Nathan Lewin Interview 4

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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 April 12, 2018. This is the
fourth interview.
MS. McMAHON: Well, let’s start there. You were just telling me about a
criminal case that you had in the Eastern District of New York.
MR. LEWIN: Early in private practice, we were still a very small firm.
We had hired as associates Supreme Court law clerks. We were very fortunate in
being able to attract them. I guess maybe my having been a Supreme Court law
clerk was a factor. We got Bill Jeffress, and we had Marty Minsker who had
clerked for Justice Harlan. He was Justice Harlan’s last clerk, and he came with
us.
Shortly after he came, I was contacted and asked to represent a fellow by the name
of Bernard Rosenthal, who owned Jack’s Army Navy Store in Bedford Stuyvesant.
It was a store that sold surplus goods. At that point, Bedford Stuyvesant was a
very dangerous neighborhood in Brooklyn. The population overwhelmingly Black
and not well-to-do. There was a lot of crime in the neighborhood in Bedford
Stuyvesant. Jack, who was maybe in his late 50s at the time, maybe 60, owned
this surplus store in which the personnel and the customers were virtually all
Black. The foreman of the store would take orders for automobiles that, according
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to the government, were stolen on order. The case made the front page when this
whole bunch was indicted. I think there may have been 60 people who were
indicted in this car-theft-to-order ring. It was on the front page of the New York
Times. And the car-theft-to-order ring was run out of Jack’s Army Navy Store.
His foreman, who managed to flee and was never prosecuted, I think, was at the
center of this ring. He was the guy who people would come to. They’d say, “I
want a 1969 Lincoln with brown leather seats.” The foreman would send out his
runners, and they would go to an area of downtown Brooklyn. The first one who
would come back with the car that met the order was financially rewarded. In
those days if you took a rubbing of the serial number off the engine of the car and
went to New Jersey you could get a New Jersey registration for the car. You didn’t
have to bring in the car. You just brought in the rubbing of the serial number. So
that was the system they used. They would steal the car to order. They would then
take a rubbing of the serial number, go to New Jersey, get a New Jersey
registration, and provide it to whoever ordered the car with a New Jersey
registration and New Jersey plates.
So they were prosecuted. I think there were over 60 defendants who were put on
trial in a series of trials. They were found guilty by juries and sentenced. Bernard
Rosenthal, who was “Jack,” the guy who owned the store, would sit in the store in
a cage. He had a gun. He had a gun license, and he claimed that he was scared for
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his life. Nonetheless he would sit there, would own the store, and they would
bring cash to him when people would buy stuff. I and Marty Minsker, who helped
me in the case, represented Bernard Rosenthal in this charge. He was indicted
along with everybody else. The evidence against him was very thin. It consisted
mainly of the testimony of a very heavy Black woman. She did have a record of
some kind of past offenses, but she had testified for the government in a number of
these cases, which had resulted in convictions. Cynthia Wharton was her name.
Rosenthal went to trial with another guy. He was not the foreman but a little bit
below the foreman. It was just a trial for the two of them, and I was retained by
Rosenthal to represent him at this trial before Judge Judd in the Eastern District of
New York. He was a terrific judge, Judge Judd. The co-defendant hired for
$5,000 some lawyer who did a lot of criminal work down there but did no work
really during the trial.
We went to trial in the case. Cynthia Wharton testified. Using the skills that I had
learned in the Hoffa case and the others I cross-examined her, and I was the only
lawyer I think who really ended up demolishing her on cross-examination. She
testified that Rosenthal was not actually taking money or involved in these
transactions, but she testified about a couple of conversations that she had with
Rosenthal that supposedly showed that he knew what was going on and in some
way maybe profited from all this. I used my cross-examination of Cynthia
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Wharton two years later, ’74-’75. I was Visiting Professor at Harvard Law School.
I gave the first course anywhere in the country in “Defense of White Collar
Crime.” I was very proud of the cross-examination I had done of Cynthia
Wharton.
Judd was a good judge. He denied our motion for judgment of acquittal even
though there were certainly grounds for disbelieving Cynthia Wharton. Then Jack
Rosenthal, Bernard Rosenthal, testified. He wanted to and we went through
preparing him. He testified in his own defense and said that he sat there in the
cage and did not know anything at all about what the foreman was doing about this
car-theft-to-order ring. At the end of the defense case Judge Judd granted a
judgment of acquittal, which was very unusual. He didn’t even send the case with
regard to Rosenthal to the jury. By cross-examining Cynthia Wharton and with
Rosenthal himself testifying, the judge was satisfied that he would have to set aside
any jury verdict and there should be a judgment of acquittal. So he entered a
judgment of acquittal for Rosenthal.
The case went to the jury against the other defendant. I always treated this as
being a tribute to my cross-examination because the jury acquitted the codefendant. We had a legal argument that we filed in advance of trial that we made,
and some lawyers for some of the defendants who were in jail but on appeal seized
on that legal argument. A couple of defendants who had been jailed after their trial
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got their convictions reversed on appeal based on the legal argument that we had
made in our case before Judge Judd. I took that as a tribute to our defense efforts.
Rosenthal was acquitted at the end of the defense case without the case going to
the jury. The co-defendant was acquitted by the jury, and other defendants who
were already in jail but were appealing seized on this legal argument and got
reversals. I think there are reported cases in which they got reversed.
That’s not the end of the story. After the acquittal, as unfortunately sometimes
happens to lawyers, we sent Mr. Rosenthal a bill. He said, “Well I testified, I
didn’t need you guys.” And he refused to pay. He paid something as a retainer,
but he refused to pay the rest of the bill. This is the only client I have ever sued. I
brought a lawsuit. Since we were in Washington, we sued him in the Eastern
District of New York. By the luck of the draw, it really was the luck of the draw,
who ends up getting the civil case? Judge Judd. So we won. We got a judgment
against Rosenthal for attorneys’ fees pursuant to the retainer after he refused to pay
saying, “Oh I testified, I didn’t need you guys.”
MS. McMAHON: What was it about the cross-examination that you
thought worked so well?
MR. LEWIN: Well I have to go back and find it. I handed it out to the
class in the white collar criminal class I gave at Harvard. Jamie Gorelick may still
have it. She was in the class. I just felt I had really done this woman in. It was
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both her past record and inconsistencies. There were all kinds of things, but I used
it as a sort of model cross-examination. In the other cases she was successful. She
had testified in these other cases, and all these other guys went to jail. I would
have to find the cross, but I remember I distributed it to the class at Harvard, so this
was before ’74-’75, because that was the year I was teaching at Harvard.
In ’74-’75, when I was teaching at Harvard, I ended up representing a very public
Jewish figure in New York. Bernard Bergman owned a whole bunch of nursing
homes in New York. The New York Times at that point had done a whole series.
They got some reporter whose mother had been in a nursing home and was very
badly treated. Not in a Bergman nursing home but in some other nursing home.
They decided they were going to do a series on nursing homes and how the elderly
were being treated in nursing homes. They seized on Bernard Bergman who was a
rabbi, Orthodox, and had done very well financially with nursing homes in New
York. He became a very important figure in the New York City Jewish
community, and once the government got after him, the Times really went after
him. There was a televised Senate hearing. I can’t remember who was the
chairman of the Senate committee in which they subpoenaed Bergman to testify. I
represented him and sat there at this televised hearing next to him when he said he
was going to answer the questions. He didn’t take the Fifth. He testified and
frankly was very well prepared. Everybody said after the public hearing that we
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came off much better than had been expected because everybody said, “Oh this
guy must be a terrible crook.” And yet he testified very effectively. But that did
not stop the government from going after him.
At that point a special prosecutor was appointed in state court for nursing homes, a
fellow by the name of Charles Hynes. who later became the D.A. in Brooklyn
based on the reputation he had made. The Southern District of New York went
after Bernard Bergman, but they really could not find very much to charge him
with. There were allegations that patients were being mistreated, that he was
cheating, but they didn’t turn up very much. What they did turn up ultimately –
and we did a plea deal based on this – was that he had hidden or concealed partners
in some of the nursing homes. The K-1 tax forms did not name the partners. So he
pleaded to filing misleading tax forms, which was a very minor offense compared
to everything that they had tried to charge him with. There was there was both a
federal investigation and a state investigation. The agreement that we reached with
federal and state prosecutors was that he would plead to this federal offense, and he
would plead to some minor state offenses, and there would be one sentence, which
would be the sentence given by the federal judge. The federal judge was Marvin
Frankel, who was very highly regarded. He argued cases in the Supreme Court.
He had been in the S.G.’s Office years before and was a very, very highly
respected man, who everybody thought was ultimately going to go from being a
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judge on the Southern District of New York to being promoted to the Second
Circuit. Well, we had a sentencing of Bernard Bergman before Marvin Frankel.
We made a very substantial submission to Frankel with the point that the crime he
had pleaded to was nothing, really very minor. Frankel sentenced him, I think, to
either three or six months in jail based on this plea. That enraged the New York
Times and the New York media community, absolute outrage. All that Bernard
Bergman got was three or six months in jail. The lawyer who Bergman retained
for the state proceeding, who died a couple of months ago, was a terrific trial
lawyer by the name of Gus Newman. I worked with him, and we worked out this
deal together. But because of the outrage the state judge ignored the plea
agreement and sentenced Bergman to another year in jail. We challenged that in
federal court, but lost it in the federal court because, I think, of the public outrage.
The district judge and then the Court of Appeals rejected the claim that there was
only one sentence that was supposed to be imposed and that was Marvin Frankel’s
sentence.
Maybe the biggest loser was Marvin Frankel, because as a result of his sentence of
Bernard Bergman, he was not promoted to the Second Circuit. After a couple of
years he resigned from the district court and went and formed a leading white
collar criminal defense firm. He’s the one who ended up suffering because he did
what a judge should do, which is he looked at the offense, he looked at the
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individual, who had a very high reputation, and gave him a very minor sentence
notwithstanding the public outcry.
The outcry was so big, and the Times was regularly writing about nursing home
scandals, really attacking nursing homeowners. Just at that point, when Bergman
was testifying before the committee, the committee counsel was Gary Naftalis.
He’s a white collar criminal defense lawyer, very respected also, who ultimately
was in Frankel’s firm in New York. The New York Times ran a piece about the
two lawyers in the Bergman hearing, Gary Naftalis and Nathan Lewin. The author
of the article, who was friends with the guy who was writing about the nursing
home scandals, was basically a New York Times food reporter. His name I think
was Frank Prial. He wrote a long piece about the two lawyers. He had some stuff
on my background. This was after the Nixon case. There was a paragraph that
said that Lewin also was writing articles for the New Republic, and he attacked
Richard Nixon after his firm was representing Richard Nixon. I was furious at
that. I read that article, and I called him up, I called up everybody, I called up
Tony Lewis and everybody I knew at the Times, and said you have to withdraw
that. That’s unethical. I could not attack my client. I’m representing Richard
Nixon. And the fact of the matter was, I had been writing in the New Republic and
writing about Watergate and being very critical of Nixon. Then when Jack Miller
came back from California and told us that we were representing Nixon, I totally
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stopped. The last article I had written, which was very critical, appeared before we
represented Nixon, but it had a date line that was, I think, a couple of days after it
was public that we were representing Richard Nixon. This may be why this guy
concluded that I had attacked Nixon after we were representing him. But at that
point the New York Times did not have, as it now has, this little box, which for a
while was on page 2 and now, they have it on some other page, which is
corrections. I called up the Times, and the Times said, “Yes, yes, Mr. Lewin we
will correct it, we’ll take care of it.” Well, it was one day, two days, three days, I
kept calling. I said I want it corrected.
They didn’t correct it. So I sued the Times for defamation. The great case of
Lewin v. New York Times. Floyd Abrams represented the Times. He took my
deposition, and he told me, “The Times never pays in a defamation case. You’re
going to have to go through to a trial on this case.” And he took my deposition,
and we did a little bit of discovery. Ultimately the Times ran a full column apology
essentially saying they were wrong. When I wrote the piece and when it was
published, I was not representing Nixon. But that is all I got from the Times. I
never got any money, never got anything, other than this full column retraction
which they printed. But anyway, that was the story of Bernard Bergman.
MS. McMAHON: So you mentioned the Nixon case. I know that was a big
part of your time at Miller Cassidy.
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MR. LEWIN: Right. I don’t know if I had mentioned before that that the
way Miller had gotten me to leave the government and come with the firm, and I
still remember his line, was, “You don’t want to work for Richard Nixon.” We
had represented very successfully this fellow Richard Moore, the guy who worked
in the White House. We really represented him so well. Moore was never charged
with anything, and Moore, I think, recommended to Nixon that he retain Jack
Miller. Miller flew out to California and came back and told us that we were
representing Richard Nixon. That is why I stopped writing about Nixon in the New
Republic, although I had been writing and appearing on National Public Radio
broadcasts where I was interviewed about Watergate.
So we represented Richard Nixon. I was not in the middle of the Nixon
representation. Miller did most of it himself, and he had other people in the firm
working on that. But when the case became a Supreme Court case over the
constitutionality of the taking of the Nixon papers, then I became involved. I did
write the brief in the papers case. Miller and I together argued the case in the
Supreme Court. In those days it was a one-hour argument on each side. So when
the case got to the Supreme Court, I thought we were very strong on a number of
constitutional issues, bill of attainder and other constitutional claims. Miller
argued and I argued maybe 10 or 15 minutes of the case. I met Richard Nixon. I
have a photograph with Richard Nixon’s arm around me, signed. I never framed it.
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I kept it in my desk. People ask me what was Nixon like? The funny thing was
that Nixon was like a caricature of Nixon. I never became that friendly with him,
but when you talked to Richard Nixon, you thought, “Oh, there is someone who is
imitating Richard Nixon.”
MS. McMAHON: So when Jack Miller came back and said, we’re
representing Richard Nixon, he didn’t talk to anybody else at the firm about this?
MR. LEWIN: He may have mentioned it to John Cassidy that he was going
out to California to talk to Nixon. but we were not retained at that point. He had
been asked to go out there, and he went out to California. He comes back and he
gives us the information. We may have sensed it from the fact that he was going
out to California. He had represented Moore and suddenly there he is, he’s flying
out there. I think we knew that he was flying out there to see Richard Nixon, but
nobody knew what the result was necessarily going to be. Suddenly he comes
back, and we’re representing Richard Nixon. He was involved in the discussions
about the pardon and a lot of the other things, the negotiations concerning what
ultimately happened in terms of the statute and the papers. He and Stan Mortenson
and other people.
My involvement in the Nixon case was really at the Supreme Court level. I was
also not involved in the civil suit. The Supreme Court said it was constitutional to
take his papers, but you had to pay him for it. So then the firm brought the lawsuit
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to collect for the Nixon family for the taking of the papers. That took years, and
ended up finally with a settlement, which I think was very favorable to the
government. The government was very tough in terms of negotiating this, so the
case ended up with a settlement. But I was not really involved in the civil case.
My involvement was in that first Supreme Court litigation and in the second
Supreme Court case. Bill Jeffress was involved in that one. I did not do that one.
MS. McMAHON: So what was your strategy going into the Supreme Court
case? Your legal theory?
MR. LEWIN: Well, it was very difficult to have a strategy because
everybody recognized that Nixon was so unpopular and such a hated figure at that
point that the likelihood of being able to prevail in the Supreme Court was very,
very slim. I thought that if it wasn’t Richard Nixon, but just objectively speaking,
we were right on the law, but the possibility of winning in the Supreme Court, in
terms of the real world, was so very slim. So I can’t say that we had a strategy that
we thought was definitely or very likely going to be able to win. We tried to make
the best presentation we could of the legal arguments that could be made against
the taking of his papers and tapes, but the Court rejected that.
MS. McMAHON: How often do you think that happens, that you’re right
on the law but the politics, the real world, something else leads to a different
decision?
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MR. LEWIN: Too often, too often. My wife says she’s insisted already for
years that I’m too naïve and I believe in the integrity of the legal process. She says
it’s more often than not, certainly in cases that are of public interest, determined by
things other than the strictly legal standards. A perfect illustration is the John
Lennon case.
I forget what year it was, but a very good friend of mine was the president of the
Immigration Lawyers Association. This lawyer was also a graduate of Yeshiva
College, so I knew him for a number of years. Because of his status among
immigration lawyers, John Lennon selected him to be his immigration lawyer.
Lennon came to the United States, and there was this whole issue about the fact
that Lennon had pleaded guilty in England to a narcotics offense, minor but
nonetheless to possessing. I forget if it was marijuana or something, but
nonetheless he pleaded guilty, so that technically he might have been deportable
from the United States because of this criminal conviction. Then this friend of
mine, his name is Leon Wildes, was very good in terms of immigration matters,
both advising people and handling things before immigration judges. But Lennon
lost the immigration case before the Immigration Administrative Law Judge. So
the next step was going up to the U.S. Court of Appeals, where Wildes had no
familiarity, had never been in a court of appeals. So he called me and asked me to
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represent Lennon on the appeal to the Second Circuit. The bizarre thing is, I never
met John Lennon.
MS. McMAHON: Oh really.
MR. LEWIN: Even though I represented him on appeal and even though I
am the lawyer who won the case so that he was able to stay in the United States, I
never met John Lennon. Leon Wildes sent me the record, and I wrote up the brief.
I argued the case. Who was the Chief Judge of the three judges in the Court of
Appeals? None other than Irving Kaufman. Have I talked to you about Irving
Kaufman?
MS. McMAHON: Yes.
MR. LEWIN: So Kaufman was the Chief Judge. I thought to myself, “I
don’t know, but this is a case where it could have come out either way.” I think I
made a very persuasive case as to why this was not deportable under American law
even though it was a plea to a narcotics conviction in England. I even forget the
details as to how we worked our way through the American immigration law, but I
argued. And Irving Kaufman, who all his life as I told you was conscious only of
the reputation of Irving Kaufman and nothing else mattered, not the law, not a fair
application of the law – he was not going to be the one who is going to throw John
Lennon out of the United States.
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So he wrote an opinion agreeing with my argument in the Second Circuit and
saying that Lennon was not deportable. So that is how you win a case. I thought I
wrote a damn good brief. I thought I made a damn good legal argument. But the
real fact is that no matter who had represented John Lennon in that Court of
Appeals, Irving Kaufman would not have thrown John Lennon out of the United
States, period. I recognize that in terms of real life, even though I am very proud
to say, “Hey I saved John Lennon.” Although I had never met John Lennon, and
he did not come to the appeal, I argued the appeal. He wasn’t there, but he wrote
out a check for our services. The stupid thing I did – we deposited the check. The
check with John Lennon’s signature would today be worth more than the face
value of the check. But what do you know?
MS. McMAHON: So it seems like that even when the real world comes
into play sometimes that helps you, sometimes it hurts you.
MR. LEWIN: Absolutely. Jodie Foster. After the attempted Reagan
assassination by John Hinckley, Hinckley claimed he was so obsessed with Jodie
Foster, he had done this after he saw the movie, and he had done it to impress
Jodie. He was indicted, and he was going to go to trial represented by a Williams
and Connolly lawyer. It was going to be a pretty toughly fought trial. He was
acquitted on grounds of insanity. His insanity defense prevailed.
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It was clear that Jodie was going to be a witness. Somebody recommended to her
that she contact me, I forget who it was. I get a call and it’s Jodie Foster, who is
now going to be subpoenaed to testify for the defense at the Hinckley trial.
Hinckley was hopeful that she would testify that she was conscious of him and that
he was around all the time and because he was, he was stalking her.
I talked to her. She said she does not want to testify in public at a jury trial with all
the publicity and the photographs and the whole thing. The reason that she
retained me, or retained a lawyer, was to find a way that she could avoid having to
testify in public at a jury trial. I thought about it and it occurred to me that if the
parties agreed, we could film her testimony in a courtroom, direct and cross, and
show it to the jury rather than have her come in live and testify before the jury, if
both sides agreed. I approached both the prosecution and the defense, and
ultimately the judge, after I got the prosecution and defense to agree that in order
to avoid emotional harm to Jodie as a result of all this, we should be able to have
her appear in the courtroom where the trial was actually going to take place.
The judge, who was Barrington Parker, would sit up on the bench, have direct
examination and cross examination, film it all, and show it to the jury when the
trial actually takes place. And we did that. The parties agreed, and Jodie came in.
We actually had a session in which Hinckley, who was then in custody in jail,
came in and sat there with his lawyer, Vince Fuller, a very good Williams and
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Connolly lawyer who I think died a couple of years ago or recently. He was there,
and Hinckley was there, and the prosecution was there, and I was way off on the
side. Jodie sat on the witness stand, and Hinckley’s lawyer examined her as if this
were a real trial.
A dramatic thing happened. I’m off at the side, she’s testifying. Hinckley’s
lawyer asks, “Wasn’t Hinckley around and wasn’t she conscious of him.” She said
no, she didn’t. He may have been around, but she didn’t know who he was, and
she was not conscious of the fact that this guy was there. That really got Hinckley
very angry.
MS. McMAHON: Really?
MR. LEWIN: He was sitting at the defense table, and the next thing I know
– I’m off at the side – he apparently picked a pencil up off the defense table and
threw it at her.
MS. McMAHON: Oh, my God.
MR. LEWIN: This pencil was flying in the air. A big hubbub. We
decided afterwards we were going to eradicate or cut that out and go back again,
have a question asked again and get an answer. So that ultimately was what was
filmed and shown to the jury. The prosecution agreed that that could be cut out –
Hinckley reacting by throwing a pencil. That is what actually happened, he threw
this pencil in the middle of her testimony.
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MS. McMAHON: Why do you think the prosecution agreed to cut that
out?
MR. LEWIN: (a) They probably felt they had enough evidence in terms of
his guilt, and they just agreed to cut it. “Let’s do this over again.” But that is what
happened, he threw this pencil in the middle of the thing from the defense table.
But that was my representation of Jodie. Then the only other representation I did
of Jodie with regard to that is I kept being asked every time that there was a
hearing on whether Hinckley could be released or could go home. The prosecution
felt it was imperative to check with Jodie to see what her position was. In the
beginning of course she was opposed to anything that would allow or give him
some kind of even temporary release, but that made little difference ultimately. By
the end, nobody is asking her anymore, so I haven’t been in touch with her in a
long time.
MS. McMAHON: Was she opposed when they finally granted his release?
MR. LEWIN: It was Paul Friedman, the judge who granted it. She wasn’t
even asked at that point. Of course, in previous times, I would call her up, I would
say what’s your position. “I’m against it but I don’t want to have a public
statement that I’m against it.” Okay. And then, ultimately, she said I don’t even
care to be called about this anymore, so she just dropped out of the whole picture.
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MS. McMAHON: So how did you come up with the idea of her testifying
by video? Had you heard of that before?
MR. LEWIN: I honestly don’t remember. I do remember that this was the
question, how was it going to be possible for her. Obviously, Hinckley was not
going to give up on her testifying, so I tried to work out how it could be done. You
ordinarily think depositions are played at trials, and there are video depositions. I
proposed something like this, and it ultimately worked its way into a staging in an
actual courtroom. Maybe it began with, “Maybe we’ll agree to have her do a
deposition in a lawyer’s office.” But with all the discussion and the feeling by
counsel on both sides, that’s the agreement that we came to and exactly how it
developed. I do remember that I’m the one who in terms of the discussions made
this proposal and then worked it out with both sides and with the judge ultimately.
We needed the judge’s approval. We went to him, and he said, yes, he’ll do it. So
we did it.
MS. McMAHON: So what about the Meese case, I know that was another.
MR. LEWIN: One of the people who was in the Solicitor General’s office
after my time was Brad Reynolds, who became the Assistant Attorney General
under Ed Meese in the Civil Rights Division. Meese had this fellow Bob Wallach,
who he knew from California. Once Meese became Attorney General, Wallach
was like a leech. He would just grab on. He knew Ed Meese. He knew the
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Attorney General. That was a way, his way, of becoming important. So when
Meese became Attorney General, he kept calling him and bothering him about one
thing or another.
Then Wallach was involved in some alleged fraud involving a company called
Wedtech. Those were the days of the Independent Counsel, which the court would
appoint. Robert Mueller now is a Department of Justice Special Counsel. But in
those days, following Watergate, there was the Independent Counsel law. The
court would appoint an Independent Counsel. An Independent Counsel was
appointed to investigate this Wedtech thing that Bob Wallach was involved in.
Why did it take an Independent Counsel? At the initial stages, Ed Meese was not
in the circle of those who were being investigated but was on the fringes. As the
investigation developed, suddenly Meese became a subject of the investigation. I
was sitting in my office, and I get this call from Brad Reynolds, whom I did not
know that well, but he had been in the Solicitor General’s Office. He knew of my
reputation and had recommended to Ed Meese that if he needed a lawyer, he
should call Nat Lewin. The next thing I knew, Meese called me. Maybe Reynolds
called first and asked me whether I would be interested in representing Ed Meese.
I said sure. He’s the sitting Attorney General subject to a criminal investigation by
an Independent Counsel. I agreed to do that. There was a young partner in our
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firm by the name of Jim Rocap, very talented, very good guy. I enlisted him to
work with me on the Meese case. And we did it, we represented Ed Meese.
Some of the things that are going on today can compare to what happened with Ed
Meese. Ed Meese was actually subpoenaed and testified twice before a grand jury
in this Wedtech investigation. Ultimately, we made submissions to the
Independent Counsel, and Meese was cleared. The media were obviously against
him. They didn’t like him. The New York Times – nobody thought it was the
“fake” New York Times at that time. Nonetheless, the New York Times did not like
Ed Meese and much of the media didn’t like him. I found him a terrific client, a
very nice guy.
There were a couple of months of publicity about the case. I spent time over at the
Department of Justice. Whenever we would have meetings, they would generally
be there at his office at the Department of Justice. The press would be around, the
photographers. Ultimately, the Independent Counsel came out with what was a
critical report, saying he should not have done this, that, or the other thing. I can’t
I remember all the details of that, but nonetheless the report was critical, so critical
that Meese felt he had to file a response to the report. So not only did I represent
him in the investigation and during the time that there was consideration of
whether to indict him, but I also represented him after the decision not to indict
him in terms of responding to the Independent Counsel’s very critical report. I
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can’t remember the details, but it included answering the allegations or the
criticisms that were made by the Independent Counsel.
When the Independent Counsel law was expiring, the question was whether to
continue it or to let it lapse. It had a terminal date and then was it going to
continue or not. The Senate Committee took testimony, and Robert Bennett, a
well-respected criminal lawyer, testified that the Independent Counsel law should
not be renewed. I testified that it should be renewed.
MS. McMAHON: Oh really?
MR. LEWIN: Yes. My feeling then was – and, to some extent I think
what’s happening now vindicates that – and I said it to the Senate committee,
there are times when you want to have someone in charge of an investigation who
is not responsible to the Department of Justice or to the Attorney General and is
only responsible to the court, can only be removed by the court, and is really an
independent counsel. My experience with the Meese investigation, quite frankly,
was that I didn’t like the report Jim McKay wrote. But Bob Wallach was indicted
convicted in the Southern District of New York. But Meese was cleared. So the
process worked in that sense. He was Attorney General, he was subpoenaed, he
testified before the grand jury twice. They didn’t make it easy for him by saying,
“Oh come on in with your lawyer and we’ll interview you.” He went into the
grand jury, and he testified to the grand jury. The independent counsel cleared him
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essentially. He said, no, he should not be indicted. So the system can work. The
notion that the President should be able to fire the Independent Counsel, to the
extent that happened with Archibald Cox, is why they set up an independent
counsel so the President shouldn’t be able to fire the prosecutor. My feeling at that
time was, and I’m on record, I testified before the Senate committee to that effect,
that the Independent Counsel law should be continued even though there were a lot
of critics of independent counsels.
MS. McMAHON: And that all happened after the Clinton investigations,
right, and Ken Starr and all that.
MR. LEWIN: Yes.
MS. McMAHON: Do you think that is why people …?
MR. LEWIN: That’s why people didn’t like it and were critical of it. But I
felt that it is still desirable to have a system under which a prosecutor gets
appointed and is responsible only to the court and not to the Department of Justice
and to ordinary prosecutors.
MS. McMAHON: And having the Ken Starr experience didn’t change your
opinion on that?
MR. LEWIN: No, no. Ken Starr was, I haven’t seen him in a long time,
but Ken Starr was a friend, and I may have told you, he was my lawyer.
MS. McMAHON: Oh, actually I didn’t know that.
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MR. LEWIN: Out of the blue. A funny story. When I did the yarmulke
case in the district court, the right to wear a yarmulke. That was one of my early
Jewish litigations. I was sitting in the office, and I got a call from a woman on the
West Coast. Her husband was a psychologist in the Air Force and an Orthodox
Jew. He always wears a yarmulke, and he was going to be court martialed for
wearing his yarmulke in the hospital. I said that’s ridiculous. Who cares, why does
anybody care? Well, they said it’s a violation of the dress code.
So I called up the general counsel of the Air Force. I said, “Come on, what’s going
on out there?” It turned out the very top of the Department of Defense, Casper
Weinberger, who, although he was born Jewish, was not friendly to Judaism or to
Jewish practice, said at a staff meeting that he would prefer to lose on the MX
missile rather than lose on the yarmulke. He did not want to have people permitted
to wear a yarmulke on the Air Force base. This fellow was a psychologist in the
hospital, and they were going to court martial him because he wore a yarmulke. I
brought a lawsuit in district court here against the Air Force so that he should be
able to wear a yarmulke. The judge was Aubrey Robinson. We had a full hearing,
and Aubrey Robinson held that there was a constitutional right to wear a yarmulke
in the Air Force. The government appealed. I was surprised. I thought, wow, who
is going to care that much about it, but they decided to appeal. And the appeal was
heard by none other than Abner Mikva, who had been the chairman of the Jewish
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caucus when he was a Congressman, Harry Edwards, and a judge from the Seventh
Circuit who was very liberal. At that point, you didn’t know until you came to the
argument who was going to be your panel. We looked up and there was Mikva
and Edwards and the judge visiting from the Seventh Circuit. My adversary says,
“I don’t even know why I’m walking into this courtroom. This is ridiculous with
that panel.” He won the appeal. The three judges ruled against the yarmulke. The
military, even though they could not state a rationale as to why you should not be
able to wear a yarmulke in an Air Force hospital, if the military says so we have to
defer to the judgment of the military.
MS. McMAHON: Wow.
MR. LEWIN: That’s the decision of the Court of Appeals. I was shocked
that I lost that appeal. I petitioned for rehearing en banc. Now, who votes for a
rehearing en banc? A new judge on the Court of Appeals named Antonin Scalia.
Who else? A judge on the Court of Appeals named Ruth Bader Ginsburg. They
voted for rehearing en banc the yarmulke case. And the third one, who wrote a
very passionate opinion, was a young judge on the Court of Appeals named
Kenneth Starr. The other two just noted they would vote for rehearing en banc.
Starr wrote an opinion, a couple of pages about how important it was to preserve
this constitutional right.
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A couple of months later I get a call from Judge Starr, who I didn’t know, and he
said, “Mr. Lewin, the D.C. Circuit is having its judicial conference, and I’m in
charge of the program. I would like to have a session on church-state First
Amendment religion and the law. Out of the blue, Ken Starr calls me while he’s a
judge and asks me because he’s running this program, the D.C. Circuit program.
“Well, sure I would be glad to do that.” I went out and we became friends after
that. He was very interested in church-state law. He still is. He went out to
Pepperdine, and we stayed in touch.
Years later – before he was special counsel – I had a case in which I sued the State
of Israel for a couple of investors in a bank in Israel that had gone bankrupt. The
people who ran the bank were taking money or doing things that were improper.
The Israeli authorities charged not only those people, but also American investors
who didn’t have any idea what was going on. They charged them criminally with
participating in this fraud.
One of these guys was a philanthropist who had been contributing to Israel, a guy
by the name of Sussman. He lived in Los Angeles. He retained me, and I spoke to
the Israeli people. They were insistent that they were going ahead. I wrote them a
letter in which I said, if you don’t drop this case, I’m going to sue you in an
American court because I think this is abusive, it’s improper. They continued to
persist, and I sued in an American court. It came before a judge in the Southern
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District of New York who dismissed the case for forum non conveniens. You can’t
bring this case in the U.S. court. He dismissed it, and then, all on his own – this is
before Rule 11 was amended to require notice to anybody who is going to be
sanctioned – all by himself, he says “I’m imposing Rule 11 sanctions against
Nathan Lewin, $50,000 fine.”
MS. McMAHON: Oh wow.
MR. LEWIN: He dismisses it for forum non conveniens grounds, and
without any procedure, I was notified of nothing, I just get a call saying Judge
Haight in the Southern District of New York has imposed a $50,000 Rule 11
sanction against you. Why? Because I wrote a threatening letter to the Israeli
authorities. That’s crazy. What did I do? I told them I’m going to sue them.
That’s all I did. What’s wrong with that? $50,000 Rule 11 sanction. So I called
up Ken Starr. I said, will you represent me on the appeal of this case. He said yes.
He did. He represented me on appeal, and the Second Circuit reversed the $50,000
fine. It was ridiculous. But he ended up being my lawyer.
MS. McMAHON: So why did you go to him? Why did you pick him out
of anybody that you could have asked to be your lawyer?
MR. LEWIN: I thought, this was such an outrage, I just don’t want to go to
some lawyer who does appeals. I want the Second Circuit to see that the lawyer
who is representing me is a man of some character. I thought the whole thing was
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such an outrage. He agreed to do it. He was already in private practice then, and
he agreed to do it, and he represented me on this appeal. And got it reversed.
MS. McMAHON: He represented you very successfully.
MR. LEWIN: It was a good panel, I think. Judge Cabranes, I think, wrote
the opinion.
MS. McMAHON: So what are some of the other big cases while you were
at Miller Cassidy?
MR. LEWIN: Well, I did represent George Hansen, who was a
Congressman, Mormon Congressman from Idaho, who was a very pugnacious
individualist type. He didn’t come to me. He came to the firm. I was available at
the time. Miller brought him into my office and introduced him to me. We
became friends after that. George came to a Sabbath meal at our house. He was a
very devout Mormon, would not drink Coca Cola or coffee.
He was charged with violating the new, relatively new statute that had been
enacted that required financial disclosure forms to be filled out annually by
Congressmen. Congress provided in the statute that every Congressman had to file
a financial disclosure form, certified, and if he filed a false disclosure form, then he
could be criminally prosecuted and sentenced up to one year in jail, a misdemeanor
provision of the statute. Well, the U.S. Attorney’s Office or Department of Justice
indicted Hansen. I think he came to us after he was indicted. I don’t think I was
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involved in the pre-indictment stage, and I don’t know if the firm was involved in
it at all. But he was indicted for submitting a form in which he had left out a very
substantial loan he had taken from a couple of brothers who were very well off.
He had left this loan off the financial disclosure form. He had left it out, but he
claimed that the way he read the requirements, he had a defense. I don’t really
remember what the factual defense was, but we actually went to trial in the district
court here before Judge June Green. Because the District at that point still had not
had a lot of difficult or high-profile criminal cases, some of the district judges
really were very unfamiliar with criminal practice or trial practice in criminal
cases. June Green was an example of that. She had seniority status, but I was
appalled at how unfamiliar she was with, things that I had learned back when I sat
in and watched the Hoffa case. She was on very uncertain ground during the
whole Hansen prosecution.
MS. McMAHON: Do you mean in terms of handling objections?
MR. LEWIN: Yes, and being able to deal with the whole criminal process.
Maybe she had had a lot of civil cases, but I just had the sense that she was really
uncomfortable about the whole thing.
So we had the trial. The prosecutor made his reputation based on that trial and then
became a leading white collar criminal defense lawyer in Washington. That was
Reid Weingarten. He was the prosecutor in that case, and Jim Cole was his
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assistant. They prosecuted the case, and I defended George Hansen. To me, one
of the lessons, which I should have learned before, and one lesson that certainly
trial lawyers learn and criminal trial lawyers learn, is, when you are asking
questions don’t go too far and ask questions that you don’t know the answer to. I
violated that rule with none other than, as a witness, Rudy Giuliani on the stand,
because he was Deputy Attorney General. During the time that Hansen was being
investigated, he went in and talked to Giuliani. I don’t remember the details of it,
but the point was that he considered himself innocent and went in and talked to
Giuliani. I brought that point out. I think I may have even subpoenaed Giuliani to
testify about the fact that there was this meeting. I asked him one question too
many. He came back with an answer that was very damaging. I went home, and I
thought to myself, my God, how could you have done this, stupidly ask that last
question when everything seemed to be going well in terms of the examination?
Again I don’t remember the details, but I do remember, and I’ve told Giuliani
when I’ve seen him since then, and he remembers it too, that he was on the witness
stand and socked it to me because I asked him some question that I should not have
asked him.
The jury found Hansen guilty. The government had charged Hansen, not under the
misdemeanor provision but under Section 1001 for filing a false statement. We
moved to dismiss on the ground that the statute did not authorize prosecution under
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1001, only a misdemeanor. Nonetheless, Judge Green sentenced Hansen for more
than a year. We appealed to the D.C. Circuit.
Because he was a Mormon, one of Hansen’s good friends and supporters, was none
other than Orrin Hatch. Hatch felt close to Hansen because of the religious tie, and
I think they got along very well. When I appealed to the D.C. Circuit, Hatch had
an amicus brief filed supporting our appeal. One of the principal grounds on the
appeal was that the only thing that the Congressman could be prosecuted for was
the misdemeanor provision in the statute, that he could not be prosecuted under
1001 for filing a false statement, because the statute was very specific and limited.
Congress was very conscious about the fact that they didn’t want to put
congressmen in jail for extended periods for making even a deliberately false
statement. So the agreement was it would be a misdemeanor sanction.
That was a principal point on appeal, in which I felt reasonably confident. I
thought the legislative history supported that, there was the statute. I wrote the
brief, and Orrin Hatch and various other senators or congressmen filed an amicus
brief supporting our position. We went to oral argument, and Orrin Hatch came to
the oral argument of George Hansen’s criminal conviction. He sat there in the
audience while I argued.
Who did I draw as a panel? Who was sitting up there on the left, the most junior
judge in the Court of Appeals? My classmate, Nino Scalia.
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So I start off and say, “It’s very clear that the statute only provides a misdemeanor
provision.” Judge Scalia says, “Yes, Mr. Lewin, but did Congress repeal Section
1001, the false statements statute, with regard to this.” “They didn’t do it
explicitly, but it’s clear if you look at the legislative history, they only wanted to
provide a misdemeanor penalty.” “They didn’t specifically say that in the law, did
they? You’re relying on what was said by Congressmen on the floor, or things that
are in the reports.” “Yes, but that’s the legislative history.” “Who cares about that,
what does the statute say?”
That’s when Scalia started with his “statute only, I don’t want to hear about
legislative history.” It was in the Hansen case. He ripped me apart while I’m
arguing. This is my classmate. He rips me apart while I’m arguing. “How can I
rely on the legislative history if that is not what the statute says?” I still remember,
we walked out of the courtroom that day, and Orrin Hatch walks out with me, and
he says to me, “That guy, ‘Sky-lee-a’, he thinks he’s going to be on the Supreme
Court someday, he’ll never be on the Supreme Court.” That is what Orrin Hatch
said to me, “Scalia thinks he’s going to be on the Supreme Court. He’s never
going to be on the Supreme Court.”
Well, Scalia wrote the opinion, and he affirmed the conviction. You go into Fed.
2
nd you’ll find the opinion by Scalia. Not only does he reject all my legislative
history arguments, but he goes on to say – terrific blow from a classmate –
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appellant has made all these arguments, but there is another argument he could
have made.
MS. McMAHON: Oh gosh.
MR. LEWIN: And he spells out some other argument that I didn’t make. I
don’t know if I didn’t think of it. He says there is no merit to that argument. This
was my first contact with Scalia on the bench as a judge in the Court of Appeals.
MS. McMAHON: At that point he hadn’t really publicized or asked that
many questions about legislative history?
MR. LEWIN: No, before that, I don’t think so. He didn’t have a reputation
for that. But in that case, boy, did he make it clear.
MS. McMAHON: Came out with a bang. [END RECORIDNG]