Nathan Lewin Interview 2

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Oral History of Nathan Lewin
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 Susan McMahon, and the interviewee is
Nathan Lewin. The interview took place in Washington, D.C., on February 6, 2018. This is the
second interview.
MS. McMAHON: I’m Susan McMahon and I’m here with Mr. Nathan
Lewin. This is the second of our interviews for Mr. Lewin’s oral history. Last time
we talked about your early life, your time in law school, and let’s begin today by
talking about your clerkships. So you first started with Judge Lumbard on the
Second Circuit.
MR. LEWIN: In 1960 when I graduated there were some top students in
the class who could immediately qualify for a Supreme Court clerkship. I don’t
think that happens any longer. But there were a couple of people in the class who
received immediate Supreme Court clerkships. John French, who was the
president of the Law Review, I think clerked for Frankfurter. Richard Arnold, who
was number one in the class and ultimately of course the chief judge of the Eighth
Circuit, I think clerked for Justice Brennan. Phil Heymann clerked for Justice
Harlan straight out of law school. So there were a couple of people who got
clerkships immediately from law school.
These were done by and large on the recommendation of the faculty. Frankly I
was a pretty shy student at Harvard, and I did not become that friendly with a lot of
faculty members. I don’t know whether I described this last time, but the summer
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of my second year, the New York law firms that I was interested in came up to
interview at Harvard. Did I describe this last time?
MS. McMAHON: Yes, and how none of them . . .
MR. LEWIN: So I couldn’t get a job. I ended up working for Professor
Benjamin Kaplan and we got along very, very well. I took his copyright course in
the third year, got what was for Harvard a phenomenally high grade, so he
obviously thought well of me. I applied for clerkships and, as I say, I was not an
outgoing student who knew the faculty that well and my recollection was that I
really very much wanted to clerk for Judge Learned Hand. I think that following
year was maybe his last full year before he died. I didn’t get that clerkship. It went
to a fellow named Andy Schoettle on the faculty recommendation. But I did get a
clerkship for Judge Thomas Swan, who was also retired, but he was still taking a
clerk who would live in New York and would be shared with Judge Lumbard, who
was the chief judge. So I did get the Swan-Lumbard clerkship.
Judge Lumbard ended up having two clerks. He had one clerk directly as his clerk
and me as the Swan-Lumbard clerk. His full-time clerk was Fritz Schwarz,
Frederick August Otto Schwarz, who ultimately ended up being years later
corporation counsel for the City of New York. So we were Judge Lumbard’s
clerks starting with the fall of 1960.
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Earlier, before we became his law clerks, Lumbard, together with Judge Henry
Friendly and I think Judge Charles Clark, had heard a very high-profile appeal,
which was the appeal in the case of the Mafia convention. United States v.
Bufalino, I think was the name of the case. In Apalachin, New York, they had a
meeting of top Mafia folks raided I think by the FBI. They all fled. They were
subpoenaed to a grand jury in the Southern District of New York. They all took
the Fifth Amendment when asked what they were talking about in Apalachin. The
U. S. Attorney in the Southern District of New York indicted them all for
obstruction of justice for taking the Fifth Amendment. Very dubious proposition
that if everybody takes the Fifth Amendment, they are guilty of obstruction of
justice, but they were indicted and they went to trial before Judge Irving Kaufman.
There was a fellow in our law school class by the name of Marc Cherno who
became a clerk to Judge Kaufman that year. Cherno and I were friendly from the
Law Review days and he’s a very nice guy. Kaufman had a reputation for being a
brutal, nasty, hostile guy who would frequently fire his law clerks and then rehire
them but, a really bad man, Judge Kaufman. But he was very, very ambitious. He
was then a district court judge, wanted to be a judge on the court of appeals, which
he ultimately became. He also wanted to be in the tradition of some Jewish Justices
to be appointed ultimately to the Supreme Court. He geared his judicial activities
towards these promotions. He, of course, sentenced the Rosenbergs to death, which
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was high profile and made him look like a very law and order judge. People knew
that he was a very nasty man. When Fritz and I became law clerks to Judge
Lumbard, Lumbard had been assigned by the panel to write the opinion in that case
reversing the obstruction of justice convictions on the ground that you couldn’t
convict people for conspiring to obstruct justice because they all took the Fifth
Amendment.
MS. McMAHON: So they weren’t just charged, they were convicted in
fact?
MR. LEWIN: They went to trial before Judge Kaufman, a very highly
publicized trial, they were found guilty, and Kaufman gave them substantial
sentences. They appealed to the Second Circuit. The appeal had been heard before
we became law clerks. The Second Circuit’s procedure was that after they heard
the appeal the three judges would send memos to each other. They were internal
memos. All three panel members agreed that the conviction had to be reversed.
Lumbard was assigned to write the opinion. As we started our clerkship, one of the
tasks was to work on this opinion reversing the convictions.
Lumbard was a very fine man to work for. He was very open, perceptive, far from
a legal craftsman. He was a great administrator. He was chief judge. He loved
being chief judge, all the administrative things that went with it, but it was a joke
frankly in the chambers, that you never let the judge try to write an opinion. He
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had a male secretary whose name I think was Jim Ackell. Once when we were
backlogged, Lumbard said, “I’ll try a hand at this opinion.” Ackell then distributed
it to Fritz and me laughing about it, saying look how ridiculous it is, he tried to
write his own opinion. So the clerks really did a lot of work in terms of writing the
opinions.
Fritz and I worked on this opinion to reverse the conviction. It had been decided
months before we came on as clerks, but the opinion was still in the process of
being written. So we wrote the opinion, it was issued, a lot of publicity, conviction
reversed.
The next day I’m in the elevator. I think we were on the 24th floor or something
like that. The district court judges in the Southern District were on lower floors,
and I’m going down in the elevator and I’m all by myself in the elevator. I pushed
the button to go down to the ground floor, and the elevator stops at the floor that
Judge Kaufman had his chambers on – I don’t remember what floor it was, 13, 12,
whatever it was – and I am alone in the elevator and Judge Kaufman walks into the
elevator. So the two of us are in there all alone in the elevator. Now I had prior to
that time just as a matter of interest sat in on trials in the courthouse, and I sat in on
a trial with Judge Kaufman. I think it was one where Edward Bennett Williams
was defense lawyer, and I wanted to watch that. Anyway, I’m in the elevator and
Kaufman walks into the elevator and the two of us are alone in that elevator. And
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he looks at me and he says, “You’re Lewin.” I thought to myself, “My God, how
does he know who I am?” “You’re Lewin.” I said, “That’s right, Judge.” He says,
and I remember these words clearly, he says, “You have ruined me.”
I’m looking at the federal district judge and Kaufman apparently viewed this
reversal of conviction as a blow to his possible advancement in the federal judicial
system. He used those words, “You have ruined me, you’re Lewin, you have
ruined me.” And again, within the building it was known that Lumbard did not
write his own opinions – “what have Ed’s law clerks said recently?” I guess
putting those two things together he assumed – although I would have thought he
would have known differently certainly with a panel consisting of Lumbard,
Friendly and Charles Clark – that this was not something that a law clerk did.
Nonetheless he singled it out, “You have ruined me.” It was kind of a shattering
moment.
MS. McMAHON: I can imagine.
MR. LEWIN: But that was Kaufman and who knows what the connection
is. Years later when I was practicing law, I appeared before him. He was in the
court of appeals, and I represented John Lennon on the appeal of Lennon’s
deportation order. His immigration lawyer, who was not an appellate specialist,
came to me to handle the appeal, and I wrote the brief, and I argued the case.
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Kaufman again knowing that he was not going to be the judge who was going to
deport John Lennon, ruled in favor of Lennon and we won that appeal.
There was another case which was not high profile involving a lawyer here from
suburban Maryland. The lawyer’s name was Rosenberg, and he was subjected to a
perjury trap. The U.S. Attorney in the Southern District of New York, a lawyer
whom I respect, I think it was then Otto Obermeier who was the U.S. Attorney.
They were after some Mafia figure, and somebody related to him retained this
lawyer. They tried to find out from the lawyer where his client was and where the
other person was. The lawyer was not cooperating. So they sent out two FBI
agents who set up a perjury trap in which they asked him some questions which
they knew he would not tell the truth. They then indicted him for perjury, and I
represented him on appeal.
I still remember being in the courtroom. I argued the appeal, and one of the judges
on the appeal was none other than Irving Kaufman. This was a time when I was
regularly writing articles in the New Republic about legal issues. After I left the
government, I started doing that. Kaufman then says to me in the course of the
argument – maybe this was his little revenge on Lewin – “Mr. Lewin you’re the
fellow who writes regularly in the New Republic, aren’t you? About legal
matters?” I said, “Yes, Your Honor I am.” He says, “Well what you write about
are cases which are really outrageous and things where the courts should be
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correcting that.” I said, “Yes.” “Well, you don’t think that this is that kind of a
case, do you?” I go into my legal argument, “it’s a perjury trap.” Kaufman, I think,
was the chief judge of the three judges on the panel. My client had come up for the
argument. He had been released. He was not sentenced to jail. He just ended up
being disbarred as a result of his conviction. His trial judge was a very severe
sentencer, but even so saw that this was not a case that this guy should go to jail.
My client was sitting in the courtroom, and I think Kaufman knew that. At the end
of the argument, Kaufman turns to both his colleagues on the bench and says, “In
this case, we’re affirming from the bench.” That was it, you know. This was Irving
Kaufman at his maybe standard Kaufman style, taking revenge on this guy who
when he was a law clerk wrote the opinion that dented his reputation. Kaufman
was not a nice man, and everybody knew that at the time but very, very personally
ambitious. In any event that was one of the high points or low points of my
clerkship the year that Fritz Schwarz and I clerked together.
Fritz was a terrific co-clerk, and we enjoyed working together. Then suddenly a
couple of months into the clerkship, with no advance notice at all, I’m sitting in the
office, and I get a call in which I’m told Professor Paul Bator was on the phone.
Bator had clerked for Harlan, and Harlan had apparently assigned him to find
every year a Harvard graduate whom he would recommend. Harlan would take
one Harvard clerk and one clerk from anywhere else. Bator says to me on the
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phone – I didn’t really know him; I never took any classes with him – “Would you
be interested in clerking in the Supreme Court for Justice Harlan?” Well my God
of course. He says, ”Well I’m going to recommend to the Justice that you be his
clerk for next year but you have to go down and meet with him, go down to
Washington and meet with him and see if he likes you and you can get along.”
MS. McMAHON: Do you have any idea why or how the professor came to
recommend you?
MR. LEWIN: I’m quite sure it was because of Benjamin Kaplan’s
recommendation. Maybe it was other people at the law school, but I was not the
kind of student at law school who was an obvious star in terms of speaking up in
class or doing things like that. I did my work on the Law Review. I was an officer
of the Review, but I’m quite sure that this was the result of Bator getting a very
high recommendation from Ben Kaplan.
It just came totally out of the blue. It’s not as if I wrote an application or I filled
anything out. Just suddenly pick up the phone and there is Bator on the phone,
telling me he’s going to recommend me to be the clerk for Justice Harlan the next
term. So I went down to see Justice Harlan. I had never met him before. One of
the things I was concerned with was that I was a Sabbath observer. There were
only two law clerks, and I understood that you had Sundays off but other than that
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you were going to be working at the Court. So Harlan and I had, we had a very
nice meeting, I forget what we talked about exactly but he’s an amazing man.
MS. McMAHON: What were your first impressions of him?
MR. LEWIN: Very, very positive. He never, during all the time that I
knew him, ever disappointed me in any way. The first impressions were not only
that he was a Justice of the Supreme Court but that he was very cordial, very open.
It was a very big contrast from the clerkship that I had with Lumbard. With
Lumbard, his instincts were good, he was very nice, but in terms of being a legal
craftsman or writing opinions, which was not what Lumbard was good at. On the
other hand, Harlan was astounding, in terms of both the work that he did and the
attitude he had towards judging. He was a model Supreme Court Justice. Exactly
what I thought a Supreme Court Justice should be.
He would write substantial portions of opinions. He would take all the cert
petitions. This was before the cert pool, so every chambers reviewed all the cert
petitions on their own. On every cert petition I or my co-clerk John Rhinelander
would write a memo at the beginning of the term. As we had more work to do
later in the term, the memos got shorter and shorter, but we would write memos to
the Justice about every cert petition. Not the prisoner petitions, not the
miscellaneous petitions but the actual printed petitions. Make a recommendation.
Harlan had talked about the fact that he thought Justices’ internal papers should be
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destroyed or burned. Hugo Black did this, but apparently Harlan’s papers are
available I think at Rutgers or some place because somebody contacted me some
time ago and said that they had seen my cert memos in the Harlan papers. Harlan
had a terrific sense of humor too. I occasionally would write him cert memos in
rhyme.
MS. McMAHON: Really?
MR. LEWIN: Some of them were sort of funny kinds of things. But any
way we had this discussion, and I said to him, “I think I ought to tell you, Justice
Harlan, that I am Sabbath observer, and I would have to leave early on Fridays and
wouldn’t be available on Jewish holidays.” I was worried that the New York law
firms had said, “Get yourself a dispensation from a rabbi.” I thought he might say
something like that too. When I told it to him, he immediately said to me, “Well,
are you ready to work on Sundays?” I said, “of course, yes.” I had thought – at that
point also I was single – that I was going to take an apartment that was within
walking distance of the Court on Capitol Hill. I did ultimately take an apartment
there at the amazing monthly rental, I think, of $90 a month.
MS. McMAHON: Oh my gosh.
MR. LEWIN: On Capitol Hill. But I said yes. He said, “Okay that’s fine,
I’ve got two law clerks. Your co-clerk will come in on Saturdays and you can be
here on Sundays.” Fantastic. And my co-clerk, it turned out, was John
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Rhinelander, who had graduated from the University of Virginia. He later became
I think counsel to the Defense Department. He had a very illustrious career.
Unfortunately he died a number of years ago. He was then single, and I was
single.
It turned out that John Rhinelander’s grandfather was the Anglican bishop of
Pennsylvania I think, Bishop Rhinelander. Justice Harlan, whose grandfather after
all was the first John Harlan, had a big painting of his grandfather in his secretary’s
office. He would occasionally bring guests who would come visit him to meet his
law clerks. We had an office near the Justice’s office. His secretary’s name was
Ethel McCall. John Rhinelander and I would be working there typing up memos
or working on drafts of opinions, and he would bring his guests in to meet us.
More than once he introduced us by saying, “Here are my law clerks, John
Rhinelander, whose grandfather is the Anglican Bishop of Pennsylvania, and Nat
Lewin, whose grandfather was the leading rabbi in pre-war Poland.” That’s how
we would be introduced to Harlan’s guests as they would come in. And we both
got married right after I think the summer after our clerkship.
MS. McMAHON: Oh, really?
MR. LEWIN: And, of course, we invited Justice Harlan and Mrs. Harlan to
the wedding in New York at the Fifth Avenue Synagogue, and they came. I don’t
have pictures here, but I have pictures which I ultimately sent to the Supreme
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Court Review when they did a whole issue on Justice Harlan. There is a picture of
him there in a yarmulke with his wife. The line for shaking hands and greeting
people was longer for the Harlans than it was for the bride and groom. Everybody
wanted to shake hands with Justice and Mrs. Harlan. They were very, very nice
and very cordial during that entire year. Then there would be annual reunions of
the Harlan clerks. Harlan’s home was someplace up on R Street in Georgetown, so
we would occasionally be there.
The clerkship was as model a Supreme Court clerkship as you could possibly
imagine. You were working with a Justice who for whom there was really nothing
else other than the matters that were up before the Supreme Court, and we had
some pretty high-profile litigation that year. That was the year of Baker v.Carr on
the whole question of whether you go into the reapportionment area, which
Frankfurter of course felt was a political thicket that you should stay out of.
Frankfurter felt very strongly about that. Harlan agreed with him. I worked on
Harlan’s dissenting opinion in Baker v. Carr. Frankfurter wrote a major dissent, of
course. Harlan did too. The surprise vote in that case I think was Justice Clark,
Tom Clark, who surprised everybody by coming out in favor of getting into the
reapportionment thicket.
In the middle of the year Justice Whittaker, whose chambers were right next door
to Harlan’s, resigned. I remember Harlan telling me that Whittaker came in to say
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it was such a relief to resign. Whittaker was very capable of taking care of
technical tax cases. Whittaker would read his opinions from the bench with
footnotes, and those are the cases he liked. But he told Harlan that when it came to
questions like reapportionment, which Frankfurter was constantly badgering him
about, and due process and equal protection, all these vague constitutional
provisions, he found the decision of those cases just too much for him. He resigned
in the middle of the year and Byron White was appointed to replace him.
So the last two sessions of that Supreme Court term, those two argument sessions,
White was on the bench, but Frankfurter was not because Frankfurter had a stroke
in the middle of that year. I still remember the day that happened. We were sitting
in our office, and we heard ambulances and we didn’t know what it was. Harlan
came in and said, “You know, very quiet, we don’t want to announce this, we don’t
want to tell anybody.” In those days if a Supreme Court Justice was disabled or
sick or something it was a very confidential thing, you didn’t disclose it. He told
us very confidentially that Frankfurter had been taken off to the hospital with a
stroke. Byron White, as I say, had been appointed to replace Whittaker. Whittaker
resigned, but Frankfurter stayed a member of the Court until the end of that term. I
have on the wall in my office over here, I can show it to you, a print of the
Supreme Court building which I sent around to the different chambers to have
signed. Frankfurter signed it in the hospital. It is the Supreme Court as it
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technically was at the end of the 1961 term, but they never sat together that way.
Frankfurter was in the hospital, he signed that print, Byron White signed it because
he was a member of the Court, but White never sat with Frankfurter although they
were technically on the Court at the same time at the end of the 1961 term.
MS. McMAHON: What was the atmosphere at the Court like around that
time? Were the Justices friendly with each other? Was there antagonism?
MR. LEWIN: There was not any open hostility that I saw, but there were
differences in philosophy and opinion that sometimes could not be surmounted. I
remember there was one case, I don’t remember the name of the case. It involved
the right to a jury trial. Our chambers, Harlan’s chambers, were right next to
Black’s, Black’s was a corner chambers, and we were very friendly with the law
clerks for Justice Black. We were all male law clerks in those days.
MS. McMAHON: Of course.
MR. LEWIN: And the law clerks would get together. On that subject I
should tell you that I was friendly with a woman lawyer who graduated Columbia
Law School with high honors, a professor at Cardozo now. Her name is Malvina
Halberstam. I knew her because she was Orthodox Jewish. I knew her from the
Orthodox Jewish community. She was doing very well at Columbia, and she was
applying for clerkships. I said to Justice Harlan, “There is an applicant for a
clerkship who is graduating Columbia whose name is Malvina Halberstam. She’s
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really terrific. I think she would make a great law clerk.” Harlan said to me, “Nat,
I wouldn’t be comfortable with a girl law clerk.” That is what he said.
That was the year that he wrote an opinion, I don’t remember the name of the case,
in which one of the lines was, “A woman’s place is in the home.” The issue was
whether a woman who was indicted for beating or assault on her husband in some
southern state was entitled to get her conviction reversed because women were
automatically excused from grand jury service. I don’t remember the name of the
case, but the Court held that it was constitutional, with Harlan writing the opinion
saying that it makes sense. Women can automatically be excused because a
woman’s place is in the home. That is what he said in the opinion, 1961.
MS. McMAHON: Times have certainly changed.
MR. LEWIN: Harlan was very friendly really with the other Justices. He
didn’t have any personal battles. He was closest to Frankfurter. Frankfurter would
occasionally pop into the Harlan chambers and even occasionally into the law
clerks’ office. I still remember the door opens up and there is Justice Frankfurter
standing there to talk to us. Frankfurter viewed Harlan’s chambers as being part of
his. His kind of people he could talk to.
There was this case involving the right to juries, and we felt, and Justice Black’s
clerks felt, that the two of them should agree. Yet they were writing concurring
opinions that were separate. We came up with this great idea that Harlan should
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come in and talk to Black because they will discover that they really were on the
same wavelength with regard to that case. We prepared the whole thing. We
talked to Harlan. Black’s clerks talked to Black. Harlan went next door, had a
meeting with Black. We waited to see what the result would be. Harlan comes
back to our chambers and he says, “I just can’t agree with that man, I just can’t
agree with him.” That is what he said, “I can’t agree with him.” And we said,
“Why not?” There was a difference in terms of legal philosophy or attitude, but
that’s what happened. They ended up writing separate opinions, although they
were very similar in terms of results, but they could not agree on the same opinion.
That year also involved a New York State Regent’s prayer, Engel v. Vitale, in
which the Court, with the exception of Justice Stewart I think, ruled that the New
York State Regent’s prayer was unconstitutional. I certainly agreed with that at the
time. Black was assigned to write the opinion. Black writes an opinion in which he
says this is unconstitutional for a number of reasons including not only that the
state is writing a prayer, but that the state is spending money writing a prayer. It’s
an expense out of the public funds for religion, which is not permitted according to
Black. Black was very strict, very strict on that. Harlan disagreed with that. His
view with regard to expenditures allegedly in violation of the establishment clause
of the First Amendment was much closer to what the Court is today. It was not as
absolute as Hugo Black was. So he did not join the Black opinion. He wrote a
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separate concurrence in that case. It turned out that because there were a couple of
Justices who did not participate in that decision, Black’s opinion would only have
gotten four votes. So Black toned down his opinion. Harlan said I will withdraw
my concurrence if Black narrows his opinion so it does not talk about financing of
religion. That is what happened. Black narrowed his opinion and Harlan withdrew
his concurrence. I have the unpublished concurrence in my office. Just wait a
minute, let me bring it in.
MS. McMAHON: Sure.
MR. LEWIN: So there [reading], “In Engel v. Vitale Mr. Justice Black
assigned to write the opinion of the Court first circulated an opinion which held
that the New York State Regents prayer was unconstitutional in three respects …
an officially government-sanctioned prayer . . . preference . . . amounted to support
of religion with tax funds. The breadth of the opinion prompted Justice Harlan to
circulate the short concurrence which appears at page 1119 of this volume.
Douglas also circulated a memorandum in which he expressed . . . to the result. It
appears that Justice Black’s opinion spoke for a majority of the seven-man Court
but commanded no more than four votes. It was suggested by Justice Stewart that
the case be set for re-argument so that the majority opinion would speak for at least
five Justices. At this point Justice Harlan advised that he would be able to join
Black’s opinion if it were more narrowly drawn. Consequently, the decision was
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composed and joined in by Justice Harlan as well as by Justice Douglas, and
Harlan withdrew his concurrence.” So he had originally written a concurrence.
This was the limited ground on which Harlan would have concurred if Black’s
opinion had stood as was originally.
MS. McMAHON: Did you have any role in crafting this concurrence?
MR. LEWIN: I may have, I may have done a little bit of editing, but this
was Harlan himself. He wrote that. He would write it and then he would give it to
us to maybe make some suggestions. I don’t remember. I may have made some
suggestions. But this was the Justice’s individual, personal work. No question. I
remember that.
MS. McMAHON: Was that true of most of his opinions, and most of his
writings, he would do the first . . . ?
MR. LEWIN: One case was a very technical milk marketing order case in
which there was a conflict between circuits. I had worked on a milk marketing
case when I clerked for Lumbard. It was very technical, and you had to work
through the regulations to see what the impact would be. This case comes up to
the Supreme Court. I don’t think a single Justice on the Supreme Court really
understood the milk marketing order. I did because I spent a lot of time on it. So I
wrote this memo that Harlan distributed about the milk marketing orders. Long
memo. I wrote all that – eighteen, nineteen, twenty-two pages. Harlan distributed
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it, the case was argued, the Court rules consistently with this, I don’t even
remember the details of it. The opinion was assigned to Harlan because he was the
only Justice who appeared to know what this actually did. I wrote the opinion in
that case. The Lehigh Valley Cooperative Farmers case. I can’t say that I felt that
Justice Harlan totally understood it either, but he was willing to accept what I said
about it. I haven’t read this memo in years, but I wrote this. I wrote this whole
thing, and the opinion follows that memo. So on something like that, very, very
technical, he relied on his law clerks. And another thing that he relied on when I
clerked was this case, which now is reported in various criminal law casebooks.
MS. McMAHON: Robinson v. California.
MR. LEWIN: Robinson v. California was a case involving a drug addict,
who was arrested and prosecuted, not because he was using drugs, but because he
showed signs that he was an addict. He wrote a pro se petition, which in those
days were distributed on carbon paper. They used to call them “flimsies” because
the prisoners’ petitions were distributed on carbon paper. It was our job to look
through the flimsies and see whether there was anything in any of them that
warranted granting cert. I came across this case. Harlan says in his memo it
should be taken off the special list a couple of weeks before, and it was again
passed at our last conference so that I might look into it. I called his attention to it.
I said this guy has been prosecuted not because he used narcotics or because he
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was found with narcotics, but because he had needle marks in his arm. You can’t
prosecute somebody because he’s got needle marks in his arm. The statute said,
“be addicted to the use of narcotics.” It recites how he was convicted because the
examining officer said he obtained a fix at a gas station. He admitted that he had
obtained a fix a week before his arrest, but not because he was then using
narcotics. He was an addict, and that was a crime. Harlan said, [reading] “the
punishing in this manner for the status of being a drug addict raises serious
constitutional questions . . . .”
So I drafted this memo to the conference, and the Court granted cert in Robinson v.
California, they granted a cert petition in that case. It was argued the last argument
session of the term. Byron White was already on the Court, Frankfurter was after
his stroke, but White was on the Court. The Court ruled that the conviction was
unconstitutional. The case was not assigned to Harlan. It was assigned to Potter
Stewart. Stewart wrote an opinion that did not follow this rationale. Robinson v.
California said it violated the Fourth Amendment somehow, which is very peculiar
because we had distributed this memo, and we thought it was a due process
violation. The opinion as distributed came out very close to the end of the term.
That’s one of the problems at the end of the Supreme Court term. If they are ready
to leave sometimes opinions get sent out very close to the end, and several Justices
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signed on to Stewart’s opinion. Harlan is shown in the U.S. Reports just concurring
in the result on due process grounds.
I particularly recall that Byron White dissented. He had been Deputy Attorney
General and he was very pro-law enforcement, even in his first term. He felt you
could convict the guy on the evidence that was shown. So he dissented in his first
term on the Court from that result. I was sort of shocked. We were sitting in our
office as law clerks and the door opens and Byron White walks in. New Justice.
He’s there to talk to us, and to me really because I had written this thing about
Robinson. He thought that the result that the Court reached was wrong and he was
going to dissent. But he came as a young Justice, first came in to talk to Harlan’s
law clerks about it. I remember we had a couple of discussions. I had a couple of
discussions with Byron White about Robinson v. California, which he knew I had
lifted out of the pile of in forma pauperis cases and gotten the Court to grant cert
and then to reverse. So that was another memorable thing during that year.
MS. McMAHON: How did you feel when Justice White walks in to talk
with you?
MR. LEWIN: We discussed the merits of the thing. He was making
arguments that the conviction should be affirmed, not reversed. As I said
ultimately the decision in the case was not on the ground that Harlan and our
chambers had taken it off the dead list, gotten the Court to grant cert and decided.
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The bottom line being not what Harlan had urged, but on the ground that was not
assigned. We had expected to be assigned the opinion because of this, but the
opinion assignment process was such that it got assigned by the senior Justice in
the majority. Warren being the Chief, he just assigned it to Stewart, and then now
comes this opinion, which was a surprise.
MS. McMAHON: Are there any other cases that really stuck out to you
during your time at the Supreme Court?
MR. LEWIN: Well, Baker v. Carr, Engel v. Vitale, the milk marketing
case, Robinson v. California. One of the other things was that this was my
introduction to Supreme Court advocacy. Today the law clerks come out to watch
almost all the arguments. In those days, Harlan would say, don’t bother coming in
because there were a lot more arguments, they had 150 cases. “Don’t bother to go
in to listen except when you know I think it’s worth your hearing it.” I remember
him saying there was an advocate, a Supreme Court lawyer by the name of Fritz
Wiener, Frederick Bernays Wiener, who frequently appeared to argue cases in the
Supreme Court. Although he was not arguing for the government, he still followed
the traditional attire of people arguing. He would come in in tails. Harlan
recommended we go in and hear Fritz Wiener’s argument, and certainly Archibald
Cox’s arguments in the Supreme Court. There were a couple of people at that time
who the Justice said, “It’s worthwhile going in and you ought to hear the
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argument.” But I did not hear all the arguments. I don’t know whether I heard 50
percent of the oral arguments in the Supreme Court that year, because the Justice
felt your time is better spent doing something else rather than hearing the
arguments.
MS. McMAHON: Do you think that seeing some of those arguments
inspired you to be a Supreme Court advocate one day?
MR. LEWIN: It did not take much inspiration for me to want to be a
Supreme Court advocate. When the opportunity presented itself to go work for the
Solicitor General to argue cases in the Supreme Court, I grabbed it. There wasn’t
even a second thought about it. The year that I clerked after all was the 1961 term.
In January of 1962, John F. Kennedy is going to be delivering the State of the
Union message. Harlan says to us, “I’m not going to the State of the Union
message because I do not think it is appropriate for a Justice of the Supreme Court,
or for anyone from the judicial branch, to be there because it is a political event.”
Harlan as a matter of principle did not attend State of the Union messages. And
told us why. He said that that was the reason. But it was very exciting, with the
Kennedy administration, Robert Kennedy being Attorney General, people who
were clerking on the Court thought about the next thing you were going to do.
You were going into private practice or were you going to go to the government,
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some government job. The idea of going to work for the Department of Justice
was very exciting.
The law clerks of the Supreme Court had a room where we would have lunch. We
could have lunch together, go down to the cafeteria, take our stuff, go over to the
law clerks’ lunch room. We invited very important people to come and have lunch
with us, and they would speak to the law clerks. The Chief Justice’s senior law
clerk – the Chief had three law clerks, everybody else had two – had the job of
arranging for these luncheons. He invited Harry Truman, and Truman came and
had lunch with us. I have a picture at home of the law clerks with Harry Truman.
We’re sitting around this long table, and the door opens up and President Truman
comes in, head of the table. He says, “Guys, I just want you to know you don’t
have to be a lawyer to be on the Supreme Court.” Justice Black’s law clerk, a very
clever guy, yells out, “Mr. President, your appointments prove it.”
MS. McMAHON: Do you remember any other speakers that you had?
MR. LEWIN: We had Dean Acheson. There was a whole incident with
Robert Kennedy, the Attorney General. Kennedy was invited to come to speak
with the law clerks. Kennedy had an original idea in response. He said “No, rather
than me coming over there, why don’t you law clerks come over to the Department
of Justice and I will have Solicitor General, all the assistant Attorneys General and
we’ll all meet and have lunch together?” Great idea. So the day was set when all
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the law clerks went over to the Department of Justice. There is a huge room in the
Attorney General’s suite at the Department of Justice, which is now basically used
as a conference room, but Bob Kennedy put a big desk in there. He would sit
behind the desk, and he frequently would have new lawyers or other lawyers at the
Department of Justice sitting in a semi-circle around that desk in this huge room.
He would talk to them. He was very good at motivating lawyers. Later when I
worked at the Department of Justice, I saw that.
So we went over there. In that big room they had little tables set up and we sat
around and had a great lunch with different Assistant Attorneys General and the
Solicitor General. At the very end of that lunch Bob Kennedy says, “Okay, now
take your chairs and sit in a semi-circle around here and ask some questions and
we can talk.” We sit around this semi-circle and Kennedy says, “Okay, do you
have any questions?” People asked him some questions. Then George Saunders,
Justice Black’s law clerk, says, “Mr. Attorney General, Mr. Kennedy, when you
were counsel with the Labor Committee, you subpoenaed the head of the
Teamsters Union, Dave Beck, to testify.” It was filmed or televised. “You asked
him questions to which he took the Fifth Amendment.” Kennedy says, “Yeah,
that’s right.” Saunders says, “Well, you knew he would take the Fifth Amendment
to all these questions. Why did you keep asking him more questions that made
him take the Fifth Amendment?” Kennedy says, “Well. we have the right to go
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and ask the questions and he’s got to take the Fifth.” Saunders did not let him go.
He said, “But you knew that was just kind of embarrassing.” At that point
Kennedy got mad, and he pounded on the table and said, “Okay, thank you folks, it
was nice having you here, goodbye.” It ended on a really rough note.
We all went back to the Supreme Court. About a month or two months later an
article appears in Esquire magazine about the Kennedy brothers, Jack Kennedy,
Robert Kennedy and I think even then Ted Kennedy. They interview the
Kennedys, and Bob Kennedy talks about the fact that you have to go through
adversity in order to really know how to deal with life. He’s quoted in the article
saying, “Why just the other day I had lunch with the law clerks of the Justices of
the Supreme Court. They were all at the top of their class at law school, their future
is set for them, they’ve got no problems, they will have an easy time in life, they
are soft, they don’t have the power that one should have. All that they were able to
talk about with me was the fact that the elevators in the Supreme Court were not
working well.” Derogatory statements about this lunch. I don’t remember anybody
complaining to him about the elevators, but that is what he says in the article. That
article made its rounds in the Supreme Court and went to the Chief Justice, Earl
Warren, as well. Warren issued a rule based on that experience that if the law
clerks have lunch with any member of the Cabinet, they are not allowed out of the
building. The lunch has to be in the building. That was the Chief Justice’s ruling.
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This was a big controversy that year that we clerked. These are kind of the
memorable things you remember.
I was excited at the possibility that I would work for the Department of Justice for
an Assistant Attorney General. My wife and I got married after that year, that
summer, August of 1962, is when we got married. She was born in New York,
raised in New York, and her attitude, which she had told me and has repeated to
this day, is that she did not want to marry somebody who was going to be living
any place other than New York. I managed to persuade her that, well, for a year or
two years while I would be working at the Department of Justice it was worth
living in Washington.
During the year that I clerked I applied to Assistant Attorneys General. There was
a slot that was set up in the Kennedy Department of Justice as Special Assistant to
an Assistant Attorney General. And the Supreme Court law clerks vied for those
slots. One that everybody wanted was to be Special Assistant to Louis Oberdorfer,
who was then Assistant Attorney General in the Tax Division. Not that I wanted
tax law, but nonetheless everybody told me Oberdorfer was a fantastic guy. So I
applied for that, didn’t get it. Then they said, “The Assistant Attorney General in
the Civil Division, John Douglas, he’s really good, apply to John Douglas.” I
applied to him, didn’t get it. And then finally somebody said to me, “Well, how
about the Criminal Division?” I said, “Criminal Division, who wants to do
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Criminal Law?” In those days you didn’t do any Criminal Law. You had a little
course at Harvard Law School on Criminal Law. You didn’t want to do Criminal
Law. But if that is the only way I am going to get to the Department of Justice,
fine. So the Assistant Attorney General in the Criminal Division was a fellow by
the name of Herbert (Jack) Miller. I applied for that, and I got that job. So I
became Special Assistant to Jack Miller in the Department of Justice. The fact that
he was in charge of the Criminal Division was not something attractive to me, but
nonetheless that was a way of getting into the Department of Justice and
persuading my new bride that it was worth a year or two years in Washington
rather than moving back to New York. So I started in the Criminal Division after
we got married. I took a short honeymoon and then started working at Main
Justice. In those days Main Justice was totally open, no security.
MS. McMAHON: Oh, really?
MR. LEWIN: Zero. Anybody could walk in off the street. If your office
was open, they could enter your office, take stuff off your desk and walk out of the
building. Nothing, absolutely zero, in terms of any security at the Department of
Justice. I had an office in the Criminal Division, second floor, and I got to work on
a brief or two briefs in some important cases in the Second Circuit. I got to know
Jack Miller a little bit at that point. I didn’t really know him well. I became
friendly with his First Assistant, who was the guy who really sort of got me into
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this job, a fellow named Howard Willens, later with Wilmer, Cutler & Pickering,
now WilmerHale, a fine lawyer. I was doing these briefs, and then Miller tells me,
or Howard tells me, “There is this case down in Nashville, Tennessee that is going
to go to trial soon against Jimmy Hoffa.” I have to tell you, I barely knew who
Jimmy Hoffa was. I was told this is very high on the Attorney General’s priorities,
and there are three lawyers down in Nashville who are preparing for this trial. The
trial is going to start sometime in October or November. I forget exactly when.
“We want you to go down there. They need a guy who will write the legal
memoranda and work on the legal side of the case. Not do the trial work, but
actually do the legal work in the case.” So I said okay. I did not know how
important Jimmy Hoffa was to Bob Kennedy at that point but nonetheless okay.
So I packed up my wife, and we drove down to Nashville, Tennessee.
MS. McMAHON: So now it’s not just Washington, D.C. but Nashville.
MR. LEWIN: Now it’s Nashville, Tennessee, for a while, for a trial. And
again this is the Jewish side of the thing. We arrived in September in the middle of
the Jewish holidays. Three guys are waiting for me: Jim Neal, a guy by the name
of Charles Shaffer, who was a very fine trial lawyer who ultimately ended up being
John Dean’s lawyer years later in Watergate, and a fellow by the name of Jim
Durkin, who was in charge of the documents for the case. The case was almost all
documentary. The whole theory of the prosecution had been created by Jim Neal.
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Jim Neal was a lawyer from Nashville, very, very talented, very bright, who
applied for a job with Bob Kennedy because Neal had a master’s degree in tax law/
He had gone to Georgetown and gotten a tax degree. Bob Kennedy met him and
hired him. Kennedy decided from his familiarity with Neal from the interview that
Neal would be better in the Criminal Division as a trial lawyer. It was a brilliant
decision because Jim Neal was a magnificent trial lawyer. He was in charge of the
Hoffa case. He worked out this legal theory under which Hoffa was prosecuted for
a bunch of misdemeanors that grew out of an arrangement Hoffa had with the Test
Fleet company, which had hired the Teamsters. Payments were being made to
Hoffa’s wife, surreptitious payments. Therefore, Hoffa was benefitting illegally
from this arrangement. So he was indicted on a whole bunch of misdemeanor
counts that were to go to trial in Nashville. And I was sent down to be the legal
guy.
When I arrived, they were waiting for me. They had all these legal memoranda that
I had to write. I explained to them that on the Jewish holidays I would not be
available. I’m told that they got on the phone that night to call either Jack Miller or
Bob Kennedy or both to complain that they had sent down some guy who is not
going to be able to do any work for them. After a couple of weeks they changed
their tune. I immediately started working with this great team. Neal and Shaffer
were phenomenal trial lawyers. The judge had earlier suffered a heart attack. His
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name was Miller, and he would not sit in the afternoons because he was recovering
from a heart condition. Court was only until 1:00. In those days, no security in the
courtroom, nothing, other than marshals up front.
One of the memorable things happened during the trial. Hoffa had four lawyers for
that trial, four lawyers. Hoffa would sit at the end of the table and the four lawyers
were on the side. He had a local lawyer by the name of Osborne, who was a fine
lawyer. Unfortunately, he was later convicted of jury tampering and went to jail
and was disbarred. Here was the jury box, the government table was over here.
Neal, Shaffer, and Dirksen, who was handling the documents, and I would sit
behind them. We had an opening sliding door.
For a couple of days in the trial, the leading journalist in the United States then,
Drew Pearson, came to hear the trial. He sat next to me. He slept through most of
the time that he was there because it was a very boring trial. At one point I’m
sitting there near these doors that open up. The door swings open, a guy walks
past wearing a raincoat. I’m thinking to myself, what’s he doing? Hoffa is sitting
at the end of the table, his four lawyers are there, and suddenly I’m looking at this
guy and he pulls out of his raincoat this huge pistol, and he starts firing. Hoffa’s
four lawyers dive under the table. I go down on the ground. I’m thinking, who
knows what is going to happen here. Hoffa was the one guy who stood up. This
guy was firing at him. Hoffa stood up and starts punching him. It turned out that
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this was a guy who was sort of crazy. He was in some flop house in St. Louis, and
he said a dream came to him, “Get Hoffa, get Hoffa.” He went out, he bought a
pistol, BB-pellets or something and came to court to kill Hoffa apparently. But
since these were just BB-pellets, nothing happened, except that Hoffa beat the hell
out of him.
The funny thing is the transcript of the trial. The jury was out, thank goodness.
Hoffa had one lawyer by the name of Bufalino, who was incompetent as a lawyer.
He didn’t actually do anything in court, but he was there in order to try to give the
judge a heart attack. That was the strategy I think. He would get up and make the
most outrageous arguments. The judge would excuse the jury, and Bufalino would
go into this whole tirade about something. Fortunately when this happened the
jury was out, and Bufalino was in the middle of one of his tirades. I don’t have a
copy of the trial transcript, but what we saw afterwards was really funny. Bufalino
was talking about some nonsense, and then the next thing that happens in the
transcript is that one of the lawyers says, “Your Honor should someone wipe the
blood off the floor?” Hoffa got up and punched this guy and then the marshals
jumped on him, so there was blood on the floor. That’s the way the transcript
reads: “Your Honor, should someone please wipe the blood off the floor.”
MS. McMAHON: Oh my goodness.
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MR. LEWIN: Since the jury was out, it did not affect the jury. What did
affect the jury was that Hoffa, during this trial, was trying to bribe the jury.
MS. McMAHON: Oh.
MR. LEWIN: And that’s ultimately what convicted him. I’m the junior
guy on this four-person team. I’m just doing the legal work. Kennedy’s very close
friend, Walter Sheridan, was really the head of this labor racketeering unit
although he was not a lawyer, he was an investigator, a very fine guy. He was
born on the very same day that Bob Kennedy was born. He was a very close friend
of Kennedy’s. Walter was down there in Nashville. It turned out that a guy who
was one of the Hoffa associates back at the hotel, Edward Grady Partin, who had a
long criminal record, was cooperating with Sheridan. He would tell Sheridan
things that he would hear from Hoffa in the hotel. This ultimately was the issue
that went up to the Supreme Court – whether this was a violation of the Fourth
Amendment or the Sixth Amendment. He would not tell him, at least so far as I
knew, anything about the legal strategy, but he would tell him things that Hoffa
said to Edward Grady Partin because Hoffa trusted Partin. Partin had a long
criminal record, he was the head of a Teamsters local down there, and Hoffa never
thought that Partin would betray him in any way. So he talked to Partin.
Partin talked to Sheridan. As a result of Partin talking to Sheridan we discovered
that the husband of one of the jurors, a woman on the jury, was going to meet with
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the head of the local Teamsters’ union. They had made a contract under which
presumably there was going to be a bribe paid by the head of the local Teamsters’
union to the husband of the juror so that the juror should vote for Hoffa. The FBI
staked out the location, which was some place outside of Nashville, where they
were going to meet in the middle of the night. They arrested the husband, arrested
the head of the Teamsters’ local who was going to meet out there with him, and
they brought them in the next day to the courtroom to question them. It was very
dramatic, because when the head of the Teamsters local, whose name I think was
King, was brought in by the marshals to be questioned by the judge and by the
prosecutor, Hoffa sat there at his table and went like this (gesturing). Neal jumped
up or Shaffer jumped up and said, “He’s signaling to the witness that he should
take the Fifth Amendment.” The guy of course took the Fifth. Later, in the jury
tampering case which was subsequently tried in Chattanooga, Tennessee the
following year, which is where Hoffa was convicted, this became evidentiary.
But during the trial nobody knew about Partin’s participation and his talking to
Sheridan other than our prosecution team and Walter Sheridan. They had the
evidence with regard to that juror because her husband was caught in the middle of
the night, or one in the morning, with the head of the Teamsters local. As the trial
moved to its conclusion, Partin had reported to Hoffa that he had “the colored
juror” – there was a black juror – “in his hip pocket” because another Teamsters’
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local president had been in touch with him, and he was in Hoffa’s hip pocket. We
didn’t have any evidence other than this statement Hoffa had made to Partin, and
we wanted to excuse this juror, get the juror out of the box.
So what do we do? We decided that we were going give the judge an affidavit
from Partin that Hoffa had said this to him, that Hoffa said to him – a “I’ve got the
colored juror in my hip pocket.” Somebody had to draft the affidavit for Partin to
sign. Who was selected to draft the affidavit? The junior member of the
prosecution team. So I drafted this affidavit for Edward Grady Partin that he was
in the hotel with Hoffa and that Hoffa had said to him “I have this juror number
whatever it is, the colored juror, in my hip pocket” because of Teamsters’ president
or somebody had talked to him. Sheridan takes that affidavit that I drafted to his
next meeting with Edward Grady Partin. Partin signs it, and Sheridan brings it
back. I stick it into a sealed envelope. Before the trial is over – one of the days
toward the end of the trial – Neal says to the judge at the end of the day’s hearing,
“Your Honor, we have a matter that we want to take up in private with the public
out.” The judge says okay. Everybody is thrown out of the courtroom except
Hoffa, his four lawyers, our legal team and the judge. Neal says, “Your Honor,
we’re going to move to excuse juror number whatever it is, on the basis of the
document that I am handing up to the court, sealed.” Hoffa gets up and his lawyers
say, “Well, we have a right to see what’s in that.” Neal says, “No, no, this has got
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to be kept confidential. We’re handing it up to the court.” They give it up to the
judge. Hoffa is up there saying to his lawyers, “I want to know what’s in there,
find out what’s in that document.”
The judge opens it up, reads it. He says, “On the basis of this affidavit I’m going
to excuse the juror.” Hoffa’s lawyers are saying, “We have a right to see what is in
that document.” Jim Neal was a great friend and a very nice guy, and I really liked
him. He says to the court, “Your Honor, I haven’t even seen what’s in that
envelope. There is only one person in this courtroom who has seen it and that’s
Mr. Lewin.” I’m thinking, “My God what has he done to me? They are going to
be after me.” “Mr. Lewin is the only one who has seen what’s in that envelope.”
Hoffa is banging on the table that he’s got a right to see it, the judge refuses, he
seals it up again, he excuses the juror, and I go back to the office and I say, “What
have you done to me?” My friends on the team all say, “Well, Nat, we suggest that
what you should do every morning is open up the hood of your car and look under
the hood of your car.” I don’t know what I’m supposed to be looking for, but I
figured okay. So I opened up the hood of my car. I didn’t find anything under the
hood of the car, but that was my experience with the Hoffa trial.
I had learned then, and maybe before my clerkship, how to use the Federal Digest.
At different times during the Hoffa trial his lawyers would make an objection
based on so and so, and when I heard the objection I would run out to the U.S.
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Attorney’s office library, go through the Federal Digest, find a case or two that
was relevant, and bring it back while they were still arguing or while Neal was
trying to respond to their argument. I would give him the case, and they would cite
the case to the judge. The judge would look at it and say, “Yeah, you know that
controls.” So that got me a nickname that Hoffa gave me. “Instant Law,” he called
me. “Instant Law is coming in.” That stuck during that trial. That was my
contribution in terms of the first Hoffa trial – to be Instant Law, to bring the cases
in when the argument would be made in court, and I would go running out to do
the research, and then bring the case in to Jim Neal.
I ultimately ended up recommending Jim Neal to be the chief Watergate trial
lawyer. I recommended that to Archie Cox and to Phil Heymann years later when
they were doing the Watergate investigation. Heyman and Cox asked me, “Who
do you think would be a good lawyer to be prosecuting these cases if we bring
them?” I said there is one guy, Jim Neal, down in Nashville. They hired him
based on the fact that I had recommended Neal to both Heymann and Cox. He
ended up doing the trials against Haldeman, Ehrlichman, and Mitchell. Jim Neal
was the chief trial lawyer for them in all these cases.
But anyway, that was the exciting thing about the first Hoffa trial. Then I came
back, and I thought about the view I had about Criminal Law was that it’s not what
I want to do. But once I experienced the Hoffa trial, I changed my mind. Another
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job that I had during the Hoffa trial was talking to the local reporter for the
Nashville Tennessean, which was owned by John Seigenthaler, who was a good
friend of the Kennedys. The local reporter, a woman whose name I now forget,
was not too bright. She was covering the Hoffa trial, and it was regularly my job
after each day’s session to sit down with Nellie. I explained what had happened in
court that day so that she was able to write for the Nashville Tennessean the next
day what had happened in the Hoffa trial in Nashville.
When I came back to Washington, I said to Jack Miller, “This is really interesting,
I didn’t do any of the actual trial work in the Hoffa case, but I would really like to
get the experience of trying criminal cases.” Miller said “Okay, we’ll assign you
for a couple of months to the U.S. Attorney’s Office in the District of Columbia.”
I was assigned on a temporary basis to the U.S. Attorney’s Office in the District of
Columbia. In those days the Court of General Sessions did not handle felony cases
in the District of Columbia. Every felony in the District of Columbia – robbery of
a store or unauthorized use of a motor vehicle – was tried in U.S. District Court
before a federal District judge and a jury. So suddenly I found I was in court
almost every day trying cases before juries out of the file, basically. Unlike some
of the more experienced people in that office – it was a small office at the time –
they would frequently try cases never even having talked to the witnesses, the
government witnesses. They go on the stand and they would look at the file and
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ask them questions. I was more conscientious than that, so I would call the
witnesses the day before the trial or two days before the trial to talk to my
witnesses so that I would know what they were going to say on the witness stand.
I did some interesting jury trials at that point, robberies of some store or
unauthorized use of a motor vehicle by some guy. I had a regular diet of jury trials
before U.S. District Judges. There is nothing that matches that in terms of feeling
comfortable in court. It is great training to be a prosecutor, to do defense work, or
to be in court all the time so you can feel comfortable in court. So I did get that,
and I continued to work in the Criminal Division.
I worked on the theory of prosecuting Jimmy Hoffa for jury tampering because we
had all this evidence. He still did not know that Edward Grady Partin was the guy
who was going to be our central witness in a jury tampering case against him.
Somebody recently as a matter of fact sent me copies of some memos that I had
written at the time outlining the theory of the Hoffa jury tampering charge that we
brought against him. It was moved to Chattanooga, Tennessee, instead of
Nashville, so that trial was in Chattanooga. Kennedy decided, together with
others, that we had to have a senior Tennessee lawyer prosecuting that case. Jim
Neal was a young guy from Nashville. So they hired a very highly respected
Tennessee lawyer named John J. Hooker to be the senior lawyer. Neal and Shaffer
and the old team and I were doing all the actual trial work. We had a trial in
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Chattanooga in which, again, I did not do any of the trial work. I just did the legal
stuff. It was a total shock to Hoffa when Partin was called to testify. Hoffa never,
never imagined that this guy was at the center of the government’s prosecution of
him for jury tampering. Partin testified, and the jury found Hoffa guilty.
By then I was invited by Archie Cox to join the Solicitor General’s Office. I
grabbed that opportunity. It was fantastic. In those days the Supreme Court did
not apply the rule on ineligibility of former law clerks. You couldn’t work on a
case within a period of time that followed your clerkship. Phil Heymann went
straight from being a clerk for Justice Harlan to the Office of the Solicitor General
and started working right away on cases – not cases that he had seen the year
before but cases that would violate a three-year rule. So long as he didn’t put his
name on the brief, he could work on it. Archie Cox thought it was okay, and the
Court thought it was okay. Justice Harlan, who was very proper and a stickler for
detail, knew that I was working for the Solicitor General’s Office within the period
of time that the rule essentially prohibits it. My name was not on any brief, and I
did not argue any cases until that time period elapsed.
I was working for Archie Cox in the Solicitor General’s Office when Hoffa
appealed his conviction. When that case went up to the Sixth Circuit, I wrote the
government’s brief in that appeal. I was already with the Solicitor General’s
Office, and I argued part of the argument. Howard Willens came out, and we both
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argued the appeal to the Sixth Circuit. We won in the Sixth Circuit. The Sixth
Circuit affirmed the conviction, and then of course Hoffa hired – I forget his name
now – a very highly respected Supreme Court practitioner to file a cert petition for
him making Fourth and Sixth Amendment arguments that using Edward Grady
Partin, who was in his team, violated the Fourth and Sixth Amendments. The
Supreme Court granted cert in that case. I had written the cert opposition, and I
wrote the government’s brief in the Hoffa case. By then Bob Kennedy was
Senator from New York, no longer Attorney General. Nick Katzenbach was the
Attorney General. The Supreme Court granted cert and the case was going to be
set for argument. Katzenbach told me that Bob Kennedy had told him that he
wanted me to argue the Hoffa case for the government. I was 30 something or
other. Katzenbach said to me, “I’m just afraid if you argue the case and we lose it
in the Supreme Court, people will blame me for throwing away the Hoffa
prosecution because I’ve given it to some young guy to argue,” even though
Kennedy had asked him to have me argue it.
Kennedy knew me as the young Jewish boy with curly hair. Maybe he had heard
the Instant Law name. After the conviction in the Chattanooga case, Bob and
Ethel had a big party out in their place in Virginia. We were invited, and we came
out there. It was a barbecue. It must have been a Sunday afternoon. Since we’re
kosher, we weren’t eating anything out of the barbecue. Ethel came over to Rikki,
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my wife, and says, “Why aren’t you enjoying steaks or whatever was on the
barbecue?” Rikki says, “Well, the truth is we’re kosher.” Ethel said, “Well, what
would you eat?” Ricki said, “Maybe you’ve got a can of tuna.” Ethel says, “One
minute.” She went scurrying back in, came back out with plates of canned tuna
and canned salmon that we could have.
Anyway, Katzenbach said that to me, but he said, “Put yourself down.” He
decided that it should be argued by Fred Vinson, Jr. That was Vinson’s son, who
was then Assistant Attorney General in the Criminal Division. He says, “Put
yourself down so that in case it becomes desirable for you to argue as well as
Vinson, you can get up too.” And the Court gave the Hoffa case an hour and a half
on a side. Hoffa’s lawyer got up and made arguments that I think were sort of
persuasive in various ways with the Court. Then Vinson gets up, and Vinson is a
very nice guy but frankly dreary, really dull. He gets up and he drones on and on.
I was sitting there, and I felt, “My God this case is going down.” I slipped him a
note that said, “Please give me 15 minutes.” He did, and I got up. I have a very
contentious manner, but I got up and soon as I got up the Court starts asking
questions. People who watched the argument – this may be immodest – but they
said to me, “You won the Hoffa case, it was lost until you stood up.” The Court
got into big exchanges with me, and we ultimately won the Hoffa case, over the
Chief Justice’s dissent.
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By then I was with the Solicitor General’s Office, and I had a number of
arguments. I refused, although it was offered to me, to argue the Afroyim case,
Afroyim v. Rusk, because it involved a guy who voted in an Israeli election. I said I
can’t argue to have his citizenship taken away on that ground. On the other hand, I
did agree to argue a case, I don’t remember the name of it, which I tell people is
now a skeleton in my closet. It was a case involving a guy who lived in Canada,
whose family was in the United States. He wanted to come to the United States on
a visit, and he applied for status in the United States. The Immigration Service
interviewed him, and he admitted that he had engaged in homosexual conduct in
Canada, and even in the United States when he was there. The Immigration
Service said, on that basis, he’s a psychopath, and they moved to deport him. He
challenged that. The case went through the courts. The Supreme Court granted his
cert petition although the Court of Appeals had held him deportable as a
psychopath. Thurgood Marshall, who was Solicitor General, offered me that case
to argue for the Immigration Service, that this guy, who was an admitted
homosexual, could be deported as a psychopath. I said sure. I argued the case in
the Supreme Court. I had not written the brief, I think my name is not on the brief,
but I argued the case in the Supreme Court, and we won it, 6-3. The Supreme
Court said yes, he could be deported as a psychopath because he had engaged in
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homosexual activity. So as I say I view that as a skeleton in my closet. If that
came out today, I would be viewed as supporting who knows what.
MS. McMAHON: That might be a good stopping point for today.
MR. LEWIN: Okay. [END RECORDING]