Alan Morrison Text of Second Interview: January 11, 2008

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Oral History of
ALAN MORRISON
Second Interview – January 11, 2008
________________________________________________________________________
This is Dan Marcus on Friday, January 11, 2008, the second interview of Alan Morrison.
MR. MARCUS: Okay, Alan, I think we left off last time with your move to Washington
after you accepted Ralph Nader’s offer to be the first head of the Public Citizen
Litigation Group. Why don’t you start by telling us a little about how you got going
setting the operation up and then we’ll turn to the substantive areas that PCLG was
involved in over the years. First of all, let’s get the date again.
MR. MORRISON: February 5 , I’m pretty sure, 1972. We could confirm it, some piece th
of paper someplace. Whatever that Monday was, we had come down and we had rented a
house, a little house up near Tenleytown and come down, moved down over the week.
The movers came, pulled our stuff out of New York, put it in there. We stayed
down—and we moved in on Friday, Saturday and I started work on Monday.
Public Citizen didn’t have an office as such at the time. The only part of—it was a little
fundraising shop that was separate. Ralph had his main office with the Center for Study
of Responsive Law which was on 1156 19 Street. He had other people there, Harrison th
Wellford, Reuben Robertson, Ted Jacobs, Ruth Fort and some others. There was also a
Public Interest Research Group office. The Health Research Group had just started with
Sid Wolfe. Sid beat me there. He started in November but he didn’t have to move down
because he was already living here. He had a couple people working for him already at
the time. They were in a separate place. There was a related group called the Corporate
Accountability Research Group, which was Mark Green and Peter Petkus and I can’t
remember who else.
There was also the Center for Auto Safety which was not formally affiliated, but Ralph
had helped them get set up. And there were some other satellite groups around. And
when I had interviewed with Ralph, I think I told you last week, I had some ideas about
some cases I wanted to bring, some areas that I wanted to do. They said to me, “Just
come over to the Center on Monday morning,” and so I got there about 9:30 and I can’t
remember whether anybody was there or not and I met some people for the first time and
the question was where my office was going to be. Hadn’t been decided—at least I
hadn’t been told and guess I probably should have cared about it, but offices were never a
big thing for me. And so I—they decided that there was no space there and we had a tax
reform group that was just getting started and they had some space and it was over at 733
15 Street, which was where the Lawyers Committee for Civil Rights was at the time, th
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across the street from the Riggs Bank and I think Covington either was there then or had
been there before, before they moved—one of their first moves over to 16 Street. th
For the first week or so, what I did was I went around and talked to the people in all these
different groups about what ideas they had for bringing cases. There were some that were
already to go. There were a bunch of Freedom of Information Act cases, FOIA cases, that
people wanted done and there was a challenge to the USDA policy on nitrites and nitrates
and they wanted to do that, bring that to court, and I had some other things. And so I
started going around and figuring out what I was going to do. I didn’t have a secretary; I
had a desk and a phone—
MR. MARCUS: You did or did not have a secretary?
MR. MORRISON: Did not have a secretary, no. I didn’t really need one, although, of
course, it was before the days of computers and I was an okay typist in draft, but couldn’t
type worth a damn in final. And within the first couple of weeks we had filed a lawsuit
on nitrites against the USDA.
MR. MARCUS: Were you just a one-man operation then?
MR. MORRISON: I was the only person then, yeah. We did an amicus brief in a FOIA
case involving an issue which continued on for a long, long time on availability of premarket test data from the FDA. My recollection is that Boyden Gray filed the brief on the
other side for one of Wilmer’s clients at the time and then shortly after I got there, one of
my colleagues, actually Mark Silbergeld—I think he was with the Corporate
Accountability Group or PIRG, I can’t remember which one—knew Lew Goldfarb, who
was a lawyer with the Federal Trade Commission who had just filed a case challenging
the minimum fee schedules of the Virginia Bar. He was the plaintiff. He bought a home
and they had their minimum fee schedules, had price fixing.
He had a very nice little record that he made in advance. Mark put me in touch with Lew
and I agreed to go on the case with him. Fairly quickly it became apparent that first, this
was a class action—he couldn’t be both the class representative and class counsel—and
second, he was a full-time lawyer at the Federal Trade Commission. He didn’t have the
time nor could he get the time off to do this kind of case even though the Federal Trade
Commission probably should have been doing these cases to begin with. The Justice
Department was making noises about doing these cases. So we had that case, which got
up and going quite quickly. This is now in—I probably got involved in February of ‘72.
And at the same time my dear friend Reuben Robertson was at the Center, he started
working—he and Ralph had been working on ITT and they had started a proceeding in
Connecticut to challenge the ITT merger and its acquisition of Hartford Insurance
Company, and they had lost the case in the state courts there but they kept looking
around the issue, for something wrong, and two other things came up. One of them was
during the course of this investigation, they had gotten a copy of an IRS Ruling Letter
that allowed ITT to park some of its stock in The Hartford in a way that enabled them to
do the deal for the tax advantages they wanted, the details of which I could probably
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recall, but I can’t think of it right now. And that letter had surfaced, but nobody ever
made much of it. They asked me to look at it because I had done some tax work. And I
looked at it and I studied it and I talked to some friends at Caplin & Drysdale, and they
couldn’t officially help me but they were very helpful to me. And I figured out that the
deal had no substance to it and that ITT had pulled a fast one on the IRS, which meant
that their tax-free organization was no good. At the same time, Jack Anderson was
investigating ITT and Felix Rohatyn’s role in getting the Justice Department, which had
originally sued ITT, to block the Hartford merger, had lost in the District Court and was
going to take an appeal. ITT went around the back door of McLaren, who was then the
head of the Antitrust Division and went to Kleindienst initially and then to Mitchell, and
they got—and then I think they went to the White House—and they got the decision to
appeal to the Supreme Court which was then a direct appeal from antitrust cases,
overturned. Nobody knew anything about this. And they went and they had a settlement
and in the settlement they gave a whole bunch of reasons, all of which were bogus and
somebody leaked to Jack Anderson that they had had a backdoor meeting with the White
House, and the reasons they gave to the White House was that the business economy was
going to collapse and all these terrible things were going to happen and that’s how they
persuaded them. That wasn’t the White House—it was Kleindienst first. I’ll never
forget. It was either Jack—it may have been Brit Hume or there was another guy who
was working with him, with Jack Anderson, his name I can’t remember. They did this
fabulous thing which I always will remember. They caught Rohatyn as he was some
place, busy running, and they said to him, “Mr. Rohatyn, we know that you had this
meeting with Kleindienst about such and such, about the ITT antitrust case and we’re
trying to find out whether you said A or B.” And of course, they had no confirmation of
this meeting from anybody that they could go with and Rohatyn says, “Yes, we had
that—that’s not what happened, this is what happened.” They were able to confirm that
they had the meeting with him which was completely different from what the Justice
Department had said.
I had been aware that there were some recent cases allowing persons who were arguably
affected by antitrust consent decrees to challenge them. There was a natural gas case and
there was another related case in the labor context, the Supreme Court letting people
intervene for the purpose of alleging fraud on the Court, so we alleged fraud on the
Court. I prepared the papers and we moved to upset the ITT antitrust decree, to reopen it
in Hartford, Connecticut. It made a huge big splash. We lost. I think this was the stage
which one of the things I did was I met people doing other public interest things and one
of the people I met was Victor Kramer who was a former antitrust legend, a partner at
Arnold & Porter and running the Center for Public Representation at Georgetown at the
time, from which I’m happy to report, we ended up getting three or four or five really
good people over the years because of the relationship that we had with Victor. And
when you find somebody who you are compatible with, the old person network really
does matter because you could trust their judgment. Anyhow, somebody put me in touch
with Victor and I sent him the draft of the brief that we were going to file and he was on
vacation in Michigan (this must have been in the summer) and he—I called him and he
said to me, “Well, it’s a lot better than I thought it was going to be,” which from Victor is
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the highest form of compliment and, as they said in Casablanca, this was the beginning
of a beautiful friendship.
We filed the papers, the Justice Department went crazy, we ended up losing, we filed an
appeal which we had as of right at the time to the Supreme Court, and they did not hear
the case. Then, in the meantime, we ended up sending a letter to the IRS saying that ITT
had misrepresented this transaction and eventually one of the things that happened was
the ITT revenue ruling was revoked on the grounds of fraud. ITT eventually had to pay
lots of money, I don’t remember the exact figure, and—
MR. MARCUS: To the IRS?
MR. MORRISON: The IRS, yeah. In theory, they could have gone after all the
stockholders, which is what ITT was really worried about because they would have had
claims against it, and so the IRS settled it. ITT paid them some very substantial—I think
it may have been something like a hundred million dollars. It was a very large amount of
money. We then decided we would file under the IRS statute that allows people to seek
rewards for tips and we ended up getting I think a million and a half bucks out of it
between the Center for Study of Responsive Law and Public Citizen—for us a very large
sum of money. But that must have been seven or eight years, ten years by the time we
ended up getting the money. We had to keep writing them letters and we couldn’t, of
course, do anything until the IRS had actually made the assessment which, of course,
took a very long time.
MR. MARCUS: But that was one of your earliest—it began as one of your earliest cases?
MR. MORRISON: Yes, yes, and then it continued for quite some time. The other aspect
of it was that ITT had a consent decree which was still in effect, but one of the collateral
consequences of having a consent decree, a friend tipped us off at the SEC about, was
that one of ITT’s subsidiaries was an investment company under the Investment
Company Act of 1940. And if you had to have a consent decree, you had to get an
exception to be allowed to be an investment advisor. So they had to file a formal
application and somebody—and I never knew who—Reuben may have known—at the
SEC tipped us off to this and we filed an objection on behalf of a shareholder, I think it
was. Somebody who at least the administrative law judge thought had standing. I could
probably figure it out, but I can’t remember right now. We filed an objection to this, and
the then-head—the two people, the top two people in the Enforcement Division at the
time were Irving Pollack and Stanley Sporkin and they called us in and they decided they
wanted to have a meeting about this and Joe Flom came down from New York to
represent ITT and he gets in there and he starts ranting and raving, maybe a little hot. He
was in high indignancy about us going in there. “These two people don’t know what is
there or what they are talking about.” I remember this—Irving Pollack says, “Mr. Flom,
we will have none of that. I know these people. They are honest, reputable people.
They have made serious factual allegations and we’re going to hold a hearing, so that’s
the end of that.” And so we had this hearing and it went on for months. We had some
administrative law judge who probably didn’t have anything better to do. It was quite
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interesting. We subpoenaed the general coun—it was all about their good faith—we
subpoenaed the general counsel of ITT, put him under oath, and all kinds of things. The
thing went on for about three years and finally a former colleague of mine in the U.S.
attorney’s office in New York, Mike Mitchell—was a lawyer for ITT. He was at Skadden
at the time and I sent him—I used to send him anniversary cards for every year the
hearing was going on and nothing had happened, there wasn’t any finality to the hearing.
In theory they could keep it, but they couldn’t do anything. Finally at some point they
just gave up. They got rid of this subsidiary and the hearing wound down. So all that
started from this little thing which had been started before we got there. And a couple of
lessons that I got out of that was you can’t ever predict where things are going to come
from—that is, where cases are going to come from or where they’re going to or how they
are going to think. The second thing was it was really important that I had a broad range
of substantive knowledge. I mean, in this very case, tax, securities, antitrust, procedure,
all these things were really essential, and we didn’t have an antitrust department, we
didn’t have a tax department, we had me and whoever else was there to do it. So that
was really an important eye-opening lesson.
Then—oh yeah, then we had—these things kept happening. We had another—this was at
the time when the big flood of the West Virginia mine occurred. What’s his
name—Gerry Stern — wrote the book about it. The coal mine company—this is what
happens when I don’t do my homework. Anyway, it happened and it turned out that
Donovan Leisure was representing the company and Ralph and I got talking about what
was going to happen. We knew exactly what was going to happen—the coal mine
company was going to go out there and their insurance companies out there with their
checkbooks and they were going to pay people who had nothing, had no house, they were
going to write them checks for really small amounts of money. So Ralph said to me,
“Why don’t you just call….” I said I know this Dan Murdock because he and I were in the
U.S. attorney’s office together. So we got the idea somehow that I would just call him.
So I called him up.
MR. MARCUS: Who were you calling?
MR. MORRISON: Dan Murdock, who was the lawyer at Donovan Leisure who was
representing the company. I guess I must have seen the story in the paper that he was
doing it. So I just picked up the phone and I called him and I said, “I’m working with
Ralph Nader now and we see this happened. It was a terrible tragedy and we’re very
concerned that you’re going to go out there with checkbooks and we think it’s a terrible
thing. We’re prepared to go to the press on this and think about bringing a lawsuit to
prevent you from doing this, to take unfair advantage of these people.” He said, “Let me
check,” and a couple of days later we got an okay saying that they would not be going
out there, that they understood that this was the wrong thing to do and they were not
going to do this. So here was this thing going on and we started—all these things were
going on at the same time at the very beginning of all this. Then Ralph said to me, “You
know, I think you should hire somebody.”
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He had already found somebody who had worked with him on a project or he knew—a
lawyer who was clerking for Judge Thompson in Baltimore, a lawyer named Tommy
Jacks going to Texas Law School. And Ralph said, “I’ve hired him.” And I suppose I
could have said, “Ralph, I want to talk to him and object to him.” In any event, I met him
fairly shortly after that and he seemed like a perfectly able guy, had a good record and so
I said, “Fine,” and Tommy was going to come in September. And then Ralph said,
“There is a fellow by the name of Ron Plesser who went to George Washington Law
School and he’s in New York—he worked for Bill Dobrovir for a while. He’s in New
York and he wants to leave. I want you to come talk to him about doing Freedom of
Information cases. We need to have somebody full-time on it.” And Ralph was so
pressured about this because the Act had passed in ‘66, went effective in July of ’67, and
there were very few cases being brought. The press had brought a few; a few other
people had brought some. The industry had not awakened to the fact that this was an
equal opportunity law that would enable them to get lots of stuff. Ralph said, “This law
is never going to be in effect meaningfully until people are out there bringing lawsuits,
because the agencies will just deny things. This is their modus operandi. They have
always done this. This is the way they are going to continue to operate and you have to
sue them.” And, of course, he was absolutely right.
I had seen some of this when I was in the U.S. attorney’s office. We had a couple of
FOIA cases up there and even as a government lawyer defending them, they didn’t have
much to defend on in a few cases—the few cases that I saw—and so I was perfectly
prepared to go on the attack and see that he was right. So we brought that one case and
then we hired somebody.
MR. MARCUS: And you hired Plesser?
MR. MORRISON: We hired Plesser, yeah. I came in. I was feeling really bad but Ron
had come down from New York where he then was and I was feeling not good at all and
it turned out two days later I went to the doctor and I had pneumonia and was home for a
few days after that. So I came in on what was Washington’s Birthday and I parked in a
parking lot (you’ll see the relevance of this in a second) and it said regular rates and
holiday rates and then I came out and they are charging me regular rates. I said, “Wait a
second, this has got to be a holiday! How could you do this to me?” Anyway, I wrote a
letter either to Traffic Enforcement, the police or somebody—I got no response.
Meanwhile, I had opened an account at the Riggs Bank which was next to my home
down the street so we could go cash checks. Of course, there were no ATM machines in
those days. I figured there were enough Riggs Banks downtown I could find one. So we
opened the account on the third of February and I remember the brochure said “Funds
deposited by the tenth day of the month earn interest from the first of the month.” I said,
“Well that was nice.” And then I filled out the forms and they gave me a whole bunch of
other stuff. I had maybe a couple thousand dollars in stocks and I said, “This isn’t worth
enough, I need to get rid of these few stocks so I can do what I want to do without having
to think about those kind of questions.” So I had a savings account and a checking
account there.
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Fast forward to the end of June; I get my statement and there is no interest on it. It turns
out that what they didn’t tell me right away was that the interest was only on the lowest
balance that you had in the quarter. So I ended up getting zero interest and I can’t
remember the exact machinations of this but it was clearly deceptive. So that became
another cause that we started. We ended up—we started with Riggs Bank. Our
first—we had problems getting clients. We finally got one and we were just about to do
this when Riggs changed its policy so it was only prospective and we just didn’t want to
be doing it. So we shifted to—and that was then American Security Bank—we actually
brought a lawsuit against them. We ended up—the judge refused to certify the case as a
class action because he said the amount was too small, it had to go in Small Claims Court
and somebody ended up years later taking an appeal. We lost that case, but in the long
run all the banks backed off from this highly deceptive practice in teeny, minuscule print
that they would give you. There were a couple of other things that we found along the
way as we started reading these things.
But these were just lawsuits just sitting around there waiting to happen. The other thing I
learned was that if you challenge these institutions, they can’t deal with it. That is, they
don’t—they can’t—they know that they aren’t supposed to be doing these kind of things,
and a lot of them backed off. So that’s how we sort of got started.
We hired Ron. He came to work later on. He started bringing a large number of FOIA
cases and we won large numbers of them because they didn’t have any defense. They
were just blatantly violating the law. One of the other great things about these FOIA
cases was they were terrific training vehicles for young lawyers. The complaint was
really simple. You are an agency, we asked for the records, you didn’t give them to us,
you violated the law, and we are entitled to them. That’s all you had to write in the
complaint. One of the first complaints that I wrote for Ralph—it may not have been one
of the FOIA cases, but it was another case—and he looked at the complaint and he said to
me, “Alan, this is so short!”
So I said to him, “Yes, Ralph, that’s true. It is short, but it’s all that’s necessary.” He said,
“But what is the—can people understand it? Can the press do anything with it?” I said,
“They’ll understand. We’ll issue a press release if we need to issue a press release.” I
said, “Besides, Ralph, think of all the money we are saving on copying.” And of course
Ralph—
MR. MARCUS: That appealed to him.
MR. MORRISON: Oh boy, did that appeal to him. He was a real tightwad on those kinds
of things. Ralph refused to have a Xerox machine in the office because one summer he
had a Xerox machine and everybody was just copying everything and just running up
huge bills. So we didn’t get a Xerox machine, we got an IBM machine instead. He felt
better because it wasn’t a Xerox. It was actually the same thing with the same problem.
Along those lines, one day he came in to me. He was looking at the bills again. And he
said to me, “Alan, I got a really good idea.” I said, “What’s that, Ralph?” He said,
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“We’re going to save money. We’re going to get rid of our copying machine. I found
this place that will do overnight copying and we can save a lot of money and do it that
way.” I said to him, “That’s fine, Ralph. I said, but the day the copy machine goes, so do
I.” I said, “I’m not doing it. We have certain things we’ve just got to have.” So he took a
deep breath and said, “Okay.” And then in the future when it was something really
important, Ralph would say to me, “Alan, this is a copying machine matter.” And he—I
knew what he meant by that, that he was—he felt that this was something that really
mattered to him, and then we would discuss it on the merits of that.
Anyway, we were at 733 15 Street only from early February to sometime in June ‘72. th
When we moved to 2000 P Street. We were originally on the fifth floor of 2000 P Street.
I remember Ron Plesser had to walk through my office to get to his. We shared—by that
time there was Tommy Jacks and then in that summer I hired Ray Bonner who was a
Stanford graduate, had been in the Marine Corps in Viet Nam as a lawyer for about two
or three years, came back, and I hired him. He stayed with us for two years and then
went to do work for Consumers Union in California and subsequently became a freelance
writer, wrote books about El Salvador and he wrote books about the Marcoses, became a
stringer for The New York Times and has written pieces for them and got out of the law
and is a journalist. So we had four of us starting in the summer of 1972. Actually
Tommy didn’t start until September.
MR. MARCUS: Did all of Nader’s affiliates move up to 2000 P or just the Public Citizen
Litigation Group?
MR. MORRISON: No. The Health Research Group also moved there. The Tax Group
stayed where it was. We didn’t have an Energy Group at the time. We didn’t have the
Lobbying Group—it hadn’t yet got started. But also at the top floor of 2000 P Street,
Ralph had his Congress Project, which did profiles of every member of Congress and lots
of people came in there. We got conscripted into reading them and then going out and
presenting them to various parts of the country. I did three or four when they were
finished —he had hoped to get them done by Election Day—my recollection is maybe
we got them done by then. It was an enormous undertaking, completely almost insane in
terms of its scope, but it somehow got done. They were occupying the seventh floor and
we were on the fifth floor and stayed on the fifth floor for about a year and a half until we
moved up to the seventh floor in December of 1973. So there were four of us. By that
time we had gotten a secretary. I guess we got one some time probably in April, a lovely
woman named Polly Curran.
MR. MARCUS: April of ‘73?
MR. MORRISON: ‘72.
MR. MARCUS: Early on.
MR. MORRISON: Yeah, her husband was a State Department lawyer, quite by
coincidence she asked a question in 2006 in New Hampshire, or maybe it was 2004, she
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was on television and asked a question and I tried unsuccessfully to get in touch with her.
She had written me, we had been in communication from time to time. Never able to do
it. She was a lovely, lovely person. She stayed with us for a couple years.
We moved over into these spaces. We had a reasonable library, we started getting the
Feds. We had bought back edition of the F. 2ds and so forth. This was in the
beginning—
MR. MARCUS: Before computerized research.
MR. MORRISON: Of course! Computers! We had Selectric typewriters and not much
else. Then we began—so we started—we were doing the FOIA things, we were doing
the Goldfarb case.
MR. MARCUS: That was the legal fee—
MR. MORRISON: Legal fee schedule challenge under the antitrust laws. We were doing
some administrative cases. We had ITT and in the summer of 1972 there was a
consumer group that was, again, loosely affiliated with us, next door. They were
working on the issue of the price of prescription drugs. The FTC had done a lot about
this and there had been a fair amount written about the problem caused by the state laws
prohibiting the advertising of the price of prescription drugs. I saw this, and this was
right in line with one of my areas that I was interested in, which was the lawyer
advertising, which was consistent with the minimum fee schedules. That is, one of the
things that I said to Ralph was, “We need to make the legal profession more available
and more affordable to middle- and low-income people.” Nobody was doing this. The
ACLU wasn’t doing it, none of the—
MR. MARCUS: The ABA wasn’t doing it.
MR. MORRISON: Oh, yeah, the last thing the ABA was doing. They were the problem.
And I said, “This prohibition on lawyer advertising, plain violation of free speech and,
more importantly, it hurts people.” And I had done what I had always done when I was
at the U.S. attorney’s office. I read U.S. Law Week with great care and they had lots of
good cases including a case in the Supreme Court called Kleindienst v. Mandel. Mr.
Mandel was a Communist from Belgium who wanted to come to this country to give a
talk, and the attorney general wouldn’t let him in. I guess it was an immigration matter,
and Kleindienst wouldn’t give him a visa or wouldn’t give him permission to come. So
he sued and the people to whom he was going to make his presentation sued, claiming it
was a violation of First Amendment rights. And Mandel lost his part of the case. The
Court said you are a foreigner, you don’t have standing, you are not here in the United
States. But, the Court said, the listeners have standing.
There was another case we were involved with that went all the way to the Supreme
Court called Lamont v. The Postmaster General, in which Lamont was Corliss Lamont,
who was trying to get material from Viet Nam that the Postmaster was interfering with.
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He claimed a First Amendment right to get it and the Court said, “Of course you have a
First Amendment right to receive, it’s not just the speaker.” So I put those two cases
together and I said, “The consumers, who are being denied access to this information,
they are the truly injured people and, besides, psychologically they make much better
plaintiffs than the drug people, the advertisers or, later on, even more clearly, the
lawyers.” So I saw this as the opening step toward getting to lawyers’ advertising, and it
was clear to me that this was a perfect case because it was lawful to have price
competition. You had to get a prescription from a doctor to use the drug, all the
pharmacists, at least some of them, wanted to do was to tell the truth. Many of them, of
course, were perfectly content with not having to tell—having any advertising—because
it meant that they could keep their prices as high as they wanted. And there was no good
justification for all of this. And so we brought a First Amendment challenge to this law
in Virginia.
MR. MARCUS: That’s the big case, right?
MR. MORRISON: Virginia Board of Pharmacy. And that gets you with lots of things
along the way which I’ll talk to you about when we get to it, into the lawyer advertising
and on to other things—of course the First Amendment and what has happened to it as a
result of it.
MR. MARCUS: But did you find in that case that you were—that while you were clearly
pursuing the consumer interest, the public interest, and price competition, and so on, that
you were accused of being a foe of small business, of the mom-and-pop pharmacies who
were protected by that law and price competition from the Walgreens and…
MR. MORRISON: There weren’t so many of those—
MR. MARCUS: There weren’t so many in those days, yeah.
MR. MORRISON: And they were—nobody accused us of that, in part, because they
were defending this law on the grounds it was needed to protect the consumers. That is
how it had been sold, although anybody who thought about it for a minute understood
that consumers were being screwed and not being helped.
MR. MARCUS: That’s right. The argument was, as I recall, that consumers were helped
by this law—
MR. MORRISON: They wouldn’t get mixed up, they wouldn’t get—
MR. MARCUS: Because they would get—the pharmacists were providing all these
valuable services. If there was too much price competition, they wouldn’t give the
customers supplies, they wouldn’t pay attention to their problems and so on.
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MR. MORRISON: You got it. And they had other things as well, that they wouldn’t
check to be sure that you were getting—they were mixing and matching the wrong drugs
and so forth. All of those kind of things.
So Ray Bonner started working on that case. We filed a three-judge court case in
Virginia. Meanwhile, the Goldfarb case was moving along. All of this was within six
months. Goldfarb was moving along. We took some depositions. They made a
motion—the defendants made a motion to dismiss or for summary judgment, raising lack
of interstate commerce, the learned profession exception, and Parker-Brown. Judge
Albert Bryan denied the motion to dismiss. We filed a motion for class certification of a
class of twenty-five hundred homeowners in Reston, Virginia. They didn’t really
seriously oppose it, and Judge Bryan certified the class and set the case down for trial for
December. So we took a little discovery and we got ready and we had a half a day trial.
We put on a witness who had gone out and—this was largely Tommy Jacks’s work,
working with somebody—we went out and we surveyed the deeds in Fairfax County
where Reston, Virginia, was located and found an enormous number of interstate
mortgages, people moving from out-of-state. We had plenty of evidence to show that
there was a lot of interstate commerce involved which was either going to be enough or it
wasn’t going to be enough given the fact that we were also in, of course, an area where
there are people commuting and people moving around. So we thought that we were
okay on that as well.
We had a one-day trial. In January 1973 he ruled—meanwhile, we filed against three
Bar Associations and two of them settled, Alexandria—the City of Alexandria and
Arlington settled and we agreed to let them out of the case. They agreed to withdraw
their fee schedules and this meant we had two fewer law firms. One of them was
represented by Arent Fox and the other was represented by Williams & Connolly, and
Hunton & Williams was representing Fairfax, and the State of Virginia had the attorney
general’s office. So I had two reasons in mind that we let them go. The first thing was I
didn’t want to litigate against four people and two people is quite enough.
MR. MARCUS: Quite enough.
MR. MORRISON: And I knew that the voluntary Bar Associations had no money in, any
event, and they wouldn’t be able to—they weren’t sources of real revenue if we ever got
to that point. And I also thought that if we got two people to voluntarily withdraw their
fee schedules we could say to the court, “Look, they voluntarily did this. The world is
going to continue to operate. The sun will rise in the morning and set in the evening. It
will not come to an end if they don’t have minimum fee schedules.” And sure enough,
we were able to kind of make that point as we went along. So Bryan struck down the
Fairfax County fee schedule but upheld the State Bar’s role in it and then both sides
took—
MR. MARCUS: Was he striking it down on First Amendment grounds?
MR. MORRISON: No, no, no—
42
MR. MARCUS: Antitrust?
MR. MORRISON: Yes.
MR. MARCUS: Yeah, it wouldn’t be First Amendment.
MR. MORRISON: Well because the State Supreme Court had—this came along later in
the lawyers’ advertising cases. So that’s how we kind of got started, and the next thing I
knew we were really up and going and in business. Well, some of the things would have
been predictable. The lawyers cases were predictable, the regulatory cases, sort of, but
we never would have conceived of ITT. The FOIA cases might have been, but not to the
extent—I remember Nader or myself at one point, saying why these were such wonderful
cases because people could come in and file simple complaints. When we would see a
document withheld and the reasons given, we could immediately assess whether we were
going to clearly win, clearly lose or whether this was a litigable issue. All these cases
involved a modest amount of discovery, not much. A few interrogatories, maybe a
deposition and then they would make a motion to dismiss, we would oppose and say,
“We need a little discovery; we need to elucidate the facts.” And then we’d get crossmotions for summary judgment, decision and appeal, and if we lost we had an immediate
appeal. One of our lawyers, Larry Ellsworth, the first year he was in the office, argued
four cases in the D.C. Circuit on this. Everybody was able to do it.
MR. MARCUS: Because there weren’t a lot of disputed facts. There wasn’t a dispute as
to what the facts about the fee schedules were, for example.
MR. MORRISON: Well there was not much in those things but I’m talking about the
FOIA cases.
MR. MARCUS: The FOIA cases. I thought you were talking about all your cases.
MR. MORRISON: Well that was also true to a greatest extent in most of them, but not
all.
MR. MARCUS: Not, for example, in that long SEC hearing you had.
MR. MORRISON: But, by and large, part of this was it was my strategic decision that it
was both too costly, too time-consuming and that we were not here in general to pick out
or represent individual clients. We were there to make progress in the law and sometimes
you had to litigate a case for a client to show that you could not make progress in court.
Sometimes we had disputes of fact but they were generally not ultimate disputes because
a) it was an administrative law case, or b) it was a statutory case, constitutional case and
the facts were ultimately not in dispute. But these FOIA cases went very fast because
they were entitled to expedited treatment and the young lawyers didn’t have to worry
about the complexities of figuring out who the plaintiffs were and who the defendants
were and how to structure the case. It was easy in the door and they got to practice being
lawyers and they were great tools. We essentially had almost everybody who came in
43
initially do FOIA cases and then when we started having people who, in addition to those
who came in, we would often have them do some FOIA cases, in addition, just to get the
experience of doing it and be able to get cases in and out.
MR. MARCUS: Am I right in assuming that you also generally didn’t get involved in big
agency hearings, agency rule-making proceedings, that it was more judicial review of
agency actions or lawsuits challenging private arrangements or government programs?
MR. MORRISON: That’s right. We did get involved somewhat initially and somewhat
over the years in some rule-making cases. But most of them we got involved in were
about issues of law, did they have a good-cause exception for not having notice-andcomment rule making? Did they have adequate justification on the record? Some of those
were big record cases. Sometimes—most particularly our Health Group, for example,
over at OSHA would do it or at FDA—would be involved in some of these proceedings.
They file petitions, participate in some of them, but they were not hearings in the trial
sense of the word “hearings.”
MR. MARCUS: Yeah, and when Sid Wolfe, for example, at HRG would file one of his
petitions with FDA to do something about a drug or something, I assume he and his staff
would do that pretty much themselves rather than having—you wouldn’t get involved at
that stage. You would get involved with people suing FDA.
MR. MORRISON: Initially they started doing—they did them themselves. Subsequently
as we got along, we had—our people became more and more expert. Bill Schultz in
particular.
And both of us realized the mutual benefits of having our involvement early on so that
petitions were properly structured. But our lawyers wouldn’t be gathering the
information that—I mean, most of Sid’s work was gathering other published materials
and putting them together and presenting them to the FDA. That is, we didn’t have a lab
at Public Citizen and the Health Research Group, couldn’t conduct our own clinical
trials, and so that’s the way we proceeded.
MR. MARCUS: And while you had some cases and some of the initial cases you
mentioned were in places other than the U.S. District Court for the District of Columbia
or the D.C. Circuit, if you look at the whole history, I assume the vast majority of your
court litigation was in the federal courts of the District of Columbia.
MR. MORRISON: Certainly in the first five years or so. Although the ITT case was in
Connecticut, the Virginia cases were in Virginia, but that’s not very far.
But you know, one of the things we had to do in all these cases, we had to get local
counsel. We a) were doing controversial things, and b) we had no money to pay them.
And so, you know, it wasn’t always easy to get local counsel and generally we did almost
all the work but we had to get them.
44
The other thing that we did very early on that had been on my little list of things to do
was go after impoundment. Richard Nixon claimed that he had the constitutional,
statutory, other authority to refuse to spend money and I reverted to my fourth-grade
civics, which I reverted to in other contexts later on as in Chadha, and said, “Wait a
second, he can’t do that!” and so this was getting to—in the beginning of ‘72 was already
an issue.
I saw impoundment as an area in which it seemed to me Nixon was plainly violating the
law. Ralph and I had discussed this matter as one of the areas I wanted to do and I found
out in the fall of 1972, just after Tommy Jacks arrived, that there was, in fact, a case in
the Eighth Circuit involving Nixon’s impoundment of highway funds. Both Ralph and I
thought that we had plenty of money going into highway funds and this wouldn’t have
been our first choice of things to attack on impoundment, but the case was going to the
Eighth Circuit. The State Highway Commission was the plaintiff and we had seen their
briefs and we didn’t think very much of them. So what we decided to do was to write an
amicus brief and with Ralph and working with Mike Pertschuk who was then the Chief
Counsel to the Senate Commerce Committee, who Ralph had introduced me to, we
decided that we would write an amicus brief on behalf of the chair of every single Senate
committee, the Majority Leader of the Senate and a couple Members of the House, and
Mike got us every single one of them, including Sam Ervin who was holding the hearings
on it.
So we decide to file this amicus brief. Mike got us all these senators and a few members
of the House—I think we had like twenty-five Members of Congress on this brief—
MR. MARCUS: So this was the beginning of your career representing the Congress?
MR. MORRISON: Yes. And this case was in the Eighth Circuit, it was a tight briefing
schedule and we had to file a brief—Tommy did a lot of the basic research, although
some of it had been done before, there had been some congressional hearings and we
both briefed the major constitutional issues; the Justice Department had a position they
weren’t going to raise a constitutional claim, they were only raising statutory claims. But
there was a constitutional background against which we had to deal with all this.
MR. MARCUS: You mean the Justice Department was arguing that he had statutory
authority to—
MR. MORRISON: Claiming that he had—that the statutes didn’t clearly prohibit him
from doing so and that his basic constitutional authority gave him—he wasn’t claiming
that if the statute had been specific, said, “You may not impound,” that he had the
constitutional authority to override it. They didn’t think he needed to do that and they
weren’t ready to do this. This was, of course, in 1972 when he was running for president
again. He was a strong president at the time but he still didn’t want to take on the
Congress—Congress was Democratic in both the House and the Senate.
45
Anyway, we got ready to write the brief and we had to get it out there and, of course,
there was no FedEx in those days. And, of course, you couldn’t electronically file it; we
had to get local counsel. What we ended up having to do, there was something called
Next Day Air and one of us, maybe Tommy, went out to the airport here and we took the
briefs that we had printed, because they weren’t going to print the briefs for us, put them
in a box and sent them out to counsel out there, they picked them up and they took them
to the courthouse. That’s how we had to do it.
Oral argument was scheduled for—my recollection is sometime in January and probably
ten days or two weeks before the argument we got a phone call from the clerk of the
Eighth Circuit saying that the court has requested that we present oral argument. Now
not very many times are amici allowed to argue, but to be requested by the court to come
to court argument, somebody must have read our brief, and liked it. So I had a very hard
choice at this point. Tommy had never argued a case in the court before—in an appeals
court. We didn’t have much money to send two of us out there and so I made the
decision and I thought that the senators who were our clients would have wanted this,
too—for me to argue the case which is—I never did this—taking cases away, but it didn’t
seem like it was the right case to have him do this. In addition, my recollection is that we
had only about a week to get prepared for oral argument. So I went and argued the case
and I remember to this day sitting there in the courtroom and the court saying, “Will
counsel for Senator Ervin and the others please prepare to present oral argument,” and I
realized that this was a big deal. And we won that case 2-1 in the Eighth Circuit. It was
the first impoundment case.
MR. MARCUS: On statutory issues?
MR. MORRISON: Statutory grounds.
MR. MARCUS: He had no statutory authority and they didn’t reach the question of
whether he had constitutional authority?
MR. MORRISON: Exactly. Meanwhile, while all this was going on, Senator Ervin was
holding hearings on it, and Ralph and I testified. Ralph was really good about bringing
people up there. My recollection is that I wrote a lot of the testimony but he really went
over it and they had a draft bill that we talked about and ultimately became the law. We
had a substantial impact both in the creating of the bill and how it shaped out and other
things.
MR. MARCUS: Was this something that Nader—you think of Nader being identified
with certain kinds of issues, but was he really worried about presidential power,
executive power?
MR. MORRISON: Not particularly, no. And one of his great strengths was that he
picked people to run the different substantive groups and he, by and large, let us alone,
that he understood that there were so many things that needed to be done in the world
that as long as you were doing good and useful things and not consuming large amounts
46
of time and large amounts of money, it was better to have me doing the things that
interested me than it was for him to try to set a schedule—
MR. MARCUS: Priorities, yeah.
MR. MORRISON: Agendas—he had areas that if he was interested in something, we
tried to do it. A bunch of times I had to tell him, “Ralph, we don’t have standing to do
this,” or, “The law is against us,” or whatever it was, but he really let me have incredible
free rein. I’ve said this publicly many times, but the freedom I had was just unthinkable,
almost, to me. That I was being allowed to go out and do all this stuff and there was
never a case in which he ever said to me, “You know, that’s sort of a dumb area to be
involved in.” Maybe because we agreed that these were important, he didn’t necessarily
think of it. He was concerned about concentrations of power of any kind and surely this
was one that he was concerned about. Once we got into it he was very much—one of the
ironies is that in the bill that got enacted, and I do not remember whether it was in the
draft version we saw, they divided the world between rescissions, that is, things that stop
the spending of money entirely, which were then made illegal, prospectively, under the
Impoundment Control Act of 1974 when it finally got enacted, and those things which
were deferrals, meaning that they could be done later. There was a legislative veto
override in the deferral provision and I have no recollection of either seeing it or, if I saw
it, I paid no attention.
MR. MARCUS: It didn’t bother you at the time.
MR. MORRISON: It didn’t bother me. It didn’t bother me at the time and, of course, it
was only deferrals—it had to be spent within that year unless there was a rescission that
had to be approved. So it was not a big thing, but it turned out to be something significant
that we ended up having to litigate later on.
MR. MARCUS: So it seems to me, actually, as I think about it, I asked you the question
about whether executive power was a passion of Nader’s. Your interest was really a
separation of powers interest which played out sometimes anti-Congress, sometimes antipresident and he became a—I don’t want to say he became a convert to that, but he
agreed.
MR. MORRISON: He agreed. He absolutely agreed.
MR. MARCUS: So it was protecting the constitutional scheme.
MR. MORRISON: Absolutely.
MR. MARCUS: The legislative scheme.
MR. MORRISON: We were non-powers protecting the separation of powers.
MR. MARCUS: Yeah.
47
MR. MORRISON: So we were able to do this because we didn’t have any stake in the
fight. We weren’t on one of the three teams. We could sit back and look at it. So when
we thought the judiciary had too much power in the Sentencing Guidelines cases, we
stepped in there. We thought the Congress had too much or the president had too
much—we were—we didn’t—we stepped in wherever we thought it was the right thing
to do.
MR. MARCUS: Did you guys go in on the Independent Counsel case?
MR. MORRISON: Which Independent—?
MR. MARCUS: Morrison v. Olson?
MR. MORRISON: Oh, yes.
MR. MARCUS: I’m getting ahead of us.
MR. MORRISON: You’re waaay ahead. Because we also had Archie Cox, the firing of
Archie Cox. I brought that case, too.
MR. MARCUS: Oh, I didn’t remember that there was a case challenging it.
MR. MORRISON: Oh, yeah, I’ll tell you all about that and we’ll get to it. That
was—we’re now a year ahead of ourselves.
MR. MARCUS: Yes.
MR. MORRISON: So those were the principal areas that we became involved in.
MR. MARCUS: By the way, Alan, if you are more comfortable going as this is
developing today, going chronologically, rather than sort of subject matter area of
litigation, we can do it either way.
MR. MORRISON: Well let’s—now that we’ve sort of set the areas, let’s go—
MR. MARCUS: Let’s go back and go subject matter?
MR. MORRISON: Yeah, because these are the broad areas that we were involved in to
begin with. I haven’t mentioned sufficiently regulatory cases. We had the nitrites case,
we had some truck safety cases, we had some FDA cases, we had some OSHA cases. All
these were in the early part and, in addition, we—for many years, administrative agencies
were essentially paying no attention to the law unless it was a law that the industry could
enforce. They had never been sued before, the agencies, by consumers, and we started
suing them.
MR. MARCUS: The agencies themselves? The regulatory agencies.
48
MR. MORRISON: Right, and—
MR. MARCUS: Or if they were ever sued it was by the industry.
MR. MORRISON: It was by the industry, absolutely right. Nixon imposed wage and
price controls and the Order said there shall be open public hearings for any significant
price increase that was allowed. He let the automobile industry increase their price what,
ten percent, and didn’t hold a public hearing, no hearing of any kind. So we sued him. I
was getting ready to leave the office to go down to make the argument in the court and
we got a call from the clerk saying—from the government saying that they had conceded
and they would hold a public hearing.
I represented a guy who had been—he was a poultry inspector and he got disciplined for
something or other and we knew why he got disciplined. He got disciplined because the
industry got mad at him for not letting enough birds get through and they made up all of
this stuff, and we sued them and, sure enough, they backed off.
MR. MARCUS: USDA?
MR. MORRISON: Yeah, yeah. We had some other—we had a bunch of other cases as
well in which this was happening. I said to Ralph, “I’m going to write this book. It’s
going to be called Morrison on Mootness.” Because they were just giving up as soon as
we sued, but it established clearly that they were just disregarding the law because
nobody was ever holding their feet to the fire. And so while in initial years we were able
to win a lot of cases on those kind of grounds, either because the court said so or because
the agency said, “This is ridiculous.” There was no attorneys’ fees provisions, so we
didn’t get any fees out of any of this. There were no attorneys’ fees provisions in FOIA
cases either at this time. We had a lot of early victories and increasingly as you went
forward, it became harder and harder because the agencies said, “Well, if it says we’re
going to hold a hearing, we’ll hold a hearing. We’re not going to rule in your favor, but
we’re going to hold a hearing.” This was, of course, the heyday of the D.C. Circuit’s
activism on the court and properly holding the agencies’ feet to the fire. And
increasingly for industry as well as for consumer groups and, in some cases, they
litigated and in many cases they caved in our situation.
MR. MARCUS: Let me ask you one more general question which is during this period,
the late sixties, early seventies.
MR. MORRISON: I’m only in the seventies.
MR. MARCUS: Oh, you’re only in the seventies. I guess—but the seventies, the big
wave of legislation, consumer protection legislation really started in the mid-sixties and
ran through, I guess, the early seventies.
MR. MORRISON: Yeah, the first couple years—
49
MR. MARCUS: So you really came pretty much after that, but I wondered
whether—was there much coordination between what you were doing in the Litigation
Group and what Nader was doing in terms of legislative stuff?
MR. MORRISON: Well, I remember early on the Consumer Product Safety Act was in
the Congress in 1972. It eventually got enacted, I think, in ‘72. I think—my recollection
is that I did look at a draft and it was quite mediocre and Ralph had supported it and in
the end he opposed it because it wasn’t tough enough. Your former boss, Lloyd Cutler,
had managed to get lots of weakening amendments in it that the agency couldn’t go after
anybody unless they gave them a chance to explain what they were doing and they had
these complicated procedures in there. They had procedurally made it almost impossible
for the agency to do anything and Ralph (and Sid was involved to some extent)
essentially gave up in a large measure because of the statute’s weaknesses.
The second legislative piece that we got involved with, and I’m trying to think how early
we got involved in it, could have been as early as ‘72 but it probably was ‘73 that I
became involved, was the Consumer Protection Act. This was a brainchild of Ralph’s
that he got Ribicoff and others to support it and the idea was that the public should be
represented in agency adjudications and rule-making proceedings from the consumer’s
perspective and the government ought to pay for this and the person would become an
independent public advocate in the federal government, not attached to any agency, and
could participate and, my recollection is, could take appeals from it as well. The industry
was really unhappy about this. I think—I spent a lot of time working on this bill. It
eventually got killed by a filibuster. Senator Allen filibustered it. Different versions
passed the Senate and House at various times but they never could get through, even
when Carter was the president. I always thought it was a wonderful idea, would have
been—
MR. MARCUS: When you say, Senator Allen…
MR. MORRISON: From Alabama. Senator—
MR. MARCUS: No, not Allen, it must have been something else. I don’t—
MR. MORRISON: Jim Allen, no, Jim Allen. James Allen. He was there for
relatively—he was there for two terms, I think, in the late ‘70s. He was a very formidable
opponent. I think that the Consumer Protection Agency bill was one of the things that
propelled the advancement and the solidity of the Business Roundtable.
MR. MARCUS: Oh, that’s where they got their start? Killing your bill?
MR. MORRISON: They certainly were very much involved in it because they saw this
for what it was—it was a big change. We made compromises and what we could
do—we spent a lot of time working with Ribicoff’s staff, Dick Wegman and others to try
to improve it and to get it passed and it got, as I say, got passed at various times. I had a
big folder someplace. Maybe I have it still here—I don’t think so, I think I left it with
50
Public Citizen when I left—about this. It finally got killed in ‘78 and it never got off the
ground again after that. So I worked closely with Ralph on that.
I’m trying to think of other—he had fewer legislative things on his agenda at that point as
I recall. We did work on the Impoundment Control Act together and subsequently, when
the FOIA amendments were made in ‘74 and ‘75, Ralph was very much involved in that
and I was, to a lesser extent, involved and other people in the organization were involved.
MR. MARCUS: Like Plesser?
MR. MORRISON: Plesser was. Mark Lynch, who was then a lobbyist for Congress
Watch which got set up after the Congress Project got completed. Joan Claybrook went
to head that before she went off to Highway Traffic Safety Administration.
I don’t remember any other specific legislative issues at the time.
MR. MARCUS: Okay. Well maybe we should turn to—
MR. MORRISON: Open Government.
MR. MARCUS: What?
MR. MORRISON: Return to—go back to Open Government, the FOIA.
MR. MARCUS: Yeah, to take the first of the main areas.
MR. MORRISON: Yeah, FOIA.
MR. MARCUS: And why don’t you sort of tell us about the history of your FOIA work
over the entire Public Citizen period?
MR. MORRISON: Well it began in several respects. One, it was, first, Ralph understood
the importance of bringing cases to make the Act workable and to prove to others that it
was workable and you could win cases. Second, we had a number of FOIA requests that
our substantive groups and the related groups wanted. They had real information needs
and so we were their lawyers. And then we started getting press calls, some from this
little small guy named Marvin Schacter who ran a publication that looked at HHS and
hospitals and Medicare and those kind of things, did some for Food Chemical News, and
then Carl Stern called us. He was the NBC Justice Department correspondent at the time
and he had a bunch of requests, but the most significant one we did for him was
involving the FBI’s COINTELPRO which was a long-time scheme to infiltrate the civil
rights and other groups. They did it for a very long time. Hoover, I think, by this
time—Hoover was dead by this time. This was in 1973, and Hoover was not in office
when the documents were ultimately made public. He may have been in office when we
started. Hoover was not there during Watergate but I think he died the prior year and
51
L. Patrick Gray got appointed the head of the FBI for a year, then he got in trouble and
went out.
Ron brought this case against the Justice Department and the FBI. Nobody knew that
they had infiltrated all these organizations and that they had people who were spreading
bad word about it and doing all kinds of things which may not have been technically
illegal but they were certainly improper.
MR. MARCUS: It was anti-Viet Nam organizations, too, as well as civil rights—
MR. MORRISON: Yes, yes, civil rights, yes, yes. Anybody who Hoover considered to
be an enemy of the state.
MR. MARCUS: Yeah.
MR. MORRISON: Which was a broad range of people. So we brought this case and sure
enough, Judge Barrington Parker, I think, can’t remember for sure, issued an opinion
saying we could have the documents and they didn’t appeal.
MR. MARCUS: Really? Even though these were—
MR. MORRISON: They just—
MR. MARCUS: I would assume they would have had national security claims.
MR. MORRISON: They didn’t. No they had no—because these weren’t classified at
all—
MR. MARCUS: I see.
MR. MORRISON: —and they couldn’t very well claim their law enforcement
investigative—they could have, but they had no basis for doing so.
MR. MARCUS: Yeah.
MR. MORRISON: And the judge just simply said, “No,” and they turned over to
us—enormous splash! Carl went on NBC News and it was a great event for FOIA
because it showed what could be done.
MR. MARCUS: And you had them on national television.
MR. MORRISON: Yeah, yeah. Absolutely. Interestingly, in subsequent years, and they
were probably right, the press decided they didn’t want to use us as their lawyers because
they were also covering us. But they also began to see the value of having their own
lawyers do the FOIA cases, which they didn’t do. Carl couldn’t get anybody to spend a
nickel at NBC to do any of this.
52
So we started bringing cases. Ron brought this case on behalf of Bob Vaughn, your
colleague.
MR. MARCUS: Oh, really?
MR. MORRISON: Bob wanted to get the Civil Service Commission’s—there were
reports and various recommendations by the Civil Service Commission as to—I’ve
forgotten what the subject was. It’s important not for actually what the documents were.
We went to the District Court and the district judge threw us out and said that all their
exemptions were right and they had all these various claims. They claimed five or six
exemptions. We couldn’t tell what was going on. We went to the D.C. Circuit and said
they shouldn’t have granted summary judgment. Judge Malcolm Wilkey wrote a really
good opinion saying, look, you can’t do this. You can’t just throw the kitchen sink. You
have to have some way to say which parts of which documents are exempt and you got to
create an index in court. This became known as the “Vaughn Index” after Bob Vaughn
and it became the procedural tool that the courts were able to use to manage these FOIA
cases. The Vaughn Index gets cited every day. Every judge knows about it and Malcolm
Wilkey, who is a white, conservative judge, but he always understood between right and
wrong. If the law says you got to do this, you got to do it. He didn’t make any judgments
about it, anything like that. He was more conservative in his criminal things than he was
in other things, but he was perfectly prepared to tell agencies you’re not supposed to do
this. So Ron had that opinion. That was a seminal opinion.
Then we had a bunch of other cases. I remember one we had. We had one funny case
before Aubrey Robinson. We were representing the Center for Auto Safety and we had a
bunch of documents about something that Nixon wouldn’t do, wouldn’t give us over.
Judge Robinson writes his opinion. He says, “There is only one thing harder to fathom
than why the plaintiff wants these documents and that is why defendant refuses to turn
them over.” He says, “But I suppose the very fact that the defendant has not turned them
over, that would be what has whetted the plaintiff’s appetite.”
He says, “So I guess it’s understandable why the plaintiff wanted them. I don’t see
there’s anything in them, but they can have them anyway.” And of course, he was
absolutely right. There was nothing of any—it was just the usual bureaucratic snafus of
one kind or another.
Then the government started taking some appeals in these cases and Exemption 7, which
is the Law Enforcement Exemption, was written very broadly at the time and exempted
materials contained in law enforcement files. The D.C. Circuit started issuing opinions
which said that if the document is in a file which is itself a law enforcement file, that’s
the end of the inquiry. You can’t do anything more than that.
MR. MARCUS: You can’t argue that it has nothing to do with law enforcement?
MR. MORRISON: You can’t argue that it won’t interfere or that the release of it now
won’t have any effect because the case is over or the defendant in the case already has
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the documents since it is the defendant’s own document it can’t hurt anything. We and
other people lost those cases and the Supreme Court denied cert. in several of them. We
saw this as a potentially enormous loophole in the law. Second thing we saw was that
government agencies were defending these cases until the end and either giving up or
letting the judge do it. There were no attorneys’ fees provisions in the statute, so we said
that there was going to be no way in the world that people could continue to litigate these
cases if there were no attorneys’ fees provision. In 1973 the Supreme Court decided the
case of EPA v. Mink, which was the first challenge of exemption on national security
grounds. The Court said, “If it is labeled ‘Classified,’ that’s the end of the inquiry, the
courts cannot go any further. You can’t begin to look behind it.” The Congress, which
was very Democratic at the time, and Nixon was on the way out, secrecy definitely was
not in vogue, ended up passing a bill with Ron and Mark and Ralph’s help. I remember
Ralph testified at a hearing when somebody said to him, “Mr. Nader, what do you think
is the worst agency for FOIA purposes?” Ralph said, the way only he could put it, he
said, “Knock on any door.”
He was not going to get into that. He felt everybody was bad and he was probably right.
There were some that were worse in terms of timing and processing. They also had some
other procedural amendments in there. But these were very significant. These were
passed in ‘75, Gerry Ford vetoed them and Congress overrode his veto. So we continued
bringing FOIA cases.
MR. MARCUS: Did the amendments fix up the problems with Exemption 7?
MR. MORRISON: Absolutely and 7 now says “Investigatory file for law enforcement
purposes,” provided that you can show one of seven different things; interfering with an
ongoing investigation, disclose sources and methods, invasion of personal privacy—
MR. MARCUS: And so on.
MR. MORRISON: So it was a perfectly fair balance and it turned out that attorneys’ fees
were significant and became moderately significant for us although we never got huge
attorneys’ fees, we did get substantial amounts over the years—in particular, one case
that I’ll talk about later on. The changes to Exemption 1 on national security information
have proved to be very little help. The courts have been extraordinarily reluctant. No
case in which a judge has ordered materials produced as improperly classified has ever
been upheld on appeal. A couple of judges have done it in the District Court and they’ve
always been reversed and the Supreme Court has never done it.
MR. MARCUS: It’s hard to get the Supreme Court to take FOIA cases, right?
MR. MORRISON: Yes. Well, the government’s done very well, but very, very few the
other way around. We’ve done a couple and we’ve won a couple or have helped other
people win a couple but at one point the FOIA cases that had gone to the Supreme Court
were something like 23-1 government appeals versus private and maybe we won one and
we lost most of the government appeals. The Court was not overly sympathetic.
54
MR. MARCUS: The D.C. Circuit was better.
MR. MORRISON: Much better. And the district judges were good. They understood
what was going on—and the D.C. Circuit was, overall, pretty good. Not perfect, but
pretty good.
The only thing about Exception 1 that was positive was that because the agencies knew
that they had to go to court and justify them, I think they voluntarily gave up more things
than they would have and, in a way, that helped them because judges wouldn’t get to see
things that were plainly improperly classified and therefore be suspicious of other claims
along the way. I think the government strategized this way at least in part—or what
seemed to us in part—that they tried to present themselves as reasonable. We gave you
everything we could (maybe not) but it was a lot easier to defend it that way. I had one
case once involving then-ambassador to Iraq, April Glaspie. You may remember Glaspie
went to see Saddam before the first Iraq—
MR. MARCUS: Before the Gulf War.
MR. MORRISON: Gulf War, yeah, Gulf War. Exactly. And she told him certain things
after which Saddam started the war.
MR. MARCUS: And claimed that he had her implicit permission almost.
MR. MORRISON: Almost. She had sent several cables back to the State Department
relaying her conversation. Subsequently she was called before Congress and she relayed
the substance of her conversation with Saddam—we asked for the cables and got turned
down on national security grounds. We sued, saying Glaspie had already divulged
everything when she testified under oath, but the D.C. Circuit didn’t accept that claim.
This shows how hard it was to win classification cases.
It was a steady diet of—good cases, good training grounds. We had—one of the cases
that we brought that looked like it was a—in a way, a precursor to something we ended
up doing a little later—Richard Nixon had donated his vice-presidential papers—in 1969
or he said he did them in ‘69, to the National Archives and he took a tax deduction for
them and it was a huge tax deduction. Of course, we knew from the laws of standing we
couldn’t challenge this, but there had been these rumors that he had backdated the deeds
and it was also a question about whether the Archives had the statutory authority to
accept them. I got this idea that we could challenge Nixon’s tax deduction, the legality
of the transaction, by going through the FOIA and asking for the vice-presidential papers.
They would come back and say, “This is a private donation.” And we’re going to say, in
response, “No, it can’t be a private donation for two sets of reasons. One is they were
not—weren’t his papers to begin with. He didn’t own them. And second, even if he did
own them, the transaction was unlawful because he backdated the deeds and at the time
he did them there was some reason why the backdating of the deeds wouldn’t work and
that they had no authority to accept it and it was irregular and, therefore, I think it was
that he imposed the conditions in the backdating of the deeds in a way that was improper
55
under the Archives then-regulations. Details of which, again, unfortunately like a few
other things, escape me.
So we brought the case. They defended it and, meanwhile, people were in court
challenging Nixon’s papers—the donation of Nixon’s papers—
MR. MARCUS: As president.
MR. MORRISON: As president, right. Then there was—the statute was passed that made
them public papers, right. He then challenged the statute that applied only to presidential
papers. After the statute was passed these other cases went back to the District Court and
Nixon and the Archivist agreed that even though he had these restrictions which would
have prohibited anybody from seeing them until he said so. Oh, I know, one of the
conditions was—these are illegal restrictions on the papers—that the Archivist didn’t
have statutory authority to accept them with these kind of restrictions on them. And
when the case finally got back from the D.C. Circuit on remand which was held while all
these other things were going on, Nixon voluntarily agreed to not release them all, but
make them all releasable if they were not otherwise exempt under FOIA.
MR. MARCUS: But he didn’t give up his tax deduction?
MR. MORRISON: No, he did not. Well, I guess he didn’t give up his tax deduction. That
was one of the Articles of Impeachment against him that they never really pressed. They
had so many other things —but it was a major source of embarrassment to Nixon and it
was just one more thing that we could do.
MR. MARCUS: Was the backdating ever proven?
MR. MORRISON: No. Well, it depends whose proof you are talking about. It seemed
pretty clear that it was. So we had all these creative uses of the FOIA for all kinds of
other things that we were doing and eventually we—meanwhile, we had also gotten
involved with this statute known as the Federal Advisory Committee Act which—
MR. MARCUS: Also an Open Government kind of thing.
MR. MORRISON: Yes. It was passed by Congress in 1974. It was—no, I’m sorry, ‘72. It
was passed by Congress and it was intended to limit the number of federal advisory
committees to assure that those committees which were there to give advice gave only
advice and didn’t have any authority to make final decisions, that the committees had to
operate in the open, and that they had to be balanced.
The Congress did a lousy job of defining what was an advisory committee and what they
meant by “open.” They said that all of the FOIA exemptions which were written to apply
to documents should apply to meetings. Well, the principal problem was that Exemption
5, the Inter-Agency Exemption thing, exempts all kinds of stuff in documents that
couldn’t possibly be exempt in meetings; if you treated committee meetings the same as
56
documents that passed around with people, it would be a meaningless thing to have any
open meeting at all because they would automatically be exempt. Unfortunately, we had
some problems with those things and we had one set of cases under FACA, as it’s
known. Some similar Exemption 5 cases came up and the D.C. Circuit ruled that
Exemption 5 meant what it said and that all internal deliberations could be kept quiet and
not open to the public which, of course, destroyed the whole thing. We had to go back to
Congress and get it amended to fix that up.
MR. MARCUS: Which you did.
MR. MORRISON: Which we did, yeah, yeah, yeah, and made it the same as the
government in the Sunshine Act which was a much closer analogy because that applied
to Open Government meetings that had been passed in ‘72 also—’74. That only applied
to multi-membered bodies like the SEC and it has had its own set of problems with it.
But at least it didn’t claim that they could do something that ultimately ruined the whole
statute. So we continued litigating these cases. Then when Nixon went out of office,
Reagan issued an Executive Order which purported to allow—
MR. MARCUS: Let me interrupt you because I notice you haven’t mentioned the Carter
administration. Did you see a real change? I recall that during the Carter administration,
the president or the attorney general issued a policy that basically said, “We’re not going
to claim FOIA exemptions unless it’s really important to do so. The fact that an
exemption is available doesn’t mean you should claim it. You’ve got to have a really
good reason and we’re not going to….” And I think the Justice Department was
supposed to take a tougher line with agencies as to whether they would defend them. Did
you notice any change?
MR. MORRISON: Well you’re absolutely right about that. Griffin Bell decided this. It
was a Justice Department policy. He issued a letter. My recollection is I remember
being at a lunch when he announced this policy was going to take place. I have some
recollection that Ralph talked to him about it, tried to persuade him, but he was
convinced on his own, I think, that this was the right policy to follow.
MR. MARCUS: I’m sure there was some backsliding by the agencies, but you didn’t
notice a big change?
MR. MORRISON: It was not a big change, it was some change. It was some change and
I don’t recall cases which they specifically refused to defend them but I think it was a
thaw and it was a better policy. Bell said—the first question you ask is not, “Is there
some exemption that applies?” but, “Is there an important reason for keeping these
documents secret?” not the other way around.
As I’ve said from time to time, nobody ever got a medal or a promotion for releasing a
document under FOIA. All the incentives are in the opposite direction. If they want to
release a document, they can release it. By the way, I just read today the new FOIA bill
that has passed the Congress and it’s got a bunch of procedural stuff in there and they are
57
trying to get people to do more of this—more releasing and to try to get reports on why
they—
MR. MARCUS: Do it faster, yeah.
MR. MORRISON: Yeah, it’s faster and it may be of some help. I just think the
institutional culture is just so strong the other way and that it’s just not what you’re going
to get out of them.
MR. MARCUS: But still the statutes had an enormous impact—
MR. MORRISON: Oh, oh, overall. It is a truly transformative law. It flipped the world
around that you had to have a very good reason for getting it and then you couldn’t sue if
you couldn’t convince an agency you had a good reason, and now the burden is in the
opposite direction and the courts understand. It’s been tremendously transformative of
openness in the government.
MR. MARCUS: I think I interrupted you when you were about to talk about what the
Reagan administration did.
MR. MORRISON: Yeah, the Reagan administration didn’t like FOIA and they also
issued an Executive Order as to which we went to court—David Vladeck challenged it. It
was either David or Eric Glitzenstein, I can’t remember, in which we challenged the
Executive Order that would allow Reagan to continue to keep from the public Nixon
papers on the say-so of Nixon.
MR. MARCUS: Oh, this involved the Presidential Records Act.
MR. MORRISON: Presidential Records Act, yeah. And we won that case in the D.C.
Circuit and we had a significant number—in the years in which people who were not our
natural allies, to say the least, were in charge, FOIA was one of our few
defenses—mechanisms—
MR. MARCUS: Few weapons.
MR. MORRISON: Yeah, absolutely. And we couldn’t do a lot about regulatory stuff.
We did sue them often, sometimes we won. More often than not, we lost. But FOIA was
there and it was important and so was the Federal Advisory Committee Act, we got open
meetings.
MR. MARCUS: Did you use the Federal Advis—were you involved in the challenges to
the Hillary Clinton Health Care Task Force Operation?
MR. MORRISON: No, but we did get involved in the big FACA case involving the
question about whether the ABA’s Judicial Evaluation Committee was subject to FACA,
and the case was started by the Washington Legal Foundation, our ideological opposite.
58
MR. MARCUS: They didn’t like the ABA Judicial Committee Recommendations.
MR. MORRISON: They didn’t like the substance.
MR. MARCUS: Because they [the ABA] had opposed Bork—or they hadn’t opposed
Bork, but they had given him a hard time.
MR. MORRISON: Yes, and we actually had some serious doubts about them as well,
about their balance, and so forth and so on. We also thought that they ought to be more
public about how they proceeded, what their charter was—what would be the equivalent
of their charter, and how they went about participating and why they couldn’t have—they
have all these internal reports which were made available to the Justice Department.
Why couldn’t we see most of them most of the time? We didn’t want to go sit in on their
meetings which are all on the telephone anyway, but we wanted to—we were interested.
We probably would not have brought this lawsuit but the Washington Legal Foundation
brought its lawsuit and we decided for protective reasons we had to bring our own
because we thought that they were not going to make the kind of arguments we were
making. They were asking for much too much. All we wanted to do was establish that
they were subject to FACA and then they would have to figure out how they were going
to proceed from there. They wanted to abolish them and they wanted to interrupt all their
meetings. We brought this case and at the time—and we lost in the District
Court—Judge Joyce Green.
MR. MARCUS: Did you bring it just against the ABA or also against the Justice
Department?
MR. MORRISON: No. They brought it originally against the ABA, we brought it against
the Justice Department because under the statute only the Justice Department is an
agency which has to control—
MR. MARCUS: Comply with—
MR. MORRISON: Comply with—and we said that they have to recognize it as an
advisory committee—
MR. MARCUS: And therefore require them to comply.
MR. MORRISON: And then what they do from that point on is up to them and how they
are going to go about structuring it. We didn’t want the court to do anything with it. Sure
enough, the judge said, “It’s unconstitutional as applied to the ABA.”
The statute was unconstitutional because it interfered with the president’s ability to—
MR. MARCUS: It’s in violation of the separation of powers because of the president’s
ability to get advice about nominations.
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MR. MORRISON: Interestingly—
MR. MARCUS: Do you remember what judge this was that this was before?
MR. MORRISON: I think it was Joyce Green.
MR. MARCUS: Joyce Green?
MR. MORRISON: Yeah. Interestingly, when FACA was passed, unlike FOIA, which
does not apply to the president, and there is no FOIA for the president—even now the
presidential records are available only after the president gets out of office; you can ask
for the records, but there is no way to sue him when he’s in office—the FACA applied
specifically to presidential advisory committees because, among other things, the
presidents were using advisory committees regularly and, in fact, I was on one that Carter
set up and we had open meetings and it was no big deal. It would have been an
enormous loophole, like the definition of “agency” in the FOIA, to exempt the
presidential advisory committees. The president could have convened every one of these
advisory committees and they would have been exempt.
We thought that we had to defend the statute by bringing them in and the case went to the
Supreme Court and the Court—Eric Glitzenstein argued the case for us. We
unfortunately had to get divided argument with the Washington Legal Foundation. Eric
did a terrific job and we lost five to four. Actually we lost nine to nothing. Four of the
Justices said the statute didn’t apply. No, five of the Justices said the statute didn’t apply
and four of them said, “Come on, the statute applies, but it’s unconstitutional.”
And then subsequently the D.C. Circuit applied it not only to these committees which we
brought under the prong that they were utilized rather than established, because the ABA
had established the committee but the Justice Department was directly relying on it and
they were utilized, and that was the word we hung on. The court, the D.C. Circuit, said,
well they meant to undermine the word “established” as well when it had to be formally
established by the agency and if you got an outside contractor to establish it, then that
was not an established committee and there was a huge potential for an end run which
turned out not to be as bad as we thought it was going to be because the agencies ended
up not wanting to have contractors doing it. But it was a very bad potential loophole.
The Supreme Court denied cert. in the case. D.C. Circuit opinion by Judge Ruth
Ginsberg said, “We are compelled by this other case,” and we said, “No, you are not
compelled,” and the Court said, “We’re not getting into this and that’s all.”
So that’s what took us through the Reagan administration. Meanwhile, the Presidential
Records Act had passed and in the closing days of the Reagan administration, the
National Security Archive, which was an independent group that does a lot of important
work in the national security area, got wind of the fact that all of the e-mails at the
National Security Council and other places in the White House were being deleted and
they claimed that they were not subject to either the Federal Records Act or the Federal
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Advisory—or the Presidential Records Act. A suit was brought at the last minute and
Judge Parker issued a temporary—
MR. MARCUS: By the National Security Archive or by you?
MR. MORRISON: National Security Archive. They got Kate Martin from the ACLU to
be their lawyer. She filed the case, got a temporary restraining order and as she was
doing this she said that they couldn’t handle the case. It was too big for them and so they
got us to do it. Kathy Meyer started working on the case, got a preliminary injunction,
went to the Court of Appeals. By this time, Kathy and Eric had left to set up their own
law firm. I argued the case in the Court of Appeals. We won part—we won enough to
stay alive. They knocked out Bush as a defendant, they knocked out some of the
Presidential Records Act stuff. They said we didn’t have standing under the Presidential
Records Act.
MR. MARCUS: You mean they knocked out Reagan as a defendant or Bush?
MR. MORRISON: Bush because Bush had taken office by this time.
MR. MARCUS: Oh I see, I see.
MR. MORRISON: It was originally Reagan, but two days later Bush was substituted for
him. When the case was remanded from the D.C. Circuit, at this point it was clear to me
that this was one of the few cases in which there was going to be a lot of discovery, even
for a federal agency case like this. Michael Tankersley had come over from Covington.
I got him to start work on the case and Michael was the attack dog of all attack dogs,
would not let go. He just grabbed hold of this case, he took great discovery, he built an
unbelievable record. He was also pretty computer literate, which I was not, so he was
able to manage all of this stuff. Their basic claim at the beginning was two-fold. First,
we print out everything and second, there is nothing on these e-mails except, “Are you
going for lunch and can we meet at three o’clock?” Turns out to be an enormous stuff on
the e-mails. They were not printing out anything and ultimately the D.C. Circuit, on the
second trip back up, said, “It’s not enough to print them out because e-mails are much
more useful because they are in electronic form, you could search them, you could tell
who sent them, you’ve got all this data and other stuff in there and you have to preserve
electronic records and this applied to the Federal Records Act and to the Presidential—
MR. MARCUS: And we all know that despite memos that come around saying print out
your e-mails and save them, nobody does it.
MR. MORRISON: No, no. Anyway, this case went on for a whole bunch of years and
we ended up getting a terrific settlement. The one part of the case we couldn’t settle was
whether the National Security Council was an agency subject to FOIA. They had
conceded for years that it was subject to FOIA and they shifted their position in litigation
and said it’s a presidential entity and we went to the D.C. Circuit and we lost two to one
in the D.C. Circuit and the Supreme Court refused to hear the case. So while those
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records all have to be preserved because they are presidential records, the NSC is now no
longer FOIA-able. You can ask for them and they will give you some things but you
can’t take them to court during the real time that’s involved. Not that you ever got very
much with them anyway.
MR. MARCUS: Because most of them are classified, yes.
MR. MORRISON: Yes, yes, yes and the internal exemptions and other things as well.
But it was a tremendous victory and it revolutionized the electronic record-keeping in the
government. They have not fully done everything they were supposed to do, still huge
problems with managing, but this was a sea change and recognition and this was a
revolution from where we started with all paper records.
The last big case we had was the Nixon tapes case. As part of the statutes creating the
Presidential Records Act and the Nixon Act, the Archivist was required to review them
all and release them, separating out the personal material for Nixon from the other
material. The Archives was sitting on this and sitting on this and not doing anything and
this went on for years and years. Some of it was due to litigation, some of it was due to
the massive amount of records. They started releasing some paper records but they did
not release any tapes at all.
An historian, Stanley Kutler, from Wisconsin came to us and said, “We have to sue
them,” and we said, “Okay, we’ll sue them.” So we did. Patti Goldman brought the
lawsuit and we sued the Archives. Nixon came in and intervened, as he plainly had the
right to do. He then brought a motion against the Archives to preliminarily enjoin them
from releasing anything because they had not adequately done what they were supposed
to do and he was at least partially right on that. We had some discovery and we were in a
terrible, terrible situation—couldn’t figure out exactly what happened. Patti then left to
go to Seattle, Washington, where she set up the office for the Earthjustice—well Sierra
Club Legal Defense Fund, now Earthjustice—as their Northwest office head. I took over
the case and shortly after I took over the case, Nixon passed away and so they made a
routine motion to substitute the new executors for Nixon.
MR. MARCUS: “They” is Miller, Cassidy?
MR. MORRISON: Miller, Cassidy, yeah. So I got the motion and they claimed that the
executors have the right to these papers. I said, “Well, could I see the will?”
MR. MARCUS: Ah ha!
MR. MORRISON: How could they possibly not give me the will? So they give me the
will and I discover two things. I discover, number one, that the two executors are a
lawyer in New Jersey and John Taylor. John Taylor is a Nixon protégé and aide for a
long time and he is head of the Nixon Library. The second thing I discover is that the
will provided that all of the money in Nixon’s estate would go to the Nixon Library and
not to his family because he’d already otherwise provided for his family, after the
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payment of all legal fees in all litigations over his papers, including this very litigation.
So I said to Miller, Cassidy, “I want to depose John Taylor,” and they let me depose John
Taylor.
I bring him in and I say, “Have you read the will?”
He said, “Yeah, I read the will.”
I said, “Would you look at this provision on residue and tell me what you think it means
as to what the proceeds are going to be?”
And for the first time the light went off in his head that every dollar they spent litigating
this case was a dollar that was not going to go to the Library of which he was the head.
As soon as he—I had to get him there to do it because there was no other way I could get
him to do this, to say, “You know, maybe there is a little conflict—not a conflict of
interest, but certainly…”
We then proposed mediation and they agreed to mediate the case.
MR. MARCUS: What did Taylor say in his deposition?
MR. MORRISON: He said, “Oh,” sort of, “Oh,” the light went on and he—
MR. MARCUS: I see.
MR. MORRISON: Yes, “I see,” that was enough. You didn’t have to beat him up. He
was not a dumb fellow, you didn’t have to beat him over the head with it. So we began a
mediation which lasted well over a year and I suppose at this point—well it wouldn’t be
wrong to say—and maybe it would be, but I’m going to say it anyway—the Justice
Department was much more of an impediment as the thing went on than were Nixon’s
lawyers and their clients. We had a perfectly—there was one point and I’m not really at
liberty to discuss it—that we suggested a perfectly reasonable way to resolve this and the
Justice Department would not go along with it. They said that the law didn’t let them and
there were all kinds of other reasons. They were really being pigheaded about it.
We went up to the head of the Civil Division and—
MR. MARCUS: When was this?
MR. MORRISON: Clinton, the Clinton-era. It was in ‘95.
MR. MARCUS: It was during the Clinton administration?
MR. MORRISON: Yes, it was ‘95—’94 or 5.
MR. MARCUS: Frank Hunger was head of the Civil Division.
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MR. MORRISON: That is correct. We ended up getting release of the documents. There
were two potential stumbling blocks. One was my client wanted a fixed schedule. He
said, “If this has been going on, it will go on forever.” I said to him two things, “Stanley,
you’ve waited seventeen years, right? If we don’t have fixed schedules but we have
targets, if they slip a little bit is that better than litigating this case and we’re never going
to get to it?” I said, “They will never agree to fixed schedules. They just won’t and be
subject to contempt and I don’t know if I would do it with them either and so if you want
this we have to do it.” And so he said, “Okay.” We set up targets and time frames and
by and large, they followed them. Perfectly? Of course not, and there were unforeseen
problems because nobody knew how long it was going to take. We had to build in time
for Nixon’s people to review them and then get back to them and so forth and so on.
MR. MARCUS: The process took a while but it worked, basically.
MR. MORRISON: It worked. It’s almost all out—one last part is still pending. They
have also re-reviewed some parts and there will be more from that.
MR. MARCUS: It’s all out now.
MR. MORRISON: The second stumbling block, and this was a Nixon stumbling block:
he wanted people to only be able to go to the National Archives and listen to them there.
They were really adamant about this because they didn’t want people putting it in their
car radios and listening—buying tapes and putting them in car radios and listening to
them. They didn’t want to broadcast over the airwaves right away. I thought it was
unlawful, that is to say that they had no statutory authority to do that.
MR. MARCUS: I see.
MR. MORRISON: But I also believed it was non-negotiable. So what we proposed, and
Stanley agreed and they compromised, was that they could not be publicly copyable and
made available for a period of some number of years after they were released, on the
theory that they were hot items mainly when they were initially made public—we had six
segments that they were rolled out. But in the end, they could not have kept them that
way. They didn’t mind having them made public eventually. Everybody agreed with
that condition and both of those were really significant in the mediation and we ended up
having—there was one issue which we didn’t care about was how the Archives were
supposed to handle a certain aspect about Nixon’s tapes, whether they could cut them up
or give them back and whether they could do certain things. It ended up getting litigated
in the D.C. Circuit. We did not participate at all because we thought the two of them
should fight it out and we didn’t mind.
It was an enormously successful mediation. It was clear that we never would have
gotten—the litigation result would have been a court’s ruling and all kinds of things,
schedules, it would have been a disaster. It was the perfect case to be mediated because
there was right on both sides. The statute couldn’t possible take into account all the
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myriad things that were there and everybody had to sort of give up a little bit on it.
Nixon’s death and the finding of the will were key, key ingredients in this.
MR. MARCUS: Who was the mediator.
MR. MORRISON: He’s in—I’ll have to get you his name. He was at Crowell &
Moring…Cliff Hendler, he did an incredibly fabulous job of shuttle diplomacy with three
parties. Sometimes two of them are one side and sometimes a different two and it just
took a huge amount of time and it was an enormously successful litigation. It established
to me why the D.C. Circuit was smart to say there is no case that is not subject to
mediation. That you can mediate anything.