Earl Silbert Text of Interview

– 1 – TAPE I, SIDE 1 Oral History Project Historical Society for the D.C. Circuit Earl Silbert This is William F. Causey. This is February 29, 1992 and this is Part I of the Oral History Interview with Earl Silbert. We are conducting this interview in Mr. Silbert’s home in Chevy Chase, Maryland. We are alone by ourselves with the tape running and I am not going to be taking notes. Q. Good morning. A. Good morning. Q. How are you doing? A. Fine. Q. Earl, let me just start with some questions about your background. Where were you born? A. Boston. Q. What year? A. 1936. Q. Are your parents still alive? A. My mother is. Q. Does she still live in Boston? A. She does. Q. Tell me something about your ancestry. A. The grandparents of both of my parents came from Lithuania around the tum of the 20th century. My grandfather on my mother’s side was a rag -2- merchant. Really a peddler. He used to go from farm to farm and location to location with rags on his back. Eventually he became a very successful businessman. My mother was one of five children who grew up in Boston and went to Wellesley College. My father grew up in a family of two brothers and one sister. It was a very closeknit family. My grandfather was a doctor. He died when my father was 15. My grandmother was a very strong-willed woman who peddled coal and did everything she could to make certain that each of the children got a first rate education. And, they did. My father went to both Harvard College and Harvard Law School. He was always a very loyal alumnus of Harvard. It meant a lot to him. The family continued to live in and around Boston, although neither my father nor any of his siblings are now living. Q. What section in particular of Boston? A They lived in many places. They lived in what is now the North End. They lived in Roxbury when they grew up. They lived at one time in the West End. All of these various locations are within the city of Boston itself I was born in Boston. When I was five, we moved to Brookline which is a stone’s throw away from Boston and contiguous to it. That is actually where we grew up. My father’s other siblings spent most of their adult lives in Newton, which is another suburb of Boston. One of his brothers, though, lived in New York and Cincinnati. Q. Now, what year did your father pass away? A 1980. He was 87. Q. Did he serve in World War II? – 3 – A. No, he would have been much too old for that. In World War II, being born in 1892 – and we entered in 1941- so he would have been 49 years old. Q. Did he see World War I? A. I’m trying to think. You know I’m not sure I ever asked him that question. He would have been twenty-five at that time. I just don’t know why not. He was, a little later – for two terms – a legislator. A local Massachusetts legislator. He was in the House of Representatives. Q. What was his political party? A. He was a Republican. He was a staunch Republican. Q. Did that, was that an influence on you as a young person? A. Not really. Although I favored the Democrats, there was never any ideological dispute within the family. He was attuned to the Republican idealogy. I mean Republicanism, not so much on an ideological basis. Q. Do you remember what years he served in the legislature? A. I think it was 1921 and 1922. Q. How many brothers and sisters do you have? A. I have two sisters. One older and one younger. Q. Tell me something about them. A. The older sister went to Wellesley College. She is 3-1/2 years older than I. She married a physicist and has remained in Boston, actually living in Belmont. She has two daughters – one in the late 20’s and one in the early 30’s now. -4- She is very much interested in nature, birds, and gardening. She also is very much a grandmother now. The younger sister lives in Baltimore and has been there for quite awhile now – probably around 30 years. She even roots for the Baltimore Orioles. Much to my disappointment. She’s a real Baltimore Orioles fan. Q. So you’re a Red Sox fan? A. I still root for all the Boston sports teams that I grew up with: Red Sox, Bruins, Celtics. Baltimore. Q. Well, maybe the Red Sox will win a World Series next century. A. I’d like to see one while I’m still around. Q. Where exactly in Baltimore does your sister live? I’m from A. She lives right in the city in the Mt. Washington area. She has three children. She, herself, went into the Baltimore school system. She taught there and worked for an educational foundation. She then left education, went back and got a Masters in business and has been working with one of the Maryland banks. I think it’s Maryland National Bank, as an investment advisor, particularly in the area of stocks and investments. This is very interesting since my father had a great interest in the stock market himself You know I think there’s something there actually, whether it’s conscious or subconscious. Q. So your early school years were in Boston? – 5 – A. Yes. I went to elementary school in Brookline. We moved to Brookline when I was 5 so I spent my elementary years in Brookline. years? Q. What kind of student were you in say grammar school, the early A. Well, I did my homework and did all right academically. I loved grammar school. We had about sixty kids in our class. I’m friendly with some of them to this day. Q. What was the name of the school? A. Lawrence. Lawrence Public School. Q. Tell me the one teacher, if there is one, that had the most influence on you in grammar school. Can you think of one? A. Well, there were a couple. There was one teacher I had whose name I am having a little trouble with right now. She was the teacher in the third and the fifth grades. I kind of remember one incident when I referred to her as “mother.” That stands out in my mind. Then I had a great sixth grade teacher, a great seventh grade teacher in math; and a great eighth grade teacher in history. The school had real good teachers. It was an excellent school. Our daughters have gone to private school in which I think they have received an excellent education, but I must say I think I got as good an education in the public school to which I went. Q. Did you have a favorite subject? – 6 – A. Not at that time. Not really. They had very good instruction in English, history, math and the like. school? Q. What kind of things did you read when you were in grammar A. I was spoiled because my father used to go to the library and get books for me to read. I read like a demon. I read, not science fiction, but all kinds of novels and historical stories. A lot of books by, as I recall, Arthur Conan Doyle. Not only Sherlock Holmes but some of his other works. Sir Walter Scott. A whole variety. He must have emptied out that public library. We didn’t have a car in the early years so he used to walk up there to the library and bring back a stack of books. Q. Did your family travel at all when you were younger? A. Almost none. I was never on an airplane until I graduated from law school which for some in this day and age is almost unthinkable. Now we may take flying for granted and not think about it. But I never was in an airplane until I graduated from law school. We didn’t have a car until I was about ten years old. We did sometimes go to New York City over New Years for about three or four days at a time. I had a bachelor uncle who worked at the Federated Department Stores. He was an economic analyst and apparently a very astute one. He was, I think, a member of some government council on labor-business relations. He used to come to Washington fairly frequently. He is actually the one that paid for my education. We – 7 – had a summer place up in New Hampshire, a little cottage 50 years old, and he paid for that too. He was very generous. grade. Q. Now where did you go to, did they call it Junior High School? A. No, actually the elementary schools in Brookline went through the 8th Q. And then you went into High School? A. Into High School. Although I didn’t go to High School in Brookline. My father wanted to make sure I had the best chance to go to college. I was really a young kid at the time. I went off to Boarding School – Phillips Exeter Academy in New Hampshire. Q. Now how about your sisters? Did they also have that kind of? A. No, they both went to public high school. Brookline High School, which was an excellent high school. And, as I said, one got into Wellesley College and the other went to Radcliffe. I’m not sure there was any need to go to Exeter. I never thought about it at the time. I was a young 13 and much less sophisticated, for example; than our own children. It wasn’t even a question of wanting to go. Of course it was hard to get in. And, if you’re lucky enough to get in, you’ll go. So, that’s what happened. Q. So you got in. So I take it you were a very good student. A. I did reasonably well in school. Q. That’s in New Hampshire? A. Yes. Q. So you spent 4 years there? A. Yes. – 8 – Q. Tell me about those years. Did you have a memorable teacher? A. My favorite was one of the hockey coaches. I played ice hockey there. Both coaches were history teachers. The assistant coach was a teacher by the name of Mr. Bragdon, now deceased. I became friendly with his son, who was also a hockey player. He taught American History. He was a wonderful teacher. I was lucky enough to have him my last year there. He had such enthusiasm for his subject. He enjoyed talking, communicating about historical events and what went on. It was infectious. At least to me it was. Q. So history was your favorite subject? A. I don’t know that I’d really say that. I liked other courses as well. I at one time, thought I’d focus actually in math and science. But I concluded that while I did well academically in the subjects, I was not creative enough to be someone who might be able to make a contribution and do the work other than one does if one works and tries to apply yourself But in terms of having that extra something special, I didn’t either have the interest or the drive or the talent, or a combination of all three. But I enjoyed it. Exeter provided one with an outstanding education. The teachers varied. Some had less enthusiasm. I remember one who was very obviously disappointed or bored with being a teacher. I remember he talked about having tom – 9 – up and thrown his PhD dissertation into a river. The overall instruction or teaching at Exeter was outstanding. Q. What years did you go there? A. From 9th through 12th grades. Q. What years? A. 1949 to 1953. Q. You played hockey? A. Yes. Q. Did you play any other sports? A. Well, I played sports all the time but only, varsity hockey. soccer and baseball as well. Q. Then you went on to college? A. Yes. Q. Where did you go to college? A. Harvard. Q. You started in 1954? A. The Fall of 1953. Q. Did you enjoy Harvard? A. Yes. Q. Do you think you enjoyed it as much as your father did? I played both – 10 – A Probably. It was hard work and Harvard is a difficult institution in some respects. I was lucky because I knew a whole lot of people there. I knew people from the Boston area. Q. You grew up there? A That was like a school at home. Then I knew a lot of people from Exeter. The year I went to Harvard there were 75 graduates of Exeter that went to Harvard. So that made it easier in a sense as opposed to some students that might come from a midwestem town and did not know a solitary soul. So I was very fortunate. Q. Tell me something about your years at Harvard. Your experiences, favorite teachers, memorable events. A I didn’t have a favorite teacher at Harvard. Harvard is a difficult place. I have a daughter there now and she’s having some different experiences because she has worked closely with a number of her professors and teachers. I never did. The classes that I took tended, on the whole, to be large, more of lecture courses, although there were some smaller sessions that met once a week. I do remember a humanities course in which we studied St. Augustine, some of the Greek plays, Rousseau, Tolstoy, Dostoyevsky, and a variety of other great, wonderful authors. I had one teacher, actually two teachers in that course. One each semester. One was the Head of the Expository Writing that all freshman are required to take. He was a very good teacher. Very solid. He was considerate enough my third year in law school to hire me to teach – 11 – a section of the Freshman English expository writing course. The teacher I had the second semester, Professor Alfred, was a little reminiscent of the teacher that I had, Mr. ·Bragdon, at Exeter. While not as effervescent, you could tell from the way he reacted to the literature we were studying that he had a tremendous love and respect for it. He communicated that love and respect to me, in class. Q. Did you read a lot of Shakespeare? A. That’s hard for me to remember. It does not stand out as one of the works we read in that particular course. Of course, it’s hard for me to think of a humanities course without reading Shakespeare, but as we sit here right now, although I read a fair amount of Shakespeare at college in other courses, I’m having a little trouble remembering whether I read one in that humanities course. Q. Did you play any sports at Harvard? A. I played freshman hockey, and some JV hockey. I played a lot of intramural sports, as well. Q. No baseball? A. Oh, baseball. Soccer. Q. What position in baseball did you play? A. Outfield. Fielded left handed. Q. So you’re left handed? A. Yes. Left handed in sports. Eat and write right handed. Q. So you batted and threw left handed? A. Yes. – 12 – Q. And, were you a good player? A. I had trouble throwing. As a kid I dislocated my left elbow and eventually had to have an operation on it. And even still later it caused me to be turned down from the Army. In fact, I remember after the operation the doctor saying – I used to pitch when I was in grammar school – “You’re not going to pitch again.” As a kid that was a tremendous disappointment when I heard those words. I never really had very strong arm. I like to bat. Still bat. Q. Have a good batting average? A. I don’t know whether it was good or not. Q. Now, did you try and join the Service after you graduated from Harvard? A. No. Let me think. I’m trying to recall when I got turned down. When I graduated from Harvard, I went out West with two friends. We went to California and worked there for about seven weeks. We travelled around. When we came back, I was planning to go in the Army then. I had been admitted to law school although I had no intention of going at all. And, in my senior year at college, I was undecided what I was going to do. Q. You at least had to apply. A. I did that only because my father asked me as a favor to do it. Q. Okay. – 13 – A I applied to Harvard Law School. There was very little you had to do in terms of filling out an application. You only had to take the Law School aptitudes and send them a transcript. That’s what I did. In those days it was easier to get in than it is now and I was fortunate enough to get in, but had no intention of going. Q. So you did not go the year you were accepted? A I wound up going because when I came back from California, I had become interested in teaching. I had done some social service work at Harvard with underprivileged kids and I really enjoyed that. I was also inspired by Mr. Bragdon and thought I’d like to be a high school teacher. That’s what I thought I wanted to do. But, as I said, I had gone out West and came back, probably very early September, or laie August, thinking of going in the Army. And, then I decided not to do that. That was when Sputnik came out in 1957 and things were escalating a little and uncertain. And I wasn’t sure. While everybody had to do their service, I wasn’t sure that was the most opportune time. I decided to get a teaching job. It was rather late. I did talk to a couple of private schools because I didn’t have the required certificate of education for public school teaching. I was too late and nothing worked out. It came to the middle of September and I didn’t have a job and I had decided to put off going into the Army at that time. Since I didn’t have anything to do, I guess I’ll just go to law school. And, that’s how I wound up in law school. Q. So you started in Harvard in what, the Fall of 1957? A Yes. – 14 – Q. You say that previous summer you had gone out to the West Coast and travelled around? A. And worked for about 7 or 8 weeks. Q. Do you still keep in touch with any friends you had back in those days? A. From Harvard? Q. Yes. A. Oh, sure. I was lucky enough to have, as I say, friends in a variety of areas. You know there were different kinds of students that went to Harvard. There were the local group, say from around Boston, and I’m still friendly with a number of them. There were some jock types that I knew and was friendly with. A few from prep school. Some from the Mid-West – a number of engineers. I don’t see as much of them now, except at reunions. A number of students came from New York and I still maintain a friendship with them. So, yes. I go to my college reunions. I’ve missed only one and that was because of a real problem scheduling. now? Q. Do you have any friends from those days who practice law in Washington A. Let me see. Some, yes. There are not as many, for some reason, in Washington as elsewhere, such as Boston or New York. Q. Which one of your friends from either your high school or college or even law school days has turned out to be, for the lack of an expression, most successful? – 15 – A. Oh, that’s hard to say. You talking about law school too? Q. We’ll include law school. A. The law school class that I was in had some real stars. Mike Dukakis was in our class. We’re from the same hometown. I had not known Mike prior to going to law school. He was a couple of years older than I. But, we became good friends in law school. We used to play tennis together and have lunch in Boston Common when we both had summer jobs our second year at law school. We used to brown bag it and have lunch in the Common with several others. Bill Ruckelshaus was certainly extraordinarily successful. He has had an outstanding career. So, of course, has Senator Paul Sarbanes. Q. Anybody become a judge? A. Yes. Dick Arnold. I had gone to high school with him and then we were in law school together. I think he went to Yale College. He was a brilliant student. He was for awhile, a short term, a District Court judge and is now on the Eighth Circuit Court of Appeals. Paul Plunkett also became a federal judge in Chicago. I have a couple of my good friends who are professors at Harvard Law School. Phil Heymann, who was at one time Assistant Attorney General in charge of the Criminal Division. He’s been a professor at Harvard for a long time as has Frank Michaelman. Also Gary Bellow, who made a tremendous contribution here in Washington to the predecessor of the Public Defender Service, the Legal Aid Agency. He really, more than anyone, was responsible for developing or turning what was kind of a sleepy – 16 – agency, into an outstanding Public Defender Service. He set the tone really for what has been maintained to this day. He is now back at Harvard teaching primarily clinical courses in the poorer neighborhoods. He’s a truly devoted lawyer who has made immeasurable contributions to public interest law. Q. Now, you did not have a strong desire to go to law school? A. That’s probably overstating it. No desire. Q. Okay. No desire to go to law school, but you went? A. I went. Q. And, I assume you did well? A. Reasonably. Surprisingly to myself I did reasonably weli. Q. Did you become more interested in law while at law school? A. Well, yes and no. Q. Or was it a struggle to stay enrolled? A. Yes and no. I thought the classes, some of the classes were terrific. Not because the subject matter intrigued me that much. But there were some great teachers; particularly in using the so-called Socratic method of question and answer. Our sections had about 125 students in a class. In each of those sections there were probably half a dozen to a dozen very bright students, quick-thinking, who were able to keep up with the professor. I had to struggle to follow the exchanges and try to understand them. But it was really exciting, almost as an observer, certainly not as a participant, but as an observer, to follow the repartee. – 17 – TAPE I, Side 2 Oral History Project Historical Society for the D.C. Circuit Earl Silbert This is a continuation of the Oral History Interview with Earl Silbert, February 29, 1992, Part II. Okay, Mr. Silbert. A I had one professor who taught civil procedure. Now that’s hardly an exciting subject. I don’t mean any disrespect to any of the teachers of that subject. We all continue to wrestle with it, at least those of us that practice in the area of federal litigation. I laughed in his classroom from the moment I went in to the moment the class ended. I was never sure I understood a single thing that was going on, but he was terrific. In fact, I used to follow him around from course to course. It didn’t matter what the course was. If he taught it, I would take it. Q. So did that become your favorite subject in law school? A What, civil procedure? Q. Yes. A. Oh, no. I took a whole variety of courses with him. Administrative Law, Equitable Remedies, and I think state and local government. He later became Dean of the Law School. That was Albert Sachs. He passed away this last year, which was very sad to hear. He was a terrific teacher, extraordinarily bright, and a wonderful human being. Q. Didn’t he write that famous book on legal process with Hart? – 18 – A. Yes, I think it was Hart and Sachs. Q. Yes. Hart and Sachs. A. I never actually read that book. Dean Sachs, Professor Sachs, was a gifted teacher. He had back troubles later on that kept him in a lot of pain. Q. What made him such a good teacher? A. One, he was a brilliant man. He also had an extraordinary sense of humor. It’s hard to say what makes one person funny. But in talking about intellectual subjects and keeping up with a bunch oflaw students, he had a unique facility for doing that. And as part of the repartee that was going back and forth, he would make comments that were extremely funny. Q. So, did you have a favorite subject in law school? A. No. Q. During law school, did it ever, did you ever think or dream about becoming a public servant such as United States Attorney or a judge? What were your goals and ambitions as a law student? A I barely stayed in law school. I had no intention of practicing. Just as I had no intention of going to law school, I had no intention of really practicing law when I left. know? Q. What were you going to do when you got out of law school? Did you – 19 – A. While I was going through law school I really didn’t know. There was the Army. At some point I became 4-F. It may have been before I went to law school. Because I know I went down for my physical and they took one look at my elbow and said we don’t want you in the Army. So I knew I was not going to go in the Army at that point. I think I knew that while I was in law school. I was thinking of going into teaching. I was going to go through law school and then teach. Q. But not legal education? A. No. Not legal education. In the lower level. I continued to have that thought for a number of years even after law school. Q. Did you live at home while you were going to Harvard? A. No. At college I lived in the dormitories or houses that they have. In law school, the first year I lived in the Graduate Center. That was a very difficult place to live. People were very edgy about how they were going to do in law school. The competition was intense for a great majority of the students, and there was this fellow that really didn’t want to be there and was having a little trouble concentrating. The walls were paper thin. You could hear someone typing in the room next to you. My mind was on some other things. I worked hard because I really had trouble understanding what was happening. It was hard. Law school was difficult. Q. What year did you graduate? A. 1960. Q. 1960. Now up to this point in time did you have any interest in politics? events. – 20- A. None. Well, that depends on what you mean. I used to follow current Q. Did you work for any candidates? A. I was a member of the “Young Democrats.” Not a very active member, but I did some campaigning. I think the year Foster Furcolo ran for Governor I once went out and pushed some doorbells for the Lieutenant Governor that was on his ticket. Or maybe for both Furcolo and the Lieutenant Governor. But I wasn’t real active. Q. Were you a registered Democrat? A. Yes. One of the reasons I kept my registration in Massachusetts when I came to Washington, was that Mike Dukakis was going to be going into politics. Even at the local Brookline level I wanted to be able to vote for him, and kept my registration in Massachusetts until 1972. Q. Did you keep in touch with him after law school? A. Oh, yes. Q. Are you still friends today? A. Yes. Q. Did you work at all during law school? A. I did. I think I mentioned earlier, the summer of our second year of law school, I obtained a job in what was then a small Boston law firm by the name of Hemenway and Barnes. I’m trying to think of the size. I’m sure it was under 15. It was – 21 – probably about a dozen lawyers. I worked there with a classmate of mine, Roy Hammer. There were a number of us who used to meet in the Boston Commons to have lunch. Q. Tell me about your experiences after law school? What was your first job after law school? A. My first job was in the Tax Division of the Department of Justice. I had very much enjoyed working, enjoyed the people at Hemenway and Barnes when I worked there the summer of my second year but that kind of work wasn’t for me at that time. I knew that. I had decided that the only kind of work that I could do, without really knowing what it was, was working for the government. My father had worked for the government for many years. He worked in the SEC for probably 25 years. The only job that I applied for was with the Department of Justice. I was very fortunate to be accepted. I am not sure what I would have done had I not been. Q. Well, what happened to this teacher that got trapped into law school? A My last two years I had lived in a college freshman dormitory – I might not have· made it through law school had I not moved out of the Graduate Center. I moved into a college freshman dormitory to serve as, what they used to call, a Proctor/ Advisor which I really enjoyed. And then my third year, in addition to doing that, I taught a half-course of expository writing to freshmen at the college. I loved it. It was very challenging work. And very time consuming. Q. But you made it to the Tax Division of the Department of Justice? – 22 – A. I made it to the Tax Division. I thought I should live in another city for awhile. And, again, it was a very unsophisticated choice. I did not want to go to New York. In thinking what’s next down, moving south from Boston, because you can’t very well go north, it was Washington. The government was there and I applied to work at the Tax Division. Q. So, your first year out of Harvard Law School you were working in the Tax Division at Main Justice here in Washington? And you were in the Justice Department building? A. Yes. Main Justice. At that time almost everybody who worked at Justice, with one exception of people working in what used io be called the “Star” Building, was located in Main Justice. And, that’s were I was. Q. You started there in 1960? A. The Fall of 1960, just before the 1960 election. Q. How long were you at the Tax Division? A. 3-1/2 years. Q. So you were in the Tax Division of Justice during the Kennedy Administration? A. I was. Q. So, Robert Kennedy was your boss? A. He became the boss shortly after. I went to work there in September and he, of course, came in January 1961. – 23 – Q. So you started there, was Brownell still Attorney General? A. I believe Secretary Rogers. Q. Rogers. Tell me about your experiences in the Tax Division at Justice? A. I was a really very uninformed law school graduate. I thought I’d like to be in the Trial Section. I didn’t know too much about what trials were. I don’t think I’d ever really seen one before. They didn’t have much in the way of clinical education. I had been in the Legal Aid Bureau at law school so I had been in court a couple of times. But I was not put in the Trial Section. I was put in the Appellate Section. Actually, the Appellate Section of the Tax Division had a group of very talented young lawyers out of law school with whom it was a privilege to work and get to know. I’m friendly with a number of them to this day. They had some longer term employees who were putting in their time, some. But they also had a group of reviewers, who were more experienced senior people. They had been in the government for many years and were very impressive, first-rate lawyers. I learned a lot from them. there. Q. Who was Head of the Tax Division? A. Judge Oberdorfer. He was the Assistant Attorney General while I was Q. Did you get to know him well? A. No. I was at the lowest level there was and he was the Assistant Attorney General. I did get to know his Deputy, John Jones from Covington who is a – 24 – very fine lawyer and a very fine person. I got to know him somewhat. I was primarily in the Appellate Section but I had been assigned to the Criminal Division for about six months to do the most junior of work. Q. Well, what were you doing? Were you writing briefs? A. I was writing briefs on appeal and then arguing the cases. I did get a chance to go around. I argued in every circuit court in the country but D.C. and the Tenth Circuit. That was a great experience. Q. Do you have a memorable case? A. No, I don’t think so. I can’t say that there was any precedent shattering matter that I handled. I was not really a tax lawyer. I had taken the basic tax course at law school. But I was fortunate because in those days offices were crowded. In our office at Justice we had three lawyers and one secretary in one room. It was hard to concentrate. Q. I don’t think it has changed much. A. Probably not. But one of the lawyers, Dick Heiman, had gone through the NYlJ graduate program in tax. He knew tax. This was of a great benefit to me because I knew very little tax law. When a problem would come up, he was very helpful. Q. Well now here you were a young Harvard Law School graduate in Washington, Democrat by persuasion. Did you get caught up by the Kennedy era in Washington? Did you get involved in the social set of the Kennedy life? – 25 – A. No. I can’t say that I did. I watched it and observed it as did so many others. I was not in those circles. I was a bachelor lawyer. had? Q. But you had all the entry cards, Harvard, Boston? A. But I wasn’t very political. Q. What would you do during your spare time? The spare time that you A. Trying to get to know the city. I was a bachelor. I was dating and making friends. I also became very involved in working with underprivileged children. Q. Where were you living? A. Georgetown. Q. There’s another ingredient, and you missed it, huh? A. That’s right. Actually, I had a great time. I lived in 2 or 3 houses during my bachelor years in Washington, in Georgetown, and had some good times. I also had a sense of accomplishment from tutoring, sports, and other work in the inner city. Q. So what did you do when you left Justice? A. Well, I had been in the Appellate Section of the Tax Division. Before I left the Appellate Section, I had begun to think about teaching again. I took some courses at George Washington University of the kind that you would need to get a teacher’s certificate. And, I went at least for a year. I know I took courses at least two semesters, and it may have been three. Q. And, this is while you were at Justice? – 26 – A. Yes. One of my courses required me to go sit in a classroom and observe. I think I went to Coolidge High School. But I didn’t complete it. I’m not sure exactly why. About nine months before I left Justice, it was at least nine months maybe a year, I had been in the Appellate Section and I had other friends who were in the Trial Section. I can’t say I had a great desire to be a trial lawyer but I thought I ought to learn something about trying a case. Now the lawyers in the Trial Section in the Tax Division at Justice traveled all the time. They would have to go out to the districts where they would have their cases and they would be gone for long periods. For your Appellate arguments, they were short trips. I had thought about transferring to, seeing if I could transfer to the Trial Section of the Department but I wasn1 t enihusiastic about that. I had a friend down in the U.S. Attorney’s Office, Dick Coleman, a classmate of mine and a friend. He said, why don’t you come over and try some cases at the U.S. Attorney’s Office? I didn’t even know what a U.S. Attorney’s Office was. I probably had heard the name before but in terms of knowing what it was or what it did, I didn’t have the foggiest notion. I certainly had never thought of being a prosecutor. That was not a thought that had ever crossed my mind. I had an uncle who was a defense attorney, a good one. But I thought I’d go over there and apply. Q. When was this, now? A. I went over there in 1963, because I joined the Office in March of 1964. I had to wait about nine months. After they told me they would take me, I had to wait nine months for a vacancy. – 27 – Q. So you stayed at Justice and when the opening came up in the U.S. Attorney’s Office you went to the U.S. Attorney’s Office? A. Right. Q. Where were they located at that time? In the Courthouse? A. The U.S. Attorney’s Office? Yes. The main office was in the Courthouse. The person I had interviewed with was Charles Duncan who was the first or principal assistant. He was as he is now, a real gentleman. I have always been very grateful to him because of the fact that he was really the one that offered me the position. Q. Now who was the U.S. Attorney at that time? A. Dave Acheson. Q. But Charlie Duncan was the person who interviewed you? A. Yes. Q. Basically got you in the office? A. Yes. Q. So you went in the office sometime in 1964? A. Yes. March. Q. You left Justice behind? A. Yes. Q. And you became a prosecutor? A. I did. – 28 – Q. Now, how did the young man who didn’t want to go to law school and almost flunked out and A. I didn’t quite flunk out, but I was hardly enthusiastic about being there. Q. How did this person become a prosecutor? Did you enjoy it right away? Did you finally decide that this is what I want to do? A. I had absolutely no knowledge of what prosecutors did in any realistic sense. I didn’t consider myself as being a prosecutor, whatever that means. I was assigned to what was then called General Sessions. Tim Murphy was the Chief Bill Pryor was the Deputy Chief There were about ten people in the Section. We had one secretary for all ten lawyers. She was actually Tim Murphy’s secretary but she would help out for everybody else. Most of us would sit in what they used to call the bull pen. About seven or eight of us shared a room. Those more senior were lucky enough to have a desk. And, there was a counter. This was in what is now Building A in Judiciary Square on the comer of Fifth and E Streets. The next nine months were the greatest experience one can ever have. And maybe the best I ever did have. Q. Why is that? A. It’s hard to describe. It was a very human, people oriented experience. We sat behind a counter that separated us from all those who came to the office. A high counter, probably 3-1/2 feet – no more – 4 feet. Police officers, victims of crime, people who might be accused of crime, even defendants were on the other side. There was the extraordinary human experience of sitting behind the counter and listening to – 29 – citizens’ complaints, people coming in and wanting to have somebody arrested. A lot of them were husband and wife or boyfriend and girlfriend. They were sad but they were also fascinating to hear. Many involved terrible family situations for which there appeared to be no solution. other citizens’ complaints involved landlord/tenant problems, and petty thefts, and the like. Meeting police officers was a new experience. I’d never known any police officers. Some were good, some were average, and some were not so good. There was a great group of prosecutors to work with. By persuasion, the clear majority had a liberal Democratic philosophy. Yet prosecutors were often thought of as being conservative folk. But that was not the basic philosophical orientation of our group. Q. Well here you had spent a number of years representing the United States in all the various federal circuits and now you’re looking over this counter at landlord/tenant problems, and husband/wife problems. Was it a let down for you? Did you have problems adjusting to that? A. Nothing like that. When I was in college I had done work in settlement houses in some of the underprivileged areas in Boston. And I had done a lot of that work when I first came to Washington. There was a small group of us, about five, who formed an organization called “The Metropolitan Athletic Association” and then it became “The Metropolitan Athletic and Educational and Cultural Association,” to try and help underprivileged kids in D.C. We ran organized basketball leagues and softball leagues. We once had 28 teams in our basketball leagues. We would try to get – 30 – kids that were not otherwise playing on teams to get them off the streets, get them doing something constructive. One of our group, I don’t know how he ever did it, obtained a grant, some funds for a summer camp for these kids. Somewhere in Spotsylvania, I believe. It took a lot of work. You asked me how I spent my time. My first few winters in Washington, I used to spend every Saturday in the gym. From 9:00 or 10:00 in the morning until 5:00 in the afternoon, because I was running our organization’s basketball leagues. I even wound up having to referee some of those games – that was a challenge. It was all volunteers. I used to get friends of mine to coach some of the teams. It was hard getting referees. I had played playground basketball, but very little formal. These kids were good basketball players. Sometimes it got a little touchy out there, making calls or failing to make calls. When I was in the U.S. Attorney’s Office, I saw a few kids come through that I had seen play basketball in our leagues. I actually was able to help out some. While I was here, in addition to running these basketball leagues, I had participated in a group that did social/recreational work at the Richardson Housing Project on East Capitol. Then I tutored for five years, all in that same area. Working in General Sessions was tremendously exciting from a human point of view. I took to it very readily. I loved it. Q. So you basically worked out of Building A? A. Yes. Q. Now, do you remember your first trial? – 31 – A. I remember my first non-jury trial. It was a petty larceny case. I haven’t thought about this now in 25 years. It was before Judge Kronheim. There was nothing unusual that I recall about that particular trial. Someone stealing a machine tool out of a garage. I probably had written out every question that I was going to ask. Oh, no, I couldn’t have written out every question because you never had time to do that. I feared I would be unable to ask one question after the next. I could ask, “What is your name?” But beyond that, I wasn’t sure what the question was or how to formulate or phrase the words. – 32- TAPE II, Side I Oral History Project Historical Society for the D.C. Circuit Earl Silbert This is a continuation of the Oral History Interview with Earl Silbert on February 29, 1992. Earl, I believe my question when we broke was: Q. Did you obtain a conviction in your first trial? A. I think I did. I haven’t thought about that first trial in a long time. That’s why I hesitated. I certainly remember the first case I lost. What I tend to recall more than the cases I won are the cases I lost. Q. Tell me about the first case you iosi? A. It was a case before Judge Kelly. As I recall it was a theft from an automobile. I did think about it a lot at the time. I thought I had proved an air tight case in the sense that I had a witness, a neutral observer who saw the defendant prior to taking or removing the item, or breaking in or damaging the car, whatever the charge was, either theft or damage to the car, during the offense, and after the offense until the lime the person was arrested. How could you lose a case like that? The defense attorney, who was a regular practitioner in the courts, Charlie Schafer, asked the witness whether she could remember whether the defendant had a hat on or not. She couldn’t remember one way or another. He just kept pounding away at the fact that she couldn’t remember whether the defendant had a hat on. And, low and behold to my surprise, Judge Kelly found the defendant not guilty. I was taken aback by that. – 33 – Q. What lesson did you learn from that case? A. I learned that sometimes in the defense of a case, defense counsel, if they really focus or harp on some particular fact before a judge or a jury may, with enough vigor and expression of belief in their cause, produce a result that at least seemed to me to be not called for by the facts. That lesson, amplified and modified in various forms, is something I noticed as a prosecutor throughout the years. I’ve also seen it as a defense attorney. Q. Now, let me focus my next line of questioning. Let me focus on those first years as a prosecutor. I want to ask you to talk about your recollections about events and people during that time period. Let’s start with people. Tell me about some of the judges you were in front of. Memorable trials or experiences. The judges that you thought were tough. The judges you thought were good. The judges you thought were not so good. What were some of your recollections of judges? A. It was hard on any one day, and I don’t mean this in the negative, not to come out with some experience worth retelling, some unusual event. Sometimes that might be when you were not in court but the trials or the courtroom experiences were simply unforgettable. Some of it was attributable to the defense attorneys, a number of whom were characters. Some of it was attributable to the witnesses, the victims, or the defendants. And not an insignificant portion was attributable to the judges because at least the judges who sat more on Criminal, tended to be a varied, highly individualistic group that had their own personalities that were very pronounced in the way they – 34 – conducted themselves on the bench. A lot of times you never knew what was going to happen. It was a tremendous learning experience but it was also a great living experience, having been in their courtrooms. Q. You would go in front of pretty much the same judges all the time? A. I can’t remember the exact number of judges who were in General Sessions at the time. There might have been 15 to 20, something of that number. But there were usually 4 or 5 that sat more in Criminal. There were others that came through but there were 4 or 5 who were there more often than others. Q. Were there some judges who got to like you? Or, to the contrary, did you sense there were some judges who weren’t very happy about seeing you walk in with a handload of files in their courtroom? A. I wasn’t aware that there were any of the latter, that is the judges that didn’t like me. I hope not. At least, I never had run-ins with the judges. As many another assistant, I had some maybe embarrassing moments in front of judges because I obviously was a young trial lawyer and we all make mistakes, even to the present time. But I probably made, not probably, I made a lot more mistakes in those days. A couple of the judges, and one in particular, were not hesitant to point that out. You took your licks. I took my share of licks. Q. How long were you prosecuting cases in General Sessions? A. My first term there was 9 months. That was the highlight in a way. I then later came back and was a Supervisor, the Deputy Chief of that Section for about – 35 – a year. I was not in court as often during that particular year as I was the first 9 months when I was in court all the time. Q. How about some of the defense lawyers you were up against? Do you have any memorable moments with defense lawyers? A. I’m trying to think. They were, in their own ways, as very much characters in some respects as some of the judges were. Bill Bachrach, Charlie Schafer, Bill Tinney, may he rest in peace, Millard Marshall, Mr. Meekins, and Mr. Pekins. I remember Bill Pryor, Judge Pryor, when I was going to negotiate my first case at the counter with a defense counsel, said, “Well, there’s Mr. Pekins,” who was a kind of easy going and not very aggressive, “You ought to be able to handle this kind of negotiation.” The attorneys were well known. Some were good and of course the legal interns and the Public Defenders or Legal Aid Agency were very good. Q. All these cases that you were handling were in the mid-60’s and, as we know, Miranda came down in 1966 and many of the criminal procedure cases in the so-called “Warren Revolution” didn’t come down until the late 60’s, do you think that the maruier of dispensing justice back in those days was better or worse than what you saw later as a prosecutor in the U.S. Attorney’s Office? There was a different kind of justice in those days. I think we can agree. How do you think it compares to today? A. In some respects, there was a rougher kind of justice then. The judges in Superior Court today, have greater responsibility in the sense that they are not trying only misdemeanors and small civil cases, which is the only jurisdiction that the judges – 36 – had in General Sessions in those days. The fact that Superior Court is a court of general jurisdiction, is designed to attract lawyers with more extensive experience who will be challenged by the variety of the cases they hear. That was one of the purposes of the Court Reform Act of 1970. I had the opportunity to participate in the drafting of that legislation. I think it has worked well. The variety from Superior Court being a court of general jurisdiction, the improvement in the process for selecting judges, and the longer tenure of the judges, have resulted in a good bench. So in that respect there has been some change. Not that there were not good judges in the Court of General Sessions. Austin Finkle was a judge before whom I tried a lot of cases. I thought he was great. He later was promoted to the D.C. Court of Appeals. There were, of course, other good judges in General Sessions. The idiosyncrasies of some of their colleagues did make for memorable courtroom experiences. Q. There is a growing school of thought that within the last several years the judges who have been appointed to Superior Court are just too young and inexperienced. And then, it may a function of the economy, or way that we go about selecting·judges today, but we’re putting judges on the Superior Court who have hardly tried cases. A. That is a mistake. I believe the problem is not as much that appointees have not tried cases, but it is the kinds of cases they had tried. I think the greatest weakness, in the selection process through the nominating commission, has been the failure to attract experienced, leading lawyers from the private bar. While most of the – 37 – appointments have been good, there have been too many that have come from government service or with either no experience or insufficient experience in representing, in handling more complex cases, whether it be in the tort area, contract area, business area or the like. Nor do they have a large number of fellow judges who have had the lawyering experience. Some of the initial appointments, Judge Bill Stewart is one and also some others, did have that experience. If you have a motion for a temporary restraining order on a business matter, there is some comfort if the presiding judge knows the language or has had experience as a practitioner or judge with the area of law so that he or she has a background against which to evaluate the case. Some of the judges don’t. You have to have a balanced court. A court of general jurisdiction handles a wide variety of matters. Judges should have a broad variety of backgrounds. In terms of age, I’m vacillate about that. At one time I was not very much in favor of appointing judges that were too young. I thought that a judge ought to be at least in his or her mid-50’s. I’ve changed my mind on that. I am worried about appointing judges for courts of general jurisdiction or for that matter what judges on the district courts and the federal courts of appeals in their mid-thirties. That’s too young to really have the maturity, not the intellectual ability, but the maturity and the judgment that I think judges ought to have. But I do not believe that all judges have to be in the mid-fifties. The reason for my change of view, favoring some appointments of judges in their early or middle forties? All judging can be hard work. But the judging in the Superior Court is particularly hard because the volume is so great and the cases – 38 – keep coming to judges in Superior Court in almost a relentless fashion. I think it’s very tiring. The idea of kind of retiring from private practice to the Superior Court, or to any court, but certainly to the Superior Court, is not good. The demands, in terms of the numbers alone, are too great. Q. Let me go back to when you were prosecuting in the mid-60’s. How did you react to the criminal procedure revolution that the Warren Court brought about in the mid-60’s? You were right in the middle of the fire? A. We were. It was not only the Warren Court but it was the U.S. Court of Appeals which was very controversial in those days. All cases from the Federal District Court were appealed directly to the U.S. Court of Appeals- and at that time in the 60’s before court reform, all felonies were tried in the United States District Court. There was no jurisdiction in the Court of General Sessions to try felonies. For misdemeanors, the jurisdiction went to the local Court of Appeals and then by writ of certiorari in a sense to the U.S. Court of Appeals which for D.C. was really the court of last resort. The Chief Judge during that time was David Bazelon. Judge Skelly Wright was also· on the Court with some other judges with a similar philosophical outlook. There was a tremendous ideological split on that court, even sharper than it was on the Supreme Court under Chief Justice Warren. Many of the Assistant U.S. Attorneys hired in the early and mid-1960s had a more liberal philosophy. But Assistant U.S. Attorneys became very victim oriented. I don’t think there was hardly a one ofus that was not concerned that some of the decisions coming out of both the Warren Court – 39 – and the U.S. Court of Appeals did not reflect an accurate balance in the interests of the defendants and the victims. In fact the pendulum at that time had swung too far in favor of the accused. I certainly felt that way and so did most, if not all, of my colleagues. Q. Were there any particular decisions from the Warren Court that you can think of that would make you say that? A. It was probably more the application as opposed to the principles. I know Miranda was a hotly disputed issue at the time. Q. How about the “search and seizure?” A. Search and seizure was a very troublesome area because of the fact that there you were suppressing evidence that usually indicated guilt beyond question and, therefore, a guilty person was going free. From the prosecutor’s perspective with a victim in mind, seeing that happen was very upsetting, particularly if it was a murder or a robbery or a rape, and the defendant might then be placed out in the community at large with a fear that he would commit another crime. So the search and seizure area was prooably the most controversial. As to Miranda, a number ofus in the U.S. Attorney’s Office weren’t altogether confident with procedures used in the states or by certain police to extract confessions. In D.C. from what we could observe, we had a fairly up to date police department and the U.S. Attorney’s Office was pretty vigilant in screening cases. So we did not see that as a major problem for D.C. and therefore worried about Miranda because we thought that perhaps some good confessions would – 40 – be thrown out and, as a result, a dangerous person set free again. That was very troubling to a great number of us who worked in the office, and I certainly shared in that ·concern. Q. You were doing simply trials, trial work at this time? You weren’t doing any appellate work? A. No, I didn’t do any appellate work at all. People were supposed to rotate through the Section but I had already spent 3 years doing appellate work in the Tax Division. Q. Tell me your elevation through the U.S. Attorney’s Office. The various positions you moved to and the years that you did that. A. I joined the office in March of 1964 and I stayed in General Sessions for about 9 months to the beginning of 1965. I then went over to the District Court to work for Oscar Altshuler in what was called the Special Proceedings Section of the Office. It was a small Section headed by a wonderful person – very quiet, very unassuming, very knowledgeable person. The Section handled unusual-proceedings: extraditions, mental health hearings, collateral attacks on convictions. I was there for close to a year. I learned a lot oflaw in the insanity area from the mental health hearings and motions for release of those committed to Saint Elizabeth’s Hospital after insanity acquittals. I also learned some law on collateral attacks on convictions. I also had the chance to appear before a number of the judges. Q. In the District Court? – 41 – A. In the Federal District Court. I then returned to General Sessions in early 1966 to work as the Deputy Chief to Tim Murphy. There were a wonderful group of Assistant U.S. Attorneys there and working for Tim was a special privilege. I stayed in that position for about a year. That’s when I first came into contact with Harold Greene, who was a trial judge and then Chief Judge. Some of the other judges who came on during that period of time became controversial – Charles Halleck and a former Principal Assistant U.S. Attorney, Harry T. Alexander. And a number of the other judges as well. Q. What made them controversial? A. I suspect not only the rulings that they handed down but the manner in which they conducted themselves on the bench. Q. Did those of you in the Prosecutor’s Office formally or informally complain about that behavior? And if so, to whom? A. No. I don’t think there was any formal complaint. As Deputy Chief, I would hear a lot of complaints from Assistants who appeared before the judges. Now, you always have to take into consideration the fact that any advocates, particularly if they lose, may be frustrated. That was certainly true of Assistant U.S. Attorneys, and I would include myself among them as well as any other advocate. So you always had to discount certain aspects. But to me judicial temperament is very important for a judge. The vast majority oflawyers in my experience from all walks of the bar take their responsibility seriously in advocating a cause. Some may have less skill than others, – 42 – some have greater skill, some may not be advocating a cause that appears to the judge to be the right cause, but it’s usually in good faith. Treating advocates with respect, just the way that advocates treat the court with respect, is an important responsibility. I consider that an extremely important part of judging. Q. How long were you Tim Murphy’s Deputy? A Tim became a judge in General Sessions in the latter part of that year. And then Joel Blackwell, who was one terrific trial lawyer in the District Court and had been for many years, came over to serve as his successor, as Chief Q. You continued to serve in the capacity of Deputy? A Yes. Q. How long did you do that? A A few more months until I then went over to the District Court Grand Jury Section. When I say District Court, there was only one grand jury section and that was in District Court because, as I said before, the Court of General Sessions didn’t have felony jurisdiction. Q. When did you move over to the District Court Grand Jury? A The early part of 1967. Q. Who was the Chief? Was the Chief Judge still in charge of Grand Jury proceedings? A Yes. Q. At that time? A. Yes. Q. Who was the Chief Judge? A. Matt McGuire. – 43 – Q. So you appeared quite a bit before Judge McGuire? A. No. The Chief of the Section was Don Smith who later became a Superior Court Judge. A very accomplished trial attorney. So I really did not have a whole contact with either Chief Judge McGuire or his successor, Chief Judge Curran. I had some but not a whole lot. Q. How long did you stay in Grand Jury? A. Probably six months and then I went to the Trial Section. Q. In the District Court? A. Yes. Q. Do you remember your first trial in the District Court? A. I’m not sure I remember the very first case. I remember two cases. One I was assigned at the last minute. Under the master calendar system you could be assigned· a case at the last minute. In General Sessions you almost never prepared a case. You tried them off the cuff and it was an extraordinary experience. But I got a case in the District Court. It had been tried once, ten to 2 for conviction with a hung jury. The prosecutor, Bill Davis, had a schedule conflict and I was asked to try this case. It was before Judge Keech, before whom I appeared a number of times. He was a very fine trial judge. It was a very serious assault. Somebody had shot four people, – 44- two seriously. The lawyer for the defendant was a retained lawyer but a tax lawyer who was not experienced at trying cases. He asked some very dangerous questions on crossexamination in that case and he got hurt very badly. I was worried about that case because I wasn’t sure the defendant had done it. The Government had good evidence but there was something about it that bothered me. I remember calling the defense attorney at midnight one night to bring something to his attention that may have been of benefit to the defense. This was rather unusual for opposing counsel-to do but I was worried. The jury had no trouble convicting. If the defendant did it, he should go to jail and receive a substantial sentence. He had no prior record, never been arrested before. I asked the police department to authorize the detective in the case to go out of town to conduct a further investigation to see if there had been something that was missed. He was a good detective. He said he couldn’t find anything. I must have mentioned it to Judge Keech because I remember Judge Keech calling me up and asking if we found anything? I said no, we did not. I had asked, and it was very unusual to get the police department to agree for any police officer to travel anywhere. I think the defendant got 20 months to 5 years. For the crime this was not unmerited. It was a fair sentence. It was not a harsh sentence, because the person shot four people, two seriously. I still think about that case. I’ve thought about that case throughout the years because of my reservations about it. Q. Who were some of the other judges you appeared before in those days in District Court? – 45 – A. I tried a lot of cases before Oliver Gasch. A lot. Q. Now he was a former U.S. Attorney? A. Yes. I thought Judge Gasch was a terrific trial judge. You felt very professional in his courtroom. He himself loved to try cases. He conducted a very professional courtroom and the lawyers, as a consequence, acted in a professional way. That was the right kind of tone to have. I lost cases in front of him and I won some cases. He ruled as he thought appropriate, and he was an experienced jurist. I very much liked trying cases before him. Q. Who were some of the other judges you remember? A. Let me think. I appeared before Judge Youngdahl, Judge Spottswood Robinson, Judge Matthews, Judge Bryant, Judge Aubrey Robinson. I tried a fraud case with phony checks and all. Q. What type of judge was he on the bench? A. He was in charge of the courtroom. He also knew what trying a case was about, how to conduct a trial. It was very professional and very serious, as it should be in the co\.lrtroom. A good trial judge. Q. Did you prefer to have a trial judge that took control of the courtroom? Or would you rather be in control? A. Well, I’ve seen both. I probably fall in the middle. As a prosecutor, I preferred to have the judge in control because I thought that there was more that a defense attorney might be able to get away with, doing something that trial lawyers – 46 – know you shouldn’t do in front of a jury. Prosecutors face the risk of reversal but the prosecution can’t appeal so I thought it was more important for a judge to maintain control. I have seen a couple of veteran prosecutors, phenomenal trial lawyers, who dominated the courtroom. Vic Caputy was one. When he was in the courtroom, there were very few judges who could prevent him from dominating what went on. And Joe Lowther was another. They had a presence, a personality, a voice – all contributing to domination. When they were in the courtroom, they were the principle figure in that courtroom. They were great prosecutors. Q. How about some of the more memorable defense attorneys during the late 60’s when you were in District Court? Let me throw some names out. Edward Bennett Williams, did you ever have cases with him? A. I never tried a case directly with him. I had a number of dealings with him and he, of course, was a very tremendous advocate. I had the initial stages of a case with him that didn’t go to trial. It was a highly publicized celebrated case at the time. Q. What case was it? A. Ed Williams represented Heidi Fletcher, who was the daughter of the former Deputy Mayor. She had been arrested with two others for two bank robberies in one of which a police officer was killed. It received extensive publicity for two reasons. One because she was involved, with no prior record of any kind and because both her boyfriend and the second male were considered hippies. They were robbing – 47 – banks in Northwest. The case caught the fancy of the press, and certainly The Washington Post. I tried that case against the two males, which had some fascinating . . insanity aspects to it. Ed Williams represented Heidi Fletcher, who eventually pied guilty before Judge June Green. He was very able. He could get more conferences before a judge by having an important matter to address. The next thing I knew I would find myself in chambers before the judge and some matter was being discussed. That rarely happens in other cases. But he was able to accomplish that. Bill McDaniels, from the same firm, worked with him. Bill’s a very outstanding lawyer himself It was a very difficult case for all: the U.S. Attorney’s Office, the defense, and the Judge. Q. How about Jake Stein? A. I never had a case against him while I was in the U.S. Attorney’s Office. Of course, he is one of the best in the profession. Q. How about Bill Bittman? A. I first met him in the Watergate case. Q. So you didn’t have anything with him before Watergate? A. Not before Watergate. He’s a formidable adversary. Q. How has the District Court changed over the years from the late ’60’s when you were prosecuting cases there? A. The biggest change in the court has been its jurisdiction. In the late ’60’s, when I was there, it served as the court of general jurisdiction for the District of – 48 – Columbia, handling the major civil litigation, the probate litigation, and all the criminal felony litigation. In the late ’60’s Washington was going through a period when it was theri considered the crime capitol of the country. It was the focus of a tremendous amount of tension. There were murder and rape cases that received tremendous publicity and interest, that were regularly being tried in that court. So it’s a very different court in terms of the kinds of cases that they had then from what they have now. It’s night and day. Q. You said you participated in the Court Reform? And that was in 1971? A I did. I left the U.S. Attorney’s Office in the spring of 1969 and went to the Department of Justice and that’s when the work was being done on that legislation until it was enacted in 1970. Q. Who got you involved in that? A Don Santarelli. Q. What exactly did you do? A Don Santarelli was an Associate Deputy Attorney General and there were several of us, most former Assistants, who worked with him in drafting that legislation. It was enormous effort because it not only provided for the court reform, which was a huge undertaking in and of itself, but also contained numerable provisions relating to criminal procedure. Q. Who else did you work with on that project? – 49- A Don Santarelli was in charge. Mary Lawton, who was not a former Assistant but had been in the Department for years, is a genius. She probably did more of the actual drafting of the court reform than anyone. She was in the Office of Legal Counsel. Judge Sylvia Bacon was part of the team. Judy Rogers, who is now Chief Judge of the D.C. Court of Appeals, was part of the team. Tom Lombard and then Carl Rauh, who became first Principal and then U.S. Attorney, were also members. Q. Were there any results from that project that you either strongly supported, encouraged to be enacted or that you disagreed with? A. The Court Reform Bill providing for the changing of the jurisdiction of the courts was a monumental change in the District of Columbia. I’m not sure that it received the attention from either the Bench or the Bar or the legislature that it should have. The reason it didn’t was the criminal procedure provisions that accompanied it. They received most of the publicity. Pre-trial detention, no knock, and wire-tapping were the three major issues. The first two received the lion’s share of the attention. The Court Reform, which was far more comprehensive, and was plainly going to have a far more profound, long-range effect in the District of Columbia sailed through the Congress. This showed how major issues can be sidetracked in light of something else that seems to catch the popular fancy at the time. Pre-trial detention was vigorously opposed. Q. How did you feel about it? – 50 – A. I favored it. I favored the Bill as written because we had put in significant due process and other protections and made the statute very difficult to utilize, recognizing the opposition. It could be used only for certain categories of defendants with strong proof and established prior records of dangerousness. The irony was that, when I left the Department shortly thereafter at Judge Flannery’s request to come back to the Office and help implement the provisions, I set out very stringent rules for implementing pre-trial detention. I had to authorize every case. And since constitutionality was going to be an issue, I planned to participate in every case in which the issue might arise. Both then and when I became U.S. Attorney, the Office used the provision pursuant to these stringent rules, sensitive to the opposition to its enactment. The irony is that when I became U.S. Attorney, the mood – the public mood and the press mood – changed dramatically. – 51 – TAPE II, Side 2 Oral History Project Historical Society for the D.C. Circuit Earl Silbert The shift was very much in favor of the victims of crime and not so sympathetic toward the defendants to the point where the Office, and me personally, were being criticized for not using pre-trial detention enough. That was a 180, a total reversal of the prior opposition alleging that pre-trial detention was repressive. This was a lesson to be learned of how popular moods and the press can have an enormous influence on what public servants do and what they should do. Q. How about the no-knock provision? What was your position on that? A. That was a little more worrisome. The no-knock provisions, which the Justice Department had recommended were only codifying what was the case law at the time. But the no-knock was an emotional issue. The public perception had an enormous influence because no-knock meant to many police barging through peoples’ doors in the privacy of their homes. This is understandably a frightening concept. The no-knock provision was supported as a procedure which courts had authorized for extraordinary circumstances. I joined in that support. What surprised me was the extent to which it was blown up as a provision that would create a police state when what it did was to put into a statute the exceptions the cases had allowed to the rule that ordinarily the police had to knock and announce. Moreover, at least in my experience as a prosecutor, there would be very few instances the Government in – 52 – Court would rely on these exceptions. In fact, that proved to be the case and no-knock never became a controversial issue after the legislation was passed, because there were very few instances where there were no knocks. But again, it could be blown up and was blown up as a scary proposition and did cause people to fight and oppose the legislation at the time. Q. I imagine it was difficult to be a prosecutor in Washington right after the assassination of Martin Luther King with the riots. What are your recollections of those days? A I remember them very well because the former U.S. Attorney, Dave Bress, asked Harry Sullivan, who was one of the greatest Assistant U.S. Attorneys, but who died a premature death in the Office, to head up a unit to coordinate with the police and I was asked to be part of that unit. We worked with the police during the riots. It was when I first met Jerry Wilson, I believe. Q. Who was Chief of Police? – 53 – A. No, he was Deputy Chief He was not Chief at that time. He became Chief within a year but he was not then Chief John Layton was still Chief Under Dave Bress’ direction, the charges against those who were caught stealing were very stiff I think it was part of a policy that was formulated to deter rioting and stealing. Cases that might otherwise have been charged as misdemeanors were prosecuted as felonies. I tried some of those cases and lost some. The problem was that by the time the police got out into the streets and with sufficient force, a number of the persons that were arrested were those who had come along late. They were not the instigators, the leaders. They were people who were followers. A number of them did not have prior criminal records. They were not people that you would say “were criminals,” whatever that term may mean, if you’re basing it on people having a long record of arrests and convictions. Many of these people had no prior arrests and convictions. It was tough trying those cases. I remember I tried one of these cases before Judge Bryant, who was to become Chief Judge. Judge Bryant was another judge before whom I tried a lot of cases. He was a wonderful man. Extraordinary. He was bothered by those cases. He used to take an active part in trials as a trial judge when I appeared before him. We had a number of battles in the courtroom. He didn’t say anything in those trials, but I knew he was disturbed by them. – 54 – Q. What was the mood in the Prosecutor’s Office after the ’68, during the 1968 riots? There was a great deal of confusion in a lot of circles about what was really . . going on and why it was happening. There was the surface reason, of course, the killing itself but obviously what happened brought out a lot of long standing tensions and frustrations and problems. Did it make people in the Prosecutor’s Office sort of rethink what you were doing and how you should go about doing it? A I don’t think that would be generally true. Other than the prosecutions arising out of the riots themselves, I think the Assistants were sufficiently busy with their individual cases, trials of robberies, rapes and murders and the like that generally speaking they continued to perform their responsibilities. I don’t think it had an effect other than in one respect – it increased the community distrust of the police. And that would have an effect on your cases as a prosecutor because police officers are often, in many cases, critical witnesses and if the juries don’t believe or accept what the police officers say or credit their testimony, then your case can be in substantial jeopardy. Q. Did you notice a change with the jurors? A I did. It was the attitude to police. It was unfortunate because some of it broke down along racial lines. There was an increased tendency of black jurors to question the credibility of the testimony of white police officers. That was not healthy for anyone. The testimony of police officers should not always be accepted because they are police officers, but their testimony should not be credited or discredited because of color any more than the testimony of any witness should be credited or – 55 – discredited. But you could sense that there was that line being drawn that was not healthy from the point of view of police officers being able to do their jobs, prosecutors being able to do their jobs, and also for the community. Q. What about the prosecution of drug cases in the late l 960’s? There was certainly more emphasis I think is placed on them today than 20 years ago, or even 5 years ago. A. That is true because it’s hard to believe that there could be greater emphasis than today. But back in the late ’60’s, in 1969 and 1970, the crime problem at that time was considered to be at an all time high, the perception was that Washington was the crime capital of the country and we were experiencing then what was, in my view, accurately termed by Dr. Robert DuPont as a heroin epidemic. Heroin was the drug at that time. There were an enormous number of crimes being committed by heroin addicts. How to handle addiction and the enormous crime it caused was a major problem. The volume wasn’t anything like it is today. We thought at that time that the volume was horrendous, but it pales in comparison to what it is today. At that time, however, the drug cases were straining the resources of the Office and the police. Of course the police and the DEA did not work well together, which aggravated the problem even further. Q. Why was that? A. It was a historical problem that was exacerbated in the late ’60’s and early ’70’s in Washington because of personalities I think in the police department and – 56 – the DEA – they didn’t get along. The problem was that law enforcement agencies in general did not work well together. That had its adverse effect. That was one of the principle problems I tried to address when I was U.S. Attorney but it has always been a problem. Although I’m not as intimately involved today, I suspect it continues to be a problem Q. Were you getting convictions in your drug cases? A If you mean in the late ’60’s, yes. Q. Because several District Court judges mentioned to me, that one of the reasons there are a lot of acquittals in drug cases today in the federal courts, is the juries’ distrust of the police and a real reluctance to accept much of what the police say. Did you see much of that when you were trying these drug cases in the late ’60’s? A I can’t tie it specifically to drug cases. The problem that I mentioned earlier about the lack of credit by some jurors with respect to police testimony certainly existed, especially after the 1968 riot. I remember some rapes and robbery cases in which it also applied as well as drug cases so I don’t tie it only to drug cases. Of course in drug c·ases the principal witnesses are usually and solely police officers. Especially if it’s a smaller drug case, like a buy/bust or something of that kind as opposed to an extensive conspiracy where you may have some insiders testifying. Although I had a lot of trials, I don’t think I tried a whole slew of drug cases. They were not dominant as they are today. While there was a heroin epidemic and many drug prosecutions, there – 57 – were a lot of cases in which an addict was caught housebreaking or committing a robbery. I think I tried more of those than the straight drug cases. Q. I believe you said you went back to Justice around 1969? A. I did. Q. What did you do when you went back to Justice? A. I worked in what was called the Office of Criminal Justice which was part of the Deputy Attorney General’s Office for a year and a half. The principle task was the Court Reform and Criminal Procedure Act for the District of Columbia. Q. The Deputy was Richard Kleindienst? A. Yes. Q. Who was your immediate supervisor? A. Don Santarelli. Q. And you were there from 1969 to when? 1971? A. No, the end of 1970. Q. Did you go back to Main Justice? A Yes. Q. You went back to Main Justice and worked there for about a year? A. Year and a half. Q. And then what? You came back to the U.S. Attorney’s Office? – 58 – A. Yes. I came back as the Executive Assistant U.S. Attorney. I was asked by Tom Flannery, who was then the U.S. Attorney, to come back and help work with . . the implementation of the Court Reform and Criminal Procedure Act. Q. How much of a difference was there really between the Clark Justice Department and the Mitchell Justice Department? A. To a line Assistant U.S. Attorney or to a line attorney in the Department of Justice probably very little, if any, difference. I think in overall policy and certainly as an advocate before the Supreme Court, there was a difference. The Mitchell Justice Department was more vigorous in asserting the law enforcement position, however one defines that term, and I realize it’s a vague term. Under Ramsey Clark, the Department was less of an advocate than almost a friend of the court. This difference may well have impacted on the leadership in the Criminal Division and among some of the U.S. Attorneys, but not to line assistants. Q. Did you work closely with Kleindienst at Justice? A. Not really. Don Santarelli had a lot of contact with Mr. Kleindienst. I met him but in terms of working closely with him, no. Q. So when you went back to the U.S. Attorney’s Office what exactly was your responsibility? A. It was to work on a number of issues. I think the specific reason why I was asked to come back by Judge Flannery was to help the Office implement the very great changes that were being brought about by the Court Reform and Criminal – 59 – Procedure Act from the court reform aspects of the legislation to implementation of some of these provisions like pre-trial detention and no-knock and to make sure that it was· done in a very cautious, conservative way. I tried some cases and helped work on problems and overall policy in the Office. I worked very closely with the Judge, then Tom Flannery, U.S. Attorney. He was a very effective U.S. Attorney. Q. Now, up to this point in time, and I guess you’ve talked about 1970, 1971, you had worked with a number of U.S. Attorneys. Take me through the ones that you worked with and A Well, there were only three. There was Dave Acheson, whom I hardly ever met. Dave Bress, whom I saw more often but didn’t work with, I was only a line Assistant U.S. Attorney so I didn’t have a whole lot of contact with him. And then Tom Flannery with whom I did have a lot of contact because of the position I had. Q. So you worked closer with Judge Flannery than the other two? A By far. Q. What was it like working with him? A. He was low key. He had the advantage of being a very experienced trial lawyer. He had been a former prosecutor for about a dozen years. One of the best, but a very different style from Vic Caputy or Joe Lowther. He did not dominate a courtroom, as I understand it. It was said of him that he prayed defendants into jail. He had a great reputation among the judges. He wasn’t very publicity oriented, but he commanded great respect from the judiciary and fellow members of the Bar. He had a – 60- very great ability to focus on what was important, or what was significant and attend to that. He was a very good U.S. Attorney. Q. You were also trying some cases at this time? A Yes. I tried the case involving Heidi Fletcher and the two alleged hippie defendants. Ms. Fletcher pied guilty and the two male defendants went to trial and raised the insanity defense. The case received a lot of publicity. I thought more than it should have. Q. What got you so interested in the insanity defense issue? A I got started on it when I worked for Oscar Alschuler in the Special Proceedings Section and handled a lot of cases where people who had been acquitted by reason of insanity and then committed to St. Elizabeth’s Hospital, were trying to get out. The question was should they be released on the grounds that they had recovered from whatever mental illness they had and were no longer dangerous? The insanity defense was a very controversial defense in D.C. Judge Bazelon had written an opinion in the Durham case which marked a great departure from prior insanity law. The opinion got a lot of people stirred up and concerned that dangerous robbers, or rapists or murderers would get acquitted on the grounds of insanity and go to St. Elizabeth’s for a short time and then be turned back loose on the street. It was a very controversial area and from working on these cases, and those of the Mental Health Committee, I took an interest in the issues and gained some familiarity. Q. Do you disagree with the Durham decision? – 61 – A. Its standard for the insanity defense was basically unworkable. I did not disagree with its concern that the old English test, called the McNaughton Rule, was outmoded and too narrow. It was only through a process of years that the D.C. Circuit and other courts around the country came to a position that I agree with – a position between Durham and McNaughton tests. Q. Of course all that then brought us to June 17, 1972. And, that’s probably a good place to stop. A. Okay. – 62- TAPE II, Side 2 Oral History Project Historical Society for the D.C. Circuit Earl Silbert This is Bill Causey. This is the continuation of the Oral History Interview with Earl Silbert. Today is March 7, 1992 and I am interviewing Mr. Silbert at his home. Q. Let’s pick up, if we can, where we left off at our last session and that is the subject of Watergate. What were you doing when Watergate happened? The break-in itself? Were you the acting U.S. Attorney at that time? A. No, I was the Principal Assistant under Harold Titus, who was the U.S. Attorney. Q. Alright. Now how long had you had that position when Watergate happened? A. Six months. Q. How big a staff did you have at that time? A You’re talking about the U.S. Attorney’s Office? Q. Right. Do you remember? A. It was probably 140 lawyers. It was 155 when I left in mid-1979 and I’m not sure how much it grew between 1972 and 1979. Maybe about 20 lawyers. in? Q. Do you remember where you were when you first heard about the break- A. Yes, very well. Q. Can you tell me about that? – 63 – A. Yes. I was in bed. I received a call early in the morning of that Saturday from Chuck Work who was either Chief or Deputy Chief of the Superior Court Division of the U.S. Attorney’s Office. He called up and his first words over the phone were, “I have a hot one or a strange one here,” I believe at a police precinct. An arrest had been made and he had been called in. Then he called me. Q. So that would have been the early morning of June 17th? A. Yes. Q. Because I think the break-in happened on a Friday night/Saturday morning? A. Right. And the arrest was actually, as I recall, in the very early morning hours of Saturday the I think the 16th. It might have been the 17th. I’d have to check. Q. Why was Chuck Work calling you? A. I was the First Assistant and had worked closely with Chuck before on a number Of matters. Why he called me as opposed to somebody else in the Office, I’m not really sure. The circumstances were obviously unusual: five people in suits arrested inside the Democratic National Committee Headquarters. Q. What did you do after you got Chuck’s phone call? A. Got up. Chuck gave me some background facts about what had happened. They were gathering evidence. He mentioned that some question was – 64- coming up about search warrants because I know I went right in to the U.S. Attorney’s Office, over to Superior Court, and started with the application for search warrants for the hotel rooms of those who had been arrested in the Watergate and also a search warrant for a car that had been located and was parked nearby. Q. When did it first occur to you that this was a very unusual situation, or did it occur to you that this was a very unusual situation? A. Definitely – and for a number of reasons. First of all, five people arrested in the Democratic National Committee Headquarters for a break-in- that was unusual. Second, the five persons were in suits. Then it turned out that they either didn’t have any identification on them or gave false names. Later that day, on Saturday, we learned that one of those arrested, James McCord, was the Security Chief – I’m not sure that that was his precise title of the Committee for the Reelection of the President for the Republicans. That obviously added an enormous new dimension to the matter. Q. Do you remember how you learned that? A. Those who had been arrested were about to be arraigned, and I believe it was before Judge Belson, and somehow the police obtained that information and they advised us. How the police got it I don’t know. Q. That would be Jim Belson who is currently on the D.C. Court of Appeals? – 65 – A. Yes, though he has retired. He was then a trial judge in the Superior Court. I had a very interesting argument before Judge Belson, which I’ve never . . forgotten. The Supreme Court had recently held, in United States v. Wade, that a lineup was a critical stage of an investigation and prosecution, and, therefore, there was a right to counsel at the line-up. Jude Belson expressed concern whether obtaining a search warrant for a premises, particularly after there had been arrests, might fall under the rationale of that Supreme Court decision. I remember that after Chuck and I had drafted the search warrants, which turned out to be critical because they produced very valuable evidence, we were called up to chambers and asked by Judge Belson whether or not we had to have counsel present. I had an argument right then and there, the first, it may be the only one of its kind, trying to satisfy a judge that the reasoning of the United States v. Wade did not apply to a search warrant. Chuck Work and I urged that by its very nature, a search warrant application had to be an ex parte proceeding to avoid notice to the potential persons whose premises would be searched and therefore give them an opportunity to destroy or remove incriminating evidence. Judge Belson finally agreed. But he’s a very thoughtful person, as I’m sure you know, and he was being cautious and wanted to explore it. He had a genuine concern. Q. Now going back to that arraignment, was that the following morning? A. No, no, that was Saturday afternoon. Q. Okay. Who represented the five burglars? – 66 – A. That was very interesting. Joe Rafferty came in to represent them. He was with a lawyer by the name of Douglas Caddy. Mr. Caddy had appeared at the police precinct to which the five persons arrested had been taken about 5 :00 o’clock in the morning. He wanted to meet and confer with those people. He claimed he was their lawyer. That, in tum, led us as potential investigators to raise the question, not so much as to Mr. Rafferty, because we thought Mr. Rafferty had been contacted by Mr. Caddy, but how did Mr. Caddy know to go to the police precinct 5:00 in the morning, when to the best of our knowledge, none of those arrested had made a phone call out. How did he know? That became a matter of prompt and subsequent grand jury investigation. Q. Did you ever find out? A. Yes, we did. It was a contested hearing and we kept the grand jury one night until 9:00 o’clock in the evening, I think, on a Friday. It was contested because we subpoenaed Mr. Caddy. He asserted the attorney-client privilege. Judge Sirica as Chief Judge on a motion to compel ordered him to comply and answer our questions, which we designed in such a way to avoid any intrusion on the attorney-client privilege. Mr. Caddy declined. He was held in contempt. The matter went up to the Court of Appeals. That took a lot of our time in the early stages of the investigation. Q. Now we know of course that when the break-in occurred there was an accomplice across the street in the Howard Johnson’s Hotel? A. Yes, that was our first big break in the case. – 67 – Q. Tell me about that. When did you first learn that there was someone else involved across the street? A. Very soon. Within a couple of days. I think the FBI or the police had gone across to the Howard Johnson Motel and retrieved records of someone leaving the Howard Johnson early that morning. Q. You mean checking out of the hotel? A. Yes, checking out of the Howard Johnson. And we were able to trace that. It turned out it was a fellow by the name of Al Baldwin, a former FBI agent. We traced him up to Connecticut. He obtained counsel. There were vigorous negotiations, as a result of which we decided to give Baldwin immunity and he gave us some very valuable evidence. He became a critical government witness. Q. Now let me go back to McCord for a moment. You say you learned the morning of the arraignment about his security work with the Committee to Reelect the President, which we’ll call CREEP, which I think was the acronym that everybody used at the time. A. No question about it. Q. When did you first learn that he was formally with the CIA? A. Soon. It was very soon. Q. That day? Or within a couple of days? A. Certainly within a couple of days. I believe we learned it that very day. – 68 – Q. Now did you learn that through the FBI investigation or did it come to you from some other source? , , A. We didn’t have any other sources so it would have either been through the Metropolitan Police Department or through the FBI. Q. In their book, All The President’s Men, Bob Woodward and Carl Bernstein indicate that their first lead after the break in was a reference in one of the pocket phone books of one of the burglars to an “H H and W If’ and they tracked that down to be Howard Hunt at the White House. Do you recall when your staff first realized that this went beyond the five burglars and escalated to a level of Howard Hunt? A. Very soon. We were ahead of the news media. The police did recover two address books in the search. In one of them was Howard Hunt. The FBI interviewed or attempted to interview Hunt, I think, either that Saturday or the following Monday. So they were right on top of that, very effectively. Remember, we felt quite confident that there had to be somebody else involved besides the first five right frofn the very start when Mr. Caddy showed up at that precinct. We didn’t know who at the time, but eventually through the grand jury, through that process that we litigated before Judge Sirica, we learned that it was Hunt. And ultimately Liddy, as well. Q. And in fact those were the seven defendants, if I’m not mistaken? A. Yes. – 69- Q. The five burglars, Hunt and Gordon Liddy? A. Correct. . . Q. Were you, and again let me focus on the very early stages of the investigation, by that I mean within the first three or four days. Were you satisfied with the work that the FBI was doing? Let me phrase it another way or in addition. Did you get any indication that there was a “political aspect” to this matter? A. No. Initially, one of the first matters I had to resolve was who was going to have the principal responsibility for the investigation. That was between the FBI and the police. Because it was the police who made the arrests. They made the actual seizures with respect to the very valuable information found in the hotel rooms of the burglars and in the car. Those address books that you previously mentioned turned out to be very important pieces of evidence. In the investigation we promptly started to track out all the leads from those address books, among others. They had locations all over the country. The Metropolitan Police Department simply was not capable, because it’s a local police department, of conducting that kind of investigation. It became Clear to me that if we had the two investigative agencies – police and FBI – trying to work jointly that would not work simply because there would be conflicts and lack of coordination and all. So we really had to make a decision, which was sensitive because the police had made the arrests. I had a number of negotiations and discussions with the police department and ultimately persuaded them that the FBI should have the lead in the investigation. The difficulty at the start was that the police – 70- department had the evidence. All too often law enforcement agencies don’t work well together. The FBI in this case had trouble getting a hold of that evidence so that they .. could follow out the leads. These are the kinds of things that people aren’t aware of As an Assistant U.S. Attorney I had to resolve and work out that problem. In hindsight, they are considered only minor problems, but at the time they were critical. So to answer your question, the FBI took over the investigation. I’ve testified to this before, I thought they did a great job. There was nothing that I ever asked for that they did not go out and try to obtain and to do so expeditiously. There were only, throughout the entire investigation, two times when I had a problem. The first was early in the investigation. We recovered some campaign checks in the bank account of one of the Cubans who had been arrested. We got bank accounts of the Cubans. Q. These were the bank accounts in Florida? A In Florida. And we got those very rapidly. We noticed that there were a series of checks in the amount of $89,000 running through the account of Mr. Barker, one of the defendants arrested, and we wanted to track down the source of those funds. That prdcess led us into Mexico. There was a period of one week in the latter part of June in which we were stalled. I kept asking the FBI, “What have you found out with respect to the source of those checks?” The FBI were slow and then explained that there had been a hold put on that because the CIA is looking in to see if there is any problem, a confidential source of some kind. After a week they came back and said, “The hold has been lifted,” then traced those checks to their source. We found out – 71 – everything about it – how the money came in, the source of the funds, and all. So that was a hold for one week. At the time I didn’t really think too much of that. It was only . . a week. The fact that there might be some CIA interest didn’t occur to me as being that unusual. It was only a week or less and then there was full authority to go ahead without any limitation. Q. Now did the FBI eventually trace those funds to campaign contributions? A. Yes. And we put in the grand jury the person who contributed those funds. It was actually $100,000 but only $89,000 had been converted into checks. Q. Was that David Cowberg the fellow from Minnesota? A. No. I don’t know, that name is totally unfamiliar. The source of another check that was found, what we used to refer to as the “Dahlberg” check. Q. I meant Dahlberg. I’m sorry, I meant Kenneth Dahlberg. He was from Minnesota was he not? A. Perhaps, but he was not the source of those funds. We traced that even further. We put that source in the grand jury. It turned out he had nothing to do with any illicit activity. Q. Did you subsequently learn why there was a hold placed on the investigation by the CIA? A. Oh, yes. That became a critical piece of evidence in the second phase of our investigation when we were into the cover-up. Not that we knew of any cover-up at the time, initial stages of the investigation, but we had long thought that the – 72 – investigation would take place in two stages. It turned out that the hold by the CIA came out of the White House and was part of the evidence that led to the ultimate resignation of President Nixon. Of course, we didn’t know that at the time the FBI investigation was slowed down for a week. We did find out about it in the cover-up phase of our investigation. We discovered it through Dean when Dean started to meet with us secretly as did Magruder and others. Q. When did you first learn and from what source that there was some sort of cover-up going on about the break-in? 1973. A. In early April from John Dean’s lawyer, Charles Schaffer. That’s April Q. So we went from June of 1972 to April of 1973 and do we want to call that phase I, which would basically be the burglary investigation and the criminal prosecution? A. Burglary, wiretap investigation. Yes. Q. We all know that principally The Washington Post reported a great deal about the break-in. Now I assume that all of you in your office were reading those stories. Were you always ahead of them, or were they sometimes ahead of you? A. We were, to my knowledge, always ahead of them. Their investigation was based on leaks as far as I could tell. Q. Did it ever strike you, or did you ever wonder where they were getting their information? – 73 – A. I knew on certain occasions. Until I read All the President’s Men I obviously had no knowledge of”Deep Throat.” But in terms of the information that . . The ·w ashington Post was printing it seemed to me to be coming from law enforcement sources or witnesses whom we had already interviewed. Q. Or witnesses that had already testified before the grand jury? A. Well, who either testified or had been interviewed by either the FBI or by the prosecutors. – 74- TAPE m, Side I Oral History Project Historical Society for the D.C. Circuit Earl Silbert This is a continuation of the Oral History Interview with Earl Silbert. I’m Bill Causey. It is March 7, 1992. Q. When did you first realize that your investigation was going to take you into the Committee to Reelect the President? A. Immediately. Q. Right away? A. Yes. As soon as we realized that James McCord was one of those that was arrested. I believe he had given another name when arrested or did not identify himself It was one of the two. But as soon as we learned he was from the Committee for the Reelection of the President, we knew that it would take us there. And secondly, it was within a couple of weeks that the FBI, in following out the leads from the initial searches, approached G. Gordon Liddy. He declined to be interviewed. At that point we realized that we were very much into the Committee for the Reelection of the President. Even more so than with McCord. But McCord alone would have led us into the Committee for the Reelection of the President. Q. Did it occur to you during your investigation at that early stage to go right to the top sources at CREEP and ask questions? Or, did you instruct the FBI to do that? A. We did. – 75 – Q. And do you remember who they talked to? A. Jeb Magruder and Herb Porter were interviewed by both the FBI and were before the grand jury. Magruder was before the grand jury at least three times. Of course the Head of the Committee for the Reelection of the President was the former Attorney General, John Mitchell. And he testified before the grand jury. Q. Did it occur to you, when these people went before the grand jury, that they were being, that they were not being very candid and honest with the investigation? A. We had concerns about the credibility of Magruder’s testimony. But as we looked at it, if the involvement went above Liddy, it was hard for us to see that Magruder would not be involved. Magruder, of course, claimed that he was not. Porter, who appeared to be credible, supported and corroborated Magruder’s testimony. At that time, we did not have any or didn’t have sufficient evidence to demonstrate that the conspiracy included Magruder, and there were factors that indicated to us that it didn’t. There were factors that indicated to us that it did. We were simply uncertain. That’s what led us to advise each of the defendants through their counsel that, when I say the defendants, Hunt, through his lawyer, Bill Bittman, Liddy through his lawyer, Mr. Maroulis, and McCord through his lawyers, Jerry Alch and Al Johnson, that whatever happened with respect to this trial that was upcoming, we would, after it was over, immunize their clients. We would have them granted – 76- immunity and compel them to testify about their knowledge of the involvement of others if that occurred. And that notice was given to them fairly early on in the investigation. Q. Now refresh my recollection here. Did McCord start to talk before or after his trial? A. He never talked until after the trial and after the day he was to be sentenced. He had sent a letter to Judge Sirica between the time the jury verdict finding him guilty, and his sentencing. Q. Okay. Then let me go back and ask you a few more questions about the trial. When did you realize you were going to be the prosecutor, the chief prosecutor for that case? A. Fairly early on. Within the first week. Q. How did that make you feel? You knew that this case was starting to make the papers and that it had some very serious political overtones. Did you approach this case differently than other cases? A. I know I mentioned to several people at the time that given the political aspects of the case, I did not think I would come out of that investigation whole. I thought I would be in the middle. Q. Did you feel the heat at that time? A. It depends on what you mean by heat. There certainly was heat from the press and externally. There was no heat internally. That is, there was no heat from – 77 – within the U.S. Attorney’s Office. The United States Attorney, Harold Titus, for example, gave us total latitude to do what we thought best. Obviously we kept him advised of what we were doing. There was no heat, if you want to use that word, from the Department or from any other source in that sense. But there was heat from the press. Q. Did you prepare this case differently from any other case or was this another file on your desk? A. It wasn’t another file on my desk. It was extraordinarily sensitive. But in terms of preparation and the kinds of things you do, I think that what we did in that case was what hopefully experienced prosecutors would do in any case. And certainly any significant case. Q. Now, again focusing on the investigation period and the events leading up to trial, I’m sure you interviewed all of the burglars and you had conversations with their attorneys us. A. We did not interview the burglars because they would not be available to Q. So you did not talk to them before trial at all? A. Not to any of the five who were arrested. Liddy was in front of the grand jury about two or three times. Initially he was asserting the attorney-client privilege. Those assertions were not justified and he was compelled to testify and ultimately he then asserted his Fifth Amendment right against self-incrimination. Hunt never – 78 – appeared before the grand jury. He was interviewed, as I indicated, right after the break-in by the FBI and gave some, not very helpful or informative, responses at that time. At the time, the FBI didn’t know very much to ask because it was, as I said, within two or three days of the break-in. I don’t recall the Cubans ever being interviewed because they had counsel and you would normally have to go through counsel to talk to them. Mr. McCord we brought down to the grand jury several times because we wanted to get the equipment that had been used for the listening devices and through Baldwin we learned that McCord had it. We put tremendous pressure on McCord to tum over the equipment. We brought down his wife and his children to testify. I thought about that because there’s a serious question of how far one goes in an investigation. It was ironic. At the time the defense thought we were being grossly overly aggressive. There were others that suggested we weren’t being aggressive enough. That’s what I meant by being in the middle. But we put tremendous pressure on McCord to tum over that equipment and eventually he did, under an agreement arrived at through counsel. Q. Now, when did you first learn that Judge Sirica was going to be handling this case? A. You mean the pre-indictment phases or the post-indictment phases? Pre-indictment phases I knew from the start because he was the Chief Judge, one of whose responsibilities is to supervise the grand jury. Q. And he was handling grand jury matters? – 79 – A. Yes. Grand jury matters go through the Chief Judge so I of course had a lot of dealings with Chief Judge Sirica during the pre-indictment stage. Q. Did you know at that time that he would also be handling the trial? A. No. Q. When did you first learn that? A. Probably after the indictment came down and he assigned the case. He assigned himself to try the case. Q. There’s been a lot of controversy about how he got that case. Some stories are that he assigned it to himself Other stories are that other judges did not want the case and it sort of went to Sirica by default. Do you know anything about that? How he got the case? A. I have always assumed that he assigned the case to himself I never heard that other judges did not want the case or that it came to him by default. Q. What was your relationship with Judge Sirica at that time? A. Good. Q. You had been before him quite a bit in grand jury? A. We had a lot of pre-indictment proceedings. As I mentioned, we were before him on a motion to compel with respect to Douglas Caddy’s assertion of the attorney-client privilege. We were before him when Gordon Liddy was asserting the attorney-client privilege and we filed a motion to compel on that. There was another hearing before the Judge, on news media material, when that had been subpoenaed, – 80 – but that was after the indictment. I had a number of visits with the Judge in terms of the investigation prior to the indictment, discussing several aspects of the investigation. Q. There were many in Washington at the time who said that Judge Sirica was very much a prosecutor’s judge. Were you pleased that he was assigned to the case, or that he assigned it to himself? A. Yes, I was. He was, from the government’s point of view, a good judge to try a case before. One had to be careful to protect the record as a prosecutor from potential error. As a prosecutor, you’re concerned about error getting into the record unwittingly from either a prosecutor or the judge. I thought Judge Sirica’s presence in the case would be particularly valuable or helpful to the investigation. Not that he was partial. He was not, but a person of great integrity. Judge Sirica was also a very tough sentencer. A part of our strategy that I explained to you before, we had told the defendants, “You either cooperate with us now or we’re going to compel you to cooperate with us later on because we’re going to try you and convict you.” That was what we told the defense counsel, “and compel you to testify.” I thought that the best way to obtain cooperation before the trial or even after the trial under a grant of immunity would be if the defendants either realized that they would receive a stiff sentence, or had received a stiff sentence. And Judge Sirica was one who did impose stiff sentences. John?” Q. In fact I think he was known by some in the courthouse as “Maximum A. That’s correct. – 81 – Q. So you took advantage of that reputation to put pressure on the . . defendants to cooperate and to assist in the investigation? A. I don’t recall ever saying to Bill Bittman or the other lawyers, using Judge Sirica by name and the threat of a heavy sentence. I certainly thought it. There’s no question about it. We all thought it, among the prosecution. But in terms of saying that, that’s not the kind of thing I would have said and I don’t recall saying that. But they knew. I didn’t have to say it. His reputation was well-known. Bill Bittman is from Washington, D.C. and a very savvy, experienced lawyer. Q. So you could assume that the defense lawyers knew Judge Sirica’s reputation as well as those of you in the Prosecutor’s Office, and that would work to your advantage? A. No question about it. Yes. Q. One of the things that has come out of the Watergate story is all of the discussion about the very interesting and unusual character of Gordon Liddy. Tell me about some of your observations and experiences with him and how his behavior affected the early stages of the investigation. A. It did. It had a significant effect. I mentioned to you that up through the time we began to talk with Dean and get firsthand evidence, we did not know whether the break-in and wiretapping conspiracy ended with Liddy or went above. There were indications both ways. One indication indicating that it may well have gone above – 82 – Liddy was the fact that they had access to a lot of money and how could they have obtained access to that money if it was not with the authority and knowledge of others. On the other hand, Liddy was such an unusual person. The FBI and we did a very thorough investigation about him and Hunt. They had traveled around the country under false names. To California and Florida and all over. We traced everything out and interviewed people all over the country. We had interviewed a woman with whom he had gone out on a double date. And in our view, he and Hunt considered themselves James Bond types, super sleuths and big macho-male types. Liddy and Hunt were having a double date at dinner and we talked to the woman who was with Mr. Hunt. She said that during the course of the dinner, she started to smell this terrible smell. She looked sideways to see what was the source of this smell and Liddy is holding his hand over a candle and it’s burning, burning his hand. What he was doing was trying to impress his date with the power of mind over matter, and he suffered a third degree bum. We corroborated with other witnesses that he had a bandage on his hand from a very severe burn that he had self inflicted. There are a number of instances like that about this fellow. We thought that he and Hunt were politically ambitious and would like to be in the position of having access to information and making themselves more valuable to the higher echelon, political types. This would indicate that the break-in was something they were doing on their own. So as I said there were conflicting factors at that time, not with the benefit of – 83 – hindsight. There were different factors, different inferences that one could draw, different evidence pointing in different directions. Q. I assume you learned at an early stage that Hunt was with the CIA? A. Yes, definitely. Not only that, we knew he was with the CIA and that he was tied in with the Cuban connection. Also, we knew he was an author. Q. He had written a spy novel, spy novels? A. I looked at his novels. Q. Did you read any of them? A. Yes. I recall looking at them. Don Campbell, with whom I was working, looked at them. We were trying to trace out if there were any connections that one could glean from those spy novels to this Watergate activity. We knew that he was anti-Communist, that he had been involved in the Bay of Pigs. He was known as “Eduardo.” The Cubans held him in inordinately high esteem. We traced out all of that in the early stages of the investigation. Q. Was this the only case that you were working on at the time? A. As First Assistant I would not have had a block of cases to handle, so I’m sure that as far as a case was concerned as opposed to being involved in other policy matters in terms of running the office, yes that would have been my only case. Q. So you were able to devote a good bit of time to this case? A. It took a lot of time. Initially, only Don Campbell and I were working on it and then when some grand jury aspects began to get more complicated, especially – 84 – with the assertion of the attorney-client privilege and various other matters, I asked Seymour Glanzer, who is a litigating genius, to join us and he did . . . Q. During the investigation and the grand jury proceedings, virtually literal transcripts of the proceedings started to leak. A. That’s only in either late April or May of 1973. Not in the early stages. Q. Okay. But before you knew the case got to the cover-up stage, transcripts of grand jury proceedings were starting to leak out to the press? A. No, that’s not right. Q. Okay. So, the grand jury leaks occurred after April when you started to learn from Dean and others about the cover-up? A. That’s right. Q. I think Jack Anderson was one of the reporters? A. He was. He was printing actual verbatim transcripts. Or copies of grand jury transcripts. Q. Did that result in a sub-investigation to find out how that material was getting