospital. I then knew what he meant by being a volunteer. At that point, the Court of Appeals dismissed Leatherman’s appeal as moot under an old doctrine that an escapee waives any pending appeal. I tried to argue that this doctrine surely should not be applied to an escapee from a mental hospital, but the court had no interest in the argument. There was a split in the circuits on the issue of whether an otherwise competent defendant could reject the advice of the mental hospital’s doctors to inject him with potentially dangerous antipsychotic drugs. The Supreme Court ultimately upheld that position. Thus, I once again got close but missed the opportunity to argue a case before the US Supreme Court. Many years later I was informed that Leatherman had been killed in an armed bank robbery. I never looked into it but always have had my doubts. Leatherman was a con man, but I doubt he ever was armed. 117 Ms. Feigin: Before we get to another case, you said Judge Gesell was one of the giants in the law in your opinion. Do you want to tell us who else you put in the same category? Mr. Aldock: Judge Jones was a great judge. He had been Senator Mike Mansfield’s campaign manager in Montana. He was a former Notre Dame football coach. We just don’t find judges with these kinds of diverse backgrounds anymore. Jones evidenced no ideology on the bench. We find a lot of ideology with judges these days, as with politicians and with the electorate. Jones called it straight on the facts and law presented. Judge Jones had a great temperament. Judge McGowan on the DC Circuit also approached his role without any liberal/conservative, activist/non-activist bias. McGowan had been Adlai Stevenson’s campaign manager in one of his presidential runs against Eisenhower. McGowan was a terrific judge and, I think, better than Bazelon and Wright, who were ideological on the left, and Burger (later Chief Justice), Robb, and some of the others who were ideological on the right. Judge Leventhal was another giant on the DC Circuit who came without any ideological baggage. Leventhal may have been the smartest judge on that court. Both McGowan and Leventhal had the right temperament and superb judgment. Aubrey Robinson was an excellent chief judge of the US District Court. Sometimes temperament was not his strong suit – he could get awfully aggravated at lawyers – but Robinson had good judgment. A chief judge of a District Court has no powers other than the power of persuasion. Robinson was probably the 118 first chief judge who really ran the court in a way that got it organized to work efficiently. Judge Bryant, whom we’ve discussed, was a great judge and wonderful man. He had argued the Mallory case in the US Supreme Court and was the first African American Assistant US Attorney to argue in the US District Court and one of the first African American judges. Bryant was beloved by everyone. I appeared before Bryant maybe 30-40 times. I was assigned to him, in part, because the US Attorneys’ Office had lost so many cases there. Bryant was considered a pro-defense judge. If the prosecutor or the police made a mistake, he wasn’t going to stand for it. The US Attorneys’ Office wanted somebody who could cite case law to Bryant. If you had a case, Judge Bryant always would say, “Oh! You’ve got a case. I’m not lawless.” [Laughter] Bob Higgins, Roger Adelman, and I spent a lot of time with Bryant, and we rarely lost. Occasionally, it became difficult because Bryant would say, “I don’t know if I’m going to suppress that confession or not, but you don’t need it and should not use it.” Judge Bryant would talk us out of using certain questionable evidence on the grounds that, if we had any manhood at all or were a trial lawyer worth a damn, we would win without it. Half the time we would say, “All right, all right. I don’t need it.” And we would cross our fingers because it would not look good to have given up the confession and lost the case. In the 1960s and 1970s, not so much because we were great lawyers but because of the composition of the jury pool and the nature of society in the District, the prosecutor rarely lost. The usual jury mostly was composed of older 119 African Americans who lived in high-crime areas and were going to see to it that criminals were taken off the streets. At that time, DC had an interracial police department that was respected and effective. Before the sentencing guidelines that made it hard to plead, the US Attorney’s Office got a 50% plea rate and then won over 90% of the remaining cases. I don’t think I lost more than two felony cases during the time I was there, and they were cases I should have lost. They were husband/wife homicides where it’s either manslaughter or self-defense. Frankly, I didn’t even ask for a conviction in those cases. I put those cases to the jury, the jury decided, and I was okay with the result either way. Bryant was a giant. Subsequently, judges of both political persuasions and congressmen of both political parties supported naming the new DC courthouse as the William B. Bryant Annex. It had to be named an annex because the old courthouse was named after Judge Prettyman; changing the name would have raised issues. In the end, even the Prettyman family agreed to the William B. Bryant Annex. While called an annex, it is the nicer building and the main courthouse in the District of Columbia today. Ms. Feigin: Let’s go back. I think there’s a case in your early career that we should cover which involved you and Puerto Rico. Can you tell us about that? Mr. Aldock: I just had arrived at the firm when I got a call from a lawyer I knew who had been active in the Democratic Party and had something to do with the Credentials Committee for the Democratic Convention. He said, “We’ve got a credentials fight. We need a hearing examiner representing the Democratic National 120 Committee to handle ‘the trial.’ Can you go to Puerto Rico next week?” I said, “I’ve never been and that would be fun.” The allegation was that the then governor of Puerto Rico was running in the Democratic Party for reelection solely because a Democratic president just had been elected. Before that he arguably was a Republican. There was a challenge by the Puerto Rican Party usually affiliated with the Democratic party in the United States which argued that the governor was not a real Democrat and therefore should not be allowed to run. I discovered with a little research that in Puerto Rico political party labels have no meaning whatsoever. Citizens are either for commonwealth status, statehood, or independence, and those are the parties. Although the governor probably had changed his allegiance, nobody cares whether the candidate is a Democrat or a Republican. In those days it was unusual; maybe less so now. We see it occasionally on the mainland with Arlen Spector and others. I thought the assignment would be interesting, and it was. When I got off the airplane, there were a lot of people, both protesters and the press. At the hearing there were people all over the place. The trial was a big deal on the island. I was 26 years old and was going to take testimony. The Attorney General of Puerto Rico was representing one side, and somebody of equal stature was representing the other side. We had a court reporter, but otherwise it was just me and the parties. In the middle of the trial, someone handed me an envelope. It was a formal invitation from the governor of Puerto Rico to dinner at the palace. I had no doubt what to do with it. I went on the record to say, “The governor is inviting me to dinner at the palace. Of course, 121 since he is a party in this case, I will decline the invitation.” To my surprise, the other side said, “You can’t do that. To not go would be an affront to the people of Puerto Rico. You must go.” I repeated that the Attorney General was going to be there. But the other side said, “We know. Absolutely no problem. We waive all objections and insist that you go.” I thought about it. I don’t know whether I would have done so today, but I went. It was quite a dinner at the Fortaleza Palace. There were other people there, but it was clear to me that ingratiating themselves with the hearing examiner was exactly what this was about. [Laughter] They didn’t talk about the case, but they talked a lot about what nice people they were. It was fascinating. When I eventually closed the hearing, I felt I had to get off the island. I had to write an opinion but couldn’t do it there. One of my partners had a family house on St. Johns, so I flew there. I wrote my opinion, and then I returned. I declined to disqualify the governor on the ground that he was not a real Democrat. The Credentials Committee reversed my decision, or at least the grounds for it, in about five minutes. [Laughter] It was all politics. [Laughter] I don’t know what happened at the actual convention. My guess is that the issue was somehow compromised. It was a great experience for me. Ms. Feigin: You had a White House case which I think was pretty famous involving Hamilton Jordan. Was that around the same era? Mr. Aldock: Yes, it was during the Carter administration. Hamilton Jordan, the chief White House aide to Carter, and Jody Powell, Carter’s press secretary, were alleged to 122 have bought drugs at Studio 54, at the time a very famous hangout of the rich and famous. It still exists and is now a museum. Then, it was where entertainers and celebrities went to buy “recreational” drugs and hang out. Ms. Feigin: And that was in New York? Mr. Aldock: In New York City. The complaining witness was Roy Cohn from the Joe McCarthy days. The two owners were under indictment for tax and drug charges. With such complainants, the idea that we would start a case against the president’s top aides seemed distasteful, but there was a special prosecutor appointed, a former US Attorney in New York whose name escapes me now. Steve Pollak was retained by the White House to represent Jordan and Powell. Steve asked me to work on the case. The allegation was possession of marijuana. We eventually got an affidavit from the First Assistant US Attorney in DC, Carl Rauh, that the amount of marijuana alleged to have been bought, whether indeed it was or wasn’t, would not be prosecutable in the District of Columbia at that time. That ended the case. I came to have a high regard for Jody Powell; he subsequently started a successful public relations firm in DC. I had a much lesser regard for Hamilton Jordan who, I believe, was not up to his job. After the matter was dismissed, Jordan gave an interview, I think, in Newsweek. He said that the independent counsel statute was a bad law, because it allowed people like him to be financially ruined by virtue of the legal fees paid to defend himself. I agree with Jordan on his view of the law but, since he didn’t 123 pay us a cent, I don’t know how he was financially ruined. [Laughter] That was an embellishment that he added. Ms. Feigin: Was the president at all involved? Did you deal with him? Mr. Aldock: Not at all, although we spent a lot of time at the White House. Ms. Feigin: We’ve probably gone through the 1970s unless there’s anything else that happened during that era that you would like to tell us? Mr. Aldock: There were two more small matters that were important to me at the time. One was the Scarborough case, because it was probably the only case I have tried before a jury as a plaintiff’s lawyer for an individual. It was very satisfying. Scarborough was an electrical technician at the University of Maryland. He had been electrocuted and died trying to change wires in a box that was supposed to have been turned off but was hot. He had a new wife and small children. The University of Maryland said that they could not be sued as a result of state sovereign immunity. Scarborough had no insurance and no pension; he had nothing. We somehow beat the sovereign immunity defense. It was a technicality, but we pulled it off and were entitled to a trial. I tried it with Steve Hadley, my then partner who subsequently became the National Security Adviser for George W. Bush. I think it was probably Steve’s only trial, because he became a transactional lawyer at the firm. We tried the negligence case against the University, represented by the State Attorney General’s office, and won half a million dollars which was a lot of money in those days. Also, the wife had insignificant attorney’s fees since we took the case as a pro bono matter. I stayed 124 in touch with Mrs. Scarborough for some years until she remarried. If all cases were so deserving, I could have been a plaintiff’s lawyer but, of course, they are not. One other matter in the 1970s, fairly early in my career at the firm, involved a client, Newmont Mining. Newmont at that time mined copper and gold in the Southwest. Newmont had received an Equal Employment Opportunity Commission (EEOC) complaint because all the miners in the underground mine were men. The argument was that this was the result of discrimination. It was not an easy case. Despite having good reasons as to why there were no female miners, it was clear that the mine operators did not want women in the mine regardless. One senior manager thought it was a perfectly good defense that “everyone knows women in a mine are bad luck.” Ms. Feigin: What was your defense? Mr. Aldock: We argued that no women wanted the jobs, so the issue was could you test that? Two things happened during the case. One, there was a labor shortage in Arizona. The copper smelter, which is tough work too, started employing women to saw, hammer and perform nontraditional tasks. As a result, the company’s statistics began to look better. Again, I’m not sure that the motive was pure. Because there was a labor shortage, the company had no choice but to hire women, and they discovered, much to their surprise, that most of these women were terrific workers. As a result, I think the managers turned on the merits of the issue. 125 I still needed a way to persuade the EEOC on the underground mine issue. The female investigator from the EEOC passed out when I took her on a tour of the smelter. That, however, wasn’t enough. [Laughter] While she thought she was tough, she attributed the event to having a bad day. [Laughter] We eventually made a deal to the effect that the company would offer the mine jobs to every woman employed in the secretarial pool where most of the women worked. There were hundreds of women in secretarial positions but, of course, none of the women took jobs in the underground mine even though the pay was much higher. The smelter jobs were as high paying as the mine jobs, so we argued in favor of offering those jobs to the secretaries. The EEOC failed to recognize that the type of women who worked in the offices were unlikely candidates to sign up for the underground mine. Many indeed were wives of the miners. Also, we persuaded the EEOC that the company’s good record hiring women in nontraditional jobs in the smelter would undercut any discrimination claims. Ms. Feigin: Well, as the father of two women, there must be some satisfaction in — Mr. Aldock: Yes, my daughters would have approved. Ms. Feigin: [Laughter] Mr. Aldock: In the 1980s I did have the view – I wasn’t as conscious of it then as I am looking back – that I needed to change my practice every couple of years, because otherwise it would get boring. 126 I was looking for my next case to be in a new field. I had done white collar crime and securities so, when an antitrust case that involved a gas pipeline in Florida came to me, I thought I had found my next move. It was a great David and Goliath case. Hvide Shipping was the company that retained us. They had a tug operation at various ports in Florida and would be out of business if a gas pipeline was built across the state. Hvide was going to do whatever it could to oppose the proposed pipeline for gas and light petroleum products; very substantial financial interests supported the pipeline. The head of the tug company was very good at getting publicity and succeeded in raising all kinds of environmental objections. The major proponent of the pipeline was Transgulf, a big company represented by big name lawyers from Vinson & Elkins in Texas. Transgulf sued Hvide for violation of the antitrust laws, including restraint of trade. We decided to counterclaim for attempted monopolization of the gas market between Texas and Florida. Harry M. Reasoner of Vinson & Elkins was a heavy-hitter attorney in those days, and he put a lot of lawyers on the case. I worked with my partner, Jamie Kaplan, and one associate. We eventually beat them both legally and in the court of public opinion. At the end, Transgulf took a dismissal with prejudice if we agreed to dismiss our counterclaim. I thought this was a great victory, because Transgulf was trying to bully the tug company to make them back off. Transgulf’s complaint certainly was not meritorious; they hoped to force Hvide to drop out because it could not afford to fight. I felt the Transgulf lawsuit was an improper use of the courts to silence a political opponent. It didn’t work, so it was a satisfying victory. 127 Ms. Feigin: Did this turn you into an antitrust lawyer? Mr. Aldock: No, I don’t think I had another pure antitrust case. Ms. Feigin: Because this is a history for the DC courts, I wonder if you find a big difference in the practice of law, DC versus the rest of the country? This case was in Florida, and you obviously have done cases all over. Mr. Aldock: Actually, I’ve had very few cases in DC over the past 30 years. The Securities and Exchange Commission (SEC) doesn’t bring cases here by and large. It did bring the AIER case that I described earlier in this history but, generally, the SEC tends not to bring cases in DC. The SEC prefers to sue in New York and in other courts around the country. We didn’t have that much industry in DC, so that is also a reason why fewer cases were brought in DC. Even the political criminal cases were brought, where possible, in the Eastern District of Virginia, which was thought to have a more receptive jury pool and to be much more conservative on sentencing. The DC Circuit was considered a liberal court, and DC juries were considered by the United States Government (USG) to be unreliable. A bad rap, I would say. Certainly in the 1960s, 1970s, and early 1980s, DC juries were as conviction-prone as you could get. The jurors knew crime because they lived in crime areas. I think the juries became less reliable from the government’s standpoint in the 1990s. The police department wasn’t as good in the 1990s, and the officers sometimes didn’t deserve to be believed, which was not the case in the days when I was a prosecutor. My cases in DC have been few and far between. 128 I would say that the DC Superior Court is as good or better than most state courts in which I’ve appeared in terms of the quality of the judges. It wasn’t true in the Municipal Court before it was the Superior Court, but in the Superior Court the selection process results in good lawyers generally being appointed. And the US District Court generally gets very good jurists. I think the DC District Court also is one of the better federal courts. There are several premier federal courts in the country; the Southern District is another one. Ms. Feigin: Of New York? Mr. Aldock: New York, yes. But our DC local court system is underrated. If you appear in West Virginia or Mississippi or Madison County, Illinois, as I have, you come to appreciate the District of Columbia local courts. DC has a bad rap for antibusiness juries; I think it is not as bad as many other places. I had an interesting matter in DC in the 1980s. A movie was made about one of these cases, although my role is a cameo. It is rewarding to read about your matter in the newspapers or see it in the movies. That’s one of the satisfactions of practicing law in DC. I don’t think that happens as often elsewhere. There was a book (2003) and then a movie (2007) called Charlie Wilson’s War. Charlie Wilson was a Texas congressman who was being investigated for drug use. The key targets in a Capitol Hill investigation were Congressman Wilson, a hard-drinking bachelor notorious for his escapades, and Congressman Barry Goldwater, Jr., the son of presidential candidate Barry Goldwater. The 129 USG had a substantial basis for believing that these people were using cocaine. It was reported in the newspapers every day. The USG enpaneled a federal grand jury, and Charlie Wilson’s lawyer recommended me to Wilson’s then girlfriend who was going to be called before the grand jury. Ms. Feigin: Was this a grand jury here in DC? Mr. Aldock: Yes, here in DC. Stuart Pierson, Charlie Wilson’s lawyer, who is a fine lawyer and friend of mine, figures very prominently in the movie; I am not in the movie. My client, Elizabeth Wickersham, figures a little. Gorgeous and a smart lady with a college degree, Liz had been a former Miss Georgia. Liz would come to my office, and visiting me would be people I hadn’t seen in years. [Laughter] They would ask to borrow a pencil. [Laughter] My stature in the office reached new heights. The first scene in the movie shows Wilson and several women in a hot tub in Las Vegas. It didn’t happen quite that way. There only were two people in that hot tub, but that’s where the government thought they had Charlie Wilson and Liz Wickersham using cocaine. Miss Wickersham at one point asked me to discuss the law generally. She inquired if the government could prosecute crimes outside the United States. I told her, “No, they couldn’t do that.” She said, “That’s interesting.” At various points I said to Liz, “You know, the government is confident that there was drug use in Las Vegas and, if they can prove it and you say that it didn’t happen, you may have a potential problem: perjury. You are not a target here, so you should tell the truth.” Subsequently (and the movie had this 130 part correct), Liz told the grand jury that she absolutely saw Charlie Wilson use illegal drugs in the Bahamas but not in Las Vegas. So the USG had no jurisdiction, and it didn’t seem that Liz was not cooperating. At one point the prosecutors said to Liz, “You were having an affair with Charlie Wilson.” Liz replied, “Absolutely not,” and they thought this was an obvious lie. How could she deny this? Liz explained, “Charlie Wilson is incapable of having sex with a woman at night. He is drunk almost every evening.” She said, “It served my purpose to be seen with him, and it served his purpose to be seen with me. A romantic relationship would be ridiculous. Charlie is 30 years older than I am.” She subsequently told me stories of having an affair, reported in the newspapers, with Ted Turner. She was working as a broadcaster at the Turner Network in Atlanta. Liz had gone to Cuba with Ted to meet Fidel Castro. Liz thought Castro was charming, and I assume the feeling was mutual. When she returned to Atlanta, everybody at the TV station was referring to her as “the other woman,” so Liz got sweatshirts that said “The Other Woman,” and she wore them to the station. I last heard she had a TV show called “The Good News” on the Turner network in Atlanta, a magazine news show about interesting happenings. Liz was quite successful and, I think, now is married with children. Ms. Feigin: Your character may not have been portrayed in the movie, but did you have any advisory role or anything to do with that? 131 Mr. Aldock: Not in that movie. I did better in a later movie in the 1990s, The Insider, which was the tobacco case. Another interesting case in the 1980s for me was representing the Islamic Republic of Iran. International law was a new field so that was in keeping with the goal of continually remaking myself as an attorney. A lawyer I knew had been representing Iran. Post-Shah there was the Bazargan government between the fall of the Shah and the Khomeini Islamic revolution. Bazargan was socialist, not an Islamic terrorist like some of the later crew. The Bazargan government nationalized much of Iranian industry, including the petrochemical and insurance industries, which at that time were largely American-run companies. AIG was a big insurance company in Iran at the time. I think Pfizer also was big. Tom Shack, who was representing Iran, had a very small DC law firm. I knew one of his partners, Nick Glakas, a Youngdahl law clerk. Shack concluded that he needed to retain another law firm to handle what looked to be large complicated cases, and Nick persuaded him to hire me. The cases were brought against Iran by US companies in US courts seeking just compensation for the nationalization of their Iranian companies. I did a little research and came to the conclusion that this was going to be relatively easy, because Iran had sovereign immunity in this situation. To me, the nationalization of a company was a sovereign act, and none of the obvious exceptions seemed to apply. I assigned the matter to a bright, young associate named Bill Eskridge. Bill now is a popular and respected professor at Yale Law School. He agreed with my assessment that sovereign immunity was a good 132 defense to the lawsuits. Then the Bazargan government fell, and the Khomeini government prevailed and seized American hostages. All of a sudden, cases that seemed like clear winners on the law were not looking good. This was not a high point for the courts of the United States, because we lost in the district courts everywhere, particularly in the District of Columbia where most of the cases were brought. And we did so, in my view, solely because Iran had taken the American hostages. The lead plaintiffs’ lawyer was Charlie Brower, a lawyer in the DC office of White & Case. Charlie made a career of these cases. He went off to The Hague subsequently when the cases ended and became a successful international lawyer. When we appeared before District Judge George Hart in the District of Columbia, Mr. Brower stood up and started his argument. Judge Hart interrupted him and said, “We can dispense with that. Let’s talk about what bond you want.” Then I said, “Your Honor, you can dispense with his argument but you really should hear mine before you talk about the bond.” I knew Judge Hart. The judge said, “Yes, Mr. Aldock. You’ll get to argue all you want. But as long as Iran has the hostages, you can’t win in this courtroom. We might as well save time and hear about the bond, and then I’ll let you argue.” [Laughter] The judge let me make my argument without interruption. At the conclusion, I asked if he would certify the issue of sovereign immunity to the DC Circuit. Judge Hart said, “Sure. Get all the process you want. You just can’t win with me while they have the hostages. It’s not going to happen.” 133 It got rough at various points in some of the other court cases. My name was in the newspaper as appearing for Iran. Remarks were made to my young kids at school. We put an American flag in front of the house; I thought that seemed like a prudent move at the time. One of the lawyers we worked with on this case with Tom Shack’s office, Christie Nettesheim, is now a judge on the Federal Circuit. Christine was a good lawyer, and she would come with us occasionally to the Iranian Embassy, where we would try to get evidence off the embassy telex. The employees at the Embassy were quite western, but they said, “Christine can’t be seen going in the front door without her head covered. We’ll get hung.” We had those kinds of issues. The Embassy had a big wine collection which they had to throw away because they said, “We can’t be caught with this.” The telexes that came out of Iran, which were the affidavits we needed to file in discovery, all stated at the top when translated, “Praise be Allah. Down with the Fascist pigs.” I suggested that was not a good heading. [Laughter] The response was, “Look, the guys who are writing your affidavits are technicians, and they know how to write affidavits for court. The heading is written by somebody else. You either have the heading at the top or you get no evidence.” So I filed some of these affidavits with the header. It was awkward to say the least, although it never came up in open court. It was disappointing that the US State Department would call and tell us what good papers we were filing and that they were with us yet refused to file anything to support us. The State Department understood that it would be unfortunate if we lost, because it would upset the law on sovereign immunity. 134 The Department noted that the South Americans and Scandinavians were not going to be happy with the idea that US corporations could sue in the United States courts for just compensation when an industry or company was nationalized. Every time I suggested that the Department file an amicus brief, the answer was, “Absolutely not. The hostages. Remember?” So that was not a profile in courage for our State Department. Eventually, we got to the Court of Appeals for the DC Circuit which had no trouble reversing the District Court decisions we had lost. The Courts of Appeal in other jurisdictions also reversed the cases which we had lost below. When the hostages were released, the result was a US-Iran treaty requiring the cases to be transferred to The Hague in the Netherlands for arbitration. The treaty ultimately went to the US Supreme Court in Dames & Moore v. Regan (453 US 654 (1981)). I was scheduled to argue the case, but the argument got away. Tom Shack said to me, “Look, I wouldn’t have argued this if it was a contested matter, but we have the US Solicitor General on our side. It is not an argument of moment any more. We can’t lose. How about if I argue it?” Since Tom had sent me the case, I hardly could say no. Ms. Feigin: There was an embargo on traveling there, so did you ever get to travel to Iran? Mr. Aldock: No. I had fixed that in my retainer letter that provided (1) most of the money would be paid up front and (2) all meetings would be in London. I wasn’t interested in becoming the next hostage. In 1971 under the Shah, my wife and I, who traveled every year, were scheduled to go to Iran, because historically it’s a 135 very interesting country. We had planned to go to Shiraz, Isfahan, and several other cities. We were in Turkey and were about to board the airplane when a cholera epidemic was reported. The airline said we could proceed but first had to get inoculated at the airport by a Turkish doctor with what appeared to us to be dirty needles. [Laughter] Eventually, we flew to Greece and then home. My trip to Iran didn’t materialize; maybe someday after the current government is out of power. Ms. Feigin: You said you had three potential Supreme Court arguments. Do you want to tell us about the third that didn’t happen? Mr. Aldock: I should say one more thing about the Iran case. The last time I had any dealings with Iran was when all the cases went to The Hague for arbitration. Iran asked us whom they should pick as arbitrators. Bill Eskridge and I did some research, and it became clear that Iran wanted third-world arbitrators, people from South America, not from Western Europe. Ms. Feigin: Why? Mr. Aldock: Because Western Europeans would find high numbers. They would look at it just like an American court would look at the issue. They would provide for lost profits, going concern value, and consequential damages. The South American arbitrators would not arrive at such high numbers. They believed that nationalization was a useful concept and viewed the value nominally. It really made a difference where the arbitrator came from and his or her philosophy and frame of reference. There was a result-oriented difference among people who 136 were qualified and respected. Or course, the Iranians ignored our advice, chose Western European arbitrators, and got killed. I don’t know why they did it; they never explained. Ms. Feigin: The question of your third potential Supreme Court argument. Mr. Aldock: It comes later. Amchem v. Windsor in the Supreme Court in 1997 was the settlement of the asbestos negotiation. Ms. Feigin: We’ll wait. Mr. Aldock: There were three cases where I almost had an argument. Three strikes and you’re out. Ms. Feigin: Would you have liked to? Mr. Aldock: Yes, it is something a trial lawyer should try to do if the possibility arises, but it was not to be. As long as we are on the Supreme Court, why don’t I discuss now how the third argument got away. The issue was what kind of settlement class actions could be brought under Rule 23 of the Federal Rules of Civil Procedure. I represented 20 companies that comprised the Center for Claims Resolution (CCR). It was a joint defense organization created to defend and settle asbestos cases across the country. Following a successful effort through the Multidistrict Litigation (MDL) panel to move all the federal asbestos cases to Philadelphia District Court, the CCR asked us to try to formulate an “end game” to the 137 asbestos litigation. My partner Bill Hanlon and I devised a format for a settlement class action that we secretly began negotiating with the leaders of the plaintiffs’ bar (Ron Motley and Joe Rice of South Carolina and Gene Locks of Philadelphia). Bill and I negotiated the settlement and filed it in the US District Court (E.D. Pa.). We litigated the “fairness” of the settlement for a year, culminating in a one-month trial in Philadelphia where we prevailed. Our opponents appealed to the Third Circuit. The existing law was quite good for us. A settlement class action just had to be a fair settlement and not the product of collusion. There were no other major requirements. Between the time that we won the case and the docketing of the appeal, the Third Circuit decision in General Motors Corp. Pick-Up Truck Fuel Tank Products Litig., 55 F.3d 768 (3d Cir. 1995), authored by Chief Judge Becker, held that the fact of a settlement should not be taken into account in deciding whether to certify a class, even when the case is filed as a settlement class action. In other words, if a case cannot be tried as a class action, it cannot be settled as a class. The case was an outlier, out of step with the other circuits and the case law in the Third Circuit at the time we tried our case. At the argument before the Third Circuit, I represented the 20 CCR companies as well as the settling plaintiffs’ firms. On the other side were four lawyers representing various objectors. The main antagonist was Freddie Baron, who was a high official in ATLA (Association of Trial Lawyers of America) and a very successful Texas plaintiffs’ 138 lawyer. Baron hired Larry Tribe to do the motions work at trial and the appeal to the Third Circuit. Ms. Feigin: We should just say for the record Larry Tribe of Harvard. Mr. Aldock: Larry Tribe, a professor at the Harvard Law School, was both very expensive and quite effective. When we got to the Third Circuit, I was to argue against Tribe and three other lawyers. Since there were four lawyers on one side and only I on the other, Chief Judge Becker turned to me at the outset of the argument and said, “I’m going to give them each a half hour, and you get two hours. Since you’re going to be up for two hours you may need a break, so why don’t you just tell me when you need a break and we will break. No questions asked.” Becker had in mind that I’d need to go to the bathroom or get a drink of water. Of course in a two-hour argument against Tribe and the others, I needed to regroup. [Laughter] There would be a hard question, and I’d still be recovering from the prior question [Laughter] and I’d say, “I think we’ll take a recess now.” It was a terrific power that I’d never had before or since. [Laughter] I argued over two hours. It was my best appellate argument, even better than my Brawner argument, because it was much harder substantively and I had a hostile court due to the GM decision. Judge Anthony Scirica was with us, but Chief Judge Becker dominated the argument. Interestingly, Tribe was arguing wholly different issues than those Becker wanted to hear. Tribe was arguing constitutional issues; Becker was arguing the merits of his prior GM decision. I lost in a 2:1 decision. Georgine v. Amchem Products, 83 F.2d 610 (3 Cir. 1996). Becker decided on rd the GM grounds and rejected both my argument and Tribe’s. Becker told me 139 subsequently that I had “out-argued Larry Tribe,” and it was the best argument he ever had had. I said, “That’s great, judge, but you ruled against me.” [Laughter] Becker said, “Those things happen.” We moved for certiorari to the US Supreme Court, and it was granted. One addendum to the Supreme Court case is that, subsequent to our loss in the Supreme Court, Chief Judge Becker was brought back as a Special Master by Congress to mediate the asbestos legislation which sought to implement the settlement that the Supreme Court had said could only be achieved through legislation. Becker worked hard to mediate among the various stakeholders in the legislative effort. Unfortunately, he died in the process, and the legislative effort ultimately failed. The politics were too tough to obtain a legislative scheme that pleased all the stakeholders. Becker told me that he felt guilty about the case, because I was right as a matter of public policy since it was a fair settlement, just one that was beyond the power of the courts to achieve. Becker thought that if he could fix it legislatively – which he thought was the right answer – he’d be happy to fix it, but it was not to be. Before reaching the Supreme Court, there was one other interesting side light at the trial level. When we lost the case in the Third Circuit, it was called Georgine. We originally filed it as Carlough. Carlough was a major labor leader. Between the time we filed the case and the trial, there were intimations that Carlough might get indicted for labor corruption. That would not be a good start to the litigation. Judge Weiner was the MDL judge for all asbestos litigation, although Judge Reed – not Judge Weiner – presided over the trial. We lined up 140 another major labor leader named Bob Georgine, who was the head of the building trades unions. We convinced Judge Weiner to change the name of the case from Carlough to Georgine. The clerk’s office protested on the ground that there had been major decisions in the case and even interlocutory appeals under the name Carlough. Judge Weiner understood the optics, and the case name changed. I believe that is a pretty unusual, if not unique, occurrence. Carlough died before he was indicted but, nevertheless, it went up on appeal as the Georgine case. Certiorari was granted at which time the case became Amchem Products v. Windsor, et al. The question was who was going to argue the case for our side. Nineteen of the 20 CCR companies believed I should argue in the Supreme Court as I had in the Third Circuit. But Sam Heyman, the Chairman of the Board and owner of GAF Corporation, which was privately held, said he wanted Robert Bork to argue. I and the 19 other members of the CCR thought Bork would be a terrible choice. Among other things, Bork recently had written a book, telling the other justices they were not as smart as he was. Also, we thought we needed the “liberal wing” of the court to win. But Heyman stuck to his guns. Heyman said, “Aldock, you’re a fine trial lawyer, but you’ve never argued in the Supreme Court. I want a professional Supreme Court advocate. This is the survival of the company.” The other 19 companies disagreed. So I went to the Supreme Court clerk’s office and presented the issue. I said, “I’ve got a group of 20 companies. Nineteen of them want me to argue; one doesn’t want me to argue. This must come up, so I assume that it’s no problem.” And the clerk’s office said, “Au contraire, it’s a big problem. We have a practice here. 141 We take no sides on representation issues. If there’s any dispute, no matter how frivolous, we don’t care if you’ve got 50 out of 51 votes, we flip a coin. That’s the way we do it. Take it or leave it.” I ultimately concluded that it would not be in my clients’ interest to risk Bork arguing the case. I negotiated an arrangement with Heyman and GAF that, if I receded, I could pick anybody in the country I wanted as long as that person was “a professional Supreme Court advocate.” He agreed. I retained Stephen M. Shapiro, a Mayer Brown lawyer in Chicago. We prepared Shapiro very hard for the case. Unfortunately, it was a case at that point that probably couldn’t be won. We had lost the public opinion issues that surrounded the argument. When the case got to the Court it appeared that the plaintiffs’ bar had pressured the corporate defendants into the settlement, when in fact it was the other way around. The defendants needed the settlement to avoid bankruptcy. The plaintiffs’ lawyers would make more money without the settlement. I would have made the argument differently than Shapiro did. We only got Justices Breyer and Stevens, so we lost 6 to 2. (Justice O’Connor did not participate.) Amchem v. Windsor, 521 U.S. 591 (1997). I am confident I would have lost, too, but I think I would have gone down in flames with more flair. [Laughter] Our lawyer was prepared, as I think most Supreme Court professionals are, to be overly polite to the justices regardless of the consequences. When 142 Justice Ginsburg, who had made clear from the opening minute how she was voting, was going to ask a 5-minute question, and there were only 5 minutes left on the rebuttal time, I would have said, “Justice Ginsburg, with all due respect, there was another question from Justice Scalia that I think I need to answer first,” and cut her off. When I mentioned that subsequently to Shapiro, he said, “We just can’t do that. That’s just not done.” He was probably right, but that is because the professional Supreme Court advocate has to appear before the Court several times a term. However, I can’t practice law that way. My duty is to the client and matter I am arguing that day. I can’t be worried about making the judge angry for some future case before that same judge. I have to lay it all on the line on the case or cases I’m in for the particular client. I should not do anything that’s wrong; I must act properly. But worrying about alienating the judge because I might have another case is, to me, not an appropriate consideration. I’ve had several situations where I’ve burned bridges with judges, because I thought it was the right thing to do. I had a case before Judge Sporkin of the US District Court for DC. I was representing a union. The lawyer representing some union officials argued first. The judge ordered fees against my client, the union, before I had argued. When I got up and the judge said, “I’ve already ruled,” I said, “I respectfully suggest I have a right to be heard. You have ignored the statute and all of the controlling case law including X, Y and Z. The cases are on point and to rule otherwise would be reversible error.” Judge Sporkin glared at 143 me, slammed his books, and walked off the bench. He subsequently ruled in my favor [Laughter] but didn’t speak again to me off the bench. Ms. Feigin: Ever? Mr. Aldock: I didn’t run into the judge that often, but we never spoke. It was the right move, and I don’t have any regrets about it. Ms. Feigin: Did you ever appear before him again? Mr. Aldock: Yes. Nothing unusual happened. Ms. Feigin: This might be a good stopping point unless there’s something you want to add. Mr. Aldock: No, this is a good place to stop. Ms. Feigin: See you next week. Thank you.
