Hon. Stanley Sporkin Complete Oral History Package

Honorable Stanley Sporkin
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
Honorable Stanley Sporkin
Interviews conducted by:
Alexander Bennett, Esq.
November 6, 2003
March 23, May 14, October 4, November 4, and December 14, 2004

TABLE OF CONTENTS
Preface . ……………………………………………………………………………………………………………….. i
Oral History Agreements
Hon. Stanley Sporkin …………………………………………………………………………………… iii
Alexander Bennet, Esq. …………………………………………………………………………………..v
Oral History Transcripts of Interviews
November 6, 2003 ………………………………………………………………………………………….1
March 23, 2004 ……………………………………………………………………………………………38
May 14, 2004 ………………………………………………………………………………………………55
October 4, 2004 ……………………………………………………………………………………………72
November 4, 2004 ………………………………………………………………………………………..93
December 14, 2004 …………………………………………………………………………………….111
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Hon. Stanley Sporkin ……………………………………………………………………………….C-1
Alexander Bennet, Esq ……………………………………………………………………………..C-3

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.
© 2021 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, www.dcchs.org. Audio recordings of most interviews, as
well as electronic versions of the transcripts, are in the custody of the Society.
i

ORAL HISTORY OF
JUDGE STANLEY SPORKIN
NOVEMBER 6, 2003
This is the first interview of the Oral History of Judge Stanley Sporkin as part of the Oral
History Project of the D.C. Circuit Historical Society. It is being held by Alexander Bennett on
November 6, 2003. The tape and any transcripts made from the tape are confidential and
governed by the wishes of Judge Sporkin which ultimately will be made in the form of a written
donative instrument.
Mr. Bennett: I’m Alex Bennett, a Partner with Arnold & Porter, and have been asked by the
Historical Society of the D.C. Circuit to interview Judge Sporkin for the
purposes of the oral history. And now we’ll just start with Judge Sporkin, if
we may, and ask you what was it like in the early years growing up in
Philadelphia.
Judge Sporkin: I was born in 1932, which was at the depths of the Depression. We lived in a
row house in the so-called West Philadelphia section of Philadelphia.
Although my father was an attorney and we seemed to be more fortunate than
most of our neighbors, we still had to struggle. Things were not easy. I
remember that we had to watch our pennies. We lived in a house, I think it
cost us two thousand dollars. It was a row house, four bedrooms, one bath,
which I shared with my Dad, two brothers, a sister and a dog. It was a little
crowded there. We had only one bath, and my two brothers had to live in one
room. My sister had her own room, I had my own room, which I shared with
my dog, and my parents had their room.
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Mr. Bennett: Were you the oldest?
Judge Sporkin: No, no. I was the third. I had two older brothers. I was the third. My sister
was the youngest. My parents wanted a girl and so they kept trying until they
got a daughter and then of course they stopped.
I don’t know if people realize what it was like living in those days. No
television. We had what was known as an icebox, no refrigeration. We had
coal for our heating system. Our bread and milk would be delivered by a
horse and wagon. I guess the milkman also was the butter and egg person.
We had no such thing as a supermarket. We lived within a block of a number
of stores that went for about eight blocks, and when I look back at it now, I
thought how much better it was then, than now. Each one of these stores were
local stores, no chains, and each one of them of course served a different
purpose. There were delicatessens, there was a fish store, there was a meat
market and a place that just sold canned goods. My mother everyday would
have to go shopping with her cart and she would go to the fish store for fresh
fish, she would go to the bakery, fresh baked goods, and then she would go to
the delicatessens and meat markets.
And when I look back now how great that was opposed to what we
have now, where everything is sort of packaged. And I remember when the
first supermarket came to our neighborhood. Everybody thought that was a
great thing to have. But now I think it would be very interesting – to go back
to the old days and have separate establishments to serve our needs.
Remember that cars in those days had mechanical brakes. Some of
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them you still had to crank in the front to get the motor started. And so these
were such rudimentary times that, if you now tell a youngster what it was like
then, they just wouldn’t believe that was the way society was. And the
interesting part of my life is I was fortunate to see all these dramatic changes
taking place.
I think the first big change came in 1939, namely the World’s Fair in
New York. I remember people going there and reporting back and telling us
what the future would be like. At the World’s Fair, they introduced the
concept of television. They introduced the refrigerator and a lot of other
concepts that turned out to be the great changes for society.
In those early days, my father was in politics, he was a practicing
lawyer. He also held a position with the city. He was an Assistant District
Attorney. In those days, you were allowed to be both an Assistant District
Attorney and practice law, so long as your practice did not include criminal
work. So he was part-time prosecutor and a lawyer. His law practice was
strictly civil. Most of it was subrogation work. That involved suing people to
try to recover money from third parties to reimburse the insurance company
for payments that they had made. That was considered to be a pretty good
practice, especially for a small firm.
The firm consisted of himself and his brother and a variety of other
people that would work for them from time to time. Many of the people that
joined them later turned out to be judges. My father was deeply rooted in
local politics. He was a Republican in the city of Philadelphia, which was one
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of the few cities that were still Republican, except for presidential elections.
In presidential elections, the city was always Democratic voting for President
Roosevelt. I remember that my father used to be so disappointed in the
national elections, because it didn’t matter that he was a good committeeman
or not, he wasn’t able to get the votes of the people. It used to be that the
committeemen could pretty much obtain the votes of people by virtue of the
favors they did for their constituents.
I attended the local public schools, throughout. I went to the Hamilton
school, the Bryant school, Shore Junior High, West Philadelphia High School.
When I graduated from West Philadelphia High School, because my father
had to educate his two other sons, there wasn’t a whole lot of money to go
around. And so I went to the state school, which was Penn State. It was
interesting because the tuition in those days was, I think, six hundred dollars; I
think it was for the year, although it might have been for a semester, I’m not
sure – but I know the six hundred dollars was something that was affordable
even in those days. And that’s where I went along with one of my brothers.
My other brother was able to get GI Bill help so he went to the University of
Pennsylvania. My sister later also went to University of Pennsylvania. The
University of Pennsylvania is a private school.
So I went away to Penn State, and while in college, I did not know
whether I would be able to go to graduate school, even though I was very
much taken with my father’s law practice. But it was made clear to me that
the family’s finances might not permit me to go on to law school. And so that
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dictated what major I would pursue in college which was accounting. The
reason I took accounting was because if I could go no further, I would at least
be trained to have a profession when I graduated from college.
I went four years to Penn State. When I graduated from Penn State, I
started to practice accounting with a firm in Philadelphia called Lybrand Ross
Brothers and Montgomery. Lybrand Ross Brothers, which is now
PricewaterhouseCoopers, was one of the big national firms at that time –
whether the big eight or ten, I don’t know, but it was a big firm. My first
salary was $275 a month. That was considered a wonderful salary. Indeed, I
think it allowed me to buy a car which I paid six hundred dollars for. I
practiced for about two years. During the course of my practice, I sat for the
CPA exam and passed it on my first try. So I was well on the way to
becoming a Certified Public Accountant. It was pretty hard to become
certified in those days, and usually it took a number of years. You did have to
pass several parts of the exam. It was very unusual for someone to come in
and pass them all at once. It was less than 10 percent who passed all parts on
the first try.
In 1952 and 1953, when I was practicing accounting, my father’s
financial situation changed. My father always wanted to be a judge, and the
Republican Party would never slate him or recommend that he be appointed to
the position by the governor. By that time, Philadelphia like all other big
cities in the U.S. had turned Democratic. There was a groundswell for the
Democrats. In Philadelphia they had two reformers. One was a fellow named
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Clark, and the other was a fellow named Richardson Dilworth. Clark and
Dilworth took over the city. Clark became the Mayor and Dilworth became
the District Attorney. When Dilworth came in as District Attorney, he
decided to fire everybody in the DA’s office. Now my father had held this job
for over 20 years. As I look back at what happened at that time, I now know
what depression is. I didn’t know at the time, but my father was so taken back
by the loss of the job which he absolutely loved that he became physically ill.
He adored being an Assistant DA. He was paid thirty-two hundred dollars a
year, but he just enjoyed the position. And so when he was canned, all his
hopes were dashed that he would somehow, someday be a judge.
Philadelphia was the last holdout of a big city turning Democratic. So
it seemed like once the city became Democratic, the Republicans would never
have a chance to regain control.
In 1953, there was a city-wide election for judges. The Republicans
had very few takers for these positions, because they knew they were going to
lose, since the city had gone Democratic. Well, my father wanted to be a
judge so badly, he convinced the Republican party to slate him, which was not
hard to do since they needed candidates anyway. And he set about to run for
the judgeship. Nobody thought he had a chance to win. I was among those
that never thought he had a chance to win. We were very concerned about
him, because we didn’t want him to get disappointed again, as he had been
when he lost his district attorney job.
– 7 –
But this man, and I guess this is one of the great teachings of my life,
was convinced he was going to win. He went on a campaign which took him
virtually to every house in the city. He went on radio. He would speak to
every group that would listen. He fought and he fought.
Then one of the great miracles of my lifetime happened. He won. I
think to this day nobody can explain how the Republicans were able to win in
that environment. This was an off year election, so it wasn’t an election for
mayor. My recollection is my father had about a sixteen thousand vote
plurality. It was an amazing thing, it just shows what happens when
somebody believes in himself.
My father had now achieved exactly what he wanted in life. This was
his major goal, and he loved it. I don’t know anybody who loved being a
judge as much as he did. He was always in awe of judges. Even when he was
on the same level as his fellow judges, he would treat them with tremendous
respect, referring to them as judges – that’s Judge Sloan, or that’s Judge Curtis
Bok. The Philadelphia judges were extremely well known for their
competence. I just mentioned two, and I think everybody knows the name
Curtis Bok but there were other great jurists at that time. It was interesting
that at that time the great judges were state judges and not federal judges. The
federal judges were not held in the esteem that the state judges were held. The
federal judges tried admiralty cases, FELA cases and not very much more so
they were not in the public’s eye. It was the state courts that tried all the big
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cases. As a result they had some very able state judges in those days. Judge
Curtis Bok, Judge Joseph Sloan, and Nochem Wynett.
Mr. Bennett: And did that have some influence on your career decisions?
Judge Sporkin: No question about it. Because at that moment when he finally got this
position – the position, I remember, paid about sixteen thousand dollars a
year. And in those days – this was back in the ’50s, ’53 or ’54 – that was a lot
of money. And it enabled my father to send me to law school, at which time I
applied to a number of law schools. I had done extremely well in college. My
grades were high. I was Phi Beta Kappa. And so I applied to schools like
Penn – my father wanted me to go to University of Pennsylvania (his law
school), which everybody knows is a fine law school.
I think I only applied to Penn and Yale. I don’t know why. I heard a
lot about Yale, and everybody I talked to would tell me that Yale was a great
law school. It was different than other law schools. It was not as competitive
as other law schools. So I applied to Yale and Penn. I was accepted at both
law schools. I decided that I would go to Yale. It was a tough decision,
because it would be more expensive.
It was a great decision, and I enjoyed it very much. I was in awe of
the place. I was scared silly, because here I was out of a state college and
everybody in the law school was either Harvard or Yale or some other
prominent university. During my first semester, I felt like quitting. I said, “I
don’t belong here.” I’m in the midst of all these brilliant people who would
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be talking in the classes, and I wouldn’t even know what the hell they were
talking about. We had some “greats” in my class. We had Arthur Liman,
who was one of this nation’s finest lawyers; he recently died, but was one of
the finest lawyers in the country. Judge Becker (now deceased), who at one
time was Chief Judge of the U.S. Court of Appeals for the Third Circuit, was
another classmate. We have about twelve of my classmates who became
judges. I was so awed that I did not do well in my first semester.
But starting in the second semester, when we started to get into
economic courses and courses like tax there I really excelled because of my
accounting background. As a matter of fact, I couldn’t believe how my
classmates came to me for answers because they had no background in any of
these fields. And so they would ask me all about accounting and taxes. Many
of the cases that you study are commercial cases and you have to have some
idea of business. I think I was the only person there who had a CPA or who at
least passed the CPA exam. I later had to fulfill a practice requirement to
become certified. So I started to really do well, and as I say, in tax courses
and contracts and those courses that required some knowledge of business and
finance. At the end of the day, when I graduated, I believe I was either
twenty-one or twenty-two in this class of over 160. I felt that I had achieved
more than I had expected I would achieve when I started law school.
During law school I married Judith Sally Imber. A year later we had a
child, Elizabeth. In order to support myself, because my parents would only
go so far, I obtained a teaching position at a local college called Quinnipiac
– 10 –
College. I taught accounting for which I received $45 a week. That $45 a
week, which came to $180 a month, pretty much paid the difference between
the tuition which my father agreed to pay and what I needed to maintain an
apartment for my child and wife.
I graduated from law school. I always wanted to be a lawyer, because
of my father. I always admired him. He was an amazing person. Now I think
back on it, I couldn’t understand – I still can’t understand – how he
accomplished so much. He was always engaged in numerous activities. He
was always doing tons of things. He had to be occupied 100 percent of his
time, and it wasn’t enough to just be a judge or be a DA or whatnot.
He also taught me and my family certain values. For example, when
he used to be an Assistant District Attorney, he would have to go to the socalled Magistrates Courts, one of which was about five blocks from our house.
One day on the way to Court, he saw this tradesman beating his horse.
Although my father was not particularly a strong person or anything, that
bothered him so much he stopped his car, got out and physically restrained the
gentleman who was beating the horse and was able to get the SPCA to take
the horse away from the tradesman. I remember he received an award from
the SPCA for what he had done. He did what was right. He was not going to
permit a helpless animal to be beaten.
He was that way all his life. I remember early in his judicial career, he
had a very famous case in Philadelphia where there was a large community
pool and blacks were not permitted to attend the pool. There was a big
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dispute as to whether the pool should be integrated. My recollection is he
made the seminal decision that it had to be integrated. I should get the
decision and find out the basis, because this was way before any of the
Fourteenth Amendment cases had been decided. He did that. He was clearly
a person who had values, who understood how people needed help and how
he should be there helping the downtrodden or the people that couldn’t fend
for themselves.
Mr. Bennett: Did your siblings also find themselves influenced to do public service or go
into a legal career.
Judge Sporkin: Now what happened, you see what happened at that time when the war came,
it really got people off track. My brother – my oldest brother – was in the
service, and he had to fight in World War II. When he came back, he was
very restless and wanted to get on with his life. He never went on to become a
lawyer. He wanted to get through college and then start work. He thought the
three or four years he spent in the service were years he would never see
again. My second brother was only two years younger. Again, he had spent
some time in the service. And so I think that also took him off track.
I had an uncle who was my father’s law partner and who was getting
involved in business, in the building business. He had two daughters, no sons,
and so he took my brothers and brought them in the business with him.
– 12 –
Mr. Bennett: When do you first recall your interest in practicing law? Does this go back to
the very youngest years?
Judge Sporkin: Yes. I would go to my father’s office at times when people would be out
playing ball. I would love to go watch my father try cases, watch him in
court, and it was a great treat to me to go down there and see what was
happening. So I always wanted to be a lawyer. I always wanted to be a judge.
Mr. Bennett: Even from those earliest years?
Judge Sporkin: Oh yes. I said, “There’s nothing better than being a judge.” And later on
when that opportunity came and people tried to dissuade me, it made it
interesting for me as to what I had to consider. I was almost blinded by this
desire to be a judge and never really looked at it in an objective way that
perhaps I should have looked at it, later on when the opportunity came.
But after law school – what happened was quite interesting, Alex.
Jews in those days were pretty much like the minorities that followed us – the
women – I shouldn’t call them minorities, but the people who had been
discriminated against, the women and the persons of color. Jews graduating
from law school had a difficult time getting jobs back in the ’50s. The
profession was ghettoized if that’s the proper word to use. There were Jewish
firms and non-Jewish firms. There were very few Jewish firms, and the few
Jewish firms took the cream of the Jewish lawyers. There were a few that
were mixed. I remember that Arthur Liman, who was first in our class, he
went to Paul Weiss. That was sort of a mixed firm at the time. But the big
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firms, the Cravaths, the Sullivan and Cromwells, while they did have some
tokenism, they didn’t take on a lot of Jewish students. And the thing that
made things very difficult in those years is that while Jews made up
50 percent of the law school classes, they didn’t make up that big a population
in the legal business.
Mr. Bennett: {After a brief interruption} You were talking about looking for a job after
law school.
Judge Sporkin: Right. And then I had gone to a firm like Morgan Lewis & Bockius, and
there, the senior partner that I was interviewed by was the son of Judge
Kirkpatrick. He later became the chairman of the FTC. I remember him
telling me in my interview, he said, “Mr. Sporkin, “this is not the place for
you.” I got the message.
I decided that I wasn’t going to fight it. My father said, Look, go
become a law clerk, that’s the best thing to do in this environment. At the
time the judiciary was a meritocracy; nobody cared what religion you were.
In the courts, you could get jobs, and I did. I had an offer from Judge Packil
of the New York Court of Appeals. I also had an offer from Judge Caleb
Wright in Delaware, and he impressed me. Judge Caleb Wright, came from
downstate Delaware. He offered me a job. Indeed, his prior law clerk, his
first law clerk, later became a judge. He was his first law clerk who was also
Jewish, so that impressed me.
– 14 –
So I went to work for Judge Wright in Delaware. Those were the three
greatest years of my life. He was a great jurist. He had gone on the bench
two years before I came there. He was terrific. He loved his clerks. He
insisted that we live our entire professional lives with him. We’d eat lunch
with him everyday. We’d walk along the Brandywine with him. We would
discuss cases. We’d discuss how to decide cases. He was completely honest
and open and taught me that you looked at the facts of the case and you
determined tentatively in your mind who should win on the facts and on the
equities, and then you looked to see what the law said. And if the law would
support that decision, then that would be the decision.
He was a great, great judge. I enjoyed it so much I stayed a clerk for
three years, which was unheard of. Everybody was anxious to get out and
practice law after one year. He kept offering me the clerkship and I kept
saying yes. And a judge had only one clerk in those days. So the bonding
between the judge and a clerk was super. And of course, he was a judge that
would tell us what to do. The clerks would draft the opinions. I remember
that he insisted that I meet with Murray Schwartz, my predecessor law clerk
who later became a judge, before I took the job to find out how he likes to
interact with his clerks. And Judge Schwartz, in a very confidential way, said,
“Now look, let me tell you what he expects.” He said, “You get the draft out
and then he’ll look at it. He’s a good writer, he’ll make many changes. And
he’ll make the decision.” You would discuss it with him before. Once the
judge made the decision, that was it. But there was tremendous input, and it
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was probably three of the greatest years I’ve ever spent in my life.
What had happened, the major reason I stayed so long, was because
we had a big case involving the four biggest shipbuilders in the country.
There was a contractual claim against a supplier. It was interesting. This was
during the Korean War. The Defense Department wanted to get fast transport
ships built and put into the war as quickly as possible. And so they decided to
divide up the contract among four shipbuilding companies. Each was to build
four of them. Therefore, if there was a strike or something at one, the others
could go ahead. So the whole concept was to diversify. And then, (laugh),
what the government didn’t understand or realize is these four companies got
together and decided to give the contract for all the ship’s hulls to one
company, which was a newly formed company that never had any experience.
And, of course, it failed to deliver.
So the great scheme of diversification backfired, and here all these
ships were never able to make their scheduled delivery because they couldn’t
get this vital part of the ship. And then you had this big lawsuit, which is sort
of a new definition of chutzpah, namely the failed company sued the
shipbuilders claiming some sort of improper activity among them caused the
supplier to fail. Judge Wright wanted to make sure there was continuity in
that the same clerk would be with him during that period. The case was in
court. That’s why he gave me the offer each year. This case stayed on for
three years. So I stayed on. And I enjoyed it. And I thought that the practice
– 16 –
couldn’t get any better. I thought, “This is what the practice of law is about.”
Looking back I sure as hell made the right decision.
Interestingly, there was another important case we had. In Delaware,
remember, it’s a corporate jurisdiction, and therefore we had a lot of good
commercial litigation. There were very few criminal cases. This was another
reason I enjoyed it. In addition to the shipbuilding case, the other big case
that we had was a case – the reason I mention it is, because it’s so prominent
and because it comes to mind now, in view of the problems that the mutual
fund industry is having. There was a company called Wellington Fund, which
is one of the original mutual funds.
The case involving the Wellington Fund was a derivative action
brought on behalf of the shareholders of the fund against the management
company. The management company wanted to bring out a new fund. It
named it the Wellington Equity Fund. The shareholders contended that the
Wellington Fund owned the name Wellington and that the equity fund had no
right to use that name without receiving a license from the original Wellington
Fund. There was a very fine lawyer, I remember, that was the lawyer for the
plaintiffs. His name was Rome. I think that Blank Rodenko & Rome was the
name of the firm. And his position was very simple, namely that since the
Wellington Fund was a corporation, it had all the rights of a corporation,
including the right to its name.
– 17 –
The defendants’ argument was the fact that the fund itself was in
corporate form was immaterial, that it was really the management company
that had created the value, and that the management company had the right to
use the name and the various corporate funds were nothing more than boxes
of Kleenex. The argument was that the fund was a product and that therefore
the fund shouldn’t have any say as to the use of its name. Defense counsel
portrayed it as much ado about nothing. It was an important case. And what
the judge decided and why this case was important was that, look folks,
despite all the arguments you make, the fact is that you used the corporate
form. And once you use a corporate form, the corporation is entitled to the
protections of the corporate form. You can’t dilute those protections just
because you take the position that it really doesn’t mean what it’s supposed to
mean.
And so the court held in favor of the shareholders of the fund and said
you cannot use that name, and, indeed, they had to change the name, it later
became Vanguard. That was a very important decision, especially now when
we’re talking about corporate governance, because I think that decision is
probably the seminal decision in this whole area about how corporations must
operate.
The other interesting part was that there was a young man there who
was the assistant to the head of the Wellington Fund Company, and I
remember him. I met him. His name was Jack Bogle. Jack Bogle is the
fellow that is one of the key voices in promoting reform for the investment
– 18 –
company sector. He later became the head of the company. Indeed, what he
did, which is extremely important was to internalize the management of his
companies so that Vanguard is now an internal operation where they do their
own management. It is an interesting and progressive concept. That was a
seminal case, and I’ll always remember it. You’ll see now that’s what people
are talking about – better corporate governance. In those days, of course, the
mutual funds were made up largely of directors of the management
companies, so there really wasn’t the independence that was necessary.
Mr. Bennett: As part of the docket while you were clerking for the judge, were you also
involved in criminal cases.
Judge Sporkin: Very little. Very few of them. They were mostly all resolved. Another great
thing about clerking in Delaware is they have a lot of judges, they have three
judges. And I think they had two senior judges, and we’d hand them a bigger
case load. As a result, we would go all over. We would be sent to other parts
of the circuit, then I guess later on other parts of the country, to try cases. So
the biggest criminal case I recall was a case we had to try up in Wilkes Barre,
Pennsylvania, and I think it was a corruption case. But I don’t recall much
about it. We didn’t have much criminal work in Delaware.
Mr. Bennett: And while you were clerking, did you typically attend the trial sessions and
things like that?
– 19 –
Judge Sporkin: Oh, Judge Wright made us be at his elbow all the time. That’s why you have
the name elbow clerk because you had to be at the Judge’s elbow all the time.
And of course, what I learned from him were the same things I would
emphasize to my clerks. It was as a great learning experience.
What happened after Delaware was my wife didn’t want us to spend
the rest of our lives in Delaware. I didn’t want to go back to Philadelphia. I
don’t know why, but I just didn’t think that I wanted to practice law there. It
was interesting that at about that time I got a letter from a law firm in the
District of Columbia. I guess I was fairly laid back in getting jobs. I didn’t
really apply for many, and I guess, if you see my career, you’ll see that the
jobs sort of came to me, rather than my going out and having to seek them. I
received this letter from the law firm in Washington, Haley Wollenberg and
Bader. It was a simple letter saying that we’re looking for a lawyer, if you’re
interested, let us know. I didn’t have anything on the plate at the time, so I
went down there, was interviewed and I took the offer. I didn’t do the kind of
investigation maybe I should have done.
My pay at the courthouse was forty-five hundred dollars a year. The
offer was about seventy-five hundred. In those days, that was good money,
we’re talking now about 1960.
I graduated from law school in ’57, stayed three years as a clerk. In
’60, I came down to Washington. It was in September of ’60. At that time I
started to work for the firm. I was not very happy with the practice. It was a
tremendous let-down from “playing judge” to dealing with the mundane sort of
– 20 –
things that a young lawyer does, looking at records and so on. But I did get a
lot of responsibility, because it was a small firm. I remember one case that
they gave me which involved a fellow under investigation by the FCC. He
owned a radio property he had bought for around $350,000. He wanted to sell
this property, and he had a contract to sell it to one of the large radio
companies for ten million. And this was over a very short period of time.
J. Elroy McCaw is the name of the fellow that owned the station. The FCC
had been investigating him for a period of time, and they wanted to take the
property away from him. The FCC’s theory was that the value of his property
was dependent upon the fact that his station had a very famous disc jockey
Alan Freed, who was accused of taking payola.
There was a payola scandal, meaning people would pay these disc
jockeys money to play their records. And so, the FCC was investigating and I
remember getting a call from the head of my firm, Andrew Haley. He said he
wanted me to go to New York to attend a hearing that the FCC was
conducting. The FCC was sending two investigators to take McCaw’s
testimony. It was the second or third time he had his testimony taken.
Somebody else in the firm had been handling the case. On the train to New
York I started to look at the file. I found nothing in the file that was
informative. I found some notes I couldn’t read, and so I said, “What the
heck’s going on here.” And so on the train I decided that what I wanted to do,
rather than just take notes, was to bring in a court reporter to take down the
questions and answers.
– 21 –
When I got to New York and I went over to McCaw’s place, he had this
large apartment. McCaw, even though he had a lot of money, was a very
frugal person. So when I told him I was going to get a reporter, he asked how
much is that going to cost. I told him. He said, “No, it’s too expensive.” I
said, “No you got to do it.” He said, “No.” I wasn’t very good with clients in
those days. I would argue with them. You’re not supposed to, I know. And in
any event, I said, “Well, let’s call Andy Haley and find out his position.” We
called Haley and I said to Haley, “Look, we ought to get this in writing.”
Haley said “Okay,” and we convinced McCaw to do it.
We hired a reporter. The next thing was the two people from the FCC
came. They were very upset to see a court reporter. I had to calm them down.
I said, “Look fellows, you’ll get a copy of whatever’s taken.” I said, “Don’t
you think it’s fair to everybody that we know exactly what was said.” Finally
they agreed. Remember, this is my first case. I didn’t know what the outcome
was going to be. But in any event, I said, “Let’s do it.” So the questioning
began. They asked their questions and I listened. At the end of the sessions, I
said to them, “I assume you’re satisfied.” I said, “If you’re not satisfied, would
you tell us before any proceedings are brought why you’re not satisfied so we
have an opportunity to respond before any recommendation goes to the FCC?”
They said, “Yes, that sounds reasonable.”
A couple of months later, we received an order for proceedings from
the Commission. For the purpose of taking his license away. I remember
going to Roger Wollenberg, who was one of the great FCC lawyers. He was a
– 22 –
brilliant guy. Roger was going to handle the case. I wasn’t going to handle it.
I worked with him. I said, “Roger, you know there’s a transcript of what took
place in New York.” He said, “Yes.” I said, “More important, in that
transcript, I got their promise that they wouldn’t issue an order until they let us
know the reasons for the order and promised to give us an opportunity to
respond.” He said, “What?!” He said, “You’re kidding me.” I said, “No, I’m
not kidding you.” I said, “So let me show you.” And then, of course, I got the
transcript, and there it was in black and white.
He said, “Well, the Commission isn’t going to buy this.” I said, “What
do you mean. We got it in black and white. Why not? Let’s go to the
Commissioners and tell them what the Staff promised us and that they reneged
on their promise.” He said, “Well, we’ll try it.” And we did try it. And the
Commissioners agreed with us. They withdrew the order and told us the issues
that concerned them. We then were able to file a brief. We answered every
one of the questions and the Commission said, well, “We agree” and the case
was over.” That man saved his license.
By that time the buying company had walked away from the deal, the
ten million deal. And so McCaw gets a new deal with MGM, at not ten million
but twelve million. So here he took a $350,000 property and turned it into a
$12 million property. Obviously, my boss was very pleased with our success.
I know the investigators at FCC never forgave me for that. I remember seeing
them later on at a function in which they let me know what they thought about
me. I said, “You people made a promise that you didn’t live up to.”
– 23 –
I still was unhappy, though, with the practice, and I learned at that time
that the SEC was gearing up for a study of the securities markets. And a
neighbor of mine, a dear friend of mine, my chess partner, said he just got
hired and I said, “That sounds good.” So I went to the SEC and got hired. I
told the firm that I was ready to leave. At which point, Andrew Haley said to
me, “Look, you make seventy-five hundred dollars now here. The SEC is
going to pay you eighty-four hundred. I will give you a contract to keep you
here – $25,000 a year for ten years.” I thought that was all the money in the
world. I didn’t think that you could do better than that – $25,000 a year, I
mean, I would have it for life. Little did I know what the value of money
would be in ten years. But I had made the decision to leave; the money
wasn’t an issue at that point. I said, “No thank you, I’m going to go,” and I
went to the SEC.
I was on the special study. I got an assigned area. I finished the study.
And at the end of the study, the Commission said that they would like to hire
some of us full-time. Here I was, with a wife and a child at the time, taking
on a temporary position, turning down $25,000 a year, and I could be out of a
job in two years. So I guess that was the big risk I took in my life.
Mr. Bennett: So who was your chess partner who was hired?
Judge Sporkin: Bill Mammerella.
Mr. Bennett: Did he stay at the SEC, too?
– 24 –
Judge Sporkin: No, he, he went on to another agency. He went to the ICC.
Mr. Bennett: Were there others hired for this special study who were later colleagues of
yours at the SEC?
Judge Sporkin: Yes, they took on a number of us at the SEC. I went into the division of
trading and exchanges. Part of it had to do with overlooking the markets, part
of it had to do with investigations. I went in the investigation area. At that
time, the SEC had very little enforcement capability at the home office. It was
all done through its various regional offices. But it was decided by my boss –
who was Irving Pollack, and who is still one of my dearest friends and one of
the great lawyers of all time – that we needed a capability at the home office.
Otherwise, we’d have to sit around and wait for the regional offices to do the
cases that the Commission wanted done. And so they set up three
enforcement branches with five or six lawyers in each branch. And I became
a branch chief. I was going to be head of one of those offices.
Mr. Bennett: And how long was this after you had taken on the permanent job at the SEC?
Judge Sporkin: Well, that was it. I became the branch chief.
Mr. Bennett: Right from the start?
Judge Sporkin: Right from the start. Because I had already spent two years as a line lawyer.
There were other things that happened. For example, we had no accountants
in these branches. And so I went with the recommendation that we ought to
– 25 –
hire an accountant. So they hired one, and then, later on, each of the branches
had their own accountant. And as all government agencies, we started to
grow. From being branch chief, I forget the year it was, I became in charge of
the three branches. I became an assistant director. Then I became an
associate director. At that time, Irv Pollack, he was the director, I was an
associate director in charge of enforcement, and Gene Rotberg was an
associate director in charge of the markets, overseeing the New York Stock
Exchange and the over-the-counter markets. I might have been the assistant
director. My associate director at that time was Tom Rae, who was a great
administrator; taught me a lot about how to administrate, how to manage; he
was a good manager. He later left and I took his job as associate director.
When Bill Casey came in, he decided that he wanted to have a study of the
enforcement program of the SEC. And he brought in a lawyer named Wells a
name partner at Rogers and Wells.
Mr. Bennett: Okay, you were saying that Casey came in, and he hired Wells.
Judge Sporkin: Well, let me go back for a moment, because there is another point that is
interesting. There was a job called the Chief Enforcement Attorney. And that
became vacant, and Manny Cohen was the Chairman then. He was one of the
great chairmen of all time. Manny was a staff person who rose to become
Chairman of the SEC which was unheard until a few years ago when Harvey
Pitt became chairman.
Manny was procrastinating in making the appointment of the Chief
– 26 –
Enforcement Attorney. All of a sudden I get a call from the Chairman. He
said, “You know, Stan, you’re Chief Enforcement Attorney.” I said, “What’s
going on?” He replied, “Don’t worry about it, you’re Chief. Remember, if
anybody asks you, you’re the Chief Enforcement Attorney.”
What happened was there was pressure being put on the Chairman to
bring in an outside person, a political person, to take that job. And so when
that pressure was put on him, he decided to avoid it by saying, “Well, the job
is filled,” and that’s why the appointment came so quickly. He had declined
to appoint me sooner, because he thought I was too young for the job. I forget
how old I must have been. It must have been in the late ’60s, so I must have
been in my early 30s.
Later on, we had the Wells Report. The Wells Report focused on the
fact that the SEC had four or five different enforcement programs. The SEC
had a number of different divisions. It had a division that overlooked the
markets, which was my division. It had a division that overlooked the filing
of corporate forms and also dealing with the raising of capital. It had an
investment company division and a public utility division. And each one of
these its own enforcement programs. It was decided that it would be much
more efficient to consolidate all of the enforcement programs in one division:
A new division, the Division of Enforcement. And so that was the birth of the
Enforcement Division. The Commission took the enforcement people out of
every one of the other divisions and put them in the Enforcement Division.
– 27 –
Mr. Bennett: So you took that job because you were already . . .
Judge Sporkin: No. What happened as the second part of the reorganization market
regulation was going to be a separate division. For some reason, the Street did
not want Irv Pollack, who was my boss, to be the head of that division. And
so they made Irv Pollack the Director of the Division of Enforcement and I
became his Deputy Director. And there has been a lot of noise, background
noise, about what was the purpose of forming the new division. Was it to get
Irv Pollack out, who was a career guy? Obviously, the Commission was not
going to fire him. Were there were other reasons? I don’t know the answer.
All I know was that Pollack was the best and that he was a terrific
Enforcement Attorney. I do know that he was the person responsible for
eliminating fixed commissions, which got the ire of the entire investment
community against him. Because it lived by fixed commissions, because by
having the fixed commission, there were rebates and give-ups. It was as gross
a practice as you are going to find. By saying no more fixed commissions, all
those practices became history. It was a great move just like a lot of other
moves, such as breaking up AT&T that later turned out to be a great move.
Many at the time thought unfixing commissions was a bad move.
At the same time that this is going on there’s a scandal brewing in this
country. As a fallout of the Watergate affair, we had a scandal at the SEC in
which the then new Chairman had to resign because of the Maurice Stans
incident. Nixon was president at the time.
– 28 –
Mr. Bennett: Well, wasn’t this part of Watergate, because these were improper campaign
contributions as part of the election of 1972? Then Watergate probably
started becoming public in ’73 and ’74.
Judge Sporkin: Well, the only point is Nixon was still functioning at that time. And I think it
was right about ’72, and what happened was he said that with all this scandal
going on, the administration had to bring in a clean person to be the new
commissioner. And they also brought in a new chairman, Ray Garrett out of
Chicago who was a Republican. Pollack was obviously a confirmed
Democratic and so they decided to name Pollack a Commissioner. And
believe me, if it weren’t for the scandal, he would have never been made a
Commissioner. But it was in the political interests of the party in power to
name him, and of course they had to name a Democrat because it was a
Democrat seat. So, he was in charge of the Enforcement Division, maybe
about a year, a year and change. At which point, in 1974, that’s the year I can
remember, 1974, I became the Director of the Division of Enforcement. I held
that position until ’81.
We did a lot of interesting work during those years. We had a lot of
emergencies. In ’72 I would have been what – 40 years old I guess. I’m
getting up there. But still a young man. I guess this occurred a little earlier
than that. The kinds of things that I’m talking about. The first real challenge I
had, of course I was in charge of the Enforcement program. Even though I
wasn’t named as such, I was pretty much running it. Pollack obviously was the
leader. He set the policy and I ran the day-to-day activities. All of these things
– 29 –
in life as you know are learning experiences. Learning to deal with
emergencies, learning to deal with challenges too, when people say things can’t
be done or whatnot.
The challenge we had at that time is that there was a tremendous
amount of trading on the exchanges, and the firms couldn’t process the trades.
It was beyond their ability. They had not really planned for all of this increase
in trading. They did not have the automated machines to do it, and there was a
tremendous back office problem in these firms. It went to the point where
some firms were hundreds of millions of dollars out of balance. There were
two kinds of problems you’d find in the firm. One is they would have
transactions where they would have securities which showed no ownership.
Another was that the records would show that people owned securities but
there were no securities that related to those people. And so the only way that
you were going to be able to deal with it was to match them up, and it wasn’t
being done.
And this was rampant throughout the Street. And we at the SEC said:
Look, if this continues, this is going to be a tragedy beyond belief. And the
public had no idea what was happening.
We finally received word that Bache, which was one of the top
brokerage firms in the country at the time, was out of balance by four hundred
million dollars. In those days four hundred million dollars meant something.
That’s a lot of money. And we had to figure out how do we deal with this
problem. These challenges teach you ways for solving problems. And as I
– 30 –
studied the statutes and rules, it occurred to me that there was a provision that
says, if the SEC brings a case it may be made public. This meant to me that it
could also be private. We always would bring public proceedings but there
was a provision that had a “may” in it. It occurred to me that maybe we could
bring a private proceeding and, if so, then what we could do is sue these people
for violating the law. Not making it public, but making it a private proceeding.
Bringing them in and telling them that we now are going to hit them over the
head. We had the ability in such a proceeding to put the firm out of business.
We told the firm we would put them out of business unless they took steps to
correct their problem.
That strategy I was able to sell it to everybody. We agreed that we
would go that route. We wanted in effect to tell Bache we were serious and
they had to do something. And it worked. When we brought Bache in, we
said, “Look, Bache, unless you do something you are going to go out of
business.” We did it privately so the public wouldn’t know about it at that
time. However, once the problem had been corrected it was our plan to make
the proceeding public. To tell the public the problem has been fixed. This was
an elaborate strategy, almost like a battle plan, and all of these things had to
occur just right. And if they didn’t occur, it would have been a possible
disaster. What happened is that we brought Bache in. Bache had never been
sued before, so they were scared, they didn’t know what the hell we could do.
When we told them we were going to put them out of business, they listened.
And they said, what do we do?
– 31 –
Well, then we had to come up with the next part of the strategy, which
we hadn’t thought about. We thought they would know what to do. But they
didn’t know what to do. They said: “We don’t have enough back office
people, we can’t do it.” I said, I’ll tell you what to do. Why don’t you hire a
public accounting firm and pay them whatever they want and have their
accountants come in and clean up the mess, all it took was people to match the
stock with the owners. So they bought into it, they said it can’t be done, but
they bought in anyway. They hired one of the major public accounting firms.
They put in 80 accountants and within a very short time the place was in apple
pie order. We then brought them back and said okay, “It’s all done – what
we’ll do is we will announce this proceeding, we’ll just censure you, no need
to penalize you further. But then we will announce to the public what had
happened.” And that did it – and it all worked. And there was no ripple effect
or anything else like that. But it was really one of the great successes of my
career to be able to come up with a strategy and make it work without any blips
at all and of course that became the way to deal with the problem. We put that
formula in with respect to others, and it worked like a charm. Private
proceedings, clean it up, then announce it.
Mr. Bennett: Did you actually initiate these private proceedings against any parties?.
Judge Sporkin: Oh sure – yeah, we went to the Commission. Got authority, brought
proceedings.
– 32 –
Mr. Bennett: So there were private proceedings within the administrative framework of the
SEC rather than public proceedings.
Judge Sporkin: Yes, not public. It was a proceeding in which we alleged that the firm
violated the law by failing to keep your books and records up to date.
Mr. Bennett: And this hadn’t been done up until then.
Judge Sporkin: Never been done. Well, had there been private proceedings? There could
have been a private proceeding. But never done in this kind of a way. It was
using the statute to the benefit of everybody. And of course, we avoided any
kind of criticism – such as, why did you do it secretly? – because the fact is
we could show positively to everybody that it was a win – win.
Mr. Bennett: What do you remember as the other major accomplishments that stick in your
mind today about your time as head of Enforcement?
Judge Sporkin: The next thing that happened of course – I then became the Director – and
there I’m involved with various things at that time. I would go home at night
and watch the Watergate hearings. They used to be replayed at night on TV
and toward the end of the hearings, they brought in a number of corporate
officials who testified as to their corporations making contributions to the
Committee to Re-elect the President, which was President Nixon. And I
remember, after listening to the hearings one night, I came in the next day and
I called in one of my lawyers. Because of my accounting background, what I
wanted to know was: how could a corporation make an illegal payment – and
– 33 –
remember these were illegal because they were being made out of corporate
funds. These were not PACs that were making these payments. They were
clearly illegal. And I called in one of my lawyers and said – look, Gulf Oil
testified yesterday to making these payments. Would you go visit Gulf Oil.
Nothing elaborate – go and visit Gulf Oil and find out how did it make an
illegal campaign contribution. How was it booked? What account did it use?
And within a day or two the fellow came back. He said Gulf was very candid.
He was told Gulf had set up two Bahamian companies, called Bahamian X,
and Bahamian Y. Gulf funded it with five million dollars each. It then
brought the money back and put it in the safe of a fellow named Dorsey, who
was the Chairman of Gulf Oil. That provided Gulf with a slush fund of ten
million dollars to do whatever Dorsey wanted to do with it.
And we brought in the Gulf people and asked them, “Why did you do
it this way?” Interestingly, the reason Gulf did it this way, is that they
capitalized the money rather than expensed it, because they were afraid of the
IRS. So if you wanted to see mens rea or intent, it was there. They clearly
knew that they were doing wrong.
But the problem we had was that there was no rule in the book that
said that an industrial company had to keep accurate books and records.
Financial institutions had to but not industrial companies. I couldn’t believe it
so I said that, look, a company that’s engaged in illegal activity has to disclose
it to the shareholders. And my theory was that shareholders should know that
because we don’t know what could happen to a company engaged in illegal
– 34 –
activities. They could lose their franchise to do business, and that could be a
tremendous loss to shareholders. The problem I had was dealing with the
concept of materiality. If we went strictly on the ten million dollars in a
company like Gulf Oil, it would not be material. Quantitatively, it was not
material because it was a blip. And so we had to construct materiality on the
concept that it could jeopardize the company’s business. That would be
important for shareholders and thus meet the test of materiality.
And we took the issue to the five member SEC Commission. I must
tell you there was a tremendous battle at the Commission. Some
commissioners did not want to touch it, but with commissioners like Pollack,
we were able to convince the Commission to go this route. Well, of course
what happened then is what is happening today. It was not just Gulf Oil. It
was not just some of these other companies. It became so wide-spread that
over the period we had this program, we brought some 65 actions against
corporations for making improper payments. We found out that the accounts
that were being used for the improper campaign contributions were also being
used for other nefarious activities – such as bribing foreign officials. In other
words, they would use these monies to bribe foreign officials. We later
learned they were used to bribe domestic officials as well.
Finally, I got a call one day at a conference I was attending to come
home immediately. The SEC’s Corporation Finance Director, Alan Levenson,
a wonderful friend, also was asked to return to Washington. We were both
out of Yale Law School, although at different times, and we were very close.
– 35 –
And we were both called back and the Chairman said to us – look, this has
been going on long enough – we got to end it. So see what you can do, see
what you can come up with. And what Alan and I came up with was the
voluntary program. We put out the word to the corporate community that, if
they would go out and hire good lawyers and do an internal investigation and
report their findings to the shareholders and to the SEC, without giving them a
promise of amnesty, amnesty could happen if in fact we were satisfied. So
that program was another extremely successful program like the back office
program I told you about – and it brought in reports, self examination reports,
from I think it was 650 companies. And in very few cases did we take action
– so it worked. It worked so well that, if you notice in recent times the
Commission has dusted it off, and is now telling companies to do the same
thing. So it’s now in the arsenal of the Commission.
At the same time, there was a wonderful Senator, probably the greatest
Senator of all time, Senator Bill Proxmire. There is no more honest person.
Never took a nickel in campaign contributions, and walked the state of
Wisconsin to get re-elected. He had liked the work that I was doing at the
SEC. The Senator and one of his assistants, Ken McLain, called me and
asked, “Stan, what do we got to do to fix this problem? We want to do
something in Congress.” I said, “Senator, you’re not going to believe what
I’m going to tell you, but all you need is a one-line statute that would say that
companies must keep accurate books and records. Because if they kept
accurate books and records, they would have difficulty continuing with these
– 36 –
practices because the accountants would pick it up.” They would not be able
to hide it. He said, “It can’t be that easy.” I said, “It is, Senator.” He said,
“Alright, we’ll pass a law that says that.” He said, “But, we also want to pass
a law that says that it shall be unlawful to bribe a foreign official.”
We had a wonderful group of people at the SEC. We had Alan
Levenson and then we also had a fellow named Sandy Burton, who was the
chief accountant. You couldn’t ask for better colleagues, smarter people.
Burton added a provision that required companies to have good internal
controls. And so that became the law – three parts: 1) accurate books and
records; 2) an internal control provision, and 3) an anti-bribery provision.
That became the Foreign Corrupt Practices Act, which is still on the books
and is a very important part of the law. I was vindicated because if you look
at the cases brought, you’ll see that the vast majority are brought under the
books and records provisions. And very few under the bribery section,
because bribery is hard to prove. So that is how the Foreign Corrupt Practices
Act came into being. And I love it when I get called by foreign officials to
ask about the process and the procedure that we went through for our
government to adopt this law. They all think that there was a program, a plan,
or something. I hope I have some humility left, but what amazes me was what
one person can do is incredible in our government. I was one person. Now,
whether it’d be me or somebody else, it was one person that’s responsible for
this – which is an amazing kind of thing when you think of the power of an
– 37 –
individual – that you could have a law like this passed. An amazing kind of
thing, when you think of it.
Mr. Bennett: It is amazing. Maybe that’s enough for today.
– 38 –
ORAL HISTORY OF
JUDGE STANLEY SPORKIN
MARCH 23, 2004
This is the second interview of the Oral History of Judge Stanley Sporkin as part of the
Oral History Project of the D.C. Circuit Historical Society. It is being held by Alexander
Bennett on March 23, 2004. The tape and any transcripts made from the tape are confidential
and governed by the wishes of Judge Sporkin which have been made in the form of a written
donative instrument.
Mr. Bennett: As discussed a little bit ago, we are basically going to defer on further
discussion of your years at the SEC because we understand that there has been
an SEC oral history underway just about the same time covering many of the
same subjects. So we’ll pass that and go on to some other things. But one
thing that we did just want to ask you to start, Judge Sporkin, is why did you
leave the SEC?
Judge Sporkin: I left the SEC in 1981. I had been with the SEC at that point almost 20 years.
The last seven years I was the Director of Enforcement. They were very
difficult years. They had taken somewhat of a toll on me. These were long
days and nights – there were a lot of problems in the financial community –
we had tremendous number of innovative programs. Matters seemed to be
under control. I guess, let’s see, in 1981 – I was about 48-49 years old – and I
became restless. I was looking for a challenge. An election had just been
concluded. There would be a new Chairman coming in. This would mean
that I would have to go through a period of building trust between me and the
Chairman. This would happen every time a new Chairman came in. And so I
gave a lot of thought to what I wanted to do with the rest of my life. I thought
that maybe this would be a good time to even consider private practice.
– 39 –
There was also an interesting report that was prepared by the Reagan
transition team. The conclusion of the report was that the SEC had the finest
enforcement program in all of government but that they thought that it might
be time to change the leadership. It is my surmise that was based upon the
fact that we had taken a number of cases against major corporations. Some of
the cases were against political people. So it looked like that it may be
payback time for these folks.
Now, nobody ever discussed with me that maybe this was a time that I
should be leaving. John Shad, the new Chairman, and I had some discussions
but none about my career. I had weathered other changes in administration,
and I’m sure I would have weathered this one. Nevertheless, I thought this
was a time that I should be doing some thinking.
But before I could even start that thinking, I received a call from the
former Chairman of the SEC, Bill Casey. Bill Casey and I had hit it off when
he was Chairman of the SEC. He had two favorite high-ranking staff people –
myself and Alan Levenson. When Chairman Casey left the SEC, he became
President of the Export/Import Bank. At that time he called upon both Alan
Levenson and myself to go with him. He offered me the position of General
Counsel. Alan Levenson I believe was offered the position of Executive Vice
President, or the number two person at the Bank. I didn’t know that Casey
had talked to Levenson, and Levenson didn’t know that Casey had talked to
me. Nevertheless, both of us, without having discussed it with each other,
– 40 –
decided that we were not going to accept that offer. I told Casey that I didn’t
know anything about banking and I didn’t care to be a banker.
Fast forward now to 1981 and Casey had just been President Reagan’s
campaign manager. He was the President’s nominee to be the Director of the
Central Intelligence Agency. Early in 1981, it might have been February or
March, he called me and said that he wanted to see me at his apartment at the
Jefferson Hotel. On my visit, Casey, as he always did, came right to the point.
He said, Stan, you once turned me down when I asked you to be General
Counsel of the Export/Import Bank. I’m going to give you one last chance to
come to work for me. I want you to be General Counsel of the CIA.
I said, Bill, after deep consideration of your offer, I accept. That was
the way Casey and I operated. We made quick decisions. I believe that was
one of the reasons that endeared me to him.
To say that it was impulsive would be understating what that word is.
I had not discussed it with my wife or anybody else. I just did it. Of course
we had agreed that we would not tell anybody because there would have to be
a lengthy investigation of myself to make sure that I would be able to take the
job. It was interesting that, about a month before, I had been in New York
and I had met with an old friend of mine, Dean Robert Mundheim, who had
been the Dean at Penn Law School. We were having a drink in his hotel room
when we discussed my future. He said with some authority, without telling
me the basis of it, that I was going to be Casey’s choice to be the General
Counsel of the CIA. Bob Mundheim has never told me the basis of that
– 41 –
statement. Even to this day when I talk to him, he still won’t tell me why he
said that.
When I went home and told my wife, she was I guess a little bit put
out because she wanted to know at what point in my life would I be discussing
matters of this kind with her. She was sort of bipolar on this situation. On the
one hand, she was looking forward to my going out and getting a position
with a law firm and making some money. On the other hand, she was a
devotee of spy novels, and she sort of had a vicarious thrill by my going to the
CIA. Indeed, at one point she said to me that this would have been a better
job for her, since she knows more about spying than I know, and that I knew
nothing about spying.
So after I had accepted the job. I didn’t hear anything. Months went
by, and I didn’t know where I was. I of course didn’t say anything to the
people at the SEC. Then one day I was at a funeral of a friend, who was also
a friend of Bill Casey’s. After the funeral, a strange looking person tapped me
on the shoulder and told me to come with him. He led me to a limousine and
inside was Bill Casey. Bill asked me to get into the car with him and we took
off. I had gone to the funeral with a friend, a co-worker named Richard
Wessell. He didn’t know what was happening. He thought I had been
kidnapped and later he told me he was very worried for my safety because he
saw this fellow approach me and put me in this big black limousine.
We travelled to the CIA, at which point Bill sent me to the Human
Resources office. Harry Fitzwater, its Director, asked, “Do you know what
– 42 –
position you’ve been offered?” I said I believe it was General Counsel. His
instructions were to push me through the vetting process as quickly as
possible. I then went back to the SEC, and I believed it was understood that
we were going to run this like a covert operation, the CIA not making it public
and I not telling anybody at the SEC. Within a couple of days I heard the
receptionist at my office, saying “What, you’re from the CIA?” And there
were these two folks from the CIA starting to talk to people – or wanting to
see me, I guess – at which point I hurried them into my office and told them I
didn’t expect that’s the way they operated. But that began the vetting process,
which shortly ended in my going over to the CIA.
One other interesting thing happened. During this transition period,
when it was not known publicly that I was going to the CIA, all of the senior
officials of the SEC and the commissioners were over at the White House at a
ceremony at which, I think, one of the new commissioners was being sworn in
by the Vice President at that time, George Bush. After the ceremony there
was a receiving line and the Vice President was walking down the receiving
line, and shaking hands. This is the first time I met the Vice President. He
came over to me and pulled me aside. I did not know how he knew my name.
He said, “Stan, I’m pleased that you’re going to be working with us.” This
always impressed me about the senior Bush. He has a tremendous memory
for faces and names because in subsequent meetings with him, he would
always pick me out of a crowd and say to me: Hey, Stan, how are you? And
it was tremendously impressive that a person who meets as many people as he
– 43 –
meets during any period of time could remember their names and also attach
them to their faces.
So, that began my tenure at the CIA. The first day I went there, they
put me in an office and there I was with nothing to do. Nobody came to see
me and I didn’t go out to see anybody. This happened for about two or three
days when I was trying to figure out what was going on. During my tenure at
the SEC my office was like a train station. People were moving in an out all
the time, and I didn’t appreciate this silent treatment. I guess it was because
the lawyers in the office were trying to size me up and I guess they sort of
were a little bit squeamish about coming in and being the first to say hello.
But that shortly broke down. And I started to read about national security. I
knew nothing about it. I had to learn a lot. But that never stopped me in the
past taking on new challenges.
It was interesting that during the vetting process. I was asked: Why
do I want to work for the CIA? What was the compelling reason? And my
answer was: I didn’t have this great desire to work for the CIA but it was only
because I enjoyed my prior relationship with Bill Casey and I would like to
work with him again. The inquiring office CIA staff psychiatrist seemed a
little taken back by that response. People come to the CIA because they really
believe in its mission and want to serve the country in that position. I
certainly believed in its mission but I was never a person who had a great
desire to work for a spy agency. This was especially so since I knew that,
unlike the SEC, where if you left the SEC you became very employable,
– 44 –
working for a spy agency there’s really not very much you can do once you
leave the agency. So this is not a move I made to enhance my career in the
sense of some day trying to earn money based upon having worked for the
CIA.
Because I didn’t know anything about national security law, I felt at
the beginning like a fish out of water. Then one evening within the first three
or four weeks I had been there I received this call at home from a fellow who
said, “Hello, this is Max.” This is maybe 9:30 in the evening. And I said,
“Max, Max who?” He said, “Max, from the place.” I said, “Max, from the
place?” “What can I do for you, Max?” In the meantime, my wife is listening
to my end of the conversation. He said, “I’ve got to see you right away.” And
I said, “Why?” He says, “The boss told me to get in touch with you and
discuss this matter with you right away.” I said, “Well, where will we meet?”
He said, “At my place.” I said, “Where is your place?” He says, “Near the
other place.” As I’m having this conversation, I can only think of a Bob
Newhart monologue. I finally got an address and instructions how to meet
this fellow, at which point my wife said to me, “Don’t go, it’s a set up.” I
said, “How could it be a set up when I don’t even know what this is all
about?”
In any event, as we long-standing husbands often do, we don’t listen to
our wives, and I went. And I met this fellow, Max Hugel, who was the newly
appointed Director of Operations, which is the position that oversees the CIA
spy network. He related to me a story about an article that was going to be
– 45 –
coming out in the Washington Post in a day or two concerning him and two
brothers who had had certain relationships with him. The subject matter of
the article was a stock transaction, and the article would be critical of his role
in the transaction.
I went home that evening and said to my wife, “Would you believe it,
here I got my first assignment working for the CIA – what is it but a stock
transaction. Something I know something about. How in the devil could I get
so lucky.” The next day of course I went to the agency and called Bob
Woodward who was the reporter on the story and whom I knew from my SEC
days. I told him that I wanted to come by and see him to talk about the Hugel
matter. He said he would see me on one condition. I said: what was that?
He said I would have to bring Hugel with me. I told Woodward that I did not
represent Hugel but I would see if he wanted to come and that I would get
back to him. At that point, I spoke to Max and I told Max he’d have to get his
own lawyer. I could not represent him. He wanted to go to the Post to be able
to see what happened. I called Judah Best, who was an old friend of mine,
and asked him would he represent Hugel. He said yes. Hugel liked him and
retained him.
We went to the Post, at which point we entered a dark room. There
must have been seven or eight people there. They started to question Max and
the questioning went on for some time. I saw that there was a problem.
While these two brothers were fugitives, I could see that this could cause a
problem. In the middle of the session, who walks in but Ben Bradley, and he
– 46 –
was beside himself. He wanted to know who had turned the Washington Post
into a court of law. He said he had never seen anything like this: with a
transcript, with people being questioned, where lawyers were involved,
objecting to questions. He wanted to know who was responsible for that.
And he put an end to it.
In any event, I had the information that I needed to make a
recommendation to the Director. I came back and, as I was coming back from
the testimony, I prepared a draft of a letter of resignation. I went to see the
Director and the Deputy Director. I talked to Max, and I told Max that: Look,
I knew how Washington worked. If this continued, I was sure that this would
have congressional repercussions. Since Casey was already under fire for
allegations that he was involved in the so-called October Surprise, this could
topple the whole Casey administration at the CIA. I also mentioned to Max
that I thought what would happen to him is that they would call him before the
Committee. If he denied the allegations, which he was probably right in doing
so, that denial nevertheless could cause the Congress to refer the matter to the
Department of Justice for prosecution for obstruction of justice and perjury.
Even at that early date, I had it figured out that the great joy in the
prosecutorial community was to prosecute people for easy to prove crimes
such as perjury and obstruction of justice. If you look at the history, you’ll
see that some of the biggest cases are those cases. I said, however, that, if he
did resign, what would happen would be that the day after the resignation
there would be a piece in the paper, and the day after that there would be
– 47 –
follow-up stories and that following that, you would probably never hear of
Max Hugel again. And that would be the end of it.
What happened was that the Director and Max followed that advice.
Max resigned, the Director accepted his resignation with regret. There were
two stories, and I don’t know if many people heard of Max Hugel again.
For a lawyer, when the strategy works as well as this one, obviously
the lawyer gets great pleasure out of that. The problem is that nobody knows
about it because it worked so well. This probably was one of my most
memorable victories – if I can use that word as a lawyer – because it worked
exactly the way it was supposed to work. Max was not pursued by either
Congress or the Department of Justice. It almost reminds me of when a kid
gets bar mitzvahed, the temple never hears from him again. Well, Max was
never heard from again. Casey saved his job. The Administration didn’t have
to go through a bloodletting period. What happened to those two brothers we
don’t know. Max should have prevailed on the merits, but that’s problematic
in Washington.
Mr. Bennett: Apart from this, were there other important issues at the CIA that you feel you
would like to talk about today?
Judge Sporkin: Oh, yes. But before I address them, I should add that the point of the story is I
couldn’t have asked for a better issue to come up early in my tenure at the
CIA. It allowed me a victory very early on, because I knew the area. It gave
the Director and the people at the Agency more confidence in me.
– 48 –
There were many other issues when I got there. We had an Executive
Order which had just been rewritten. Casey had told me: don’t worry about
it, it’s going to be signed and that I would have nothing further to do with it.
Well, when the draft went over to the White House, the staff was very
displeased with it. It was sent back with a notation that it’s warmed over
Carter, and that Reagan should have his own Executive Order. They were
concerned because the Carter Administration had put so many restraints on
the Agency preventing it from doing its job. So my next task was working on
a new order. We were able to accomplish that. We got it accepted and that’s
why we have a new Executive Order. It’s still operative.
Mr. Bennett: The Executive Order in that case dealt with what subjects?
Judge Sporkin: It dealt with a whole variety of subjects – domestic spying, all the things that
the CIA could and could not do. It was designed to lift some of the restraints
that were in the predecessor order.
Mr. Bennett: And this is basically the Executive Order that’s in place today?
Judge Sporkin: It think it is. I’ll have to check that out. Yes, that should be the one that’s in
now in effect.
Then we had the Nicaraguan situation. Here’s where the Reagan
doctrine developed. Casey and I had a discussion one day when we thought it
might be appropriate for Reagan to enunciate a so-called Reagan doctrine.
Casey understood that, at that point in time, wherever Communism overthrew
– 49 –
another form of government, there had never been an instance where
Communism was later overturned. That was of concern to Casey and the
Reagan White House. So therefore the Reagan doctrine was developed,
which in effect said that we must do everything we can to prevent
Communism from taking hold, because of the fear that it could never be
turned back. And here we had this threat in our own hemisphere. There was a
very serious chance that Communism could come up through Central
America.
To meet that threat, the Reagan Administration wanted to send support
to the Contras. The Congress did not want the CIA to be overthrowing the
Nicaraguan Government. When I said the Congress didn’t want the CIA to
overthrow, I mean that they didn’t want the public to think they were
authorizing the overthrow. They thought that would be impermissible to do
that. At the same time, most members of Congress wanted to give the aid.
They were concerned about the encroachment of Communism. And so what
was put on the budget was a rider that was called the Boland Amendment. As
I recall, the Boland Amendment said that they would give funds for aid to the
Central American governments but that the money could not be spent for
overthrowing the leftist Nicaraguan government.
Now, when that amendment passed, everybody at the CIA thought that
they had a big victory, because they had the authorization to spend money in
that area, so long as it was not for the overthrow of the government. They
could use it for other kinds of things – supplying food to the people and other
– 50 –
things so long as it didn’t involve the overthrow of the government. When
that came back to the Agency, everybody was happy and pleased.
I saw that this was a potential area for future problems. I could
imagine a situation where money was spent for impermissible activity. I
therefore convened a small group of my lawyers to tell them that we had to act
as counselors to our client. It was interesting that the office – the lawyers –
seemed not to understand the role of a lawyer as a counselor. In virtually all
of their dealings, the General Counsel’s Office was a reactive office, reacting
to the present danger. I had to explain to the office what counseling was all
about and that in this case we had to counsel our client in a proactive way.
We had to tell them how to take steps they would have to take to comply with
the Boland Amendment or to make sure that the Boland Amendment was not
violated. And so we prepared a document which would tell our operatives in
the Central American area what they could and what they could not do, so that
we could be able to protect our people and make sure that was happening.
Also, we made it clear to our operatives that this would be policed.
When this went to Casey, my colleagues said that he would be against
it. And I, of course, knew Bill and I took it to him and I said: we have got to
do this and we have got to comply with it because, I said to the Director, the
Agency’s going to be in hot water if it doesn’t and this thing blows up.
Because I could envision these hearings on the Hill where they’re going to say
how come we violated the Boland Amendment.
– 51 –
And Casey’s reaction was typical Casey. He looked at it. He took his
pen – remember he was a very literate person, a very good lawyer, the most
brilliant person I’ve ever met in my life. And he took the paper, and he took
his pen and he went through that document that we had drafted and instead of
loosening it, he tightened it. And he says now we can’t do this, we can’t do
that, and he made it into a much better document. And the beauty of it was to
watch how Casey reacted, and he never would say you did a good job. You
knew when you did a good job for him. But in this case what he said was
“And I’m gonna have to teach you how to do these things and to write these
things correctly.” But that document – he was very pleased obviously – and
that document I believed saved the Agency from a great deal of criticism
because when some of the mischief makers on the Hill were going to try to
prove that we violated the Boland Amendment, when they came up to it, when
they saw that the Agency had been planning and had done what it should have
done, of course they were unable to prove anything. And that became the end
of the concept of the gotcha aspect of the Boland Amendment.
Now, of course, later on we had the Iran-Contra problem. And that
problem arose when I was just getting ready to leave the Agency to go on the
bench. I’d been confirmed. I had to clean up. I think I’d been confirmed. In
any event I was very close to confirmation, and I had to stay about a month to
clean up certain matters. And then I got a call one day from the Deputy
Director, John McMahon, who told me that two briefers would be coming
over to talk to me about a recent operation.
– 52 –
These two briefers came over to me. I talked to them. They told me
about an operation that had taken place that weekend – this was on a
Monday – in which a plane of the CIA’s had been used to transfer certain
arms all for the purpose of getting our hostages back. The hostages had been
taken by Iran. After the briefers left, I heard them and I think Mr. Dietel, who
was my deputy, was with me. We later convened a group of four when
Mr. Clark and Mr. Makowka joined us.
As I was listening to the briefers, I saw what had to be done and I told
these people at the meeting as we discussed it. I said what we need in this
case is a Presidential finding to permit the Agency to do what it had been
doing. We had a long discussion, as lawyers usually do, half the time being
spent on discussion to the effect that this was not a covert operation and the
finding was not necessary.
I said: we can’t go that route. We’ve got to protect the Agency. The
only way I know to protect the Agency is to do a finding. And at which point
I called my secretary in, and I actually dictated the famous finding in which I
had to cover several points. First, it had to protect the Agency, the people
who performed this operation, and had in effect to acknowledge that the
President was behind it, which would happen if he signed it. Secondly, I had
to deal with the issue that these were arms being swapped for hostages.
Therefore, the document had to spell out the arms-for-hostages aspect of it.
Third, it had to deal with the fact that the activities had started to occur over
the weekend. While there is a right way and a wrong way to deal with this
– 53 –
type of problem, I obviously chose to do it the right way, which was to have
the President ratify all of the actions that had been taken up to that point in
conjunction with that operation. This issue involved when Congress would be
notified. Because of the sensitivity of the project, a provision to defer
notification was included in the finding.
We prepared the document and sent it up to the front office. Casey
wasn’t around then – he was away – but McMahon handled it and apparently
the strategy was approved and I was told it was taken to the White House.
Now that document, even though it was maybe one or two paragraphs, should
have really limited the flare-up that occurred about it. The problem was that I
was out of the Agency at that time and that nobody brought the finding to the
attention of the investigators. Therefore, during the investigation, as usual, a
number of people told stories that were not consistent and got themselves into
trouble. But the finding should have protected everybody who acted under it.
The only person that would have been exposed would have been the
President, but he should have been able to handle it, since Presidents do
approve certain covert operations.
That really should have been the beginning and the end of the
Iran-Contra problem. But of course it spun out of control and that’s why it
became a very big problem for the Administration. After the first finding,
there came two additional findings, because the President and his people
decided that they liked the idea and they wanted to expand it. But if the
findings had turned up earlier, I don’t think you would have the problems that
– 54 –
the Administration faced concerning it. I remember, when I was questioned in
my chambers, the questioning really revolved around whether I was truthful in
telling them that there was a finding. These investigators thought that this
operation was done very carelessly and that there was no paperwork that
supported it. I remember their saying: where is the finding? How come they
don’t have it? Is this something that I invented? The way we found it was
that my former secretary, who had taken my dictation and had put the
document in her machine, was able to retrieve it. And, of course, once that
happened, all the findings were later recovered, and the investigators realized
they had to go another route.
Why don’t we end that today and we’ll have to come back. I’m
getting a little tired.
Mr. Bennett: OK. Fine. Let’s end for today.
– 55 –
ORAL HISTORY OF
JUDGE STANLEY SPORKIN
MAY 14, 2004
This is the third interview of the Oral History of Judge Stanley Sporkin as part of the Oral
History Project of the D.C. Circuit Historical Society. It is being held by Alexander Bennett on
May 14, 2004. The tape and any transcripts made from the tape are confidential and governed
by the wishes of Judge Sporkin, which have been made in the form of a written donative
instrument.
Mr. Bennett: We finished the last session just as you were commenting on the
national-security Findings that had been signed by President Reagan in
connection with the Iran issues. To start off today, let me ask if there is
anything more about those incidents you would like to add.
Judge Sporkin: Well, I’ve already noted that I believe a good part of the sting could have been
removed from the Iran incidents if early on the Administration had disclosed
the three Findings that were signed.1
Those Findings, since they were drafted
in good faith and were intended to help the Administration in carrying out its
obligations to the citizenry, would clearly absolve most of those who were
involved from any liability when they acted under the Findings.
The Findings were drafted and signed in the utmost good faith. The
only people who would have had to worry about the Findings were those who
tried to turn the activity into personal benefit and possibly the President for
having signed the Findings. I did not know anything about the redirection of
funds from the Contra program. I did take into account, when I drafted the
1 The three Findings were: (1) the Finding drafted by Judge Sporkin on or about November 25,
1985, and signed by the President on or about December 7, 1985, (2) the broader Finding signed
by the President and dated January 17, 1986, and (3) a substantially identical Finding by the
President dated January 6, 1986, which was effectively superseded by the Finding dated
January 17, 1986.
– 56 –
early Finding, that the President’s position with the public could be affected if
he decided to sign the early Finding. While I realized that the operation had
many risks and that the chances of it being pulled off according to the plan
were probably less than 50-50, I thought that that was a decision that the
President can make. I also thought that if it did go off as planned, then the
President would be viewed as a great hero. Indeed, I could envision a ticker
tape parade down Fifth Avenue with the freed hostages and the President
being greeted by millions of people. So the decision was really up to the
President.
The Findings were of interest in several other ways.
I will take full responsibility for the first Finding. It was my idea, and
I drafted it shortly after I was briefed on the project.
The two follow-on Findings, which came to my attention in
January 1986, were drafted by the President’s National Security staff, which
was clearly a validation of my advice and thinking on the original Finding.
In connection with these additional Findings, there was a dispute
between Director Casey and Secretary of State Schultz. Colonel North, who
was the National Security Staff member assigned to drafting the new Findings
in January 1986, met with me in Director Casey’s home one Sunday in
January 1986. As I recall, the draft Finding did not include a mention that one
of the purposes was to authorize the transfer of U.S. arms for the hostages.
North reported to me that Secretary Schultz did not want that point made in
the Finding. Schultz thought that it would be very detrimental to the President
– 57 –
that he was willing to trade arms for hostages, if and when the Finding
became a matter of public disclosure or disclosure to the Congress. I insisted
that the Finding include mention of that transfer of arms for hostages. I
reasoned, based upon my SEC background, that for there to be adequate
protection from a document, the document had to have full disclosure. I
advised North that it would not be worth the paper it was written on without
that Finding included in the document.
North again mentioned Schulz’s objection. At that point we both
approached Casey for Casey to make the decision. As noted, Casey had one
of the finest and quickest analytical minds I’ve ever seen. After the issue was
presented, within a matter of seconds he recognized the validity of the point I
made and said that the subject had to be included. North said he would
communicate that fact to Secretary Schultz. Later, I was advised that the
Casey position prevailed.
Ultimately the position I had espoused that the Finding really protected
everybody on a substantive basis was born out by what in fact resulted from
the investigation by the Office of Special Prosecutor. No one was prosecuted
for the substantive conduct covered by the Finding. The only indictments
pertained to the twin issues of obstruction and perjury.
Mr. Bennett: Judge Sporkin, in addition to those issues, there was this issue about diversion
of funds from arms sales subsequent to your departure from the CIA, which
was another source of controversy and one that was looked into by the Office
– 58 –
of Independent Counsel. Did that sort of issue ever come up during any of
your discussions?
Judge Sporkin: It never came up. I was as surprised as anybody when that issue surfaced a
number of years later when I was on the Bench. The fact is that, if I had
learned about something like that at the time, that’s the kind of event that I
would never have been involved in or would have approved.
Also, as I mentioned, the position I generally took was that, if a person
is going to be absolved from a questionable activity, it would require that the
activity be included in the Presidential Finding. So if we could imagine that I
had a lapse in the first instance that allowed such a diversion of funds to be a
part of a covert operation I knew about, I clearly would never have permitted
that such diversion to be omitted from the Presidential Finding. Otherwise the
Presidential Finding would have no effect to authorize or protect that activity.
Of course the fact is that the diversion of funds never was brought to
my attention until the activity was publicly disclosed years after it took place.
Mr. Bennett: One of the things that we were discussing before we started here today were
some of the dates when you were confirmed, when your commission was
signed for the Bench and when you actually departed from the CIA. I think
we were not able to identify the precise dates but we were pretty confident
that you were confirmed by December 16, 1985, that your commission
probably was signed at some point that month, and that you did not leave the
– 59 –
CIA until February 7, 1986. Can you fill us in on why you stayed at the CIA
during this period after the commission was signed?
Judge Sporkin: It clearly had nothing to do with the Iran-Contra problem. What happened is
that I owed a debt to Casey because it was through his efforts that I was able
to be appointed to the bench. I therefore did not want to abruptly leave the
agency and leave him without having a counsel in place. So what we
attempted to do during that period is try to find someone who would take my
place and to have a reasonable break-in period so that there could be an
orderly transition.
Mr. Bennett: Judge Sporkin, just to go back on the issue of the national-security Findings.
The first one had been drafted by you, as you previously explained, on or
about November 25, 1985. We later learned that it was signed by President
Reagan on December 7, 1985. This particular signed document ended up
being placed in a safe at the White House and ultimately destroyed. The text
of the Finding was later located through the efforts of your secretary at the
CIA. The second Finding, in January 1986, of course became available too at
about that time and came to be known.
That first Finding actually was relatively limited in its scope in the
sense that it addressed the issue that you were confronted with when you first
saw this set of facts on November 25, 1985. It authorized transportation and
communication assistance in connection with this project and identified it as
an arms-for-hostage proposal. Then later, in January 1986, the White House
– 60 –
itself came back with draft of a second Finding. Can you elaborate on what
your role was with respect to the second Finding?
Judge Sporkin: My role was limited really to reviewing it to make sure that it would cover all
of the activity that was contemplated and that it would be an effective
document. And that’s what I did.
You have to remember that it is really for the CIA to draft such
documents. And so therefore it really needed my okay and to come up
through the CIA to be an appropriate Finding.
Mr. Bennett: While you were at the CIA there were some other incidents that perhaps you
cannot talk about. But one that you mentioned that you thought you could say
something about was an incident involving ABC?
Judge Sporkin: The ABC case shows you the varied aspects of the position of the General
Counsel. One day we found that ABC put on a TV program that indicated
that a fellow named Raywald was a person utilized by the CIA to do various
nefarious activities that were really contrary to the CIA’s charter. The report
was wrong. Casey was furious. He called me and asked me what I was going
to do about it.
This was another example of Casey’s method of operation. He forced
you into making quick decisions in the course of which they had to be good
decisions and with the exercise of exquisite judgment. You didn’t get a
chance to tell Casey: let me research it and I’ll be back to you in three weeks.
He demanded the answers at that moment.
– 61 –
I thought quickly about the ABC issue and advised Casey of a course
of action that I thought might work. I requested of him the time for me to
check on the accuracy and correctness of my advice. My advice was for the
SEC to file a complaint with the Federal Communications Commission under
its fairness doctrine. The theory was that we could draft a petition that would
be like a speaking complaint normally filed in an injunctive action. We would
thereby have the opportunity to get our side across without the risks involved
in a court action, which would have subjected the agency to all kinds of
discovery on all kinds of matters. That was always the problem that the
agency faced when it was wrongly accused of doing something, because it
would not be able to fight back and utilize the court system.
I explained my analysis to Casey. I mentioned to him that as far as I
knew it had never been done before, which I later confirmed was true. But I
did say that, before we invoked that strategy, I would like to visit with the
ABC officials to see if I could get them to voluntarily retract the news story.
Casey bought in on the plan and dispatched me to New York to visit with an
ABC vice president.
My discussions with the ABC official got us nowhere. The network
was arrogant and would not budge from its position that the story would stand
as broadcast. When I arrived back at the agency and explained what had
happened to Casey, he demanded that we immediately carry out the FCC plan.
We did so. It worked even better than we expected. The complaint was filed,
which caused the media to take note of what we had to say. Indeed, the Los
– 62 –
Angeles Times told the agency’s story in a cover story in its Sunday news
magazine.
ABC’s reaction was to move to dismiss the action claiming that a
government agency had no standing to make such a claim. We won that
motion, which again made ABC look bad.
Sometime after the matter was closed, I was talking to a former
high-level reporter of ABC, who told me an interesting story. He said that
after I had spoken with the ABC vice president, the ABC vice president
reported that I had said that if ABC did not publish a retraction, we would
have to take appropriate action against the network. I did not tell the ABC
vice president the nature of that proposed action. I wanted it to be a surprise
attack.
The ABC vice president thought I was bluffing. He reviewed the
matter with ABC’s general counsel, who reported that there was absolutely
nothing that the CIA could do to ABC in the form of bringing an action or
otherwise. The former ABC reporter who was conveying the story to me said
that, after we had brought our complaint before the FCC, the vice president
went back to the ABC general counsel and said: “Damn it, I thought you told
me that Sporkin was bluffing and that he could do nothing to us. How come
he was able to think of the FCC action and you weren’t.”
The ABC reporter thought that the story that ABC had televised was
inappropriate and was pleased that we had taken the action that we did, which
gave ABC a good spanking.
– 63 –
Mr. Bennett: {After a short break.} During the break to take the call, we agreed to just
come back and ask you what was Mr. Casey’s reaction to your success with
this matter.
Judge Sporkin: Well, Casey was the most incredible individual; the brightest man I ever met.
I had maybe three great mentors. Casey, of course my father and Irving
Pollack, who was my boss at the SEC for many years.
Casey’s style is very interesting. He showed his appreciation for what
you did, not by slapping you on the back and telling you that you are doing a
good job, but by giving you more work and more responsibility and relying on
you more. So after the ABC matter of course it meant that I would be called
in on more matters and asked to advise him on a variety of things.
The other thing that was amazing is that Casey and I were able to
communicate with each other without direct communication. Casey was
always on the move, and he was doing so many things he oftentimes forgot to
tell me about certain matters that I had to know about. This is what I mean
about being able to communicate without actually being in direct
communication.
For example, he would send people to me to brief me on a matter
without having forewarned me that these people were going to be coming.
However, the briefers did not know that Casey hadn’t called me, and they
assumed that I knew what they were there for and expected me to be prepared
to advise them. Since this was the way Casey operated, I would not let on that
– 64 –
Casey hadn’t called me. Instead I would tell the persons who were visiting
that I would very much appreciate it if they could just quickly sum up where
they are so that I could better focus on the matter. I knew that Casey expected
me to run with the ball and to provide the advice, and that usually would turn
out to be an effective way of doing business. It worked pretty well.
There are two other matters I think that would be of interest. I think
that I mentioned on a previous occasion that when I first came to the CIA,
there was a proposed revision of a basic executive order governing the CIA
already underway. President Reagan had wanted to supercede the earlier
order of President Carter, which very much limited what the intelligence
agencies could do.
When I came in, I was told by Casey that I should not worry about the
new executive order, that it was being worked on and that I would not have to
get involved. I was told that it was ready to go over to the White House and
be signed. And so I didn’t do much with it.
It turned out that, when the proposed order did go over to the White
House, it came back as fast as it landed. I think that I mentioned that the
National Security Council stated that they did not want warmed-over Carter.
So when the document came back, I obviously had to get involved.
We redid it. It went back over to the White House. When it came time to be
signed, for some reason I did not receive the invitation. The people who had
worked on the warmed-over Carter piece did go over, and they took all credit
– 65 –
for that. That might have hurt me a little bit. Casey’s reaction was very
simple. He said don’t worry about it, Stan. We all know who did it. That
soothed over things and also made it clear that Casey would realize what had
really been done. There were a number of other instances where this
happened.
Let me give another illustration of Casey’s style. When I came in, we
had put out a contract to build next to the CIA building, which was to be an
addition of the same size of the existing structure. This had all been done
before Casey or I came in. I learned that the company that they were going to
award the contract to was a foreign company. I went to Casey. I didn’t know
anything about the way the agency worked. So I said to him: “Bill, does it
sound a little odd to you that the company that’s been designated or awarded
the contract to build this new building is a foreign company?” He looked at
me and said: “It does seem odd to me.”
For reasons that I think are obvious, you need the highest degree of
security when you construct an intelligence building. Casey said to me:
“Okay, well, do what you have to do.” I took that to mean that we had to do
something to change who would construct it. It happened that the number two
company that came in the bidding was a Detroit domestic company, and
arrangements were made that that company would ultimately get the contract.
Apparently the contract had not been signed. So we could make the change.
But all hell broke loose after that, because Casey gets a call from a
– 66 –
senior Senator – I don’t remember his name, but a Senator that had a lot to do
with the CIA’s budget and a lot of other things – who obviously was behind
the foreign company and wanted to know from the Director how dare that
company not get the contract. So, Casey called me and said, you know you
got me in trouble on this one. I said, yes. He says, go and fix it. I said, what
do you mean? He said, go over and see the Senator and you do what you have
to do.
Obviously Casey was being very facetious with me in the sense that he
really wasn’t chastising me for doing what I had done. He simply wanted me
to go and take care of the matter. So I did visit with the Senator’s
Administrative Assistant to explain to him that nobody’s going to look very
good if it ever came out that the Senator was behind a non-American company
to build this annex to the CIA. As you know, Senators are politically astute.
They got the message and we never heard from them again. So that took care
of that problem.
Mr. Bennett: Well, it is a quarter to four. There’s one subject we could perhaps start but
maybe not finish before your commitment at four. Let us move on to the next
phase of your career when you went over to the bench. Let us start by asking
you how was it that you came to be a judge?
Judge Sporkin: All right, I’ll explain that. It was my goal in life to be a judge. I loved the
law. I read the law from the beginning of my teenage years, I guess, and even
before that. In those years my father was a prosecutor. He was an assistant
– 67 –
district attorney in Philadelphia. He was a career prosecutor, although you
could be a career prosecutor and also have a practice at the same time. It was
a part time job. Although you could not practice criminal law, you could
practice civil law.
I was very taken with the law. My father did not encourage me at that
time. He said he’d rather that I become a doctor. He thought the law was a
difficult way to make a living. We were certainly not wealthy, though my
father did make enough money to get by and educate his kids and do what had
to be done. Now remember this is all during the depression and later war
years.
Nevertheless, I very much enjoyed watching him operate. I enjoyed
seeing him prosecute cases. I knew I wanted to follow in his footsteps.
My father later became a judge. I wanted ultimately to do that as well.
At that point he encouraged me.
While my father had been in politics in Philadelphia, I did not really
go that route. I knew you would have to have political backing to obtain a
judgeship. I realized that it would be difficult to obtain a judgeship without
getting into politics.
During my time at the SEC, I was on a list to become a judge and a
number of other positions because of my record at the SEC. In addition to
being put on a list to go before a judicial selection commission, I was also on
a list to become the director of the FBI. But for one reason or another, I never
made it to the top of these lists.
– 68 –
The next thing that happened was during my time at the CIA. Bill
Casey and I had a mutual friend who we very much respected. His name was
Milton Gould, a prominent New York attorney. Milton knew of my desire to
become a judge and unbeknownst to me, and without my permission, he went
to Casey and told Casey of my desire. Casey was not aware of my career goal
to be a judge. I later learned that Casey asked Gould how he should go about
helping me become a judge, at which point Gould told him: why don’t you
start out by writing a letter to the President. Gould reportedly said to Casey
that, since Casey had been President Reagan’s campaign manager, he
certainly should be able to obtain some consideration for such a
recommendation.
Casey did write such a letter, and it apparently worked. I remember –
I guess it was in 1984 – receiving a call from Ed Schmults, who was the
Deputy Attorney General. Ed and I knew each other, because he had
represented persons before me at the SEC. He was an exceedingly competent
attorney and worked extremely well with Attorney General Smith.
Ed Schmults said to me that the President would like to appoint me to
be a judge if I agreed to such appointment. I said I would be honored to be
appointed a judge. He then advised me at that time that there were no
vacancies in the District of Columbia Court House, at either the district court
level or the Court of Appeals level. He said that because my background
would qualify me to be a judge on either of the two courts, he wanted to know
– 69 –
what my preference would be between the two. I told Mr. Schmults that I
would take the first vacancy available.
Within a matter of weeks, Schmults called me back to tell me that
Judge June Green had recently become a senior judge and that there was a
vacancy on the district court. If I wanted it, I would be appointed. I
responded that it sounds fine to me, and the process of becoming a judge
began. This entailed first being vetted by the Administration and the FBI and
then by the American Bar Association.
There was no real difficulty in the FBI investigation, and the ABA
gave me a highly qualified rating. The real problem came about when my
name was submitted to the Senate. It became obvious that my activity as the
Director of Enforcement at the SEC had caused a number of people to declare
it was payback time. The people who were particularly influential included
Senator Denton of Alabama. My confirmation process spanned a period of
some 18 months, including a Presidential election and a second nomination.2

This brought about a very difficult period in my life. There were
several times when I was ready to quit the process and go out and do what
some of my fellow SEC colleagues did and enter the practice of law and quit
being a public servant. At each one of these occasions, Casey said he would
2
Judge Sporkin’s original nomination was sent to the Senate on June 28, 1984. The Senate
never acted on that nomination, and it was returned to the President on October 18, 1984. The
President renominated him the following year. The nomination was sent to the Senate on
April 5, 1985. The Senate Judiciary Committee had closed hearings on October 29,
November 7, November 15, November 20, and December 10, 1985. There was also an open
hearing on December 10, 1985, and Judge Sporkin was confirmed by the Senate on Monday,
December 16, 1985.
– 70 –
hear nothing of it.
My enemies brought up all forms of scurrilous charges, two of which
emboldened me to fight on because they were so outrageous.
First, an investigator from the Hill interviewed the chief of security at
the CIA to question my loyalty to the United States in view of the fact that I
had taught at Antioch Law School and Howard University Law School. To
this investigator it was thought to be subversive for someone to have taught at
schools like Antioch and Howard. The Director of Security, Bill Kotavish,
was a wonderful individual who was as outraged as I was for someone to
make such an accusation.
The second incident involved a scurrilous charge that I somehow was
involved in an obstruction of justice because I had arranged for a CIA agent to
be represented by counsel during an investigation of the agent. The
obstruction of justice charge got some play. One day I received a call from
Senator Thurman’s Administrative Assistant, who told me that I was under
investigation for obstruction of justice and that there would be a hearing on
the matter but that I would not be allowed to be present.
Because someone used the words obstruction of justice, I decided that
I needed counsel and went to my old friend Edward Bennett Williams, who
said he would represent me. Ed Williams could not believe that anybody
would seriously consider such a charge on the sole basis that I had arranged to
obtain counsel for a CIA agent who was under investigation. Because he was
concerned that I was not going to be allowed to be present at the hearing, he
– 71 –
immediately went into action and contacted the Committee to explain to the
Committee that, under the concept of due process of law, the person accused
of a charge such as obstruction of justice had the right to be present when his
accusers testified.
We won that battle, and I was present at the hearing. It turned out that
the charge was based upon the facts that, when the agent retained the counsel I
had recommended, the counsel needed some time to prepare his client’s
defense, that such preparation delayed the proceedings and that accordingly
there was an obstruction of justice. You would not believe the expressions on
the part of the senators when they heard that claim. Other than Senator
Denton, no one could believe the basis for the charge.
One of the purposes for holding the hearing was to force the agent to
take the Fifth Amendment. My opponents thought that, if this would happen,
they could put my hearing off until such time as the issue was resolved, which
would have in effect defeated my nomination. The agent was a stand-up
person, who I believed was innocent of the alleged misconduct. Indeed, he
was never charged with any violation, although he had to resign from the
agency.
Mr.Bennett: OK, we hear the phone ringing so we’ll end for today because of your other
commitment and pick up here the next time.
– 72 –
ORAL HISTORY OF
JUDGE STANLEY SPORKIN
OCTOBER 4, 2004
This is the fourth interview of the Oral History of Judge Stanley Sporkin as part of the Oral
History Project of the D.C. Circuit Historical Society. It is being held by Alexander Bennett on
October 4, 2004. The tape and any transcripts made from the tape are confidential and governed
by the wishes of Judge Sporkin, which have been made in the form of a written donative
instrument.
Mr. Bennett: I think the last time we got together we ended as you were telling us about the
confirmation process. You had just at that stage explained how the issue raised
by Senator Denton about your alleged obstruction of justice had basically been
dealt with in a hearing. We wonder if you could continue and explain the rest of
the process by which you came to be confirmed as a judge.
Judge Sporkin: I think I told you it was sort of bizarre when I was told that the issue of
obstructing justice was based upon the fact that I had recommended a lawyer to
a CIA Agency official who was under investigation. I think I mentioned that
Edward Bennett Williams had never heard of anything like it. In any event, we
had the hearing. The strategy of my opponents was to subpoena this individual
and force him to take the Fifth Amendment. That blew up in their faces, when
this gentleman came forward and testified under oath that he did not engage in
the conduct that he was accused of engaging in. At that point, the hearing
ended. This was all done in a confidential hearing.
The late Senator Paul Simon immediately left the hearing room and
met with the press and told them that he had heard enough and that he was
strongly supporting me. The vote then came out of Committee unanimously. It
went to the full Senate but of course the timing was very close to the end of the
– 73 –
session. There was a real question of whether I could get a vote.
What next happened was that the Administration had a move that they
wanted to make, namely they wanted to move Margaret Heckler from her
Cabinet position to that of Ambassador to, I believe, Ireland. The
Administration wanted to do it very quickly. It was on a Friday when the
Heckler issue came to the Senate. Persons who were strongly in my court,
particularly Senator Proxmire, put a hold on the Heckler nomination and told
the Administration that the Heckler nomination would not go forward until they
had a vote on me. The President and Majority Leader Dole did everything they
could to assure Senator Proxmire that, if they allowed the Heckler nomination to
go forward, I would be taken up at the beginning of the following week.
Senator Proxmire to his credit refused to budge and the whole matter was put
off until Monday, at which time my nomination came to a vote and I received
unanimous approval. And that was followed by the Heckler and the Buckley
nominations.
I do not know whether Senator Buckley realized it but the reason that
he got a vote was that the two Connecticut senators who were holding up his
nomination were strongly in favor of me, and they agreed to have his
nomination come to a vote if my nomination was allowed to go forward before
his. It was Senators Weicker and Dodd who were holding up the Buckley
nomination. But once my nomination came forward, then Buckley was also
confirmed as a judge on the D.C. Circuit. That’s really the history of my
confirmation process.
– 74 –
Mr. Bennett: Throughout this period of time when there were numerous hearings dealing with
issues raised by Senator Denton and other persons, did any questions come up
about political affiliations, judicial philosophy or anything of that kind?
Judge Sporkin: Those issues were not really raised. You’ve got to understand that I had
extremely strong support on the Hill – extremely strong support, because many
senators approved of what I had done at the SEC – particularly Senator
Proxmire. This was the case also with Senator Weicker and Senator Dodd, and
a host of others.
The only real issues in the confirmation process were those raised by
Senator Denton. And these issues did not reflect what I believe was disturbing
him. Senator Denton did not have a basis for holding me up for his real reason,
which I believe was that, while I was at the SEC, we may have brought a case or
two against people he had an interest in, and he thought that we were being a
little hard on them. But that reason could not surface because they were people
who had violated the law. So Senator Denton tried other strategies to stop me,
and the one he used primarily was the argument that I had obstructed justice on
the ground that I had advised the Director of Central Intelligence that we should
assist one of our officers by arranging for him to have an attorney.
Mr. Bennett: Judge Sporkin, originally your nomination went to the Senate in June 1984 and
it was not acted on during that year. The first nomination was returned to
President Reagan in October of that year. And then you were renominated the
– 75 –
following year, 1985, and there were the hearings that we talked about
previously. You mentioned, I think, in one of our previous sessions that you
considered this to include some of your darkest days, personally.
Judge Sporkin: Right.
Mr. Bennett: I think in an even earlier session, one of our first that we had for this oral history
project, you mentioned that, when you had the opportunity to become a judge, it
was interesting to you that you were almost blinded by the desire to be a judge
and never really looked at it in an objective way that perhaps you should have
looked at it. Were you alluding to the problems that you were encountering
during the nomination process that caused you personal distress?
Judge Sporkin: No. That had nothing to do with it. The only thing was this. My whole desire
throughout my whole professional career was to be a judge. That was still with
me because my father had been a judge and I saw the best in the profession
through what this gentleman had done. And I wanted obviously to emulate him.
He was my role model.
What I was saying was that I had not independently looked into the
role of a judge, what the issues are and how to do it. When I became a judge, I
then of course was faced with reality. In other words, I had to realize that you
have to take every case. You cannot duck a case. You do not get exactly what
you want. There is a lot of time that you spend which is not very productive but
you have to sit days on end listening to testimony, almost mechanically ruling
on evidence issues. Those are issues that I had not really focused on in this
– 76 –
process. I still think that it is a great position and would do it again. But I had
not really contemplated those types of issues.
Mr. Bennett: Referring to your earlier years on the bench, when you got there you were
sworn in and began functioning as a judge, did the job turn out more or less as
you had expected it to be?
Judge Sporkin: It turned out in many ways to be better than I expected. Remember my
experience with the courts was through my father being a judge and through my
years as a law clerk. But what I had not contemplated were the matters that
come before a court like the United States District Court for the District of
Columbia. You get a much broader segment of judicial matters here in the
District. It is an amazing court. I never
contemplated a Microsoft case3
or a Keating case4
or some of these other major
matters – matters that sometimes started out as a very minor case that just
mushroomed into something very big.
For example, the Prinz case, Hugo Prinz.5
That was a case that looked
like a number of other matters that we had – involving somebody who had a
3 United States v. Microsoft, 159 F.R.D. 318 (D.D.C. 1995) (ruling that consent decree was not in
public interest in light of its failure to address all anticompetitive practices at issue and for other
reasons), 1995 WL 121107 (D.D.C. March 14, 1995) (order setting forth additional observations
on the court’s decision), rev’d, 56 F.3d 1148 (D.C. Cir. 1995).
4 Lincoln Savings & Loan Ass’n v. Wall, 743 F. Supp. 901 (D.D.C. 1990) (upholding the action
of the Federal Home Loan Bank Board in appointing a conservator and receiver for Lincoln
Savings & Loan).
5 Prinz v. Federal Republic of Germany, 813 F. Supp. 22 (D.D.C. 1992) (denying motion to
dismiss), 1999 WL 121301 (D.D.C., April 7, 1993) (denying motion for stay pending appeal),
rev’d, 26 F.3d 1166 (D.C. Cir 1994).
– 77 –
beef for 50 years and thought he was entitled to something. When my law clerk
looked at it she thought that this was a case that probably could be summarily
dealt with as being like a lot of other claims where people had grievances but
the case was not really there. Yet that case turned into a major, major case that
resulted eventually in hundreds of millions of dollars being sent to victims of
the Holocaust.
– 78 –
So you have a number of those kinds of things. A case I had, that I
was looking at the other day, involved the Government’s policy of Don’t Ask,
Don’t Tell, for gays in the military.6
I think at the time that I had the leading
case on these issues.
People used to say to me how come I get all the good cases. It was not
that I was getting all the good cases. It was these little cases that nobody else
thought were much that grew into big cases. A lot of times we did not know
what was going to happen.
Mr. Bennett: Were there any surprises when you took the bench? I am thinking about things
like your friends might have become reluctant to return your calls or anything of
that kind.
Judge Sporkin: No. My only surprise was that the degree of independence that you have. If
there is anything that marks the greatness about that job is the tremendous
amount of independence. Here I had managed big operations involving
hundreds of people at the SEC and 100 to 150 people at the CIA. When I went
to the courthouse, I had just me, a secretary, two clerks, a courtroom clerk and
so I felt in control. I also
6 McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) (injunction ordered to address Navy’s
violation of the “don’t ask, don’t tell, don’t pursue” policy when the Navy sought information
about an otherwise undisclosed identity of a particular e-mail user from an internet online service
provider), 996 F. Supp. 59 (ordering hearing to determine whether defendants were in
compliance with the Court’s order).
– 79 –
had a tremendous amount of independence being able to call them as I saw
them. And that was the best surprise.
Mr. Bennett: In those early days, did you have any special friends among the other judges?
Judge Sporkin: The district court judges are just super. They were nice. They were friendly. I
became friendly with great judges like Judge Richey, a dear friend of mine. Lou
Oberdorfer was a very close friend and still is. I had a good relationship with
Judge Jackson, and with Judges Hogan, Lambert, Penn and Harold Green. And
I should mention Bill Bryant, Barrington Parker and Joyce Green. These were
all very strong, supportive colleagues.
When I first got there, I was sandwiched between Barrington Parker
and Bill Bryant. Bryant was extremely pleased to see me. I didn’t know what
he knew about me but he must have known something about my background.
He seemed to be very happy with my judging and the decisions I was making.
Mr. Bennett: Did any of those judges give you any special help in sort of getting your feet
under yourself when you arrived?
Judge Sporkin: Yes. I learned from Judge Richey how important it was to control your docket
and to dispose of cases. You have so much independence that there is a
tendency to let things slip, perhaps with the thought that nobody is going to do
anything about it. That was one thing in particular about which I disciplined
myself – to get my decisions out on time.
I did not want to have anything that was reportable as pending too
– 80 –
long. You had to file a report every quarter. There were two judges there that
had the lowest number of cases. One was Judge Gesell and the other was Judge
Richey. It was not long before I was in a competitive battle with those two.
They did not like the newcomer coming along, so they exerted even more effort
to get their dockets down.
I kept my docket extremely current. It even got to the point where
some of the lawyers used to say, Judge, we know that you decide cases quickly
but please take a little more time in this case. I never had anyone complaining
about the promptness of justice in my court.
Mr. Bennett: How did you find your law clerks and how did you deal with them?
Judge Sporkin: My clerks were super kids and are very close at this point.
We used to get almost 1,000 applications a year. This district court
here is very sought after by law school graduates. One day it dawned on me
that it was harder to become my clerk than get admitted to Harvard or Yale. I
could not believe that was the fact, and it was the fact.
Early on, I decided that to sit down and sift through these hundreds of
applications was not a good expenditure of my time. So what I did about hiring
law clerks was to base it usually on a professor recommending someone or a
former law clerk recommending someone. That is the way I would normally
hire clerks.
Mr. Bennett: What were you looking for in a clerk?
– 81 –
Judge Sporkin: When I hired a clerk, I would bring him or her in and say exactly what I
anticipated. I told them that we are going operate like the Supreme Court; we
are not going to carry over any matters past the term that the clerk served, which
was usually September to August. I told the clerks that they had to be prepared
to work on what I called a real time basis. If they were not prepared to do that,
then they should not accept the job.
The intelligence aspect was clearly there and reflected in their ranking
in the class. But it was hard to tell how somebody was going to be smarter or
more capable than somebody else based upon the written record alone.
Mr. Bennett: Did you have some particular things that you wanted to teach your clerks in
their year with you?
Judge Sporkin: Yes, I certainly did. I did a lot of things that other judges did not do. One is
that I had them interact with lawyers. Many judges do not like that. The reason
I wanted the clerks to do it was I wanted them to be equipped when they left my
clerkship to be able to stand on their own two feet.
It was my premise that you do not learn how to practice law in law
school. Law school is theoretical and academic. You get very little practical
instruction in law school. So I looked at the clerkship as being a half-way house
between the theoretical, the academy, and the practice. I wanted to give them a
soft landing when they left me and went into the practice.
I required that the three of us did things together. I required that they
be in court with me. Many judges seldom allowed their clerks to go to court.
– 82 –
They had to go to court with me and even though we had assignments – odd and
even cases – I wanted to get both viewpoints when I decided the cases, even
from the clerk that did not have the assignment.
Mr. Bennett: So each of your clerks was expected to have at least some familiarity with all of
the cases brought to you for decision.
Judge Sporkin: Absolutely. And both were to provide their input. Another thing was that after
a case was heard, I would then go back and we would talk it over. I would
make a decision and then I would often ask for a draft or for research. Then I
would have the draft on my desk within a short time.
I also disciplined myself that I had what I called a 24-hour rule, which
was that any draft that came to me from a clerk would be reviewed and
commented on within 24 hours. That practice came to me from my
management days at the CIA and the SEC, because that was the only way you
could manage. Otherwise people would be sitting around waiting and losing
valuable time.
Mr. Bennett: As far as your clerks were concerned, did they give you any input on what kind
of experience they would like that caused you over the years to change?
Judge Sporkin: This was not a debating society. They had to know that there was one person
who would make the decision. They had to know what their role was. If they
did not like it, they should not have applied as a clerk. But I do not think I had
anybody disappointed with the experience. They could not have been
– 83 –
disappointed, because they were actively engaged, they were doing important
work, they were getting good writing experience and they were getting good
interactive experience.
I had one case I remember where my law clerk named John Polise was
involved in a major criminal case. It required a lot of administrative attention
requiring jury questionnaires, and a lot of work of that kind. This fellow was
extremely gifted. I just turned over the whole matter to him and he arranged for
the questionnaires and all of the administrative work that was required of this
massive case that lasted for weeks and weeks. We had creative people like that.
Mr. Bennett: Did most of these law clerks go on to careers in the practice of law? Did some
go into the academic world?
Judge Sporkin: Yes. I had at least two who went into the academic world — one is a full
professor and the other is a tenured associate or assistant professor at a good law
school. I have had at least three that are assistant U.S. attorneys. I had a
number of my clerks, at least four, who have gone to the SEC on my
recommendation and have done extremely well. I have had one who is in a
business, and one who is a top general counsel of a major company. Another
has a major job at the Treasury Department. They have all been very
successful.
Mr. Bennett: Did you make any special efforts while they were serving with you to encourage
them to seek further public service?
– 84 –
Judge Sporkin: I often told them that I thought that they would have a great career at the SEC. I
mentioned that I had at least four clerks, and maybe more, take this suggestion
and go to the SEC.
I had another clerk who is an elected official in New York. He has
done very well. He is a councilman. Some have gone to the Hill.
Mr. Bennett: Just going on a bit about how life was as a judge, I did notice that you gave a
number of speeches while you were on the bench. What was your attitude about
public speaking while you were serving on the bench?
Judge Sporkin: I mostly talked about issues that were not likely to come before me. Most of the
time I gave speeches was because of my prior role as Director of Enforcement at
the SEC. Because I had served in that role, I recused myself from all SEC
cases. I also recused myself from CIA cases. These recusals did bother me
some, because those would be areas I knew something about. But I thought that
out of an abundance of caution, and to avoid any perception of unfairness, I
should not get involved in those cases.
Mr. Bennett: During that period of time while you were on the bench, Judge Sporkin, you
must have received many invitations to speak. Did you think it was part of an
extension of your previous public service to continue to play a public role in
discussing SEC and other issues?
Judge Sporkin: I thought I had something to say. I loved those areas and I wanted to keep
abreast of them.
– 85 –
Of course these issues flowed back, because look at the Keating case
that is cited I do not know how many times when I asked the question: where
were the lawyers and where were the accountants? 7
That was the old
gatekeeper approach. And in the recent Sarbanes Oxley legislation, the statute
is largely a gatekeeper statute. So I feel proud that the gatekeeper concept,
which I sort of invented, is now part of the landscape of the federal securities
laws.
Mr. Bennett: Perhaps we should now talk about some of the cases that you had previously
indicated to me that you considered significant and worthy of discussion for
purposes of this oral history. We have selected five such cases from among the
many decisions you rendered. We probably cannot get through more than one
or two today. Those five cases include: The Lincoln Savings & Loan case that
you mentioned; the Microsoft case in which you participated; and the Prinz case
that you also mentioned. A fourth case to discuss is McVeigh v. Cohen, which
is the Don’t Ask, Don’t Tell, case you also mentioned. And then a fifth case,
United States v. Webb, is one of a number of cases in which you were involved
in trying to determine the proper role of a judge in sentencing criminal
defendants.8

Shall we start with the Lincoln Savings & Loan case?
7 Lincoln Savings & Loan Ass’n v. Wall, 743 F. Supp. at 920, includes the discussion of “Where
were these professionals [accountants and lawyers] . . . when these clearly improper transactions
were being consummated?”
8 United States v. Webb, 966 F. Supp. 16 (D.D.C. 1997) (discussing downward departure from
Sentencing Guidelines for defendant Alvin Webb), rev’d, 134 F.3d 403 (D.C. Cir. 1998), 1998
WL 93052 (D.D.C. Feb. 20, 1998) (recusal decision by Judge Sporkin).
Footnote continued on next page
– 86 –
Judge Sporkin: Yes, that was an interesting case. The case came before me in the posture
where Keating was trying to get back his ownership of Lincoln Savings.
Keating owned a company called Continental, which owned Lincoln Savings.
The Office of Thrift Supervision had taken the savings and loan away from
Keating and Continental, and Keating was utilizing his right under the Fifth
Amendment of the Constitution to get back the property.
When the case started out, Keating sought to have me disqualified
because, while I was at the SEC, many years before, we had to take disciplinary
action against one of Keating’s entities. I did not think that it had anything to
do with this case and therefore I denied the motion and presided over the case.
The case involved Continental taking over Lincoln Savings & Loan in
an era in which there was a tremendous crisis affecting savings and loans. It
appeared that savings and loans were failing all over the country. They were
failing because they were very limited as to what a savings and loan could do.
They were not like commercial banks. For example, a savings and loan at the
time could only make indirect investments. They could not make direct
investments. For example, a savings and loan could make an indirect
investment by loaning somebody money to buy a house but it could not make a
direct investment by buying a parcel of land itself. Banks could do some of
those things. Congress saw that there was going to be billions of dollars of
defaults in the savings and loan business, which under the federal deposit
Footnote continued from previous page
– 87 –
insurance scheme would have involved a lot of money. So Congress decided to
avoid the day of reckoning by passing legislation that would provide savings
and loans with broader authority with the thought it might encourage people to
come in and bail out these underwater savings and loans.
It was that legislation that prompted Keating, through Continental, to
take over Lincoln Savings & Loan. Lincoln Savings & Loan was a small
California savings and loan that had a net worth of about $39 million. With
borrowed money, Keating went to the owners and bought them out for
$51 million. The owners thought they had died and gone to heaven, because
they had a failing savings and loan and they would be able to get a profit of
$12 million.
All this is in the record and found to be true. Keating wanted to take
over the savings and loan in order to have access to the billion dollars in assets
at the savings and loan which came from depositors with federally insured
accounts. He took Lincoln over by Continental buying 100% of the savings and
loan.
The Office of Thrift Supervision through its San Francisco office had
jurisdiction. They were aware that they had to watch Keating because of prior
run-ins with the law. So when Keating would ask for certain waivers of the law,
they would look at it very carefully.
The first thing that Keating tried to do was make some upstream
dividends. The Office of Thrift Supervision said, no, they were not going to
allow it. Then Keating concocted a plan whereby there would be what was
– 88 –
known as a tax-sharing agreement between Lincoln and Continental. The way
this would work, according to Keating, was that Continental would file a
consolidated tax return, by which they would bring together the profits and
losses of both companies and file a single return.
Keating’s lawyers came up with this idea, because Continental had
about $200 million in tax loss carryforwards. The plan was that large sums for
taxes would be upstreamed from the savings and loan to the parent with the
understanding that the parent would keep the money, since there would be no
tax due to the U.S. Treasury because of the tax-loss carryforward that the parent
company had.
This proposal was presented to the Office of Thrift Supervision, and it
said that, yes, it sounds okay and therefore it approved the agreement.
Keating and Continental now had in place the plan. However, the plan
would only work if the savings and loan had income. So the next part of the
plan was for the savings and loan to create income.
Under the tax-sharing agreement, each quarter the savings and loan
would prepare a profit-and-loss statement that would be calculated under what
was known as GAAP, or generally accepted accounting principles. At the end
of each quarter, whatever that profit was the amount of the tax on such profit
would be upstreamed to the parent company under the tax-sharing agreement.
For example, at the end of a quarter, if there was a $10 million profit at
Lincoln Savings & Loan and the tax rate at that time was 40%, 40% of the
$10 million would go to Continental. Continental could keep this amount until
– 89 –
it used up its $200 million tax-loss carryforward.
But when we started out a few minutes ago, I explained that savings
and loans were losing money. How then did Continental and Lincoln make the
savings and loan a viable, profitable company? Continental would come up
with a number of orchestrated transactions. I will give you one as an example.
There was a piece of property that Lincoln bought in Phoenix, Arizona, for
$3 million. Remember that savings and loans were now permitted to invest
directly in assets at that time, so Lincoln went out and bought this property.
Keating then entered into an arrangement with some fellow who they picked off
the streets of Phoenix and brought him into the boardroom. They arranged for
this gentleman to buy this $3 million property for $14 million through a
company called Wescon, which had a net worth of only $31,000 and which was
acting as a “straw” for the individual. The plan was that the difference between
the $3 million and the $14 million would be a profit to the savings and loan, so
that something like 40 percent of that profit, or more than $4 million, would be
upstreamed to the parent company under the tax sharing agreement.
The deal in this instance was that Wescon and the individual would
buy the property for $14 million, but on a non-recourse basis. The individual or
Wescon would receive – I forget – it may have been a fee of $25,000 to do this
transaction. But there were some problems with this transaction. In order for
the savings and loan to be able to declare as a profit under GAAP, 25 percent of
the purchase price had to come from a source other than the owner or seller of
the property. So this individual or Wescon, with a $31,000 net worth, had to
– 90 –
come up with $3.5 million for GAAP to allow the profit to be claimed by
Lincoln. So Keating then worked out a deal with a local utility in Phoenix
unrelated to the individual involved. The utility needed approximately
$20 million. Keating said that the savings and loan would give the utility what
it wanted and would give the utility $3.5 million additional with the
understanding that the utility would loan that money to Wescon. It was that
$3.5 million that was used to satisfy GAAP requirements, because it came from
a source other than the seller.
That was the kind of transaction that was utilized to allow the savings
and loan to upstream funds to Continental.
When those issues came to me, I saw through this business and said:
look, even though there was an intervening party, namely the utility, the money
still emanated from the seller and therefore the profit recorded on the transaction
did not satisfy GAAP. Even though there was testimony by several accounting
professionals that this transaction met GAAP standards, I said that GAAP
requires reality.
9
Those kinds of transactions led me to uphold the Office of
Thrift Supervision and to permit them to take the savings and loan away from
Continental.
Another interesting aspect of the Keating story is that, before the case
9
“Accountants must be particularly skeptical where a transaction has little or no economic
substance. This is so despite the fact that the transaction might technically meet GAAP
standards. In a paper prepared by Touche Ross & Company in 1975 the following poignant
statement appears: ‘The goals of accounting are to measure, record and communicate economic
reality. In the long run, these goals are necessities – both for accounting and for society. Can
behavior be economically rational if not grounded on economic reality.’” Lincoln Savings and
Loan Ass’n v. Wall, 743 F. Supp. 901, 913 n. 17 (D.D.C. 1990).
– 91 –
came before me, the Office of Thrift Supervision in its regional office in San
Francisco had done an examination of the savings and loan and came in with a
report to the home office – to a good fellow named Danny Wall – that OTS
wanted take away the savings and loan from Keating. But the report was based
solely on technical violations – that the signatures were not there and certain
other things. There was no substantive examination, none, in that first report.
When that first report got to Washington, Keating enlisted many
friends that he had acquired through campaign contributions and otherwise who
sided with him and stepped in with the savings and loan to get this
recommendation reversed. As you know, there is a group called the Keating
Five, which was Senator Cranston, Senator Riegle, Senator McCain, Senator
DeConcini and Senator Glenn. These were the five. They interceded with the
Office of Thrift Supervision, saying: how come you can take the savings and
loan away from Keating when all that savings and loan does is make money?
Remember that Lincoln had all these funny transactions in which it was making
money. Of course the Office of Thrift Supervision had not examined those
transactions substantively. They only looked at technical issues. So when the
Keating Five interceded with Danny Wall, Danny stepped back and said, okay,
and he was forced to withdraw the recommendation. He said he would
withdraw the recommendation and send somebody in to do a substantive review
to deal with the safety and soundness of the institution and start a new
examination with new examiners. This second examination then found all these
transactions that showed there were serious safety and soundness issues. Based
– 92 –
on that record, they took away the savings and loan from Keating. That was it
in a nutshell.
Mr. Bennett: I understand you have to leave for a meeting. We will resume with this case,
including a discussion of a few additional interesting aspects of this case we
have not yet touched on.
– 93 –
ORAL HISTORY OF
JUDGE STANLEY SPORKIN
NOVEMBER 4, 2004
This is the fifth interview of the Oral History of Judge Stanley Sporkin as part of the Oral
History Project of the D.C. Circuit Historical Society. It is being held by Alexander Bennett on
November 4, 2004. The tape and any transcripts made from the tape are confidential and governed
by the wishes of Judge Sporkin, which have been made in the form of a written donative
instrument.
Mr. Bennett: When we finished the last session, we were talking about the Keating case,
which you described, and I thought there was an additional aspect of the case I
should perhaps ask you about. One feature of the case was that you actually
called Charles Keating as the court’s witness when neither side had called him.
I wonder why you did that and what led you to that.
Judge Sporkin: Well, there is the authority under the rules for a judge to be able to call a
witness – on the judge’s own discretion. I guess the point is that I took my
position extremely seriously. There are many of my brethren on the bench who
treat being a judge as merely an arbiter or referee and really do not get
enmeshed or involved in the case itself. I believe that any position in life that
you take has to be dedicated. It has got to be that you really are involved, and
you cannot sit idly by. You say what is the role of a judge? The role of a judge
is to make wise decisions, to find facts and to try to come up with the right
decision.
In that case, where I was sitting without a jury and I was trying to
make findings of fact, the lawyers were very reticent to set forth all the facts in
the case. That bothered me. They did not want to call Keating as a witness.
Neither side wanted to call him as a witness. I used the comment at one point in
– 94 –
describing the decision to call him: you cannot have Hamlet without Hamlet.
And here was Hamlet. Here was the key person in the case, and nobody would
call him.
And so I did make the decision to call Keating as the court’s witness
so that we could have a complete, full record. Not a lopsided record or half of a
record, a full record. I believe that is the court’s prerogative and should be what
courts do.
When I did call Keating as a witness, of course the problem I ran into
was what was I going to do with him. He was my witness. I had to then make
the decision that I would treat him as if this were a case and a party would call
him as a witness. I decided to do two things. One, I would treat him as my
witness, or how his own lawyer would treat him and have Keating present all
things in his favor. Then I would treat him as the adversary would treat him and
cross-examine him. I called him and I told him exactly what I was going to do.
I said, Mr. Keating, here is what I am going to do. I am going to ask you some
very simple questions and I want to get your best statement and I am going to
give you a chance to really set forth exactly what happened. And then of course
I am going to test your answers. And that is what I did, and it worked out pretty
well.
Mr. Bennett: Did that have an impact that you can recall on the decision you made?
Judge Sporkin: It sure did. One of the things I learned as a judge is that every case has what I
call a key to the case. And when you find the key, you unlock that case.
– 95 –
What was his testimony? Asked why he did what he did, his answer
was astounding to me. He said that whatever I did was done with the advice of
counsel and the advice of my accountants and that I surrounded myself with
scores of lawyers and with ample accounting consultants and auditors. He said
that I did not do anything without vetting everything through the accountants
and lawyers.
The complicity of lawyers and accountants caused me to write
probably the most famous words of my career, which were: where were the
lawyers and accountants – these professionals who could have stopped these
improper and inappropriate activities from occurring? Why did they not do
something?
And that became the key to the case. The professionals were not doing
their jobs.
If you look at that case, you will find that theme was later picked up by
a fellow named Harris Weinstein, who was then counsel to the Office of Thrift
Supervision, and he proceeded to go against professionals of the other troubled
savings and loans to recoup monies from those professionals. And the agency
recouped hundreds of millions of dollars.
That was the key. Yes, that occurred only because of Keating. That
was his testimony. How else could we have found that out?
– 96 –
Mr. Bennett: Let us turn to the second case that was among the five cases that we identified at
our last session. This was the Microsoft case. Can you tell us just briefly what
the Microsoft case was about when you were involved in it.
Judge Sporkin: The Microsoft case came up as the result of a proposed consent decree that was
presented to me by the Department of Justice, Antitrust Division, and Microsoft.
I looked at the decree. I knew consent decrees, almost having invented
them when I was at the SEC. This was one of the softest decrees I had ever
seen. When I looked at it, the decree struck me that this was sort of a
face-saving compromise that the Government had worked out so that it could
close a sticky case that had been around for many years. It looked as if the idea
was to sort of put a little lipstick on the pig and then get rid of the case.
What I figured out myself was that this case had first been before the
Trade Commission, then went to the Department of Justice. It was a new
Administration. The case had been sent over from the Trade Commission
because of a 2-2 split before that agency, which meant that nothing would
happen there. At the Antitrust Division someone probably said, look, we have
to get rid of this turkey. And it was probably decided to come up with a
compromise that both sides could live with. And, indeed, Microsoft was almost
emboldened by the decision because it knew that it would be business as usual.
I found that the decree did not have any enforcement teeth to it. As I
recall, the decree was almost outmoded the day that it was signed. I likened it to
something that only was operative during snow days in Washington. It was
very weak. Not only was it weak, I concluded that it could not be enforced in
– 97 –
court, which later proved to be correct. Later on, when the Government tried to
enforce the decree, it was ruled that the decree was unenforceable.10

Mr. Bennett: Your decision as reported gave a number of different grounds for refusing to
approve the decree as in the public interest, including: not enough information
had been provided you to make the necessary findings; the decree was too
narrow; the decree was silent on certain anticompetitive practices and therefore
an inadequate remedy; and you were not satisfied that the enforcement
compliance provisions were adequate.11
But then after you rendered that
decision, both sides appealed to the Court of Appeals, both the Government and
Microsoft.
Judge Sporkin: I didn’t have a chance.
Mr. Bennett: Essentially what was done is the Court of Appeals seems to have taken the
position that you had addressed issues that were not spelled out in the complaint
and that you should not have done so. That seemed to be the fundamental
position of the Court of Appeals.12

10 An effort by the Department of Justice to enforce the 1995 decree by a contempt action was
unsuccessful. See United States v. Microsoft Corporation, 147 F.2d 935 (D.C. Cir. 1998)
(sometimes referred to as Microsoft II in the Court of Appeals).
11 See United States v. Microsoft Corporation, 159 F.R.D. 318, 338 (D.D.C. 1995). See also
United States v. Microsoft Corporation, 1995 WL 121107 (D.D.C. March 14, 1995) (additional
observations of the district court).
12 See United States v. Microsoft, 56 F.3d 1448 (D.C. Cir. 1995) (sometimes referred to as
Microsoft I in the Court of Appeals).
– 98 –
Judge Sporkin: There is no question in my mind that a judge who is going to have to approve
something and put his signature on a decree has a broad right to consider certain
issues. This hearing occurred in September. During the prior summer I was
spending time at my beach house in Margate, New Jersey. By the way, I used
to do some of the important work I had there because, for example, the Keating
opinion was written on the beach during one of my summers at Margate. In this
case, while I was getting prepared to consider the decree in the Microsoft case in
September, my son-in-law was visiting me with his family in Margate and had
gone to the library and brought back a book about Microsoft. I forget the name
of it.
Mr. Bennett: Hard Drive.
Judge Sporkin: Yes, Hard Drive. I read it to prepare myself for the hearing. In that book the
authors raise the issue of a concept called vaporware. What is vaporware? It is
where a company announces a product to freeze the market and to prevent
competitors from coming on with their product, even though the company does
not have the product. It seemed to me that in our system of jurisprudence, that
cannot be a legal activity. A company that has monopoly power to be able to
announce a product that it does not have to the marketplace – and lie to the
marketplace – in order to freeze out a competitor, it seems to me would be
contrary to the antitrust laws. Indeed, I think I may have said in my opinion that
it also would be contrary to the securities laws because it would be a
misstatement in the marketplace.
– 99 –
Mr. Bennett: You considered that those sets of issues were fairly raised by the complaint in
the case?
Judge Sporkin: I thought I should have an answer. In other words, I was asking for information.
Tell me folks, do you engage in that practice?
The Government took the position, when I asked the Government
about the practice, that the practice was legal. And I think that position is
reflected in my opinion.
When I raised the issue at a subsequent hearing, counsel for an amicus
came forward and said he would like to be heard. I think his name was
Gary Reback, if I have his name right. He said, Your Honor, I would like to
present certain evidence to you. He introduced in the record two documents. If
there ever was a smoking gun document, these were smoking gun documents.
The interesting part is that, prior to that time, I asked that question of
the Government and of counsel for Microsoft. Counsel for Microsoft said they
did not engage in vaporware. That was a response to a general ballpark
question whether Microsoft engaged in vaporware. I did not have these
documents at that time. At that point Microsoft said that it did not engage in
that practice and the Government took the position that, even if Microsoft had
engaged in the practice, the practice did not violate the law.
Reback then came in with these documents – a self-evaluation by an
employee of Microsoft who was writing a memo to Gates in which the memo
set forth the reason why he was entitled to a bonus for the year. In it he
– 100 –
recounted to Mr. Gates that: don’t you remember on such and such a date I got
you to preannounce product X to freeze out company ABC? There were two
documents in contiguous years in which that same scenario took place. But they
covered different companies and different products, as I recall.
Then I had the documents and then I again asked Microsoft just
answer a very simple question. Are these documents of Microsoft? Because I
did not know whether they might have been forged documents. The answer was
yes. And that to me was the key to say, look, what is going on here? What I
needed was more information. Based upon that, and the points that you
summarized from my opinion, I could not approve the settlement.
Mr. Bennett: The Court of Appeals reversed your decision and instead of remanding it, the
Court of Appeals actually directed that the decree be approved. They said that
on such things it is okay for the district court to do such things as to clarify
ambiguities of the decree and so on, but that, when the government is
challenged for failing to bring as an extensive action as might be, a district
judge should be careful to limit its role to determine only whether the decree
appears to make a mockery of judicial power.13
Subsequently, there was
legislation enacted saying in effect that the original intent of Congress was that
courts in approving antitrust decrees should not take such a narrow role as the
Court of Appeals described and spelling out what Congress considered the
proper standard for decision in such cases. That legislation became effective in
13 See Microsoft I, 56 F.3d at 392.
– 101 –
June 2004.14
We should ask you whether that legislation gives you some sense
of vindication as to the standard you applied in the Microsoft case?
Judge Sporkin: There is no question that it does. I knew at the time what the Tunney Act was
designed to do because it arose out of a case that I was involved in at the SEC.
It involved a company called ITT and its attempt to take over Hartford
Insurance Company. There was a big scandal during the Nixon years on that
case. There was a thought that some money had been paid to the Republican
Party to put on a convention in San Diego and that was the reason the merger
parties got approval of the merger between ITT and Hartford.
The remedy was to pass legislation to give courts a broad authority in
approving antitrust cases. That is clearly the basis of the Tunney Act, and I
knew it. And of course the district courts had that power. I just think again the
Court of Appeals, as they had often done in other cases, had taken a very narrow
view, and it had absolutely misstated the intent of Congress. I see that Congress
has now come forward and said that the original intent was exactly the way I
said it was.
14 Section 221 of H.R. 1086, 108th Cong., 2d Sess., enacted into law on June 22, 2004, amended
the Antitrust Procedures and Penalties (Tunney) Act, 15 U.S.C. § 16(e), to spell out the standards
to be applied by a court in making the public interest determinations required for judicial
approval of an antitrust consent decree. Section 221(a)(2) states that the purpose of such
amendments “is to effectuate the original congressional intent in enacting the Tunney Act . . . .”
Section 221(a)(1)(B) sets forth a congressional finding that it would misconstrue the meaning
and congressional intent in enacting the Tunney Act to limit the discretion of district courts to
review antitrust consent judgments “solely to determine whether entry of those consent
judgments would make a ‘mockery of the judicial function.”’
– 102 –
Mr. Bennett: One of the other things that the Court of Appeals did in a separate section of its
opinion was to go on to say that under circumstances that the Court of Appeals
laid out in its opinion it would be inappropriate for you to continue with the case
after the remand. What was your reaction to that?
Judge Sporkin: I was not very happy about it. The Court of Appeals had again done something
that was inappropriate in my view, because what they pinned it on was the fact
that I had read this book called Hard Drive. It just does not make any sense. Of
course judges are entitled to read the daily papers. They read a lot. This is not
the case of a jury reading something that is not in evidence. A judge can read
outside materials. I recall that going back to the Brown v. Board of Education.
Not only did the Supreme Court read documents that were not in the record,
they read books. They read a lot about segregation. How else is a judge going
to bring to bear in a case reasons for doing certain things?
Later on in the Microsoft case, the Court of Appeals itself had
arranged to have its own consultant to help them and assist them in a case. And
that consultant would not have been cross-examined by anybody. It would have
been strictly ex parte. Of course, in the end, the Court decided not to do it. But
there is an irony here that is beyond belief.
One of the problems in the Microsoft case was that both the
Government and Microsoft appealed against me. Nobody was there for me. I
could not give them an answer or response. Perhaps that had something to do
with outcome of the case.
Later on, I was vindicated in another way, because when I had said
– 103 –
that the decree was not an enforceable agreement, it proved to be not
enforceable. And, as you know, Judge Jackson’s opinion in a later phase of the
Government’s dispute with Microsoft, which was affirmed in large part, found
that there was a violation of the antitrust laws.15

Mr. Bennett: It does seem that you accepted the decision of the Court of Appeals with
equanimity, because I saw some public comments that you made reported in the
press about the difficulties in getting a subsequent district court judge to
participate in light of what had happened to you in that earlier case. You said it
should not be a problem and that any judge here is capable of doing it, which
does not seem to reflect any great distress over the decision.
Judge Sporkin: These are scorched-earth events and later on Microsoft got Jackson removed.16

That is what was happening in these cases. Look, it happens. The only good
side of it is that I did not have to spend years of my life working on the case. I
was in and out. I had given my views of the case, and it was over.
My decision in the case reflected the concept of every case having a
key to it. I believe also that I had the ability to be able to quickly size up a case
and come to a decision. If you look at my record you will see this reflected in
my decisions. I would say that maybe 90-95% of the time I had gotten the right
issue and in that way I did not have to sit down and worry about cases for years
as some folks did. I would quickly come to a decision.
15 See United States v. Microsoft Corporation, 253 F.3d 34 (D.C. Cir. 2001) (en banc)
(sometimes referred to as Microsoft III in the Court of Appeals).
16 See Microsoft III, 253 F.3d 34 at 116-17.
– 104 –
When you examine my record, you should also find that, after the
passing of Judges Gesell and Richey, I always had the lowest record of open
cases. Indeed, I tried to be 100% current and succeeded in doing so because I
could size up quickly and dispose of cases, many from the bench. I think that I
may already have mentioned that one of the comments I received from a lawyer
in a case when I was ready to rule was: take some time, Judge, I know you like
to rule quickly, take a little more time. I think I did take a week in that case.
Right or wrong, many of the concepts that I developed in my judicial
days may be a product of my earlier career. I think it is important for other
judges to consider these ideas, because I do think that they may well have
continuing application and may well help courts streamline their case load and
help them to dispose of matters. Maybe at some point we will have some
sessions like this among the other judges to debate my concepts.17
Maybe they
will find some good and some bad aspects to my concepts.
Mr. Bennett: Let us talk now about the Princz case. I think you mentioned that, when one of
your law clerks first looked at this case, it seemed to her like a case of a person
with a long-standing grievance but perhaps not a solid legal case. She thought
17 In addition to the views on judicial efficiency expressed by Judge Sporkin in the present series
of interviews, Judge Sporkin has delivered several speeches addressing judicial efficiency and
related matters. Among them is Judge Sporkin’s speech entitled “Reforming the Federal
Judiciary,” the Tenth Annual Alfred P. Murrah Lecture at the Southern Methodist University
School of Law, on November 9, 1990. Judge Sporkin returned to the same subject in an address
on October 21, 1993, to the Annual Fall Meeting of the ABA Section on Litigation, entitled
“Streamlining the Litigation Process.” Both addresses are included in the materials
accompanying this oral history.
– 105 –
that the case might be disposed of summarily. How did this case develop after
that?
Judge Sporkin: I think I mentioned at our last session that people used to say: how did you get
all these big cases? Well, they do not start out being big.
What do you do with a case that was 50 years old, as I recall when I
got it. Of course, when you see an old case, the initial thought is that this is a
person who has a grievance that is really out of time.
One of my techniques of being a judge was that I always found that
my ears were better than my eyes. I always liked to hear matters. I liked to see
people before me. I liked to be able to size them up. A lot of judges do a lot of
the work on paper, summary judgments and whatnot. The vast majority of my
work was done in court, and even when it looked as if there was not much merit
to a case, I would listen to the people. In this case, when I listened to Princz’s
lawyer and he described the travails of this man and his family during the
Holocaust, it said to me as a judge, well, maybe there is something here. Let us
research the law – let us just see. Let us give this fellow the benefit of that.
Why are we judges? We are judges because we are human beings and we are
trying to do humane things. We are not robots. We are not on an assembly line.
I analyzed the case and wrote an opinion. I thought that the claim was
not barred by the Foreign Sovereign Immunities Act and that there was
jurisdiction in the court. If you look at the Court of Appeals decision that
reversed me, you can see the reasoning of the Court of Appeals. I do not think
it made a lot of sense when the Court of Appeals said that Princz could not
– 106 –
satisfy the requirements of the Foreign Sovereign Immunities Act when Princz
was held in slavery and was in effect working in a factory that was building
bricks. The majority opinion of the Court of Appeals was that Princz could not
show that what was happening had any impact on him and the United States.18

The theory was that the bricks were not being used in the war effort. If you
want to look at a narrow holding of the majority, what do you think was
happening in Germany in those days when they were fighting the war with us?
The way that opinion was written was almost like we were talking
about the Microsoft case. Very narrow. We looked like horses with blinders
running down the track. We only want to see specifically the words that the
Foreign Sovereign Immunities Act says that the claim must have an impact in
the United States. The fact that this man was building bricks, and I think I.G.
Farben was the company, did have an impact. Part of the work was done for the
Messerschmidt aircraft factory in Germany. Of course it was ridiculous to be
looking that narrowly at that kind of claim. But even on this narrow issue, the
fact is that I.G. Farben was a German company, owned by the German
Government in a war-time setting, building products that were being used
against the United States.
But that is the way the Court of Appeals was narrowly examining
cases. That is what gives me a great deal of problems with the way that we are
picking some of our judges who are not willing to do justice, not willing to see
18 See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1172-73 (D.C. Cir. 1994), rev’g,
Princz v. Federal Republic of Germany, 813 F. Supp. 22 (D.D.C. 1992).
– 107 –
what was the purpose and intent of the law, as opposed to looking at it in a very
narrow way to see how they could get out of doing anything about a case.
There was a good dissent in that case, as you may recall, by former Chief Judge
Pat Wald who sided with me in that case.
Mr. Bennett: Judge Wald’s dissenting opinion essentially articulated a position similar to
your position in the district court. The dissenting opinion took the view that, if
there is a violation of an international norm of jus cogens – which included
enslavement and genocide – then the defendant foreign state implicitly waives
its right to assert sovereign immunity as a defense. That was her position.
Judge Sporkin: Later, Congress amended the statute again.19
And now you see a lot of cases
being brought against other countries. For instance the Iranian hostages. That
legislation was passed in order to take care of cases like this where a person
clearly was entitled to have justice done, as when the Nazi Government had
slaughtered Princz’s mother and father, his two brothers and his sister.
Dr. Mengele had removed the womb of his sister. The facts are as brazen as
you can find. And these are American citizens who are not able to come into an
American court and not able to get relief in an American court. Where is
justice?
19 Amendments to the Foreign Sovereign Immunity Act, 28 U.S.C. § 1605(a)(7), enacted by
Congress in 1996, allow American nationals under certain circumstances to sue for damages
against a foreign state for torture, extrajudicial killings, aircraft sabotage, hostage-taking or the
provision of material support or resources for such an act. Related provisions in a 1996
legislative enactment known as Civil Liability for Acts of State-Sponsored Terrorism, 110 Stat.
3009-3172, note following 28 U.S.C. § 1605, establishes liability of certain persons to American
nationals in certain circumstances for such acts.
– 108 –
Mr. Bennett: Subsequent to the decision of the Court of Appeals, there was a remand of the
case in your court. What happened after that?
Judge Sporkin: That case against the Government of Germany was dismissed. What happened
was that Princz’s lawyers amended the complaint to name the companies in
Germany that enslaved him. They sued Bayer Aspirin and a couple of other
German companies. I guess they spun off from the old I.G. Farben, which is no
longer around.
Princz’s lawyers sued those people, at which point the German
Government came in. The German Government was furious because the Court
of Appeals had dismissed the case. I had to tell the counsel for Germany that
you are right. You won. The victory is yours and you are not in this case
anymore. This is not against the German Government. This case is against four
individual companies. You have no standing in this case anymore.
I denied a motion to dismiss, at which point counsel for Germany
sought mandamus against my ruling in the Court of Appeals. I had to hire a
lawyer because I would normally be represented by the United States
Government but the Government was conflicted because the State Department
was unable to determine who it wanted to support in this case. The State
Department did not want to offend the German Government.
So I hired Harvey Pitt of Fried Frank who is an old friend of mine. Of
course he got the mandamus dismissed.20
At the point the case came back to
20 In re Federal Republic of Germany, 1995 WL 118035 (D.C. Cir. Feb. 23, 1995).
– 109 –
me. We had a status call. The lawyers came in. I asked to see them in
chambers. I said, look, why do you want to litigate this case? Won’t you
consider compromising or settling it? They said that they needed time. They
were very fine lawyers. They went out, they had time and in a couple of months
they settled the case. Mr. Princz was then a janitor working in New Jersey in a
synagogue. He was given some money, obviously not made whole. He at least
spent the rest of his life not in poverty.21

Mr. Bennett: Was this the first of the Holocaust cases later settled on a broader basis?
Judge Sporkin: Absolutely. This was it. This was the seminal case.
Mr. Bennett: {After a short break} Just before we took a short break, Judge Sporkin, we
were talking about the Princz case as the first, at least the first decided,
Holocaust case. There was a subsequent history of settlements with various
21 As a result of the Princz case, the Federal Republic of Germany reached an agreement
(commonly known as the “Princz Agreement”) with the United States on September 19, 1995, to
compensate certain United States nationals who were survivors of Nazi incarceration or
enslavement in two stages. Under the first stage, there was a payment of $2.1 million to Hugo
Princz and ten other American survivors of Nazi concentration camps. Under stage two, the
United States Foreign Claims Settlement Commission (“FCSC”) was authorized by Congress to
consider and report on claims of other United States nationals who might be entitled to
compensation under the Princz Agreement. Following a report of the FCSC, an additional 235
additional American survivors of Nazi incarceration or enslavement received compensation
under the Princz Agreement. The Princz Agreement and related events are described in Vol. I,
Annex D,
pp. D-6 – D-9, and Vol. II, Annex E, pp. E-56 – E-58, to the Special Master’s Proposed Plan of
Allocation and Distribution of Settlement Proceeds, dated September 11, 2000, in Holocaust
Victims Assets Litigation (Swiss Banks), No. CV-96-4849, available at
http://www.swissbankclaims.com (under “chronology”).
– 110 –
defendants for relief with respect to victims of the Holocaust or their heirs.
What was the relationship to the best of your knowledge between your case and
those later actions?
Judge Sporkin: I believe the Princz case was the seminal case. I have every reason to believe
that the legislation was as a result of the Princz case. His lawyer, who was a
super lawyer, really fought like the dickens for Princz and then for others. By
the way, he was a little known lawyer. I had never seen him before. He had his
own practice. Everybody who came into my court room had equal standing. It
did not matter whether it was a big firm or a little firm or by themselves. But
this lawyer was a super lawyer.
Mr. Bennett: Judge Sporkin, we just looked something up the report of your decision in the
Princz case. Can you tell us what the name of the lawyer was?
Judge Sporkin: The lawyer was Steve Perlis, who was a single practitioner who was as fine a
lawyer as ever appeared before me. He was smart, and he really did a job for
his client.
Mr. Bennett: Thanks, Judge Sporkin. We know that you have to go to another meeting right
now. We’ll resume next time.
– 111 –
ORAL HISTORY OF
JUDGE STANLEY SPORKIN
DECEMBER 14, 2004
This is the sixth interview of the Oral History of Judge Stanley Sporkin as part of the Oral
History Project of the D.C. Circuit Historical Society. It is being held by Alexander Bennett on
December 14, 2004. The tape and any transcripts made from the tape are confidential and
governed by the wishes of Judge Sporkin, which have been made in the form of a written donative
instrument.
Mr. Bennett: Judge Sporkin, at previous sessions, we talked about the Keating case, the
Microsoft case and the Princz case. We also decided that we would cover several
other cases as illustrations of significant decisions you have rendered during your
time on the bench. The next case is known as McVeigh v. Cohen,
22 which was a
case under the Don’t Ask, Don’t Tell, Don’t Pursue, policy of the Armed Forces,
adopted during the Clinton Administration. I wonder if you could comment on
that case.
Judge Sporkin: The case obviously had some important issues in it. What happened was that the
Government went beyond its authority when it went after this officer because of
his sexual orientation. This case, like so many others, is fact-driven. The facts,
when you apply the law, clearly dictated the decision that I reached. The
Government had announced its Don’t Ask, Don’t Tell policy. By using deceit in
trying to find out whether this individual was gay, the Government clearly did not
comport with the spirit behind the Don’t Ask, Don’t Tell policy. It was that
simple. The facts showed how in an underhanded way Government personnel
tried to find out who a person named “boysrch” was. It showed an action that was
22 McVeigh v. Cohen, 983 F. Supp. 215, 996 F. Supp. 59 (D.D.C. 1998).
– 112 –
unfair and clearly something that was not contemplated by the policy. Therefore,
I ruled for the plaintiff in that case.
Mr. Bennett: Why did we consider that this was one of the more significant cases worthy of
discussion as part of this group that we set aside for that purpose?
Judge Sporkin: I guess only because I think it has had an impact. It is one of the leading cases in
the military on the homosexual issue. I do not think I realized at the time that it
would have an impact but it is just like so many other cases that you do not realize
when one comes up that it is going to be considered a landmark case. Apparently
this got a lot of response from a number of different quarters – a fact that I think
the Government acknowledged by not appealing the case – that the Government
had overstepped its bounds. And the fact that the Government was willing to live
with the ruling in the case made it a precedential case.
Mr. Bennett: We also included on our list several cases dealing with the Sentencing Guidelines.
I saw just the other day an article in The Wall Street Journal talking about drug
cases and the fact, according to the Journal article of December 2 of this year,
that more than half of the nation’s federal prisoners are behind bars because of
drug violations.23
The article also addresses the difficulty that judges have had in
following the Guidelines because the Guidelines involve not just how large a
weight of drugs might be in the possession of the defendant but also what the
defendant intended to do and what the potential was for further developments. So
23 “In Drug Sentences, Guesswork Often Plays Heavy Role,” The Wall Street Journal,
December 2, 2004, p. A-1.
– 113 –
The Wall Street Journal article is somewhat expressing the view that it is very
hard truly to achieve uniformity under the Sentencing Guidelines. And in this
article the reporters actually quote you and mention several of your early cases.
Judge Sporkin: I was among those judges in the system who thought that these Guidelines were
over the top, that they were doing great injustice and harm to many in society and
that indeed, in some cases, they understated the extent of the violative conduct.
For example, I remember that I had a bank robber before me. He did several bank
robberies and I was limited to sentencing that gentleman to seven years in prison.
What really disturbed me was that somehow a person who does two bank
robberies does not have to spend any additional time in prison than if he had done
one. That bothered me a lot.
The drug cases, of course, were one of the real stains on our society. I
think that, when history rewrites this era, it will be seen that we deprived a lot of
people of many years of their liberty unjustifiably.
I remember that we had a vote one time among our judges. I think
there were fourteen judges voting. I think that thirteen out of the fourteen
believed that the Guidelines were a wrong way of dispensing justice. So I was
just one of many who believed that. What is now happening is that the Guidelines
are being eviscerated by the Supreme Court in sort of a backdoor assault. That
really impacted the Guidelines tremendously when juries now have to decide
these extenuating factors.24
I would have hoped that the Supreme Court would
24 See Blakely v. Washington, 124 S.Ct. 2531 (2004), ruling that Sentencing Guidelines in the
State of Washington, which were similar to federal Sentencing Guidelines, were
unconstitutional.
– 114 –
have decided the unfairness of these Guidelines right up front. I thought that the
Guidelines violated due process as well as constituting cruel and unusual
punishment.
We were taking people who were simply drug addicts and putting
them in jail for many, many years.
The Webb case was one such case.25
Here was a street person. He had
no home. He was a drug addict. He would get his drugs simply by transferring
the drugs from a dealer to a purchaser. The police, by making multiple purchases
from this individual, were able to seek a sentence of I think seven or eight years
under the Guidelines. It was just terribly unfair.
That was a case that I felt was so unfair that I had hearing upon
hearing to how best to deal with this person. He was a Vietnam veteran who
clearly needed drug treatment, not imprisonment for eight years. So what I did
was somehow worked it so that the sentence would have been approximately four
years. The Government appealed the sentence. It went to the Court of Appeals,
and the Court of Appeals slammed me for the four-year sentence, claiming that I
had wrecked havoc on the judicial system, because, among other things, it
required the Court of Appeals to have to write an opinion.26
This insensitivity
really does not do the judicial system any good. It forced me to have to write an
opinion in which I did respond to the Court of Appeals, telling it that I did not
25 United States v. Webb, 966 F. Supp. 16 (D.D.C. 1997).
26 United States v. Webb, 134 F.3d 403, 408-09 (D.C. Cir. 1998), rev’g 966 F. Supp. 16 (D.D.C.
1997).
– 115 –
appreciate the way they tried to smear me.27
After all, all I was doing was my job.
I think that one of the greatest lines I ever wrote came in that case, in which I
answered the Court of Appeals statement that, I erred in finding that a sentence
for too long a term might invoke due process concerns. The Court of Appeals had
found that there was no due process issue at all.
I responded by taking off on that famous case in which the Supreme
Court threw out a punitive damage claim that had been based upon the fact that an
individual had bought a BMW with a botched paint job. The Supreme Court said
the facts would not justify the amount of punitive damage awarded in that case.28
The case was decided on substantive due process. My quote was that if the
Constitution of the United States can shed a tear for a botched BMW paint job, it
certainly should be able to do something for an individual who was going to have
to give up eight years of his liberty for some street sales of drugs.29

Under the Guidelines, we were just sentencing people to ungodly
amounts of time for nothing more than either addiction or having very minor roles
in drug trafficking. Of course if we found a trafficker I would throw the book at
them. But many of these cases did not involve traffickers. We had men who
would get their girlfriends to carry drugs for them, where the women would get
sentenced and their male partners would go free because they did not have the
27 United States v. Webb, 1998 WL 93052 (D.D.C. Feb. 20, 1998).
28 BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
29 “If the Constitution of this nation can shed a tear for one accused of botching a BMW paint
job, certainly where a liberty interest is at stake — and a defendant faces an unconscionably long
sentence for drug-addictive conduct — the Constitution should have no less a role to play.”
United States v. Webb, 1998 WL 93052 at *7.
– 116 –
drugs on them. These things I found unconscionable, unsettling, and I thought
were wrong. There are many little things I found that were bothersome about the
way we were applying both mandatory minimums and the Sentencing Guidelines
to deal with this drug problem.
Mr. Bennett: Before the Webb case you mentioned, there were other unreported drug cases that
became fairly well known because of unusual steps that you had taken in several
cases. For example, I think there was at least one case in which you were
troubled by the amount of the particular drug that the defendant was alleged to
have had in his possession, and you asked the prosecutor to bring the drugs into
court and weigh them. Is that the kind of issue that you found yourself having to
confront with these drug cases?
Judge Sporkin: Those were not really the main problem. Those cases were just my own
application of common sense. As I was getting ready to sentence someone, I saw
the report that showed the amount of drugs would be right above the threshold for
a mandatory minimum sentence. I had two cases like that. One involved the case
where the drugs were about 5.01 grams. I said to myself, suppose the chemist
was wrong – and he measured wrong. And here I am going to have to sentence
this person to over five years in prison. So I asked that the drugs be weighed, and
of course when drugs came in and were weighed, they came out under 5 grams, at
which point the federal prosecutor asked me to take judicial notice that cocaine
evaporates. I declined to do that, saying that I cannot take judicial notice of
something that my eyes tell me is different.
– 117 –
The second case is one where the measurement came in at something
like 50.1 grams. And there, when the drugs came back to be weighed, the weight
was actually 46 or 47 grams, which indicated to me that even if evaporation were
an issue, this case was not a case involving evaporation. This was something
more than that. It bothered me that the Government might be taking advantage of
some defendants.
Mr. Bennett: The Sentencing Guidelines were put into effect probably about 1987. I have seen
speeches that you made back in those early years of the Guidelines indicating that
other federal judges were so dissatisfied with the role that was imposed on them
by the Guidelines that some of them even resigned from the bench. A particular
case was Judge J. Lawrence Irving in San Diego. He resigned a few years after
the Guidelines went into effect. Did you have similar philosophical problems
with serving as a judge imposing sentences under the Guidelines?
Judge Sporkin: You have to understand that the toughest thing a judge has to do is take a person’s
liberty away from him. That is why I would spend untold hours figuring out what
was right and what was wrong in sentencing cases. One of the real problems we
had with the Sentencing Guidelines was that a district court judge – who sees the
individual face-to-face sentences that individual – can then be reversed by a
three-judge panel that never sees that person. I think that could be a constitutional
issue. I believe that a person whose liberty is being taken away should have the
right to appear before the sentencing judge and have the right to see the
sentencing judge and to hear from the sentencing judge. That is not done under
– 118 –
the Sentencing Guidelines. I do not know of anyone who has raised that issue.
Although I believe that it is an issue that counsel for affected defendants should
pursue.
There are other types of sentencing cases that I had. One was the Dyce
case, which is one I know you raised.30
That was a case in which the person who
was picked up with drugs was pregnant. I think that, by the time I sentenced her,
she had had the baby. I just did not feel comfortable in taking away the baby
from this woman for the multiple-year sentence that she had to serve under the
Guidelines. I tried to arrange a sentence which would defer the imprisonment to a
point in time after the baby was able to be weaned from the mother. So I was
trying to get a period of time – a year or two – before she was placed in a
correctional facility.31
I was disturbed when the Court of Appeals came down and
reversed me and said that you cannot treat women any differently than men. 32

She did the crime, she has to do the time, and it is immaterial that she is a mother
and gave birth to a kid. We do not take those things into consideration.
That of course bothered me. What happened to humanity? Isn’t this a
humane issue? Should we not take those things into consideration? What really
disturbed me, more than the fact that I was slapped down by the Court of Appeals,
was the fact that there were many in the women’s movement who were critical of
30 United States v. Dyce, 874 F. Supp. 1 (D.D.C. 1994), vacated and remanded, 91 F.3d 1462
(D.C. Cir. 1966), 975 F. Supp. 17 (D.D.C. 1997) (order and opinion on remand).
31 The sentence was for 60 months of probation – the first 24-month period of probation in a
“Young Mothers’ Program” in New York, where she would reside with her infant, followed by
12 months of probation in a community correction facility or halfway house. 874 F. Supp. 1
(D.D.C. 1994).
32 91 F.3d 1462.
– 119 –
my decision. Feminists thought that I was dead wrong. They agreed with the
Court of Appeals that women should not be treated differently. Biologically they
are different. There are issues that obviously pertain to women, not to men. So
that left me a little dumbfounded.
Mr. Bennett: Of course in that case you did take into account extraordinary family
circumstances, as you were allowed to do under the Guidelines. But then the
Court of Appeals decided that the extraordinary family circumstances were
narrower in scope than what you originally concluded yourself. Then after denial
of rehearing en banc in the Court of Appeals,33 the Court remanded the case to
you for possible resentencing. And you ended up coming up with the same
sentence based not just on family circumstances, but also on some other factors
such as the post-conviction rehabilitation of the defendant.
Judge Sporkin: I did not remember that, but what happened was that became the sentence then?
Mr. Bennett: As I read the case, you ended up giving the same sentence after the Court of
Appeals had acted. But you did so on somewhat broader grounds, including both
extraordinary family circumstances and post-conviction rehabilitation.34
Of
course by then several years had passed from the original sentencing, and you
could take additional factors into account. That one case at least came back to
you and you were able to take these broader issues into account as well.
33 See 91 F.3d 1462.
34 975 F. Supp. 17 (D.D.C. 1997).
– 120 –
Judge Sporkin: Being a judge, especially in the sentencing area, really requires the most
incredible amount of patience and feeling. I remember a young lady that had
come before me. I think she had five kids, many still in diapers. She was to be
sentenced to jail. I looked at the record. Her mother was there and at the time of
sentencing. Her mother said, in a plea that was so poignant that you could not
dismiss it, “look these kids are in diapers. I’m her mother and I cannot take care
of these kids. She is a good mother and she should be with these kids. They love
her.” So I think we were able, working with a probation officer to sentence her
whereby she was sentenced to one of these homes for women without partners so
that she could serve the sentence there and attend to her children. Again this was
something that really paid off. She told me she was going to go back to school;
she was going to get a degree; she was going to do a lot of other things. And I
remember that for a number of years after that she would come back to me every
few months and report the progress she was making. She made tremendous
progress. She was able to get her degree. She was able to get a good job. She
was able to continue to take care of these kids.
Those are very satisfying moments. They make you feel that you are
accomplishing something. Those are very important moments. I know that some
judges treat that kind of stuff as an irritant and just want to get the sentencing over
and let somebody else worry about it. I am not that kind of person. I would carry
these things with me for long periods of time.
Mr. Bennett: To a large extent we have sort of seen your judicial philosophy, if these are the
right words, reflected in your discussion of these cases. Let me go a bit beyond
– 121 –
that, Judge Sporkin, and mention to you an address that you gave at the occasion
of the portrait dedication ceremony for Judge Charles Richey, in which you
described some of the views of Judge Richey and his approach to the law.35
Do
some of those views that you described for Judge Richey apply to you as well?
Judge Sporkin: Absolutely. We were very close in every way. I do not think we ever had a
dispute on how to come out in a case. The interesting part is that we were both
Republicans. Nobody could say that we were some wild-eyed persons from out
of the mainstream. And yet we would see and call cases pretty much the same
way. I used a concept in that speech, the concept that many want judges to adhere
to a philosophy which I call McGooism. Mr. McGoo was the fellow that you will
recall could not see too well and would walk not looking where he was going and
would always fall. I always felt that the philosophy that is espoused by many
reflects that they really want judges to be McGooists, and be like Mr. McGoo and
apply that law and allow it take them over cliffs and what else and never look to
see what is the end result.
I am not saying that a bad end result is enough to change a decision. I
do not think that would be right. What I am saying is that a judge should know
what are the consequences of his or her action are likely to be. And then see what
can be done to soften or deal with that problem. Judges should not be robots.
They must realize what the impact of what they are doing is going to have on
society.
35 Remarks of Judge Stanley Sporkin at the Portrait Dedication Ceremony in Honor of the Late
Honorable Charles R. Richey, June 13, 1997. These Remarks are included as part of the
materials submitted in connection with the transcripts of the Oral History of Judge Stanley
Sporkin.
– 122 –
Mr. Bennett: In that speech concerning Judge Richey, you said, “he looked at the law, looked at
the end result, and tried to reconcile the two so that justice could be done, all the
while never compromising his duty to enforce the law as created by Congress.”
And in the speech you also said, “. . . seldom would he be heard to say, ‘I did an
unjust act because the law made me do it.’” Is that essentially your philosophy
too?
Judge Sporkin: That is absolutely right. You have got to look and see where the equities lie and
then see whether the law would justify the person that should win wins. You
obviously cannot manufacture law, but you certainly can apply it in the best way
you can to do justice.
We have a tremendous amount of law on the books. One of the
interesting things, when you go to law school, is that you have textbooks which
are really nothing but case books. And what the professors try to do is to give you
two cases, side by side, based upon pretty much the same facts, but the decisions
are different. That is what I remember in law school used to drive us nuts because
all we wanted as young lawyers was: what was the law?
What the professors were trying to teach us, and I think they
succeeded, is there is no such thing as: this is the law. It really is the application
of the facts to the legal principles that are involved. When you really look to see
what is it that we want our judges to be, it seems to me that when our President
appoints a judge to a court, the appointee should be someone who has not only the
legal qualifications to be a good judge but also the ability to deal with the law and
– 123 –
apply the law with good common sense, with the interests of the parties in mind,
and to do justice. What people sometimes fail to realize is that our federal judges
are not only law judges but also equity judges or chancellors. If we remember our
history, the Chancellor was a person who would see that justice is done. We had
found out that, by just using the law judges, there sometimes is great injustice. So
the system had to adapt, and had to provide for a Chancellor. And so we lose
sight of that fact when we talk about strict constructions, because under our
system of strict construction, it is also the Chancellor who is supposed to apply
the law in a way that does justice.
Mr. Bennett: In your speech about Judge Richey, you also mention in a footnote, Judge
Sporkin, that Judge Richey found particularly offensive judges being labeled
liberals, conservatives, activists or extremists. You also say that Judge Richey
defied those labels. Would you say that that footnote applies to you as well?
Judge Sporkin: Absolutely. There is nothing that makes me cringe more than someone says he or
she is an activist judge, a conservative judge, or a liberal judge. There is only
really one mold for a judge, and that is someone who does justice. And that is
what judging is all about.
Mr. Bennett: You retired from the bench after many years of service on the bench and also
previous Government service at the SEC and the CIA and actually as a law clerk
as well, even before that. What was your reason for deciding to retire from the
– 124 –
bench rather than to go on senior status or some other status that might have been
available to you?
Judge Sporkin: I had spent 14 years on the bench. I never practiced law except for one year in the
1960s. I thought that maybe this was a time to do something else. There were
some financial considerations because the Government had a rule that would
prevent me from obtaining my pension from the civil service until I had retired
from the bench. That was not a major consideration but it was a consideration.
I tried one year in taking senior status. Two of my former colleagues,
Judges Gesell and Richey, shied away from senior status because they thought
they were giving up some of the protections that Article III provided for judges. I
sort of agreed with that philosophy, and I did not care to be a senior judge. First
of all, I was not interested in reducing my caseload by 50 percent. I wanted to be
active and I wanted perhaps to try something else. So for all of those
considerations, I decided that I would step down and become a lawyer and
practice law.
Mr. Bennett: And since that time you have been here at Weil Gotshal?
Judge Sporkin: That is correct. It has been an interesting experience. I very much miss the
bench. Perhaps the rule that they have over in Superior Court, which allows a
judge to sort of retire and go into the private sector and then come back, if he does
it within 18 months, might be a pretty good idea. Maybe just a sabbatical is
necessary to recharge and then come back.
I have no real regrets. The practice of law has given me the ability to
– 125 –
deal with a lot of different things. I have done a number of public interest tasks. I
have done studies for the SEC, the National Association of Securities Dealers, the
New York Stock Exchange and even a small one for the New York City Police
Department. These have been rewarding experiences for me. It is not the Court
and yet I have found ways to find things interesting and to energize myself in
private practice.
Mr. Bennett: What do you miss in private practice that you found rewarding as a judge?
Judge Sporkin: One of the problems with private practice is that you are seeing the law being
made, whereas as a judge you are able to eat the meal after the law has been
made. You are not seeing what goes into making that law. I guess it is almost
like going into a restaurant and not seeing the way they are preparing a meal in
the kitchen.
In private firms, you also see a lot of young people running these
firms, perhaps the very people that you found in court were sometimes not really
up to it. I guess that it is lack of experience because the intellect is there. I can
see how to do something in about 20 seconds. Some lawyers may spend maybe a
month or longer trying to come to the same conclusion. In private practice, there
sometimes is the frustration of seeing people sort of having to work their way
through when the answer is easy. It is almost like when you raise children. You
know what the answer is but you want them to work it out themselves. The
problem I have with that in private practice is that somebody is paying for that,
and it just does not make a lot of sense to have people pay for the education of
– 126 –
lawyers.
But it is a good system, and the amazing thing is to see in this firm a
bunch of young lawyers running an extremely big operation. I am impressed with
the way they can manage and can run such an operation.
Mr. Bennett: Do you ever plan to retire in the conventional sense, that is, to enjoy yourself and
go to the beach? Write a book perhaps?
Judge Sporkin: Not yet. As Bob Morgenthau, District Attorney of New York City, said recently
he is too old to retire. That observation might make some sense. I want to do
something. I feel that as long as I can contribute, I want to be able to contribute.
When the point comes when I can no longer contribute, then obviously I will step
down and do something else. The real problem of course is that life is like a
football game when time is running out. We’ll fight until the last moment.
Mr. Bennett: Do you have any advice, Judge Sporkin, for any active or senior judge who might
be thinking about retiring from the bench?
Judge Sporkin: This is not one size fits all. The real point is: do you want a job that is all you are
going to be doing your whole life. One of the considerations that I took into
account was seeing some of my older colleagues literally die on the bench. The
Richeys and the Harold Greens. That was not a good sight.
It seems to me that you want to go out, you want people to remember
you when you were robust and you were sort of knocking the ball out of the park.
The last thing you want people to remember about you is almost being carried on
– 127 –
to the bench. That is not good.
Everybody has to make their own decision. A dear friend, Judge
Milton Pollack, in New York, who just recently died, was active until he was
either 96 or 97. My father was in his 90s when he stepped down. It really is up to
the individual.
Mr. Bennett: Judge Sporkin, we are just going to go back a moment and talk a bit about the
SEC days. We skipped that period in the chronological history because you have
given an interview as part of the SEC Oral History Project. You were interviewed
by Irving Pollack, a friend of yours and long-time associate. We are going to
refer in this oral history to the place on the internet where those interviews can be
found.36
I just wanted to ask essentially one or two things about that time. One
relates to Irv Pollack.
You mentioned in one of our earlier sessions that you had three great
mentors, Bill Casey, Irv Pollack and your father, Judge Maurice Sporkin. We
discussed the role that Bill Casey had played in your career and also your father’s
role and influence in your life. We only touched on Irv Pollack’s role. I wonder
if you would like to add something about that.
36 The Interview of Stanley Sporkin conducted by Irving Pollack on September 23, 2003, appears
on the website of the SEC Historical Society (http://www.sechistorical.org). That website also
includes an Addendum by Stanley Sporkin to his interview, dated March 24, 2004. In addition,
the website of the SEC Historical Society includes a panel discussion on September 25, 2002,
entitled “The Roundtable on Enforcement,” in which Judge Sporkin participated, as well as a
second panel discussion on October 4, 2001, entitled “The Roundtable of the 1963 SEC Special
Study,” in which Judge Sporkin also participated.
– 128 –
Judge Sporkin: Irv was the greatest boss a person could ever have. He was, during most of my 20
years at the Commission, my boss. He taught me so much.
First of all, he was, and still is, an extraordinarily brilliant individual.
Smart. His ethical principles were second to none. You knew when you dealt
with Irv that there was only one way to do it, and that was the right way. You had
to consider that in combination with the fact that the right way was also consistent
with being a good human being. Some people who pontificate sort of turn you off
because they come under the label of “do gooder.” He did not need to talk about
doing the right thing, because he was born into it. He automatically did the right
thing. That is how good he was.
The other thing Irv taught me was the concept of fairness. You have
got to be fair with people. I learned that when I was with the SEC. One of the
great benefits of being in government was that you could do the right thing.
There are many examples of this. If someone you found had been wronged or
was innocent, it made me feel just as good proving that person’s innocence as it
was in proving that another individual had violated the law. That was the great
thing about my 20 years with the SEC – to be able to do the right thing for the
right reasons.
When I lecture now to the people over there at the SEC, that is the
point I want to get across to them. They are servants of the people. They are
Government servants and they have a duty and responsibility to serve the public
as fairly and honestly as possible.
– 129 –
Mr. Bennett: You still cast a long shadow at the SEC. We know that the SEC has the Stanley
Sporkin Award that the SEC grants annually to a significant public servant that
year. We know also that you have made many speeches even during the time that
you were on the bench about SEC-related subjects. In one of those speeches, way
back in 1991, you said, Judge Sporkin, “I still miss those days at the
Commission.” Do you still feel the same way?
Judge Sporkin: Oh, yes. I miss my days on the bench. I miss my days at the CIA. I miss my
days at the Commission. And I miss my days as a law clerk. I have no regrets.
Just as the song says, I did it my way. Everybody practicing law should have had
the opportunities that I have had, because they would have had such a tremendous
experience. With respect to myself, I was able to have my cake and eat it too.
These were tremendous experiences. If I had to go and write a script of how I
wanted to spend my life, I could not have written it any better than the way it
happened, and I say that as candidly as I possibly can. This has been one great
ride. Going from Yale Law School, to clerkship, to the SEC, to the CIA, to the
Court and finally wrapping it up – well, maybe not finally wrapping it up –
practicing law. I do not know if I will have another career after this. But maybe
I’ll start working on it.37

37 Subsequent to the conclusion of the interview of December 14, 2004, Judge Sporkin became
Ombudsman for BP America, effective January 1, 2007, and withdrew as a partner in the firm
Weil, Gotshal & Manges LLP to accept that position. As Ombudsman, Judge Sporkin is a
person to whom employees of BP America may voice complaints or concerns relating to
environmental, safety or other issues affecting the oil company anywhere in the United States.
In addition to Judge Sporkin’s role as Ombudsman for BP America, Judge Sporkin continues the
practice of law as a sole practitioner in Washington, D.C., specializing in mediation, arbitration
and consultation on securities issues.
– 130 –
Mr. Bennett: Maybe we should wrap up the oral history with that note. Let me say on behalf of
the D.C. Circuit Historical Society, Judge Sporkin, thank you very much for your
important remembrances and observations on things during your distinguished
career on the bench. It has been a pleasure for me too to have the opportunity to
ask you a few questions.
Judge Sporkin: Alex, this has been a wonderful opportunity for me. Everybody used to say to
me, why don’t you write a book. You have been so patient with me and so
understanding, that I think we might have the book right here. And I do
appreciate your taking the time. This has been a very enjoyable experience.
Mr. Bennett: It has been my pleasure, Judge Sporkin. Thank you.
A-1
ORAL HISTORY OF JUDGE STANLEY SPORKIN
Index
1939 New York World’s Fair, 3
Agency. See CIA
Bache & Company, 31-32
public, but making it a private proceeding, 31
Becker, Edward, 8
Blank Rudenko & Rome, 16
Bogle, Jack, 17
Bok, Curtis, 7
Boland Amendment, 49-51
Bradley, Ben, 45
Burton, Sandy, 36
Bush, George H. W., 42
Casey, William (Bill), 39-41. 43, 46-51, 53, 56-57, 59-61, 63-66, 68, 70, 128
Director of the Central Intelligence Agency, 25
October Surprise, 46
CIA, 40-50, 59-60, 62-65, 70-71, 73, 83, 85, 124
Clark, Joseph, 6, 53
Cohen, Manny, 26
Contras, 50 See also Iran, Iran-Contra
Dietel, Ed, 53
Dilworth, Richardson, 6
Dorsey, Robert, 34
Export/Import Bank, 40-41
FCC, 21-23, 61-63
Finding See national-security Findings
Fitzwater, Harry, 43
Foreign Corrupt Practices Act, 37
Freed, Alan, 21
Garrett, Ray, 29
Gulf Oil, 34-35
Haley Wollenberg and Bader, 20
Haley, Andrew, 21-22
Hugel, Max, 45-46, 48
Iran, 53, 56
A-2
hostages, 109
Iran-Contra, 53, 55, 60
See also North, Oliver
Jews and other minorities in the law, 13-14
Levenson, Alan, 36-37, 40
Liman, Arthur, 10, 13
Makowka, Bernard, 52
Mammerella, Bill, 24
McCaw, J. Elroy, 21-23
McLain, Ken, 37
McMahon, John, 53-54
Mundheim, Robert, 41-42
national-security Findings, 56-61
Nixon, Richard, 29, 34, 103
North, Oliver, 57-58
Paul Weiss, 13
Pitt, Harvey, 27, 110
Pollack, Irving, 25-26, 28-30, 35, 64, 129
Proxmire, William, 36-37, 75
Rae, Tom, 26
Reagan, Ronald, 40-41, 49-50, 56, 60, 65, 69, 76
Rogers and Wells, 26
Rotberg, Gene, 26
Schultz, George, 57-58
Schwartz, Murray, 15
SEC, 24-27, 29-46, 59, 63-65, 70-72, 77, 81, 85-87, 89, 99, 104, 126-28, 130-32
SS hired, 22-26
Shad, John, 8-9
Sloan, Joseph, 7
Sporkin, Elizabeth (daughter), 10
Sporkin, Ethel Weiner (mother), 2
Sporkin, Judith Sally Imber (wife), 11, 20, 24, 41-42, 45-46
Sporkin, Maurice (father), 1, 4, 11
judgeship, 5, 6, 8
lawyer, 3
local politics, 3
Sporkin, Stanley – Personal
accounting, 5, 10-11, 32, 34
birth West Philadelphia, 1
A-3
Depression, 1
local public schools, 4
Penn State, 4-5
Phi Beta Kappa, 9
schooling, 4
Yale, 9, 36, 83, 132
Sporkin, Stanley – Professional
CIA General Counsel, 40
CPA, 5, 10
Lybrand Ross Brothers and Montgomery (now PricewaterhouseCoopers , 5
Morgan Lewis & Bockius, 14
PricewaterhouseCoopers, 5
SEC Director of Enforcement, 27-30, 39, 71, 87
Stans, Maurice, 29
Vanguard See Wellington Equity Fund
Washington Post, 46-47
Watergate, 29, 34
Wellington Equity Fund (later Vanguard), 17-18
Wells Report, 27-28
Wells, Jon, 26
Wessell, Richard, 43
Wollenberg, Roger, 23
Woodward, Bob, 47
Wright, Caleb, 14-15
Wynett, Nochem, 9

B-1
ORAL HISTORY OF JUDGE STANLEY SPORKIN
Table of Cases and Statutes
Cases
Blakely v. Washington, 124 S.Ct. 2531 (2004), 113
Lincoln Savings & Loan Ass’n v. Wall, 743 F. Supp. 901 (D.D.C. 1990), 76, 85-90
McVeigh v. Cohen, 983 F. Supp. 215, 996 F. Supp. 59 (D.D.C. 1998), 78, 85, 111
Prinz v. Federal Republic of Germany, 813 F. Supp. 22 (D.D.C. 1992), 104
Prinz v. Federal Republic of Germany, 1999 WL 121301 (D.D.C., 1993) rev’d, 26 F.3d 1166
(D.C. Cir 1994), 106
Taussig v. Wellington Fund, Inc., 187 F. Supp. 179 (D. Del. 1960), 16-18
United States v. Microsoft, 159 F.R.D. 318 (D.D.C. 1995), 76
United States v. Microsoft, 1995 WL 121107 (D.D.C., 1995), rev’d, 56 F.3d 1148 (D.C. Cir.
1995), 76, 97
United States v. Microsoft Corporation (Microsoft II), 147 F.2d 935 (D.C. Cir. 1998), 97
United States v. Microsoft Corporation (Microsoft III), 253 F.3d 34 (D.C. Cir. 2001), 103
United States v. Webb, 966 F. Supp. 16 (D.D.C. 1997), 78, 111
United States v. Webb, 134 F.3d 403, 408-09 (D.C. Cir. 1998), rev’g 966 F. Supp. 16 (D.D.C.
1997), 85, 114
United States v. Webb, 1998 WL 93052 (D.D.C. 1998), 85, 115

Statutes
Antitrust Procedures and Penalties (Tunney) Act, 15 U.S.C. § 16(e), 101
Civil Liability for Acts of State Sponsored Terrorism, 110 Stat. 3009 3172, 107
Foreign Corrupt Practices Act, 36
Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7),105-06

C‐1
Honorable Stanley Sporkin
Born February 7, 1932, in Philadelphia, PA
Died March 23, 2020, in Rockville, MD
Federal Judicial Service:
Judge, U.S. District Court for the District of Columbia
Nominated by Ronald Reagan on April 5, 1985, to a seat vacated by June L. Green. Confirmed
by the Senate on December 16, 1985 and received commission on December 17, 1985. Assumed
senior status on February 12, 1999. Service terminated on January 15, 2000, due to retirement.
Education:
Pennsylvania State University, A.B., 1953
Yale Law School, LL.B., 1957
Professional Career:
Law clerk, Hon. Caleb M. Wright, U.S. District Court, District of Delaware, 1957-1960
Law clerk, Hon. Paul Leahy, U.S. District Court, District of Delaware, 1960
Private practice, Washington, D.C., 1960-1961, 2000-
U.S. Securities and Exchange Commission, 1961-1981
Staff attorney, Special Studies of the Securities Markets, 1961-1963
Division of Trading and Markets, 1963
Chief, Branch of Enforcement, 1963-1966
Chief enforcement attorney, Office of Enforcement, 1966-1967
Assistant director of enforcement, 1967-1968
Associate director of enforcement, 1968-1972
Deputy director, Division of Enforcement, 1972-1974
Director, Division of Enforcement, 1974-1981
General counsel, Central Intelligence Agency, 1981-1986
Other Nominations/Recess Appointments:
Nominated to U.S. District Court for the District of Columbia, June 28, 1984; no Senate vote