John D. Bates Interview 3

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Oral History of Honorable John Bates
Third Interview
February 19, 2021
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is John Cooney, and the interviewee
is Honorable John Bates. The interview took place on Friday, February 19, 2021. This is the
third interview.
MR. COONEY: Alright, sir. Well let me launch in with the usual introduction and where
we are in the process. Good morning, your honor. When we ended the
last interview, you had just completed your clerkship with Judge Thomsen
in Baltimore and were about to enter in the private practice at Steptoe and
Johnson in Washington. May I start by asking what persuaded you to
choose Steptoe and Johnson as your first post-clerkship job?
JUDGE BATES: Well, I wanted to go to D.C. rather than stay in Baltimore. I thought the
opportunities and challenges would be greater in Washington than in
Baltimore. I had summered at a firm in Baltimore, Frank Bernstein, a very
good firm. I liked the lawyers a lot and developed some relationships that
actually stayed with me in the future, but I still thought it was better to
move on from my clerkship to Washington if I could. And when I
interviewed at firms, I was struck by Steptoe and Johnson because it
seemed like the right size for me. I believe I was the 99th lawyer to join
the firm, and that was a substantial size, so it gave all the advantages of
that, but it was also a Washington firm, and it was not super-sized, and I
was more comfortable with that. It also had a local litigation practice. I
expected that that might give me more opportunities than some other
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practices would and so it just seemed like the right place in addition to
which when I interviewed there, I liked the people and it seemed like a
good fit.
MR. COONEY: In what area did you train in Steptoe? Did it have the normal process in
Washington of rotating its associates among different practice areas?
JUDGE BATES: There was some rotation. I didn’t have what I would call a full rotation in
that I did mainly litigation-related matters and court litigation as opposed
to administrative litigation. The training was not as formal as ultimately
in large firms it became, but I did get some litigation training and focused
on two or three different areas of litigation. One was employment
discrimination. Those happen to be larger cases. I worked on some class
actions and some larger matters there. Another was the local litigation. I
was able to work with a lawyer who had a very active small case litigation
practice, not a practice that would fit well these days in a significant
Washington law firm, but it seemed to work at that time. His name was
Laidler Mackall. I learned a lot from him, and I was able to handle several
cases. I didn’t try any cases while I was there. I wasn’t there for very
long, quite frankly, but I did do a number of depositions and some
motions, and I did depositions in other cases too. I had some, I’ll call them
environmental cases, but they were really river erosion cases in West
Virginia, and I traveled there for depositions on many occasions.
MR. COONEY: What was your favorite case that you had the opportunity to work on, and
what was your role in it?
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JUDGE BATES: Well I think without a doubt my favorite cases were pro bono cases. I
don’t think that that’s unusual in big firm practice then or now, but I had
two pro bono opportunities that were very rewarding and significant. In
one case, I represented, along with another lawyer at Steptoe of my
vintage, Sandy Chamblee, an African-American woman, and I did this
case together, and we represented a woman from South Africa seeking
asylum in the United States and successfully obtained asylum for her. It
was basically getting to know her and her issues here and back home in
South Africa and then putting together a very sizable asylum package and
working that through the administrative process. And we were able to do
that successfully before I left Steptoe and Johnson, so it was something
that we probably from start to finish accomplished in less than a year, and
I was very happy to be part of that and developed good relationships from
it.
The other case I had was a case that I did with two other young
associates at Steptoe and Johnson, and we represented a gentleman by the
name of Bob Randall, who was one of the first, in some ways, the first,
who was seeking medical marijuana to get marijuana from the government
for treatment from disease. In his case, it was severe glaucoma, and we
handled that case, and we actually filed an action in District Court in
Washington, D.C., the court that I currently sit on. We sought a temporary
restraining order, and within ten days, the government had agreed, and we
effectively won the case. The Assistant U.S. Attorney handling the case I
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thought did a very responsible job, and we got along well and were able to
reach an appropriate resolution, and Mr. Randall was able to benefit from
the government supply of marijuana for years thereafter.
So those were two probably of the most satisfying cases. That’s not
to say that I didn’t enjoy the client-based cases. I had significant work on
some class actions in the employment sector and developed some very
very good relationships, first with Tom Powers, who was a very excellent
lawyer, and then more of my age range, with a young partner by the name
of Morgan Hodgson, who I think just retired from Steptoe and Johnson
very recently. It was some great experiences.
MR. COONEY: Was she married to Bill?
JUDGE BATES: Yes. Not only was, but she still is.
MR. COONEY: I was looking at Martha’s Vineyard and Bill was trying to bring a huge
windfarm to southwestern Massachusetts.
JUDGE BATES: Well he was always a good wind surfer. He got very wrapped up in wind
surfing and putting his interest in wind into a wind farm is not surprising.
Bill is a lovely guy, a very capable guy. As is Morgan, a wonderful
lawyer, and a wonderful person.
MR. COONEY: You must have seen Bill in action on the railroad reorganization case.
JUDGE BATES: A little bit, but not really much at the time I was there.
MR. COONEY: So did you have the opportunity to make oral arguments in any of your
cases while at Steptoe?
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JUDGE BATES: Only motions arguments, and only in motions that were not, except for
one summary judgment, the other motions were non-dispositive motions,
discovery issues, things of that sort. So I appeared in court. I would not
say I appeared extensively, but I probably appeared in court and said
something half a dozen times, and I probably took or defended fifteen or
so depositions, which for my little over two years that I was at Steptoe and
Johnson I considered to be a pretty decent litigation exposure. Many of
the depositions, as I said, were on that river erosion case in West Virginia
and occurred near the end of my tenure.
MR. COONEY: So normally I’d go on to ask how you transferred to the U.S. Attorney’s
Office, but my understanding is that you met your future wife at Steptoe,
so I thought this might be a good opportunity just to ask when and where
you met and have you take it from there.
JUDGE BATES: If we’re going to talk about my family, this will take the rest of the hour
and a half. But let me start with Carol. Carol and I did meet at Steptoe
and Johnson. We actually started at the same time. She was one year
behind me in law school because I had clerked for a year. She went to the
University of Virginia, and we were friends for a while and then through
the, I guess the start of more than a friendship, was when we were at a
firm event in Northern Virginia, a racquetball-focused event, and we were
a doubles team against one person from Steptoe and his spouse, and what
happened was he took a backswing, and the backswing went into Carol’s
head above the eye and really clobbered her. So off we went she and I to
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the emergency room for an interesting experience as they stitched her up,
and the emergency room doctors thought it was a nice thing to do around
April Fools’ Day to take x-rays of her head with bolts in it and all sorts of
funny things that they tried to amuse her with. So anyway we sort of
developed a little more than a friendship after that and ultimately decided
to get married. We weren’t perfectly comfortable being at Steptoe and
Johnson together and having the prospect of married life with both of us
working at the same place because it would be a little bit constraining in
terms of the breadth of our experiences, but also because it would be a
little bit awkward at the firm, it felt certainly eventually it might be. With
that in mind, I left Steptoe and Johnson not too long after we decided to
get married, and indeed when we revealed the fact that we were going to
get married, Carol was stuck with dealing with everyone at the firm over it
because I was over in West Virginia taking depositions. We got married,
and then after that were still together, still happy and still enjoying each
other and all the ins and outs of married life, and I’ll move on at that point
to three additions to our family.
We got married in 1980, and in September in 1981, my first
daughter Lauren was born, and she is now an Assistant U.S. Attorney in
Washington and runs a large section of the U.S. Attorney’s Office and
does a lot of training of the assistants in the office as well. She and her
husband Nick live in Bethesda, not too far from us, and we have two
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grandchildren there, and it’s a joy to have them around, and it’s one of the
best things in life to have grandchildren close by.
Now we have other grandchildren that are not close by, or at least
not at the moment. My second child, my son, Brian, was born in
December of 1983. He was a pretty wild and crazy little kid, not a wild
and crazy bigger kid, but got into lots of little mischief, good funny stories
of Brian and the things he used to do. He is a great outdoorsman, loves
the outdoors and therefore he and his wife and three daughters live in
Vermont, rural Vermont, and have a great life. He is a doctor and is the
medical director of a clinic in rural Vermont. It’s very rural Vermont, but
they wind up with a lot of patients. I think they have 12,000 patients or
something like that. There are five or six doctors in the clinic, and it’s a
very highly regarded clinic, and they do a wonderful job for their patients.
His wife, Jenny, is a midwife working at a hospital in Middlebury, which
is about 45 minutes away from where they live. And their three girls are a
joy, and we love visiting there, but not as much during the dead of winter
as the rest of the year. It’s probably zero or below zero in Vermont these
days, and that’s a little nippy for me.
And then the youngest daughter is Kelly, and she lives in Chicago
at the moment, but she’s moving back to this area next month. She was
born in July of 1987 and is a real pistol, just a funny, enjoyable kid, and
now adult, and she’s married to someone we love dearly, Luke, and he has
an MBA and works in affordable housing, and Kelly is a nurse77
practitioner. She has her doctor’s degree and is working in a clinic in
Chicago, but as I said, is moving back to this area next month. Kelly has
one child, a boy, who’s going to be one year old in about ten days, and
we’re looking forward to having him back here since we haven’t spent
much time with him over the past year. His first year of life, because of
the COVID-19 pandemic. So those are the family ties, and they are the
joy of my life.
MR. COONEY: Very interesting. It must have been extremely busy in your house. As a
two-lawyer family, how did you manage to allocate your respective time
in helping the children?
JUDGE BATES: The credit is all due to my wife. She, when Lauren was born, she became
a part-time lawyer and became one of the first part-time partners in a
major Washington firm, at Steptoe and Johnson. She was able to handle
that and accomplish that, and the fact that she was part-time, of course we
know what part-time means for a lawyer. It probably means a 40- to 50-
hour week instead of a 60- to 80-hour week. But she managed it very
well, and I was able to contribute, I hope, as much as I could and in a
reasonable way, but most of the credit for our family nucleus and the
strain of it is due to Carol’s hard work and innovation and passion and
excitement. She’s just an upbeat person, always doing things to make
family life better, as she does to make the world better. She was a lawyer
at Steptoe for a long time, as I said, became a part-time partner, but
eventually, she tired of what she was doing, and she went to do what she
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had initially thought she would do, which was teach, and she had been
teaching on the side at Georgetown in the law school, but she decided to
teach American History in high school, and she became a teacher at the
Maret School here in Washington, which she did for over a decade, and
indeed, the first year that she taught, she also was still teaching at
Georgetown, and she would go from teaching American History to 9th and
10th graders and hustle downtown to teaching tax law to law students, and
it was quite a change on a daily basis, but then eventually Carol took up a
third career and started a non-profit, which originally was to assist AIDS
orphans in Ethiopia. It morphed with the success of the AIDS treatment.
It morphed because there were fewer AIDS orphans, it morphed into just
supporting children in Ethiopia, and she’s still doing that to this day with
an organization that she started.
MR. COONEY: That must be a challenging job given all the disruption in that part of the
world.
JUDGE BATES: It’s challenging in different ways in different times, but yes. Sometimes
because of the disruption over there, and indeed there has recently been
more disruption in Ethiopia, and other times just because of the distance
and other times because of just the problems that haunt small non-profits
in terms of their existence. Government support in Ethiopia sometimes is
marginal, and so it’s been an interesting thirteen or fourteen years that
she’s been doing that.
MR. COONEY: That’s a commitment of personal time. That’s really extraordinary.
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JUDGE BATES: It is.
MR. COONEY: Well thanks for that discussion of family. I can see that it must be hard
during the Coronavirus period to have all those grandchildren you can’t
see.
JUDGE BATES: It is. Early on, we managed to do some family get-togethers with
everybody strictly quarantining for a period of time and then traveling by
car to a centralized location. We picked locations where the travel from
Chicago, Vermont and Bethesda was approximately equidistant. We met
in Upstate New York once or twice, so we were able to see family a
couple of times, but it has been hard more recently. We have not seen
those in Vermont or in Chicago to speak of. Because of their medical
connection, they’re both pretty strict in terms of what they can do. My
daughter has been on the front lines dealing with the pandemic and
COVID patients. And my son has been on the front lines, but actually, in
Vermont they’ve done a wonderful job and have a very, knock-on-wood,
low case rate. But they’re both pretty strict in terms of the requirements
and quarantining and social distancing and masking and everything else,
so we haven’t seen them all that much.
MR. COONEY: I can see that you really could go on for the remainder of the hour about
the family.
JUDGE BATES: Ask me another question about the family, and I’ll take another half hour.
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MR. COONEY: I might ask if this would be a good time to transition to find out what
persuaded you to leave private practice and go into the U.S. Attorney’s
Office.
JUDGE BATES: Well, it was always my plan. When I was in law school, I had worked in
the U.S. Attorney’s Office in Baltimore on the prosecution of Governor
Marvin Mandel, and I had developed some good relationships with
lawyers there and a real affinity for the work of U.S. Attorneys Offices
and the responsibility and experience that one could get by working there.
So it was always my plan to do that. I had some acceleration to that plan
because of the fact that Carol and I got married, and we thought it was a
good idea to not be both at the same place, so I began looking pretty
quickly. I was fortunate to have the opportunity to go either to Maryland
U.S. Attorney’s Office or D.C. I think I would have liked to have gone to
Maryland, but for the fact that the commute would have been pretty brutal
living in Bethesda and commuting to Baltimore on a daily basis. Now I
know people have done it, including the U.S. Attorney a few years ago,
Rod Rosenstein lived in Bethesda and was the U.S. Attorney in Baltimore.
But I chose not to do it, and instead decided to go to the U.S. Attorney’s
Office in Washington.
Now, the job offer I had was to go to the Civil Division, and I
found that attractive and interesting. It was a very well-regarded office
that had substantial cases. I was a little concerned about not doing the
criminal work, which is what had initially attracted me to the U.S.
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Attorney’s Office, but I decided to go to D.C. to the Civil Division and
don’t regret it. So I wasn’t assigned to the Civil Division. I was hired into
the Civil Division. They have always had a separate hiring process. Not
to the exclusion of the U.S. Attorney, but a separate hiring process than
exists for the rest of the Office where there’s a rotation in process. You
get hired, most people, almost everyone, gets hired and goes through a
lengthy rotation because of the local and federal responsibility that that
office has.
MR. COONEY: What was your role when you were first assigned to the Civil Division, or
first hired into it?
JUDGE BATES: Well, like everyone else, I basically was an AUSA who had a case load,
and the case load consisted of some interesting cases, administrative cases
dealing with federal programs of one sort or another or federal decisions.
There were also some individual clients in the law enforcement arena,
usually Bivens actions, which would be actions against them individually.
There were employment discrimination cases, Freedom of Information
Act cases, tort cases, and just a full panoply of the kinds of cases that are
brought against the United States, and, of course, that is a large part of the
docket of the District Court here in Washington because the United States
is such a substantial player in this jurisdiction, and, indeed, the largest
employer.
MR. COONEY: It must not have been long before you were on your feet in District Court
and on your feet quite often.
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JUDGE BATES: I probably tried a case within six months, although I think it was a bench
trial, and I was arguing motions right away. The office then, even more
than now, but still now, but the office then handled all of its own appeals,
so before too long, I started having cases in the Court of Appeals too.
Ultimately, I was there more than ten years, but ultimately, I tried
over thirty cases to verdict in the District Court, and I argued over thirty
appeals in the D.C. Circuit during my time in the U.S. Attorney’s Office.
As I said, it was over a decade that I was there, and it was challenging,
interesting. But that’s not to say that there weren’t some junk cases along
the way. Virtually, every job has its share of uninteresting work, and
certainly being an Assistant in the Civil Division had that. Some of the
pro se cases or FOIA cases were not all that interesting, but by-and-large,
it was a very interesting case load, and one that enabled me to grow
immensely as a lawyer.
MR. COONEY: Did you develop subject matter specialties in the U.S. Attorney’s Office,
or does it remain that you get the next case in the rotation?
JUDGE BATES: It largely remains, as you just described, cases are assigned, and I can only
speak to when I was there, either as an Assistant or as the Chief of the
Division, cases were assigned by the supervisors in the Office, so it wasn’t
a random distribution, and that led inevitably to some development of
substantive expertise because some of the assignments were we want to
give this to Mary because she has or had a similar case. I certainly
developed a very recognizable substantive expertise. I think generally you
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could call it First Amendment. It had a couple of different prongs. The
primary prong was relating to the demonstration activity in Washington,
which has always in different ways and forms has always been very
active. I think back to the May Day demonstrations and all the other
activities in Washington. And I handled those throughout my time in the
U.S. Attorney’s Office. I had some pretty significant cases.
I also did other First Amendment work. For a couple of years,
there was quite a bit of work relating to the Combined Federal Campaign
and free speech issues regarding that. And then there were other First
Amendment issues that came up sometimes in the employment context
and similar context and things of that sort, and I had, not all of those cases,
but I had a pretty significant part of that responsibility. Now, you have to
understand in an office like the U.S. Attorney’s Office, no good deed goes
unpunished. If you do well in something, you will get more of it. Indeed,
I think of one instance where I was concerned that I had not really
developed any experience or expertise with class actions, and so I went to
the then-chief of the Division and said, you know, I think I’d like to
handle a class action. Most of the class actions that we had in the Office
were employment discrimination class actions brought against various
government agencies. Well, having raised that issue within three or four
days, I had one case transferred to me from another assistant. I think the
assistant was leaving, and another new case assigned to me, two
substantial class actions that I then handled for years thereafter, including
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doing numerous mini trials, if you will. As you sort out those cases,
sometimes they wind up depending sometimes on liability determinations,
they’re made on an individualized basis, but usually that’s made on a more
class-wide basis, and then there are individual damages cases, but I
handled cases dealing with the State Department, cases dealing with the
Government Printing Office, which is probably the biggest case that I
handled because there was quite a bit of long-term racial discrimination
that was challenged in that action.
So, that was another area that obviously I had some experience
with. Ultimately, and I’m rambling on, but I’m probably covering a
couple of things, ultimately, I decided that it might be time to leave the
U.S. Attorney’s Office after I had been there maybe a couple of years,
three or four years, and in order to try to keep me, and successfully keep
me, a new position was created, a supervisory position. None of the
supervisors were leaving. There was a chief, and then two deputy chiefs
and an appellate chief, and they created a new supervisory position that
would have responsibility for False Claims Act cases. We were trying to
develop False Claims Act cases at that time, and I took over that area and
worked quite hard on those matters and developed for the office an
expertise. First it was focused more on defense, the defense community.
Ultimately, it gravitated more to healthcare, but with those two major
areas and many other cases, we developed a very, very active False Claims
Act docket. And indeed there were a couple of years where much to my
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satisfaction we were able to recover more through our False Claims Act
cases than was the entire budget of the U.S. Attorney’s Office, and the
U.S. Attorney was very happy. The money didn’t come to us. Money
goes to the Treasury. But just symbolically, it’s a nice thing to be able to
say about your office that you’re bringing in more money than its costing
the taxpayer to run the office.
MR. COONEY: Managing partner’s lawyer of the year.
JUDGE BATES: Yeah. So I did a lot of work in that area as well. And a fair number of
Bivens cases. I never had to try a Bivens case. That was one of the areas
that was most possible for jury trials early on. There were not that many
jury trials for most of the years that I was in the U.S. Attorney’s Office
because the Tort Claims Act covers tort actions against the federal
government, and those are non-jury, and the Title VII cases were non-jury.
There was no jury trial right against the federal government until 1986 or
so with the change in Title VII, and jury trials became available against
the federal government. So I had very few jury trials during my time in
the U.S. Attorney’s Office. I think two or three is all.
So all of my trials were bench trials to speak of, and not much jury
experience. But I did have some significant cases, and some of the First
Amendment cases that I handled went to the Supreme Court. Two or three
First Amendment cases went to the Supreme Court, one of which was a
dreadful case dealing with mail advertisements of contraceptives. This
was very early in my time in the U.S. Attorney’s Office, and I remember
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we, for the most part, lost the case in District Court, although we sort of
won a little part of it, and then we had to decide whether to take an appeal.
The Postal Service definitely wanted to take an appeal. I wrote a memo to
the Solicitor General recommending appeal, and I had given it to the U.S.
Attorney to review, and one night, the way the office was structured, I
walked by the U.S. Attorney’s office on my way out of the building. I
noticed that Chuck Ruff, the U.S. Attorney, was sitting at his desk with
case books piled up around him. I said hello, and he said I’m reading your
memo, and he had all this law piled up around him. We recommended
appeal. We knew it would be unsuccessful, and indeed it was
unsuccessful in the Supreme Court. But there was a theory, and there still
is a theory, that unless there’s some strong reason not to, you defend a
statute that Congress has passed, and Congress had passed the statute that
was at issue, and so we defended it all the way to the Supreme Court.
A more significant case was the case dealing with demonstrations
in Lafayette Park brought by CCNV, the Community for Creative Non-
Violence, and I litigated that case through the District Court, in virtually a
trial proceeding. We were not particularly successful. It went to the D.C.
Circuit, and I argued it en banc in the D.C. Circuit, and we lost by one.
Six to five, I think. Or maybe at that time it was five to four. I can’t
remember how many judges were on the D.C. Circuit at the time.
Harry Edwards said somewhat serendipitously, that he was afraid this case
was going to make bad law, and indeed we took it to the Supreme Court,
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and from his perspective, it did make bad law because in the Supreme
Court, the government won, seven to two. And that was a pretty
interesting process to be involved in and to be part of the moot court of the
Deputy Solicitor General, Charles Fried, who argued the case. It was a
high-visibility case.
Immediately thereafter there was another case dealing with
regulations around the White House on the White House sidewalk, if you
will. These were security regulations but had great First Amendment
impact, and that was very strongly litigated. I tried that case, even though
it was an Administrative Procedure Act case. Bill Bryant, on the District
Court, wanted a trial, so we had a trial with witnesses, and we did not
come out successfully with him, but then did succeed in the Court of
Appeals. We were confident, and I handled all of that litigation. I was
confident that the D.C. Circuit would take the case en banc, and indeed the
vote en banc was, again, six to five, not to take it. Skelly Wright voted
against taking the case en banc, which was a shocker to all of us, and that
was the only way that that case didn’t first go en banc and then ultimately
go to the Supreme court because the Court didn’t take it en banc by a six
to five vote.
So those were the kinds of cases that I was fortunate to be part of
and to really learn from and enjoy doing. I enjoyed arguing appeals. I
think probably more than I enjoyed trying cases, but both things were
really a part of my litigation experience in the U.S. Attorney’s Office.
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MR. COONEY: I’m sure the Historical Society would like to hear your thoughts as to what
it was like to be arguing that often in front of the D.C. Circuit in those
days.
JUDGE BATES: It was a great experience. There were some fantastic judges. It went from
the time of Skelly Wright and Bazelon into the time of Abner Mikva and
Pat Wald and Ken Starr and others and some very interesting judges.
Scalia, Ginsburg, Thomas, all on the Supreme Court, all of whom I argued
before, and it was really quite an experience. A great experience arguing
en banc and indeed that was probably one of the highlights of my time as a
lawyer was arguing en banc to the D.C. Circuit, which I did on two
occasions. I had experiences such as, I mean generally I had very good
experiences. Some judges are more difficult than others. There are
expressions of “the panel from Hell,” and at different times, it’s been
made up of different judges. At one time, I was arguing a case and Harry
Edwards, who I have a very good relationship with as a lawyer and as a
judge, I’ve had a great relationship with and I admire and I like him, but at
one time, something came up during an argument, and I posed a rhetorical
question in response to it, and Judge Edwards, as he was prone to do,
leaned over the bench, as I’m leaning now, and said, “Mr. Bates, we ask
the questions. You answer them.” It was those kinds of experiences that
one can take away from arguing in the D.C. Circuit, which was always
demanding, I mean you had great judges. At the end of my tenure,
Merrick Garland, I think I argued only one case before Merrick Garland,
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but he was so knowledgeable about the record, was so well prepared. And
Ruth Ginsburg was always so knowledgeable and detail-oriented, and it
was really quite an experience arguing before the quality of the bench that
we had on the D.C. Circuit over time.
I got to know Ruth Ginsburg fairly well. And when she was the
liaison judge to the Rules Committee, it doesn’t go by the name of the
Rules Committee, but the D.C. Circuit Rules Committee. I was on the
D.C. Circuit Rules Committee, and she was liaison judge, and I got to
know her a little bit more than one would when she was on the bench in
arguing cases. Ruth Ginsburg was not that easy a person to get close to.
She was a little awkward, quite frankly, socially. Her husband made up
for that because he was one of the funniest, most gregarious people I’ve
ever known. But I always had a very dear spot for Justice Ginsburg. On
several occasions, three or four occasions of significant events in my
professional life, she would write me a very nice note, and I always
thought that was a wonderful gesture. I remember when she was
identified as the nominee for the Supreme Court, I reached out to her, and
I used the word “congratulations,” and she said to me, “No, John. Don’t
congratulate me. Save that for when I’m confirmed. Don’t congratulate
me on being nominated.” And I remembered that ever since. She was
among the three or four judges in the D.C. Circuit that I developed a pretty
close relationship with, as I did with several of the District judges. And
the District Court was obviously more important. We did more work in
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the District Court than we did in the Circuit just because, as you know,
there are so many more cases in the District Court than in the Circuit.
MR. COONEY: The Circuit was pretty badly divided during your tenure in the U.S.
Attorney’s Office.
JUDGE BATES: Yes it was. Abner Mikva had some interesting times, including a punch in
the nose episode that I was not part of, so I won’t even pretend to repeat.
But yes, there was some real division. Pat Wald and Harry Edwards did
great work as chief judges in mending some of those divides and making it
a more collegial court. But there always was, and there still is, a little bit
of division on the D.C. Circuit that is ideologically based.
MR. COONEY: That is all very interesting. When did you get promoted to being head of
the Civil Division at the U.S. Attorney’s Office? We haven’t covered that
period.
JUDGE BATES: That would be when Royce Lamberth became a District Judge in 1987.
He was appointed to the Court by President Reagan in 1987. I think I’ve
got that right. I became the Chief of the Civil Division. It was not
expected that I would be Chief of the Civil Division. As I said, I was in a
newly created supervisory position that was not a deputy but an assistant
chief, and there was an heir apparent who everyone expected would be
named Chief when Royce went on the bench. Indeed, Royce supported
him. He was a good friend of Royce’s, and I didn’t take that personally
because they had done a lot of things together over the years. But I threw
my name in the ring anyway, and indeed, I was selected. I think I didn’t
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have some of the baggage that the other candidate had, and there was a
third candidate as well, but I didn’t have some of the baggage that that
other candidate had, and I think some people reached out on my behalf,
including the Assistant Attorney General for the Civil Division in the
Department of Justice recommending to the U.S. Attorney that I be
selected rather than this other candidate. And I was selected and became
Chief and had several great years running that office, which is an office
that has always done high-quality work and has had a lot of very capable
attorneys working in it, and I enjoyed working with them very much and
learned a lot as Chief in terms of management of lawyers, management of
a legal office, how to lead an office, a government office nonetheless, how
to work with not just attorney staff but other staff and deal with the
problems that arise from any group, employment group. I guess we had
probably 80 or 90 people because there were 45 attorneys maximum, and
when you added in the staff, maybe not quite that many, maybe 75 to 80
people. It also involved working with government agencies across the
spectrum and with the Department of Justice, and I did a lot of work with
not just the Civil Division of the Department of Justice but with other
areas in the Department of Justice. Antitrust I did a little bit with.
Consumer, Immigration. And then I worked with the Solicitor General’s
Office quite a bit because any government appeal decision is made by the
Solicitor General, and so you write memos as to whether to appeal or not
appeal an adverse decision. And, of course, if a case goes to the D.C.
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Circuit by an appeal by the adversary, then the Solicitor General
sometimes is interested in those cases. And I worked on occasion with the
SG’s office on various matters.
MR. COONEY: Were you able to handle cases yourself, or was it primarily a management
job?
JUDGE BATES: I retained some cases, and indeed, one of the en banc arguments I did, I
did when I was Chief of the Civil Division. And I tried one case, one jury
trial, when I was Chief of the Civil Division because jury trials became
available, and I wanted to do one. I think I tried one bench trial as well in
front of Judge Lamberth because I wanted to try a case before him. So I
did do some work on cases myself, and I stayed involved in First
Amendment matters, and to some extent, False Claims Act matters, but I
did that more from a supervisory perspective than from handling and
managing cases.
It did involve, however, a lot of supervision of younger lawyers
and not so young lawyers because some of the Assistant U.S. Attorneys
were older than I was and more experienced than I was. There was a lot
of review of their work, mainly their written work and some training
within the office. I did some training at agencies as well, a little bit of
teaching, if you will, in that context. But the major thing was the
management of the office and the dealing with the client agencies and the
Department of Justice. Any time there was a significant case, there was
always a question as to whether it would be handled out of the U.S.
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Attorney’s Office, Civil Division, or out of Main Justice, particularly in
the Civil Division of the Department of Justice, Federal Programs branch
for the most part. And so I had a lot of contact with them working out
matters. Indeed, one somewhat interesting story, I handled two cases in
the District Court, and both of them were appealed to the D.C. Circuit, and
they were scheduled for argument on the same day. One was the CCNV
case that I mentioned, and the other was a case called NAACP versus The
Combined Federal Campaign. These were both significant appeals, and
the Assistant Attorney General called me and said John, I don’t think you
should argue both those cases the same day, and I agreed. So I chose the
one I thought was more interesting, the CCNV case, and argued it in the
D.C. Circuit, and Main Justice handled the Combined Federal Campaign
case. Both those cases went to the Supreme Court and were decided
ultimately by the Supreme Court.
MR. COONEY: Did the Combined Federal Campaign case involve an Executive Order?
JUDGE BATES: Yes. It did involve executive orders that were made. The biggest problem
with the Combined Federal Campaign was the exclusion of certain groups,
particularly litigation groups. So the LDF, the NAACP Legal Defense
Fund, had been excluded from the campaign as were some other groups,
and that led to litigation, and indeed, a lot of those cases went before
Judge Joyce Green on the District Court, and I remember going in for one
TRO before Judge Green, and she said to me, I think it was on the record,
but it may have been off the record, she said, “John, you’re a great lawyer.
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I really enjoy you having cases in front of me, but I just wish you had
some better cases.” Because they were very difficult cases to defend,
quite frankly.
Joyce Green was one of my favorite judges and one who I
developed very good relations with. I would stop and, as an aside say, that
other judges that I had a lot of respect for and developed pretty close
relationships with, were Judge Hogan, who wasn’t on the bench the entire
time that I was in the U.S. Attorney’s Office, but a good portion of the
time and was a really excellent judge and is still one of my closest friends
on the Court. I said Joyce Green. I had a lot of respect for Gerhard
Gesell. I wouldn’t say I had a close friendship with him. It’s not the kind
of thing that you developed with him when he was a judge, but I had a lot
of respect for him, and I had some cases that I thought played out very
well. He was just superb at getting to the heart of a matter. He could
identify what really was the crux of the issue and get at it very well. I had
a great relationship with Bill Bryant as well. Not extreme success before
him. For example, the White House regulations case was before him, but
a very good relationship with him and handled many matters before him.
And a great relationship actually with a judge that I came not to have the
same degree of respect for, and that was Norma Johnson. I think she
didn’t handle some things later on as well as she could have, but I had
some matters before her that were very significant, national security
matters, and they required some real sensitivity, and I enjoyed working on
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those matters before her. I will say that as an AUSA, I also had a case in
New York, interestingly. I had forgotten this for a moment, but a case that
was brought by General Westmoreland against CBS News dealing with
the coverage of his time as the commander in Viet Nam. That case was a
very high-visibility, notorious case, but it involved some requests for
information from government agencies, including the CIA, and I
represented the CIA in that case and had to go up to New York and
actually appear in New York before the district judge handling that
litigation, along with an assistant from the Southern District of New York.
And of course the case was being defended, CBS was represented by
David Boies, and so I had some matters with him. Ultimately, indeed, one
case went to the Court of Appeals that I argued against David Boies and
won. Not in the Second Circuit, but in the D.C. Circuit. It was an
information-related case arising out of that Westmoreland proceeding.
So I had some judges that I really had a lot of respect for and
developed some good relationships with.
MR. COONEY: When you became a judge yourself, it must have been very interesting to
have that panoply of approaches in your mind as to the judges you had
these relationships with, handled their cases, and approached these
obligations.
JUDGE BATES: I think it was almost unique, not quite unique. Royce Lamberth would
have had a similar experience. But I had handled so many different kinds
of things before the D.C. District Court and known so many different
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judges that it was an easier transition, quite frankly, because substantively
I was very experienced with the docket. But it was a little easier transition
because I knew some of the judges, but I also knew the court as an
institution pretty well.
MR. COONEY: Speaking of transitions, how did you transition out of the position in the
U.S. Attorney’s Office?
JUDGE BATES: Let me mention one other thing because it leads up to the transition.
There was another First Amendment case that I handled, and it dealt with
leafleting on the sidewalks within and around the Viet Nam Memorial on
the Mall. And this case was brought actually by some religious
organizations right of center, shall we say, who were by the regulations
that existed, the Park Service regulations, were not permitted to do certain
kinds of leafleting. I represented the Park Service. We were unsuccessful
in defending the regulations, and the question then arose should we take
an appeal. I wrote a memo supporting appeal because the agency, the
Department of Interior, very much wanted to defend its regulations. So
we wrote a memo to take that appeal, and to decide the issue, the Solicitor
General asked me to come over to meet with him, and, obviously, I did so.
I brought the Solicitor of Interior with me to the meeting, and what
happened was that the SG decided that it would be worthwhile for him to
basically have a debate. So he had his senior-most deputy who had been
working on the case and was obviously recommending against taking the
appeal debate the issues with me before him. It was a little bit of a
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surprise to me, and I was just crucified. The Deputy SG was very wellprepared
and very knowledgeable and very skillful, and I was just
destroyed. Now, we took the appeal nonetheless because the agency very
much wanted to, and so the SG decided that that was the thing that should
be done, and as expected, we lost three-zip in the D.C. Circuit, and that
was the end of it. But the SG was Ken Starr, and the Deputy, who debated
it with me, was John Roberts. It was an interesting experience, my first
experience with John Roberts. I don’t think he probably remembers that
little vignette, but I do. It was part of my getting to know Ken Starr as
well, which led, in part, to the next transition that you’re talking about.
Now all of my relationships with the Solicitor General did not turn
out perfectly for me, whether it was Ken or someone else. I did get into
the only trouble I ever got into in the U.S. Attorney’s Office was with Jay
Stephens when he was U.S. Attorney. I was dealing pretty directly with
the SG on a case involving the Ku Klux Klan demonstration in
Washington. They wanted to hold a demonstration in Washington. The
local government, D.C., was not agreeing to it. We, the federal
government, felt that we had to. It was sort of a Skokie, Illinois, case, and
we felt we had to for First Amendment purposes, which was a real
problem because ultimately only three or four Klan members showed up,
but 10,000 or 15,000 counterdemonstrators showed up in Washington, and
it turned into a real, real problem on the ground and a problem in court
with the litigation before Judge Oberdorfer, who was having late-night
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hearings. And I was doing this without, from Jay Stephens’s perspective,
in hindsight adequately involving him. That was the only little wrinkle I
ever had with the U.S. Attorney during my tenure there.
My leaving the U.S. Attorney’s Office was not to go directly to
another job. It was to go to a temporary position, if you will, and that was
when the Whitewater investigation was going on.
MR. COONEY: How were you recruited to come over to the Whitewater team?
JUDGE BATES: I was attending the ceremony for the Assistant Attorney General for
Environment in the main hall of the Department of Justice, and as I was
leaving, the Deputy Independent Counsel in Washington, Mark Tuohey,
grabbed me. I knew Mark because we had been on the Board of
Governors of the D.C. Bar together. While I was in the U.S. Attorney’s
Office, I helped to sort of get government lawyers more involved in the
Bar and I was on the Board of Governors of the D.C. Bar. Mark grabbed
me and asked me if I would have any interest in joining the office. He had
obviously talked about this with Ken beforehand, and I knew Ken because
I had argued several cases before him and dealt with him as SG. Indeed, I
think I argued a military case before him on his first day on the D.C.
Circuit. I went and talked to Ken and agreed to come to the Independent
Counsel’s Office.
Now I did so. I had a relationship with him. I had a relationship
with Mark Tuohey, so there was a good footing there. I was looking for
something that would give me more criminal experience as my experience
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in the U.S. Attorney’s Office was almost exclusively civil. Not
100 percent, but 95 percent. I thought that this would be a good diversion
to give me some criminal experience.
So after talking to Ken and Mark, I went to Eric Holder, the U.S.
Attorney, and told him that I’d like to do this, and he supported it and
agreed. I said that I thought I would only do it for six months. He said,
John, you’re going to be there at least a year. I know you’ll be there at
least a year, and that’s okay. And then I went to Jamie Gorelick, who was
the Deputy AG, and Janet Reno, and they both agreed to it. I think they
all thought that it was a good thing to have me in the Independent
Counsel’s Office because I was not partisan, and I had a pretty good sense
of things in Washington. And indeed that’s why Ken and Mark wanted
me to join because I was not viewed as partisan, but I had a real deep
experience with matters in Washington. And so off I went to the
Independent Counsel’s Office.
MR. COONEY: What was your role in the investigation? Were you assigned a subject
matter area or was it more free form than that?
JUDGE BATES: I had a couple subject matter areas. That office was divided into two
locations, Washington and Little Rock, Arkansas, and I was in
Washington, obviously. Mark was the deputy there. I had several
investigations that I was a part of and indeed was the senior attorney on.
One of them was the Vince Foster investigation. The junior attorney on
that matter was Brett Kavanaugh, and I worked on that during the time I
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was in the Independent Counsel’s Office as well as several other
investigations.
But Mark did not last long. Within three or four months, he left
and went back into private practice. Changed firms and went back into
private practice, and Ken then made me the Deputy Independent Counsel
running the Washington office. And again, I checked with Eric, and I
don’t think I talked to Janet Reno, but I think I did talk to Jamie, and they
both agreed that that would be appropriate, and I became the Deputy
Independent Counsel and ran the Washington office and all the
investigations in Washington.
Now that morphed over time during my two-plus years there.
There were different investigations that started at different times, but it
was largely, because we didn’t wind up bringing any criminal case in
Washington, it was largely grand jury work and analytical work. I
handled a lot of witnesses before the grand jury, people like George
Stephanopoulos and others. It was a time that I learned a lot, but I didn’t
wind up doing any criminal trials. I didn’t do any trials in Little Rock
either. I did some work in Little Rock on some of the matters, but more
from a supervisory perspective and from a collaborative perspective.
It was interesting being in a fishbowl, which we were, because of
the publicity and the public interest relating to investigating the sitting
President and ultimately the First Lady to some extent. It was a growth
experience because I had to deal with those sensitive issues and very
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sensitive matters that came up with counsel on the other side, not those in
the office, but those outside the office.
I remember one experience. I got along very well with the lawyer
who was the legal counsel for the Senate Select Committee that was
investigating Whitewater. That was Mike Chertoff, later a Third Circuit
Judge and a Secretary of Homeland Security. We got along very well, and
to this day I still know and respect Mike. But his boss, the Senior Senator
from New York, Al D’Amato, was a little different story, and there was
one occasion where he called me, and what gave rise to the call was we
requested and they agreed to share information with us that they had
accumulated, but we declined to share certain information with them, and
D’Amato did not like this. He called me, and I think was probably, it
seemed like an hour, but it was probably close to ten minutes, that I had to
hold the phone away from my head because he could use the English
language in ways that no one else could, and he was very foul-mouthed. I
just got screamed at and hardly could get a word in edgewise to explain to
him that Rule 6(e) of the Federal Rules of Criminal Procedure did not
allow me to share grand jury information with the Senate, and he just had
to accept that. There was no alternative. But I just had to listen to him
scream at me for ten minutes.
I think that not everything went perfectly in that office. I to this
day felt that some investigations were slower than they should be.
Sometimes it was because of the desire to be more thorough, to protect
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against criticism from the outside. That was certainly true with the Vince
Foster investigation. That was in large part because the right-wing
criticism was really significant and fervent, and Ken felt that we really had
to protect against that, so we went on and on with it, probably longer than
we should have. And some other investigations took a little bit longer
than I felt they should have.
I don’t think the office handled its relationships with the media
perfectly. I am much more comfortable with what, for example, Bob
Mueller did, by simply not communicating with the media than I am with
how Ken handled it. It led to some problems on one or two occasions, and
indeed, I had to handle some media inquiries. Bob Woodward was very
insistent on the telephone with me on several occasions, and on one
occasion because I wouldn’t talk to him for his book. He said something
that was just totally inaccurate. Not critical of me. I don’t think he really
criticized me, but he was inaccurate with respect to something that
happened relating to the search for the Rose Law Firm files. When they
turned up in the White House, there was a search necessary for other files,
and Woodward accepted the description by Mrs. Clinton and President
Clinton’s lawyers, because I wouldn’t talk to him about it, and the
description was totally inaccurate. That’s not to say that I didn’t have a
great relationship with the lawyers from Williams and Connolly for the
President. I did, and indeed I think that that was one of the reasons that I
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was asked to come back to the Independent Counsel’s Office when the
Lewinsky investigation began.
MR. COONEY: Was there a period of time when you were not there?
JUDGE BATES: Yes. I had already left, and then indeed had gone into private practice,
and I was asked to come back because of my relationship with the lawyers
from Williams and Connolly and also with Chuck Ruff who was then the
White House counsel and, as it turned out, with Monica Lewinsky’s
lawyer who I used to share an office with many, many years ago when he
was a Special Assistant U.S. Attorney, and I was a brand-new Assistant
U.S. Attorney. But I was unable to do that. I say unable. I was unwilling
to do that because of the nature of the matter, although I thought I could
add something and something of importance. It also would create a
conflict with my law firm, Miller and Chevalier, so I just decided that as a
new partner at the law firm, I was not going to do that.
But back to the time that I was in the Independent Counsel’s
Office. It was a very educational experience, and at one time, I had
working for me Brett Kavanaugh, now a Justice on the Supreme Court;
Steve Colloton, a judge on the Eighth Circuit and superb judge and
someone who has been mentioned for the Supreme Court as well; Rod
Rosenstein, the former Deputy Attorney General; and Alex Azar, the
former Secretary of Health and Human Services. These were all people
who were working with me and, to some extent, under me in the
Washington Independent Counsel’s Office, and all very talented. I was
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closer to Brett than to the others because both Rod and Steve were in Little
Rock initially, and then we brought them up to Washington when some
investigations turned important in Washington, particularly dealing with
matters such as the Rose Law Firm files and the grand jury appearance of
Mrs. Clinton. I examined Mrs. Clinton in the grand jury.
MR. COONEY: You certainly must have learned a lot. Having jobs with not much
criminal experience and standing up in front of a grand jury in extremely
significant matters. That must have been quite a rapid growth period for
you.
JUDGE BATES: It was. I was a pretty experienced attorney, so it wasn’t growth in my
early time as an attorney, but I certainly learned a lot about the grand jury
and the criminal process during my time there. And on a case or a matter,
a series of cases, it was extremely important, very high visibility, reported
in the press every day, phone calls from the press and others wanting to
talk to me every day and my not talking to them. I pretty much did not
talk to the press. But it was a real growth experience as you indicated.
The relationships that I developed there were important relationships.
Some continue to this day. I’m not sorry that I did it. I’m glad that I did
it. I agreed with the conclusions reached in the Washington office and
indeed in Little Rock. Some of those conclusions were difficult to reach,
and I didn’t fully agree with the process and some of the detours along the
way and voiced my concern, always with respect and always retaining a
very good relationship with Ken Starr. Not as good a relationship with the
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Deputy in Little Rock who was much more committed to bringing cases
and particularly to bringing matters relating to the President and First
Lady, and I had to take the other side of the argument several times. But
ultimately, I decided it was time to go back to the U.S. Attorney’s Office.
It happened in two steps. I handled a matter dealing with notes that had
been taken by the President’s lawyer but not by White House counsel, so it
was a lawyer from outside, someone sort of in the middle, quite frankly,
and that went to the Circuit. Not the D.C. Circuit, but the Eighth Circuit
for Arkansas, and I handled that matter in the Circuit, and it was virtually
a foregone conclusion that the Supreme Court was going to take the case
because it dealt with the privilege that attached to these lawyer notes in
conversations with the First Lady. We won the case in District Court in
Arkansas, and then we won the case in the Eighth Circuit.
Ultimately, I sort of came back to the Independent Counsel’s
Office briefly in order to participate in the matter as it went up to the
Supreme Court, but surprise to us all, the Supreme Court did not take the
case, and I went back to the U.S. Attorney’s Office and once again became
Chief of the Civil Division. There were two people that shared the job as
Chief. One was the person who was the more logical fellow to become
Chief when I got the job, and the other was a younger guy. The U.S.
Attorney was not comfortable with either of them, so he had them be cochiefs,
and I always used that to my benefit to say it took two people to fill
my shoes. And then when I came back, I took over as Chief again. But it
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was clear to me that the time had come to move on. There was no room
for advancement within the U.S. Attorney’s Office, and there was no room
for advancement in the Department of Justice. Indeed, Eric Holder was at
the Department of Justice as Deputy Attorney General by this time, and
while Eric and I were pretty close and Eric wanted me to come over to the
Department, that was not to be. It just wouldn’t be right for someone who
had been investigating the President and First Lady to then be brought
over to a significant position in the Department of Justice, and so, even
though it might have happened in other circumstances, there really was no
room for me to go anywhere within the government, and so I began
looking outside of the government to private practice because of that plus,
quite frankly, there were family needs that really dictated my going into
private practice because my children were starting to reach the age where
we needed to be sending them to college. My wife was working part-time,
and it was time for me to be more of a financial contributor to the family
and particularly to the needs of my children as they were getting ready to
go off to college.
MR. COONEY: This would be a logical place to begin the next interview. I wonder if it’s
possible if I could ask just two questions about the Whitewater
investigation.
JUDGE BATES: Absolutely.
MR. COONEY: The first one is what was your impression of the written report that was
ultimately generated by Ken Starr?
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JUDGE BATES: Well, there were several written reports. There were written reports for
each of the investigations, and I thought that they were very well done. I
thought that they were sometimes too well done, and that was because of
the length of time that some of the investigations took, but Ken’s much
more of a written lawyer than he is a prosecutor, and so written reports
were really done quite thoroughly and quite carefully. So I thought those
were good. I don’t have any problem with them. Now the report that was
done without me being there for the Lewinsky, what I call the Lewinsky
investigation, and that generated the impeachment proceedings, I wasn’t a
part of that, so I would be commenting on it just as you would be
commenting on it, and obviously there were some problems with it given
how blunt and candid it was, but I didn’t have any role in that, so I don’t
think I really have anything more to say about it.
MR. COONEY: One last question. What was your impression of the young Brett
Kavanaugh? You supervised a lot of very good lawyers in the U.S.
Attorney’s Office, and in walks in, who knew it at the time, a future
Supreme Court Justice.
JUDGE BATES: Extremely smart. Extremely careful. Very detail-oriented. I remember
when we were looking at the filings in the Court of Appeals or in the
Supreme Court, he would go over every word. He would read through it
and check every word. Just a very, very careful lawyer and I thought that
his instincts on legal issues were top-notch. He wasn’t an experienced
investigator or prosecutor, so he was learning on the job, but to some
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extent, I was too. I had more experience than he had. He was finding his
way, but ultimately, he did a very, very thorough and good job on all the
matters that he worked on with me. And he’s a delight to work with. He’s
an engaging, funny guy, and I still have a very good relationship with him,
notwithstanding the fact that we don’t see eye to eye on all ideological or
jurisprudential issues. But that’s alright. It used to be and still is in my
book not a problem to have a good friendship and close working
relationship with people whom you don’t agree with on all matters.
MR. COONEY: Well you certainly led a team of all-stars.
JUDGE BATES: They were a team of all-stars, and I was along for the ride.
MR. COONEY: They were good people, but your being there, praising them too much and
downplaying your own role.
JUDGE BATES: Let me say those weren’t the only all-stars. There were people who didn’t
work in the Washington office as much but in Little Rock, someone who
was a future head of Fannie Mae. Amy St. Eve, who is now on the
Seventh Circuit, a very close friend of mine in the Independent Counsel’s
Office and ultimately when she went on the bench first in the District
Court and now on the Seventh Circuit. She and I have worked on any
number of matters together over the years and other lawyers as well who
were very, very talented were in that office.
MR. COONEY: You certainly have an amazing penetration rate in the cohort of terrific
lawyers from that generation.
JUDGE BATES: Absolutely.
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