E. Barrett Prettyman Text of Interview (February 11, 1997)

Mr. Kapp: This interview is being conducted on behalf of the Oral
History Project of the District of Columbia Circuit Court. The interviewee is
E. Barrett Prettyman, Jr. The interviewer is Robert H. Kapp. The interview took
place at the offices of Hogan & Hartson L.L.P. on the 11th day of February, 1997,
shortly after noon.
When we concluded last time, we were talking about cases which you
had handled in the District of Columbia Circuit and I wondered if you had any
further comments about that, that you wished to make?
Mr. Pre!fyman: Well, in addition to handling these cases that we’ve
discussed and ones like them that involved very interesting personal situations,
criminal matters and the like, I, of course, handled a number of cases for business
clients. I, for example, argued at least three cases in the D.C. Circuit on behalf of
Greyhound Lines. I argued some railroad matters, some public utilities matters, and
those were also interesting cases but not as flamboyant, if you will, or as personally
intriguing as some of these matters that we’ve been discussing.
Mr. Kapp: I wonder if you could tell us about memorable cases that
you’ve handled in other circuits, other than the D.C. Circuit, if there are cases you
wish to talk about.
Mr. Prettyman: The case I remember best in the Second Circuit was
on behalf of a gentleman named Pacelli, Vince Pacelli, who was quite a character.
He had allegedly been involved with the mob. It was a complicated case which
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brought forth a very long opinion in the Second Circuit. I always enjoyed arguing
in that Circuit. One memorable moment was when I was waiting to argue one day,
and Roy Cohn was up arguing a matter for a client in front of me. He had only
been going a few minutes when the Chief Judge leaned to his left, leaned to his
right, and said “Affirmed, next case”. [Laughter] Roy Cohn was down in a matter
of moments and his client in the back of the room was distraught, to say the least.
But that Circuit, as you know, had the ability and the reputation for deciding some
matters from the bench without benefit of opinion or even benefit of a complete
argument sometimes ..
The most memorable case I remember in the Fourth Circuit — and in
this series of cases I was on the brief and I do not believe, I am not ce1tain about
this, that I argued personally — but the case was so intriguing. There was a fellow
named Juri Raus, who worked in the Bureau of Transpmtation and who got up at a
meeting of Estonian emigres in Baltimore and declared that a so-called freedom
fighter named Erik Heine, who was coming over from Estonia, should be watched
very carefully and people should not talk to him, because in fact he was a KGB
agent. Heine sued for defamation, and we represented the defendant, Mr. Raus.
We introduced an affidavit from the Director of Central Intelligence stating that Mr.
Raus had made these statements at this meeting at the direction of the CIA — the
inference being that in fact Mr. Heine was a KGB agent. We got into the files in
that case, and it was absolutely fascinating to trace the background of Mr. Heine,
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and, in fact, we won that case and the Supreme Court denied cert on the theory that
Mr. Raus was forbidden in effect from defending himself because he would have
been revealing national security secrets.
Mr. Kapp: How did you ever get the CIA to own up to their role?
Mr. Prettyman: They had instructed him to make the statements, and
when they found that, innocently enough from his own standpoint, all he had done
was follow directions and get himself into trouble, they simply felt that they had to
own up to it. And I always thought that that was exactly the right thing to do but a
somewhat surprising !hing to do on behalf [Laughter] of a government agency.
Incidentally, that case was not litigated from the plaintiff’s standpoint the way I
would have done it. If I had been the plaintiff, I would have said, “Fine, don’t let
the defendant talk, don’t reveal any secrets, we’ll cut off all discove1y — now give
me my money. I mean, obviously my client was defamed — calling him a KGB
agent was defamatory per?– and if you don’t want to let your client talk, well
that’s fine, but we’ll now discuss how much my client has been damaged.” But it
wasn’t pursued on that basis, which always puzzled me, and l couldn’t quite
understand why the other side seemed to give up as soon as the national security
defense was raised.
Mr. Kapp: That is surprising.
Mr. Prettyman: I’ve had a number of interesting arguments in the
Fifth Circuit. One was the first appellate argument I ever had, which was on behalf
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of the Pillsbwy Company, and I’ve already discussed that. The other that sticks in
my mind some 23 years later is the Soldier of Fortune case in which there was an
alleged gun-for-hire ad placed in the magazine and someone was hired to kill a
man’s wife. The murder took place, and the murdered woman’s family instead of
suing the murderer sued Soldier of Fortune, my client, for running the ad. And in
that particular case the Fifth Circuit held that the ad was not clear enough as an
invitation to a crime to result in liability and therefore held that Soldier of Fortune
was not responsible.
A case ? the Sixth Circuit was on behalf of a former bank president
who was sued for various alleged improprieties, and we got that reversed on a very
technical ground — namely, that the complaint had failed to allege that his bank was
a Federal Reserve bank, which was part of what the government had to allege and
prove under the statute. I’ve also argued in the Eighth and Ninth Circuits. In the
Ninth Circuit the most memorable case for me was one in which a client, Exide
Electronics, a company in North Carolina, was being sued in California by an exindependent
contractor who was claiming huge damages as a result of Exide
obtaining an Air Force contract that this independent contractor claimed he had
gotten for Exide and that he was due commissions on. The reason it was so
memorable was that the company would have been put out of business if the award,
which was tremendous, had stood up. I got that reversed on the ground that the
trial judge had given an instruction which included most, but not all, of what North
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Carolina law required. He had left out what we claimed was a key portion of North
Carolina law, and therefore that was a reversal. The case was also unusual in the
sense that thereafter when it went back for retrial, I was retained to monitor the
retrial on behalf of the company. That is, the case was being tried by trial counsel
in California, and I was retained to attend every day and to make decisions on the
basis of preserving the record for appeal. The trial judge, a quite elderly gentleman,
ruled that no one could testify at the second trial who had not testified at the first
trial, and I thought that that was without any question clear eITor and therefore was
determined to retain that point in case a second appeal became necessruy.
In the middle of the trial, our trial counsel found an extremely
important witness whom they had not known about before, and they ve1y much
wanted to apply to the trial judge to waive his ruling as to that one particular
witness. I vetoed that and got the client’s approval to veto it on the ground that if
we made application to the judge and he granted it, the appellate court would say
later that we had waived any objections to his prior ruling. That is, since on the
only occasion that we wanted him to waive his ruling we made application and he
granted it (if indeed he did), we could easily have made application as to all other
witnesses we wanted to testify and he might have waived the mling as to them too,
and therefore we could not prove that we’d been hrumed by his miginal mling. So
they did not call that important witness. Fortunately, the second verdict was so
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much smaller that the case was quickly settled for a relatively insignificant
amount.
Mr. Kapp: To what extent when you’ve been involved in trials, have
you in the course of the trial had your eye on what was going to happen when you
were before the appellate court?
Mr. Prettyman: I haven’t been a trial attorney that often, but when I
have I must confess that like most other trial attorneys I had my eye on the trial
[LaughterJ and on doing whatever was necessary to try to win that judge and jury
over to my side. And I really gave relatively little thought to an appeal, except to
make certain that I got every objection in even when the trial judge seemed not to
be very receptive to objections. I did do that. I objected wherever it seemed to be
required, but other than that I was focused on the t:Iial itself, and therefore as an
appellate counsel I had a degree of understanding of why trial counsel do exactly
that — they’re not worried about tomorrow, they’re worried about winning today
so that an appeal will not be necessary.
Just to finish the Circuits here. The case I remember best in the
Tenth Circuit was the one we have touched on — the death penalty case following
the documentary I did with Truman Capote. I’ve also argued several three-judge
District Court cases, including one involving former Gove1nor Marvin Mandel of
Maryland, another involving Paramount Pictures, and a third involving Western
Pacific Railroad.
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Mr. Kapp: You’re probably best known for your role as a Supreme
Court advocate. I wonder if you could tell us a bit about the extent of your
Supreme Court practice, the number of cases that you’ve argued, the number of
cases in which you’ve appeared, if you know all of that.
Mr. Prettyman: Well, I have filed for cert and have filed opcerts in
well over a hundred cases. I suppose 150 cases or more in the Supreme Court, I
really don’t know exactly how many. And I have also filed amicus briefs in dozens
of cases. Again, I’m not sure precisely how many. I have filed briefs on the merits
on both sides — for p?titioners or appellants and for respondents or appellees. I
have filed applications for a stay. And I have previously mentioned that I have
personally argued 19 cases in that Court. It’s hard to pick out the most important
cases I’ve argued, but certainly some were more memorable than others, and I’ll
just mention a few of those. A case that I lost that was memorable was
Branzburg v. Hayes, a case involving whether a reporter who receives confidential
information must appear before a Grand Jury investigating a crime and reveal that
information. And I remember that argument particularly because I got into a series
of questions from Justice Marshall, who did not make clear to me the hypothetical
he was suggesting. As a result, the questioning from him went on for some eight
pages of the transcript because I could not seem to answer the question to his
satisfaction, and I could not because I did not understand it. It finally developed
that what he was getting at was a reporter who received confidential inf01mation on
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day one and then on day two witnessed an unrelated accident, and whether he could
be compelled to testify about the accident. Of course, the answer was quite plain
that he could — he was simply a witness, unrelated to his rep01ting — and I could
have answered that in a single sentence if I had understood what it was that he was
getting at. But it was unclear to me, and I think that’s one of the most frustrating
sequences I’ve ever experienced in the Supreme Court.
A case I was more successful in in the First Amendment area was
Nebraska Press Association v. Stuart, which involved a honible crime in Nebraska
in which a man was 3;1Tested and charged not only with murdering an entire family
but necrophelia and other crimes. And when his confession was going to be read at
a preliminary hearing in open court, the trial judge, concerned that he would never
get a fair trial, ordered the press, my clients, not to rep011 what occurred in open
court. The issue was whether trial courts could issue prior restraints on the press in
that manner, and the Supreme Court unanimously held that they could not, absent
some extraordinary circumstances which have virtually never been present since
that time. I remember that case particularly because I gave the -Justices my own
hypothetical, which I think is dangerous to do. But to demonstrate the drastic
nature of the p1ior restraint on the press, I gave the example of ministers, priests
and rabbis who learned about that confession and who were going to get up in their
pulpits on the Saturday or Sunday prior to the trial and reveal to their parishioners
exactly what was in that confession in order to make a point about Satan’s control
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and the ways of the devil, and so forth. And I asked whether there was any chance
that a court would issue a prior restraint against those preachers, prohibiting them
from saying those things in their pulpits, and I said, “Surely there isn’t, and yet the
press is protected under the First Amendment just as obviously as religious leaders
are.” Well, it engendered an immediate flow of questions, but I thought it worked
out extremely well. And it really made the point. Floyd Abrams was kind enough
later to cite that as an example of effective advocacy. So in that particular instance
at least it went well.
Another case that I was patticularly proud of was Allegheny
Pittsburgh Coal Co. v. County Commission, which was a case where a local tax
assessor in West Virginia was assessing homes for tax pm-poses at the value at
which they had last been sold. That is, two houses which were actually worth by
current value the same thing were being treated radically different for tax pm-poses
because one of them hadn’t been sold for thirty years and the other had just recently
been sold, obviously at a much higher price. And we claimed that that was a denial
of equal protection. The Supreme Court had not ruled in thaffashion for at least 30
years, and we got them to grant cert in that case and to reverse, I believe
unanimously. It was interesting because thereafter California by constitutional
amendment instituted the same system and the Supreme Court upheld that system.
I always thought that analytically there was really no difference between a tax
assessor doing it on her own — she was, after all, representing the state — and a
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state doing it pursuant to constitutional referendum. The principle was the same in
both cases as to whether a state could do that, and so when the California case came
down, I was particularly pleased that we had been able to talk the Court into doing
something that was quite out of the ordinary and which they didn’t even stand by
many years later.
The McNeil case was interesting because that was a case I was
appointed to by the Supreme Court. A fellow named McNeil had been sent to
Patuxent Institution, up here in Maryland, as a defective delinquent, which was an
amorphous phrase indicating that somebody had committed several crimes and
therefore might be suffering from some kind of mental defect or disease. When you
got into Patuxent, you were sent to Tier 1, given a whole battery of tests, and
determined to be a defective delinquent. You were then sent to Tier 2, and if you
behaved properly, you could go to Tier 3, and finally to Tier 4, and then out. But of
course if you messed up in any way, you would be retained in your paiticular Tier,
· and it was possible that you might spend the rest of your life there instead of just
serving your original sentence. Recognizing this, Mr. McNeil refused to answer any
questions at all, he refused to take the tests, he refused to talk to anybody when he
got there with his five-year sentence. And low and behold, one, two, three, four,
five years passed and he was into his sixth year, still on Tier 1, when he wrote to the
Supreme Court, and the Supreme Court treated the letter as a cert petition and
asked me to represent him. And I remember that argument very well, because
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some member of the Court asked the representative of the State of Maryland
whether its position meant that without any court intervention, the State of Maryland
could keep Mr. McNeil at Patuxent indefinitely. The answer was yes, because since
he refused to take the tests they could not determine whether or not he was a
defective delinquent, and until they could determine that they couldn’t pass him on
to the next Tier, and so they could keep him there forever. And the Court ruled
quite to the contrary — that he should be immediately released. He had served his
sentence, and the institution could not keep him there without a cou11 order.
I repres?nted the State of Nevada in several interesting cases involving
water rights and water decrees, and I particularly remember that I was up against
Erwin Griswold in at least one of those cases, and he never seemed quite to get over
that case. He thought he should have won it, and he used to grouse to me about it at
cocktail parties in [LaughterJ years later, years later. Those are some of the cases
that I particularly remember.
Oh, there is one other, and I cite this simply because I think the
argument went particularly well. This involved the City of Renton in the State of
Washington, which is a small city just southeast of Seattle. They had an adult
theater there that they were trying to move out of the immediate downtown area
and into a less populated place near the edge of town. And the question was
whether the city could zone it in that fashion, based on studies in other cities that
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adult theaters caused adverse secondary effects. This was one of the few times I
was on the side that was not pro-First Amendment but rather on the other side,
because I was representing the city. And I remember the case very well because I
felt particularly well prepared. I’d gone out to the City of Renton, and I’d viewed
the entire area. I knew the square miles, the population, and all the rest of it, and I
was able to answer the questions during the argument, including a few that were not
in the record. I made clear that they were not in the record, but that I happened to
know about them from my own personal knowledge. So that was one of the few
times when, after it was over, I felt actually fairly good about my performance and
perhaps I had a chance to win, which indeed we did.
Mr. Kapp: As you look back on your many appearances before the
Supreme Court, are there any instances that you recall in which you answered a
question in a particular way and regretted afterwards that you answered it in that
way or where you thought that the way in which you answered a particular question
had actually affected the outcome of the case?
Mr. Prettyman: I never made such a concession that I recall or that I
was aware of at the time or afterwards. I never made a concession that adversely
affected my case and my client. I have seen that done on a number of occasions,
but I’m not aware that I ever did that. I have indeed given answers that were not as
complete as I would have liked, and it was usually because in the heat and intensity
of the argument I did not fully understand the question — similar to the instance 1
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mentioned with Justice Marshall. There have been times where either the question
itself was obliquely or opaquely asked, or I was simply so nervous that, even
though it was a clear question, I did not understand it properly, and I have looked
back later and seen that question should have been answered in another way. I like
to think that there were not too many instances of that, but mostly early on in my
first couple of arguments when I was extremely nervous. I was aware even at the
time that I had not fully comprehended several questions and that I was just
answering anything I could think of because I really did not know what was being
asked. As you get mqre used to arguing there, it becomes more fun, and you
understand better and better what the game is and how you must respond to
questions — which ones you answer briefly and which ones you answer at great
length, and so forth. You make fewer and fewer of those kinds of mistakes.
The nerve-wracking part of it is not in connection with your knowledge
of the record or the law, because you presumably prepared yow·self to the hilt for
that, but rather in relation to hypothetical questions. It is viitually impossible, no
matter how well prepared you are, to foresee every question or ·even eve1y type of
question that’s going to be asked, and the best you can do is to have enough moot
courts and to think so thoroughly about your case and your themy of the case that
you are able to foresee the types of questions you are going to get, if not the exact
ones. But it’s scary that you might be asked a hypothetical that will stun you into
silence. That is frightening. And for me, at least, that’s always the frightening
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part, not being able to foresee every kind of hypothetical that might be thrown at you.
Mr. Kapp: Any instance in which you were asked about a prior
decision of the Court with which you were not familiar?
Mr. Prettyman: I think that has happened, perhaps twice, and I don’t
remember the precise cases, but I do vaguely remember a Justice saying, well how
about the Green case, and I was not familiar with it. But it doesn’t happen very often
simply because one of the things you can prepare yourself for is to understand every
case that could be even remotely involved. It is sometimes quite difficult in cases
coming from state coμrt, where state law might be indirectly or inferentially involved.
You’ve got to make sure that you understand state law. I remember in that argument
that I was telling you about in the Ninth Circuit where the company’s fate was at
stake, a North Carolina state court decision came down only a matter of hours before
the argument, and we were able to get hold of that. I was still reading it as I was
waiting to get to my feet and handed out copies both to the coUI1 and to the opposing
side, and indeed that decision was of great importance to the decision in the case. I
think we would have won it anyway, but that decision made s·tate law particularly
clear on the point at issue and was extremely helpful.
Mr. Kapp: Living here in Washington you have a ce11ain amount of
personal contact with members of both the D.C. Circuit and with Justices of the
Supreme Court and I know that you’ve had those kinds of contacts over many,
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many years. Does the insight gained through personal interactions of that sort affect
the way in which you present cases before either of those Courts?
Mr. Prettyman: Oh, absolutely, absolutely. I don’t think there’s any
question about it. I’ve argued before twenty Justices. I’ve known them all in one
fashion or another, some obviously better than others. I think it’s important that they
know you. And that you have a reputation with them of being fair and honest, so that if
they ask you something and you tell them what the answer is, they know they don’t
have to go and look it up. They can rely upon your honesty and good will. And turning
that around, what you know about them is their style of asking questions. How serious
they are about those questions. You obviously have to answer every question, but you
don’t have to answer every question with the same degree of depth and seriousness,
because questions are often asked when Justices are bored, or tired, or want to have fun
with you, or want to make a joke, or whatever. And so you have to be able to answer
then and there and do so with deference, but to get rid of certain questions very
quickly in a sentence or two, whereas with others you must tarry over them and pay a
lot of attention. So I think it’s extremely helpful in knowing the Justices, to understand
the tenor and nature and seriousness of their questions. Also, I think, to see the
bent of mind. A certain amount of that you can get from the opinions, of cow·se. You
know how a Justice Douglas is going to feel as he starts reading a labor case, for
example. You know what Justice Scalia’s attitude is going to be as he begins to
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study a standing case. But when you know these people personally, you just have a
much better feel for what their problems are going to be with your case. It’s not that
you fashion your whole argument around that, but rather you get a feeling for how you
should approach an answer. What do you do, for example, with a Justice who is veiy
antagonistic toward.your position, not to you personally but toward your position, and
who will not stop asking questions, so that you have no ability to address concerns that
the other eight Justices might have. You don’t know whether that single Justice is in a
minority or whether he or she represents five votes. How you deal with problems like
that depends to some .extent on what you know about them as individuals.
Mr. Kapp: To what extent do you think Justices on the Supreme Court,
if you can generalize, are influenced by their own personal life experiences, as
contrasted with the way in which they intellectually read cases and read the law?
Mr. Prettyman: It’s almost impossible to say, and I don’t think they
themselves could tell you. Certainly it is a combination. Some would like to
think that they approach the law from an intellectual standpoint — that all they care
about is how they read the original Constitution and the framers’ intent, or how they
read the language of a statute and its common meaning. And yet even those Justices
would concede, I think, that this basic approach was in tum formed by life
experiences. Moreover, we’ve had Justices time and again who either quickly or
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over an extended period of time became something very different from what they were
when they first came on-the-Court. Earl Warren is a good example. He was quite
conservative in his early votes and obviously became quite liberal later. Justice
Blackmun took a lot longer period of time, but certainly changed over the years,
although I think he would deny that he changed as much as people think. I personally
believe that if you go back and look at his earlier opinions, there’s no question but that
he did change. Justice Souter is evolving before our very eyes. Now it is true that
some Justices change very little. I think Chief Justice Rehnquist is an example of
somebody who holds _basically the same views today that he did when he first came to
the Court. With some changes, of course. But he has not changed dramatically. Both
Justice Scalia and Justice Thomas give signs that in twenty years they will still be
espousing the causes they believe in today. But there have been changes in a number
of Justices over the years — because of the experience of getting on the Court and
slowly realizing that you are answerable to absolutely no one except yourself. The
freedom that brings, the independence that brings – the ability, for example, of an Earl
Warren, who had been in politics all his life, suddenly not to have to be answering to a
voter ever again, but instead only to his own conscience — is something that I think is
quite dramatic for some Justices. And therefore a combination of detached intellect
and life experience probably results in a decision in each case.
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Mr. Kapp: Can you tell us a bit about what your attitude is with respect
to the professional ·responsibility of lawyers to accept pro bono representation?
Mr. Prettyman: I’ve had mixed feelings about the mandatory aspects
of it — for example, a Bar association or a court imposing the duty to spend so
many hours or a percentage of your time doing pro bono work. I would like to see
it in the sense that it would result in a lot more pro bono work being done, but on
the other hand that would be particularly onerous for small practitioners and small
firm personnel who may be having trouble making a living as it is, and would have
a particularly difficult time if they had to spend a certain percentage of their time on
pro bono. But putting the mandatory aspect to one side, I personally think it’s just·
part of your public and professional responsibility as a lawyer to spend a ce1tain
amount of time doing good works. Whether that is pro bona work representing
people who otherwise could not afford it, or whether it’s other good work — in the
housing field, for example, or for the hearing impaired, or for whatever it is. I just
think that, in the same way that we have a duty to vote, we all as citizens have a
duty to spend a certain amount of our time doing good work. -It can be public good
work or it can be very private and personal good work. Some of us have made
efforts that are not really of a public nature but that benefit individuals and that
are quite important. But I at least have tried to do a certain amount of pro bono
work with the firm, and I’ve always strongly supported the Community Services
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Department and all the good work it does. I’m very proud of the fact that this firm,
not too many years after I came with it, decided to make a serious effort in this field.
As you know, it got John Ferren here to begin the department. Thereafter, the firm
has seriously supported the pro bono effort, both in terms of time and money.
Mr. Kapp: If you had to identify those instances of pro bono
representation, or what you’ve described as good works, in which you take the
greatest personal pride, what would you identify?
Mr. Prettyman: Well, in terms of being a lawyer, certainly the
gentleman in Florida whom we’ve kept alive for ten years now on death row. We’re
not through with that yet. I think that’s quite remarkable, and I do take pride in it. As
I have mentioned, I have gotten to know him and his family quite well, and the more
you become involved, even though the crimes were allegedly horrendous, the more
you see the other side, the human side of the people involved and how these things
can happen. You realize that it’s not just what you read in the paper, but it’s a very
human equation working itself out. And I’m quite proud to be involved in that. I have
also helped a number of youngsters, both financially and with the kind of quasi-legal
help that I’m just so pleased about. There was a young woman recently who had
always dreamed of becoming a policewoman. They allowed her to go to the police
academy, but after she was there for years they wouldn’t allow her to become a
policewoman because they claimed that she was just under five feet tall. Well, we
discovered several other policemen on the force who were just under five feet
tall and wrote a threatening letter, and she is now a policewoman, which is what she
had wanted all her life. And you know, there are a number of things like that you can
do with just a letter or a phone call sometimes. A young woman just recently after
going through high school was not going to receive her diploma or her records,
because the school authorities claimed that by living with her grandmother she had
avoided the out-of-state payment of school dues. We were able to work it out so that
she could get her records and go on to college. Things like that can really make a
difference in individual lives. It’s not as dramatic as the class actions that the law firm
sometimes files that have a dramatic impact throughout the country. But in terms of
personal impact, it is sometimes very effective, very impo1tant.
Mr. Kapp: I know that you’ve provided or help provide scholarships for
some youngsters and you modestly aren’t talking about that now. But I wonder if you
would give me some reaction to how you felt about that. How that all came about.
Mr. Prettyman: It came about as a result of the Street Law program, in
which the firm brings in inner-city high school students who visit the film and who
engage in moot courts and go to court. I believe very strongly in that program. I was
on the board of the early Street Law endeavor, and I’m working with them right now
as a matter of fact, trying to bring high school students here this summer
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from around the country to engage in a Street Law program. But in the course of
these students coming in many, many years ago [Laughter], I was particularly taken
with one young man who stayed behind after the others left and confronted me and
wanted to know what I really did, how much I was making, what car I was driving,
and a lot of things like that. He was a very interesting, intelligent young man, and so I
followed his career and discovered that he had no money at all and really no chance of
going on to college. So I set up a fund, and indeed he went on to college, went to law
school, and has just recently become a lawyer. And so I began that system from year
to year, not every year but picking up kids here and there who would come through,
and it’s been quite successful.
Mr. Kapp: And rewarding I’m sure -Mr.
Prettyman: Very.
Mr. Kapp: You have participated as counsel to, or as a consultant to,
various Congressional Committees or Congressional inquiries from time to time. I
know that you served as a consultant to the Senate Refugee Subcommittee in the late-
60 ‘s. I wonder if you could tell me how you came to be selected for that role.
Mr. Prettyman: This was during the Vietnam War. Senator Edward
Kennedy was on that Committee, and he felt very strongly that the Committee was not
getting the true picture of what was going on in Vietnam in regard to hospitals,
refugees, and things of that kind, so he decided to get his own group together: one
gentleman who spoke Vietnamese, John Nolan, with whom I’d been to Cuba, and
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one or two other people. And he talked to us many evenings about this, gave us
instructions, and then we flew to Vietnam. We were each assigned to a different
Corps, but as a result of others having to come home early, I was the only one who got
to all four Cores and really ended up doing the whole country. It was fascinating. I
ultimately got my own interpreter, because I did not trust the first couple of
interpreters I had. It was quite dangerous, we got shot at a number of times, but we
were able to gather a huge amount of information about what was really going on.
When Ted Kennedy came over, I spent 11 days with him traveling around, and we
were able to fill him !fl about everything that was taking place. As a result, he was
very well-informed, worked hard, and made a good showing. I may say that I went
over with an open mind about Vietnam, and I came back extremely cynical about the
whole endeavor. I simply felt that the generals and the diplomats were not giving a
fair picture of what was going on and that the whole thing was a disaster. I felt ve1y
strongly when I got back and have felt the same way ever since. That it was really
just a disastrous endeavor, the whole thing.
Mr. Kapp: Were there hearings of some sort?
Mr. Prettyman: There were, but not that I participated in. I was never
called as a witness or anything of that kind. I turned in a repo11 to Ted.
Mr. Kapp: And what, somewhat more specifically, were the findings
that you made?
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Mr. Prettyman: In the hospitals, for example, there were horrible
conditions and young children particularly were terribly damaged and were not getting
the care that they were supposed to be getting and that the public over here was
assured that they were getting. In terms of refugees, the idea that we were building
these refugee camps that people were happy in, that everything was on schedule, and
that everything was being done for them that could be done was simply false. The
place was a shambles, and people who were supposed to have roofs on their huts
didn’t have them, and people who were supposed to be at one place were at other
places. Some people_were starving to death and it was just a mess. So the overall
point was that the American people were not being given the facts. They were being
lied to about what was going on. In some instances, the generals themselves didn’t
know, but in other instances they knew but were feeling tremendous pressure to report
back not only certain facts, but that things were getting better — you know, that we
were killing more and more of the enemy, we were replacing more and more refugees,
and so on. When in fact it was just nothing short of a lie.
Mr. Kapp: Then, maybe 10 years later you wel’e selected as an outside
counsel to the House Oversight Subcommittee in respect of United States v. AT&T.
Mr. Prettyman: Yeah. That was a matter involving whether the
telephone company was sufficiently protecting the national interests when it placed
wire taps and other devices to intercept messages, and essentially we found that the
whole thing was being rather loosely handled. There were too many ways that
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supposedly private and confidential information could be released both to our enemies
and to people who had no right to the information. And so steps were taken that more
adequately protected the national security.
Mr. Kapp: How did you come to be selected for that role?
Mr. Prettyman: I’m sorry, I have no recollection [Laughter] It’s like a
lot of cases that you get, you never find out exactly how your name got on the list. I
really have no idea.
Mr. Kapp: And who were the House members with whom you had
contact in that?
Mr. Prettyman: I’m sorry, I’m drawing a blank. I just don’t recall.
Mr. Kapp: Then I know that several years later you were selected as
Special Counsel to another House Subcommittee in connection with the events that
led to ABSCAM. Can you tell us about that?
Mr. Prettyman: Again, I’m not sure how I was selected. But ABSCAM
involved the most extraordinary series of events, as I guess you recall. FBI agents
posing as foreign sheiks were meeting Congressmen in a house on W Street in
Northwest Washington and offering them $50,000 bribes to support legislation that
would allow the sheiks to stay in this country. A number of Congressmen accepted
the bribes, and they were charged with crimes and went to trial. I was representing
the House Ethics Committee, which had the problem of what to do with these
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Congressmen after they were convicted. They were still in Congress. The argument
was made that since their cases were ongoing, their appeals were pending, and
therefore they had not finally been adjudicated criminals, the House could and should
do nothing about them. But the prospect of allowing people to continue to vote on
legislation who had accepted $50,000 bribes was simply too much for the House to
absorb. And so I was instrumental in getting an interpretation of the Committee’s
Rules which allowed the Committee to bring sanctions against those who had been
convicted of a crime. We interpreted “convicted” to mean “convicted by a jury” as
opposed to “convicte?” in the sense that all appeals were exhausted and the cases were
finally over. So as soon as a jwy convicted, we held hearings, and I introduced
evidence from the criminal trials, and on the basis of that evidence the Committee
made findings and then voted various censures.
There was one particular Congressman from Pennsylvania who
happened to come up first, and the Committee voted to recommend that he be
expelled from Congress, which would have been the first expulsion in over 100
years. There were some dissenting votes on the Committee oh the the01y that he
shouldn’t be expelled until his appeals were exhausted, but the majority voted for
expulsion, referred it to the House, and I was in the well of the House on the day
that, as I say, for the first time in over 100 years the House voted to expel. I had one
interesting experience there. At the request of the Chai1man, l wrote the
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majority report favoring expulsion But the head of the minority came to me and
asked me if I wouldn’t write a dissent to my own report on behalf of the dissenters,
and I did. And when the vote was over in the Congress, I ran into one of the
dissenters in the men’s room and told him that for a while I didn’t know whether my
majority report or niy dissent was going to prevail. But that’s the first time I’d ever
had the experience of writing a dissent to my own work. The other Congressmen as
to whom we held hearings, instead of being formally expelled, resigned. A number
of them did, so we did not have to have an expulsion vote. In the end, there was
finally one Congress1!1an as to whom I felt hearings should have been held, the
Committee disagreed, and I resigned my position.
This concludes the interview held on February 11, 1997.