This interview was conducted on behalf of the Oral History Project of the District
of Columbia Circuit. The interviewer is Sheldon Krantz and the interviewee is Irv Nathan. The
interview took place at the D.C. office of DLA Piper on July 20, 2016. This is the third
MR. KRANTZ: The first interview which took place on January 9 and covered Irv’s roots, the
stage of his life prior to becoming a lawyer, the time period he spent at
Columbia Law School and his initial clerkship with Judge Simon Sobeloff.
His second interview covered the time period at Arnold & Porter, his first stint
at the Dept. of Justice, and his return to Arnold & Porter. Today what we plan
to cover are questions relating to his return to the Department of Justice and
the Deputy’s office, his return again to Arnold & Porter, and then, if we have
time the period when you served as the General Counsel in the House of
Representatives and later as the D.C. Attorney General. So with that
background, Irv let’s turn back to you and you just had finished talking about
your time period at Arnold & Porter and we were then going to focus on what
happened thereafter. So why don’t we start there.
MR. NATHAN: Well, before I get to my return to the Department of Justice, there was a very
important professional experience that I had in 1991. At that time Arnold &
Porter had a sabbatical program and I had deferred and therefore was eligible
for a nine month sabbatical. Sheldon, you helped very substantially to arrange
that for me because what I did on the sabbatical was to go to San Diego and
both teach at the University of San Diego Law School and to work with the
Federal Defender’s Office, headed by Judy Clark. I appreciate your help in
that regard. As to the teaching, the dean of the law school at that time was
Christine Strachan, and she urged me to teach a course that she called
Washington Scandals. It dealt with a number of the matters that had gone on
during the time of my practice. One was Watergate, and her husband actually
was a defendant in the Watergate case. He had worked at Nixon White House.
It also dealt with ABSCAM, which I described last time, and the Keating Five
congressional hearing and other matters like that. The Keating Five were five
senators who were called up on the charges before the Senate Ethics
Committee for dealing with the banker Charles Keating. It was really
instructive to study those matters, to read up on them and to teach lessons that I
could derive from them. The thing I found most interesting about teaching in
1991 about Watergate was that the students had never heard of Watergate and
in fact they didn’t even believe me when I had told them what had happened.
They hadn’t heard of it because it happened either before they were born or
when they were infants. And it had happened too recently – in the early
1970’s – to be in their history books, so it was something that hadn’t been
covered for them in high school or in college lessons. And they were
astounded at what had happened. It tells you how passing these things are and
how people don’t know about relatively recent history. When I realized that
they didn’t know anything about Watergate, it said to me that I didn’t know
much about Teapot Dome which also happened about 30 years or so before I
was in college and law school.
MR. KRANTZ: I just want to make the observation that because I recommended or helped
make the arrangement for you to go to San Diego you will be happy to hear
that that recommendation has not come back to haunt me. Not yet, anyway!
MR. NATHAN: And the second part of that sabbatical was working at the Federal Defender’s
Office which was a great experience. That office at that time was run by Judy
Clark who is an outstanding criminal defense lawyer. She was an expert on the
sentencing guidelines and on major capital cases. She ran a tough office
insisting that her lawyers dress appropriately and act appropriately with
indigent clients the same that commercial lawyers would do with their clients.
In that office I tried a number of cases, defended criminal cases that mainly
involved Mexican nationals who had come over the border either with other
people or with guns or with some inappropriate matter such as drugs. It was a
great experience. It was difficult because the court there was pretty
conservative and often ruled against the office in matters like search and
seizures where I thought on the evidence they should prevail. The other thing I
learned was that the defendants, the Mexican nationals, were not fully trusting
of their lawyers because they thought that since they were being paid for by the
government they couldn’t really be trusted. That was an unfortunate situation
the lawyers had to overcome. It was a great experience to see what these
young lawyers were doing to defend individuals and the way the court
operated. I had a number of interesting cases and I really appreciated that
experience. When I came back after the sabbatical, I continued the practice at
Arnold & Porter, and that is when I handled a case that I described last time,
the Ken Treadwell case involving the lawyer that had been given immunity
and was then indicted. Then when Phil Heymann was named the Deputy
Attorney General in 1993 at the beginning of the Clinton administration, I
returned to the Department as his principal assistant. The job was called
PADAG, Principal Associate Deputy Attorney General. And in another
personal aside, Sheldon, Phil Heymann put together a great office, with very
talented people, one of them you may know, a woman named Laurie Robinson
– your wife – which ultimately led to her getting the appointment to be the
head of OJP where she did a great job. And there were others, like Rod
Rosenstein who became the U.S. Attorney in Maryland, the longest serving
U.S. Attorney I think in Maryland history, and David Margolis, a great lawyer
and a shrewd bureaucrat who sadly recently passed away. It was a great
office. Unfortunately, this stint did not last that long. Phil and Attorney
General Janet Reno came to a parting of ways in about a year so I was only
there for about a year. It was a tremendous learning experience because the
Deputy’s office supervises a number of components of the Department of
Justice – the FBI, DEA, the Bureau of Prisons the Criminal Division and
criminal components of other divisions such as tax and civil rights. So it was
an excellent learning experience with a great opportunity to see a broad array
of what was going on at the Department of Justice and around the country.
MR. KRANTZ: And what were your impressions of the Attorney General at that time?
MR. NATHAN: Well Janet Reno was an experienced prosecutor because she had been the
District Attorney in Miami. She was a very serious and certainly wanted to do
the right thing. She was very conscientious. I attended her staff meetings once
a week and I know how dedicated she was to doing the right thing and not
having politics intrude. On the other hand, it turned out this stint at the DOJ
was, for a variety of reasons, much less satisfactory than the first one because
politics did play a much bigger role at the Department in that time. When Phil
and I were in the Department in the Carter administration – that was
immediately post-Watergate – there was quite an emphasis on having the
White House have nothing to do with the DOJ and having it be totally
independent and basically keeping out of the Department’s business, The
Department was completely independent and was going to do what the leaders
there thought was the right thing to do. In the Clinton administration, the
Carter administration was viewed as a failed administration because it was not
re-elected, and the Reagan administration which had two terms was viewed as
being a successful. One of the lessons the Clinton White House drew from this
was to have the White House much more involved in policy matters at the
DOJ, not in cases but in policy. So, as an example, this was a time when
legislation was proposed by the administration that had a lot of mandatory
minimums, a proposal for three strikes and you’re out with a life sentence, and
legislation that had a lot of offenses carrying potential death sentence. The
death penalty was a punishment provided for many different offenses
supported by the administration. This was ironic because Janet Reno was an
opponent of capital punishment but she was the spokesperson for the
administration to support such legislation. And it was a little frustrating
because we in the Deputy’s office – particularly Phil Heymann – thought that a
number of these legislative proposals, such as the mandatory minimums and
the three strikes and you’re out, were not very sensible provisions. We made
that clear but they were politically popular and we didn’t have much luck in
staving off the politics. I think that the country has come to regret some of that
in current times. To me, it underscores that we should be dealing with the
merits of these kinds of proposals, and leave the political consideration aside,
but that was not the case and is not likely to be in the future.
MR. KRANTZ: So then did you leave shortly after Phil Heymann left?
MR. NATHAN: Yes. I was there for a while after he left. I helped make the transition smooth.
Jamie Gorelick came in as Deputy, and she wanted Merrick Garland to be her
principal associate, which made a lot of sense. Merrick had been in the
Criminal Division as a deputy, and he had long known Jamie and she
justifiably had great confidence in him. While I was there, I focused on a
number of policy issues. At the Deputy’s level, we were not generally dealing
with cases as we had done in the Criminal Division but some policies, and I
didn’t really succeed. I didn’t think they were right but I could not convince
the powers that be. For example, under Rule 16 of the Federal Criminal Rules,
we had proposed that prosecutors be required to provide the names of the
witnesses in advance of trial, unless there was a motion made to the court that
said that the witness’s life or health would be in danger or there could be some
demonstrable adverse consequence from disclosure of that witness’s identity.
The truth is that not only did the defense lawyers want that but the federal
judges wanted to change that rule because they thought that if the government
provided the names of witnesses that would lead to pleas based on how strong
the government case was. But the prosecutors did not want to change that rule,
and the official position of the Department was represented by the organization
of U.S. attorneys in the executive office. They opposed that rule change and
threatened that they would take it to Congress if the judicial panel on federal
criminal rules proposed that rule change. Another rule that I tried to modify
was dealing with contacts with represented parties. I thought that the FBI,
when they knew that a person was represented by a lawyer, should not make
contact directly, that the agent would go through the person’s lawyer. Again
with certain exceptions such as if they were an undercover operation. Again I
wasn’t successful in that. The one thing that I did very helpfully during that
period, this was the period of the Whitewater allegations that were raised, was
to assist in naming the initial special counsel. At this time, the Independent
Counsel statute had lapsed, there was a sunset provision in it, so this was a
time where there was a hiatus and no operative law on the books so we had to
appoint a special counsel. This was not done under the statute, but the
Department could directly appoint a special counsel, and my suggestion was to
appoint Bob Fiske for that position. He was a really responsible and
experienced former prosecutor in the Southern District and a Republican with
no political ambitions. I had worked with him in private practice and admired
him greatly. He was appointed by Janet Reno and he began the investigation.
He was doing a great job and then the statute was reenacted and that required
the court to make an appointment. We at the Department proposed that, since
Bob Fiske had done a lot of good work on this, he be appointed by the court to
be the Independent Counsel. But the three-judge court saw it differently. They
thought Fiske was tainted because he had been appointed by Reno and they
appointed Ken Starr to be the Independent Counsel. I was on record on
television the very first day and argued that Starr was not the appropriate
person because he did not have prosecutorial experience and because he had
other higher office ambitions. He had been rumored to be considering a run for
the Senate from Virginia and he was also a potential Supreme Court justice.
Frankly, I think that Starr and also later Judge Walsh, in connection with the
Iran contra investigation, misused the independent counsel statute and as a
consequence it was terminated by the Congress.
There is another matter that I continue to think I was right on, but that
turned out to be a low point for the Department while I was there. There was a
case called U.S. v. Knox, which involved a graduate student at Penn State who
had been convicted of possessing child pornography and had been sentenced to
five years’ imprisonment. That conviction was affirmed and he was
petitioning for cert to the Supreme Court and it came to our office because a
Deputy in the Solicitor General’s office thought this was a miscarriage of
justice. According to the brief, the material that this student possessed did not
involve any sex or any nudity. It involved an actress who was about 18 years
old playing a cheerleader in her gym clothes and the camera allegedly lingered
too long on her fully clothed private parts and the lower courts concluded that
was pornography and he, who possessed but did not direct, produce or
distribute the film, was going to serve five years. So we filed something with
the Supreme Court – it wasn’t quite a confession of error – but it was a
suggestion that the matter be remanded to the Circuit Court for further
consideration. It was remanded by the Supreme Court in about an hour after
we filed our papers, but shortly thereafter we got a written demand from the
Senate Judiciary Committee that said, it came over late morning, give us your
explanation for being soft on pornography by 5:00 this afternoon. We were
drafting a letter to get in by 5:00 but at about 4:00 we received notice that the
Senate had voted 100 to 0 censuring the DOJ for being soft on pornography.
That did not make Janet Reno a very happy camper, but I continue to believe
that we did the right thing in an effort to negotiate a sensible resolution for Mr.
MR. KRANTZ: Which clearly establishes, Irv, that you can do the right thing and still lose.
MR. NATHAN: Exactly and be criticized for it [laughter]. So a short time after Phil Heymann
left, I did return to A&P for another substantial stint.
MR. KRANTZ: And what were the years?
MR. NATHAN: I think it was from June, 1994 to 2007 that I was at A&P. For the third time.
MR. KRANTZ: So that was actually quite a long period of time.
MR. NATHAN: It was a long period of time and I had again a number of interesting matters.
Several of them that developed from serving in the government. I represented
some senators and their staffers in either internal investigations in the Senate or
grand jury investigations. A fair number of my matters were RICO cases,
including civil RICO suits. I represented a major tobacco company which was
sued under civil RICO by foreign governments. One was by the European
Union and its member countries and another was brought by the states of
Colombia. The claims in these matters were that international cigarette
companies were not paying foreign taxes and import duties for cigarettes
manufactured in the U.S. and sold abroad. We had lengthy hearings and
motions. We won those cases under a doctrine called the Revenue Rule which
provides that foreign countries cannot sue in the U.S. courts under their tax
laws. Even though this was styled a civil RICO, case it was really a tax
collection case. We also argued that the RICO statute while it incorporates
some laws that involve offenses overseas, the injuries have to be sustained in
the U.S. under the treble damage provision. We argued this in the late 90s and
only recently the Supreme Court ruled in that fashion, agreeing with our
interpretation of the law. One case that I particularly remember that we
handled in a grand jury involved a large company. We had to come up with a
novel defense for it because another company in the same industry had already
pled guilty to exactly the same charge, and we were then faced with the same
investigation by the same office. I developed an argument that demonstrated
that the government’s theory was not a proper interpretation of the mail fraud
and wire fraud statutes. We had a good recent Supreme Court case on point
and I wrote a long letter essentially saying that if the government charges our
client, we are going to raise this defense and that will undermine the prior
conviction that you have. So after the letter was sent, I went with an assistant
general counsel of the company to the U.S. Attorney’s office and the US
attorney and his assistants took us into the Grand Jury room and he laid out all
the evidence against the company and said we could indict the company and
we would win, but it would be just too much of an effort and we don’t have the
resources and so we are not going to prosecute. I then proceeded to start to
refute all the evidence that they had shown us in the buildup of this
presentation. The inside counsel said “You can’t take yes for an answer and
let’s get out of here! ” So we did depart and the company was not charged.
Amusingly, the lawyer for the company that had plead guilty I think believes
to this day that somehow we did something improper with the U.S. attorney to
have our client not charged. But in truth we only relied on a good legal
argument that we had developed.
Another major matter that I handled at that time, related to an independent
counsel investigation, a preliminary investigation that was conducted against
the client Andrew Cuomo who at the time was the secretary of HUD. I was
retained by him and his father–Mario. Mario told me that it would be the
mutilation of Andrew’s political career if an independent counsel were
appointed. Basically, we had 90 days to disapprove the allegations and to
satisfy the Department that there was no point and no justice in appointing an
independent counsel. But we succeeded and the matter was properly closed
without the appointment of an independent counsel. Mr. Cuomo is now the
Governor of New York having been re-elected. I very much enjoyed that
representation, particularly strategizing with Mario Cuomo who was a brilliant
lawyer and a devoted father.
One other matter I should mention is my defense of the CFO of
WorldCom, Scott Sullivan. This was a very difficult representation because it
was a high profile matter, where he faced very serious consequences in both
criminal and civil matters, where he had a very sick wife and a young child and
where his relatives, who had brought us into the matter, were convinced he had
done no wrong. After very contentious proceedings with the U.S. Attorney’s
office in the Southern District of New York and the SEC, we were able to
work a deal, whereby in return for his testimony against others, he received a
relatively lenient sentence. We also negotiated an excellent agreement with the
SEC, which allowed him to keep most of his assets for his wife and child.
Scott is now on the speaker’s circuit as a born again Christian, and I am
pleased that we were able to get him past his problems and move on with his
So there were a number of matters that came up like that in that period at
Arnold & Porter.
MR. KRANTZ: There are a number of people who have the view that once you have served in
government positions like you have served feel like public service is a better
career than being in private practice. It seems to me that you may be an
exception in that regard particularly since you had such exciting opportunities
while in private practice, is that right?
MR. NATHAN: Well, I realize I have been very lucky in my career. I have been very pleased
and fortunate that I was able to be both in private practice and in government
service. I have always wanted to serve in government. That is one of the main
reasons why I came to Washington to practice, but I also think that the service
in the government helps to enhance your career in private practice, and I got
some matters that stem from that. I’m not a proponent of the notion that the
revolving door is a bad thing. I think it is a very good thing. I think is it
helpful to private clients when the lawyer has been in the government. As a
former government lawyer, you have a good idea of what the government is
interested in and can explain that to your client—which, in my opinion, is
generally doing the right thing and having diligent people or trying to serve the
public interest. That is my experience with career prosecutors and career
government lawyers. So with that knowledge, you can explain to your private
clients what is the government’s goal and how to navigate the shoals of a
government investigation or charges. Conversely, having been in private
practice and understanding how corporations work and how the private
industry works, you can explain to your government colleagues if you are in
the government, how certain things operate in the other sectors of society. In
one example I can recall, when I was in the government after having been in
private practice there was an investigation of a Senator, and the prosecutor
thought that the Senator was clearly corrupt because when a bill was
introduced affecting an industry in his state, he took jurisdiction in his
committee over that bill. I was able to explain to it was quite usual for a
committee chairman to take jurisdiction over a bill that affected the industry
his committee was supposed to oversee and, it doesn’t suggest corruption that a
bill goes to the committee with the right jurisdiction over it and you can’t jump
to any conclusions based on that alone. There were similar situations where
private people in industry made judgments about the goals of prosecutors
which I didn’t think were warranted and could explain where I thought the
prosecutor were coming from. So I think as long as you have your eye on the
ball and you know whom you represent and what the interest is that you are
representing, you can inform that representation by knowledge both of private
industry and government service and you are helping your client whoever your
client is at that time.
MR. KRANTZ: Now, unlike a lot of other people who have not had the same extensive
government experience, you had a fairly diverse series of positions. What led
up to your leaving Arnold & Porter and becoming general counsel of the
House of Representatives?
MR. NATHAN: Well, let me say I was not seeking that position. I think it’s actually an
amusing story. I’ll tell you how this came about. I made no secret of the fact
that I like government service and I was looking to do government service. I
thought honestly after the last stint in Justice that was probably the last time I
would be in government service and I would be expected to retire from private
practice. But because people knew I was interested in it, one day while I was
sitting at my desk at Arnold & Porter, I guess in 2007 I got a call from a friend
who had joined the staff of the Speaker of the House, Nancy Pelosi, and he
said would you be interested in being considered for the position of General
Counsel of the House? And I said well what is that job? And he said you
don’t need to know because you’re not going to get the job. I just want to know
if you can be a part of the group who are going to be considered for the job. He
made clear that the Speaker was likely to choose a woman for the position. So
I said well you know Nancy Pelosi was the daughter of the mayor of Baltimore
while I was growing up; we did not run in the same circles, and I had always
wanted to meet her, so I would be happy to be considered if I could get an
interview with Nancy Pelosi. But it turned out when she read my resume, she
saw I had clerked for Judge Sobeloff and Judge Sobeloff was a very prominent
figure in Baltimore, in fact he had been a city solicitor in Baltimore. At the
time he was a Republican and he was a city solicitor for the Republican mayor
that preceded her father but I learned later that he also stayed over and worked
as city solicitor for her father. So she knew him and had a high regard for him
but mostly she was fascinated by the fact that if I clerked for Judge Sobeloff I
must be very old and decrepit. She conflated my age with his – he was 75
when I clerked for him and I was 24 – and she wanted to see if I could walk in
on my own without literally being carried in or without an oxygen tent. So
when I came in, not quite that old and when we shared stories about Judge
Sobeloff we hit it off and she offered me the position basically saying if you
were good enough for Sobeloff you’re obviously good enough for this job. So
as a result I did have that opportunity and I was delighted to take it, and it
turned out to be a really good experience.
MR. KRANTZ: You had indicated that prior to taking the position you were not fully aware of
the kinds of things that a general counsel in the House of Representatives does,
I guess you learned very quickly. What were some of your tasks and what
were some of the most interesting experiences you had?
MR. NATHAN: The general counsel of the House represents the institution, the members and
staff in matters that relate to their official duties. So a fair bit of it was to deal
with the Speech or Debate doctrine, the privilege in the Constitution that
protects the members or their staff in anything involving legislative matters
from being subpoenaed or sued or otherwise called to account anywhere other
than in a legislative forum. As a result, at that time, it was a heavy litigation
load of representing members who were being subpoenaed or sued. One of the
first matters that I handled was the aftermath of the search in Congressman
Jefferson’s office where for the very first time in our history the executive
branch had executed a search warrant on the premises of the House and had
taken the records of Congressman Jefferson who was suspected of and later
proven to be involved in corrupt activities. They had searched his home, that
was where they had found the cash in his freezer, but they also searched his
office and took away lots of records. That happened before I was there, and
motions had been filed before I was there by the person who was my deputy
who is an excellent lawyer, Kerry Kircher, but thereafter there were a lot of
proceedings relating to protecting those privileged documents. So we had
litigation over those documents that had been taken. Another matter during my
tenure was an impeachment of a federal judge, Thomas Porteous. He was a
Louisiana federal judge. His basic argument was that yes he had taken money
from parties in litigation before him, but he had taken money from both sides
and that hadn’t influenced his decision. He and his lawyer apparently thought
that was a great defense. He was represented by Jonathan Turley. We didn’t
think that was much of a defense. The issue was whether the House was going
to impeach him. He brought a lawsuit claiming that testimony that he had
given before a judicial disciplinary panel could not be used against him in the
impeachment process in the House. We moved to dismiss that on the ground
that what happened in the House could not be challenged in another place, and
we won that law suit, that was dismissed. We advised the committee dealing
with his impeachment. He was impeached, I believe unanimously. It was a
pretty difficult thing to get unanimity on anything in the deeply divided House
of Representatives at that time. He was convicted by the Senate and removed
from office.
Those were the kinds of matters that we handled, but the most significant
one during the time that I was general counsel of the House related to the
firings of a number of U.S. attorneys in the second Bush administration.
George W. Bush had appointed U.S. attorneys. At the beginning of his second
term, he fired a number of them in a very peculiar way, without notice or
explanation. A number of those attorneys were very highly regarded. Actually,
before I become the general counsel of the House, I had already taken on the
responsibility of being a senior legal adviser on the House Judiciary
Committee that was looking into the question of these firings. Then later I
was asked to become the general counsel. During that investigation when I
was the general counsel of the House, subpoenas were issued by the House to
the former White House counsel–Harriet Miers—and by the Senate to Karl
Rove. At the advice of the White House counsel, they both refused to appear.
They not only refused to testify they even refused to appear and honor the
subpoenas, claiming that they were immune because they were (or had been)
high White House officials. We thought there was no merit to that proposition.
And the question was how to resolve it. Harriet Miers was held in contempt of
the House, and a reference was made to the DOJ for criminal prosecution.
Obviously that was not going to happen. It was the Republican administration
which had recommended that they assert this immunity, and the Attorney
General wrote a letter to the Speaker advising that they were declining to
The second traditional way that this could be handled was to have the
House Sergeant of Arms go out and arrest the person who was held in
contempt. They could be tried in the House and imprisoned in the House for
the session of the House where this contempt had taken place. That procedure
was followed in the 19th century and approved by the courts. It hadn’t been
followed after the 1920’s, and what used to be the prison in the House is now a
snack bar, and I think everyone thought it would be cruel and unusual
punishment to keep someone in the House snack bar for the term of Congress.
The trial in the House did not seem like a politically viable way, and I
suggested that we could bring a civil suit. It would be the first time that a civil
suit was brought to compel the testimony of the executive branch, of officials
who were refusing to testify. There was a lot of debate on the issue and after a
suit was approved by resolution of the House, I went to the minority leader
who was at that time John Boehner, and I said this is an institutional matter and
Republicans should join in this lawsuit. I said it doesn’t take a lot of
imagination – this was in 2008 – to think there will come a time when there
will be a Democrat in the White House and Republicans will control the House
of Representatives, and you’ll want to have this authority. Mr. Boehner
refused, saying this was a partisan matter, which I did not think it was. Not
only did they oppose the suit, and they even filed a brief against us, claiming
that the case was not ripe. The case was heard by Judge John Bates in the
District Court in the ceremonial courtroom, with the White House counsel,
Fred Fielding, at defense table, and Judiciary Committee Chairman John
Conyers at our table. After the three hour argument, we did not know how the
decision would go, but we did know that both sides had presented all their best
arguments and that the court understood them. Less than a month later Judge
Bates wrote a superb decision rejecting all of the arguments that the DOJ
presented. He rejected their procedural grounds to avoid the merits and then
on the merits, concluded that there is no immunity for White House officials
from a Congressional subpoena. He ruled that executive officials, like
everyone else, have to abide by the subpoenas and, if they wish, raise a
privilege objection on a question by question basis, but they couldn’t just
ignore the subpoena. After that ruling, the Obama administration came in and
we basically worked out a resolution of the matter. But that precedent stands.
It is an important precedent for the House. Ironically, a year or so later when
President Obama was elected into office in 2009 and a fight broke out between
the House which was then under control of the Republicans after the 2010
elections, in the fight with Eric Holder over the so called Fast and Furious
investigation, it was that precedent that the Republicans used to go to court.
They sued Attorney General Holder and get some relief from the Department
of Justice. So that precedent stands as an important precedent for the House.
There were a number of other very interesting matters and it was a great
opportunity and a thoroughly enjoyable and instructive professional
experience. But then when the Republicans took control of the House, I didn’t
think the new majority wanted my services anymore, and that’s when I moved
MR. KRANTZ: Okay, you certainly raised the realities of the political process within Congress.
Could you talk just a little bit more about that overlay and how it affects your
job when you are general counsel hired by the majority party and you have a
minority party that is trying to resist your efforts? On a day to day basis does
that make the job extremely difficult to do?
MR. NATHAN: No. And we did not represent the majority party. I viewed the job as a nonpartisan job. I viewed it that we were representing the House as an institution
and then we represented individuals who were subpoenaed. So if it was a
Republican congressman that was subpoenaed, we represented him or her
without regard to the politics. We assisted them with respect to the assertion of
whatever privileges they had based largely on the Speech or Debate clause or
whether they had any other issues. There were other more mundane matters
that we dealt with for representatives. For example, each of the representatives
has an office in their home district and sometimes they rent space and they
have issues with the lease there. We would provide representation and advice
with respect to that. There were issues about taxation because they were
immune from certain local taxes and we would deal with that. And on all
those matters we would deal equally, whether it was a Republican or a
Democrat and we would maintain their communications in confidence.
MR. KRANTZ: When you focus on your point which is that your client the House of
Representatives and either Republican or Democrat but if you are trying to
deal with the client, when you have two different parties, what is the process of
doing that?
MR. NATHAN: Sometimes, as for an example, in the lawsuit involving the enforcement of the
subpoenas, we had to get approval and in that case it was such a high profile
and an important matter that actually did go to a vote of the entire House, so
that we had a resolution that would pass by majority and the Democrats were
the majority so their view prevailed. In other situations, they have at the
House what they call the Bipartisan Legal Advisory Group which is a group of
five members of Congress who are usually represented by their staffs. It’s
made up of the Speaker, the Majority Leader and the Majority Whip and then
the Minority Leader and a Minority Whip. Decisions are made by that five
person organization and obviously if the issue divides them politically, the
majority — the three who are in control of the House– gets the decisive vote.
So there were cases where we filed amicus briefs in cases that were pending
and where we wanted the courts to know the interest of the House as an
institution. Sometimes in those cases there was a partisan divide. When we
filed the briefs, we would note that the authorizations for filing it was based on
a three to two vote by this group, which was called BLAG. So that’s how
those decisions were made.
MR. KRANTZ: Okay, well we only have five more minutes for the purpose of this particular
interview, and what I would like to use it for is to set the stage for how you
happened to have another position in government, this time with the District of
Columbia when you became the Attorney General for the District of Columbia.
MR. NATHAN: Right. I should mention that another set of cases that I dealt with in the House
had to do with times when there were misrepresentations made to the House by
witnesses and there were going to be criminal prosecution referrals. A lot of
people in the House, both Members and staff did not want to testify in those
kinds of matters out of concerns about waiving privileges and so forth. One of
those matters was the case about Roger Clemons, the major league baseball
pitcher who had testified about steroids and was accused by the Committee of
perjury. The Committee referred the case to the D.C. United States Attorney
and the U.S. Attorney’s office did bring the criminal case. We had to prepare
the witnesses and encourage them to testify, even though they were reluctant to
do it. We recognized that unless we did cooperate we would not have a
mechanism to get truthful testimony. This is another example that without
regard to politics, it’s just a question of serving the institution to get the right
answer. But again the decision as to who is the general counsel of the House
rests with the Speaker and the Majority party .It’s no secret that I didn’t have a
great rapport with the Republican leadership and the Republican staffers on
BLAG, so in November of 2010, when the vote was that the Republicans
would take over the House, I submitted my resignation and said I would leave
at the end of that term.
I was fully expecting to either retire or go back to law practice or to teach,
when out of the blue I received a call from the Mayor- elect of D.C., Vincent
Gray, who had just been elected. I had not known him or campaigned for him.
He called me, I did not initiate this, and he said that he had been checking
around with a number of lawyers and that my name had come up as a person
who might be considered for D.C. Attorney General. At that time in the
District, the Attorney General position was an appointed position, although
prior to his calling me the City Council had changed the law to be effective
sometime in the future, at the end of that Mayor’s term, so that as of 2015 the
position was going to be an elected position. In the interim under that
legislation the Attorney General would be appointed by the Mayor and
confirmed by the City Council and could only be fired for cause. So the new
AG did not serve at the pleasure of the Mayor but could only be fired for good
reason. So Vince Gray called me and I went to interview with him, and we
developed an instant rapport. I thought (and continue to believe) he was very
intelligent and a decent person and had a good understanding of the issues and
the relationship between the Mayor and the Attorney General. He was
concerned that–and again this goes to who the client is– that the prior attorney
general had viewed his job as representing the Mayor. But Mayor-elect Gray
and I thought the job was to represent the city and to represent the Corporation
which is the City of the District of Columbia. Before the position was called
Attorney General, it was called the Corporation Counsel. Our conversation
focused on who would be the client and what you would do under certain
circumstances and we both agreed the Attorney General was not representing
the Mayor personally unless it was a lawsuit in which the Mayor had been
challenged on something that had been done in his governmental capacity the
same as it had been in the House. We represented the House as an institution
and then members if they were sued in their official capacities or for things
that had happened in government service. I thought the same thing applied to
the city and city agencies, and we weren’t there to deal with the politics of the
situation but to deal with the law and he had a similar approach. He offered
me that position and I took it quite happily. It turned out to be a lot more
complicated than I expected. A city is a very complicated institution with lots
of different agencies and different situations. I was confirmed unanimously by
the City Council, and it turned out to be a really interesting and excellent
professional experience.
MR. KRANTZ: Because your prior governmental experience had been the federal level did you
have some hesitancy or concerns about suddenly being in a position that dealt
with a different set of laws and cultures?
MR. NATHAN: Well I did have some concerns, but I loved the challenge. It was an interesting
challenge, and, of course, the city of Washington, the District of Columbia, is
really a unique institution. Obviously it’s a major metropolitan center. It’s a
city. But for many purposes, it operates as a state vis-a-vis dealing with
Federal agencies, for example. And then in other circumstances it’s a
constitutional entity reporting to and controlled by the Congress. There is a
very interesting dynamic and relationship between the Congress and the city so
in some ways it’s like a territory. So it is a unique institution – as a city, state,
territory and a federal enclave with lots of issues. That is one of the things that
made the job extremely interesting not only dealing with the city agencies and
dealing with the federal executive branch, and the Congress but also dealing
with surrounding jurisdictions, Maryland and Virginia, such as with the Metro
Board. So it was a terrific opportunity, challenge and a great learning
MR. KRANTZ: Well I think this appropriately sets the stage for what will be our last interview
which will cover the time period when you were the Attorney General of the
District of Columbia. Also what you have been doing since that time and your
observations about what would flow from the rich experience and career that
you have had. So this draws our third interview to a conclusion.