John Nields, Jr., Esq. Complete Oral History

John W. Nields, Jr.
Oral History Project
The Historical Society of the District of Columbia Circuit

Oral History Project United States Courts
The Historical Society of the District of Columbia Circuit
District of Columbia Circuit
John W. Nields, Jr.
Interviews conducted by:
Elizabeth Cavanagh, Esq.
September 27, 2017
March 20, April 24, May 22, July 10 and October 22, 2018
TABLE OF CONTENTS
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
John W. Nields, Jr, Esquire …………………………………………………………………………… iii
Elizabeth Cavanagh, Esquire …………………………………………………………………………..v
Oral History Transcripts of Interviews
September 27, 2017 ……………………………………………………………………………………….1
March 20, 2018 ……………………………………………………………………………………………64
April 24, 2018 ……………………………………………………………………………………………122
May 22, 2018 …………………………………………………………………………………………….165
July 10, 2018 ……………………………………………………………………………………………..213
October 22, 2018 ………………………………………………………………………………………..251

Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Attachment
Exhibit 1 …………………………………………………………………………………………………C-1
Biographical Sketches
John W. Nields, Jr, Esquire ……………………………………………………………………… D-1
Elizabeth Cavanagh, Esquire ……………………………………………………………………. E-1

NOTE
The following pages record interviews conducted on the dates indicated. The interviews were
recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded
an opportunity to review and edit the transcript.
The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the
Oral History Agreements included herewith.
© 2020 Historical Society of the District of Columbia Circuit.
All rights reserved.
PREFACE
The goal of the Oral History Project of the Historical Society of the District of Columbia
Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia
Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit.
The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are
trained by the Society. Before donating the oral history to the Society, both the subject of the
history and the interviewer have had an opportunity to review and edit the transcripts.
Indexed transcripts of the oral histories and related documents are available in the Judges’
Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W.,
Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the
Historical Society of the District of Columbia
With the permission of the person being interviewed, oral histories are also available on the
Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as
well as electronic versions of the transcripts, are in the custody of the Society.
i

Oral History of John Nields, Jr., Esq.
Schedule A
Tape recordings, digital recordings, transcripts, computer diskettes, and DVDs
resulting from seven interviews of John Nields, Esq., on the following dates:

Interview No. and Date All are in 1 mp3 file Pages of Transcript
1. September 27, 2017 1-63
2. March 20, 2018 64-121
3. April 24, 2018 122-164
4. May 22, 2018 165-212
5. July 10, 2018 213-250
6. October 22, 2018 251-291

The transcripts of the seven interviews are contained on one DVD.
vi

The transcripts of the seven interviews are contained on one DVD.
vi
1
ORAL HISTORY OF JOHN W. NIELDS, JR.
First Interview
September 27, 2017
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 Elizabeth Cavanagh and the interviewee is
John W. Nields, Jr. The interview took place at Covington & Burling on Wednesday, September
27, 2017. This is the first interview.
MS. CAVANAGH: John, if it’s okay, I’d like to start by talking to you about your parents
and your early life and you can tell me a little bit about your father.
Where he was born? What was his name?
MR. NIELDS: He was John W. Nields. Since I’m John W. Nields, Jr. And he was
raised in Rye, New York. He was a lawyer. He worked at the firm of
Cahill Gordon Reindel & Ohl until he was age 50 and at that point he
decided he wanted to develop a course in law for undergraduates and be
a teacher. He resigned from the practice of law and it was two years
before he found a job teaching. So life was a little tense during that
period of time. He got a job at Sarah Lawrence College which was – oh
he lived in New York City. He practiced in New York City at Cahill
Gordon. We lived in New York City. Sarah Lawrence is in Bronxville,
New York, just a short commute and with the traffic going in the other
direction, and he taught there for fifteen years and loved it.
MS. CAVANAGH: What did he teach?
MR. NIELDS: He taught his own courses. Originally, he started off teaching a course
on the legal method – the way law is made in this country with a focus
on judicial decisions in common law cases and watching things develop.
He was only a part time teacher in the beginning and then he was invited
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in as a full time faculty member and he taught civil liberties courses that
could have been taught in law school and then he continued with his
legal method course for people who didn’t want to be lawyers but who
wanted to understand something about how the legal system worked.
MS. CAVANAGH: What kind of law did he practice?
MR. NIELDS: He was a litigator. He did a lot of work for RCA. I remember the senior
partner of the firm was John Cahill and he had a case that he was
working on with Cahill and they – Cahill had an argument in the
Supreme Court. It was on whose color television system was going to be
adopted as the one that would be used for this country and my memory
is – I can’t remember who won. [Radio Corp. of Am. v. United States,
341 U.S. 412 (1951).] I do remember that RCA’s system was the one
that was eventually used. And I remember meeting Justice Robert
Jackson on the train on the way down to Washington, D.C.
I didn’t really know an awful lot about my father’s cases and what
he was doing. He didn’t talk about them very much.
MS. CAVANAGH: Did you know he was unhappy with – I mean assume at some point he
was unhappy with being a lawyer or not adequately happy?
MR. NIELDS: I guess he was not adequately happy. I was dimly aware of that until he
decided he was going to stop and teach. I never really talked to him
about why. I just never talked to him about why.
MS. CAVANAGH: How old were you when he did that?
3
MR. NIELDS: I would have been just about graduating from college. Because I
remember I think it was during the period after he stopped practicing at
Cahill Gordon and before he started teaching that I spent a – I had a
summer job, after first year of law school, at Cahill Gordon.
MS. CAVANAGH: We’ll get to where you went to school shortly. What about your father?
Where did he go to college? Law school?
MR. NIELDS: He went to Yale College and Yale Law School. The story went that he
decided he wanted to go to Harvard Law School since he had gone to
Yale College and he went up to Cambridge and spent one night there
and decided he didn’t like it as much Yale and drove back to New
Haven and went to Yale which I guess people could do in those days.
You couldn’t do it now. I think he went to Hotchkiss Boarding School
which he didn’t like but he did love college and law school and at one of
those places he met my mother’s brother and they became friends and
then he met my mother and they got married. He was hard of hearing by
the way. And when he went to look for jobs he didn’t get any for quite a
while. He was on the law review at Yale and smart and wise man. But he
didn’t hear well at all. He had had ear infections as a teenager. Many of
them. And he frequently had his ear drums burst from the pressure of the
infection, and so he had no ear drums. He had perfectly good hearing
nerves and he finally got himself a hearing aid and then the next
interview got a job.
4
MS. CAVANAGH: You mentioned Justice Jackson. Did you have any impression of him
when you met him?
[break]
MR. NIELDS: Not much, then, but I became a huge admirer of him when I prepared
and tried the FBI Black Bag Job case in 1980 – which I guess we will
discuss later.
MS. CAVANAGH: You mentioned that your father was born in Rye, New York. Did he
grow up in Rye or did he grow in New York City?
MR. NIELDS: He grew up in Rye and there was a brief period of time when his family
moved to Cleveland, Ohio, I think when he was away at school. His
family later came back to Rye. He went to Rye Country Day School, and
he lived in Rye and grew up there.
MS. CAVANAGH: And then you mentioned that he lived in New York City ultimately
when he was working. When he was older, did he live in New York City
until the end of his life or did he move closer to Sarah Lawrence?
MR. NIELDS: No, no he lived in New York City until the end of his life. My parents
had a house also in Long Island.
MS. CAVANAGH: I’m from Long Island.
MR. NIELDS: Are you? What part?
MS. CAVANAGH: I grew up in Commack which is near sort of Huntington/Smithtown
area.
MR. NIELDS: Well, they lived in Cold Spring Harbor until I was 6 and then they lived
in Huntington after that. Yes just south of the Jericho Turnpike.
5
MS. CAVANAGH: I was a candy striper at Huntington Hospital. Long ago. Enough about
me. You mentioned that your father and your mother met through your
mother’s brother? Is that right?
MR. NIELDS: Yes.
MS. CAVANAGH: And when was that? What was there? Were they in school?
MR. NIELDS: I think my father was in law school. I’m pretty sure it was during law
school. He graduated from law school in 1939 and they got married in
1939. And I think they knew each other for a year or two before they got
married.
MS. CAVANAGH: Why don’t you tell me a little bit about your mother. I have her name as
Lila Hall Franklin Nields. Tell me about her. Where she was born?
MR. NIELDS: She was also born and raised in New York City. Her mother was from
Bennington, Vermont and was one of the founders of Bennington
College and my mother was in the second graduating class at
Bennington College and believed in progressive education. She was,
well you know she was my mother, so my objectivity is not great but she
was nearly a saint. I mean she was – I never ever heard her raise her
voice in anger in my life. And the only time she raised her voice at all
was when she was skippering a sailboat talking to whoever it was that
should have been pulling a rope and wasn’t doing it. She was a lovely
woman.
MS. CAVANAGH: Was she home with the kids?
6
MR. NIELDS: She was home. She did – she was on the Board of Bennington College.
She was on the board of an organization called Goddard Riverside which
was a low income housing organization in New York City and she raised
her children.
MS. CAVANAGH: And did she live in Manhattan but it sounds like they moved and they
had a house in Cold Spring Harbor and she outlived your father?
MR. NIELDS: She outlived my father, yes. He died of throat cancer, neck cancer. He
smoked a lot and he died in 1981 at 66 years old. She died in 1995.
MS. CAVANAGH: So we will move to you now. When were you born? Where were you
born?
MR. NIELDS: I was born in 1942 in New York City and raised in New York City and
Cold Spring Harbor, Long Island.
MS. CAVANAGH: Tell me a little about New York City when you were young. Where you
lived exactly?
MR. NIELDS: We lived on Madison Avenue and 89th Street and I went to the Dalton
School which was a progressive school and I don’t quite know what that
means except that they were low on discipline and organization and
people were very kind to each other and the teachers were good teachers.
But for example they had a system where they gave out (this is after –
from fifth grade on – I think) they gave out assignments – your
homework assignments by the month so that you had a month to do –
you would be given everything you were supposed to do by the end of
the month and you had to do it all by the end of the month and of course
7
that was fine for people who were organized and diligent and could see
the future but it was terrible for people like me who procrastinated all
the time and I would do nothing until there were about five days left and
then it was hopeless. It taught me failure in a good way.
MS. CAVANAGH: You turned out pretty well so that’s encouraging. I have a sixteen year
old son so I can imagine that very well.
MR. NIELDS: But the Dalton School was a block and a half from where I lived. It was
between Park and Lexington on 89th Street and so I would walk to
school from a very young age. I can’t tell you for sure when but I’m
guessing seven years old or so. And I went to Dalton from age 3 to age
13 and my best friend at Dalton starting at age 3 and continuing all the
way through was a guy named Fitzhugh Seamus McManus Mullan. And
he’s still a friend. He lives now in D.C. In fact I just went to his 75th
birthday party.
I didn’t like school at the time, and yet I look back on it with very
fond feelings. And had many good friends and we would play sports,
Fitzhugh and I and some other people on the sidewalks of New York
after school. We’d throw and play 2 on 2 touch football. Sometimes
we’d go out to Central Park and hit fungoes and do running bases and
played a game called Off the Point which you played with a pink rubber
ball. It was a little smaller than a tennis ball that was very bouncy and
you would take the molding on the side of apartment buildings that were
usually about 2 and 1/2 maybe 3 feet off the ground, maybe 4, I’m not
8
sure. I was shorter then and you’d throw it against the sharp edge and if
you hit the point – that was called the point – the sharp edge of the
molding – you could make it bounce off the second or third story
window on the building across the street and we had all kinds of rules
about what would be a home run and what would be a single and a
double and it had to do with how many times the ball bounced on the
ground after it hit the wall and stuff like that. Anyway.
MS. CAVANAGH: You mentioned that you went to Dalton until you were thirteen and then
what came after that?
MR. NIELDS: I went to Andover.
MS. CAVANAGH: Why did you go to Andover?
MR. NIELDS: Because that was what I thought I was supposed to do and what my
parents had in mind for me. I looked at several different places and
chose Andover and was just miserably homesick for like two or three
weeks after it started and then got used to it, made friends.
MS. CAVANAGH: What sort of – were you involved in any activities at Andover?
MR. NIELDS: Let me just say one other thing for whatever it’s worth. If I were to do it
again I would not have gone to an all-male school which it was then and
I would not have gone away to school.
MS. CAVANAGH: Why?
MR. NIELDS: I wasn’t really happy there and it was a peculiar environment to have
just boys and not girls. I was very shy pretty much all the way through at
least up to starting at Andover and maybe during that time too, and I
9
would have done much better at home and with family around me and
seeing people of both genders. But it was fine and I made friends there
too and still see some of them today.
MS. CAVANAGH: Were you an athlete? Were you involved in . . .
MR. NIELDS: I was a slightly more than competent tennis player. So I played tennis at
Andover and was kind of on the tennis team. I can’t quite remember. I
think I was just off the bottom of the six players who played most of the
competitive matches but then tennis became an even more important
part of my life and I got better after I got out of high school and college
and got married.
MS. CAVANAGH: Stepping back for a moment, tell me a little bit about your siblings. Their
names, their ages relative to you.
MR. NIELDS: So I was greeted into this world by my older sister Elizabeth. So that’s
one of my favorite names.
MS. CAVANAGH: It’s a good name.
MR. NIELDS: Exactly. She was two years older than I and then I have a sister Laura
who is six years younger than I am and then I have a sister Jenifer who
is twelve years younger than I am. They are alive and well and are
lovely people.
MS. CAVANAGH: Were you close with them as a child?
MR. NIELDS: I was extremely close to my sister Elizabeth. Extremely. We did
everything together. She was very bossy at that part of my life but we
have remained very, very close ever since. Laura and Jenifer were
10
enough younger than me so that the closeness developed over time, but I
am very close to both of them today and see them frequently. My sister
Jenifer developed Lyme disease that was misdiagnosed and she’s a
doctor. She’s a psychiatrist. Her husband is a psychiatrist so she was at
Yale Medical School doing various things during the time when she had
this undiagnosed Lyme disease and it has affected her life. It hasn’t
ruined it at all but it’s affected her life. She can’t tolerate noise or light.
She has neurological symptoms. It finally got diagnosed and treated with
massive amounts of antibiotics but you can’t get rid of it if you catch it
too late.
MS. CAVANAGH: What can you tell me about Elizabeth?
MR. NIELDS: And I was enchanted by my sister Jenifer when she was born. I mean I
was twelve years old. I was just besotted with her.
MS. CAVANAGH: What can you tell me about Elizabeth? Where does she live today?
MR. NIELDS: She lives in Otego, New York which is about an hour northeast of
Binghamton. She is a potter and lives on a farm. I mean it’s not a
working farm. It’s a pottery farm. You wander around it and you will see
giant statues of things whose meaning was not always obvious, or
people made out of huge – I mean I’m talking about taller than me that
you find sort of in the field and in the trees and then she’s – I mean our
house is filled with her pottery – various kinds of things from coffee
mugs to bowls to statues to what is the word for something that’s about
that wide and that high. A pillar but it’s sort of pillar shaped.
11
MS. CAVANAGH: You put things on top of it.
MR. NIELDS: No it’s not functional.
MS. CAVANAGH: It’s not an urn.
MR. NIELDS: It’s not functional. Almost everything that she has made ever – not
everything – has an elephant in it someplace.
MS. CAVANAGH: I saw her website.
MR. NIELDS: Did you really? Did you see elephants on it?
MS. CAVANAGH: I don’t remember elephants specifically. I will look.
MR. NIELDS: You’ll see them. She’s just a very special person.
MS. CAVANAGH: And how about Laura? Where does she live?
MR. NIELDS: She lives in Brooklyn. Brooklyn Heights. She’s married to a man named
Mark Page who was Budget Director for the City of New York under
Bloomberg. They have five children. Each one – all wonderful – four
boys and one girl. Just more fun to be with than you can imagine. She
has at any given time at least four Jack Russell terriers. I don’t know if
you’ve seen a Jack Russell terrier but they are all crazy.
MS. CAVANAGH: Hard to control.
MR. NIELDS: She also has a house in Long Island. In fact she owns the house that my
parents had in Huntington and also the house that her husband’s parents
owned in Cold Spring Harbor and I think she has plans to have almost
every child live somewhere nearby to where she lives as she grows old.
She’s just wonderful and unbelievably competent and she is helping
everybody all the time.
12
MS. CAVANAGH: What sort of things did you do together as a family when you were a
child, in terms of vacations, for example.
MR. NIELDS: Well our principal vacations were in the Adirondack Mountains in
upstate New York where we stayed in a place that my mother had gone
to as a child and her mother had gone to as a teenager; it was just a
bunch of cabins stuck in a clearing and some of them had hot running
water and some didn’t, and it housed about 40 people and several
families would stay there and there’s a community dining room where
everybody ate breakfast and supper and there was a community living
room up at the top of the camp where, which was its own building, but
where people mostly sang after supper, and we went there as children
and loved it. My father loved it, my mother loved, Elizabeth loved it,
Jennifer loved it, and Laura loved it, and we would hike, that’s basically
what we did. We climbed mountains.
MS. CAVANAGH: I know that you continued that with your own children.
MR. NIELDS: I did continue that with my own children and they are now continuing it
with their children.
MS. CAVANAGH: Nice. Very nice.
MR. NIELDS: Same place.
MS. CAVANAGH: That’s very nice. We will talk more about that, when we talk about your
children. Are there other family members that you want to talk about
from when you were young – aunts or uncles or anyone else significant?
MR. NIELDS: Well yes, I guess, of course.
13
MS. CAVANAGH: Go ahead.
MR. NIELDS: I grew up with a number of second cousins. My grandmother and her
brother each built houses in the same, very near to each other and then
her brother’s children built three of them — built houses also around
there. So there were three families of second cousins and Elizabeth and I
grew up with them from the day we were born.
MS. CAVANAGH: Where was that?
MR. NIELDS: That was in Cold Spring Harbor Long Island.
MS. CAVANAGH: Ok.
MR. NIELDS: Yeah. And my parents lived in a very tiny cottage, up until I was six, but
even after they moved away to Huntington we spent huge, Elizabeth and
I spent huge amounts of time with our cousins, and I had a favorite aunt
— Aunt Joanna, Aunt Jo — and she was as important to me and then to
my wife after we got married as I think anyone was in my life outside of
my immediate family. Just a lovely woman who made everybody around
her feel welcome and relaxed and she welcomed me and my sister into
her house when we were teenagers and both very awkward and she
made us feel not awkward and then she welcomed my wife. She was the
first person I introduced my wife to.
MS. CAVANAGH: Any other relatives you want to tell me about right now?
MR. NIELDS: Yeah. (My Aunt Jo also welcomed my children into her house when we
started having children.) Well I mean, my father had a sister, who loved
to play tennis and was a very good athlete and she had a house, not a
14
fancy one, but one that was big enough to house us in Bar Harbor,
Maine, and so Gail and I, (and she loved our kids), would go up to Bar
Harbor, Maine and play in tennis tournaments there for a week or two in
the summertime for about 10 years, and stay with her. We loved her very
much and we could go up there and play. I could play men’s singles,
men’s doubles, and mixed doubles, and my wife would play ladies’
singles, ladies’ doubles, and mixed doubles, and that was what we did
together.
MS. CAVANAGH: That was Barbara Stearns?
MR. NIELDS: Barbara Stearns, wow, you really —
MS. CAVANAGH: I did a little research.
MR. NIELDS: She was Barbara Nields obviously and she married Sherman Stearns
who was a great, I mean seriously great bridge player. He was one of
what was known as the Four Aces — Oswald Jacoby’s famous bridge
team and when I knew him basically the way he made his living was he
could go around playing bridge for three pennies a point whatever that
means.
MS. CAVANAGH: You’re not a bridge player?
MR. NIELDS: Well, yes I did play bridge and liked it quite a lot and so did my wife but
we didn’t play for money. We played for money once on our
honeymoon and my wife hated it so much I think we lost the first rubber
and the other team insisted on being paid right on the spot. It was like
you’d played — it was in Bermuda. It was —
15
MS. CAVANAGH: That was it.
MR. NIELDS: That was it. So that’s the only time I’ve ever played for money.
MS. CAVANAGH: Okay. Going to back to you at Andover, and at some point I guess you
decided what college you were going to go to. How did you make that
decision?
MR. NIELDS: It was, my father had gone to Yale, it was my first choice, I applied early
admission, I got in, surprisingly because I was not a good student at
Andover — I mean I wasn’t bad but anyway I got in and I went.
MS. CAVANAGH: Tell me about your experience at Yale.
MR. NIELDS: Well it was, I was really somehow in a bad place when I started Yale. I
did not apply myself. I did very poorly in the beginning and by the end I
was at least on the dean’s list but I really was a bad student. I mean I
learned bad study habits at Dalton for reasons that I think I’ve already
explained to you and I still had them when I was at Andover and I still
had them until really until I got married. And I got married while I was
still at Yale and Gail and I lived in a tiny little apartment one block away
from Davenport College, which was the college I had been in at Yale.
And I started to be a serious student, just barely started, but —
MS. CAVANAGH: Why? Did your wife encourage you or did you just realize you needed to
focus here, or how did that transformation happen?
MR. NIELDS: Well, I don’t think I know the answer to that for sure. I mean it did
happen. I was very, very, very happy with being married and I was very
16
happy with my wife, and she with me I think. The social uncertainty was
a cause of distraction I think in my first year, three years of college.
MS. CAVANAGH: So how old were you when you got married?
MR. NIELDS: Twenty.
MS. CAVANAGH: And how old was Gail?
MR. NIELDS: Nineteen.
MS. CAVANAGH: Interesting. Were there many students married at that time? No.
MR. NIELDS: No. We were definitely among the first. We weren’t the only people. I
wasn’t the only person in my class at Yale who was married at that point
but there were very few. We were the first people we knew among our
friends to be married.
MS. CAVANAGH: Interesting.
MR. NIELDS: For both — that was true for both of us.
MS. CAVANAGH: What was your major at Yale?
MR. NIELDS: Political science.
MS. CAVANAGH: And did you enjoy your courses ultimately?
MR. NIELDS: Not that much. I just didn’t work on them hard enough. I didn’t — I just
didn’t love my studies.
MS. CAVANAGH: Were you involved in any activities at Yale — tennis, or —
MR. NIELDS: I remember — very few if any. I played tennis and I played, I remember
playing in the freshmen squash tournament, which wasn’t really my
sport, and ending up — and then most classes at Yale had the best squash
players in the country or second best or whatever. We had a very lean
17
year and I ended up a runner up in the freshman squash tournament and I
got a trophy that’s like about that big, I think I still have it someplace.
MS. CAVANAGH: That’s funny.
MR. NIELDS: So I mean I did continue to dabble in my racket sports but really not
after the first year. There was too much else going on.
MS. CAVANAGH: What was New Haven like at that time? This is the early ’60s. Politics
were changing. You know, if you had any engagement in the kind of
political events that were going on, or what the mood on the campus was
at that time.
MR. NIELDS: I don’t think it was a particularly hot political era in our country. Right
after I graduated in 1964 and the Vietnam War was starting to ratchet
up, everything changed. Everything changed.
MS. CAVANAGH: You must have been a senior when President Kennedy was killed.
MR. NIELDS: I was. And I can remember where I was, I can remember where I ate
dinner, and that was just — I felt the cataclysmic nature of that event
obviously as did my wife. But we had not been — I mean we found him
an exciting and charismatic person but we had not really, either of us,
become — talking about my wife now — gotten really involved in
political kinds of issues. And my parents were not passionate about
political issues except that they abhorred McCarthy. I mean they just
abhorred him. So that much I sort of picked up. And there was a — and
they were very — they cared, they got very interested in Alger Hiss and
whether he was guilty or not guilty of — when he was tried for perjury,
18
so — and Alger Hiss’s wife, I’m pretty sure I’m right about this —
taught at Dalton. And his son, Tony Hiss, was president of the class
ahead of me at Dalton. And this was after Alger Hiss had been convicted
and so forth. So that was an event that made an impression on me and I
didn’t quite know where I came out on it but I knew that that was
something that my parents cared about and consequently something I
cared about and was interested in. McCarthy and the slightly-related
issue of Alger Hiss.
MS. CAVANAGH: You mention that you remember where you were when you found out
about President Kennedy. Do you want to talk about that a little bit?
MR. NIELDS: Well I can picture myself on I think it was Park Street and somebody
coming up to me and saying President Kennedy’s been shot. And then I
can remember — one of our parents was in New Haven either when he
was shot or before the end of the day that he was shot and I remember
going and eating dinner at a restaurant, and I almost never ate at a
restaurant, and picking up the atmosphere of upset, but that’s about all I
can remember.
MS. CAVANAGH: What did you do in the summers when you were in college? Did you
have jobs in the summers? Did you stay in New Haven?
MR. NIELDS: I had jobs. I worked believe it or not for a construction company that
was doing something in Islip, New York, I think, which is on the South
Shore — you know where it is — the airport in Islip, which I flew into
later. We were surveying, a friend of mine and I had the same job and so
19
that was one summer. I worked on a ranch in Utah, godforsaken job, but
I’m very glad I did it but it was nowhere near anything. I flew to Salt
Lake City and I got picked up by the father of another person that was
doing the same job, and got driven four hours south to the Uinta
Mountains and spent two months on a ranch hauling rocks off dirt and
sandy soil and learning how to drive a tractor and back it up with a big
wagon attached to it and getting up at 5 in the morning and getting eggs
out from under the chickens that had just laid them — oh god, they were
good. Tilly, there was a cook named Tilly that would make fried eggs
for us in the morning. And I remember absolutely unpotable water that
ran in the rivers. That’s what I had to drink. Anyway — but it was a —
there was nothing, we had no car, and if we’d had one the nearest town
was two hours away by car.
MS. CAVANAGH: That was a long summer.
MR. NIELDS: It was a long summer. But I still have fond memories of it. Somebody
else, there was another young boy our age who was local who did have a
car who worked on a ranch and we took one trip in to Price, Utah, took
us two hours to get there. We saw a movie and we got back at like 2 in
the morning. And we saw Rio Bravo, almost sure. That’s the only thing
we did.
MS. CAVANAGH: Getting back to your wife, Gail Tenney, how old was she when you met
and got married?
20
MR. NIELDS: Well there’s a little bit of a back story to this which is that — Laura,
who I’ve talked about, my sister, and Gail’s younger sister, Sarah, were
in the same class in kindergarten. And they became very good friends.
They both liked to ride horses and they became very good friends. And
decided that their older brother in Laura’s case, and sister in Sarah’s
case, should get married someday.
MS. CAVANAGH: When did they decide that?
MR. NIELDS: Fairly early on, I think, like at age 6 or 7 or so. And we were not ready
to be introduced yet. We hadn’t reached puberty yet, I don’t think. But
we both loved tennis, we both loved Willie Mays, and were rabid New
York Giant fans, we both played bridge, and I think that was probably it.
I think that was the sum total of their reasoning.
MS. CAVANAGH: So when did you actually meet?
MR. NIELDS: Well I probably met Gail in terms of having seen her face maybe once
when she came to pick Sarah up at her up, her sister Sarah up, at our
house. But I really first met her at Putnam Camp when my parents had
suggested that Sarah’s parents stop by — oh I think Sarah was visiting
Laura at Putnam Camp and her parents were coming from somewhere
and my parents said well, spend the night and you can pick up Sarah on
the way by and take her home. So Gail was there and I met her one
evening or late one afternoon on the croquet course, which was not like
any other croquet course in the history of the world. It was about as flat
as a mountain range. But that didn’t take quite, although I was attracted
21
to her but nothing really much happened until the next summer and then
we played in a tennis weekend with each other, we went to a play at
Stratford, Connecticut, and we went to hear the Kingston Trio, and then
I got up all my courage and asked her to go to a baseball game, an
exhibition baseball game between the San Francisco Giants and the New
York Yankees. The first time Willie Mays had been in New York since
the Giants and the Dodgers went to the West Coast in 1957. And for
reasons I won’t go into I had a pretty good idea she might say yes. And
so we went there and —
MS. CAVANAGH: So when was that? Were you in college yet at that point?
MR. NIELDS: Oh yeah, I was at college. Oh yeah, that would, oh, I see, yeah, you’re
right, that would have been in between freshman and sophomore year.
MS. CAVANAGH: And where was Gail at that point? Was she in college?
MR. NIELDS: She was going into her senior year in high school.
MS. CAVANAGH: Where did she go to high school?
MR. NIELDS: At a place called the Brearley School in New York City.
MS. CAVANAGH: So tell me a little bit about Gail. Where did she go to college?
MR. NIELDS: Well we were married before she started college. No wait a minute,
that’s not right. No, that’s not right. She was at the University of
Connecticut. She didn’t get into the colleges she thought she should
have gotten into which she attributed not with any bad feeling to the fact
that she was spending all of her last year in high school seeing me on
weekends seeing me. But she didn’t. And that was an upset to her. She
22
was able to transfer from UConn to Connecticut College for Women in
the middle of her first year and then we must have gotten married after
her first year at college. Anyway she went to Connecticut College for
Women until I graduated from Yale which was after one year of our
married life. And then I went to UPenn law school and she transferred to
UPenn college.
MS. CAVANAGH: I see. So she was commuting basically from New Haven to Connecticut
College. And it’s where still is, right? Connecticut College is coed now.
MR. NIELDS: Yeah. In New London.
MS. CAVANAGH: So where did you get married? Tell me about your wedding.
MR. NIELDS: My wedding. So we got married in Greenwich, Connecticut. Her parents
had a house there. They lived in the city but somewhere along the line
they bought two tiny houses — I mean this is not like the Greenwich,
Connecticut that you might think — one of them didn’t even have heat.
It had been an old post office and hadn’t been used for anything I think.
And then they had, the house they lived in was not much bigger than the
other but it had heat and running water and it was a nice little — it was
very small. There was a tiny living room and there were two tiny
bedrooms on the upstairs floor and a bathroom. But Gail had gone to
Sunday school at the Stanwich Congregational Church which was just
down the road from where they lived and that’s where we got married.
MS. CAVANAGH: Did you have a big wedding, a lot of people?
23
MR. NIELDS: I mean to me it was an enormous wedding but compared to what people
do now it was tiny. I can’t even tell you whether — I don’t know how
many people we had. Somewhere between 50 and 100 I think. I didn’t
think about numbers of people the way people do now. We had I don’t
know, seven bridesmaids and seven ushers and lots of cousins and lots
of friends and it seems like it all went by too fast but it was a lovely time
of both of our lives. We had a night before the wedding party in Long
Island and then we had the wedding which was an afternoon wedding. It
wasn’t particularly fancy. Our grandmothers were both there and her
grandmother’s family grew up in Williamstown, Mass. My
grandmother’s family grew up in Bennington, Vermont, and they
actually had known each other’s families which we found out, we didn’t
know that. And we have this unbelievably wonderful picture of
sometime after the wedding service, and the reception was at her house,
her tiny little house in Greenwich, so it didn’t take place IN the house,
the reception wasn’t in the house, you couldn’t have done it in the house.
It was outside and I don’t know whether there was a tent. I can’t
remember that. It was a beautiful day, beautiful afternoon. Anyway our
grandmothers were seated at a very small round metal table looking into
each other’s faces with rapt expressions. And then we went off to
Kennedy Airport, might even have still been Idlewild, and we went to
Bermuda.
MS. CAVANAGH: And played bridge.
24
MR. NIELDS: And played bridge.
MS. CAVANAGH: Tell me a little more about Gail. So after she graduated from University
of Pennsylvania did she go to graduate school?
MR. NIELDS: Yes, she got a master’s degree at Bryn Mawr and then came back to
New York and so she was, so I graduated from law school in — our first
child was born before she got her master’s degree. Must have been.
Yeah, because she didn’t get, she was commuting to Bryn Mawr
somehow or another one day a week after we’d moved back to New
York. So she already had a child and then we had a second child two
years after that. And she was not working outside the house. She was
getting her degree for one year and then for one or two years she wasn’t
working and I remember thinking that was a bad plan and she then got a
job teaching at the Hewitt School in New York City. I can’t remember
exactly how many years of child-raising but I think it was fairly soon, I
think it was like three or four years into our time in New York. And then
I dragged her kicking and screaming down to Washington DC to do my
clerkship with Justice White which I thought was going to be very
temporary and we’d be back to New York and living a normal life.
MS. CAVANAGH: And that was it.
MR. NIELDS: We’d been here ten days and she told me we’re never going back.
MS. CAVANAGH: She said that because she thought you wouldn’t go back or did she like it
here?
MR. NIELDS: She loved it here.
25
MS. CAVANAGH: Oh, good.
MR. NIELDS: She loved it here. I think being surrounded by an awful lot of my family
was a little bit suffocating and she had also never lived a suburban life
where you had a supermarket five minutes away from your house and
you could —
MS. CAVANAGH: A parking lot.
MR. NIELDS: — yes, and getting out of the madness of New York City and the crowds
and everything. Anyway so then our daughters went to the Potomac
School, all three of them, although one of them was just born when we
moved down. But the other two went to the Potomac School right away
and Gail got a job teaching part-time at the Potomac School the very
next year, and taught there for 35 years.
MS. CAVANAGH: And that’s in McLean?
MR. NIELDS: And that’s in McLean, Virginia. She was able to teach one course the
first year until Abigail, our youngest child, went away to preschool.
Then she taught two courses so she could still pick Abigail up at noon,
until Abigail got far enough so that she was at school in the afternoon
and then Gail went to a full load. Potomac had only nine grades when
we started there. So she taught ninth grade. And then our children would
— our theory was that they shouldn’t be in a class where their
classmates were being taught by Gail and so we transferred each one of
them to Madeira after 8P
thP grade, into 9P
thP. Then the Potomac School
opened a high school and Gail ended up teaching almost all of her time
26
there as an 11P
thP and 12P
thP grade teacher of history. History was her field
and she specialized eventually in American history and particularly
African American history.
MS. CAVANAGH: And is she retired now?
MR. NIELDS: She’s retired. She’s been retired for a while. She’s writing a book. She’s
writing an historical novel.
MS. CAVANAGH: Does she let you read it?
MR. NIELDS: Yes, I’ve read, yes, and I love it. I read the first draft cover to cover, as
she was writing it. Then she’s done a second draft which she gave me to
read in chapters but it moved too slowly given that I already knew the
plot. And so I asked her to give me the whole draft when she finishes.
She’s just finished it but she’s still giving it to me in pieces but —
MS. CAVANAGH: Well we’ll get back to your kids later because I do want to talk about
that but going back to, you graduated from college in 1964. You
obviously decided to go law school. Would you tell me about that
decision and why you decided to go where you went?
MR. NIELDS: Just as I’ve already described, that I backed into college and boarding
school because that’s just what I believed I was supposed to do, and I
backed into law school for the same reason. And my father was a lawyer
and I just assumed I was going to be a lawyer too. But the difference
was I loved it from day one. I loved it. I went to the University of
Pennsylvania because it was the best school that I got into. I didn’t get
into Yale — pretty sure I applied to Yale and I’m pretty sure I didn’t
27
apply to Harvard. And I can’t remember now for sure. I got into like
NYU and maybe I got in at Berkeley and Penn. I think those are the two
that I got into that were somewhere near thought of as good law schools.
And not knowing much more about them than that. And boy did I luck
out. Penn was first of all a small law school. It had 170 people per class.
And it had absolutely, there was no negative competition among
classmates at all. And they had a regime there where you had an hour of
classes at the beginning of the day, an hour off, an hour of classes, an
hour off, an hour of classes, and then lunch, and then maybe I’ve lost an
hour or I miscounted the classes but the point is they staggered your
classes so that you had an hour off in between them, and strongly
encouraged people to form study groups made up of three, four, or five
people and meet with them in the hours in between to talk about what
you’d just studied or what you were about to study in the next class. And
I made my best friends almost of my life very quickly, very luckily.
They were all very smart and we became extraordinarily close friends
and all respected each other’s views and talked about the things we were
studying and just speaking for me but I think for all of them I knew this
was really important to me.
NIELDS cont’d First of all it was important to me because I actually was going to
live a life and I was going to have to have a job and I was going to have
to do it well and it would actually matter to whether I had a good life or
not, and we also believed — and that was an era where even though I’m
28
not positive I agreed with all of the fairly extravagant advances in the
law that the Warren Court was making I basically was for everything
they did but sometimes I wasn’t quite sure I knew how they got there.
But exciting things were happening in the law and courts were doing
really important things and consequently lawyers were doing really
important things and we were going to get to be part of that. And so we
got very excited about our profession and our studies. And it was a lifechanging experience.
MS. CAVANAGH: So you worked hard right away from the beginning of law school?
MR. NIELDS: I worked hard right away.
MS. CAVANAGH: Any particular classes or professors you want to mention? Or
classmates?
MR. NIELDS: Well, classmates — I just had, the people in that study group that I
worked in will always be my friends and every time I see them it’s like
we haven’t even skipped a beat. I had dinner with Bill Rosoff and Artie
Newbold this last Saturday night in New York City. We all got together.
And we do that periodically. And Barry Unger and Ira Brind and Sharon
Kaplan — those were the people that were either always in my study
group or sometimes in it. And we were close friends through law school
and ever since.
But I feel like there’s a thread that I — oh you asked me about law
professors. Well, Anthony Amsterdam was at Penn Law School and I
took at least one course from him. I feel like I might have taken two. I
29
did not take the basic criminal law course from him but I did take
Advanced Criminal Procedure from him. And he was just
extraordinarily good and clear. And he was enough Socratic method so
that your brain worked hard but he wasn’t at the far end of Socratic
method. There was a professor there named Paul Mishkin who I think
ended up revising the Hart and Wechsler book on federal courts and he
enthralled us. He enthralled me. Everything seemed so deep and
complex and rich and I believed in the Socratic method. I really liked it a
lot because it absolutely — I mean I hated college where you were
trying to learn what some other person whom you didn’t really like and
didn’t particularly agree with what they thought, and you were supposed
to be brilliant at knowing what they thought about something. Now we
were spending our time trying to figure out what we thought about
something. And the Socratic method helps in that process.
Nields cont’d Paul Bender was another, I took just Civil Procedure with him but
I remember studying Erie Railroad Company against Tompkins [304
U.S. 64 (1938)] and everybody thought that the problem with the preErie rule was all the different — I think it was — I’m sorry. This was
terribly profound to me at the time. I think it was that you would get
inconsistent results in the same case depending on whether you were in
federal court or state courts.
That’s me that’s making that noise. And I apologize for it. I’ll turn this
off.
30
MS. CAVANAGH: No, that’s fine.
MR. NIELDS: And I remember Paul Bender saying I think there’s something a little
more going on in this case than that. Right? And it was, you know, what
in the world power do federal courts have to make state law? You know
in cases where Congress isn’t allowed to legislate and the states are, why
are we making federal common law? Anyway, I remember thinking that
that was very profound. And there were other professors that I remember
very fondly. Leo Levin was one of them. And I’m forgetting, I mean if I
sat here I’d reel off a bunch of others.
MS. CAVANAGH: Were you involved in law review or moot court?
MR. NIELDS: I was not involved in law review. I missed it in the first year by a tiny
amount and then I missed it in the second year by a tiny amount. And
I’m still suffering from bad work habits. But I was up near the very top
of the class by the last year.
MS. CAVANAGH: And how did you decide what you wanted to do after law school? Did
you know in the middle of law school, you knew what you wanted to
do? No?
MR. NIELDS: Again I assumed I’m going to a big firm in New York. Again, I’m still
going backwards. Backing into —
MS. CAVANAGH: And you mentioned that one of the summers in law school you worked
at Cahill Gordon.
MR. NIELDS: Yes, and then another one I worked at, Patterson Belknap, Webb &
Tyler.
31
MS. CAVANAGH: Working litigation? Or —
MR. NIELDS: Oh, I don’t think I had any — I mean I was doing legal research for
whoever. It probably was mostly litigation. I think it was mostly
litigation. Neither summer was particularly consequential. I didn’t learn
a lot and I didn’t — I think I did good work and I think that people I
worked for thought I did good work but I remember being given one
assignment, read every parol evidence case decided in New York State
in the last 50 years.
MS. CAVANAGH: So you enjoyed that.
MR. NIELDS: That was fun?! Anyway so I did the interview thing and ended up at
Davis Polk and I’m still going as I said sort of backwards. They had a
rotation system so that you spent 3 months in litigation, 3 months in
trusts and estates, three months in corporate and then 3 months in tax or
something like that. And I at least figured out that I hated corporate
work, just hated it. It was like take a long document from the last deal
and change the names and the dates and make sure you don’t miss
anything.
MS. CAVANAGH: So you didn’t like that.
MR. NIELDS: It was horrible.
I had actually an interesting case when I was doing the trusts and
estates. It had to do with the cy-près doctrine and it actually was getting
argued in court and I went to court with a guy who was arguing it. And I
think it went our way. And I liked litigation. But I chose, at the end of
32
the year of rotations, to work in the tax department because the work I
did there, it used your brain more than any of the other types of work I
did. It was very rich intellectual work or brain work. “Intellectual” is too
good a word to use for tax but while basic tax course in law school was
boring, the corporate tax work that they were doing at Davis Polk was
not boring. And it was very conceptual. And I was good at it. And about
three quarters of the way through my second year there I said to myself,
two things — one is I think this is using about this much of me as a
human being — the top half of my brain — and not much else. And I
don’t think I like that. And the other thing was that I had three friends
who went to the US Attorney’s office and each one of them loved their
work. And I liked my work but I didn’t love it.
MS. CAVANAGH: Before we leave Davis Polk, do you have anything to say about what the
working environment at a big firm was at that time compared to more
recently in terms of billable hours or pro bono work?
MR. NIELDS: I suspect I was close to clueless about the way the firm actually worked
and operated. I mean I knew Hazard Gillespie who was a big deal
partner there because I knew his son and grew up with him and played
tennis with him. I think probably he talked to me for ten minutes one day
or something. But I’m sure I didn’t really understand exactly what the
pressures were and so forth. But I’m very sure it was not then nearly as
bad as it is now in a major New York law firm. In the summertimes I
caught my 5:47 train out of Brooklyn to Long Island almost every day.
33
Now I was probably in the trust and estates or the tax, it’s a little bit like
being a dermatologist if you’re a doctor, right. You don’t have too many
emergencies. But I did litigation work and it may be that I missed the
point and that if I had wanted to succeed in that environment I should
have been working harder. Although I don’t think that’s true. They
really liked me in the tax department. They liked the work I did. But I
went home for supper. I mean I would sometimes work late and then go
home for supper but I never ate downtown. Well maybe I did once or
twice.
MS. CAVANAGH: Where were you living while you were working at Davis Polk?
MR. NIELDS: We were living at 401 East 81P
stP Street so I took the Lexington Avenue
subway up to 86P
thP Street and then walked down to 81P
stP and 1P
stP. And then
I think when I was at Davis Polk that’s where I was living. I think we
lived there for both years I was at Davis Polk. Then I’d get home and
wake up our daughter and make her play with me and put her back to
bed.
MS. CAVANAGH: Just to step back for a moment, we talked a little bit about when you
were in college that the political environment hadn’t changed very much
on campus, and I’m wondering if that was different by the time you
were in law school. And you graduated from law school in 1967 and I’m
wondering what your experience of that was on a campus in the
Northeast with Vietnam ramping up.
MR. NIELDS: You’re talking about what the law school experience was like.
34
MS. CAVANAGH: Yes, yes.
MR. NIELDS: Well so here how it all hits me. I think both of us were young, immature,
and probably more so than most. And I walked into law school without
— I didn’t know anything about the Vietnam War or what was
happening there or anything. I mean I paid attention to politics, I mean I
liked what Lyndon Johnson was doing but didn’t trust him further than I
could throw him. I mean every time I heard him on television I said that
man is lying to me. And I loved Kennedy and I loved his wit, I just
loved to listen to him talk. And I liked his Peace Corps and all the things
that flow out of that quote from his inaugural address, ask not, and so
forth.
But I sat next to Artie Newbold every single day in class. We had
seating assignments. We were a class divided into two sections and
everybody sat in the very same seat for the entire year. And Artie
Newbold became a very good friend and he taught me and my wife all
the politics that we knew at that point, and explained to us that, and I
may be conflating and collapsing years, but the Vietnam War became a
really important thing to me for also reasons that I can’t explain; it
wasn’t so much I don’t want to go fighting this war, it was that this is a
really terrible mistake that the country is making. There’s no right or
wrong side in this war and there is no reason for us to be involved in it.
And I just was watching — have you watched the Ken Burns?
35
MS. CAVANAGH: We’re in the middle of it. We’re a couple episodes behind but I’m
learning so much from it that I didn’t know.
MR. NIELDS: I’m learning stuff that I forgot or didn’t know but –
MS. CAVANAGH: It’s very upsetting.
MR. NIELDS: — it’s all familiar. Oh, it’s just really wrenching emotionally.
MS. CAVANAGH: A waste.
MR. NIELDS: Wasted, just —
MS. CAVANAGH: So much wasted everything.
MR. NIELDS: Oh god. Oh god.
MS. CAVANAGH: Yeah.
MR. NIELDS: And conventional wisdom was so far off, god. But I came to that
conclusion back in 1965, I guess I started law school the end of ’64 so
my feelings about it got stronger and stronger and stronger as each year
went by. And they continued to get stronger and stronger. But that’s sort
of the extent of it. In other words that’s what was roiling me was the
Vietnam War. And I suppose that race, I was watching the race too but I
had not yet gotten to the point that I cared deeply about that, I’m afraid
to say. I had quite a few African-American classmates at Dalton. It was
slightly unusual in that sense for a private school but I had friends and
quite a few classmates. I don’t know whether it’s 3 or 5 but in a class of
40 that’s —
So I had an instinctive — I couldn’t understand why people would
develop a prejudice against — that far, at least that much of it I was in
36
the right place on but I didn’t think of it as something I wanted to spend
my time fixing. And I didn’t realize what was going on, either. I had no
idea there were lynchings and I didn’t know what the South was like.
My mistake.
So anyway the Vietnam War became very important to me during
law school and continued to be important to me after that. We
campaigned for Gene McCarthy a lot in the ’68 election I guess it was,
the ’68 primary season.
MS. CAVANAGH: What was your draft status? You were married, so —
MR. NIELDS: I was, I may have this a little mixed up, but I had either an exemption
because I was married, exemption because I was a student, or exemption
because I was a father.
MS. CAVANAGH: Right. That makes sense.
MR. NIELDS: And so it was sort of like it never touched me. Again I missed some
intensity and I just ended up avoiding the moral problems on all sides.
There’s a moral issue about whether you’re going to be, for your own
preservation you want to avoid something and there’s a moral issue
about whether you want to participate in something you don’t believe in
—
MS. CAVANAGH: Sure.
MR. NIELDS: — that involves killing people. And I don’t know which episode you
watched last night, but I watched last night a person who went to
Canada.
37
MS. CAVANAGH: I didn’t see that yet.
MR. NIELDS: Okay. Well he talks about both sides of it. Did I run away? Or did I do
the bravest thing that I ever did in my life? I mean he potentially
sacrificed his life in order to not be in the war. I remember David
Rogers, a reporter for the Wall Street Journal who I got to know during
the Iran-Contra affair when all these issues boiled up again in some way,
shape, or form, who his solution to the moral dilemma was I’ll go as a
medic. Which he did.
MS. CAVANAGH: There was a story about a medic on one of the episodes that I saw.
MR. NIELDS: And there’s a story, there’s at least medics involved in the one I saw last
night.
MS. CAVANAGH: Interesting. It’s an excellent show. It’s an excellent documentary.
MR. NIELDS: Oh, god, it’s an excellent —
MS. CAVANAGH: I agree.
MR. NIELDS: I don’t know where they came up with —
MS. CAVANAGH: Yeah.
MR. NIELDS: So anyway where does that take us? Did I answer your question?
MS. CAVANAGH: You did. You did. You did. I was going to move on to the bar exam. Did
you study for the bar exam? You took the New York bar, I assume?
MR. NIELDS: I studied for the bar exam. Our daughter was born, she was due in the
end of May and I got deathly sick with just flu or something like that.
And I thought my wife was going to give birth while I was — either I
would contaminate my daughter, I wouldn’t be able to go to the hospital
38
and help her and I believe I cured myself in 24 hours. Now it may have
just been a 24 hour thing but I had like a raging fever and I drank like 4
gallons of orange juice because I’d heard that you get rid of a fever, you
want to just run the system through it.
MS. CAVANAGH: Right.
MR. NIELDS: Anyway she didn’t come for two more weeks or whatever after the due
date. And then my memory of the summer was that the bar review
course was the most miserable thing that I ever did in my life. We took
Nerissa to Long Island right after her birth and so I would go into New
York by train which is no picnic, I don’t think the trains were air
conditioned in those days, and I go to some big hotel where sometimes
the air conditioning worked and sometimes it didn’t. One time actually
the ceiling fell through and they had to quit and move us out for a day or
something. And what we were studying was meaningless. Completely
meaningless. I mean it didn’t tax your intelligence and it didn’t teach
you things that were actually important for you to know as a practitioner.
It taught you minutia that you might get asked by the minutia-prone bar
examiners and I went to four weeks of these classes. There were six
weeks altogether, but four weeks for substantive and two for procedure.
So at the end of substantive we had a practice exam and it was multiple
choice, no excuse me, it was true/false, alright? A hundred questions.
Just to see how much we’d learned. And I took the practice exam. I’ll let
you guess how many I got right.
39
MS. CAVANAGH: All of them? None of them? Not many.
MR. NIELDS: Fifty. Which in a true/false exam is what you get if you shut your eyes
and answer all true or all false just by random. I had learned —
MS. CAVANAGH: Nothing.
MR. NIELDS: — nothing. And then I went in two more weeks and I took the bar exam
and I didn’t mind the idea of flunking because I didn’t think it said
anything about my abilities or anything, but I couldn’t stand the idea of
taking another bar review course so I called up my friend, Bill Brown,
from Andover actually who had moved to New York and was taking the
bar exam, the night before the exam, and he gave me a question which I
had no clue to the answer to, and he walked me through the answer. It
was totally technical but he walked me through the answer. And god
damned if that exact question wasn’t on the bar exam the next day.
MS. CAVANAGH: That was lucky.
MR. NIELDS: And I don’t know what my grade was but I got a call in the middle of the
night from my friend Billy Gray who had a friend who worked for the
Wall Street Journal or the New York Times, I think it was the New York
Times, which publishes the people who pass the bar in New York, and
he said, the results are going to be — at 2 in the morning he called me
— he said the results are going to be in the Times tomorrow, pause, and
you passed. I said, oh!!
MS. CAVANAGH: It’s a relief. Was that while you were at Davis Polk still?
40
MR. NIELDS: That was before Davis Polk had started. Well yes, the call at 2 in the
morning was after I started at Davis Polk. Yes, I took the bar course the
summer after law school and before I started at Davis Polk.
MS. CAVANAGH: I got it.
MR. NIELDS: Yeah.
MS. CAVANAGH: And then did you ever have to take another bar exam?
MR. NIELDS: No. No, there was reciprocity in DC and that’s the only other place I’ve
gotten barred.
MS. CAVANAGH: You could waive in, right?
MR. NIELDS: You could waive in or whatever.
MS. CAVANAGH: Fill out all those forms.
MR. NIELDS: Yeah.
MS. CAVANAGH: Okay. That’s funny.
MR. NIELDS: Now I knew somebody, particularly the second division which I think
was Brooklyn, appellate division, second department — sorry, that’s the
technical term, appellate division, second department — all of the New
York appellate divisions had onerous — after you passed the bar you
still had to do like a month of work to fill out the application. Then you
had to get an affidavit from everybody who ever knew you in your life.
And I know — which I did, I did it and I got admitted to the bar. It
might have taken 2 years before I did it. I knew somebody at Davis Polk
who got made partner after six years, which was a record speed, and he
had to go shame-facedly to whoever told him he’d just been made
41
partner and say I haven’t gotten, I’m not a member of the bar. And you
could get by when you were not either a partner or going to court.
Anyway that didn’t happen to me. But it could easily happen.
So I’m sorry, I’d forgotten your question.
MS. CAVANAGH: That was my question. So then I think we’re at the end of your time at
Davis Polk and you decided to go to be an assistant US attorney for the
Southern District of New York in 1969. Does that sound right? Tell me
about that job.
MR. NIELDS: That’s the best job in the world. I mean, it’s the best job in the world.
First of all, the camaraderie in the office is just wonderful. And almost
everybody there is coming 2 years out of law school. There are
exceptions, law clerks could come one year out of law school, and some
people came later, like five or six or seven years out of law school, even.
But the overwhelming majority was like my age and my stage of
development, at least when they began. And most people stay only 3
years, so there’s rapid turnover, you become a senior person in the office
after two years, and everybody is helping everybody else because
they’ve been there. And you sit in on other people’s trials, for their first
or second trial, somebody would be sitting with you, and later on you
would be sitting with somebody else, going over their witness sheets and
their opening statements, and how they’re going to get their exhibits in,
and stuff like that, and then sitting there and helping them through the
process. But what makes all the difference in the world is you are
42
responsible for all of your cases, you; you are responsible for presenting
them to the grand jury, getting them indicted, and trying them, and
preparing them for trial. And after a while, you’re doing it by yourself,
but if something interesting comes up that presents a problem that
somebody else may have had, you’re wandering around the halls and
poking your head into this person’s room or that person’s room, you find
out the people whose judgment you respect; you can go to the head of
the criminal division or the assistant head of the division also for advice,
which I did frequently. But you are responsible for all your own work.
And you feel as if you are a truly important human being in the world, I
mean you work for the United States government, you’re in federal
court, that the liberty of the person you are prosecuting is at issue. And
then the cases get, as you go along in the office, you get more and more
complicated cases, more and more important cases, and some even
exciting investigations, that you are using the grand jury to get to the
bottom of, and the mix of companionship and camaraderie and the fact
that you are learning skills by doing, not by being taught, but by doing,
it’s just an unmatchable combination. My wife didn’t like it. I came
home at 10 o’clock every night for a year.
MS. CAVANAGH: I was going to ask, you probably weren’t getting home for dinner
anymore.
MR. NIELDS: No, I — well I never ate downtown. I would get home and eat my dinner
at 10 o’clock.
43
MS. CAVANAGH: Alone.
MR. NIELDS: What?
MS. CAVANAGH: Alone.
MR. NIELDS: Well, I think she kept me company but she wasn’t eating with me I’m
sure. And I’d waken up my children same as before at Davis Polk. But it
was matchless. And the judges were good. You are appearing in front of
good judges. A couple not so hot. I’ll tell you some funny stories about
it but you’re in a good courthouse and frequently you’re up against a
pretty good lawyer on the other side, although there are a lot of legal aid
— and some of them were pretty good too. But it’s the back benchers,
the old men who were taking assigned cases, some of them were good
too. But I remember one who — there’s an ethical rule that you’re not
allowed to put your client on the witness stand if they told you that
they’re guilty and they’re going to deny their guilt. And most defense
lawyers find a way to advise the client of what the issues are when they
tell you if they tell you, but he had somebody that he was — I don’t
think he followed this ethical rule exactly, I think he made up his own.
But if he had somebody that it was 100% clear that person was guilty
but he wanted to take the stand, he would put the person on the witness
stand and he would pick up the indictment and he would say, “Did you,
on or about” — and then he would — “June first, 1927 and thereafter”
— and then read, “unlawfully, willfully and knowingly” and da-da-da —
and the person would say no, and he would sit down and he would say
44
no further questions, Your Honor. And then let the government crossexamine. Anyway it was a — I don’t know whether you want me to go
on but I did three years of trial work with progressively more
complicated cases. I didn’t stop doing cases and trial work in the trial
court but I had a knack for appeals and I had done a lot either because
they happened in my cases or because other people didn’t want them and
I’d say I’ll be happy to take that. And so I was made Assistant Chief
Appellate Attorney and then Chief Appellate Attorney for a year and
that job was not only revising everybody’s briefs and arguing cases of
particular importance, and moot courting every person and sitting next to
them during the argument, but you were also kind of the office lawyer.
And that was kind of fun. I mean people would come in, how do I get
this thing into evidence tomorrow? I’m afraid that the judge won’t let
me get this into evidence. And I had learned by then that a lot of people
in my role would say oh you can’t, that’s inadmissible. Right? Well
evidence is mostly art, well it’s about half art and half science. And it’s
almost always true that if you have a really important piece of evidence
there’s a way to get it in. Our legal system does not keep out really
important pieces of evidence. There are a lot of rules that sometimes
may seem as though they might but they don’t.
Anyway I had a lot of fun telling people how to get their god damn
stuff into evidence.
45
MS. CAVANAGH: Did you have a preference between the trial court work and the appellate
work? It’s different. Some people are attracted to one over the other, of
course.
MR. NIELDS: I loved them both. I probably had a little bit more of a knack for the
appellate but in my career, the trying a case is really hard because you
have got to work really hard and all manner of things can go wrong and
if you don’t have your ducks in a row, if you don’t know your case
really well, if you haven’t prepared your witnesses really well, if you
haven’t organized your documents, well I don’t know why I’m talking to
you about this.
MS. CAVANAGH: You’re not talking to me.
MR. NIELDS: I’m talking to that —
MS. CAVANAGH: You’re talking to the future.
MR. NIELDS: Yeah, that’s right. You’re going to, you may lose the case that you
should have won and so you can never do enough and you have high
anxiety because there’s so much unpredictability about what may
happen. Although my experience is when I’m scared to death at a court
of appeals argument or I’m scared to death at a trial the fear and
uncertainty just almost 100% disappears the moment you start. It’s
because you actually know that the amount of things that can go bad is
really not that high, not many, and it’s not really that likely they’re going
to go bad. But anyway the trial work is more vivid and more memorable.
The cases that I’ve tried well I treasure those experiences more than
46
anything I ever did in the court of appeals. But I think I probably am
better at being an appellate lawyer than a trial lawyer.
MS. CAVANAGH: Any particular cases you want to talk about or that you remember or
kinds of cases that you worked on?
MR. NIELDS: In the US Attorney’s office?
MS. CAVANAGH: Yeah.
MR. NIELDS: I don’t think any of these is sufficiently entertaining. Very early in my
time at the US Attorney’s office — it was very early, it was like maybe
the third case I tried — it was, and I’m not going to do a good enough
job, it’s just probably a failed effort but anyway I’ll just quickly touch
some of the high points. It was a gambling case. And it was based on
largely circumstantial evidence because the people who were taking the
bets never met the bettor and they had a system where the bettor would
call a number that was at a house that nobody lived in. But there was an
open line — they had two telephones in that house, one of which rang
and the other of which was open to a line to the bet-taker’s house. And if
it rang twice and the person hung up, which is what they were told to do
to place the bet, they would then call the person back but how the hell
did they know how to do that? I can’t remember. But anyway it was that
kind of a thing. There was even, at the end of the day there was
something that activated a turntable that pulled a piece of wood out from
under the telephone that was in the cradle but not depressing the hang up
buttons, so not hanging up and it would drop down and hang up the
47
phone. And that way there was no open line any longer in existence that
anybody could come in and check on. Anyway it was that kind of a
thing. And they had raided both places — I’ve forgotten who
investigated those cases, probably the Secret Service or Postal
Inspectors. I can’t remember. Anyway they raided both places
simultaneously and discovered, which doesn’t make any sense either,
but discovered wagering slips and so they had.
Anyway and I had to put this all together AND there was a major
suppression issue that I navigated correctly and well in front of a very
liberal judge. I think that they, I think they got a search warrant based
upon probable cause to believe the crime of failure to register as a
gambler was being committed—and that’s why they broke in and the
failure to register as a gambler was later held not to be a crime because it
required you to admit to a crime if you registered so it violated the
FifthAmendment’s privilege against self-incrimination. I think it was
Marchetti and Grosso I think, was it US against Marchetti? US against
Grosso. [Marchetti v. United States, 390 U.S. 39 (1968); Gross v. United
States, 390 U.S. 62 (1968).] But a gambling case as it said no, this
regime requires people who are in a criminal enterprise to tell you that
they’re in one and therefore you can’t make it a crime not to register as a
gambler. Alright?
But, I had a clever argument that I made to Judge Lasker that so
long as the police officers, the point of suppressing evidence is
48
deterrence and you can’t have deterrence when you’re operating
consistent with existing law and then the Supreme Court changes the law
after that. And so these guys were operating in good faith [when they did
the search], and you shouldn’t suppress the evidence. It is sufficient to
enforce the Fifth Amendment rule to say, nobody can use violation of
that statute to get a search warrant anytime in the future. So the judge
bought that so anyway I tried that case. But in the middle of the trial the
other side got up, defense lawyer got up and said, Judge, he keeps
calling these things wagering slips. That’s a conclusion. We don’t
concede they’re wagering slips. They’re just pieces of paper with
numbers written on them. And the agents are calling them wagering
slips. And so is the prosecutor. Judge Lasker says yeah, I think that’s
right Mr. Nields, I’ll direct you not to call, and tell your witnesses too,
not to call them wagering slips. And I got up like within 15 minutes later
and at one point in my examination I said, “and what did you do with the
wagering slips then?” And I literally went “Oop!” and clapped my hand
over my mouth [laughter] in front of the jury and the judge. It probably
saved me because the judge could see, really I would not have behaved
that foolishly if I had done it on purpose. Anyway.
MS. CAVANAGH: That’s funny.
MR. NIELDS: I had a lot of mail fraud cases, business fraud cases. And I remember
one in particular and it also is a horrible Ponzi scheme kind of thing. The
story I want to tell you about is going to take too much time, it’s not
49
quite fun enough. But I had a lot of mail fraud cases that were quite
interesting.
MS. CAVANAGH: So why did you decide to leave that job? You stayed there for five years.
MR. NIELDS: Okay five years.
MS. CAVANAGH: And then you went to work for Justice White.
MR. NIELDS: Well, so I had been three years as a trial, one year as Chief Appellate
Attorney and then I was head of the Civil Division for a year, a job for
which I had no qualifications whatsoever. But the new US Attorney
wanted me to do it so I did. But the point is I had already spent two
years more at the US Attorney’s office than I had originally planned to
do. I had thought of it as a three year stint but then I liked being the
Chief Appellate Attorney. That job I was qualified for. I did that job
well. And then I was head of the Civil Division. But the precipitating
event was I get a call from Silvio Mollo who was the only person who
had been in the US Attorney’s office for more than a term of one US
Attorney — he’d been there since 1939 I think — and he was the
number two person in the office — I get a call from him and he said —
and he was a crusty old guy — called me up to his office and said, how
would you like to clerk for Justice White? I said what? What’s that
about? Well, he said Congress has made a couple of positions available
at the Supreme Court for more experienced law clerks and Justice White
wants to take one and he wants me to recommend somebody. I think my
name had already been given to Justice White. And I never knew for
50
sure what happened but I knew that Justice White was a friend of Bob
Morgenthau’s from his days as Deputy Attorney General under Bobby
Kennedy. And I suspect that his first call was to Morgenthau and
Morgenthau said I’ll call Mollo and find out who would be the best
person at the US Attorney’s office. I’m making this up. I have no idea.
But that’s the only decent explanation I have. But anyway to make a
long story short I got in touch with Justice White or he with me, I can’t
remember which, and I went down and met with him and decided to do
it largely because you’re looking as though we’re running —
MS. CAVANAGH: No, I don’t want to keep you too long.
MR. NIELDS: I’m fine.
MS. CAVANAGH: If we want to finish — let’s talk about Justice White and we’ll stop at
the end of that.
MR. NIELDS: Fine.
MS. CAVANAGH: That will be perfect.
MR. NIELDS: Okay. That’s great.
MS. CAVANAGH: I was hoping we would get that far today. So that’s great.
MR. NIELDS: Okay, good. So anyway I agreed to come down and be a law clerk for
three years which is what he wanted. And I had thought I might want to
enter a life of teaching.
MS. CAVANAGH: Okay.
MR. NIELDS: And I thought being a law clerk for Justice White would give me a
credential that would make it easier to find a good teaching job and I
51
also thought that it would give me a chance to decide whether sort of an
intellectual kind of life would be satisfying to me.
MS. CAVANAGH: Did Justice White hire other longer-term clerks like that over the years?
I wasn’t aware of that until I saw your story.
MR. NIELDS: There were three positions made available. And Powell just took the
money and hired an extra clerk.
MS. CAVANAGH: For one year.
MR. NIELDS: A one-year clerk. Yeah. So he had four clerks. Everybody else had three.
So White took the money and hired me. And the Chief Justice took the
money and hired a guy named Ken Ripple who later became I think
Chief Judge of the Seventh Circuit Court of Appeals. The Chief Justice I
should have said. So after me, Justice White reached out to the US
Attorney’s office in New York again and hired a one-year clerk who had
been out of law school for about the same amount of time as I had, in
other words somebody who had had comparable experience in the US
Attorney’s office. And he hired two-year clerks after that but in terms of
filling the special position that Congress had made available I think he
used the money once with me and once with Jeff Glekel from the US
Attorney’s office, and not again.
MS. CAVANAGH: And what was your — did you do similar work that the one-year or twoyear clerks would have done?
MR. NIELDS: Almost identical. There was one year when he had me kind of do over
something that someone else had done. I mean re-do it. Which was not a
52
good thing. I mean he wasn’t happy about it, I wasn’t happy about it.
But pretty much I did exactly the same thing as other clerks. Although
the other thing that I did that was different was that between my first and
second year — and other justices had two-year clerks from time to time
right out of law school or right out of another clerkship; that was not
unheard of — but I had a huge amount of time after the justices finished
up one term on June 30P
thP and went off to their homelands which they
almost all did, I had a huge amount of time to read and think about and
write about the cases that were going to get argued in the beginning of
the next term. And both times, but I think even more — well I’m not
sure, I used that and I think I was useful to him in a way that I couldn’t
have been if I had only been a one-year law clerk.
MS. CAVANAGH: What was your experience working with these other clerks who for the
most part were probably overconfident and under-experienced relative to
you? Was there a camaraderie among the clerks in the same way that
there would have been?
MR. NIELDS: Totally. It was a pleasure to work with the other clerks in Justice
White’s chambers. Several of them are still very good friends of mine.
And I was relieved when I arrived, the first person I meet is Larry
Simms, who — the first thing he said to me, perfectly friendly but he
said, don’t be a “ripple” and I’m saying what’s a ripple? And he said
that’s the Chief’s senior law clerk. And I said well I don’t know what he
is but I promise not to be like him.
53
MS. CAVANAGH: I’ll try!
MR. NIELDS: But Larry then confessed to be only one year younger than I was. He had
spent some time in the Navy or something like that. So we were
chronological contemporaries and immediately became very good
friends and his wife very good friends with both Gail and me. And the
other clerk was Jim Malysiak. He was delightful and we —- it was
totally collegial and the same was true with all the other clerks. And it
was particularly true for the chambers that were in the pool, the cert
pool. Because we would write memos — so there were 15 clerks in the
cert pool because there were five Justices in the cert pool then.
MS. CAVANAGH: There were only 5 in the cert pool?
MR. NIELDS: Yeah, only five then.
MS. CAVANAGH: I clerked for Justice Stevens.
MR. NIELDS: Ah!
MS. CAVANAGH: In the ’97 term. And by then he was the only one who was not in the cert
pool. So it was very different probably.
MR. NIELDS: Yeah. But analogous in the sense that every 15P
thP case you write the
memo and every third case you are reading somebody’s memo from
another chambers. And so I’m commenting to Justice White on a memo
that somebody for Stewart has written or somebody for Powell has
written, and they’re reading my stuff and commenting on it. So you
become familiar with the work and the thinking of the other 60%
roughly speaking of the rest of the law clerks. And we would have
54
breakfast together and we would have lunch together. Not the exact
same people but we’d have lunch and breakfast with. And then we’d
wander into each other’s chambers. And the justices didn’t talk to each
other. I don’t know how it was when you clerked. But one of the most
striking things about being a law clerk is the justices [aren’t]
collaborating. Right? They’re just little islands. Occasionally there
would be a collaboration.
MS. CAVANAGH: I was going to say occasionally.
MR. NIELDS: But most of the time not. I think all of them got frustrated at thinking
they had the smartest answer to some case and selling it to the other
justice and getting no reaction, getting no take. And so it wasn’t fun for
them and they had better things to do. The law clerks talked to each
other quite a lot. I spent a lot of time in other — and sometimes I played,
once I played a game of chess without a chessboard over the telephone
with somebody.
MS. CAVANAGH: How do you do that?
MR. NIELDS: I don’t know. The only time I ever did it. I’m not sure how or if we
really did it. We were friendly in many different ways and certainly
professionally.
MS. CAVANAGH: Did you also have interactions with the clerks who clerked for justices
who were not in the cert pool? Because I know that for us, we were
often curious. We could actually see the cert pool memos because they
55
were online and you could actually — we would say you could take a
dive in the cert pool, which was helpful sometime for us —
MR. NIELDS: Interesting.
MS. CAVANAGH: — because there would only be one other person who would be working
on what you were working on. It was just you and the person who’s
writing for the pool. So I wonder if it worked that way or because it was
even maybe it was more divided.
MR. NIELDS: Wasn’t that divided. I talked to Marshall’s clerks all the time. I talked to
— Douglas’s clerks I didn’t talk to I don’t think. He was kind of getting
senile that year.
MS. CAVANAGH: Douglas?
MR. NIELDS: Eventually [had to] be removed. I don’t remember being particularly
friendly with any of them. Who were the other non— why am I not able
to come up with —
MS. CAVANAGH: Yeah, I don’t know.
MR. NIELDS: Blackman was in the pool, Rehnquist was in the pool, the Chief was in
the pool, White was in the pool, oh maybe Stewart wasn’t in the pool.
Powell was in the pool. So Stewart wasn’t in the pool. He was right next
door, I talked to them all the time. Talked to the Marshall clerks all the
time. I talked to the Brennan clerks — Brennan was not in the pool. I
talked to the Brennen clerks quite a bit. One of them, the Justice read his
own certs. I mean he didn’t have any clerk help at all in the cert.
MS. CAVANAGH: Really? Interesting.
56
MR. NIELDS: It might have been Douglas. It might have been Brennan.
MS. CAVANAGH: What was it like working for Justice White? Tell me about Justice
White.
MR. NIELDS: Well, so —
MS. CAVANAGH: He was senior when I clerked. And he had one clerk while I was
clerking and his clerk worked in our chambers for Justice Stevens. And
also did some work for Justice White who would occasionally do a
speech or something like that.
MR. NIELDS: Well he did Court of Appeals cases too, didn’t he?
MS. CAVANAGH: He did. He did. He didn’t have that many. His clerk was very
overworked because he was working for both.
MR. NIELDS: Fascinating.
MS. CAVANAGH: But I never met him.
MR. NIELDS: Never met Justice White?
MS. CAVANAGH: No.
MR. NIELDS: So first of all he’s a very kind man and I want to tell you a story about
that. He was a very kind man. He’s also very little revelation of self.
And he’s also, you know about his sports abilities. I’m told that he
finished second in his class at Yale Law School and led the National
Football League [rushing] in the same year.
MS. CAVANAGH: That’s amazing.
MR. NIELDS: I mean it’s possible it’s not true but something close to it for sure is. He
would take a combative approach to legal discourse quite a lot of the
57
time. Not always but quite a lot of the time. But was great fun. He would
come into the clerks’ room and sit down in a chair and start batting stuff
around on two or three of the cases that were up for argument.
Sometimes he didn’t do that. But it was a little disconcerting, he was a
little more distant and certainly a little more distant emotionally than I
had anticipated. But he’d invite us over to his house and he’d take us out
to lunch from time to time. It wasn’t like he wasn’t friendly. And I just
have to tell you this story. But there were people who experienced him
as gruff and blunt and combative which there is an aspect of that in him
but it’s not the way to think about him at all as a human being.
My first year there, there was an equal protection clause case
arising under the Social Security Act. And there were tons of those back
in those days, ’74, mid-’70s and earlier. They were starting to get tired
of them. And the New York State Attorney General was arguing some
— I guess I’ve forgotten how the Social Security Act worked. There
must have been some piece of it that the states got to legislate about.
There was some tiny discrimination claim, equal protection clause. And
there is a woman who is arguing the case and she has a packet of 8 by 14
inch yellow lined paper like about that thick. And you can see it. And
she’s written — I’m sitting in the audience. Or maybe I’m sitting in the
place where clerks sit. I think it must have been where the clerks sit. So
you can see that she has written in ink every line of this very thick stack
of cases. Fairly large writing. And she’s reading her argument. And
58
she’s very nervous. And it is almost certainly her first time ever arguing
in front of the Supreme Court. It might even be her first time ever
arguing anywhere. And I don’t know, five minutes into her argument
Justice Rehnquist leans down and says, are you familiar with Rule 44.1
of the Supreme Court Rules? No, Your Honor, I mean yes, Your Honor.
— in which we frown on lawyers who read oral argument? And I’m
thinking oh, god. And she says, Oh, I’m not reading my argument. And
he said, maybe he said something like I’d appreciate it if you not — and
she said I’m not reading. Well she clearly was reading it and she clearly
is not possibly going to be able to continue to speak unless she continues
to read her argument. Justice White leans down and says, don’t worry
about it. The Solicitor General’s Office is in here reading their oral
arguments all the time.
MS. CAVANAGH: Aw, that was nice. Did that help her?
MR. NIELDS: I don’t think it was a fun day for her no matter how you slice the
bologna but —
MS. CAVANAGH: That was kind.
MR. NIELDS: — and that gave her permission to actually continue to do her argument.
I mean that’s Justice White. He’s not effusive, he doesn’t share his
emotions with you, but that’s what’s down inside there. So I guess I can
tell you this. I will decide later whether I have to erase this from the
transcript. So I get a procedural due process case, Goss against Lopez
I’m pretty sure it was. [Goss v. Lopez, 419 U.S. 565 (1975).] And I think
59
Justice White got the opinion and it was a 5-4 vote in conference. And
he asked me to write the opinion. It was a little tricky. It was in schools,
it was — do the procedural due process rules apply to public school
discipline? And he probably told me what their holding was but I’m not
positive. I’m sure it was that the due process clause applies to the
disciplinary act but just what process is due is a different question. So I
get this opinion and I worked on it hard and diligently and as quickly as
I could, and I don’t remember whether it was a week or ten days or
whatever but I got a draft and I was anticipating that he would read it
and mark it up you know in great detail and give me the draft and then
call me in and we’d talk about it and then I’d do another one for him and
then he would work that over, and then sit down and talk to me about
that, and then maybe whatever he does next with it. Right? And I’m on
tenterhooks, right? This is my first major — and the week goes by and
another week goes by, I think — maybe it was five days, three days
went by and another three days, I don’t know, but it felt like it was like
forever, and I’m just feeling sick. Something awful must have . . . .
Finally I just couldn’t stand it anymore and I knocked on his door, poked
my head in and I said I just wanted to make sure you got that draft of
Goss against Lopez. Oh, he said, oh yeah, it’s at the printer.
[omitted material]
MS. CAVANAGH: Did he play sports with his clerks?
MR. NIELDS: He did. His sport obviously, one of them, was basketball.
60
MS. CAVANAGH: The Highest Court in the Land.
MR. NIELDS: Highest Court in the Land. And somebody told me he was MVP at the
NIT, NIT used to be a serious basketball tournament.
MS. CAVANAGH: Yes.
MR. NIELDS: The NCAA now is that. I don’t even know if there is an NIT anymore.
MS. CAVANAGH: There was. When I was in college I think there was an NIT tournament.
I was in college a while ago. I don’t know about now.
MR. NIELDS: So anyway he played basketball but he had played it in an era when
nobody knew what a jump shot was. And he could not jump. Now of
course he was 59 years old when I first started playing basketball with
him. But you could tell that jumping was not his principle skill — but he
played 2 on 2 with his clerks. And we had 3 clerks so— and it was a
dangerous sport to play if you were on the other team from him. I can
remember trying to drive around and watch, and he put out an arm like
that, just put out an arm, and I ran into it. It was like running into a tree
limb.
MS. CAVANAGH: He didn’t go easy on you.
MR. NIELDS: What?
MS. CAVANAGH: He didn’t go easy on his clerks.
MR. NIELDS: No. John Spiegel, who was a really good athlete, way better athlete than
me, and was also bigger and taller, ended up trying to drive around him
and ended up with him and his glasses on the ground and the glasses
61
were broken. And Justice White did not apologize. It was like, what did
you do that for?
But then he also played with me because he knew somehow that I
had played racquet sports. He would rig the basketball court up as a
tennis court except not really. The tennis net that he rigged up was much
lower than a real tennis court and the game he played was with dead
tennis balls and platform tennis racquets which are made of solid wood
with the little holes in them. And he and I would play that game for —
we’d go up there and spend an hour playing that game. Whacking the
ball back and forth.
MS. CAVANAGH: Did you keep in touch with him after you finished your clerkship?
MR. NIELDS: Yes and no. We had reunions every year. He would call me up very
occasionally to come over and eat lunch or can you come over in a
minute to come over and chat, something might have come up that I was
connected to and he was interested in and he wanted to know. I think —
my memory is all conflated and I’m mixing things together I’m almost
sure, but he called me, I’m pretty sure he called me one time after I had
taken on this special prosecutor, special counsel job on the FBI case, and
told me, he asked — I’m mixing two things up. One, he was trying to
find out how Congress worked, either in Koreagate or Iran-Contra I
don’t remember which. How was Congress functioning? And the other I
swear I remember him calling me up and gently suggesting I might have
made a mistake by taking on the FBI assignment. I don’t remember
62
being upset by it and I would have been more upset if he’d really done
that so I’m a little confused. But he also, John Spiegel sent him my
opening statement and summations in that case, and when I took the
Iran-Contra job I find out that he is Mary McGrory — do you know who
she was —
MS. CAVANAGH: Who is that? You should say that.
MR. NIELDS: You mean McGrory? She’s a reporter. She’s very well-known at the
time and she had articles and followed the Iran-Contra affair.
MS. CAVANAGH: Was she at the Washington Post, or —
MR. NIELDS: I think she was at the Post, yeah.
MS. CAVANAGH: Yeah.
MR. NIELDS: And I found out that he had given her my work so he can’t have been
too mad at me about it.
So I’ll just tell you this story because I like it. But I may erase it.
Alright?
MS. CAVANAGH: That’s fine.
MR. NIELDS: So Larry Simms has a birthday party and invites Justice White at a time
when speaking was hard for him. Nothing else was off but speech was a
problem. And Larry told me that he invited the Justice and that there was
this issue which I knew about. And so he asked me to keep an eye on
him at the party when I went to the party. So I spent virtually the whole
party sitting in a nice little place with Justice White and one or two other
people coming by and talking. And somehow the conversation gets
63
around to sports. And it gets around to baseball, you know when people
are batting around stories of, baseball stories, and then somehow Ted
Williams comes up in some context or another and somebody tells us a
story about Ted Williams. And Justice White, you can see he wants to
say something. He’s getting animated and something tickled in the back
of my head from clerking days, I said wait I think I know what you’re
talking about, what story you want to tell. It’s about when Ted Williams
was batting .399 on the last day of the 1941 baseball season. And his
manager said — he was batting 399.6 — and so if he sits Ted Williams
down he will have a .400 batting average for the season which is a huge
deal for baseball. And Ted Williams said, no way. He played both ends
of a double header, went 6 for 8 and batted .406 for the season. He loved
that story. And I am sure Justice White would never ever desert his team
in order to preserve his own individual glory.
MS. CAVANAGH: Wow, that’s amazing. That’s an amazing story. And that was the story
he was thinking of? So he was thrilled, I’m sure, that you remembered
that that’s what it was. That’s really nice. That’s a great memory.
Well you know maybe we’ll call it there and next time we can talk a
little bit about why you decided to leave that job, how that worked and
what came next. I think we’ll be headed toward Koreagate at that point.
MR. NIELDS: That’s the next stop in the whole story.
MS. CAVANAGH: That’s my next stop. This is great. So that’s the end of our first meeting
and I’m going to turn off our tape.
64
ORAL HISTORY OF JOHN W. NIELDS, JR.
Second Interview
March 20, 2018
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 Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place at Covington & Burling on Tuesday,
March 20, 2018. This is the second interview.
MS. CAVANAGH: John, last time we met we were talking about your time clerking for
Justice White. Are there any other cases that you’d like to discuss from
your tenure in his chambers?
MR. NIELDS: Well I might talk first about the case of Fisher against the United States
[425 U.S. 391 (1976)] which involved the question of whether the Fifth
Amendment privilege against self-incrimination applied to somebody
who receives a document subpoena and is asked to turn over documents
that might incriminate him. I was very interested in the subject matter.
But more about that later, maybe.
MS. CAVANAGH: Great.
MR. NIELDS: I had a law review article in a box for thirty years. Never had time to
write it. And then when I represented Webb Hubbell that issue came up
square, four square. And it’s the only actual Supreme Court case I’ve
argued. And I had more emotional energy into writing those briefs and
arguing that case than I’ve had in almost anything else I’ve done. And
the case was decided my way.
MS. CAVANAGH: We’ll get to that eventually.
MR. NIELDS: And I’m now writing my law review article.
MS. CAVANAGH: Oh, great. Excellent.
65
MR. NIELDS: So that’s one. Another one that comes to mind is the case of Imbler
against Pachtman [424 U.S. 409 (1976)] in which the Court held that a
prosecutor was absolutely immune from suit for a decision to prosecute.
And Justice White concurred in that decision but wrote a pretty long and
carefully analyzed opinion that said, but a prosecutor is not immune
from suit for the failure to disclose exculpatory evidence to the defense,
at least when the Supreme Court case has said that he or she should have
done that. And I believed in that. And I don’t think it’s the law. I don’t
know that it’s been rejected since but I’m pretty sure it has not been
embraced by the Court.
MS. CAVANAGH: Right.
MR. NIELDS: And another case, and I want to say it’s Singleton against somebody or
somebody against Singleton but I may have the name wrong and we can
figure it out later. [Ingraham v. Wright, 430 U.S. 651 (1977)]
MS. CAVANAGH: Sure.
MR. NIELDS: It’s an Eighth Amendment case, cruel and unusual punishment, in which
the Court held that the Eighth Amendment does not apply to public
school punishment no matter how brutal. And their reasoning was it
only applies in the criminal process. And Justice White wrote a dissent
saying, all right, let me get this straight. You mean if you have a full
trial, get convicted after a fair trial, and then you’re punished and it’s
cruel and unusual, then the Eighth Amendment applies. If you don’t
ever have a trial, it’s not even decided whether you did anything or not,
66
and the school teacher beats the bejesus out of you, which is what
happened in that case, no matter now cruel and unusual, that’s fine?
Please.
MS. CAVANAGH: Is that still the law? I mean I guess you could have —
MR. NIELDS: I think so.
MS. CAVANAGH: — Section 1983.
MR. NIELDS: I think so. I think it might have been a Section 1983 suit —
MS. CAVANAGH: Interesting.
MR. NIELDS: — that gave rise to the decision. And many other cases I cared about
and enjoyed working on. But anyway those were some that stick in my
mind.
MS. CAVANAGH: That’s great. That’s great. So what was your plan after your clerkship?
What were you thinking you wanted to do?
MR. NIELDS: Well my plan, as I think I may have mentioned to you, one of the
reasons I decided to do the clerkship at a slightly advanced age and stage
of my career was that I thought I wanted to, I thought a very high
probability that I would like to teach and have an academic, intellectual
life in the law, and students and so forth. And so when I got in the sort
of middle of my third year clerking for Justice White I started
interviewing at law schools. And I interviewed at several. I interviewed
at Yale and Berkeley and NYU, Chicago, and got a couple of offers
from those schools — not Yale, which disappointed Justice White, he
having gone there. But then I can’t even remember how this came up
67
but I somehow ran into Phil Lacovara whom I had known when I was
chief appellate attorney in the Southern District, and he was the criminal
deputy in the Solicitor General’s office. And I guess I was looking at
law firms too. And he was at Hughes Hubbard in DC and I interviewed
with him and he said well I’m the special counsel for the Koreagate
investigation and I need a chief counsel for the committee and how
would you like to do it? And that was too tempting. And so I went to
Justice White — I had to start before my clerkship ended in order to do
that.
And I went and talked to Justice White and just asked him what I
should do, should I forget this. And he very generously said you go do
it. You want to do it, you go do it. And it was like April or May or
something. It was probably mid-April when I left and my co-clerks have
jabbed me ever since and I was told that the Justice’s wife was not
pleased with me.
MS. CAVANAGH: So you left them all in the lurch, you’re saying. Was this 1977?
MR. NIELDS: 1977, let’s see, four-five, five-six, six-seven, it was ‘77, late spring of
‘77. But I remember Justice White saying he came in, I think the other
two clerks were there and said we’ve talked and we think we can handle
the load, you go do it.
MS. CAVANAGH: And your co-clerks thought oh, no! Easy for him to say!
MR. NIELDS: They were totally okay with it. And they’ve remained very good friends
of mine. One was John Spiegel who was a very good tennis player and
68
he and I used to play some but I wasn’t quite in his league. We had fun
doing it. We played as doubles partners in some tournaments here and
have remained very good friends ever since.
MS. CAVANAGH: So Koreagate — you were chief counsel to the Committee on Standards
of Official Conduct which was a House ethics committee?
MR. NIELDS: Precisely.
MS. CAVANAGH: Okay. Why don’t you tell us a little bit about what Koreagate was all
about.
MR. NIELDS: Okay. Well let me first start by just saying, Phil Lacovara was special
counsel but he wasn’t sort of on site, he was also practicing law and
heading up the practice for the Washington office and he got into some
sort of an argument with the Chairman — and it wouldn’t have been
hard to have gotten into an argument with the Chairman — I’ll talk
about him a little later. And he sort of got canned. And then Leon
Jaworski came in to replace him and he was even more absent than Phil
had been. And then eventually he resigned. And so for most of the
crunch I was in charge, as chief counsel, I was in charge.
MS. CAVANAGH: Okay.
MR. NIELDS: And so the second thing I’d just like to say before I get into the
substance is one of the most interesting and eye-opening things about it
was watching Congress. I’d never been inside Congress. The
Committee on Standards of Official Conduct had twelve members.
They were, and always have been and always will be, 50% Democrat,
69
50% Republican. So six of each. In those days you couldn’t tell one
from another in terms of what you would expect on an investigation.
And they, without mentioning any of the names that I’m going to —
well anyway what I want to say is they ran the gamut from being as
high-minded public servants as I’ve ever met to being somewhere in the
middle to being very stupid and not remotely ethical.
MS. CAVANAGH: Was that surprising?
MR. NIELDS: It was surprising. The range of it was surprising. The whole
investigation was something that the Committee didn’t really want to do.
And it was forced upon them by the press. And I’d sit through meetings
and hear them debate things and your hair would stand on end. Like one
guy said wait, we want to send a questionnaire out, we suggested a
questionnaire go to every member of Congress to find out if — and I’m
sorry, I’m getting ahead of myself because I haven’t told you what the
investigation was about — but needless to say it was taking money from
the Korean government or representatives thereof in return for foreign
aid, both military aid and financial aid under Public Law 480 to buy
goods from the United States. And so like in one discussion one of the
members said well, okay, I’m okay with the, we’ll send out a
questionnaire to everybody but I want the amount of money that we’re
asking to be changed from above $100 to above $125 because I was
given a set of cuff links and they were $125. That was the kind of
conversation that you sometimes get.
70
But they never made a wrong decision. And the reason they never
made a wrong decision was a mixture of, they were good people, and
outside the room any decision they made that would be public would be
looked at by the press and commented on by the press immediately.
And that just held them in place. So it was a lesson in the importance of
the electorate and the press in —
MS. CAVANAGH: Like a check on them.
MR. NIELDS: A good check on them, yeah. So the Koreagate investigation arose
because there were rumors and allegations that the Korean government
was paying money to members of Congress in return for foreign aid.
And of course their military aid was extremely important both for them
and for us. But the investigation ended up focusing pretty much on the
Public Law 480-kind of aid which was, and I’ll tell you the basic story
of the case.
So the main player in Congress was Otto Passman. He was on the
House Appropriations Committee and he was Chair of the Foreign
Relations Subcommittee. And that subcommittee decided how much aid
other countries would get from the U.S. And Otto Passman, I mean in
those days seniority and committee chairs and subcommittee chairs were
just hugely important. He could decide how much aid Korea was going
to get. He also was from Louisiana, which as I learned is only
marginally part of the United States of America. It had a very different
culture. And Louisiana is a place where rice is grown. And Monroe,
71
Louisiana, which is where Otto Passman is from, his constituents were
rice growers. And Korea did not have enough rice within its borders to
feed its population so they needed to buy rice. And Otto Passman could
extend them Public Law 480 loans in return for which they would buy
rice from Otto Passman’s constituents. And he also had the power to put
into the law a provision that said every rice purchase had to go through a
commission agent. And Korea would name the commission agent. But
then Otto Passman would go over to Korea and tell them who to name
and who he told them to name was Tongsun Park, the sort of
Georgetown — he was Korean by birth but he’d spent a lot of time in
the U.S. and he was a weird sort of socialite who was having a romance
with Tandy Dickinson. And I may mention this again but —
MS. CAVANAGH: He’s been described as a Georgetown party-giver.
MR. NIELDS: Georgetown party-giver, I’m sure he was that. And Georgetown was
always connected to his name. And Tandy Dickinson would show up
for depositions and other kinds of meetings we had with Tongsun Park.
And they would fight like cats and dogs. I mean it was really quite —
he was represented by Bill Hundley who was an old — I shouldn’t say
old — he was a long-time pillar of the white-collar defense world in DC
and a lovely guy. And he would come in and tell me, I’m sorry but
there’s a big fight in the next room and I can’t deal with it until it’s over.
Stuff like that. But the punchline is that Tongsun Park got $9 million in
commissions from Public Law 480 sales of rice to Korea and he gave
72
about half of it to Otto Passman. And he would record in his diary that
he kept contemporaneously all of the gifts to Otto Passman.
MS. CAVANAGH: He kept records of it.
MR. NIELDS: He kept a notation in his contemporaneously maintained diary. So I
mean Otto Passman was a major league criminal. And that was the guts
of it when you got down to the bottom of everything. But there were
undoubtedly some — and there was enough evidence of this so you
didn’t have any doubt about it — there was undoubtedly some money
just being spread around — cash — in Congress by people from the
Korean Embassy and there was lots of campaign contributions by
Tongsun Park to various people and maybe some campaign
contributions directly from the Korean government.
And so the bad news was that Otto Passman was no longer a sitting
Congressman when our investigation was going forward. And that
meant we had no jurisdiction over him. We held lengthy, nationally
televised public hearings with Tongsun Park testifying and he was
testifying because Congress again, not happily but absolutely forcefully,
cutting off all aid to Korea until they sent Tongsun Park back to the
United States so that he could testify — the Justice Department gave
him immunity, and then he testified for them and he testified at live
hearings. I questioned him.
MS. CAVANAGH: Was it controversial that he had immunity?
73
MR. NIELDS: Oh, a little bit, but not really. I mean people cared about what the
Korean government was doing and they cared about what the Congress
was doing, and he was the logical source of information and you
wouldn’t have gotten it otherwise.
And it was controversial I suppose that Congress cut off foreign
aid to the Korean government, and surprising, but I mean I remember
I’m 99% sure I met with Tip O’Neill at least — not like he was
following my direction or even particularly chummy with me, and I’ll
get into that a little bit later — but he, it wouldn’t have happened unless
he wanted it to, and he wanted it to. He wanted to get to the bottom of
it. Or he felt that he needed to do that in order to satisfy the press’s
appetite.
MS. CAVANAGH: So Tongsun Park testified at a House hearing in 1978 and you
questioned him. Is that correct?
MR. NIELDS: Yeah, I mean I questioned him in executive session for three days and
then later I questioned him in open session for most, the better part of a
day I think.
MS. CAVANAGH: And he implicated other members of Congress.
MR. NIELDS: Yes. And he was — so far as I was concerned, and I think the Justice
Department lawyers thought so too — he told the truth about who he
paid and how much and more or less under what circumstances. He did
not tell the truth about his relationship with the Korean government. He
said everything he did, he did on his own. And that made life fun
74
because he was clearly lying and it was very easy to prove. One lovely
little vignette is that — I can’t remember what agency, what law
enforcement agency did this, but they went into his house and they
seized a document that was, I don’t know, 5, 6, 7, 8 pages and it was
clearly created by the Korean government and it was telling him what he
should do, and what he should do was to make campaign contributions
and spread other money around to United States Congressmen. And he
claimed that he had no idea where that document came from and had
nothing to do with it, and in the middle of my questioning of him in
open session on national TV he started railing about the people illegally
coming into his house and seizing the document. And after he stopped
railing about that, and I had a chance to answer another question, I said,
Mr. Park, we’re not interested in how the document got out of your
house. We want to know how it got in.
And there was a mathematical error in that document, an error of
addition, some figures, I can’t remember what, in the adding up of some
campaign contribution money or something like that, and they had been
added up incorrectly. Tongsun Park, as I said, claimed to have no
connection to the document at all. I mean he claimed he had no
knowledge of the document. But, it turned out that one time when he
was flying from Washington to Seoul his plane landed in Anchorage,
Alaska, some customs agents stopped him and searched him, I can’t
remember why they did that, and they copied a little slip of paper that he
75
had on his person and gave it back to him. And we got a hold of that
and it had the same numbers with the same mathematical error in it.
MS. CAVANAGH: A smoking gun.
MR. NIELDS: Right. And just generally we had lots of correspondence between him
and Otto Passman and others. I can’t even remember where it all came
from but it was just more fun than a barrel of monkeys, questioning him.
All of it added up. You could see he was dealing with the KCIA and
other people and he would just lie. Bill Hundley came to me and said,
“I’m his lawyer for the purpose of who he paid in the United States. I
don’t know who his lawyer is for his relationship with the Seoul
government, but it’s not me.”
MS. CAVANAGH: Well —
MR. NIELDS: So then the Committee filed disciplinary charges against four sitting
Congressmen. They were, I think, Congressman Roybal; McFall, who I
think was the majority whip or something — they were all Democrats —
Patten, I can’t remember his first name; was he Jimmy Patten?
MS. CAVANAGH: Edward.
MR. NIELDS: Edward, Ed Patten, Eddie Patten; and the guy who I mix up with the guy
who had a movie made about him — Wilson.
MS. CAVANAGH: Charles Wilson.
MR. NIELDS: Charles Wilson, Charlie Wilson. And I should just, as an aside, I don’t
know why I say this but I have to say it, the whole thing was kind of a
lark for us investigators. I mean I had six lawyers all of whom I had
76
hired, and I had six investigators. And we worked in the old FBI House
Annex #2 which was the old FBI fingerprint building, and we had plenty
of time to do our job. I mean, we did it for the better part of two years
and, so we could do it completely thoroughly, we were sort of insulated,
nobody was getting at us, and then all these crazy things were —
MS. CAVANAGH: We’re good.
MR. NIELDS: Okay.
MS. CAVANAGH: I just like to check.
MR. NIELDS: All these crazy things, we find out all these crazy things that people
were doing. And so why did I say that? So, okay so they’d never had
disciplinary proceedings brought before. We thought of our job as
being, let’s see whether Congress can discipline itself. Let’s see whether
it’s up to the task. And there was lots of pulling in, as I told you the
Chair and several other members of the Congress just hated this
investigation. I mean they were going against their buddies and
inflicting real pain on them and —
MS. CAVANAGH: Was it partisan? Because you know I see those four are all Democrats.
MR. NIELDS: Not at all.
MS. CAVANAGH: Interesting.
MR. NIELDS: No, they were all Democrats because the Democrats were the majority
party in Congress for years and so they were in control of everything. I
think there was one Republican — Cornelius Gallagher, was he a
Republican? He also had left Congress. I think he was a Democrat too.
77
But anyway neither Passman nor any of the people that we brought
charges against were Republican. They were all Democrats. It wasn’t
partisan. I mean —
MS. CAVANAGH: Interesting.
MR. NIELDS: It was just a different era. Yeah, just a totally different era. So we had
to cobble together a procedure for trying these people. And you couldn’t
get twelve Congressmen in a room. You sometimes couldn’t even —
we had a rule that we had to have a Congressperson present at every
deposition that we took. And we took a lot of depositions. And a
woman named Millicent Fenwick, who was, she was just marvelous and
a little bit quirky — she was a sort of very aristocratic New Jersey, in
fact you’ll see there is one of the rest stops on the Jersey Turnpike says
Fenwick. That’s a relative of Millicent Fenwick’s. She was just about
six feet tall, she was wire-thin, very aristocratic bearing except she
smoked a pipe.
MS. CAVANAGH: She cut quite a figure.
MR. NIELDS: It was a dainty pipe. And she —
MS. CAVANAGH: I didn’t know there were dainty pipes!
MR. NIELDS: Yeah, there is. And she was a very elegant lady. And she was
passionate about, I mean she thought this investigation was just
enormously important and that rules should be obeyed and —
MS. CAVANAGH: Was she a member of Congress?
78
MR. NIELDS: Oh yeah, oh, oh, oh, oh yeah. She was the person that we would get to
sit in on the deposition. She, like 70% of the depositions, Millicent
Fenwick was the person. She was tireless, she worked until midnight
every night, she would sit all day in these depositions and she knew
everything about the case and all the facts and all the people and — I’m
going to have to tell you an anecdote about her — but anyway
frequently, even when it was her, the bells would go off, right? In
Congress. I mean they had clocks and the clocks had lights, and you
could hear boing! Boing! And two lights would go on, and a bell
sound, that meant there was a vote. So your judge sitting for the
deposition would walk out of the room, just walk out. And sometimes
they didn’t come back!
MS. CAVANAGH: That’s frustrating!
MR. NIELDS: In fact we were taking the deposition of Melvin Laird who had been
minority leader and also Secretary of Defense and we were taking his
deposition and the bells went off and somebody ran off and I said I’m
sorry, Mr. Laird, but I can’t tell you when this is going to resume. So he
got pretty impatient. And then he started up picking up the phone and
calling every member of the Committee in their chambers. Finally he
got one and he said, you get in here goddamn it, I’m not sitting around
any longer. So we had our witness getting our member to sit in on the
deposition.
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One day we had a committee meeting, maybe it started at nine and
it was maybe 20 before nine and I’m sitting, and it was like a room like
this, like twelve seats around it, a little bigger than this, and browner,
you know, brown walls, and Walter Flowers, who was then a
Congressman from Alabama, and a perfectly good, I mean a good guy
but a little bit of a good ole’ boy, and he was sitting there reading his
newspaper. And there had been an article about some [financial]
practice that had just surfaced that Congresspeople were engaging in that
was a big ethical issue. And Millicent walks in. And she is going off
about this. She’s just outraged. And Walter Flowers is sitting there
reading his newspaper. He’s got his back to her. And he says, half
absently, Millicent, it’s a good thing you’re rich. No sooner had the
words gotten out of his mouth than he knew he’d made a big mistake.
She just landed on him. Oh, I’m sorry Millicent, oh, I’m sorry, so I was
just you know, not that it made any —
MS. CAVANAGH: She was tough. She had to be.
MR. NIELDS: Yeah, she had to be. Yeah, but she was. So eventually we had to hold
these trials and we just made up a rule that you couldn’t take testimony
without five members of the Committee being there and you couldn’t
have a decision until everybody had at least said that they’d read all of
the transcripts that they’d been absent for. So we’d run around the halls
between 8:30 and 9:30 am, you know we’d have told the defendant and
the lawyers and the witnesses that they had to be there in time for the
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trial. And sometimes we got five people by the time the trial started and
sometimes we didn’t. And it was election time. It was like October of
1978.
MS. CAVANAGH: It was not the priority for Congressmembers to be at your hearing.
MR. NIELDS: That’s exactly right. And I never forget — so we had, in addition to
Millicent Fenwick there was Lee Hamilton, Richardson Preyer, Thad
Cochran, they were all just fine people and fine public servants. And
there were others that were perfectly acceptable. And then I’m not
going to name the ones at the other end of the spectrum but there were
some pretty surprising people. But they always did the right thing. And
Thad Cochran told us, I remember when we asked for approval to bring
the charges, the Committee voted on them. Chairman Flynt hated it so
much that he checked into the hospital the day we were, with laryngitis,
and Tiger Teague had to chair the meeting for him, and they’ve
approved the charges, unanimously as I recall with the exception of
Patten and Thad Cochran dissented from the vote to, he just had a very
strong instinct that the facts may look like they’re there but this man
[Eddie Patten] did not do anything wrong on purpose.
MS. CAVANAGH: So Patten was not censured.
MR. NIELDS: Well he was, we brought charges against him, had a trial, and I think
they voted to acquit him. I think the Committee didn’t vote him guilty
of anything. I mean Thad Cochran basically, once the trial was had, you
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know everybody came around to his way of looking at it. And again he
was a Republican and Patten was a Democrat.
But we really, we had serious trials and serious evidence and
serious deliberations and then we went down to the floor of Congress
and goddamned if John J. Flynt, who was a good ole’ boy from Georgia,
didn’t get up and do his job on the floor of the House to, I mean he
summed up on all of these cases as to what terrible things that had been
done and why they should be censured. And I think Roybal got a more
severe censure than the other two did. I think he’d perjured, I think he’d
lied about receiving contributions from Tongsun Park.
MS. CAVANAGH: Let me just step back for a second. John J. Flynt was the Standards
Committee Chairman.
MR. NIELDS: Chairman.
MS. CAVANAGH: Okay. And so Roybal, Wilson and McFall were censured or
reprimanded. Correct?
MR. NIELDS: Yes.
MS. CAVANAGH: Right, okay.
MR. NIELDS: By the House.
MS. CAVANAGH: By the House. Okay. And then there were, what other consequences
were there for people involved like Passman —
MR. NIELDS: That’s pretty — well, okay, I’ll get to Passman — now I’ve come to
that, but I’ll just say one other thing, I mean I’ll never forget this, god! I
think Flynt had just given his speech about somebody and I think it
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might have been Roybal, and I think I had taken his deposition without a
lawyer present. I mean he didn’t have a lawyer. I think that’s what
happened. And Elizabeth Holtzman collared me in an aisle on the floor
of Congress and just screamed at me. I mean she was like — but it was
just a passing episode but it was —
MS. CAVANAGH: Memorable.
MR. NIELDS: I’m in the political world now. And I thought I had a better grasp on the
rules of the road than she did, but anyway, it was a memorable
experience.
So then, the only official things we did was, well, we did a whole
investigation, but to hold public hearings and then we had these four
charges brought and trials of each of the four charges and it went down
to the Floor. I mean I had no role on the Floor; I was just there. The
Committee members took over at that point. And we wrote a report and
published all of our materials. The big deal was the indictments of a guy
named Hanna who had done something unbelievably minor and he had
pled guilty and I think he went to jail very briefly as I recall but I think
he went to jail.
MS. CAVANAGH: I have that he was sentenced to six to thirty months.
MR. NIELDS: Six to thirty?
MS. CAVANAGH: Yeah, but I don’t know how long he served.
MR. NIELDS: Yeah, he probably served two or three or four, something like that. And
I think they indicted Gallagher but I can’t swear to that. They definitely
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indicted, the Justice Department, the Public Integrity section indicted
Passman.
And then comes a sorrowful story. So they indicted him for
bribery which he had committed in the District of Columbia. And they
filed the indictment in the District of Columbia. And then the Tax
Division of the Justice Department knocked on somebody’s door and
said wait a minute, he didn’t pay taxes on these bribes and we want a tax
prosecution. Somebody said okay, so they filed a second indictment
charging tax evasion. And Camille Gravel, who represented Otto
Passman, went into court — I want to say it was Judge Richey but I
really don’t know for sure, don’t remember for sure, and said these
indictments clearly have to be consolidated, they all involve exactly the
same facts, so I move to consolidate them. And Richey grants the
motion Internal Revenue Code. And then he says, there’s a provision of
the …that says a taxpayer has a right to be tried in the district of his
residence. Boom, they’re in Monroe, Louisiana.
MS. CAVANAGH: Friendlier jury.
MR. NIELDS: Well it’s — for two different reasons. Number one, the chief
prosecution witness was an Asian, Tongsun Park. And the defendant
had done favors for virtually everybody in the jury pool. And they had a
five-week trial and I think a 15-20 minute deliberation and he was
acquitted. So.
MS. CAVANAGH: So that was it.
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MR. NIELDS: That was it.
MS. CAVANAGH: Can you tell me a little bit about Kim Dong Jo, the former Korean
ambassador? I think this is someone else who was involved. And I have
an article where you were quoted as saying everyone here feels we
didn’t complete the investigation because we didn’t get to Kim Dong Jo
because Kim also had an immunity agreement, he had diplomatic
immunity that protected him and couldn’t be reached by law. Do you
remember that, or no?
MR. NIELDS: I mean, it —
MS. CAVANAGH: You were quoted in the press a long time ago about this. So maybe that
wasn’t you who was personally involved in that aspect of it. It looks
like —
MR. NIELDS: I would have been involved in it, I mean there’s no way it would have
happened without me — I remember the name Kim Dong Jo, I could not
have told you who he was until you’ve just told me now. But I would be
100% sure that you can’t prosecute the ambassador.
MS. CAVANAGH: Right.
MR. NIELDS: I mean because of diplomatic immunity.
MS. CAVANAGH: Right. I guess he was the former ambassador.
MR. NIELDS: Oh. Well was he in the U.S.? Well maybe he was an ambassador during
the time of the behavior.
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MS. CAVANAGH: Yeah. Apparently, I have in my notes he had agreed to answer written
questions of cash payments he was suspected of making to members but
he didn’t really do that in a forthcoming way.
MR. NIELDS: You know it’s funny; you’d think I would remember that. Who I
remember vividly was Kim Hyong-uk. I don’t know whether you ran
across that name. He was the former head of the KCIA and he’d come
to the United States of America, and he testified. I remember he
testified in public session, I remember he came in with a cowboy hat and
boots and he sat at a table skinnier than this and he sat like that and I
remember questioning him from that vantage point. He didn’t have
anything terribly important to say but he filled in a few gaps. But one
day he had an “interpreter,” I think in quotes, named Kim Yung Gil,
Kim Yung Gil, I’m pretty sure that was his name, and his fingers were
like that, and I assumed he’d had an accident or something. And
somebody explained to me later, and he eventually called himself Kim
Hyung-uk’s bodyguard. And I was told that you want a solid wall of
finger-ends in order to inflict a crippling blow. But so Kim Yung Gil, I
don’t remember if he called me on the phone or collared me in a public
place, but he said, “Kim Hyong-uk like to come talk to you. Private.”
MS. CAVANAGH: And you’re thinking where’s your bodyguard?
MR. NIELDS: For some reason I was not scared of him.
MS. CAVANAGH: Good.
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MR. NIELDS: And to make a long story short, I finally said well okay. “We come see
you in your office.” Okay. And I met him early in the morning, so like
7 o’clock in the morning I’m ushering them up to my office which was
tiny and it had a little table, rectangular table, and they sit down and I’m
saying, what do you want to talk about? “A subpoena.” What
subpoena? “You subpoena for Kim Hyong-uk’s gambling records.”
And then I’m just having a tickle in the back of my memory, oh, yeah,
there was some newspaper allegation and one of the people on my staff
had served a subpoena on a Las Vegas gambling establishment for
records of Kim Hyong-uk’s gambling winnings. And I said well, okay
what do you — “We’d like you withdraw subpoena. You ask Kim
Hyong-uk now. He answer, you withdraw subpoena.” And I said, well,
I don’t see how I can do that but if you want me to ask him questions
now I will do that. Or maybe I think he pushed me to ask questions
anyway. And I only had the dimmest recollection of what it is that I was
supposed to be asking him about so I said, do you gamble? And so Kim
Hyong-il says da-da-da, and Kim Hyong-uk says da-da-da-da-da, in
Korean, and they turn to me, “Yah.” I said, do you gamble a lot? Dada-da-da-da — “Yah.” I said, do you win more, or lose more? Do-dodo-do-do — “Lose more.” How much have you lost? And I think I
might have asked it for last year or in the last year. Do-do-do-do-do —
“Ah, Kim Hyong-uk ask how much you hear he lose?” And I was just
taking a stab, I said a million dollars. Je-je-je-je-je — “Yah.” We did
87
not withdraw the subpoena and it did come back $987,000 dollars he’d
lost at one gambling establishment in one year.
MS. CAVANAGH: That’s a lucky guess.
MR. NIELDS: It was a lucky guess. I mean I may have had it somewhere in the back
of my head but it also told you how much money the head of the KCIA
might have with him to take back to the U.S. and gamble with. He was
then murdered.
MS. CAVANAGH: Really?
MR. NIELDS: Yeah. I think two or three years later.
MS. CAVANAGH: Some of the press reports mention that the Unification Church founder
Sun Myung Moon might have also been involved?
MR. NIELDS: There was a whole other committee that was investigating Moon. I
think they were in the same building that we were. And we played a
softball game against them out on the Mall one night. But that’s about
as close as I got to Reverend Moon.
MS. CAVANAGH: Thought I’d ask.
MR. NIELDS: Oh, one other lovely story at least to me it’s a lovely story — one of the
things we had to do in that investigation was clear a whole lot of people
in Congress whose names had been mentioned in the newspapers who
had nothing to do with anything. And the press was completely on
steroids. It was the first thing that had happened since Watergate and
they were all terribly excited about it. And there was one article that
says that up to a hundred members of Congress were involved in this
88
scheme, bribery. Now it could be that that’s true and we just didn’t find
out about it. But I don’t think so. And one of the people whose names, I
think both the majority leader [James] Wright and Tip O’Neill had
stories written about them. And one of our jobs was to sort of get to the
bottom and clear the people that didn’t deserve to have their names
bandied about. And it fell upon me to take the deposition of Tip
O’Neill. And I was contacted by his lawyer and the lawyer wanted him
to be deposed in the lawyer’s office in Potomac, Maryland, not office,
living room, and I said fine, and I went out there and there was this one
story about him which I just needed to ask about but it was embarrassing
to me to have to ask him about this. It was story that he had been
running around the streets of Seoul with pillow cases full of Korean
money.
MS. CAVANAGH: Tip O’Neill.
MR. NIELDS: Tip O’Neill. Okay. And there boondoggles you know, that
Congresspeople were taking, and so I went out there and I’m pretty sure
it was just me and Tip O’Neill and his lawyer in the room and a court
reporter. And there were some other things that I needed to ask him
about. And I got through it, I think the whole thing took 45 minutes
max. And I remember distinctly that he never looked at me until the
very end. He was not going to recognize that some young whippersnapper had a right to be forcing him to give a deposition. But he also
knew he had to give it. And I had postponed asking about this question
89
but I finally said there’ve been reports that you were carrying — and
nobody knew where the story came from, nobody knew where it came
from. So anyway I confronted him with this story and then found out
immediately where it came from — it came from him. And it was one
of his favorite stories. He proceeded to tell it. He said well, me and
Eddie Boland (who was another Boston, Massachusetts Congressman)
go to a gambling establishment and they took us to a gambling
establishment and we started gambling. And I remember I says to
Eddie, “hey Eddie, I keep winning. How come we keep winning? He
said, I don’t know, Tip. I keep winning too. I don’t know how.” And
then he says at the end of the evening that they go up to the window and
they had won so much won, that was the currency, that they were
handed four pillowcases full of won. They couldn’t even hand it
through the window, you know, they had to take it around and he gave it
to them through a door. And he says “so we walk outside and we hail a
taxicab, and I says Eddie, what are we going to do with these won? I
don’t know, Tip, what are we going — I don’t know. So we get in a
taxicab. And we get in a conversation with the taxi driver and we asked
him about his life, where he lived and he told us that he lived da-da-da,
and he’s been working all his life and he and his wife hope one day they
can buy a house.” There’s a small house a little bit outside the city.
And he drives Tip and Eddie Boland past the house and points it out to
them. And Tip says, “I looked at Eddie and Eddie looked at me, I says
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to the cab driver, how much does the house cost? And he says, da-dada-da a million won. I says to Eddie, Eddie, how much won we got in
these pillowcases? You know, just about that amount. So we said, here!
You take the won! Buy yourself the house. And then he took us to our
hotel.”
MS. CAVANAGH: What a great story.
MR. NIELDS: Wasn’t it great? By the way, won, which they knew, couldn’t be taken
out of the country. It was a blocked currency. You couldn’t take it with
you. I mean that’s why, I’m sorry, that’s what I should have said when
he’s explaining —
MS. CAVANAGH: Wasn’t that generous.
MR. NIELDS: Yeah, what do we do with this won? There’s nothing we can do with it.
We can’t take it with us. So anyway that was —
MS. CAVANAGH: That’s a great story. So he made eye contact at that point, when he told
the story.
MR. NIELDS: Exactly. Exactly.
MS. CAVANAGH: You saw more of the famous Tip O’Neill personality then.
MR. NIELDS: Exactly. And then he dealt very courteously with me from then on and
when we were talking about larger strategy issues.
So I think that’s about all I’m worth on Koreagate. Unless you
have other questions.
MS. CAVANAGH: Yeah, I’m looking. You know some of the commentary at the time
suggests that this whole scandal, this Koreagate, didn’t really have many
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long-term consequences particularly post-Watergate, in comparison with
Watergate. And I guess I’m wondering what your reaction is to that in
terms of what you thought in terms of the outcome as well as your
thoughts about the difficulty or not difficulty of getting Congress to sort
of investigate itself. You had mentioned that as an issue of whether or
not that was possible or efficient. I’m curious what your reaction is at
that time.
MR. NIELDS: Well, I maybe shouldn’t have had this thought but I told you in a way it
was a lark. Put Otto Passman to one side just for the moment. This was
mainly something the Korean government was doing on our soil. It
didn’t, campaign contributions hadn’t been reported and there was
clearly an influence peddling, bribing thing going on but really it was
Otto Passman. I mean Edwin Edwards, I forgot to talk about him, but it
was really Otto Passman. And since he was both out of Congress and
then acquitted because of the Justice Department bungling there was no
big crescendo at the end of the case. I do think, I mean I’m not sure
Congress can take credit for being vigilant about its internal ethics
enforcement, but I think that was the first time that they got used to the
idea that, yeah, we really need to do this. And they have done it, not that
infrequently in the years since. So I thought it served a purpose but
compared to some other things that I’ve done the consequences were —
I mean it was really fun to do and it was a good group of people to work
with on the investigation and it was just enormously educational about
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Congress. These plastic figures were not plastic at all, and they
differentiated one from another enormously.
MS. CAVANAGH: And it gives me fuel for asking you more questions about the
comparison later when you worked for Congress again. So we’ll hold
off on that. How did you decide what you were going to do after that?
What was your next step?
MR. NIELDS: Law firm.
MS. CAVANAGH: Mm-hmm.
MR. NIELDS: And I interviewed in New York and in DC and —
MS. CAVANAGH: Now why did you decide to do that? Because you had thought about
teaching.
MR. NIELDS: Oh. Sorry, what I’m thinking about is did I interview for law schools
again? I don’t think I did. Not sure.
MS. CAVANAGH: In 1979?
MR. NIELDS: I’m pretty sure I didn’t.
MS. CAVANAGH: I think, just not to get ahead of myself but I think I have in my notes that
toward the end of your time with the Iran Contra hearings you had
considered going to teach. Or maybe Gail had been quoted as saying
you were interested in teaching. I have in my next stop here that you
went to Howrey and Simon.
MR. NIELDS: I definitely went to Howrey and Simon next. And I think the only story
to tell is that I interviewed in New York but my wife clearly did not
want to go back. And if it had been the, if I had gotten like this kind of
93
job in New York, nothing in DC, I mean we might have gone back but
she really didn’t want to go back. [I did consider teaching once again
sometime in the 1980s but Gail was strongly against leaving D.C.]
MS. CAVANAGH: She was teaching —
MR. NIELDS: She was teaching.
MS. CAVANAGH: When the kids were in school —
MR. NIELDS: The kids were all in school and she was really enjoying teaching and she
was really enjoying teaching and she was really good at it and it would
have been very disruptive. I don’t — so anyway I was — and Howrey
came up fairly late in the — do we have to do some more?
MS. CAVANAGH: We’re good. Just like to check and make sure it’s alive.
MR. NIELDS: Sort of late in my interviewing process and it was a law firm that did
nothing but litigation and it clearly had lots of trial lawyers in it, not just
litigators, and it seemed energetic and it appealed to me and I took a job
there. I was not, I did not, the other firms had offered me partnerships I
think. I’m not sure. I think so. And Howrey didn’t want to offer me a
partnership and I said, I’ll tell you what, I said — they said, we don’t
know you. I said, I want you, and unless you do this I’m not coming —
I didn’t say it rudely but I want you to vote me a partnership effective
next January — this was March — and if you don’t like me you can
revoke it. But I want inertia to be on my side. They said, well that’s
pretty interesting. I like the way you bargain. We’ll do that. So that’s
what happened.
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Except that what really happened is I think it was, we went off,
Gail and I took a vacation, it must have been with our kids, to Puerto
Rico I think, and I got back and the next day I’m going to work at
Howrey and the phone rings at 7 in the morning. It’s Paul Michel who
had headed up the Justice Department’s Korea investigation, so I’d
gotten to know him. He was then a special assistant or a deputy or
something to Ben Civiletti, who was then head of the Criminal Division,
and he basically asked me would I be interested in doing the FBI case.
MS. CAVANAGH: So you were not at Howrey for long before you were doing that.
MR. NIELDS: Yeah. I mean I actually was a Howrey employee — the Justice
Department was one of my clients and Howrey got paid $100 an hour or
something like that or maybe even less, I don’t recall for sure. But I —
and I had at least one other case that came into me the very first day that
I actually did, I mean, and didn’t shirk it. But for the next 20 months,
well 18, 19, no, the next –
MS. CAVANAGH: I have 20.
MR. NIELDS: Twenty. The next 20 months I was working seven days a week, 15-16
hours a day.
MS. CAVANAGH: Were you at DOJ or were you working from your office at Howrey? Or
both?
MR. NIELDS: I mean I was occasionally in my office at Howrey to do this other matter
that I was, that I had, but no, I was at DOJ and we started off in a
building called Federal Triangle where you rode up and down the
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elevators with huge bags of garbage in the morning and in the evening. I
mean it was not —
MS. CAVANAGH: Not as nice as Howrey.
MR. NIELDS: Not as nice. Then I moved over to main Justice and then as the trial
approached we got space in the courthouse. But I was there, and the
reason there was so much work was “graymail.” I don’t know if you
know what that means.
MS. CAVANAGH: I don’t.
MR. NIELDS: Okay, so the defendants sought massive discovery into documents that
were highly classified.
MS. CAVANAGH: The defendants, are we talking about Mark Felt and Edward Miller?
Okay because we’ll talk background about that in a minute.
MR. NIELDS: Oh, okay, sorry.
MS. CAVANAGH: Just so you know. Go ahead, yes. Graymail. You can —
MR. NIELDS: Oh yeah, you mean a larger background.
MS. CAVANAGH: Yeah, I mean larger background.
MR. NIELDS: Yes. Yes, yes, yes. Yes.
MS. CAVANAGH: I know what you are talking about, but for posterity.
MR. NIELDS: Well maybe I need to just at least give you, give this record a brief
background. So they had, when I got the call from Paul Michel, the
second and third, formerly second and third ranking officials of the FBI,
one the deputy director, Mark Felt, and the other the head of the
intelligence division, which was Ed Miller, had been indicted for
96
authorizing secret warrantless probable cause-less searches into people’s
homes and when they went in they copied all manner of very personal
documents and then disseminated them around the Bureau and recorded
them, recorded those searches in FBI files in a misleading way to any
outsider, the documents said we contacted an “anonymous source” at the
home of blah-blah-blah, that was code for we broke in or we picked a
lock or we bribed the landlord. And they — nevermind, that’s a
description of what the, the memoranda by Felt and Miller authorizing
the break-ins said, and they were also put in the FBI’s “do-not-file” file.
So that they —
MS. CAVANAGH: Why were they doing that? What was their motivation?
MR. NIELDS: You mean what were they after?
MS. CAVANAGH: What were they looking for?
MR. NIELDS: They were looking for the Weathermen fugitives that had been indicted
for setting off bombs in government buildings and setting off bombs in
businesses, I mean they were sort of the domestic terrorists of the day.
And the FBI was humiliated because they couldn’t find any of these
fugitives. And so they were looking for clues to their whereabouts and
they broke in, or they sneaked into and searched homes of friends and
relatives of the Weathermen fugitives. So that’s basically what that was
about.
And as part of their defense they wanted to show two things — one
was that the Weathermen were agents of foreign powers because that
97
was relevant, at least marginally relevant to the question of whether
what they did was clearly unlawful and whether they believed it to be
unlawful; and the second was they wanted evidence that showed that the
U.S. government at higher levels than themselves had engaged in or
authorized the FBI to engage in similar behavior. And all of that
information and anything they wanted to read in order to try to find that
kind of information was likely to be classified. And when I first took
over the job from the person who left because this looked like a
thankless and maybe fruitless effort to prosecute given the problems
with getting the evidence to the defense to which they might be entitled,
the classified evidence to which they might be entitled, I was basically
told you’re going to have to persuade the judge that they’re not entitled
to any of this. And they’re not even entitled to get it and read it but
they’re certainly not entitled to use it in an open trial. Or else we’re
probably not going to be able to prosecute the case. So that process took
an enormous amount of time and energy. And I’ll tell you more about
that in a minute but the other side of the coin was by the time I had
finished going through all of that I knew the case so well that I could
thank the defendants for giving me all this time to — and I also started
to understand how important the case was because of the amount of
energy that the intelligence community was putting to trying to stop it
from going forward.
MS. CAVANAGH: This was not a lark.
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MR. NIELDS: This was not a lark.
MS. CAVANAGH: So when did you get involved? Were you involved in the investigation?
MR. NIELDS: No.
MS. CAVANAGH: Okay.
MR. NIELDS: When the investigation began I think in the wake of the Church and Pike
committees — those were two Congressional committees, one for
Senate and one House, I think, into the intelligence activities — and I
think the Civil Rights Division, it may have been the Criminal Division.
I think it was the Civil Rights Division that was kind of investigating
and they found evidence of bag jobs which is what these things are
called, done by the New York office of the FBI, and indicted some lower
down agents. And there was a hue and cry about how unfair this was
and so forth.
MS. CAVANAGH: Unfair because they were lower level agents and it was clearly coming
from higher up?
MR. NIELDS: I think so. I mean I wasn’t there. To the degree that, I’m telling you
what Frank Martin, who worked on the case with me and had worked on
it from the beginning, told me basically, but. And there was a guy
named John Kearney who was just universally loved and admired who
had, he was, in the New York office, and so people were upset about
him being named and I’m not 100% sure that some of these were not
real bag jobs but were instead simply placing microphones inside, and
for years, hearing was not regarded as being a search. So the Fourth
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Amendment did not apply to wiretaps or even the microphone that picks
up sounds of voices, until Katz against the United States [389 U.S. 347]
which the Supreme Court decided in 1967, they finally overruled
Olmstead [v. United States, 277 U.S. 438 (1928)], which over Brandeis’s
dissent had said hearing is not searching. And so there was legitimate
confusion about how the Fourth Amendment applied to microphones
which the FBI thought sort of that it was okay to sneak into somebody’s
house as long as you didn’t search and seize anything and did nothing
more than leave a mike behind, and then the hearing was not a search, so
nothing bad had happened.
But anyway I’m sorry. What did you just ask?
MS. CAVANAGH: I had asked if you were involved in the investigation.
MR. NIELDS: Oh, okay.
MS. CAVANAGH: So you came in —
MR. NIELDS: Okay. So, at some point those indictments were all dropped and
somebody, and I think it was a guy named Bill Gardner who was, he was
certainly head of the task force that was investigating whatever they
were investigating, and he found — no, so somebody, so there was a
civil case brought by the Socialist Workers Party. And they uncovered
in their suit something referred to as COINTELPRO which, counterintelligence . . . or whatever that pro stands for.
MS. CAVANAGH: Counter Intelligence Program.
MR. NIELDS: Program?
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MS. CAVANAGH: Starting in 1956.
MR. NIELDS: Yeah, which the FBI was engaged in. And it was more of really trying
to harass and limit and impede what they saw as a leftist and nonpatriotic organization. But a young FBI agent who was making
discovery in that case stumbled across the memos in the New York
office that recorded, “we contacted an anonymous source” — that were
in a do-not-file file and it said we contacted an anonymous source at
such and such a house, security was guaranteed, and blah-blah-blah.
And that started what ended up being the Felt-Miller case. And Bill
Gardner, I think it was him in person, came upon in another do-not-file
file in the FBI headquarters, he came across the memoranda where Ed
Miller and Mark Felt had approved the bag jobs in New York and some
others in New Jersey.
MS. CAVANAGH: And what about L. Patrick Gray?
MR. NIELDS: L. Patrick Gray was the acting head of the FBI. The bag jobs were done
in 1972 and ’73 so it was in the Nixon era, and L. Patrick Gray — I
don’t know why he would have been — I guess Hoover had died,
Hoover and Clyde Tolson died, or else Hoover died and Clyde Tolson
resigned, retired, and they were the head of the FBI, the director and the
deputy director. And so L. Patrick Gray was made acting director. I
guess he was supposedly going to be appointed director. And he was
also indicted and I think what I’m about to say had already started to
happen before I came in, but there were people on the investigation who
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had misgivings about having indicted L. Patrick Gray. And they ended
up thinking that he had probably not known about the bag jobs done on
U.S. citizens. And at most he may have known about a bag job done on
a foreign terrorist organization. And that whether that was lawful or not
it was not prosecutable. It was not clear enough that it was illegal to be
prosecutable. And so I think Gray’s case had been severed but not
dismissed when I took over the Felt-Miller. So the Felt-Miller case was
headed for trial assuming we could solve our graymail problems, and L.
Patrick Gray was waiting on the sidelines and I reviewed all of the
evidence regarding L. Patrick Gray and reached a fairly clear decision in
my own mind that he should not be prosecuted. We did not drop the
case, however, until we had had an opportunity to hear from Mark Felt
at the trial since he could have key information which nobody had ever
had a chance to get from him because he couldn’t be put in the grand
jury while he was a defendant in his own case.
So that’s the — again, where are you?
MS. CAVANAGH: So Felt didn’t implicate —
MR. NIELDS: No.
MS. CAVANAGH: — Gray.
MR. NIELDS: No.
MS. CAVANAGH: Well I guess you could tell us a little bit about your impression of Mark
Felt and Edward Miller and their testimony.
MR. NIELDS: Well let me tell you more about this graymail, okay?
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MS. CAVANAGH: Sure.
MR. NIELDS: It took really up until — so I came in in March and we were solving
graymail problems all the way through the middle of the next summer.
And it was nip and tuck. What happened was we had very compelling
arguments that there was no issue that went to legality of what they had
done. That the Weathermen, there was a case called U.S. against U.S.
District Court [407 U.S. 297 (1972)], affectionately known as the Keith
Case, decided in June of 1972, that held for the first time that you could
not conduct a warrantless national security wiretap of a domestic
subversive.
MS. CAVANAGH: Is that the same case as — I have it in my notes as the Plamondon case?
I don’t know what that is.
MR. NIELDS: I don’t know what that is.
MS. CAVANAGH: I’ll look it up.
MR. NIELDS: It might be.
MS. CAVANAGH: I’ll look.
MR. NIELDS: That might be the name of — the case went up to the Supreme Court —
MS. CAVANAGH: 1972?
MR. NIELDS: — with the name of the judge — Judge Keith — that decided it as the
party.
MS. CAVANAGH: Okay.
MR. NIELDS: And so it could be that there was an actual human being named
Plamondon who was in it. [Lawrence Plamondon had been charged.]
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But the government had argued, the Justice Department had followed a
procedure of having national security wiretaps on U.S. citizens, not
foreign agents, but who were subversive and a threat to the government,
on personal case by case approval of the Attorney General. And the
Supreme Court decided, to the Justice Department’s amazement, 8-0 I
think. Could have been 9-0 but I think, something runs in my mind that
Rehnquist recused himself or something like that, that it was
unconstitutional to do a warrantless wiretap in a national
security/domestic case. They left open the question of whether you
could do a wiretap on a foreign agent. And the Justice Department
hadn’t argued you could do a search without a warrant in a domestic
“security” case, i.e., that you could break into somebody’s home, they
had only argued, they said this [wiretapping] is a much lower intrusion
than searching inside somebody’s home or entering somebody’s home.
So, and then [right after the Supreme Court decided the Keith case, the
FBI wrote an internal memo initialed by Mark Felt and Ed Miller that
they had just reviewed all of their information about the Weathermen
and they were not foreign agents and so they were cutting off the
wiretaps on them — and then they [Felt and Miller] authorized a bag job
— a real physical search — on one of the Weathermen whose wiretap
they’d cut off, after that. We had internal memos, or an internal memo,
from J. Edgar Hoover in 1966 when he figured out that the public wasn’t
going to stand for these bag jobs anymore, in which he told the whole
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FBI “no more of these techniques may be used.” Then Ed Miller and
Mark Felt after Hoover died decided they wanted to start them up again.
And the Supreme Court case law just didn’t give a hole for where the
FBI could argue that the law was unclear about whether you could do a
warrantless, and particularly a warrantless and probable cause-less
search, into someone’s home. And so we put that all in briefs to the
judge and asked him to rule that they weren’t entitled to all this stuff.
And the judge was Judge William B. Bryant. He was the first AfricanAmerican Chief Judge of a district in the country. And he was Chief
Judge when we tried the case.
MS. CAVANAGH: I remember him.
MR. NIELDS: What’s that?
MS. CAVANAGH: When I clerked for Judge Oberdorfer he was senior and he was still in
the courthouse.
MR. NIELDS: He is my one adult-life hero.
MS. CAVANAGH: Judge Oberdorfer really admired him.
MR. NIELDS: Oh, god, he was an extraordinary person. He had a wonderful sense of
humor. He was kind and empathetic and he loved a good fight, and he
had — it was like, his love of justice was like, it was in his body. I mean
you could — his body would react to good things that were happening in
the courtroom and bad things that were happening in the courtroom.
And I, he wrote this opinion saying you know, I’m going to let the
defendants have a defense. Not legally — but I’m going to let them get
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the evidence that they want to use in whatever defense they’re going to
make. And after first thinking that well, maybe we’re not going to be
able to try this case, and then we were first thinking slightly grumpily
that he hadn’t accepted my arguments and then worrying about whether
I would ever get to try the case, I concluded and more and more
emphatically in my own mind, that he was absolutely right and that this
case was a peanut case if they don’t get to put all of their defense and we
don’t get a jury to decide it based on everything.
So we set about in a painstaking — there was no CIPA. Do you
know what CIPA? Well eventually Congress passed a Classified
Information Procedures Act which was designed to find a way through
the graymail. Graymail means blackmail but it’s not that bad a thing but
it’s where you try, you say to the prosecution if you don’t give me all the
evidence I’m entitled to and let me use it at a trial then you can’t
prosecute this case. And that’s clearly the law. I mean it was a law
then. And so we had to, there was no Classified Information Procedures
Act and we had to sort of make one up. They were working on it in
Congress but we had to kind of cobble together something that was fair
and there were like 200,000 classified documents that we had to solve all
of them or effectively all of them. And so we would redact classified
information and revealing sources and methods of intelligence gathering
out of the document. If you couldn’t do that we would sometimes take a
paragraph of the document that had something hot in it in terms of
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disclosing a source or method, and summarize the information and offer
it to the defense in place of that paragraph. We sometime would agree
to stipulate the facts that were more harmful to us than the document or
at least equally harmful to us, and so on and so on and so on and so on.
And that was all fine. But we don’t, you know nobody’s got the rest of
their lives to work on this case and the judge was extraordinarily patient.
MS. CAVANAGH: Is this why there were all these postponements of trial?
MR. NIELDS: Oh yeah. That’s all of the — and it was nip and tuck whether we were
going to — and part of it was psychologically persuading the defendants
that we were going to solve the problems. And once we got them there
they would then focus. Instead of trying to make it about 200,000
documents they would focus eventually on the 50 that they actually
would use if they had them available. Because they wouldn’t want to,
you know, not have, they needed to prepare their case at the same time
as all of this stuff was going on. And I did one thing that I am very glad
I did, well I did two things.
The first was I decided to take away from them any claim that they
didn’t know what they were facing. So I wrote a document that outlined
our entire direct case with every document I was going to use and a
summary, in effect, not a long summary but a summary of what every
witness was going to testify to, and said to the defendants, this is what
you’re dealing with, tell me what documents you need and focus for
god’s sake to deal with this case.
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And the second thing I did was that the judge had already made a
ruling shortly before I got there that a particular group of documents
about the Weathermen couldn’t be used and it was proper that they not
be used. And they had the most useful (to the defense) information
about the Weatherman of anything that I had seen. And I would, the
defense lawyers had file cabinets with locks on them, they all had
clearances so they could see the documents and then for really highly
classified documents they had to come into the Justice Department and
go to what we call the Vault and then they could look at those
documents in the Vault. And the judge would see the documents
completely unredacted. And they were upset and annoyed — and this
particular group of documents that they had been denied, they, I
remember a couple of times them mentioning this is really not fair, and I
went back and I remember talking to Frank Martin and I said you know,
I think they’re right. And even though we’ve already won this I want
you to find a way that we can persuade the intelligence agencies that
they need to give this up. And what we were doing was not fighting
with the defense lawyers so much after Judge Bryant ruled; we were
fighting with the intelligence agencies. And they would tell you
everything was classified and couldn’t possibly be used, partly because
they had legitimate national security concerns and partly because they
didn’t want the case to go forward. And it took like months before we
were even remotely knowledgeable enough and savvy enough to be able
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to see the holes in what the intelligence committee was telling us . . . .
So Frank works on it for two days, he comes back, said all of this stuff
came out in the Pike and Church hearings back in 1975. It’s good to go.
So I told that to the defense lawyers and told it to Judge Bryant because
he had ruled that it wasn’t usable by the defense, and I said we’ve
looked into this and we think it is incorrect on our part and that this
should be made available. And that sort of switched the mood. I mean
they, I think the defense lawyers stopped thinking we were using this as
an excuse to deny them evidence and the judge I think got the
impression that we were serious and we were going to try this case.
MS. CAVANAGH: Did you discuss, were there ever plea discussions?
MR. NIELDS: Um-um.
MS. CAVANAGH: No.
MR. NIELDS: Oh, I can’t remember, somebody may have offered or broached pleading
to a misdemeanor. There was a misdemeanor on the books. And we
thought that was not this case. It was not designed for this case. It was
designed for something — and this was the FBI doing something that it
knew was illegal, it didn’t know that it was wrong in some sense, I mean
they got medals but they knew that neither the public nor the courts
would tolerate it if they found out about it. And so they kept it secret
and falsified their internal documents. And it was stupid. I mean one of
the things about this was they had no probable cause and never found
anything.
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MS. CAVANAGH: You mean they didn’t find anything against the Weather Underground as
a result of the —
MR. NIELDS: They didn’t find a single clue and they didn’t find their whereabouts and
they didn’t find any evidence against them. I mean these were innocent
human beings whose houses they were going into and reading all their
personal information and it was sort of funny, one of the guys they did a
bag job on was named Leonard Machtinger, he was a partner at a
medium-sized New York law firm, and a reputable one, and his brother
was Howard Machtinger and he was a Weatherman who had done some
bad things. And they broke into his house and they found some cards
which they photographed. And they had some funny writing on them
which they thought might be code. And they sent it to the FBI cryptoanalysis group and when the trial actually happened and Leonard
Machtinger came down, and he must have known, we must have given
him copies of what had been taken from his house, and he brought down
the actual cards and the cards were cards that he had because he was
learning Hebrew. And the weird crypto-analysis, you know the thing
that needed crypto-analysis, was Hebrew. And it didn’t look like regular
writing. But if you want to know what it meant all you had to turn it
over.
MS. CAVANAGH: It’s like a flash card.
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MR. NIELDS: It was a flash card! So the FBI seizes all this stuff and sends it all to its
lab. All they had to do was turn it over if they wanted to know what it
said.
MS. CAVANAGH: But the law enforcement community, was it supportive of Felt and
Miller?
MR. NIELDS: Mm-hmm. Yeah, very strongly. And the FBI was assigned to our case
and that was a very interesting dynamic. By the time we were going to
trial there was just one guy and one supervisor. But they were
definitely, wow — they were definitely hoping that they could help get
the case thrown out or withdrawn. But reluctantly they would do the
dirty work about piling up documents, getting the redactions done, and,
sorry but while I’m on this, and then I’ll get off this graymail thing
completely — we got, somewhere toward the middle of the summer
before trial, and there was one outstanding issue of some size that went
all the way to the White House, to the President for a decision. The
defendants wanted to do something, use some piece of information, and
our, the intelligence agencies were really strongly against it, and so it
was all right, do we drop the case or do we go forward? And it was a
Presidential decision and Lloyd Cutler was the White House counsel and
he eventually said, we will — we had a meeting and he looked me in the
eye and he said, the judge had ruled that they were entitled to it. That’s
where we were. And Cutler said to me, you — we’re going to go
forward with the case. The President wants to go forward with the case.
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But we want you to go back and make a motion to reconsider before
Judge Bryant. And I’m like, this judge is bleeding justice and he has
agonized over this and he’s made this ruling. I really don’t want to go
back. I don’t remember if I said that to Lloyd Cutler or Bob Keuch who
was the kind of DOJ guy who was kind of looking over my shoulder. I
think maybe I just said to Bob Keuch — I nodded to Cutler and then I
said Bob we’re not going to do that. And he said oh yes you are.
And so I went back to court and I made orally what for me was an
acutely painful request for the judge to reconsider. And after I had made
it, and I think he knew it was acutely painful, I walked back to the table
in the courtroom and sat down and Frank Martin says, [whispering] “He
thinks you’re going to drop the case if he doesn’t rule for you.” And I
look up at him. And I was doing it — it was painful but what was
painful was that I was even asking him. I was like expecting him to rule
no, of course I’m going to stick to my guns and fine, Judge, let’s go to
trial. And I look up at him and he’s sitting there like that [head back and
eyes shut]. And I said to myself I’m not going to mislead this man. So I
went up and I said, “Your Honor, we do press our motion but if you
deny it we will try this case.”
“Denied!”
MS. CAVANAGH: Was anyone upset with you for signaling your —
MR. NIELDS: Well, nobody was there. Nobody was there.
MS. CAVANAGH: Okay.
112
MR. NIELDS: Nobody was there but me, but—
MS. CAVANAGH: You made that a lot easier for him. For Judge Bryant.
MR. NIELDS: Oh, no, I mean once I saw what, I mean, I —
MS. CAVANAGH: Sure. Oh my goodness.
MR. NIELDS: And then they never did, the defendants never did what they were
threatening to do.
MS. CAVANAGH: Really?
MR. NIELDS: And, nor would I have done it in their — it mean it actually would have
caused at least a slight real problem. Now there was a lot of baloney
problems but it would have caused at least a slight problem and it would
have benefitted them hardly at all.
MS. CAVANAGH: Do you want to talk about the trial a little bit? Former President Nixon
appeared as a witness? Is that right?
MR. NIELDS: Yes, yes. So the first thing you need to know about the trial is, it lasted
about a little short of two months. And from almost the first witness we
were, it was almost a no holds barred trial. The defendants opened the
door as wide as they could have opened it to permit us to explore both
factual and legal issues in front of the jury. I was reading Supreme
Court cases to witness after witness. They called a guy named Bob
Blakey who had written the federal wiretap statute and they got him to
testify that he believes that the searches were lawful, national security
searches. I can’t remember what his theory was, but I had been told by
Frank Martin that “Blakey might be the only guy who knows more about
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the Fourth Amendment than you do.” So I took great pleasure in crossexamining him. And the ethos as well as the logos were with me and
when I got done cross-examining him — it’s one of my proudest
moments in court — I sat down. The defense lawyer got up and said,
“now Mr. Blakey, it is still your opinion that these were lawful
searches.” And he said, “Yes. I shudder when I say it, but yes.”
MS. CAVANAGH: But there was a lot of testimony like that, right?
MR. NIELDS: There was a ton of testimony. I mean the first witness was Bill Gardner
who had found the Felt and Miller authorizations to do the bag jobs.
And they went after him in various kinds of ways and I started showing
him Supreme Court cases. And reading them to him. And Justice
Jackson’s opinions are just lovely, I mean, you know he had just come
back from the Nuremberg trials and he wrote in a Supreme Court
opinion regarding the Fourth Amendment, “I protest, these are not mere
second-class rights, but belong in the catalogue of fundamental
freedoms.” And the jury got a full education on what the Fourth
Amendment was about. Even “the poorest man may in his cottage, bid
defiance to all the forces of the Crown” made an appearance several
times through my questioning. That’s the quote from William Pitt
which Sam Ervin was wont to use in the Watergate hearings, I guess
when they were dealing with the burglars, the plumbers, excuse me. The
plumbers.
114
MS. CAVANAGH: But what did the defense argue? What was basically their position? I
mean I guess some of the witnesses, right, claimed that they hadn’t
authorized any of the break-ins. But my impression from reading about
it is there was a lot of testimony along the lines of, these kinds of black
bag actions were commonplace.
MR. NIELDS: There was a lot of that. I mean there were, obviously the Weathermen
are a major focus for the defendants and the terrible things that they did
and they were just trying to do their job and enforce the law and
prosecute the guilty and that they believe, they put on a bogus defense, I
mean bogus in the sense it was so contradicted by what they had done at
the time but they had an expert come in and take all of the classified
information about the Weathermen and testify that in his opinion they
were agents of foreign powers. And there was, it’s not completely made
up. They had Weathermen meeting with foreign powers, or enemies,
but they were not, they were us. They were Americans who were mad at
the American government. They were not somebody else’s. They tried
to make these techniques i.e., bag jobs seem as commonplace as they
possibly could.
Sorry, I’ve lost my —
Oh, so there was one witness they called who was a little bit scary.
Their defense was, we didn’t think we were doing anything wrong. We
thought we were doing good, not bad. And they had one guy who was
— I’d never seen him before, I mean he’d just, almost all the witnesses
115
were cold unless they’d been in the grand jury, but there were a lot of
them that I’d never seen before. This guy gets up there and he’s all
business. I mean he is all business. He has got no ambiguity in his mind
at all about what he’d done and he starts talking about the bag jobs that
he’s done and here’s how we did this, and I’m listening to him and I’m
first thinking, you know, this is not, I don’t like the way this guy —
because the agents who’d been inside people’s homes you could tell it
felt more like burglary to them than it felt like law enforcement. It just
felt — and I think that’s why we won the case as much – I mean that’s a
huge reason why we won the case. It felt like burglary. Once you had
those guys inside other people’s houses and looking at their personal
stuff and turning their bed clothes over and copying all their documents,
but, so this guy is like just all business. And then suddenly something
occurred to me toward the end of his testimony. And when he stopped,
and I’m pretty sure I didn’t move from my chair, I just stood up and
said, were you inside people’s homes when you did this? “Oh, no!!” It
was like that. It was like oh no! Thank you. No further questions.
MS. CAVANAGH: Nothing that terrible.
MR. NIELDS: Exactly. I mean it was all body language and tone of voice but it was
like he —
MS. CAVANAGH: That’s funny.
MR. NIELDS: It was –
MS. CAVANAGH: Did you cross-examine Nixon?
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MR. NIELDS: Well I called Nixon. I called Nixon, Mitchell, Kleindienst, Katzenbach,
and Ramsey Clark. And I did it in my rebuttal case. So the case ends,
they were the ones who put Nixon and all these other people into the
mix pre-trial, and they, I thought this was just grandstanding. I mean
what the hell did Nixon have to do with this case? But I realized as the
case was ending that there was a lingering feeling in the air that the
people above these folks in the government were not against what they
were doing. And I actually believed, I had some ambivalence about this
case myself when I first took it. I remember my father said I’m not sure
you’re on the right side of this case. And it isn’t, was this right conduct
or wrong conduct? It was wrong conduct. It was unlawful. But you
know it’s sort of like, well, why didn’t somebody just take away their
pensions or give them a demotion. Why is this in federal court? And I
came to understand in the process of going through the trial and the
importance of relying on Supreme Court precedent brought home to me
that the only place this kind of behavior was going to get condemned is
in a court. And that there was no one above them who was going to rap
their knuckles — or maybe they would just rap their knuckles and
nothing more. And so that was one thing. And the other thing was, it
was deadly that I left unanswered whether these two guys were indeed
the highest people in the U.S. government responsible for what they’d
done.
117
So I — and believe me I agonized about this. I mean I sweated
over it and, because I knew that Nixon at least and probably all of them,
and Katzenbach was in some ways the worst because he — I’ll tell you
about him in a minute, but anyway all of them except Ramsey Clark
were going to testify that they thought what these guys did was lawful.
MS. CAVANAGH: Lawful.
MR. NIELDS: Lawful. All of them. And when I finally made up my mind I suddenly
felt okay again. And so when these people were all done, and Nixon
was the, no I guess Katzenbach was the last, but Nixon was certainly a
crescendo, I asked him about seven or eight questions on direct and
established that he had approved the Houston plan which contained
surreptitious entry in it, and had a week later withdrawn his approval of
the Huston Plan because Mitchell came to him and said the public’s
never going to stand for this if they find out what you did. And he said
that from the witness stand. And I asked him then did you ever
authorize or know about any of the bag jobs in this case and he said no.
And I got essentially the same testimony from others. Then I sat down
and he was cross-examined for a couple of hours and rushed into the
defendants’ arms and sort of said everything that they wanted him to
say. And I stood up and said, what is the body in this country that gets
the final say on what the Constitution means? And he said, the Supreme
Court. And I said and if the President and the Supreme Court disagree
about a question of constitutional interpretation, who wins? And he
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said, the Supreme Court. And I knew he was going to say that because
he had said it during Watergate. Right? And the jury knew by that time
what the Supreme Court had said about all of this stuff. They knew
when Nixon was talking that he was saying something that was
completely contradictory to what they’d heard the Supreme Court was
saying.
MS. CAVANAGH: So the jury found them guilty?
MR. NIELDS: The jury found them guilty.
MS. CAVANAGH: Now they were ordered to pay a fine instead of go to prison. Tell me
about that.
MR. NIELDS: I thought that was just fine.
MS. CAVANAGH: You did.
MR. NIELDS: Yeah. I mean I thought the principle of it was just enormously
important. I thought that they were, although they were the highest
people responsible for what happened and they did start it up after
Hoover had figured out that this was no longer an okay thing to do, it
was government, it was the government that had overstepped. It was the
FBI that had overstepped more than it was these two human beings. I
mean they were carrying forward a tradition that had lasted a long time,
and they thought, they were mixed up in their heads about whether they
were keeping this secret because somehow or another they were engaged
in classified intelligence work or whether it was because they knew they
were violating the law and if people found out they would be in trouble.
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I just felt their guilt, their personal guilt was mitigated by the fact that
they lived a life where they got awards for doing bag jobs, you know,
behind the wall of secrecy. Anyway I didn’t —
MS. CAVANAGH: Interesting parallels later with Oliver North. We’ll talk about that later.
So there was an appeal, they appealed the verdict, but they were
pardoned?
MR. NIELDS: They were pardoned, which was an outrage. I mean it was —
MS. CAVANAGH: President Reagan pardoned them.
MR. NIELDS: President Reagan pardoned them. He did not follow the pardon process
at all. He didn’t read the record. He knew nothing about the facts of the
case. And he pardoned them announcing that they were innocent.
MS. CAVANAGH: Typically, just for background, typically when the President considers a
pardon the President talks to prosecutors, consults with prosecutors.
MR. NIELDS: Well, probably what’s typical is that there’s a pardon attorney whose job
it is to vet every application for a pardon, and that involves finding out
what the prosecutors think, what the evidence was, what the mitigating
factors are, and then does a careful report. But the prosecutors clearly
are expected to be a major voice in the decision. And then the President
gets that and I don’t know exactly who he talks to or she talks to. But it
always involves a careful process that results in written paper
summarizing the results of that process. And then and only then does
the President come in and make a decision. And here it was just totally
political.
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MS. CAVANAGH: Was there public reaction to it, or was the public moved on at that point
to —
MR. NIELDS: Well, I had a very strong reaction to it on television.
MS. CAVANAGH: I read about it.
MR. NIELDS: And I think one of my colleagues wrote an op-ed piece, but no, there
wasn’t a terribly strong reaction to it, I guess.
MS. CAVANAGH: We should probably wrap up for today in a minute.
MR. NIELDS: Yeah, my god, we’re going to both die of starvation. And it’s also going
to snow.
MS. CAVANAGH: That’s true, that’s true. It is going to snow. I do want to ask you one
more question related to that that we just talked about. What was it like
having sort of media attention on you? And I know it was probably not
at the level of what we’re going to talk about later. But was there a lot
of press scrutiny of you, were you, was that invasive? What was it like?
MR. NIELDS: There wasn’t any, it was a trivial amount of attention. I remember my
opening statement of which I’m quite proud, I think I established I was
the patriot and they weren’t, and I think that’s what I needed to do, and
so I read happily about that [my opening statement in the press]. And I
do also remember that Fred Graham got on TV after I’d called Nixon
and said it was a desperation move by the prosecution and they clearly
think they’re going to lose the case. And I’m walking down the street
thinking I just won the case doing that.
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MS. CAVANAGH: Did the press circle back to you later when it came out that Mark Felt
was Deep Throat?
MR. NIELDS: I wrote some sort of an op-ed piece —
MS. CAVANAGH: I didn’t see that.
MR. NIELDS: I’m pretty sure I did right at about that time. I think I got calls from the
press, I’m pretty sure I did. In my mind it was just a mild
disappointment that Deep Throat turned out to be somebody who was
not engaged in some horrible sort of high-minded moral conflict
between duty to person and duty to country. It was just Mark Felt. He
was mad that he hadn’t been made FBI director. And I knew that he
might be — I mean I knew he was one of the people that had been talked
about as a possible Deep Throat.
MS. CAVANAGH: Okay. I think we’ll finish it up for today.
MR. NIELDS: Good. Good, good, good, good. I’m sorry, I was very long-winded but
you’re pushing —
MS. CAVANAGH: No, it’s great. Just make sure we stopped.
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ORAL HISTORY OF JOHN W. NIELDS, JR.
Third Interview
April 24, 2018
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 Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place at Covington & Burling on Tuesday,
April 24, 2018. This is the third interview.
MS. CAVANAGH: John, last time we met we were talking about the case against Mark Felt
and Miller and I think you had a little bit you wanted to add to our
discussion from that time.
MR. NIELDS: I just wanted to mention the victims of the bag jobs. There were five
victims. There were maybe seven or eight bag jobs, but on five victim
homes. And one of them Jennifer Dohrn, who was a sister of Bernadine
Dohrn, who was a really major Weatherman … nasty player. I think she
may have redeemed herself somehow. I can’t quite remember. But
anyway, I did not call her, Jennifer Dorn. The other four I did. One of
them Leonard Machtinger was a lawyer at a reputable New York law firm,
that was not an issue. One was, I think her name was Frances Carol
Schrieberg, she was a lawyer for several Weathermen, unrelated to my
case exactly. That was fine and she was a terrific witness. The two I want
to talk about are the other two. One of them was Ben Cohen. He lived in
a town in the Newark area of New Jersey, a small town. And I went up to
interview him for the first time and I remember it must have been like
December 21st because I was with my family going to where my parents
and my childrens’ grandparents lived in Long Island. I can’t believe I did
this, but I left them in the car with my wife while I went inside to
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interview Ben Cohen. It was a preliminary interview. It was a first
meeting. So I went into their house. He had a wife, I’ve forgotten her
name. There was no furniture in the house. There was a wooden table
that was a stick kind of table and there were 2 or 3 wood chairs and they
were stick chairs. And I learned very soon after that that they had a
daughter. The daughter was a so-called Weatherman. They had been
completely unaware of any bag jobs. But the FBI had come around
looking for their daughter. They were so ashamed that they moved houses
immediately, which was into the house they were in when I saw them.
The wife had never left the house in the 4 or 5 years since. She had been a
librarian at the local library and she had never been outside of her house
since the FBI came around. Ben Cohen did not want to testify. He told
me he would not testify. And he had various reasons. There were
hundreds of reasons. He came down once to meet with Phil Heyman, who
was head of the Criminal Division and he met with Charles Renfrew, who
was then Deputy Attorney General. He came to tell them/plead with them
that he wouldn’t testify. He was sort of unclear which of these things he
was doing: make his case as to why he shouldn’t testify or announce his
decision. The issue did not get resolved ever until mid-trial. I think I
subpoenaed him so he knew he had to show up. When his turn came to
testify, and I knew this was going to happen, he wanted to talk to the
judge, which he did at sidebar. He told the judge he thought he was going
to have a heart attack and that he wasn’t medically able to testify and gave
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a few other of his litany of reasons why he shouldn’t testify. I really
wanted him. I wanted the jury to see this man. Judge Bryant then called
me up without Ben Cohen there and said what’s going on. I said, I think
he’s scared to death. He said, I don’t want him to have a heart attack. I
said I don’t think he’s going to have a heart attack and I think if he doesn’t
testify he’s never going to get through this.
MS. CAVANAGH: Was it cathartic?
MR. NIELDS: Exactly.
MS. CAVANAGH: He needed to be heard?
MR. NIELDS: I don’t think he needed to be heard. He was just afraid of it. It’s like
letting a child not go down a waterslide.
MS. CAVANAGH: He needed to push through.
MR. NIELDS: He needed to push through. I just felt that very strongly. Judge Bryant
looks at me for a long time. I had a certain amount of credibility with him
by that time. He said well I’m going to send him down to the nurse. If the
nurse says he’s medically able, then I’m going to tell him he has to testify.
MS. CAVANAGH: And?
MR. NIELDS: The nurse said he was able.
MS. CAVANAGH: [laughing] You got the medical all clear.
MR. NIELDS: So he gets on the witness stand and he testified on direct with his eyes
closed 100% of the time. And he would give very short answers. He
sometime referred to his daughter as… what did he call her… he wouldn’t
mention her name. “Certain persons,” he would refer to her as “certain
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persons.” Then on cross-examination, which I knew he was going to do,
he said he would have told the FBI he had “no objection to the FBI
coming to my house, I would have invited them in for tea.” In summation
I told the jury they didn’t have to believe that. I had something in the
record, I’ve forgotten what it was, I didn’t want to get personal, but there
was something in the record that showed that his life had been altered by
this whole situation. When he finished, I think I came back with a couple
of short questions and I said no further questions. He opened his eyes like
that. He gets out of his chair, I sit down in mine, he walks up to my chair
and looks at me and in a loud voice said, “See you next time.” And he
walked out the back. When I saw him out in the hallway when we had a
recess, he said “I was great wasn’t I.”
MS. CAVANAGH: So it did help him.
MR. NIELDS: It totally helped him. And they could see this guy. If there was a human
being on the face of the earth who was less of a threat to our national
security than Ben Cohen, you would have to make him up.
Then the other one was Murray Bookchin, who was a self-styled
anarchist, which simply meant that he was a pacifist. He was a professor
at Ramapo College in Northern New Jersey. He lived in New York at the
time of the bag jobs. But he had moved up to New Jersey. And when I
contacted him and every time I spoke to him and I think I only spoke to
him by phone, I don’t think I met him before he testified. He told me I’m
going to take the 5th Amendment, the 1st Amendment, the 9th
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Amendment and any other Amendment and I will refuse to answer any
questions. He thought the government, and I was part of the government,
and that we were scary people and we were going to do him harm. I don’t
think he really distinguished between the FBI and …. He was a smart
man, he was interested in government obviously, governmental issues. So
I started the trial without knowing whether I was going to get him. So
here’s the ….. part. I decided very shortly before the trial began I needed
to be the patriot in the room and that I was at real risk of not being the
patriot in the room. I was sure the defendants were going to wrap
themselves in their life of public service, and they were entitled to do this.
I closed my opening statement with two-pages worth. See attached at
pages 692-694.P0F
1
P And the point of this is that it was covered in the New
York Times. There was a reporter that, Robert Pear, I think his name was.
He wrote a lot of this what you’re just reading now. He wrote down in his
article. I get a call the next morning from Murray Bookchin, and he said
“I read your statement, I’m coming.”
MS. CAVANAGH: He was persuaded. That’s fantastic.
MR. NIELDS: And I will say, I thought this won me the case. I thought I was going to
win after I got that off my chest . . .
MS. CAVANAGH: “The Bill of Rights represents the deepest and highest aspirations of the
American people.” I think this is fantastic. How do you work on
something like this?

1 See attached Exhibit 1.
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MR. NIELDS: I’ll tell you but you’ve got to finish reading it.
MS. CAVANAGH: Okay. “No to bag jobs, no to anonymous sources, not here, not in
America, not in the finest country in the world.” You did paint yourself as
a patriot, quite accurately.
MR. NIELDS: I’m not going to go into this. It’s too long of a story. But in answer to
your question, this particular thing I happen to be …. I’m not going to be
able to talk about this. Let me think about how to explain it to you later.
But it was … I talked to one of my parents and said I’ve got a problem and
I haven’t figured out how to deal with it. And my parent said just do it. I
said yeah, that’s right I should. And then it just kind of came. I spent a lot
of time on this opening statement and I had time because the jury selection
took about 3 or 4 days and I wasn’t doing much other than churning my
own…
MS. CAVANAGH: So you really set the tone at the beginning.
MR. NIELDS: I thought I successfully did, and the defense lawyer who got up right after
I spoke….
MS. CAVANAGH: Tough act to follow.
MR. NIELDS: Made the following statement within the first 2 minutes of his opening to
the jury. “Don’t kowtow to the United States Constitution.”
MS. CAVANAGH: Doesn’t seem like a wise strategy. Strange.
MR. NIELDS: But he was mad at what I had just done. And so he . . .
MS. CAVANAGH: It stole his thunder.
MR. NIELDS: Yeah.
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MS. CAVANAGH: Because he wanted to argue, I’m sure, that they were the patriots, right.
MR. NIELDS: Absolutely.
MS. CAVANAGH: And that’s a difficult argument to make after that.
MR. NIELDS: So okay, now we’ll get to some more interesting things on the opposite
end of this success spectrum.
MS. CAVANAGH: No, we have more success here. You in 1983 successfully argued against
the Reagan Administration’s plan to require parents to be notified when
their daughters received birth control from federally funded family
planning clinics. Do you want to talk what that was about?
MR. NIELDS: Sure, well about what you just said, the Reagan Administration didn’t like
the fact that family planning clinics that were funded by the federal
government were counselling young girls and young women on and
prescribing birth control. So instead of abstinence they were encouraging
sex in the minds of some. The Reagan Administration didn’t like it and
they wanted to prohibit it. They passed a regulation that federally funded
family planning clinics or just whatever, I don’t think they were all family
planning even, but maybe most of them were. They didn’t like the fact
that they were doing this and so they passed a regulation, not a law, but a
regulation that forbade it without notification to a parent of the child that
they were counselling on birth control.
MS. CAVANAGH: That was an HHS regulation?
MR. NIELDS: HHS regulation. So somebody in my law firm had a husband who was an
important person in an organization whose acronym I can pronounce. It
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was NFPRHA (National Family Planning Health Reproductive something
else)
MS. CAVANAGH: I have it as National Family Planning and Reproductive Health
Association.
MR. NIELDS: You got it, you got it, that’s it. Now, Planned Parenthood was a co-party.
I got asked by the woman whose husband was big in NFPRHA if I would
do it and I said I would be delighted to do it and the firm was happy to
have me do it.
MS. CAVANAGH: Pro bono?
MR. NIELDS: Oh yeah, pro bono. The reason I thought we could win the case was that
there was a colossal amount of legislative history consisting of bills that
were proposed on the floor of the House of Representatives to achieve
exactly what the regulations sought to achieve and it got voted down by
Congress over and over again. And it got voted down with people like
Committee Chairs and stuff like that giving eloquent speeches saying that
it had been demonstrated over and over again, you do this and the young
women will not come. They would go wax eloquent about the drain on
our governmental welfare programs from the cost of children whose
mothers wish that they had never had them. These were eloquent. I
remember Richardson Pryer who was a very well-respected
Congressperson. Anyway I thought there’s a very strong case here that
the regulation, which is passed by the Executive Branch, is contrary to the
will of Congress. The counsel for Planned Parenthood wanted a
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constitutional argument. I said that’s really fine. I’d love to have you do
that constitutional argument and I’ll do this one. There was a wonderful
record that had been generated because as part of the process of proposing
a regulation like this you’ve got to give public notice and you got to get
comment, notice and comment and all that sort of stuff. There were 40
state governments that commented on this. And I would let you take a
guess as to what the split was between against the regulation or pro.
MS. CAVANAGH: I bet southern states were opposed to your argument.
MR. NIELDS: 40 to 0 against the proposed regulation.
MS. CAVANAGH: Really. So none of those places filed anything in support of the
regulation. Oh gosh, I figured there were 10 on the other side.
MR. NIELDS: No, exactly and I would have actually thought it would be 50/50. It was
perplexing to me. And I finally think I figured out what was going on.
The family planning, the comments were made, that they were written,
generated by the governmental entities that would be administering the
program. And those people were all motivated in a completely different
way than the politicians were. They were living, the need to help poor
women who were between the ages of whatever, 15 and 19, and they knew
they were going to be able to help them only if they were able to do this
and that the women wouldn’t ask for it and if they did their parents would
forbid it.
MS. CAVANAGH: So you were representing this client both in the district court and in the
appellate court? Can you talk a little about the details of that?
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MR. NIELDS: I only remember arguing a summary judgment motion before I think it
was Judge [Thomas] Flannery, who was Irish-Catholic I think. All I did
was read legislative history. I stood there and read legislative history.
Quoting it and giving a one-sentence description of what the bill was that
they were commenting on. I remember sitting down and the government
lawyer stood up and started making an argument. He [Judge Flannery]
said but what do you have to say about all this stuff I just heard. What am
I supposed to do with it. So he ruled for us. [Planned Parenthood Fed’n
of Am., Inc. v. Schweiker, 559 F. Supp. 658 (D.D.C. 1983).] And I think it
must have gone up on appeal. It got affirmed, his decision got affirmed.
[Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650 (D.C.
Cir. 1983).] But I have no recollection of the argument or who the judges
were even.
MS. CAVANAGH: There was more press coverage of the district court decision.
MR. NIELDS: It’s possible the government never appealed. I don’t know why I don’t
remember it. If there was an appeal and I can’t imagine there wasn’t, it
was an uninteresting one. The work had been done in the district court.
Anyway, that’s the story of that.
MS. CAVANAGH: Did the case receive a lot of media attention?
MR. NIELDS: It depends on what your standards are for a lot. It got covered in the press,
sure. It was thought to be a high-profile case.
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MS. CAVANAGH: You weren’t engaged in the later, there was a lot of later litigation on a
similar issue but with abortion, and those cases tended to turn out
differently.
MR. NIELDS: I was not and I did not develop a relationship with Planned Parenthood or
something like that.
MS. CAVANAGH: So you didn’t do more of those sort of cases later?
MR. NIELDS: Right. That’s the story of that.
MS. CAVANAGH: If it’s all right with you I’d like to hear a bit about your representation of
Mary Treadwell. Maybe we can talk about your involvement with her
legal issues, both in the ‘80s and maybe jump ahead to the ‘90s too and
talk about all of that. There was a lot of local press about her cases. How
did you first get involved with her, how did that come about?
MR. NIELDS: Judge Penn, who was a federal judge in the District of Columbia, might
even had been Chief Judge then, I can’t remember. This would have been
1982, maybe. ’83 was the trial, right?
MS. CAVANAGH: Right. The trial was definitely in 1983. I’m not sure if you were
appointed in ’82 or ’83.
MR. NIELDS: I’m sure it was ’82. It was well in advance of the trial. He called my law
firm. I think he called the managing partner of my law firm, who was Hal
Baker and said we are desperately trying to find somebody to replace, I’m
pretty sure I’m right about this, Deanne Siemer who might then have been
… she had a conflict of some kind and it may be that she’d taken a
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government job. At some point she was general counsel of the
Department of Defense. I had known her before.
MS. CAVANAGH: Was she at Covington or …?
MR. NIELDS: No, no. She might have been at Wilmer. I think she was at Wilmer.
Anyway he wanted somebody to represent Mary Treadwell, essentially
pro bono. I think they paid $10 an hour or something like that. It was a
Criminal Justice Act appointment. So Hal came to me as the only person
at Howrey who ever had anything to do with the criminal law. So I said
fine, I would do it. It was a very complicated case and required huge
amounts of preparation, but what I remember about that whole phase was
there was a time when Mary came to me and said, and I hadn’t really… I
don’t remember when I first met her or how long the meeting was. I know
I did and I know I was perfectly lawyerly and perfectly polite and
perfectly interested in her case. I never didn’t have a case where I wanted
to know everything I could about it. But I remember a point at which she
came and said when do we get to the part where you are working on my
case only. And I’m thinking that’s a very sensible question you just asked
me. And it should have been a month ago. I essentially said, now. You
are absolutely right. There came another time, I’m almost sure there came
another time, where this was expressed, but if it wasn’t it was implied
strongly, when are you going to get to know me. That was a wonderful
process. I had enormous admiration for her. She started, and this will tell
the beginning parts of the case. I think this was in the late 1960s. I may
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screw up something in my historical memory but … She and her then
husband Marion Barry started an organization called Youth Pride or Youth
Pride Inc., often called Pride. And went to the then Secretary of Labor,
Willard Wirtz, and persuaded him to fund them. It could be they went to
him first with a vague idea and he said give me a proposal and I’ll see if I
can get you funding. He was very pro what they were doing. Pride served
young African-American inner-city men. It’s not like they never did
anything for anybody else, but that was what they were about and they got
some money and they bought some uniforms and dressed up these 17, 18,
16, 19 year old unruly kids in uniforms and sent them around the lowest
income part of the inner cities and had them clean up vacant lots and
sweep the streets, and just do something that was productive for people
and learned how to do that, and then it grew over time into almost an
alternative to the public school system that had failed all these guys
completely. They got a building at 14th & U Streets. It was actually a
very nice building, a 3-story building and made that their headquarters for
a decade or more. They educated kids, they taught them how to use
computers, they taught them how to open a bank account and to deposit a
check, they taught them how to go to the dentist and get the medical
attention that they needed and would regret later in life if they didn’t get it
now. Educated them and introduced them to at least a vision of a life that
was productive and not public welfare. One of their graduates, as they
called them, who became a federal judge — Gerald Lee was his name, in
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Virginia. But I met lots of these people who she had, I don’t know what
you want to say, ministered to, served, gotten to know. She was a very
strong person. She had a strong personality, but also a very soft heart.
But she didn’t brook fools gladly. At some point, anyway I learned all of
this by just talking to her and having her introduce me to people who were
around her or had been around her when she was doing all these things.
At some point, mid-70s I think, she decided to take on another major
project. They had some sort of thing where they raised money by putting
advertisements on trash cans around the city.
MS. CAVANAGH: No I didn’t see that. They operated gas stations.
MR. NIELDS: That may be right too. That sounds right. I’d sort of forgotten that.
Where this case begins is she acquired from HUD a housing project called
Clifton Terrace apartments. It had originally been a luxury apartment
building way back when it was first built. Then as the 14th Street corridor
deteriorated it became public housing and run by HUD and it had
deteriorated abysmally under HUD’s supervision. It was really in bad
shape and reeked of poverty and inadequate maintenance. The rents
which I guess came from HUD itself, I can’t remember. All I know is
Mary takes it over. It now is under private ownership.
MS. CAVANAGH: This is P.I. Properties, right. They had a spinoff organization from Pride.
MR. NIELDS: Yes. P.I. Properties. Pride, Inc. Properties. Very good. I couldn’t have
come up with that myself, and this was Clifton Terrace. So they take it
over from HUD. I think there must have been a HUD subsidy. I think
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that’s what it was. So forget rents. I don’t remember if the people who
lived in Clifton Terrace paid some rent themselves, I feel like they must
have.
MS. CAVANAGH: Right. What I have is ultimately, and you’re going to talk about this, but
the allegation was they were siphoning money from the tenants’ rent
payments. So maybe they were subsidized by HUD or Section 8 or
something else.
MR. NIELDS: Yeah, I think that the money coming in was mostly government money
from HUD but I can’t remember whether the tenants also paid some or
whether some tenants paid some or a graduated scale, I just don’t
remember that. All I can tell you that I’m absolutely sure about is that
when HUD ran it, it had the same inflows and outflow imbalance that it
had when Mary Treadwell ran it. And then when they kicked her out and
took it over again, and I fought like hell to get this evidence admitted and
only sort of half won. It was an outrage, given the government’s theory
the case, it was an outrage that I didn’t get this, but HUD was operating at
a bigger loss each year than Mary Treadwell was. So it was not turning
into a whopping success under her, they had a very good beginning and
lots of excitement and then it continued to run down because there wasn’t
as much money coming in as it cost to maintain the apartments in proper
shape. I’m not telling you she was a brillant manager of buildings, I have
no opinion about that. What I am positive about is that nobody could have
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done a good job with the inflows that she was getting from HUD, if that
makes sense.
MS. CAVANAGH: Sure.
MR. NIELDS: So the indictment had 30 counts in it and this isn’t just like 1 count of
fraud with 30 pieces of mail sent in furtherance of it, which is a normal 30
count indictment in a fraud case. There must have been a conspiracy to
defraud the United States count with means conspiracy to defraud HUD.
And then there were a number of counts that, I’m forgetting some of this,
but there were a number of counts that were like monthly reports that had
to filed with HUD and they were called “ABC Reports” and I don’t
remember what the “ABCs” were but they were detailed, trivial reports.
Like how much money came into the laundry room in the last year, or
something like. And there were something like 9 or 10 counts that were
false statements made on these forms to HUD. And they had the wildest
theories of what would constitute something that was a false statement, I
mean they were really loony. There were 3 counts of tax evasion. She
had not file tax returns for some short period of time, I mean relatively
short period of time. But they didn’t charge her with that, they charged
her with evasion, and she was acquitted of all of those and should have
been. I think Mitch Rogovin who had been at one point in time head of
the tax division of the Justice Department, was her private lawyer on a tax
issue and he testified at the trial and he had told her, as she vividly
remembered: “here’s what you do, and do it from now on, and you will
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stay out of trouble: Every single piece of earning you get, put it into the
same bank account and then spend it, however you want to spend it, but
keep a record of how you are spending it. You do that and nobody is ever
going to accuse you of tax evasion.” And she did. And we can prove that
she had done that and there was no effort to evade taxes to conceal income
so that was a happy part of the trial. I cannot tell you what, I just don’t
remember, so that might account for 13 of the 30 counts and there’s
another 17 that I can’t remember. They were all Clifton Terrace related
but they had different theories of criminality to them. She got acquitted of
all of the ones that I can’t remember.
MS. CAVANAGH: Right.
MR. NIELDS: What I thought the charge in the indictment was, and it was a hard to
interpret conspiracy count; but there was a section of it that said the object
of the conspiracy was … and it was essentially misappropriation of funds
for personal benefit. That we found out during the trial that that allegation
came from a bookkeeper name Zellene Laney, who had testified in the
grand jury that Mary had, with regularity, written, I can’t remember if it
was a $1,000 checks or $10,000 checks to cash on the Clifton Terrace
bank account and then walked away with cash, okay. Didn’t happen. We
had all the checks, I can’t remember if we had the check register as well,
but there were no checks written to cash.
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MS. CAVANAGH: One of the newspaper articles said that the allegation was that she used
$2,200 in operating funds to help pay for her wedding ring; it was one of
the claims in the newspaper article.
MR. NIELDS: That rings a vague bell but that was alleged. But there wasn’t any
evidence of it.
MS. CAVANAGH: And there were others indicted as well, right?
MR. NIELDS: And curiously I remember 2 other defendants and one was her sister, Joan
Booth, who admitted that she had collected from the Clifton Terrace bank
account like a $1,000 medical bill . . .
MS. CAVANAGH: I don’t know. I have that she pleaded guilty to conspiracy in tax evasion.
But I didn’t see more details than that.
MR. NIELDS: I think what they had on her was that she paid for a medical bill with
Clifton Terrace money. I can’t remember if she testified. I don’t think she
testified. And I don’t think she was prepared to testify that. Mary
Treadwell knew that she had done that. Or maybe Mary had found out
about it and got really mad at her and made her pay it back or something.
I think that’s what happened.
MS. CAVANAGH: Interesting.
MR. NIELDS: And the other was Robert E. Lee, which is a very peculiar name for an
African-American person, but that was his name. And he had committed
fraud, gotten caught by Mary, and that is a piece of this case that I’m
pretty sure there was fairly strong documentary evidence that this was
something he had done and been very careful to conceal from her. But
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Johnny Mickens, my memory is failing, anyway I’ll get to that later, but
Johnny Mickens I’m pretty sure was our very strong corroborative witness
for Mary on the fact that both Joan and Lee were doing things; she was the
big boss, they felt like little pawns and little sisters and they did stuff
behind her back.
MS. CAVANAGH: Right.
MR. NIELDS: So anyway we tried this case for 5 and half weeks of trial, 5 weeks of trial,
something like that.
MS. CAVANAGH: I read something funny about that. The jury was 8 women and 4 men and
one of press reports reported that they jury was falling asleep during the
prosecutor’s opening statement and Judge Penn had to prompt the federal
marshal to nudge them and he loudly tapped his mike to wake them up.
(laughter)
MR. NIELDS: Well I don’t think this is a particular rare event in a federal trial.
MS. CAVANAGH: Really. But the opening statement . . .
MR. NIELDS: Yeah the opening statement, you’d think they would have been pretty
interested. I can guarantee you nobody was sleeping when Mary was
testifying. She was riveting and heartening. I thought we were winning
the case at every step of the way.
MS. CAVANAGH: Some of the press was harsh on her. You know suggesting that . . .
MR. NIELDS: Oh the press just hated her . . .
MS. CAVANAGH: Her lavish lifestyle.
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MR. NIELDS: Oh lavish lifestyle, give me a break. She was at Garfinckels. She bought
some furs at Garfinckels. Well that was, according to the government, an
absolute outrage. Purporting to work for the interest of these poor men
and women in Clifton Terrace and Youth Pride and she bought a fur at
Garfinckel’s? So we had an expert witness who came in on 501(c)(3) type
organizations, executive director and some sort of evidence about
comparable size of project and organizational scope and mission. That
guy was really convincing, I’ll think of his name in a minute; ends with a
“D”. Anyway he testified and said she’s below average in terms of her
total compensation from all of the Pride organizations for the scope of
what she was doing. And the idea that somebody doing that kind of thing
isn’t allowed to earn enough money to buy a fur?
MS. CAVANAGH: While you mention it, she lived at the Watergate, she drove a Jaguar, she
vacationed in Jamaica.
MR. NIELDS: Well she and Marion Barry went down to Jamaica a couple of times.
MS. CAVANAGH: He wasn’t implicated in any of this?
MR. NIELDS: No he was gone by the time Clifton Terrace, as he said he showed up at
the – after the verdict was in. I was present for him saying, “Mary this is
an outrage. You were always the one who cared about these people, not
me.” Sorry there was something I wanted to say to you and now it’s gone
out of my head.
MS. CAVANAGH: About the trial – you were saying how long the trial was, and maybe it was
4 months or 5 months or something like that.
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MR. NIELDS: No, no, not 4 months or 5 months, 4 weeks or 5 weeks.
MS. CAVANAGH: Right, I’m sorry.
MR. NIELDS: You probably know this, the jury was out, I think 20 days. Well let me get
to the bad part. So I thought we were doing very well. Oh I know what I
wanted to tell you. This is apropos of how outrageous it was for
somebody like Mary to be earning enough money to buy something at
Garfinckel’s. I remember her telling me this and I sort of didn’t believe
her and now I think I do. She said a black person has a disadvantage and
it’s hard being black, it’s harder being a woman. And she meant that, I
think, doing what she was trying to do, that people resented a woman
acting with the sort of presumption of entitled power which she had for
what was in her sphere. That was harder for people to accept than that a
black person would be doing that.
MS. CAVANAGH: It didn’t help that it was a black woman too. Just the combination.
MR. NIELDS: The two clearly was a – and they were – there was one prosecutor who was
a really good guy and there were two that weren’t in my opinion. I’m not
mentioning names, but – and they would write briefs, pretrial briefs, that
would use the phrase “self-aggrandizement” over and over and over again.
Now, first of all, I don’t write briefs that attack somebody’s motives and
personality. I mean sure if somebody – if I were trying a case in which
somebody had stolen a billion dollars I might mention the word greed.
But this was a word that felt to me like code for she’s somebody who
thinks she’s uppity. She’s getting bigger than she’s allowed to be in this
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world. It’s horrible. And, so anyway, the trial goes on and we get to the
end of the defense case and I told the jury about this guy in my opening
statement – that Johnny Mickens was going to come in and he was going
to make sense out of things for you. And a very small problem – I bumped
into a very small problem – as I got into really preparing for his testimony
and getting the last detail about it, and there was a stupid but technical
problem with something that he had done, which I thought was
explainable and not actually a problem, but the government thought it was
a problem. It may have been. I don’t remember whether I found out
about it reading grand jury testimony of his or something like that.
Anyway, it was a problem that made me think there is a downside to
calling him and I think I’m ahead and why do it. So I didn’t. It didn’t feel
right at the time.
MS. CAVANAGH: Did you discuss that with her?
MR. NIELDS: Oh yes. It was a joint decision.
MS. CAVANAGH: She agreed.
MR. NIELDS: Yes we both felt shitty about it right after we decided.
MS. CAVANAGH: Really? Did he want to testify?
MR. NIELDS: Sure. He was there, he wanted to help. He probably knew – it may have
been him who raised the issue with me – this is what they hammered me
with in the grand jury or something like that. And I said oh shit I don’t
need that. Anyway, it was – I mean I’m as ashamed of that as I am proud
of the fact at the end of the FBI case I called three attorneys general and a
144
President all of whom were going to testify that the defendants had acted
legally. That was a nervy decision and I’m proud of it and this was an
absence of nerve decision and I …
MS. CAVANAGH: It’s impossible to know though, right? It’s impossible to know if it would
have been helpful or not.
MR. NIELDS: I don’t have a doubt in my mind. I mean sure is it impossible to know?
Yes everything is impossible to know. But I don’t have ….
MS. CAVANAGH: Right. You really wish you had.
MR. NIELDS: I’m not ambivalent. If I had felt great about it until the verdict came in,
then I might have told you who, but I, it was a bad decision.
MS. CAVANAGH: You’ve been quoted as saying if there was one thing you could change in
your legal career it would be that. Is that still true? Yes.
MR. NIELDS: But I still thought we were going to win.
MS. CAVANAGH: Right.
MR. NIELDS: But I thought we were going to win quickly. And I thought that they
would like Mary Treadwell as much as I did, and nothing had happened in
the trial that, to my mind, would have caused them to dislike her. So 20
days, and every day that went by, both Mary and I were sitting there
saying this is feeling worse and worse and it means that the 30 counts have
really prejudiced our ability to win. We have to win 30 different
arguments and that’s what they’re doing. They are going through this
indictment one count at a time and having a hard time deciding each one.
We’re not likely to win, go 30 for 30. So they come in with a guilty
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verdict on conspiracy and on, I can’t remember, 5 or 6 of the ABC form
false statement.
MS. CAVANAGH: What I have is one count conspiracy, seven counts of making false
statements.
MR. NIELDS: That’s all ABC counts, so seven.
MS. CAVANAGH: And then acquitted on three counts of tax evasion, one count of wire fraud,
and nine counts of making false statements. So that’s what one of the
newspaper articles said.
MR. NIELDS: Well maybe my memory of 30 counts is wrong because I don’t think that
quite adds up to ….
MS. CAVANAGH: Press is sometimes inaccurate ….
MR. NIELDS: Yes. But anyway …
MS. CAVANAGH: They split it. Right.
MR. NIELDS: Seven. Yes, but at the end of the trial, and it was a low moment of my
life, and I don’t know why I did this, but I asked the judge’s permission to
interview the jurors. And he granted it.
MS. CAVANAGH: Wow.
MR. NIELDS: So I interviewed – I may have interviewed more – but there were two that
were really important and one was a guy named Randy Tritell who was a
lawyer at the FTC and the other was the foreman whose name – it’s either
Washington – I think his last name was Washington. And they both told
me that the jury attacked the indictment from the end and they acquitted,
acquitted, acquitted tax counts. Acquitted, acquitted, acquitted, acquitted,
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acquitted, acquitted, acquitted, acquitted, acquitted, acquitted, acquitted,
acquitted, acquitted, acquitted, acquitted. But each time they acquitted, it
got a little harder and the people who were clearly for acquittal, which
included these guys, lost a little bit of sway, and then they get to the ABC
forms and they are incomprehensible. I mean some of the theories were
just silly and others just didn’t have any evidence behind them. But – and
I can’t remember how much I learned from these guys about those counts,
but the way they described it they eventually said, well under a Pinkerton
charge that we’ve been given if those were in furtherance of the
conspiracy, then if there’s any false statement in there, we would convict
her regardless of whether she was responsible directly for it. And so then
they went to the conspiracy and they ended up 8 to 4 for conviction and
these two guys were in the four. They got talked into voting for
conviction because of a document that arose out of the time when Mary
was acquiring Clifton Terrace from HUD and it was going to be under –
they would own it – but under strict supervision by HUD and they would
be under that supervision forever. They had a special kind of ownership.
But somebody on Mary’s side spotted what the document called a legal
loophole through which it might be possible someday to own it outright.
Free of HUD supervision. The jury decided – the four decided well that
did happen and maybe it is a conspiracy to defraud the United States, and
so we’ll go ahead and vote with the prosecution – with the other eight. Of
course obviously it’s not a crime to use a legal loophole.
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MS. CAVANAGH: Right. It’s legal.
MR. NIELDS: But that was neither here nor there. And I used some of that in a way that
I thought was arguably proper, even though generally you are not allowed
to use a conversation with jurors to impeach the jury’s verdict and I wasn’t
trying to do it. I can’t remember how I used it, but the point is the
government found out that I talked to the jurors, but they’d forgotten that I
had gotten permission to do it and they were just getting ready to report
me to the bar or something and I said, hey you might want to read the
transcript before you do that. So that’s my story.
MS. CAVANAGH: Well you know she – you know this of course – but she praised you very
highly even after the verdict.
MR. NIELDS: Oh we remained very good friends.
MS. CAVANAGH: And you drove her to prison.
MR. NIELDS: I did do that.
MS. CAVANAGH: We didn’t talk about her sentence. I have that she was sentenced to three
years and a fine of $40,000 and served 18 months in the federal prison for
women at Alderson, West Virginia and that you drove her.
MR. NIELDS: Yes I did.
MS. CAVANAGH: And she was quoted as saying that was more traumatic for you than for
her.
MR. NIELDS: I think that might be true. Yeah that was painful.
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MS. CAVANAGH: And you spent your 20th anniversary in your office working on her case
and Gail brought Chinese food and the three of you had a wedding
anniversary dinner.
MR. NIELDS: That’s true. That’s a true fact. And my wife remembers it well.
MS. CAVANAGH: I’ll bet. Not in an entirely positive way maybe.
MR. NIELDS: Well but she was very …
MS. CAVANAGH: She understood.
MR. NIELDS: … very supportive of the cause.
MS. CAVANAGH: And then there was an appeal. [United States v. Treadwell, 760 F.2d 327
(D.C. Cir. 1985).]
MR. NIELDS: Oh now that — I’m glad you mentioned that — that infuriated me. So
first of all, I had argued until I was blue in the face with the judge that he
had to instruct the jury that in order to convict under this indictment, that
Mary had to join in a conspiracy whose object was self-enrichment and by
misappropriating funds. He refused to give that instruction. A big
problem with the indictment, the way it was drafted without an instruction
like that, is that you had a huge probability of coming up with a nonunanimous verdict that looked unanimous. I mean the ABC forms are
actually a good example of this because there were, say, eight alleged false
statements on each form. Well supposing the jurors were 10-2 in my favor
on any given false statement but they all agreed that there was a false
statement somewhere in that form. And I don’t remember if I got an
instruction or even bothered to ask for one on the false statements like that
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but I definitely told the judge that the indictment was made duplicitous by
the possibility if you don’t tell them what the conspiracy is so that they
can identify and they can all agree on the same conspiracy, you are at risk
of a non-unanimous verdict that looks unanimous. There was one that was
a trivial little statement in a 501(c)(3) application that was stuffed into the
conspiracy count. There was the “legal loophole” that was stuffed into the
conspiracy count and there were at least five or six other discrete things
and the jury – I know that the jury did not agree on unanimously that she
did what the indictment said was the object of the conspiracy or even
agree to it. So I briefed that post-trial, I’m sure, and I remember arguing
before Judge Penn and he looked a little pale. As I got more and more
clear about what my – he started to understand it better. He got more
uncomfortable but he didn’t set aside the verdict. [United States v.
Treadwell, 594 F. Supp. 831 (D.D.C. 1984).] So then I go up to the court
of appeals and I am as – I cared about the issue because I thought I
understood it and not very many other people did. And we had case law.
You could certainly construct a very intelligible legal argument from cases
that would say, the way this is being handled is duplicitous, makes the
indictment duplicitous. And I argued it on a wintery day and there was
snow and I argued it in front of [Robert] Bork, [Carl] McGowan, and an
empty chair. And the empty chair was Judge [Edwin Allen] Tamm.
Judge Tamm was ex-FBI and he had reversed a case that I argued maybe a
year or year and a half before that for no reason.
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MS. CAVANAGH: Maybe not for no reason. This is coming off the Mark Felt case so maybe
…
MR. NIELDS: That’s what I’m …
MS. CAVANAGH: I jumped ahead.
MR. NIELDS: I mean I don’t usually engage in this kind of suspicion but the fact that he
reversed that other case, I think it was a Sherwood Webster case, and then
I went back and we had a hearing in the lower court and then another court
of appeals basically wrote an opinion that totally contradicted what he had
written in his first opinion and so I ended up winning the case, but with
unnecessary work. I can’t remember if he listened to the oral – if he was
on a remote from his home in the snow, or whether he just listened to the
or claimed to have listened to the – but Bork and McGowan – particularly
Bork, understood the argument. I remember him saying – I mean it was a
dialogue. He got the argument. Like many judges, you look for a way to –
for a long trial, a complicated case – you look for a way to affirm. So I
wasn’t confident that I was going to win with him but I thought I had a
very good chance of winning with him and McGowan. And then I get an
opinion written by Judge Tamm, who wasn’t there. Anyway.
MS. CAVANAGH: Well I think the case said that it was troubling but there was essentially
enough evidence because it was all circumstantial.
MR. NIELDS: Which doesn’t really address the point.
MS. CAVANAGH: No. Not at all. Well I guess you also made an insufficient evidence
argument too, it looks like.
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MR. NIELDS: Oh if I did I didn’t have any hope of winning it. I just ….
MS. CAVANAGH: There was another interesting argument that I’m just curious about that a
document not in evidence was sent to the jury room and it mapped out the
government’s theories of liability in the case including a theory that was
never otherwise mentioned at trial. Somehow this ended up in the jury
room.
MR. NIELDS: Totally forgot that.
MS. CAVANAGH: That’s what I read.
MR. NIELDS: You mean that’s from the briefs or from the —
MS. CAVANAGH: No I think it’s from the opinion.
MR. NIELDS: From the —
MS. CAVANAGH: I think so. I looked at this a while ago but I thought that was interesting
and I guess —
MR. NIELDS: I totally forgot that.
MS. CAVANAGH: Yes, well you have a pretty good memory for a lot of the details. You
can’t remember everything.
MR. NIELDS: Yes.
MS. CAVANAGH: So she serves her time.
MR. NIELDS: She serves her time and as I said I kept in close touch but we both kept in
close touch for a long time after that. Sometimes by phone, sometimes
we’d get together for lunch, and I got to know her niece, Michelle Booth,
who clerked for Judge Emmet Sullivan, I think when he was a Superior
Court judge before he’d been made a federal judge. It might have been
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after he’d been made a federal judge. I’m not sure. But I can’t remember,
but I think she started a charitable organization of her own and I think I
contributed money to it or I may be misremembering. Anyway I
remember having that connection and thinking that she had a very fine
niece. She had a dog too. She had a boxer that she was very fond of and
she was very interested in things political. I mean anything that was going
on in the world politically she’d give me a call to say what do you think
about this, what do you think about that.
MS. CAVANAGH: Well then she kept working in local government when she came out.
MR. NIELDS: She kept working in local government when she came out, up until I guess
the second case, which you are about to ask me about.
MS. CAVANAGH: I am. So I have that she worked for city government as a specialist on
female offenders for the DC Parole Board. She worked in the mayor’s
office of policy for Sharon Pratt Kelly. But then you came to represent
her again in the 90’s.
MR. NIELDS: Yes and it arose out of, I think they’re called ANCs. Am I getting that
right? It’s the neighborhood group. It’s —
MS. CAVANAGH: I don’t have ANCs.
MR. NIELDS: AN –
MS. CAVANAGH: Was Columbia Heights advise – oh yes – Advisory Neighborhood
Commission.
MR. NIELDS: That’s it. Advisory Neighborhood Commission. ANC. There are ANCs
in South Africa too or they used to be I think too. I don’t think it’s the
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same acronym but it might be. Anyway, she was in that quasigovernmental entity for the neighborhood. And she embezzled some
money. As you’ve undoubtedly gathered, I’m totally convinced that she
had done – she committed no crime in the Clifton Terrace scenario. But
that wasn’t true here. She had run on hard times and had a temporary
shortage of money and she misappropriated. So it came to me and I did
everything I could to help her. I drew a – we also involved another lawyer
who we thought was going to have a little bit better sense for the Superior
Court than I. Her name was Nancy Luque. A wonderful lady.
MS. CAVANAGH: This was in front of Judge Henry Greene.
MR. NIELDS: It was in front of Judge Henry Greene who, God bless him, by the time the
whole thing was done, he would like call me up – how is your client? And
even while it was going on it was like – I made no bones about it and
probably crossed a few lines in my support of her as a person, and Henry
Greene just kind of developed a very friendly attitude toward Mary and I
can’t remember exactly what happened. Nancy Luque had predicted five
months in jail and I think that’s what she got.
MS. CAVANAGH: I have that she got four months. That she was sentenced in January 1998
to four months in federal prison after she pled guilty but she could have
received ten years and a $5,000 fine. So.
MR. NIELDS: He also was really accommodating to her in the timing of the service of
the sentence. She had some health issues and she had an operation that
would not be really doable while she was serving her sentence.
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Something like that. I can’t remember the details of it anymore. And
even the prosecutor was, by the time I got done with him, he was like,
took a very friendly attitude towards her.
MS. CAVANAGH: So did you keep in touch with her after that?
MR. NIELDS: Yes. She then moved to Baltimore and I didn’t see her as frequently but I
did continue to have conversations with her every time there was
something and occasionally I just picked up the phone and called her, but
mostly, we had conversations when something in the paper had occurred
or something that she’d heard about had occurred and she just wanted to
have a chat about it. I remember having a conversation with her after now
Chief Justice Roberts confirmation hearings occurred and she was very
impressed with him.
MS. CAVANAGH: Now she passed away a few years ago. Right? In 2012.
MR. NIELDS: She did.
MS. CAVANAGH: Well, did you have anything else you wanted to add about your experience
with her in that case?
MR. NIELDS: No. Either I or you have summarized my feelings about all of that. Other
than to say I was abysmally ignorant about what it would be like to be
African American and what I understand about that, and of course it’s not,
it’s different for every single human being, but whatever I understand
about that, eighty percent of it comes from knowing her. It’s an intimate
relationship, attorney-client, particularly when there is as much to do.
MS. CAVANAGH: Was the firm supportive of how much time you spent?
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MR. NIELDS: Yes. This was hardly the only time I did work we didn’t get paid for, and
not even the most extreme. And the firm was always supportive, every
single time.
MS. CAVANAGH: And you were using other firm employees to work on the case with you.
MR. NIELDS: Well absolutely. I mean you couldn’t do that case by yourself. Sara
Johnson.
MS. CAVANAGH: She was on the brief, right? The appeal, I have.
MR. NIELDS: Yes she was at the trial too. She was there every day. I remember when
the verdict came in and, “the defendant will please rise to hear the verdict”
happened, and I think we all rose at the same time. But it – I remember
distinctly that Sara Johnson wasn’t copying me. And she was standing on
the other side of Mary and she just stood up next to her. Mary was
appreciative. Bob Joseph was the other lawyer I think who did the trial.
And then we had other people to do legal research and stuff like that.
MS. CAVANAGH: Okay. Well we can do one of two things now. We can – one option – we
can sort of step back a bit and during this period, you know, you were
working on other cases that you might want to talk about when you were
at Howrey before 1987. If there’s something you want to talk about now.
Or we can get started at least talking about Iran Contra.
MR. NIELDS: Well if you have got the tolerance from my jabbering, I’d rather save Iran
Contra for when we have time.
MS. CAVANAGH: Okay. Sure.
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MR. NIELDS: And just to cover a few minor, potentially a tiny bit interesting things. So
the actually first – I had a few small things, small cases that just came in to
me that were sort of parallel to the FBI case and happening at the same
time, but I wasn’t able to do much. But when I came back at the end of
the FBI case, one of the things that I worked on – and this isn’t really – the
story isn’t about me at all – but it was the firm had represented Litton
Industries – I’ve forgotten whether anyway Litton – in a major antitrust
case against AT&T. [Litton Sys., Inc. v. AT&T Co., 700 F.2d 785 (2d Cir.
1983).] It had to do with business telephone systems. So Litton and
AT&T were competitors in the business telephone system business. So
this would be like going to a business and supplying them with 500
telephones and connect them up right and so forth. AT&T at that time
owned the network, as you would call it. It was like all the wires that
connect everybody’s telephones to each other, which is pretty much the
way telephones connected, I think, was by wires. AT&T had something
that they called an interface device and they required anybody other than
themselves who made business telephones – or I think any telephone – they
had to buy from AT&T an interface device that allowed them to connect
up to AT&T’s wires that were coming out of their walls. The interface
device cost more than the telephone. So if you were competing with
AT&T, you had to charge the customer for two telephones for every one
that AT&T had to charge them for if the customer bought their business
telephone system.
157
MS. CAVANAGH: Which would make it hard to compete.
MR. NIELDS: It makes it a little hard to compete. AT&T said well nobody – without this
interface device – there’s no telling what kind of damage somebody else’s
telephone system could do to our system. Right? Maybe all the wires
would catch on fire or something. It was complete nonsense. Bill Simon,
who was a life-long – the Simon of Howrey & Simon and he was – I only
had the privilege of being in a courtroom with him two or three times, all
arising out of this matter and what came later. I never heard a better
courtroom lawyer in my life. But he knew the antitrust laws backwards
and forwards and he had longed to bring a case against AT&T all his life
and Litton came along and hired him and they sued under the antitrust
laws. The case resulted in a verdict trebled around $300 million – I think
$340 million with post-trial interest that had accrued as a result of the
appeal. Which was I think the biggest – certainly the biggest antitrust
verdict ever, except for one that MCI won against AT&T for $1 billion
plus. The MCI case got reversed on appeal by the Seventh Circuit because
of the size of the jury verdict. [MCI Communications Co. v. AT&T Co.,
708 F.2d 1081 (7th Cir. 1983).] All right? And I’m mentioning that for a
reason. So I got involved in the case. First because Howrey had engaged
in a bad piece of discovery misconduct and had gotten whacked with a
significant, or the client got whacked with a significant sanction. I
basically wrote the appeal and did some other things too, but I wrote the
appeal. I wrote two pieces of the appeal. One was that piece, because
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AT&T was asking that the whole case get thrown out because of it, and I
wrote a second piece which was the Noerr-Pennington piece. Is that a
familiar name to it?
MS. CAVANAGH: Yes.
MR. NIELDS: So AT&T had filed with the FCC their interface device program that they
had, but all they had done is given the FCC notice of it. The FCC hadn’t
approved it or legislated it so to speak. Anyway, I wrote the answer to
that. These were the two biggest and hardest parts of the appeal. And that
was fairly easy once you – you had to unpack it all, but once you unpacked
it, the argument was really strong that Noerr-Pennington doesn’t protect
these people at all. That this was unilateral conduct, private conduct. And
then the other was tricky but it was going to be fine. At least I had
confidence that it was not a big deal ultimately in terms of any possible
impact on the case. I then had the privilege of being with Bill Simon the
night before his argument where he gave a little bit of it – it wasn’t really a
moot court – and he would say that he didn’t know how to write. So he
asked me to write that part of the brief and this part of the brief. He also
asked other people to write since he “didn’t know how to write.” Baloney.
He would give oral arguments that were in perfect paragraphs. I mean
they were – and perfectly organized and he had a steel trap analytical mind
when it came to the antitrust laws, enormous amounts of experience. He
was the most articulate courtroom lawyer I’ve ever heard and he was a
kind – he would stand up and he knew his stuff so well and he exuded
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confidence and judges would just – like he stood up and started talking and
everybody listened. It was a gift from someplace. So anyway he tells me
the night before the argument. He said, John, the only issue I’m worried
about is damages, because of the MCI case which had already happened.
And he said, in fact, the judge, because he was concerned about that issue,
had screwed me on his damage instruction but I’m still worried about it.
This is a very —
MS. CAVANAGH: Because he’s trying to – he’s worried that it’s going to be too large and it’s
going to be struck down on appeal.
MR. NIELDS: Too large – well yes – or that the case will be decided against him because
of it.
MS. CAVANAGH: I see.
MR. NIELDS: Either one. But I think he was worried about the size of the damage award
probably mainly as an argument about damages getting it reversed and
then you have to have a new trial or something, right? You can’t —
MS. CAVANAGH: Right.
MR. NIELDS: It’s going to totally obliterate the verdict just like it did in the MCI case.
MS. CAVANAGH: I see.
MR. NIELDS: That was interesting to me. Foreign to my way of thinking. I mean this
was a big picture kind of thing. So I go up the next day and sit next to him
in the court of appeals and I knew he believed AT&T had made billions of
dollars on its interface device scheme, and that the verdict was
ridiculously low. That the damage award … But he gives his argument
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on everything else. I remember [James] Oakes was on the panel. Judge
Oakes and I can’t remember who the other two were. He gets to the end
of his argument and I know he’s about to address damages. And he then
prefaces his remarks with something to signal, he was turning to damages
and he said the following words: “Morality aside, this was the smartest
business decision AT&T ever made.” You could feel the words “morality
aside” bouncing off the walls and I said, oh well, that’s the end of that
argument. And you know he had acquired enough credibility and had it
innately. Well it was just over.
MS. CAVANAGH: That’s funny.
MR. NIELDS: That’s one of my favorite moments.
MS. CAVANAGH: What year was that — mid ‘70’s?
MR. NIELDS: No this was – see I came back – the FBI case finished in the end of 1980 so
I was actually really a Howrey & Simon lawyer only starting in early
1981. I mean I joined the firm in ’79. I think I told you about that before
and then I went off to the FBI case immediately.
MS. CAVANAGH: I forgot.
MR. NIELDS: So this would have been – it could have happened before the end of ’81.
More likely it was in ’82.
MS. CAVANAGH: Okay.
MR. NIELDS: Could have been either. And that may be all I want to tell you in this – oh
let me tell you just one other case just because it was a fun case. We got
hired, and this is one of the few things I did in addition to this Litton case,
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that sort of somebody else brought into the firm, and you know maybe
there are some others, but so there is a life insurance company in South
Carolina called Liberty Life. This may not be worth telling you.
MS. CAVANAGH: We have some time.
MR. NIELDS: All right. So Liberty Life Insurance Company was sued by the
Metropolitan Life Insurance Company for stealing all their agents or
stealing a lot of their agents and having the agents take their customers
with them and then substitute Liberty Life Insurance policies for
Metropolitan Life Insurance policies. There was lots of case law.
Anyway, we got hired by Liberty Life Insurance Company and I was
responsible for the case. There was a lawyer named Duncan Whitaker, a
marvelous lawyer here that was, you know, supervising it but he wasn’t
doing the day-to-day work. A guy named Gap [Gaspare] Bono and I did
the day-to-day work and I didn’t know any of this area of law, but it
sounded like, gee, there is going to be a little bit of trouble and Liberty had
taken a lot of their agents away that had probably taken customer lists with
them. Maybe not, I can’t remember whether they taken documents but
they certainly took their clients and switched them over to Liberty Life
Insurance. So fairly early on in the life of the case the first deposition
happens and it’s of an agent in Greenville – no not Greenville – somewhere
in South Carolina. Myrtle Beach or something like that. I remember
going down there and interviewing this guy and then after interviewing I
understood the case better and I understood what he was about better and
162
they take his deposition and get a lot of stuff that would have seemed like
pretty good stuff. I decided, I’m not just leaving this deposition, I’m
going to let them know what they are going to be facing. So I said now
why was it that you left Metropolitan Life Insurance Company? Well, he
said that I was forbidden from switching my customers from the standard
Metropolitan Insurance product (which had an internal rate of return of
2%) to what other companies were making available, which was called
universal life. This was in the era of huge inflation. You know like 16%
interest rates and stuff like that. And I wasn’t allowed to switch them to
universal life even though Metropolitan had some universal life product.
Okay. So then you went to Liberty Life. Yes. So could you tell me of the
conversation that you had with your client that resulted in switching? He
said sure. “I would say you have Metropolitan Life Insurance, here are the
premiums that you are paying, and here’s the cash value that it now has,
and here is the size of the death benefit. And then I would say here is the
Liberty life Insurance universal product that you can buy with the same
premiums.” And I would say, how did you tell them that the death benefit
compared? “Well the Liberty Life was three times as much death benefit
as the — so when you died you got $300,000 instead of $100,000. Or $3
million instead of $1 million.” And how about the cash value? Same
thing. He said, “the cash value would be three times as big right as soon
as you bought the policy.” And then what did your customer say? “He
said they wanted a new policy.” I went over the questions. Right? How
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would you like to have a trial like that happen to you? So settlement
started very soon thereafter.
MS. CAVANAGH: And when was that? Was that early ‘80’s?
MR. NIELDS: That was early ‘80’s. It could have been ‘82, it could have been ‘83. And
the lawyer who was sitting in that room. They had three law firms on that
case. One of them was in Georgia, one of them was in – they filed three
separate cases actually which sort of made no sense. One of them was in
North Carolina and I think this guy was in South Carolina. It’s possible
that I’m wrong, that it was a North Carolina deposition. But whoever it
was, he had had – I’d looked him up – and he’d had a lot of experience
with these kinds of cases. Stealing employees and trade secrets and
customer lists and stuff like that. He never showed up again. Never saw
him. He never made another appearance but there were some wonderful
Southern gentlemen lawyers that wanted to take me out to their country
club and treat me to a meal and talk settlement.
MS. CAVANAGH: So they all ended up settling?
MR. NIELDS: Yes.
MS. CAVANAGH: Okay. Did you have another case that you wanted to —
MR. NIELDS: Well that’s probably enough for now. That’s —
MS. CAVANAGH: So next time we can spend some time on Iran Contra.
MR. NIELDS: Iran Contra.
MS. CAVANAGH: Okay. Well that will be it for today.
MR. NIELDS: That’s great.
164
MS. CAVANAGH: Great.
END OF TAPE
165
ORAL HISTORY OF JOHN W. NIELDS, JR.
Fourth Interview
May 22, 2018
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the D.C. Circuit. The interviewer is Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place at Covington & Burling on Tuesday,
May 22, 2018. This is the fourth interview.
MS. CAVANAGH John, the first thing I guess we were going to talk about today was your
involvement with the Iran-Contra hearings. You were the Chief Counsel
for the House Select Committee to investigate covert arms transactions
with Iran in 1987. Many books have been written about these events. A
lot of the testimony footage is actually available online. Let’s hit the
highlights and you can decide what we should focus on today. For
posterity though, perhaps you can provide some background about what
the Iran-Contra hearings were about.
MR. NIELDS Good, I think the easiest way is to begin when the rest of the world started
to become aware of the underlying events, and that started in early
November of 1986 when a Lebanese newspaper, I think it’s called Al
Shiraa, put out an article that reported that the United States government
had sold arms to Iran and that they had done that to get hostages released
that had been taken by terrorist organizations in Lebanon and which were
in league with Iran. And that we rewarded Iran with arms in order to get
the release of hostages. This was almost unthinkable when the article first
came out. Iran was a sworn enemy of the United States of America. They
had taken our entire embassy hostage in 1980 and bought down one
administration. They were clearly a terrorist country and they were in
166
league with the people that were taking hostages of innocent U.S. citizens
in Lebanon. We had a very firmly or, I should say the Reagan
Administration, the United States government had a very firmly
announced policy that we would not ransom hostages, that we would not
pay ransom for the release of hostages because all that would do would be
to encourage terrorists to take more hostages and then we’d have to
ransom them too. So this was, as I say, unthinkable and the United States
government officially denied it. Said that it was completely false. But the
reports got more persistent and it started becoming clear that there was
something to them. On the nineteenth of November, President Reagan
had a press conference in which he announced that indeed we had sold
arms to Iran in return for release of hostages. He said that that had started
in the beginning of 1986 and he was asked — because there were rumors
that the Israelis had shipped some arms to Iran for the same purpose in
concert with us in late 1985 — and he was asked about that at the press
conference. He said, oh no, we had nothing to do with that. That we
didn’t know anything about it and didn’t have anything to do with it. That
was the Israelis. That statement was false.
MS. CAVANAGH It was false that the U.S. government didn’t know about it?
MR. NIELDS Yes, we were absolutely a part of it and not only did the U.S. government
know about it, Ronald Reagan personally knew about it. Now, whether he
remembered it, that’s a different question, but he absolutely knew about it
when it happened. The investigation made that 100% clear that there were
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two sets of — or two arms shipments, one in September of 1985, one in
November 1985 that the Israelis did, and he approved both and there was
significant United States government involvement in the second.
MS. CAVANAGH They were Israeli arms or U.S. arms?
MR. NIELDS These were arms that the Israeli government had purchased from the U.S.
and the deal was they shipped those arms subject to a promise by the U.S.
government that we would replenish them. The reason that there was this
commotion about, or the false statements about, the Israeli sales is that
people high up in the government believed that these sales were probably
illegal. That they violated the Arms Export Control Act, which is a very
detailed and byzantine thing to try to study, but he had done that and he
thought this likely was illegal. Somehow, once these arm sales to Iran
started to surface in November 1986, Bud McForlane, together with Oliver
North and some people from the CIA, started to put together chronologies
of the events. The chronologies were started off, and I think they started
working on them sometime around the 10th of November, 1986, people
started working on them, and they started off honest and a genuine effort
to try to recount what had happened and who made what decisions and so
forth. McFarlane had told everybody (in substance), “folks, remember
that in the past, people often get into more trouble with the cover-up than
they do with the events and let’s get this accurate,” and then ended up
changing true versions of the Israeli sales and made them false. It is likely
that President Reagan was prepared [for his November 19 press
168
conference] by people who were working with the same chronologies.
I’m not sure whether we know that that exactly happened. So, the
business of the—so the next thing that happens is that on November 21st –
November 19th, the press conference is a Wednesday, November 21st was
a Friday. John Poindexter, who had taken over for Bud McFarland as
National Security Advisor in early 1986, and Bill Casey, the head of the
CIA, both appeared before House and Senate Intelligence Committees on
Friday the 21st. And they were asked about the arms sales in general and
in particular about the Israeli sales because people were not clear or
satisfied that they were getting the straight scoop on that.
MS. CAVANAGH Did the Israelis deny it too?
MR. NIELDS I don’t remember if the Israelis said anything yet. I don’t think they said
anything, at least not at this time period. Eventually, when our
investigation got going, the Israelis sent a detailed chronology. That was
the main source of their information. It was a written chronology. But
Poindexter and Casey were both asked by Congress about the Israeli sales
on Friday, November 21, 1986 and they said we [did not know about these
arms shipments until after the fact]. That was a problematic thing to say
because the CIA — the Israeli plane that was supposed to carry the arms
to Iran in November 1985, these were Hawk anti-aircraft missiles and
there were 18 of them that were sent in November 1985. The Israeli plane
that was supposed to take them [to Iran] had either broken down or wasn’t
available. I think it wasn’t available because of some delays that had
169
happened. So the CIA jumped into the picture and got a proprietary
airline of the CIA to go actually pick up the missiles and take them to Iran.
So you can see this was a problem. So Poindexter and Casey told the
Intelligence Committees that we had provided the airplane, but that we
thought we were picking up “oil drilling equipment.” The Committees
said to Poindexter, “We’d like it if you could go check your files for more
documentation and make that available to us.” And he said, “Yes, of
course I’ll do that.” And he went back into his office (right after the
meeting with the Intelligence Committees), where he had the only copy in
existence of a signed document by the President of the United States,
Ronald Reagan, at the time of the, or shortly after the November 1985
Israeli shipments, which was called a “Finding.” A very, very significant
document in covert actions — there has to be one signed personally by the
President for every covert action that is done and this was a covert action
and the President signed the Finding. Poindexter had taken it [the signed
finding] and put it in his office, not showing the signed finding to anybody
else, and when he went and got back to his office on the afternoon of
November 21st, he ripped it up and threw it away [because it showed that
the President knew full well that our airplane was picking up missiles, not
oil drilling equipment.] Then the next thing that happened is Ed Meese,
the Attorney General, returned from some trip and had gotten wind of the
fact that there was some confusion and inconsistency. There was
something not quite right about the accounting for these Israeli shipments,
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and he said he was going to start a Justice Department investigation,
which would be conducted over that weekend. That’s the 22ndP Pand the
23rd of November. He gave Oliver North a little bit of lead time warning
and Oliver North went back to his offices, told other people what was
coming down the pike, and they started shredding documents. They
shredded, and shredded, and shredded, and then they also went into the
official documents that couldn’t be shredded, because they were
documents that were in official NSC files and they had numbers on them.
They were sequentially numbered and they were in a special place, but a
number of them showed that the NSC had been involved in supporting the
Contras with money and military activities at a time when it was illegal to
do that. They doctored those documents. They made — they crossed out
certain parts and then typed something in its place, xeroxed it and put that
back in the NSC files. But they only got about halfway through that
process when the people from the Justice Department showed up. North
later disappeared with Fawn Hall his secretary with documents in her
underwear.
MS. CAVANAGH Really.
MR. NIELDS Yes really, and so the Attorney General’s people obviously didn’t see a lot
of the documents they would have seen if they have gotten there sooner.
But there was one copy remaining of what later turned out to be several
iterations of the same document, and what the document showed was that
the proceeds from the arm sales to Iran, instead of going to the United
171
States Treasury, had gone into secret Swiss bank accounts under the
control of a former Air Force Major General named Richard Secord and
his private citizen compadre Albert Hakim; and that after going into the
Swiss bank accounts that were under their control, not the United States
government’s control, but they were working with North, the money
(much of it) was then sent to the Contras. So the document proposed that
the Iran arms sales proceeds be “diverted” to the Contra, and so this
document was like a hot document. And it had a place on it for the
President to, I can’t remember whether it was initial or check or sign, and
ostensibly it was something that would be taken to the President and that
he would approve — that became known as the “diversion.” The copy
that was not shredded was not checked or signed, so there was a big
question about whether the President knew about and approved the
diversion. There didn’t seem to be much of a question then as to whether
the “diversion” happened — it happened. And the next day, after the
weekend, which must have been the 24th, might have been the 25th, but
Meese has a press conference and announces that they found this
document and that there has been this diversion of arms sales proceeds to
the Contras and that President Reagan didn’t know about it. I’m satisfied
that Meese did not know whether the President knew about it, but that is
what he said, and that then brought on, this was like head-spinning ….
There had been lots of rumors during the years when the Boland
Amendment forbade the government from supporting the Contras, that the
172
Government was doing it anyway, but North, McFarlane, Poindexter, and
Elliott Abrams from the State Department, all appeared at Congressional
hearings or meetings and gave false testimony about it.
MS. CAVANAGH Previously.
MR. NIELDS Previously, previously. Let’s see if I’ve got it. This is his testimony at the
hearing.
MS. CAVANAGH Whose testimony?
MR. NIELDS North. This is vintage [reading from testimony]: “I will tell you right
now counsel and all the members here gathered that I misled Congress. I
misled.” Question: “at that meeting?” Answer: “at that meeting.”
Question: “face-to-face?” Answer: “face-to-face.” “You made false
statements to them about your activities and support of the Contras?” “I
did.”
MS. CAVANAGH You were clear.
MR. NIELDS But it was also defiant, it was like it was bragging. So anyway that
basically tells you why we had Iran-Contra hearings and it tells you a lot
about what actually happened.
MS. CAVANAGH It’s a really helpful summary.
MR. NIELDS Good, good, good. So then comes the investigation, which obviously is
what I had a part in.
MS. CAVANAGH Now there were also multiple investigations, which is slightly confusing—
maybe you can speak to that a little bit too.
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MR. NIELDS Sure. So let me tell you my part of it just to put it in time and then I will
relate the others to that. So, I think I got a call, anyway there was a House
Select Committee and “Select” means it’s not a standing committee with
normal jurisdiction; it is created for a particular purpose and it disappears
when that purpose has been served, and it was a select committee in the
House to investigate the Iran-Contra affair. And it was made up of mainly
Chairs, or at least the Democratic side of it was made up of Chairs of all of
the other major Committees that might have had jurisdiction: Foreign
Affairs, Armed Services, Government Operations, I’m forgetting some
obvious ones, but ….
MS. CAVANAGH Democrats controlled the House at this point.
MR. NIELDS Democrats controlled the House at that point. Then the Senate set up a
similar committee. The Chair of the House Committee was Lee Hamilton,
one of the finest members of Congress, I think, who ever served—he was
just an extraordinarily smart, and fair, and decent, and measured person,
and he asked me, or somebody on his behalf asked me, if I would be
willing to be the Chief Counsel, and I think that’s because he was on the
Koreagate committee that I had worked on several years before that. And
there were like nine Democrats and six Republicans, and Dick Cheney
was the ranking minority member of our committee, and I thought he was
a perfectly decent force in the hearings and in the investigation before.
The Senate Committee Chair was Daniel Inouye, a Democrat, and the
ranking Republican member was Warren Rudman—and I should say I
174
think Warren Rudman might have been as important a figure in these
Congressional investigations as anybody. I bumped into him in a number
of other contexts and he is a force of nature. A lot of people serve in
important positions in Congress and the fact that they were there probably
didn’t change anything. Warren Rudman always made a difference and
played a … just by force of his personality and the fact that he was
completely centered in what we should be doing. There was not an inch
of difference between what Lee Hamilton thought we should be doing or
Warren Rudman or Daniel Inouye. There was a difference in the House
side. You could tell that Republicans were Republicans and Democrats
were Democrats by the point of view that they came at a lot of things.
You couldn’t tell that at all on the Senate side. It was completely
integrated. Anyway, so the first actual body that investigated the IranContra affair, I think I’m right about this, is the Tower Commission,
which was a commission appointed by President Reagan to find out what
had happened. They did a lot of spade work and I think the fact that they
had been in existence was very helpful in our ability to do our job in a
timely fashion, and I’ll get to that later because that was a non-trivial issue
in my mind and in everybody’s mind. They did a very nice job. They got
their arms around a lot of stuff. They could not figure out whether the
President really knew about the Israeli sales before or after and he said one
thing one time and then another thing another time, and in the end he
ended up saying I don’t know, I don’t really know the answer to what I
175
knew. I believe the same … they also couldn’t figure out whether the
President had signed the finding that I described in November of 1985 that
had to do with the Israeli shipments of Hawks in the CIA proprietary
airline. But a copy of that, or the real original, of that document had been
drafted by Stanley Sporkin, who was General Counsel of the CIA and later
a judge. It was still on his computer hard drive or whatever the right term
was then, and he found it and had it spat out at some point, I think during
the Tower Commission period. So that everybody knew that finding had
been drafted but nobody knew what happened to it after that. I think they
knew it was sent to Poindexter. But nobody knew anything after that and
nobody could find a signed copy of it.
MS. CAVANAGH Meaning no one knew if it ever got to President Reagan.
MR. NIELDS Yes, that’s what I meant. The other investigation, of course that was an
independent counsel—statutory independent counsel, not informally in the
Justice Department like [Robert] Mueller, for example.
MS. CAVANAGH The independent counsel statute still existed.
MR. NIELDS Right. And Lawrence Walsh was the independent counsel and he was
doing a criminal investigation and he was doing it as quickly as he could.
I knew him (only barely) because he had been a partner at Davis Polk, my
first two years out of law school and I was an associate there. And I knew
at least one of the people he chose from Davis Polk to help him with it. So
they were in the mix. They were demanding documents and he got started
before we did. I’m almost sure about that. I don’t know how much
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before, but maybe a month. My memory is that I started working
sometime towards the end of January.
MS. CAVANAGH Of 1987?
MR. NIELDS Of 1987, but I’m hazy on exactly when. And it was at least a month and
maybe longer after I started working before I and my staff had security
clearances. So there was not a whole lot we could do. We knew there was
a stack of documents waiting for us. We could draft subpoenas and I think
I did that. I copied Judge Walsh’s subpoena and then added on to it. He
reportedly was absolutely indignant that somebody would do that to him.
I said you’re not copyrighted. You think I’m a dummy. You’d been
thinking about this and had gathered all the documents to comply with it.
I want the same documents you got and then I want more.
MS. CAVANAGH Looks like a smart move.
MR. NIELDS I thought it was a perfect intelligent thing to do. What do I want to tell
you next. Have I covered the other investigations that you hoped I would
mention?
MS. CAVANAGH You mentioned that there was a House investigation and a Senate
investigation. You haven’t talked about it and I don’t know if you want to
talk about it yet, like who led the Senate investigation, your counterpart.
MR. NIELDS Yes. My counterpart was Arthur Liman, a very smart lawyer from New
York. He had a superb reputation. We had a good working relationship.
When we each were hired, the committees were absolutely clear that they
were going to run two separate investigations and have two separate sets
177
of hearings. That was dumb enough that eventually it didn’t happen. Our
staffs were not exactly integrated but we talked all the time and when it
came time to have the hearings, we totally divided up witnesses in a fair
way. There were four really important witnesses. They were North and
Secord and McFarlane and Poindexter. I was more interested in the
people who were doing things so we got North and Secord, and they were
more interested in the Cabinet level, and they [McFarlane and Poindexter]
weren’t Cabinet level exactly but they were national security advisors. So
they took the lead on Poindexter and McFarlane. Everybody interrogated
everybody at the hearings. Our staffs would each name somebody to do
interrogation at the beginning of the witnesses’ testimony, and then after
one from each staff questioning, then the members would pitch in. That’s
the way the hearings went. Is that about what you wanted?
MS. CAVANAGH I guess my next question would be, do you want to talk a little bit about
what the investigation was like in terms of …. When did the hearing
start?
MR. NIELDS Let me get to that. Let me get to one other thing before I leave the other
outfits because there was one really important place where we intersected
with the independent counsel. I was virtually sure that we were going to
end up having to immunize more than one major witness. Our job was to
get what happened out there so that the public knew what had happened
and what didn’t happen. And if we weren’t able to answer the question
then we weren’t able to answer the question after having done a real
178
thorough job of trying. The country was in turmoil and it needed to be put
out of turmoil. It may be some bad things would happen and then we
needed to know that and needed to figure out how to do better in the
future, and if people speculated that something really awful happened and
it hadn’t, it was important that the public know that too. I thought our job
was more important than the independent counsel’s, which was to put
people in jail. I might have felt different in another context but I thought
the major things that went wrong were more important to our political
system than to our criminal justice system. It was our political system that
had broken down really badly. The public had been told we have this
policy and we had the exact opposite policy, and Congress had been told
that the executive had been following the law that the Congress had passed
and they weren’t. That is unacceptable in our country. I thought whether
Oliver North or somebody else went to jail for six months was not as
important as getting to the bottom of this and doing it with reasonable
expedition.
Now, that was (not only) my idea. The external pressures for expedition
were absolutely intense. If I’m right that we got our security clearances
around the beginning of March, the hearings began May 4th as I recall.
They were originally, when I first came on board, it was like people were
saying we’ll have our hearings start in three weeks or something like that.
That was crazy but May 4th wasn’t very much less crazy. I’m sorry I
interrupted myself on the subject of immunities.
179
One of the first things I recall doing (after discussing it obviously with Lee
Hamilton), was a letter going from us to Walsh telling him, the time is
going to come way sooner than anybody would like when we are likely to
be putting the major people you’re investigating on the witness stand
under immunity, and if you have not gathered your evidence and
documented that you’ve gathered your evidence and documented what it is
before that time, then you’re not going to be able to demonstrate what you
need to demonstrate to try your case, which is that your case is all
untainted by your exposure to immunized testimony.
MS. CAVANAGH Because any of the testimony after the grant of immunity they wouldn’t be
able to use.
MR. NIELDS Not only would they not be able to use that testimony, if they learned a
fact as a result of it, they wouldn’t be able to go find some other way of
proving that fact and they wouldn’t be able to prove what they have to
prove when they’ve been exposed to immunized testimony, which is
affirmatively demonstrate that nothing that they did of any moment
resulted from information they learned from the immunized testimony.
It’s a hard job. They were livid with rage at us.
MS. CAVANAGH They were under a lot of time pressure too.
MR. NIELDS They were under time pressure too. But anyway that was a source of … I
think they are still bitter about the fact that we did go ahead and immunize
Poindexter and North, although that’s another topic for another time and
another day. I thought they made plain use of the big critical piece of
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information that nobody ever would have found out about if we hadn’t
immunized Poindexter, which is: “what happened to the November 1985
Finding and who did that.” I don’t know why they used that against him
but they did. They did it because North, who told us he did not know what
happened to the Finding, purported to remember that Poindexter ripped it
up it later on after Poindexter told the world under immunity that he had
done so.
MS. CAVANAGH Later?
MR. NIELDS Later. [I believe North testified to this at his own criminal trial — well
after the Congressional hearings, but prior to Poindexter’s trial.] And then
they called North as a witness in the Poindexter case. But I don’t think
North would have ever “remembered” that if Poindexter hadn’t testified
about it under immunity.
MS. CAVANAGH Tell me about the decision to grant North and Poindexter immunity.
MR. NIELDS Well the Committee did. The Committees.
MS. CAVANAGH For the purpose of finding out really how high this went?
MR. NIELDS Yes. Even though I’m not sure they told us the truth about what Reagan
knew, I didn’t think you could do this in the way, well, let’s convict North
and Poindexter and then after all their appeals have run then threaten them
with a big jail term if they don’t roll over and testify about Reagan.
MS. CAVANAGH Did this feel familiar to you after doing the bag job case and Mark Felt.
And you’ve got certain people on a lower level, on how far this could go.
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MR. NIELDS Particularly, I think this is kind of normal for prosecutors of all stripes.
The thing that is similar between those two is it’s government. But every
prosecutor wants to know how high it went. If it’s a company you want to
know is it the CEO that was responsible for this or was it someone lower
down or is somebody being a rogue. So that’s not exactly special to my
own experience, but sure, the question I wanted to know was who is the
highest person responsible. And impeachment was in the air. I didn’t
think that Reagan would be impeached even if he knew and I wasn’t at all
convinced that he should be. I thought that was a really extreme thing to
do.
MS. CAVANAGH There’s another interesting question which is, you felt like your role was
trying to get the information out there, as opposed to convicting somebody
or finding somebody guilty of something. What was that like? Because a
lot of your career is litigation and trying to win, right, and here there
wasn’t necessarily a win possible.
MR. NIELDS That’s true but it is also true that in a slightly … what you say is right. My
attitude was a little different than it was as a prosecutor. But it’s also a lot
the same because the way you instinctively go at a potential scandal is
push as hard as you can to find out how bad the scandal was and who did
it. That’s your job, to find out if it happened and then find out who’s
responsible for it.
MS. CAVANAGH You are looking for wrongdoing.
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MR. NIELDS You are looking for wrongdoing. It’s not that you’re hoping to find
wrongdoing. You may be, it’s a little hard to untangle your motivations
sometimes, but you are looking for wrongdoing. And that’s why as a
defense lawyer, I remember my friend Neil Eggleston who was deputy to
me on this and later became White House counsel, said when he
represented somebody, as a defendant and a defense lawyer, you are
always allowed to hate your prosecutor. The prosecutor includes
somebody who is investigating you. Because they are trying as hard as
they can to find out if you’re guilty. And that means generally trying to
push as hard as they can to get evidence of guilt. Now when they fail,
they say fine, I tried hard, and now I’m satisfied this person shouldn’t be
charged. But you can’t be satisfied they shouldn’t be charged if you
haven’t tried to find evidence to convict them.
MS. CAVANAGH That’s interesting.
MR. NIELDS So it is perfectly okay for any person, including any President and I won’t
mention any names, to have a very antagonistic feeling toward whoever is
investigating them. There is nothing abnormal about that. It is a human
reaction and it’s perfectly realistic.
MS. CAVANAGH In terms of the investigation maybe you want to speak a bit about the
process and what that was like.
MR. NIELDS I am really embarrassed to tell you this but the time pressures and volume
of material or something … I can almost remember no specific thing that
happened. There are exceptions to that and I will tell you some of them.
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But I can’t remember sitting in a room and reading documents. I know I
did. I know that the White House sent us over lots of very incriminating
documents, a lot of them having to do with the support of the Contras and
the false statements about the support of the Contras. They built an
airfield, they had airplanes, they had munitions, they dropped them where
they thought the Contra armies were. They raised money from foreign
governments. They raised money from private citizens. Adolph Coors.
We used to call them Contra-butions. And at a time when it was illegal
for them. It wasn’t criminal, there was no criminal statute. The only
statute was an appropriations bill that said no money from any
appropriation may be spent on [supporting the Contras].
MS. CAVANAGH That’s the Boland Amendment?
MR. NIELDS Boland Amendment. This may be a good answer to your question or if
not, a good place to go next, I think. What I remember is we were getting
very close to a May 4th deadline and we didn’t have a hearing. We didn’t
have any witnesses. We had documents. I suppose you could have
somebody stand up, and most importantly, the reason we had no witnesses
is everybody was going to take the Fifth, who was high up and had done
any wrongdoing. The other thing we were missing was the Swiss bank
records. There was a mutual assistance treaty with Switzerland that
enabled the Justice Department to get access to these documents. But I
don’t think they got them very quickly and they were not feeling very
friendly towards us so they were not likely to make what they get
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available to us. We had no obvious path to getting those documents and if
we don’t get those documents, we are not going to be able to do our job. I
mean that’s just like follow the money, and people like Clark Clifford
were out there saying, I’ll bet you find that some of that money went into
political campaigns. Oh, did you hear what Clark Clifford said? Which
turned out not to be true. So I just remember an unbelievable amount of
document reading and then interviewing of witnesses, but I didn’t
interview any witness that I would have wanted to put on at our first set of
hearings, except I knew Dick Secord’s lawyer and he started having
conversations with me and his client came in. They’re feeling their way to
whether they can agree for him to testify without immunity. He wanted to
testify. He wanted to tell his story. Partly I think he liked the attention
and partly he thought he had done nothing wrong and why should he hide
in the underbrush. Then the Senate had the same kind of experience with
McFarlane. Then I talked to Secord and Hakim’s lawyers and came up
with an arrangement whereby they got some hope of immunity for the
document production so that it couldn’t be used against them. Maybe only
Hakim got that, I can’t remember. He was the custodian of the
documents. We would take his deposition—nobody knew where he
was—he wasn’t in the US of A. And he didn’t want anybody to know
where he was. He didn’t know if anyone was going to arrest him or put
him in irons and so on. So he didn’t want to come into the U.S. The
Justice Department wasn’t going to go along. They weren’t particularly—
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we didn’t tell them about it—but they wouldn’t probably have been very
happy to find out we were going to get the documents before they were
and then expose them on national TV and taint their case against Hakim
maybe. I don’t know. So we ended up arranging a deposition of Albert
Hakim in Paris by having—we needed a Democratic member of our
Committee and a Republican member to actually compel testimony and to
confer immunity. So we got—oh no. It was not a Republican/Democratic
it was a—we needed somebody from the Senate and somebody from the
House. So on an Easter afternoon, we left my house at 4pm, flew to Paris,
went to Paul Weiss’ Paris office where Arthur Liman was a partner, and
got this slightly unusual immunity order. Everybody knew that it might
not turn out to be effective but this guy wasn’t coming into the US of A,
so nobody was going to touch him anyway until he felt like it. They
marched into the room with a sort of Gore-Tex carrying case about, maybe
a little longer than that [six or seven feet], with binders and it was in the
shape, you know, the size of a three ring spiral binder, and those were the
bank records. I think we had to have Lee Hamilton on the phone. We
asked the questions, got the documents, and the carrying case had a handle
it, and we took off for the airport. And I arrived home at 2 in the
afternoon the next day. We had our Swiss bank records. When we got
onto the — it was a TWA DC10 and we got on this plane after the short
deposition session and I had a guy carrying — you know, an FBI agent
working for us — carrying the documents. It was a bright red casing.
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And we walked onto the plane and the stewardess said that’s the same
casing that a guy had coming up from Zurich this morning. So I said well
at least we know they’re Swiss.
MS. CAVANAGH That’s what they looked like.
MR. NIELDS What’s that?
MS. CAVANAGH That’s what they look like. The Swiss banking records. So you needed
those. You got those.
MR. NIELDS So we got those and we had a hearing. And I really can’t — I couldn’t tell
you any other detail about the ….
MS. CAVANAGH It must have been very intense in terms of the work.
MR. NIELDS It was very …
MS. CAVANAGH You know one of the news reports says that you were at your desk at 7am
everyday and rarely home before 10:30 at night.
MR. NIELDS Yes. I think it was even later than that. I mean it was — and we were — I
mean I was sleep deprived and I was light deprived. We were in the dome
of the Capitol.
MS. CAVANAGH You called it a crypt in one of the articles. Yes. The Washington Post,
they asked you about your daughters’ ages and you stumbled a little bit.
And you said they changed ages while I’ve been in this crypt. That’s what
you said in a Washington Post article.
MR. NIELDS Is that right?
MS. CAVANAGH It must have been a blur.
MR. NIELDS It was a blur.
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MS. CAVANAGH Where was it? How was it a crypt?
MR. NIELDS Well it was a crypt only in the sense that there was no window anywhere.
MS. CAVANAGH Wow. That’s tough.
MR. NIELDS And it was in the dome of the Capitol. I mean I feel like there was a
dome-shaped ceiling but I don’t remember it being four stories above us
and I don’t quite believe that we were up that high in the Capitol. But it
was in, I mean partly for security purposes, it was no place where a
window was around and it was creepy.
MS. CAVANAGH I have that the office was on the House side of the Capitol. “Cloistered
and guarded.” And you described it as “organized chaos.”
MR. NIELDS Did I?
MS. CAVANAGH Yes you did.
MR. NIELDS Well that sounds right. Lots of people were running around doing lots of
stuff and I wasn’t sure what all of them were doing ….
MS. CAVANAGH Who was on your team? Like, did you pick people for your team? Was it
staffers for the members of the Committee? Who were you working with
during this period?
MR. NIELDS Well Neil.
MS. CAVANAGH Right, Neil Eggleston.
MR. NIELDS A guy named Pat Carome who was at Wilmer. Wonderful guy.
MS. CAVANAGH I met him a long time ago. I worked at Wilmer over a summer.
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MR. NIELDS Terrific lawyer. Julius Genachowski who was not a lawyer then but he
was so able that I ended up using him as a lawyer. He was more useful
than anybody other than the other two people that I …
MS. CAVANAGH And he was the head of the FCC ultimately, right?
MR. NIELDS Yes he was. Ken Ballen. I think I hired these people. But I got flooded
with resumes. And I’m pretty sure I hired them. I don’t remember Lee
Hamilton interviewing people but he might have, but I’m guessing I hired
this great staff, with one exception. There was a head investigator who
was hired at the same time as me and I’m pretty sure that he didn’t stay
because he figured out that this was going to be lawyers’ work more than
and — but there was a whole bunch of investigators. Gus Hall — no Gus
Hall is a Communist leader. What was his name? Last name was Hall.
And many others. I would recognize their faces but I’m not sure I can
conjure up. So Secord and McFarlane were the major witnesses but I feel
like we called 10, 12 others? But I really don’t know.
MS. CAVANAGH Do you want to talk a little bit about the testimony? Some of them or what
that was like? I mean obviously there was a lot of press coverage of the
Oliver North testimony on a daily basis. Live TV for the first time, right?
So we saw this around-the-clock coverage of the news.
MR. NIELDS Koreagate was on TV for two days and this was on TV for 8-9 weeks,
something?
MS. CAVANAGH It was the middle of the summer.
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MR. NIELDS Well there was a break as I recall and the North thing began after the
break.
MS. CAVANAGH I have that he was July 7-10.
MR. NIELDS Yes that sounds just about right. So we might have had a couple of weeks
off in June. I can almost remember—there were parts of it where I was
sitting there and somebody from the Senate side was introducing evidence
about Oliver North’s wife buying lingerie and I remember saying what? I
mean we were working together but there wasn’t time for us to actually sit
in the same room and collaborate about how we were going—and
whoever that witness was, and I don’t remember who it was, there must
have been somebody on my staff asking questions. I just — I remember
Chuck Cooper — have I got his name right?
MS. CAVANAGH I’m not sure. [Assistant Attorney General Charles J. Cooper]
MR. NIELDS He was one of the two people who did, Brad Reynolds [Assistant Attorney
General William Bradford Reynolds] — I thought Charles Cooper was the
other lawyer that Meese appointed to do the weekend — he was a
Republican and I think a staunch Republican but his testimony was
riveting. I think Neil might have put him on. It was really good
testimony. I remember that. I mean it was straight up and no holds barred
and you just got — I mean it really painted a picture. Everybody was
saying that’s just shocking what I just learned.
MS. CAVANAGH Well when Oliver North testified were you, did you expect him to
essentially say, yes I lied, I did these bad things, but I did them for good
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reasons. I mean he kind of presented himself as a real patriot and proud of
what he had done, as you suggested earlier. Did you know he was going
to testify in that way? And how do you handle a witness like that?
MR. NIELDS Yes. I didn’t know what he was going to do. I knew that he was going to
emote and be reasonably good at it. I’m not sure I had a very good plan to
deal with that. I was mainly focused on getting everything out there. And
I was perfectly satisfied with how I did that. I remember feeling that I had
been too intense — too tense and too confrontational. That I would have
done better if I had let him be him and contrast that to the seriousness of
what was going on. Instead, I was wanting to be on the attack. I think it
was probably a mistake.
MS. CAVANAGH Do you think it made him seem more sympathetic, or, I don’t know ….
MR. NIELDS It played into his, and I think I didn’t understand also that I was living in a
cultural divide. It’s not quite as bad as it is now but it was a Vietnam postVietnam War cultural divide and so there were people who just wanted
Oliver North to take the stage and have his hand on his heart and testify
about patriotism and helping out these hostages and all the other things.
MS. CAVANAGH And the suggestion that somehow you were holding him back from being
able to do that, and government holds him back from being able to do
that—a suggestion of the movie A Few Good Men, Jack Nicholson’s
character. He was sort of like that.
MR. NIELDS Yes he was quite like that. And Arthur did, at least by technique, he did
well by sort of getting in a chair next to Oliver North and commiserating
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with him about how he ended up being the fall guy when he was only
following orders, you know? That worked better with North’s personality.
But I still, I didn’t want to do that. I didn’t want give off any whiff that
there was anything okay about lying to everybody about what you did.
And North ran for the Senate against Chuck Robb and somebody that I
knew well who was supporting Robb or at least opposing North, I mean
not as a candidate or anything, called me up and said, Oliver North just
was on TV on Channel 7 with a group of school children and one of them
had raised her hand on camera and said, “Is it okay to lie to Congress?”
And North said, “The Democrats said I lied to Congress. The press said I
lied to Congress. I never lied to Congress.” So he asked me if I could put
him onto something that would help. I said mmm-hmmm.
MS. CAVANAGH You did and then he lied to Congress. Right?
MR. NIELDS I think I sent him a tape of it. I think they played it the next day on the
same channel.
MS. CAVANAGH Interesting you mention that because I just read recently, I didn’t know
this at the time, but that a lot of people thought the reason he lost that
election is because Nancy Reagan made statements against him,
essentially because she felt that he had wronged President Reagan by lying
to him, not telling him what was going on, that was the implication.
MR. NIELDS Or just, yes, gone off on his own and done something rogue that Reagan
got blamed for.
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MS. CAVANAGH Right. And I believe what he said when he testified with you was that he
didn’t know if President Reagan knew anything about all this.
MR. NIELDS Well he certainly knew that President Reagan knew a lot about a lot but
the diversion, I think his testimony was, that he believed at the time that
President Reagan knew. That he saw these documents going up and
assumed that they’d come back approved. But he denied actual
knowledge of that. And I don’t know whether that’s true testimony or
false testimony.
MS. CAVANAGH He testified that William Casey did know about the diversion of funds,
right?
MR. NIELDS I think that’s right and then Casey you couldn’t ask because ….
MS. CAVANAGH He had died recently, right?
MR. NIELDS I mean really shortly after he was before that Senate Intelligence
Committee, he went into the hospital and had part of his brain taken out
and then eventually died.
MS. CAVANAGH I didn’t realize it was that close to that time.
MR. NIELDS It was really close. He was unavailable for the hearings.
MS. CAVANAGH Did you want to speak a little bit about Dick Secord’s testimony or the
experience of ….
MR. NIELDS I remember Secord’s testimony. All I remember is I thought it went very
well. I cannot tell you a single question or a single answer that I recall,
but he was mostly a witness that was accurately informing everybody of
what he was doing. Both in the Contra part of it, which he was deeply
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involved in, and in the Iran part, which he was less deeply involved in but
still involved. And what became known as “the Enterprise,” which is this
private thing that he and Hakim had with bank accounts and airplanes and
the boat and a ship, I think they called it. And he had not done too badly
financially as a result of what he was doing for North. I remember Dick
Secord telling me in one of those meetings before he — maybe I’ll have to
take this out — but he volunteered in an off-hand way when McFarlane’s
name came up, well he said he didn’t have the “air speed.” I think air
speed means enough speed so that you stay airborne.
MS. CAVANAGH That’s funny. Did you question Ed Meese as well?
MR. NIELDS I did. And not particularly effectively. It was painfully obvious that he
was doing something that an Attorney General shouldn’t be doing, which
is to, the thing that he did that was reprehensible, I thought, was, when he
did his brief investigation and once he had come upon the diversion
memo, he then had meetings with I think all of the key players — Casey,
Poindexter, and maybe the President — and took no notes. He stopped
taking notes. He also said he was now serving as the President’s counsel,
not as Attorney General. This was all sort of a way of making whatever
he was doing at that point not government property that he had to turn
over but he said he never took any notes anyway. I mean it was pretty
obvious whose well-being he was looking after at that point and it wasn’t
the country’s, it was Reagan’s.
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MS. CAVANAGH We’ve just touched briefly on the press coverage. There was a lot of press
coverage and there was coverage of you as well, right? And your long
hair. There were comments about that and I think someone interviewed
Gail. There were some comments that Gail made about, you’re not an
image kind of person, you’re not paying attention to that, and your
children must have been aware of this. I think I read that they went to the
first day of hearings or at least maybe a couple of them did.
MR. NIELDS I had forgotten that.
MS. CAVANAGH All three daughters went to the first day of hearings on the opening day of
North’s testimony, is what one of the reports said. I’m curious what that
was like for you and for your family. It was a different time obviously
than today. I think in one of the articles you also mentioned that you had a
listed phone number. It was not unlisted but you didn’t get many calls
about it and I could only imagine how different that would be today.
MR. NIELDS You mean there would be a lot of calls.
MS. CAVANAGH Or not even just calls, but you can imagine what the internet would look
like. It would be a very different kind of response. Were you aware of
that day-to-day when you were working so hard and so focused on it? In
terms of the impact on your family.
MR. NIELDS My family was all just happy as clams. If there was something negative
said about me, they either didn’t notice it or they didn’t hear it. I mean
they were just all thinking this is more fun than a barrel of monkeys. And
I think the same is true of my wife. I did one day get a — I don’t know
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what they were — I don’t think they were Secret Service. I think they
were Capitol police, but there had been several death threats and so they
volunteered to take me, escort me home, and stand sentry, and I said no
way.
MS. CAVANAGH You didn’t have people camped out in front of your house? You didn’t
have press at your driveway or anything like that?
MR. NIELDS No, we were hard to find.
MS. CAVANAGH Oh really.
MR. NIELDS Yes, reasonably hard to find.
MS. CAVANAGH You mean because of where you lived.
MS. NIELDS Yes. I lived at the end of a long dirt road. So it wouldn’t have been easy
to — if anybody had wanted to do that, I think they — I got a lot of mail.
I got a huge amount of mail.
MS. CAVANAGH Did you read your mail?
MR. NIELDS I read — I had somebody put it into a positive and a negative and I read
the positive.
MS. CAVANAGH That was smart. Do you still have your mail?
MR. NIELDS I think I still have the positive and they were about equal sized. I had a
couple of marriage proposals. I had to turn those down.
MS. CAVANAGH Too late! Okay. Do you want to speak a little bit about the outcome. The
Committee, I guess, had a report. There it is. [Aside to recording device.]
He’s got the report on the table here.
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MR. NIELDS My feeling about it was that we did a pretty darn good job of what we set
out to do which was — I mean I thought we did a — I guess the work
including the hearings probably ended in August?
MS. CAVANAGH I think that’s right.
MR. NIELDS And before mid-August, I would have guessed, and we really started our
work around March 1, and in that period of time we did what I regarded as
a two-year investigation. What would have normally taken me as a
prosecutor two years to do, and I thought we got the facts out there pretty
thoroughly.
MS. CAVANAGH And the report is dated November 1987 so that was pretty quick.
MR. NIELDS Yes the writing of the report took a couple of months. But I thought, with
one exception: I don’t think we answered the question of what Reagan
knew about the diversion. And there may have been some other high-up
people like Don Regan, or I always assumed that George H.W. Bush was
mostly out of the loop and that he was not an insider in that
administration. In terms of the Contras, we got a very big window into the
support of them at a time when it was not lawful for there to be support
and who was involved, and what they were doing, and who they lied to,
and when and how. In terms of the Iran part of it, I think we didn’t figure
out whether Reagan knew about the diversion, but he knew about
everything else. Poindexter basically testified: “I didn’t tell him [the
President, about the diversion], I wanted to give him plausible
deniability.” So it was very clear that his testimony wasn’t worth anything.
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It didn’t help you answer the question one way or the other. And I think
North is the same and that was certainly a big question that we didn’t
answer. But by the time we got started, it is not clear there was a way to
answer it.
MS. CAVANAGH Right. And you didn’t have any involvement subsequently to this report
in terms of any of the indictments or convictions or ….
MR. NIELDS Well that is another topic that I probably should say something about.
MS. CAVANAGH Sure.
MR. NIELDS I don’t have any remorse about it but it’s an unhappy fact for me that a
consequence of us immunizing North and Poindexter is that their
convictions got overturned and—I mean in some ways punishment wasn’t
really the point and the fact that two juries hearing all the evidence
convicted them is a nice thing to have out there. That was a real trial with
real facts and they committed real crimes and the jury said so. And they
won their appeals for reasons that had nothing to do with their guilt or
innocence. But it’s not a good feeling to have screwed up perfectly
legitimate prosecutions. On the other hand, I can’t fathom how they went
about dealing with that issue. They were supposed to have, they even
talked to Judge Gesell, right? It was [U.S. District Court Judge Gerhard]
Gesell. I am quite sure that there were going to be taint hearings before
the trial began and then they never had them. And then they were going to
have taint hearings after the trial and before the appeals and they didn’t
have those either.
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MS. CAVANAGH Just to clarify, you mean hearings where they would talk about what
evidence would be allowed and what would be tainted by the prior
immunity deal. And they didn’t do that.
MR. NIELDS They didn’t do that and they didn’t do it after either. Then when they get
an opinion by [D.C. Circuit] Judge [David] Sentelle and I think [D.C.
Circuit] Judge [Laurence] Silberman, and who was the other …
MS. CAVANAGH I don’t know. I don’t have that. I can look it up for you. [Chief Judge
Abner Mikva for Poindexter, Chief Judge Patricia Wald for North.] [See,
e.g., United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1992); United
States v. North, 920 F.2d 940 (D.C. Cir. 1990).]
MR. NIELDS And then they acted so stunned when they got the convictions reversed.
And as I told you before, the Poindexter prosecution was just like, they’re
crazy. Why do they introduce evidence about the ripping up of the — at
Poindexter’s trial — that he ripped up the finding when the only way they
knew that is because, the only way anybody knew that, is because he
disclosed it under immunity? Then they started, when the Court of
Appeals decided what any Court of Appeals — any sensible one — any
Court of Appeals applying the law would have reversed those convictions.
And then they tried to have a post-reversal hearing on North, sort of
retroactively. And they were mad at the part of the opinion that says that
you’re going to have to go through the evidence, in some cases, line by
line. Well that’s exactly what the law was. They just got mad at that and
blamed us and then they started having the hearing and gave up. Now for
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North, and I was not sure why they needed to give up on North. I think
they had plenty of — I mean maybe there was some problem they weren’t
going to be able to solve that I didn’t know about, but it was unclear from
an outsider’s point of view — they had indicted him for lying to Congress.
What’s tainted about that? Right? I mean, they couldn’t use his
admissions under immunity but they didn’t need them.
MS. CAVANAGH But the frustration was directed at you, I guess, or …
MR. NIELDS “You” is not me personally. There may have been some of that but it was
the Congress, the committees screwed us.
MS. CAVANAGH Then there were some officials indicted and convicted on lesser charges
and then George H.W. Bush pardoned [Caspar] Weinberger, I think.
MR. NIELDS Weinberger was indicted for lying to me. I mean that’s not the only thing
he was indicted for but I asked him in a deposition — now see I do know
something — I asked him at a deposition — that’s true. So I went to the
Defense Department and got in a room next to his office where he had his
desk and took his deposition, and I asked him if he had any documents
that would inform us about what he had been told in real time about the
November 1985 Israeli shipments of Hawk missiles. He said he didn’t
have any. Well as it turned out they were right in the next room in his
desk. So they indicted him for that years later. I mean I thought that
would have been in what, the end of 1992?
MS. CAVANAGH I don’t have the year for that.
MR. NIELDS Or was it — Bush pardoned him at the end of his term.
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MS. CAVANAGH Yes. So I think there was a final report, 1993 maybe.
MR. NIELDS ’92 or something.
MS. CAVANAGH I think there was a final report in 1993 and I think George Bush, the
pardons were towards the end of his term.
MR. NIELDS That’s what I thought so it was like five years later. I thought that was just
ridiculous that they were charging these people five years later.
MS. CAVANAGH I was wondering why it was so much later.
MR. NIELDS I think they had a different independent counsel. I think Walsh was
replaced by Jim Brosnahan.
MS. CAVANAGH I’ll look it up. [James J. Brosnahan; led trial team against Weinberger.]
MR. NIELDS I think he wanted something to show for his … he had a chance at the
spotlight so he indicted some more people, including Caspar Weinberger.
I thought they stuck around way too long.
MS. CAVANAGH Interesting. I’m wondering in a bigger picture sense, and you mentioned
how any president might correctly feel hostile toward an investigation, I’m
wondering what sort of impact you think the Iran-Contra hearings had
going forward. Obviously we’ve had many investigations since then. At
least one of which you were involved with was Webb Hubbell, which
we’ll talk about later. And now of course there are more with the current
president. I’m wondering just if you have any reactions to that in terms of
if you think those hearings that you were involved with had kind of a
longer term impact, kind of shifted the political ground in terms of
partisanship, or any other thoughts you have.
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MR. NIELDS Well the partisanship in the Iran-Contra affair was there but it was minor
compared to what it is now. I mean just minor. As I told you, the Senate
Committee, I think they had three Republicans and six Democrats or five
— maybe they only had three Republicans. But they were totally
lockstep. As I say, Rudman was the most important player, I think.
Arthur Liman talked to Rudman. I think that’s most of what happened on
the Senate side. And now — I mean the Senate Intelligence Committee
looks close to nonpartisan so maybe I should eat my words. It may be a
difference between the House and the Senate. But no, it has just clearly
gotten worse. The partisanship clearly got worse. It was almost nonexistent in Koreagate. It was not too bad in Iran-Contra and it was
virulent in Whitewater and it is more virulent now.
MS. CAVANAGH Any thoughts about the role of the independent counsel and now special
counsel?
MR. NIELDS Well you really got me because I was completely in favor of an
independent counsel when it was first put into the system right after
Watergate and thought it was ridiculous that everybody was praising
Justice Scalia’s dissent in Morrison against Olson, which was an
independent counsel case and the constitutionality of the independent
counsel law was challenged, and Scalia wrote what I later thought was one
of the great opinions anyone has ever written. [See Morrison v. Olson,
487 U.S. 654, 697 (1988) (Scalia, J., dissenting).] He foresaw what
happens and the Independent Counsel’s five-year investigation of numbers
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of people in the Iran-Contra affair. A normal prosecutor would not have
done that. They wouldn’t be doing that case for five years. Almost for
sure and it’s the press that was driving these political independent counsel
cases and the press does not understand what the difference between a
crime and a non-crime is, a political wrong and a criminal wrong, and it is
great for the press to have a political scandal. It’s fabulous for them. And
so by the time I was getting to the end of the Webb Hubbell experience I
was adamantly against the independent counsel law. I have always felt
very strongly that we should be applying our laws blind to political station
and power, but not in a way that causes us to investigate and prosecute
politicians or government officials when we wouldn’t investigate private
citizens for doing the same thing. Maybe your threshold of investigating
is a little lower, but really what you are trying to get to is that the law is
neutral and you don’t pick people and then see if you can find a crime they
did. You pick crimes and find out who the people are that are responsible
for them. I know that that’s a dichotomy that doesn’t work perfectly, but
it comes from a speech that Justice Robert Jackson made in 1940 when he
was Attorney General. A wonderful speech. He had all the U.S.
Attorneys from all around the country and he gave a speech that is quoted
extensively in Scalia’s dissent in Morrison against Olson. Its thesis is, you
know, where all of us are criminals to one degree or another, and what an
awful world it would be if we ran our justice system where we decided
that we pick people and see if we can find a crime that they committed,
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and it’s really important that we resist doing that under all circumstances.
I didn’t say it as articulately as he did but — I thought that the Whitewater
investigation had just taken that to an extreme degree.
MS. CAVANAGH We are going to talk about that but probably not today. I don’t know if
you have more about Iran-Contra or not. I mean, I have in my notes that
during a break in the hearings you flew to Atlanta to deliver oral
arguments in two cases for Howrey. My reaction was how in the world
did you manage that? I don’t know if you remember what they were. I
don’t know, it was just mentioned.
MR. NIELDS Well I’d like to tell you what they were.
MS. CAVANAGH Sure. Excellent. That’s what I was hoping, that that was what you wanted
to talk about.
MR. NIELDS Yes because they were both very important to me and also I haven’t really
talked about criminal defense except Mary Treadwell, which was a little
bit aberrational. The first case was defending a lawyer charged with tax
evasion and he had a methodology for reporting his fees as income and the
methodology was he waited until the case had closed and then he reported
the fees that he got. That was his methodology. I was not involved in the
first trial. Following his conviction, a friend of mine from the U.S.
Attorney’s office who did tax defense work recommended me to him to
handle his appeal. The first appeal resulted from the fact that during the
jury deliberations the judge got a note—this guy was Jewish, the
defendant. Dan Heller was his name. [See United States v. Heller, 785
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F.2d 1524 (11th Cir. 1986).] During the jury deliberations a note came in
from a juror who wanted to talk to the judge so the judge brought him in,
and I think the judge had counsel present, and the judge said what’s up.
The juror said, well there is some, I can’t remember if he used the word
race, but there’s anti-Semitic prejudice in the jury deliberations and I find
it shocking. I think this juror was Jewish and so the judge, he took down a
statement from him as to what was being said in the jury room, and then
he called jurors one at a time and much to his chagrin, what he got would
just make your hair stand on end. But the judge let the deliberations
continue. The defendant got convicted after that and then I did the appeal
and really if I had lost this appeal, I would really think I was a terrible
lawyer.
MS. CAVANAGH You mean because when the jury came in they said really anti-Semitic
things or …
MR. NIELDS So I stand up in front of Judge [Elbert] Tuttle and Judge [R. Lanier]
Anderson and I can’t remember who the third one was [Judge James
Clinkscales Hill], and I just started reading from the transcript and then
I’m quoting, “Well, he’s a Jew. We’ll just hang him.” And it went
downhill from there. Judge Tuttle was like this [covering his eyes]. But
this matters to the next chapter of the story. Obviously he got a new trial.
A wonderful lawyer named Carr Ferguson who had been head of the tax
division at DOJ and was also a Davis Polk partner, although he hadn’t
been at Davis Polk when I was there. He was just kind of a tax consultant
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for the appeal. At the moot court the day before he said, “What do you
say if you get asked the question, is Mr. Heller’s way of reporting his
taxes proper? Is it legal?” I don’t remember if I came up with an answer
but Carr had one already in his head and he said, how about this … I
should have told you something else before, but it was very clear that it
was not proper because Judge Anderson, who was the tax specialist on the
11th Circuit or was, had written an opinion in a case called City Gas
where something very analogous had been done. I can’t now remember
what it was but it had to do with deposits on gas or something. Just take
my word for it, it was a perfect analogy to our case, and he had rejected
the tax treatment that my client had done. But Carr said how about you
say this: That no, your Honor, not in light of Judge Anderson’s opinion in
City Gas, but before that, at the time when the defendant had filed his tax
returns, the law was unclear, and in a tax evasion case you can’t prosecute
somebody criminally for doing something where the law’s unclear. And I
think that’s a pretty damn good answer. And I got the question and I
delivered the answer. So the answer credits Anderson for clarifying the
law. So it didn’t matter much in that first appeal, because it was so
obvious we were going to win on the antisemitism in the jury room. [See
United States v. Heller, 830 F.2d 150 (11th Cir. 1987).] But I then
defended Heller in a second trial and lost.
MS. CAVANAGH Because he was convicted again after the retrial.
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MR. NIELDS After the retrial in a case that I tried. So two things are true — and the law
really was unclear, by the way. There was a tax court case and we had
cited that and it had been relied on at both trials but it did look as though it
blessed what he had done. The other thing that had happened was that he
had an accountant that absolutely knew how he was reporting his taxes
and had in effect blessed his methodology, and reliance on advice of
counsel or of an accountant is a defense in a tax evasion case. However,
an IRS agent who hated Heller because of something that the Miami
Herald had done when Heller was representing the Miami Herald — an
expose in some group of the IRS, and this guy hated Heller for that.
Before the indictment, he went to the accountant and he said to him, you
have two options here. If you say that you knew what Heller was doing
you will be a co-defendant. If you say you didn’t know what he was doing
you are a witness. So he figured out by the next morning that he wanted
to be a witness, and testified at trial that he did not know what
methodology Heller was using to report his income. So I argued on appeal
both that the law was unclear and I had tried to get the judge to deliver an
instruction that if he followed his method the jury could not convict him
because the law was unclear, and he didn’t give me that instruction. I
made a good record arguing it; and I also made a very good record that the
accountant was lying when he testified that he didn’t know, and that the
IRS agent knew exactly what he was doing and his threats to the
accountant deprived Heller of his most important witness. I argued that
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case in the Court of Appeals. Judge Anderson was once again on the
panel. I think particularly because of the answer I gave at the first appeal,
which I completely credit Carr Ferguson for, he wrote the opinion and
agreed that the tax law had been unclear and then went on to accept my
other argument as well, that Heller had been improperly deprived of his
reliance on advice of his accountant defense, which meant that the case
couldn’t be retried. My argument wasn’t that he — that the accountant
had given incrimintating testimony that was perjurious. That argument
would have lost and I knew that from the beginning, and I remember
asking a summer associate who eventually became a very good lawyer at
Howrey, find me a case that isn’t based on perjury, because if I argue that
he perjured himself the other side will argue, well, that was a jury issue.
You argue that to the jury, the jury finds he didn’t [perjure himself] and
that’s the end of it. So he comes up with Webb against Texas [see Webb
v. Texas, 409 U.S. 95 (1972)] and a bunch of other cases that say the same
thing. They say if you take — if the government takes a defense witness
and either causes him to take the Fifth or causes him not to testify
favorably but to alter his testimony, then you have interfered with a
defense witness in a way that’s unconstitutional. And the beauty of that
argument — that’s exactly what happened — he was my client’s best
witness, and when the IRS agent deprived Heller of his favorable
testimony, you can’t fix that problem; once he’s become a perjured
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witness, what the hell use is he to Heller. So anyway the court reversed on
both grounds and the case could not be retried.
MS. CAVANAGH Interesting. And then you had another case.
MR. NIELDS The other case was for a guy named Jose Luis Castro. Cuban American.
Charming man. He was a lawyer and when he came to me he had been
sentenced to 10 years in jail for bank fraud. He was a young man and he
had a gorgeous and lovely wife. Just a wonderful warm human being and
two very young children, and I remember thinking if I don’t win this case
I don’t think — he may lose his family. So it was the least appealing issue
you could possibly imagine. It was a multiple conspiracy issue. There
had been one guy at the center who had engaged in two different
conspiracies. One was a fraud — all I remember is it had to do with
coffee. He was in the coffee business and he defrauded somebody by
hiding stuff in the wrong place, and then there was a bank fraud that he
committed with my client’s help. They should not have been joined in the
same indictment and trial and there was very bad evidence on the coffee
conspiracy. Most of the trial was about the coffee conspiracy and my guy
is sitting there, and Roy Black who defended him at the trial made a very
good record, and I had unlocked the secret to multiple conspiracy law one
day in the library when I was in the U.S. Attorney’s office. I sorted out —
I mean nobody can figure out multiple conspiracy law. I’m not sure I
really did figure it out but I had a really good argument and I wrote a good
brief, and I remember I had charts and they worked. Usually multiple
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conspiracy arguments don’t work but this one did. I told my client the
odds are one in ten that we will win. We should win, but courts can
usually find a way to get around these multiple conspiracy arguments but
we should win. The government kept asking for adjournments for time to
answer our brief and Judge Edmondson’s clerk would call us up on the
phone and say what is your position — and we would file something
saying, well that’s fine but you’ve got to let my client out from jail.
Right? Get out on bail and we’re fine. And they granted these extensions
three times without granting bail, but Judge Edmondson seemed skeptical
at the government’s repeated delays. Anyway, we win. I think we got
like a letter within — something happened within about three days after
oral argument and they let him out on bail pending the written decision.
And we’re thinking I think that’s a good sign about how this case is going
to come out.
MS. CAVANAGH This was on appeal. He was convicted and you were not the lawyer.
MR. NIELDS I was not the lawyer in the first trial. So I’m sorry — one day I argued
this case, the next day I argued the Heller case and it was all in that
window of time after the first set of hearings and before North.
MS. CAVANAGH Both in the Eleventh Circuit.
MR. NIELDS Both in the Eleventh Circuit and I was down there like four days.
Appearing in one and then the other. What did I say, Atlanta?
MS. CAVANAGH Yes. A lot of balls in the air that summer.
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MR. NIELDS I had a lot of balls in the air and so then they reverse and it gets sent back.
[See United States v. Castro et al., 829 F.2d 1038 (11th Cir. 1987).] Then
the government indicts him for perjury at the first trial. They called me
and told me they were going to do it, and I said, are you planning to join it
as a crime with this case? Do you want me to get another reversal? They
said—oh they were scared of me by that time. They said no. So they
indicted him in front of another judge. I mean I got so lucky but I will say
I really—I was preparing to defend him on the bank fraud case. That was
going to be the first one. The one that he had been sentenced to 10 years
the first time. He’d done fourteen months waiting for the appeal. The
government came to me and said, if he pleads guilty we’ll give you five
years if you will take a five year max and we’re okay. I thought about that
and talked to my client and he said I want to plead. He really didn’t have
a defense. But I knew that it was before the guidelines — you know what
I mean about the guidelines and so what mattered then, there was — I
don’t even know what branch of government, whether it was probation —
it was in the probation world. They had a grid and depending on the crime
you got convicted of, you would be basically viewed as eligible for
probation a third of the way through serving your sentence, two-thirds of
the way through, or almost not to the end. Bank fraud was way up there,
the high end; perjury was way down. We weren’t even talking perjury.
The government wasn’t going to try that. They were just throwing that in.
So I read what I thought would be their minds and went down and saw
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them, and I said, okay, I’m going to make you an offer you can’t refuse.
What? I’m going to have him plead to both crimes. I said, but the total
exposure for both crimes has got to be five years, which is what you want:
and I get to allocate the exposure between these two cases. I mean the
statistics for prosecutors of getting two felonies instead of one — was very
appealing. So they said fine, and I said I get to choose which order I get to
plead it, and we get time served and I get to allocate that to whichever case
I want. They said okay to all of that. We go to Judge [James C.] Paine,
who had tried the bank fraud case, and two things happen. First of all, I
had allocated two years to the bank fraud and the fourteen months of time
served. So I had ten months left on the bank fraud. I didn’t want to be
greedy so I gave them a little bit of something in the bank fraud case. We
get there. The judge — I had submitted a presentence report and a letter
from his wife that was … and it was true. She was saying my husband —
and he had — when he decided to plead he was holding nothing back, I’m
guilty. And his wife writes a letter as good as any I have ever read that
tells the judge basically that my husband is as remorseful as he possibly
be, he has completely turned a new leaf. But I get there and the judge
hasn’t gotten the letter or my submission. So he says, well it’s probably
back there somewhere and he apologizes. He comes back 20 minutes later
and he looks at her, I got your letter, this man is completely rehabilitated.
I am going to give him probation — time served plus probation.
MS. CAVANAGH Wow.
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MR. NIELDS Then I go to the perjury judge and I’m thinking I’m going to get three
years from this guy but at least I’ll get, in a third of that time he will be
eligible for probation. Well he reads, of course, my submission, which has
the other judge’s remarks and everything. He said, well he says you’ve
been rehabilitated and that’s good enough for me. I’m going to give you
three months in a halfway house.
MS. CAVANAGH Wow, that was an outcome nobody hoped for. That was a good day of
being a lawyer. That’s a great story. And then you went back to IranContra. Well we probably should stop. I’m thinking next time we’ll start
maybe with Atchison v. Barry.
MR. NIELDS Sure.
MS. CAVANAGH Okay. Great. I’ll turn off our devices.
END OF TAPE
213
ORAL HISTORY OF JOHN W. NIELDS, JR.
Fifth Interview
July 10, 2018
This interview is being conducted on behalf of the Oral History Project of the Historical
Society of the D.C. Columbia Circuit. The interviewer is Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place on Tuesday, July 10, 2018. This is
the fifth interview.
MS. CAVANAGH So John, shortly after the conclusion of the Iran-Contra hearings you came
to represent a class of homeless people. Maybe you can talk a little bit
about that and how you got involved in that.
MR. NIELDS So the story of the homeless case is the story of Mitch Snyder. I don’t
know if that’s a familiar name to you. He had some sort of regular type
job in New York City and he moved down to Washington, D.C. sometime
in the mid 80’s and he made it the mission of the rest of his life to care and
look after the well-being of homeless people in Washington, D.C.
Through his efforts a statute was passed by referendum that the city of
Washington, D.C. would provide overnight shelter, decent humane
overnight shelter, to all homeless people in the city who needed it.
A little bit more about Mitch. He was a driven, that’s an
understatement, man. And he was pursued by furies internally. As I say,
he made homeless people in D.C. his mission. In order to do that better,
he decided he needed to be a homeless person for 5 months, including in
the winter time. I may be off by a month. He told me 2 things about that
experience. One of them was that the pain of living on the streets,
particularly in cold weather, is absolutely intense and that’s why so many
homeless people end up on drugs. The other thing he told me was that in
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the entire period he was homeless nobody looked at him. I took him to
mean nobody looked him in the eye. Nobody recognized him as a person.
So I got involved through a colleague at Howrey named Lois Williams
who became a very close friend. In fact, I just got an email from her son.
She is no longer living. He and his wife gave birth to another grandchild.
Literally, just before we started this morning.
Somebody on behalf of Mitch or it might have been Mitch,
approached Lois about our taking a case to enforce the law that had been
passed by a referendum. And Mitch’s view was it had really never been
enforced and the District had not been complying with it and this had gone
on for long enough that something needed to be done. So they were
looking for pro bono counsel to help them. Lois asked me if I would do it
and we did it as a team with many other lawyers at Howrey working on it
with us, young lawyers. All of them loved working on the case. The issue
was that the District of Columbia was saying, well they had 2 or 3 shelters.
First they claimed they were not full and second they claimed the reason
they weren’t full is that homeless people didn’t want to be there. It was
obvious there were homeless people sleeping on the streets in winter or
under bridges. There was a lot, and people died every winter from it. So
we first educated ourselves by going to the shelters. They were, as Judge
Harriett Taylor later wrote in an opinion, hell holes. People were sleeping
on the floor with rats biting on their ears in the middle of the night. Urine
water spewing out of toilets that didn’t work properly and soaking their
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sleeping bags. And the shelters were all full, they were more than full. It
was uncomfortably full when you went into them. But if anybody stayed
away you can certainly understand why they would have. So we filed a
lawsuit against the city to get injunctive relief requiring them to open more
shelters and to improve the conditions. They were violating the law in two
ways. They weren’t providing overnight shelter to every person who
needed it and they were also not providing any decent, humane shelter.
We had a 5-day preliminary injunction hearing before Judge Harriett
Taylor here in D.C. Superior Court, working very closely with Mitch
Snyder and a woman named Veronica Daniels, she was a nun and she
spent her life triaging homeless people around the city. And another
woman named Janelle Goetcheus, who ran a hospital for homeless men
called Christ House. They were as cheerful people as I have ever met in
my life. They were spending their life with misery all around them.
Really extraordinary. Mitch Snyder was not a cheerful person necessarily.
So we had a 5-day hearing and the District was trying to cover over the
evidence that we were presenting by doing something overnight that was
supposedly fixing something and it only made things worse. Mitch would
be out and several people working with him and for him would be
monitoring what was happening in the real world and we’d all meet at 8
o’clock in the courthouse and then they would be my witnesses for the
afternoon. And Judge Harriett Taylor granted our motion for preliminary
injunction and it later got turned into a consent decree. The scheme was
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that first they had to improve conditions; they had to put showers in, they
had to make it clean. We divided the city into 5 segments as I recall it. If
the shelters in that segment were full 3 nights in a row, they had to open
another one and so on. It was, expand until you met the need in each of
these 5 geographical sections of the city. We had to continually monitor
and continually come back to court to bring contempt proceedings against
the city for not doing what the consent decree said they had to do. So it
was ongoing, and we formed very close relationships. There was a guy
who worked for Mitch, the only name I knew him by was Little John, and
he was not little. He was about 300 lbs and nearly 6 feet tall. We once
had a softball game at a field next to my house for everybody who worked
on the case and he came there and I’m thinking, how is he going to be able
to play softball. He was fabulous. He was a super coordinated guy. We
had a guy named Steve Easley who was at Howrey then and probably was
most deeply involved in the case, besides Lois and me. He stuck with it
right through to the bitter end. He formed a relationship with Little John.
Little John drove a hypothermia van and he drove it around every evening
and every morning to visit homeless people who were out on the streets
and not cared for properly, and to gather information for our case. I think
we were in and out of court for about a year. Then the city got tired of or
annoyed at having to comply with the decree and they got the City
Council to pass a law repealing the law passed by referendum on which
the decree was based. And Lois had the thankless job of trying to argue,
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which I thought we were going to win when it first happened, but then we
did some research and there was law against us on this point. But we
thought if the people have passed a law by referendum, their
representatives cannot come and repeal that law except by referendum.
The law was to the contrary. [See Atchison v. Barry, 585 A.2d 150 (D.C.
1991).] So the law was repealed and Mitch and we got together and said,
the one thing that you could do is have the people pass a referendum
again, that would override the law passed by the City Council. That
required a significant amount of work and publicity and reaching voters.
Mitch pretty much took that over, not by himself, but just as he had back
in the mid-‘80s when the first referendum was passed. And I remember
about 3 weeks before that vote was going to be on some ballot, I was
having trouble reaching him. For about 2 days, I couldn’t. Then he was
found in his room at CCNV, which was the homeless shelter. [I should
have said, he got the city to give him CCNV, which is a huge homeless
shelter on 2nd & D Streets, N.W. back in the mid-1980s, by going on a
hunger strike. That was very well publicized, you’d see Mitch Snyder
lying on the floor in the room not having eaten for a very long time and
the city finally caved. He lived there.] And he’d hung himself. It had to
do with a relationship that he had with a woman that was at first a groupie
of his and then essentially his wife, although I don’t think they were
married. Anyway it was ugly and tragic. He was susceptible to misery
and self-hatred.
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Then the referendum lost by 2% or 3% short of the needed 2/3
majority, and almost surely would have passed if Mitch had been around
to do the finishing touches of promoting it. That ended our case, except
that the city had been in contempt of an order to put bathrooms into one of
the shelters. I can’t remember how this came about but it was the federal
government was going to pay for the showers and the city could never get
its act together and get it done. For about a year and a half they just didn’t
get it done. At the end we had a contempt hearing. They had been held in
contempt over and over again.
S. CAVANAGH And fines are being imposed on the city?
MR. NIELDS Fines are mounting up. We hadn’t brought the proceeding to make them
pay them. But we did after the law went away. I could be wrong about
this but I think I have it right. The final fine was $4 million. That was put
into a trust that was used to build, if I remember correctly, single unit,
one-room residences with a kitchen and bathroom.
MS. CAVANAGH I have that 400 new units were constructed.
MR. NIELDS That’s it. It was a productive case but disappointing to have it end, and
tragic the way it ended.
MS. CAVANAGH You didn’t argue the case right? You said Lois argued the case?
MR. NIELDS Well I argued many of the cases.
MS. CAVANAGH The D.C. Court of Appeals case?
MR. NIELDS She argued the D.C. Court of Appeals case where we were saying the City
Council can’t change the law. The precedents were uncomfortably clear
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against us. And I think she did the heavy lifting on the contempt fines,
and getting the new units constructed. So that’s the story of the homeless
case. The hearing, the 5 days of preliminary injunction evidence, was a
very rewarding process. We had really good witnesses. We were working
as a team both with the client world, so to speak, and with our own law
firm. People were running around gathering things. It was exciting
because it was in real time. It was testimony about what happened last
night. There was other testimony that was prepared in advance of the
hearing but there was an awful lot of the latter. We had a very good draw
with the judge. Harriett Taylor was smart, competent, and her heart was
well in the right place. We had been told that by people who knew her. I
didn’t know her. I had never met her before. But she was a wonderful
woman. I will never forget her reading her opinion from the bench on a
Saturday morning. When we got to the word “hell hole,” we said, we
might win this. And it was the only word that would adequately describe
the horror.
MS. CAVANAGH Not an exaggeration.
MR. NIELDS Not an exaggeration at all. So that’s pretty much it. As I say Lois became
one of my closest friends. She stayed at Howrey for quite a long time.
She became in charge of pro bono stuff at Howrey, was a trainer or
teacher for young lawyers. She ran deposition seminars and oral argument
and brief writing and so on and was very competent at it. And then she
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eventually went to the Lawyers Committee for Civil Rights, where she
stayed for several years, and then she went into the Peace Corps.
MS. CAVANAGH Wow.
MR. NIELDS And she was stationed in Lesotho, which is the landlocked country in the
middle of South Africa. There may be another one too. She had a 2-year
stint there. AIDS was rampant. It’s very poor and it has the highest
average altitude of any country in the world. That’s one gutsy woman.
Then she moved back here. She had some physical ailment, her knees or
something like that. She had to come back a little bit early. She lived on
the West Coast with her son Patrick, who just sent me the email.
MS. CAVANAGH Ok, that covers everything I know about that.
You subsequently were appointed to be Special Counsel for Rhode
Island’s commission to investigate the failure of Rhode Island’s insured
financial institutions. Maybe can you talk a little bit about that.
MR. NIELDS We called it the RISDIC investigation. I’m not sure if I can come up with
what the acronym RISDIC, Rhode Island obviously, deposit insurance
company corporation would have been the last three. Maybe state, Rhode
Island State Deposit Insurance Corporation. [Rhode Island Shares and
Security Depositors’ Indemnity Corporation.] Here is what that’s about.
The state of Rhode Island had its own state banks, not federal banks.
There were federal banks no doubtedly doing business in Rhode Island,
but they had their own banking system. They called them credit unions,
but they were savings banks really. They took in deposits and loaned
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them out mostly for real estate development. They did not have any
federal insurance. Sometime around the last month or two of 1990, I’m
pretty sure I’m right about this, they became concerned that there was
something not well about their banking system. The real estate market
had gone down, which in other states had resulted in savings and loans
failing. Maryland had a crisis 5 or 6 years earlier. RISDIC had limited
reserves, so the credit unions went to the NCUA, which is the credit union
equivalent of the federal agency that insures bank deposits (FDIC). The
FDIC is for regular banks and the NCUA is the National Credit Union
Administration and it insured credit unions. I’m not positive what the
technical distinction is between the two. At least I don’t know what the
difference is between a credit union and a savings and loan. The NCUA
came in and did an audit on all of the Rhode Island banks to see if they
were solvent enough to insure. And the answer was no. One after
another, they looked at all of the Rhode Island credit unions and there
wasn’t one they would insure. I can’t remember exactly what the other
things … I think there was one credit union that had gone belly up. That
was a small one. And it went belly up under just shocking circumstances.
The guy who ran it literally walked off with half the money on deposit and
fled to another country. I’ve forgotten his name; it may come to me.
RISDIC was a private, it wasn’t really state money that was in RISDIC, it
was each credit union was required to put in some money into RISDIC to
be used to insure if individual credit unions became insolvent. But if there
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was something systemic going on, the RISDIC reserves were ridiculously
inadequate. And this very small credit union, I think used up all of
RISDIC’s resources. The combination of all of those events prompted the
governor to close all of Rhode Island’s credit unions on the 1st or 2nd of
January 1991. The huge majority of Rhode Island residents, something
like two-thirds, had money in these credit unions and most of those had
most of their money in them. They wake up Wednesday morning and they
can’t get to their money. They weren’t allowed to withdraw it. A number
of things happened, but one of them was Rhode Island put together this
commission to investigate the causes of what had just happened.
Somebody else was trying to figure out how to fix the problem if it could
be fixed. And for 18 months nobody had access to their money. They
finally got people back about 80 cents on the dollar, but with no interest
during an almost a 2-year period where they were out of their money.
So the Commission was chaired by a man named Jeff Teitz, who
was 6’7” and not slender. He liked eating about as much as he liked
anything. But he was very smart and a very well-respected state legislator.
And then there were various other people on the commission. There were
private lawyers who were just very smart people. There were public
servants of one kind or another. It was deliberately diverse. It represented
the population of Rhode Island and they needed a special counsel, and Jeff
Teitz somehow knew a guy named Alan Baron and asked him if he would
be interested in doing it. And he said yes but not alone, and he called me.
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The reason we knew each other was that he had represented L. Patrick
Gray in the FBI case that we talked about before. He was a class act. I’m
almost sure I’ve got this together correctly, I was called once by the
Baltimore Sun when Alan was up for something. I don’t remember what it
was, it wasn’t anything terribly huge. But they were doing some kind of
profile of Alan and I said some very complimentary things about him. I
think he remembered that. So the two of us became co-special counsel to
the RISDIC commission. We got teams of investigators and we each put 2
lawyers in addition to ourselves, two that were sort of working for Alan
and 2 were sort of working for me. But we were all working together
shoulder to shoulder. I think we had 6 lawyers and maybe 6 financial
investigators. We were in business for about 18 months. Our job was to
find out what had gone wrong and why and hold public hearings so that
the people in Rhode Island would know what the hell happened to their
money and their government. We held 16 weeks of televised hearings.
Purely because Jeff Teitz’s day did not begin until late morning and didn’t
end until after midnight (and I think maybe he had an additional reason,
but I think that really was what started it), the hearings were from 7:00
p.m. to 11:00 p.m. when we were doing them, every night. And that
meant almost everybody in Rhode Island was watching. It was prime time
TV and there was nothing bigger going on … something about the
RISDIC disaster was on the front page of the Providence Journal just
about every day for about 18 months. We would walk home at the end of
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the hearings, home was to a Marriott hotel. And we’d walk to our offices
in the Capitol in the morning and trucks would stop and drivers would
lean out of the window and say “Go get ‘em, hang them from the nearest
tree.” It was in some ways, it was a lark. The people in those credit
unions in Rhode Island did not cover their tracks. They did some of the
craziest things you could possibly imagine. The credit unions would lend
a million dollars to a real estate developer taking the property to be
developed as collateral. And if the property was appraised at a million
dollars, guess how much they would loan? A million dollars. The theory
was that the borrower was going to build out the undeveloped land and
construct something on it and make some money and pay back the loan.
The loan was due in let’s say a year and at the end of the year there would
have been absolutely nothing done. The borrower would have spent the
money on something else. The credit union didn’t want to write the loan
off as a bad loan. So what would they do? They would get an appraiser
who would appraise the property for $3 million and then the credit union
would loan $3 million and take 1 million to pay back the old loan so that it
had been paid off. That was fine, the borrower’s got a good credit
reputation, they had paid back their $1 million loan. And then 2 years
later the borrower had still not done anything. They would get another
appraiser and the appraiser would appraise the property for $5 million.
They would then loan $5 million, pay off the $3 million with that. I’m
getting my numbers just a tiny bit wrong. There was one where the
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property was appraised 1 million, 3 million, 5 million, 9 million over a
course of about 5 years, when the real estate market was going like that
[gesturing downward]. Alan Baron put on this appraiser. We eventually
decided we needed to call the appraiser, we need to find out what the hell
is going on with these appraisers. He prepared this guy. I was an
audience pretty much, and he was the audience for my witnesses. But he
got to ask the appraiser, where did you get your appraisal certificate? He
named the organization that certified him and said some great sounding
name. Where did you take your courses? “I didn’t really go anywhere to
take my courses.” What did you do, take the courses by mail? “Well,
actually I didn’t take any courses.” Well how did you get your appraisal
certificate? I think Alan interjected, was it one of those mail order things
where you send in a check for $35 and they gave you a nice little engraved
certificate as an appraiser? He said “Yeah.” Then he asked him the
following question: Is it true that a cat from Rhode Island was once
certified as an appraiser? And the guy looked a little sheepish and said
“Yeah, I heard that.” Somebody just to test the bona fides of this thing got
a cat and gave it a name and applied for and received a certificate.
We began with some hearings early on that we could actually
prepare for, and Jeff Teitz wanted us to do this. We suspected that there
were a lot of insiders who pulled their money out before the January 1,
1991 date when the credit unions were closed — because they had
advance knowledge that the banks were going to be closed. As you can
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imagine, this was not a popular thing for them to have done. It was very
easy to conduct the investigation. We got a list of insiders somehow.
There were people at the RISDIC itself, the insurance company so to
speak. And then at each credit union there were people high up. In fact, I
think what we did is we got minutes of the board of directors’ meetings
that they had with the NCUA people, who had told them that they weren’t
going to be able to insure their credit union because it was insolvent. We
got the minutes of those meetings. They were like smoking guns. They
had been told. Everybody sitting in that room had been told, your bank is
insolvent. This would be in the last week of December. It all happened in
the last week in December when these NCUA people came in. We got a
list of all the people at those meetings and then we took their names and
asked some computerized system if they withdrew any of the money they
had on deposit at these credit unions after the meeting, within the last 4 or
5 days of December. I can’t remember how many but a huge number of
people had done that. So then we called them in for depositions. They
took early withdrawal penalties too, most of them. Every single one of
them had a story. So we had a hearing. We called one of these people
after the other and asked them… it was the simplest thing to do in the
world and the easiest thing to do. Our records show that you’re at a
meeting with the NCUA where they told you they couldn’t insure your
credit union because it was insolvent and that happened on December 26.
Then our record shows that on December 28 you withdrew all of the
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money you had on deposit, which was $300,000 and you took a $50,000
early withdrawal penalty. Can you tell us why you withdrew the money
then? If you listen to just one story maybe it could possibly be true. But it
was … you had to kind of avert your eyes as you listened to these people.
And I remember our hearing room was very makeshift and we had a semicircle of seats of the commission members and the lawyers and we had a
cloth kind of behind us. Behind that was just like an empty room. During
these hearings behind that were several human beings listening to the
testimony, most of them government employees. The one I remember
best was Sheldon Whitehouse, who is now Senator. He was then an
assistant to Governor [Bruce] Sundlun. I’ll tell you about the person I’m
talking about. But after the testimony of one lawyer for RISDIC, I went
back there, we took a break, and he was literally lying on the ground
holding his stomach. When this guy was on I had to bite my lip until it
bled a little bit to keep from laughing. But this guy, when I asked him
why did you take your money out: “I needed to close on a real estate
transaction.” This was now June and it was in December that he had taken
the money out. I said, well when was the closing? “Well … it hasn’t
closed yet.” When did the contract say that it was going to close? “Well
… we haven’t signed a contract yet.”
MS. CAVANAGH So none of them admitted it. None of them said …
MR. NIELDS None of them said …. There was one guy who had taken a million dollars
out, who we called up sometime after the hearing. We were not supposed
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to be enforcers. There were another group of lawyers who were going to
be suing people. But we said that we thought it would be helpful to you
and everybody else if you returned the money, and he did. But most of the
people didn’t. Alan had somebody on and he was asked, weren’t you
interviewed by the Providence Journal and didn’t you tell them that you
did not make any withdrawal of your money? And he said yes. But you
did, right? And he said no, no, it was not a “withdrawal,” it was a
“transaction.” Okay, but before you did this transaction you had money in
the bank? Yes. And after you did this transaction you had no money in
the bank? Yes. Anyway I don’t think I can do anything more for you.
MS. CAVANAGH Did the Commission draft a report or something?
MR. NIELDS Yes, it absolutely did. In fact I saw it on my bookshelf within the last 3
weeks. It’s about that fat. An inch or more, an inch and a half. We wrote
things up. But anybody listening to the hearing would know exactly why
those banks failed. Nobody inside the banks wanted to declare a loan bad
because there are available financial records, like there are for any banks
that I know of, that tell you whether you are above or below water, and
that depends on how many loans you’ve written off and what your cushion
is. When things started going bad the last thing they wanted to do was
write off loans and then get closed. They just kept doing what I said
before, which is making loans to cover the last loans that were larger in
amount and even in worse shape when they started than the previous loan
was. We had some borrowers who came in. My favorite pair of
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borrowers had borrowed $10 million each from the Marquette Credit
Union. They had fought like cats and dogs to keep the credit union from
putting their wives as co-obligors on the repayment of the loan. I think
they got them to take their wives off. I can’t remember why the credit
union agreed to it. Then they transferred all of their assets to their wives.
When their real estate venture failed they told the Marquette Credit Union,
we don’t have any money, we can’t pay back. They were there. Why did
you transfer the money to your wife? “Estate planning.” You can imagine
how fun that cross-examination was.
MS. CAVANAGH So following the report, you probably made recommendations or
something. But you weren’t engaged subsequently in any of the lawsuits
or ….
MR. NIELDS We were not remedial.
MS. CAVANAGH Legal changes.
MR. NIELDS We had the job of making transparent what had occurred.
MS. CAVANAGH Sounds like you did that. Very successfully.
MR. NIELDS We did that. Very successfully. It was hard because for that 16 months I
was in Rhode Island for 3 days or 4 days a week. That wasn’t my favorite
place to be, but it was also really fun. And we did think that we achieved
what we had been asked to do. So that’s the story of that.
MS. CAVANAGH Good. I guess we can move on to your representation of Webster Hubbell,
unless you have other cases you want to talk about that were sort of in
between; I mean we are running together things time-wise.
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MR. NIELDS There are lots of cases in between these things. Oddly, I did a lot of false
advertising cases for pharmaceutical companies. Those were small cases
and they are fun because they’re done all on preliminary injunctions and
you get to try them in a one- or two-day period and then there is a
decision. They are also very funny. I never was in front of a judge on a
false advertising case where the judge didn’t crack a joke in the first 30
seconds. What kind of “relief” are you looking for, counselor? That sort
of thing. I did a lot of antitrust cases, big antitrust class actions. One
against the FTC, that’s a little bit later, arbitrations, I did a number of
those, criminal appeals and some trials. But nothing, at least in this
period, that is probably worth talking about in specifics.
MS. CAVANAGH OK. So you defended Webster Hubbell against a series of indictments
filed by the Independent Counsel who was investigating President Clinton
at that time. Maybe you can talk a little bit about that and how you got
involved in that.
MR. NIELDS Well I got involved in it because there was … let me step back and start
from the beginning. There was not an Independent Counsel. Bob Fiske,
who was a lawyer at Davis Polk when I was there, he was a U.S. Attorney
in the Southern District of New York after I was there. I think he was
Deputy or Associate Attorney General. He was an exquisite lawyer. You
could not possibly find a better person to do whatever had to be done with
Whitewater. I don’t know who’s going to read this so I can’t say … of
course you already know. So there were these press articles about the
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Clinton family and they had to do with the Madison Savings & Loan
company, which Hilary Clinton’s law firm did some work for. They had
to do with this land investment known as Whitewater, I don’t even
remember what the problem was supposed to be. There ended up not
being a problem. Looking into whether somebody had made a gift to her,
which was something akin to a bribe or something that was improper for
her to take or for her to take while she was married to the governor, which
was her husband. The New York Times, in particular, but other press got
interested in this and they were clamoring for the appointment of an
Independent Counsel. Janet Reno, who was the Attorney General,
resisted, resisted, resisted. And then finally, I think President Clinton
asked her to appoint someone to get the press off his back, over the strong
counsel of lawyers like the White House counsel. And Janet Reno didn’t
want to do it because she didn’t think there was an evidentiary basis for it,
and there wasn’t in my view and I think in most people’s view. Anyway
Bob Fiske gets appointed. For some reason I want to say he was not
appointed under the Independent Counsel statute. And I can’t remember
whether there was a period of time when the Independent Counsel statute
wasn’t in existence, when it lapsed or something like that. I’m confused
about this. [President Clinton signed the Independent Counsel
Reauthorization Act of 1994 the day that Fiske released an interim report,
and Fiske was subsequently replaced by Kenneth Starr, who was
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appointed Independent Counsel by the Special Division under the
reauthorized statute.]
Anyway Bob Fiske began investigating Whitewater and other
ancillary things that he bumped into during the course of investigating it.
One of the things that he started investigating had to do with Webb
Hubbell. Webb Hubbell had been in the Rose Law Firm, which is the
same law firm that Hillary Clinton was in, and in fact he probably can best
be described as her mentor in that firm. There was a very small litigation
department made up of Webb, Vince Foster, and Hillary. He was as close
as a person can be to being her mentor. When Clinton got elected
President, he asked Webb Hubbell to come to Washington and take the
position of Associate Attorney General, which is either tied for No. 2 in
the Justice Department or it’s No. 3, it sort of depends. There is an
Attorney General and then below the Attorney General are the Deputy
Attorney General and the Associate Attorney General. Sometimes in one
administration one might be more important than the other. Anyway, they
are the number 2 and 3 officials in the Justice Department. Webb came to
D.C., I think, before there was an Attorney General or a Deputy. There
were some peculiar articles written in the Wall Street Journal. I think they
were titled, Who is Webb Hubbell? [See, e.g., Who Is Webster Hubbell?,
Wall St. J., Mar. 2, 1993.] They were sardonic and he was a Little Rock
hack in their minds, and maybe in some other peoples’ minds. As various
people high up in the government began to get their own lawyers, I got a
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call from Neil Eggleston, who was White House counsel under Obama,
his last White House counsel, and he was in the White House counsel’s
office then. He had done the Iran-Contra investigation with me, he was
my deputy there. Then he came to Howrey, then he left Howrey to go into
the White House counsel’s office job. Anyway I get a call from him that
Webb Hubbell needs a lawyer and I’ve recommended you to him. And I
remember vividly seeing him come up the escalator to the reception area
at Howrey. Ostensibly, he didn’t need a lawyer but he seemed to want to
have one. Anyway, there’s a limit to what I can go into here so let me
think this through. I can’t remember whether I learned this from Bob
Fiske’s office, from Julie O’Sullivan, or whether I learned it from a lawyer
for the Rose Law Firm or both, but there was an investigation brewing and
gaining speed and momentum into Webb Hubbell’s conduct at the Rose
Law Firm. They had a system where you would charge law firm
expenses on your personal credit card and then you’d bill the firm or you
bill the clients, and if it was personal, you would pay it yourself. If it was
a firm expense you would bill the firm and if it was a client expense you’d
bill the client. The investigation was into whether he had used his credit
card for personal purposes, which was proper, but then he had billed some
of the personal charges to his clients or to his law firm. [Webb, much
later, wrote a book about all this.] At some point during this period of
time, Webb decided he needed to resign from his position in the Justice
Department. So the first thing I want to say is that he was as far from a
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political hack as you could get. He was revered, I mean revered, by
everybody in the Justice Department from Janet Reno to the janitor.
When he resigned, somebody put together a book of letters that was about
that thick. This isn’t normal, I don’t care how much people may think
you’re great. It was from everybody at all levels of the Department. He
was a quick study and he made prompt decisions and he made them
decisively and he made them well. His political savvy was there, his legal
savvy was there, and his judgment was there. And God bless people who
can do this and do it well: he made decisions quickly. His door was open
and he would get things resolved. Friendly, always friendly. He is one of
the kindest, and he had an extraordinary record in Little Rock. He had
been appointed Acting Chief Justice of the Arkansas Supreme Court. He
had been elected mayor of Little Rock. He was the managing partner at
the Rose Law Firm. He was the person who principally integrated a Little
Rock country club that never had an African-American in it before,
notwithstanding the many in the population. He did enormous amounts of
public service kinds of works in addition to mayor and Acting Supreme
Court Chief Justice. He was living beyond his means. There was nothing
I could do for him. Really, I tried many things but there was really
nothing that I could do. Even Ken Starr at his sentencing stood up,
because I had talked about this book of letters that had been put together
for his resignation ceremony, and said some other things at his sentencing
proceeding on his behalf, and Ken Starr got up and he said, I don’t
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remember his exact words, but essentially said that this outpouring of
letters can’t be ignored and shouldn’t be ignored in the sentencing process.
The judge [U.S. District Court for the Eastern District of Arkansas Judge
George Howard Jr.] said, he quoted the line from the Bible I think: “To
whom much is given, much is required and you failed.” He gave him 21
months sentence in jail. That was one of the more painful representations
up to that point in time that I had ever been involved in. He’d also agreed
to cooperate, which is part of why we got friendly remarks from Ken Starr
at the sentencing proceeding. I won’t get into the details. But the Clintons
had done nothing wrong – at least that he knew about – and Ken Starr’s
staff was not happy with him. Webb served his sentence, and then the
investigation of the Clintons and, as you will hear, of Webb Hubbell
started up again.
MS. CAVANAGH As a side note to that, in light of current events, I wonder if you had any
interaction with Brett Kavanaugh, who I believe was on that staff, and no
relation to me.
MR. NIELDS I was going to say that is a very good last name but it has the wrong first
letter in it and it has a u.
MS. CAVANAGH Exactly.
MR. NIELDS Very little. I met him. I can’t remember exactly where but I knew
somebody who looked like that who had the name of Brett Kavanaugh
was around the investigation. It bounced around. There was a group of
people who were grilling Webb who were absolutely convinced that the
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Clintons were crooks and that Webb Hubbell absolutely had to know
about it. Then they started investigating him for everything and anything
that they could. They served a subpoena on him while he was in jail, that
was all your financial records, all your tax records, all your records of any
kind. I insisted that he not produce that unless they gave him a statutory
grant of immunity, which they did. Then he produced, while he was in
jail, he produced all these records. They had three or four different
theories of what he must have done wrong. One was taking bribes from
people who were paying him consulting fees and were friends of the
Clintons. Well that didn’t pan out. They had some other theory, I’ve
forgotten what it was. That didn’t pan out. Then they ended up indicting
him for evasion of payment of taxes.
MS. CAVANAGH And his wife, right?
MR. NIELDS Not just his wife. They indicted him and his wife and two tax
professionals that had helped his wife pro bono with the family finances
while Webb was in jail and couldn’t do it. Virtually nobody gets indicted
for not paying their taxes. These were taxes that he owed because of the
fact that he had pleaded guilty to embezzling and he hadn’t paid any taxes
on the embezzled funds. So at the end of the criminal case he owed a
huge amount back to the Rose Law Firm and he owed a huge amount in
taxes. Then after he sits in jail for a while, they indict him for failure to
pay his taxes. They indicted him for evasion of paying his taxes, which
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only happens if you do something fraudulent like hide assets in a Swiss
bank account.
MS. CAVANAGH Concealing income.
MR. NIELDS Concealed income or something like that. But they were not indicting him
for failure to report his income. It wasn’t tax evasion. It was failure to
pay the taxes that he owed because of the prior case and didn’t have any
money to pay it back with.
MS. CAVANAGH Were they actually trying to exert pressure on him to turn on the Clintons?
MR. NIELDS That’s what it was about. And then they indicted him a third time for God
knows what. It had to do with the Madison Guaranty and I never could
figure out what the theory of criminality was that arose out of Madison
Guaranty or the Rose Law Firm’s representation of Madison Guaranty. It
was just never defined; it was a haze and a maze. We’ll get to this part of
it in a minute. The second indictment we got dismissed by the trial judge
because he had been granted immunity.
MS. CAVANAGH Judge [James] Robertson [U.S. District Court for the District of
Columbia].
MR. NIELDS Judge Robertson. The government admitted that the way they had gotten
to the indictment, after trying to use his documents to convict him of
bribery, which they couldn’t, and something else, which they couldn’t,
they then decided to pursue this ridiculous tax evasion of payment and
they admitted that they used the documents that he produced under
immunity in order to get the indictment. But they had some theory, and
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the Justice Department had pursued this theory actively, and most of the
defense bar was just agreeing to it, that so long as you didn’t tell the jury
how you got the documents, that they were produced by the human being
that you are using them against, you could just go ahead and use the
documents. Well there was screwy language in a case and a screwy
footnote in a case, which has become affectionately known as Doe I, that
strongly supported that idea. [See United States v. Doe, 465 U.S. 605
(1984).] It infuriated me the day it was written. God bless Justice Scalia
when he was a judge in D.C. Circuit, he wrote an opinion that essentially,
he didn’t write it about this but he wrote a couple of sentences that made it
clear, he wasn’t buying this doctrine at all. It had to do with how does the
Fifth Amendment apply to document subpoenas, in what way does it
apply. Justice White had written the key opinion the year I clerked for
him. [See Fisher v. U.S., 425 U.S. 391 (1976).] So I was aware of the
doctrine and I was unhappy that it was being perverted and I made sure I
made my record when they wanted his documents. Other lawyers were
just taking a letter that the Justice Department writes, that DOJ won’t ever
use the fact that you produced the documents; but DOJ will use the
documents against you. It was really dopey. But they all believed in it.
They totally believed in it. I said, you’re not sending me a letter when I
have one idea of what the immunity means and you have another idea.
We’re not doing it by agreement. You’re going to have to get an
immunity order from the court compelling him to produce it. So anyway
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Judge Robertson dismissed it. [See U.S. v. Hubbell, 11 F. Supp. 2d 25
(D.D.C. 1998).] They then filed a third indictment.
MS. CAVANAGH So just to go back. District Judge Robertson dismissed the charges for the
second indictment, that was affirmed on appeal?
MR. NIELDS The Court of Appeals wrote an opinion agreeing with most of what Judge
Robertson said, but also saying that if the government could make some
sort of a showing that they knew about all of the documents before they
subpoenaed them that then it wouldn’t violate the Fifth Amendment and
then the indictment could go forward. [See U.S. v. Hubbell, 167 F.3d 552
(D.C. Cir. 1999).] But it was very obvious to the Independent Counsel
and to me that there wasn’t any way they’d ever be able to meet the
standard that the D.C. Circuit had written.
MS. CAVANAGH One of our devices is recording but the backup one seems not to be. One
of them is fine, one of them is not but this is the one I use. I don’t want to
spend a lot of time figuring it out. Let me just do a new one. We’re good.
MR. NIELDS But you’ve also made me clarify in my mind. What the D.C. Circuit did
to Judge Robertson’s opinion throwing out the indictment was to send the
case back for further proceedings. But from the opinion they wrote, which
largely accepted our view of life, it was clear and clear to everybody on
both sides that they were not going to be able to … when the thing was
sent back they weren’t going to be able to meet the burden that they would
have to meet to be able to go forward with the case. And then he gets
indicted a third time for something having to do with Madison Savings &
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Loan. It was a tortured indictment. But I was concerned that I might end
up being a witness and I can’t remember why anymore. But there was
some issue that I might end up being a witness. So Pete Romatowski, who
was then at Crowell & Moring, a very fine white collar criminal defense
lawyer, former Assistant U.S. Attorney in the Southern District of New
York, whose daughters were students of my wife, agreed to take it over;
we worked on it together but he was prepared to be the person who had to
stand up in court in case I couldn’t. That case meandered a little bit. Then
the time came when I thought I ought to try to … let me back up a little
bit. The thing that he’d actually been guilty of was a pretty miserable
thing to go through for everybody, including me and him and his wife and
family. We thought it was at least over and then it turned out it was not
over. And the period of time during which he was still being investigated
or prosecuted for these other non-crimes had lasted longer than the
original case had. It’s hard to explain this unless you lived it, but it felt
like it wasn’t ever going to end. There’s no way he can begin his life
again. No way I could begin my life again. It was obsessing. It didn’t
make my firm very happy either, as you can imagine. Anyway we
decided the time had come to see if we could get things resolved. The
Independent Counsel had gotten hung juries in two recent cases. People
were getting uncomfortable with how long everything was going on and
how relentless it all was. Even talking about getting rid of the
Independent Counsel law. And so I called up Ken Starr, whom I knew
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from clerking days, and said I think we should talk. He said I agree. We
ended up … they were very interesting conversations that I think I
probably won’t go into but I had to fend off a few things and I did so, I
thought, pretty well. We ended up with a plea deal that he would plead
guilty to something and get no jail, no probation, no fine, and a promise in
writing as part of the plea deal that the Independent Counsel would never
investigate him for anything else for the rest of his life.
MS. CAVANAGH Although I have that he was sentenced to a year probation in exchange for
the prosecutor dropping all the charges against his wife, his lawyer, his
accountant and an agreement not to bring further charges. Maybe that’s
not right.
MR. NIELDS I don’t think it’s right.
MS. CAVANAGH OK. But the key here was no charges ever again, right?
MR. NIELDS No charges ever again was, that was the thing that I don’t think has ever
been in any plea deal before.
MS. CAVANAGH That’s amazing.
MR. NIELDS Dropping charges against everybody else was the one that was essential.
MS. CAVANAGH That was important to him.
MR. NIELDS He wouldn’t have done it otherwise. He felt bad enough about the mess
he got himself in, but for totally innocent third parties to get into this mess
because of him, was something he wasn’t going to let happen.
MS. CAVANAGH Did Ken Starr claim this as kind of a victory?
MR. NIELDS No, I don’t think so. I mean who knows.
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MS. CAVANAGH Failure to disclose to federal regulators, a potential conflict of interest in
an unrelated savings and loan lawsuit from 10 years earlier.
MR. NIELDS But another part of the plea agreement, which they wanted me to throw in,
was that he would plead guilty to a misdemeanor tax charge on the tax
case. And their purpose was they wanted to get the Court of Appeals
decision on the immunity issue reviewed by the Supreme Court because
they thought that they were going to win. And they didn’t want to leave
bad law out there for the Justice Department. And I’m thinking, you just
made my day. Webb liked it too and so we said fine. But it means that if
you lose the appeal then that plea gets wiped out. That conviction goes
away.
MS. CAVANAGH And that’s what happened.
MR. NIELDS That’s what happened, and the Supreme Court ruled for us 8 to 1. [See
U.S. v. Hubbell, 530 U.S. 27 (2000).]
MS. CAVANAGH Chief Justice Rehnquist dissented, right?
MR. NIELDS Chief Justice Rehnquist dissented.
MS. CAVANAGH Did you have much interaction with David Kendall, who was the Clinton’s
personal lawyer at that time?
MR. NIELDS Well I certainly had some. I don’t remember talking to him about Webb
until after the first plea.
MS. CAVANAGH Some of the news reports suggested that he tried to distance his clients
from Webb Hubbell.
MR. NIELDS I don’t remember. Do you know what that meant?
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MS. CAVANAGH I don’t. I guess to whatever extent that Webb Hubbell was getting into
some sort of legal trouble, the Clintons had nothing to do with that.
MR. NIELDS Well that certainly would have been Webb’s view.
MS. CAVANAGH Right, about the particular charges.
MR. NIELDS Yes. I don’t remember thinking … I suspect that the Clintons were under
instruction not to communicate directly with Webb about anything. There
were some other … There was an episode in which I was driving down the
road somewhere on the way to work or on the way back and I flipped on
the radio for some reason, I don’t usually listen to it. I heard a
conversation between Webb Hubbell and me on the radio, which they
taped while he was in prison.
MS. CAVANAGH Really?
MR. NIELDS Yes. But then there were some other ones that Webb had with somebody
else, somebody who was in the Clintons’ sphere. They had been turned
over to a congressional committee. Congressman Burton, does that ring a
bell? There were two Burtons. I think Dan Burton was his name. He was
very very far to the right. I think he subpoenaed from the Justice
Department prison-taped conversations and he then released cropped
versions of them. They seemed to have terrible implications to them and it
turned out that somebody in the House, I think it was Republican at this
time, but I knew somebody on the staff of the Democratic minority and
they got the full versions and exposed that the conversations meant the
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exact opposite of what they seemed to mean when Burton released it. I
think he fired that guy, David Bossie, who is now in the news again.
MS. CAVANAGH You talked a little bit before about how you became opposed to the
Independent Counsel statute. I don’t know if you have anything you want
to add to that now?
MR. NIELDS Yeah. Well I felt very, very, very strongly that the Independent Counsel
statute had been turned into the opposite of what it was intended to be. It
was designed to make sure that higher ups, big and important people, were
treated the same under the law as everybody else. We’re all equal under
the law. And the Independent Counsel statute was enacted to make that
happen and be true, and instead it created a world in which the exact
opposite was true. People were getting investigated and indicted for
crimes that ordinary citizens would never be prosecuted for. They
wouldn’t even be investigated for them and if they had been investigated
they wouldn’t have been prosecuted. They were overreaches and every
Independent Counsel was staying on their prey for five years or
thereabouts. The Iran-Contra Independent Counsel, they had several
iterations of them, I think there were new ones to replace the old ones, and
then they ended up indicting Cap Weinberger two days before the statute
of limitations ran. The Whitewater thing was just a catastrophe in that
regard. There never should have been a “Whitewater” investigation to
begin with. The treatment of Webb Hubbell was like Exhibit A of what’s
wrong with the Independent Counsel statute. A normal Justice
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Department never would have been investigating Webb Hubbell a second
and a third time. I also believe that the press, which was largely
responsible for this happening to the Independent Counsel statute, because
once they had Watergate, that made them famous in a way they never had
been before. They didn’t understand the criminal justice system. They
don’t know what separates actual prosecutable crime from what doesn’t.
There’s all kinds of technical things that you can stitch together and make
a case out of. They were just wild theories, wild legal theories or legal
theories that you could actually speak coherent sentences in favor of, but
that no normal Justice Department would ever think of prosecuting
anybody for. And so our justice system was being co-opted by the
political world.
MS. CAVANAGH Do you have a similar reaction with respect to the Special Counsel
investigations that are going on now, in terms of overreaching?
MR. NIELDS Well I would only say this, it’s a concern. Having said that, I have no
reason to think that what is being done now is anything but absolutely
legitimate. There is no question but that we needed an investigation of the
Russians interfering in our elections and that normally, it should happen
here too, should include figuring out who was a part of that. I don’t have
the slightest reason to think that Mueller is engaging in behavior any
different from what would be done in a non-political environment, other
than he’s probably got more personnel working on it than if it were not
political. But here the political issue is some foreign country messing with
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our elections. That’s not partisan political, that’s just political and legal.
But since you are pressing me on this, I don’t think I told you this story
before. There was a press person. I’d had several meetings with Ken
Starr begging him not to file the tax case on all manner of different
grounds.
MS. CAVANAGH That was the second indictment?
MR. NIELDS The second indictment. I didn’t think I was being successful but I was
hoping that I had. There was a reporter who knew that I represented
Webb Hubbell and talked to me from time to time and gave me
information more than he ever got any. I got a call from him at 10:00 one
morning. He said, I think they are going to announce the indictment of
your client at two in the afternoon or something like that, which was
deeply distressing to me, it angered me. He said I think I can call you
fifteen minutes before they’re going to come out and announce it. And I
said I’ll be grateful if you would do that. In a fury I drafted a statement
that I wanted to give the press. I got the call from the press guy and I
jumped in a taxi cab or, I don’t think I ran, I think I jumped in a taxi cab
and went down to the courthouse. The Independent Counsel’s people and
their press guy were walking out the front steps and there was a bank of
microphones. There were like fifty microphones and there were speakers
and there were press sitting down lower on the steps of the courthouse. I
circled around behind them and listened to the Independent Counsel
standing about twenty feet behind them, just listening to them, and then
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they finished. As soon as they walked out I walked right up behind them
and introduced myself and spoke my mind. I’m pretty sure this is exactly
what I read and what I distributed.
MS. CAVANAGH Do you want me to read that into the recording? Into this record?
MR. NIELDS I mean this record.
MS. CAVANAGH We can include documents and that’s something we’ll need to talk about
at the end because I don’t know what they want exactly, but I have to
figure that out. But they definitely want to include some kind of key
documents. You can read it if you want.
MR. NIELDS Well I don’t want to make you do that.
MS. CAVANAGH Then you read it.
MR. NIELDS You want me to read it. It was fun to deliver I must say. This is just after
they moved and I read this. “This is another bad day for the Office of
Independent Counsel. For the last eighteen months the Independent
Counsel has investigated Webb Hubbell for many different things hoping
to find something to prosecute him for again. At the end of it all they have
reached out very probably beyond the limits of their jurisdiction and
brought a rare type of tax charge against him. It is a tax charge that we are
convinced would never have been brought against an ordinary citizen by
the United States Department of Justice. They have brought this charge
not only against Webb in order to get at him, they have brought these
charges against his wife Suzy and two tax professionals she turned to for
advice while Webb was in jail. Tax professionals who worked for free
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solely out of the goodness of their hearts to help a family in distress. All
four are innocent of the charges. You see the crime of evasion of payment
occurs only when a taxpayer commits some sort of fraud or concealment
intended to prevent the IRS from collecting a tax, like putting assets in
another person’s name or putting money in a numbered Swiss account.
That did not happen here. The Independent Counsel’s decision to bring
this case cannot be explained by what these people did. There must be
some other reason. This is the second time they have prosecuted Webb
Hubbell. The first time, justice was done. He pleaded guilty to serious
fraud and tax charges. He was in prison for eighteen months, he was
disbarred, and he acknowledged a debt of a million dollars to the Rose
Law Firm and the IRS. The Office of Independent Counsel brought Webb
Hubbell to his knees. He has now paid his debt to society. He has
confessed, he has been punished, and his family has been brought to
financial ruin. And now that he is struggling to get up off his knees and
rebuild his life, the Independent Counsel wants to shove him back down
and prosecute him again. This time not for stealing but for failing to pay
the enormous tax debt he owes because of the first prosecution. This time
they have gone too far. It is the first and most sacred rule of criminal law
enforcement that a prosecutor should investigate crimes, not people. A
good prosecutor does not target a particular person and then investigate to
see if that person committed any crime. A prosecutor investigates possible
crimes and tries to determine who did them. This is unfortunately not the
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only recent example where the powers of the criminal justice system have
been used to hunt a public or political figure where those same powers
would never have been used to investigate an ordinary citizen. It has
become an all too common form of sport, but it is a recent form of sport
and it has got to stop. It does discredit to our criminal justice system and
to our country. In this country everyone is supposed to be equal under the
law. We have Independent Counsel precisely to be sure that justice will
be evenhanded, that a decision to investigate or prosecute a person will be
unaffected by who that person is, and yet it is Independent Counsel who
seem to single out particular people for special treatment under our laws.
It is a terrible irony that they have become the cause of the very problem
they were created to correct.”
After sitting on my hands for three years or so, I really enjoyed saying
that, especially with a ready-made audience invited by the Independent
Counsel.
MS. CAVANAGH Did they ask you questions? Did they follow up with questions?
MR. NIELDS I can’t remember. I think I stepped away.
MS. CAVANAGH I’m going to let you have your lunch soon, but I did want to ask you if you
stayed in touch with Webb Hubbell. I read that he had a liver transplant
and he writes novels.
MR. NIELDS He writes novels and they are damn good.
MS. CAVANAGH Really, are they like legal thrillers?
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MR. NIELDS Yes, he writes about things that he knows. He writes about lawyers,
politicians, and Little Rock, Arkansas. And there is a scene in his first
novel that’s as good as any scene I’ve ever read in any book. It’s just …
what’s the right word for it…. It’s on fire. I’ve read his second book and
I have his third but I haven’t read it yet. Finally he’s found something that
he’s good at, that he likes to do.
MS. CAVANAGH He lives in Arkansas?
MR. NIELDS No. He lives in Charlotte, North Carolina, where one of his daughters is
practicing law. He stayed here in D.C. for a long time.
MS. CAVANAGH We can wrap it up. Do you have anything to add for today? I feel like we
have a whole other meeting. I don’t think we can finish today.
MR. NIELDS I think that’s probably right.
MS. CAVANAGH Did you want to add anything else today?
MR. NIELDS No, I’m fine.
MS. CAVANAGH Good. We’ll shut it down.
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ORAL HISTORY OF JOHN W. NIELDS, JR.
Sixth Interview
October 22, 2018
This interview is being conducted on behalf of the Oral History Project of the
Historical Society of the D.C. Circuit. The interviewer is Elizabeth Cavanagh and the
interviewee is John W. Nields, Jr. The interview took place at the offices of Covington &
Burling on Monday, October 22, 2018. This is the sixth interview.
MS. CAVANAGH So John, you at some point in the ‘90s were on the D.C. Bar Board of
Governors. Maybe you can talk a little bit about that.
MR. NIELDS Well a very good friend and sometime colleague named Andy Marks, a
wonderful, wonderful lawyer, and someone who was a President of the
D.C. Bar at the time or maybe he was about to be, asked me if I would be
on the Board of Governors and I said yes, of course. That at least started
me in the direction of understanding what the D.C. Bar was and what it
did and eventually led to my running for and getting elected as a D.C. Bar
President for a one-year term.
MS. CAVANAGH That was in 2000 to 2001 that you became President?
MR. NIELDS Yes, and I think one got elected a year before that and served the year as
President Elect, and then I think there was a year as immediate past
President. Those two things involved not very much time. But the D.C.
Bar President duties, at least as I defined them for myself, took up over
50% of my time during the year that I was doing it.
MS. CAVANAGH Would you like to talk a little bit about the initiatives that you worked on
as President of the D.C. Bar?
MR. NIELDS Sure. I don’t any longer remember exactly how this issue came to my
attention, but there was some commotion and disagreement among law
252
firms as to whether…. Well, law firms were starting to define the
appropriate number of hours for associates to work.
MS. CAVANAGH I remember.
MR. NIELDS And then the question arose, because there was already a very strong and
rich pro bono culture among at least big firms and many, many small firms
in D.C. We’re unique, I think, or at least we’re at the good end of the
spectrum on the issue of pro bono culture for bars around the country.
And so the question arose, did associates who spent a lot of time on pro
bono cases, did they get credit for those hours towards their expected
hours of work for the year. And firms had inconsistent practices with
regard to that and I sort of teed that issue up as issue number one that I
would want to focus on, and I put together a committee of a lot of really
wonderful people, some of whom were kind of pro bono-y types and
worked for service providers, and some of whom were in law firms and
ran their pro bono programs, and some were managing partners in major
law firms. And the goal was to come up with a recommendation that
every firm in the city would count pro bono hours towards their goals for
their associates. It ended up doing pretty well. And I think we also
addressed what would be the expected amount of pro bono hours for an
associate to do, as a percentage of their total hourly targets. Not every law
firm signed on, but I think we approached the largest 25 law firms and I
think like 80% of them signed up for the full deal. Some firms who did a
lot of pro bono work said they didn’t want to have it be a strict rule, even
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though they had a very good pro bono culture. So that was fine. Then
later, I think this happened later when I was chair of the pro bono
committee for the D.C. Bar, that we went back and approached the 15 next
largest law firms and got almost all of them to sign up for the same thing.
And the firms reported the firms’ pro bono hours at the end of every year.
All of the firms reported their pro bono numbers. I don’t know that we
made them public, but it made law firms focus on this as an issue that
mattered.
MS. CAVANAGH Did the goal have to do with overall pro bono hours at firms or pro bono
by each person at each firm?
MR. NIELDS Both.
MS. CAVANAGH Interesting.
MR. NIELDS Both, but obviously there were going to be some lawyers at big law firms
who get assigned to cases that are wall-to-wall with work and they don’t
have enough time even to do what they are supposed to be doing on those.
So it wasn’t as though we said it should be mandatory that everybody do a
certain number. But there was a goal for individual lawyers and then a
goal for the firm, pro bono hours as a percentage of billable.
MS. CAVANAGH Right. At least the firm where I worked had a kind of recommended
billable number and then a recommended “other” number, which included
both pro bono and …
MR. NIELDS `Professional activities and stuff like that.
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MS. CAVANAGH Is that still true at firms? Do you have a sense of if firms have kept with
those kinds of guidelines today? I don’t have a sense of how that’s
changed.
MR. NIELDS I think firms are still reporting. I haven’t checked with the recent bar
presidents but I think that they are still reporting numbers and they were
basically meeting their goals all the time I was chair of the D.C. Bar pro
bono program [which I did for six years after being Bar President], and
mostly increasing them. So last I was in the know, things were working.
MS. CAVANAGH When you were pro bono committee chair, were you engaging directly
with legal service providers as well? Were you playing some kind of in
between role with legal service providers and public interest type
organizations and law firms?
MR. NIELDS Well, it was very important that we know and be extremely friendly and
have good relationships with all of the independent pro bono legal services
providers. But the D.C. Bar pro bono program differed from all the
service provider entities that function in D.C. in that the service provider
entities, basically the lawyers who did the pro bono work were employed
by them. They were staff. Whereas the D.C. bar pro bono program was
leveraging the availability of private lawyers throughout the legal
community. We thought there were a lot of resources available there.
Also, it was very good for the culture of the legal community in this city.
MS. CAVANAGH I have to say as an associate at that time, it was valued at firms to the
extent that it gave young lawyers opportunities to be in charge of cases.
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MR. NIELDS And to be trying cases in court, where they would never get into court on a
big paying case that they were working on. They got to question
witnesses, they got to write briefs, they got to meet with clients, they got
to interview them. So yes, and some of it was fairly routine and some of it
was fascinating and exciting and challenging, and winning a case for a
client just put everybody on a high. So that was good.
The second thing that I was focused on or wanted to focus on and
announced when I made my inaugural speech, not quite the right word,
was that the Superior Court in D.C. was then funded by Congress.
Congress said how much money they were going to get and Congress
authorized the release of the money. That was changed. I can’t now
remember the byzantine different structures and relationships that the D.C.
City Council and the Congress had on funding issues, but at least at that
time the D.C. courts, if they needed money, they were going to get it from
Congress. And they didn’t have a history or particular skill at lobbying
and they had real trouble. Funding came late, it was inadequate.
MS. CAVANAGH Is that separate from how the D.C. Court of Appeals was funded? You
mentioned the Superior Court.
MR. NIELDS I think the D.C. Court of Appeals was in that. And I think maybe even
Probation. Some pretrial services. But it was mainly the Superior Court,
they were the ones that were coming to the Bar and saying can you help
us. And I got — the Bar can’t help them lobby Congress unless we have a
vote of the membership that permits us to do that. You have to have a
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meeting to do that and that’s a complicated thing that doesn’t amount to
much at the end of the day. You had to obey all the rules. Anyway I put
that together and had a meeting. You have to have a quorum. I got about
40 lawyers at my law firm who said if I didn’t get a quorum they would
run across the street where the meeting was and make it. Anyway we
made the quorum. We got the right to lobby. And we got a fabulous
editorial in the Washington Post at just the key moment in time. Whatever
it was, and I don’t remember how much difference it made, but the
Superior Court was very grateful to us for the efforts and the success that
we had with that.
The other main thing I did was to put on a concert at the Birchmere, which
is a major venue for folk singers and other kinds of singers down in
Alexandria, and it seats about 500 people. The featured singers were my
daughters, who, as I think I mentioned before, in fact that’s what they do
for a living.
MS. CAVANAGH Yes, The Nields.
MR. NIELDS The Nields. They came. They were just delighted to do it. They came
down. I can’t remember how we charged for seating. I think we charged
a much lower ticket fee for the people who were working for service
providers and a higher fee for people working for law firms. And we sold
out.
MS. CAVANAGH That was the fundraiser that benefitted ….?
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MR. NIELDS That benefitted the D.C. Bar’s pro bono program. But it was [a
fundraiser] and everybody knew that. I think we raised $10,000. That’s
what we cleared or something like that, which is not a huge portion of the
D.C. Bar pro bono annual budget, but having 500 people having a hell of a
good time ….
MS. CAVANAGH Community building event.
MR. NIELDS Community building. It was pretty good.
MS. CAVANAGH That’s great. Maybe you can talk a little bit about when you were on the
Board of Directors at the D.C. Appleseed Center.
MR. NIELDS Unlike many other people, and it’s a marvelous organization and there are
marvelous people that work for it, the D.C. Appleseed (and there is a
national Appleseed organization), the D.C. Appleseed organization’s
Board of Directors is peopled by folks in our legal community and nonlegal community who really really care about issues of the District of
Columbia and making it a better place. It does all manner of things. I was
on the Board only for a fairly brief period of time and only because of one
case that my friend and partner Lois Williams got me interested in. It was
a challenge to the statute passed by Congress that forbid the District of
Columbia from taxing commuters. [See D.C. Home Rule Act of 1973,
Pub. L. No. 93-198, 87 Stat. 774.] That is, taxing people who earned their
money in D.C. and lived outside of it. The first thing one has to know
before one would think that this was a sensible lawsuit to bring, is that
there is no other jurisdiction in the country, and maybe even in the world,
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that does not tax all of the income earned within its borders. In other
words, it’s a taxing principle that the primary right to tax belongs to the
jurisdiction in which the money is earned. So D.C. lawyers who live in
D.C. pay taxes to New York, for their New York offices and California for
their California offices, but they don’t pay any taxes to D.C.
MS. CAVANAGH Where they work every day.
MR. NIELDS Where they work every day. And the second thing you need to know
before you will think maybe this was a good idea to bring this case, was
that — I think the GAO put out a report that explained and confirmed this
— which is that without the ability to tax income that is earned within
D.C. borders by commuters, D.C. has what they call a “structural deficit.”
What that means is that if you impose ordinary normal average tax rates
on your residents, you will not have enough money to provide ordinary
average services to the people who live and work here. So we brought an
Equal Protection Clause case. The ethos of it takes you back to the Boston
Tea Party, taxation without representation. The fact that what you have
here is a law enacted by a legislature that is elected by all the people who
live in the states and not even a single voting member of which is elected
by the people who are being disabled from taxing. So it is a law that
discriminates in favor of the voters and against people who can’t vote.
That is a predictable discrimination for a legislature to have. There’s a
case called Austin v. New Hampshire [420 U.S. 656 (1975)], I think, in
which a New Hampshire law that taxed commuters at a higher rate than
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residents was struck down because it was a discrimination that favored the
people who vote for you and disfavors the people who don’t or can’t. And
so we said that worked, flipped here, but the principle was the same. If
you ever would have, if a court should lean in the direction of calling the
discrimination illegal, it would be in a case where you had this disfavoring
of people who had no representation and favoring of people that do. So
that was our theory of the case. We persuaded nobody. We lost in the
District Court and we lost in the Court of Appeals and cert was denied in
the Supreme Court. [See Banner v. United States, 303 F. Supp. 2d 1
(D.D.C. 2004), aff’d, 428 F.3d 303 (D.C. Cir. 2005), cert. denied, 547
U.S. 1143 (2006).] The reason I thought we lost and expected we were
likely to lose is the federal payment, which is something that Congress
was giving the District of Columbia extra, outside of the ability to tax
commuters. One could picture it as “in place of.” And even if we could
demonstrate that it wasn’t adequate and it didn’t fix the structural deficit,
you still ended up saying, well what’s the remedy here? They are already
giving you a federal payment. How is this different than complaining that
that isn’t big enough? Anyway, we loved working on it. We believed we
were on the side of the angels. We knew we were not likely to win. Too
political.
MS. CAVANAGH It’s a worthy cause.
MR. NIELDS Yes.
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MS. CAVANAGH I believe that with your church you were engaged in a tutoring program
with D.C. students. Maybe you can talk a little bit about that.
MR. NIELDS My church was looking for something useful outside of our own walls to
do. We looked at a lot of different things. Then we heard about
something called the “I Have a Dream” program which was invented by a
man named Eugene Lang, who had gone to an inner-city school in
northern Manhattan and later become wealthy. He had come back to his
old school and made a speech to its graduating eighth graders I think, or it
may have been seventh graders, and realized in the middle of the speech
that a very small portion of the people he was talking to were going to
even graduate from high school. On the spot he told them that he would
provide college tuitions for anybody in that room who graduated from
high school. And then he hired somebody to keep track of them and help
them, and various other wealthy individuals copied him. So we heard
about that and said, well we can do that better because we have an almost
unlimited number of tutors, and we had a relationship already with a …
we were in McLean, Virginia, and we had a relationship with a church
called Garden Memorial in Anacostia and they had a nice church and good
people. Underneath their sanctuary was an enormous room where you
could set up tables for tutoring and an enormous kitchen where one could
cook food. Anyway our church decided to do this. In order to be in the “I
Have a Dream” foundation, you had to raise $300,000 as a kitty. To
ensure your ability to fulfill your promise to fund college tuitions at the
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level of the University of the District of Columbia for the people who
graduated, you had to have that in the kitty before you could start. So we
got that all put together. Then we sponsored a class of 66 sixth graders at
Ketcham Elementary School and followed them all the way through 12th
grade. So for 7 years we trundled ourselves down to Anacostia at 9:00 in
the morning on Saturday and left at noon and spent three-quarters of the
time tutoring one-on-one. About 30-40 kids got involved in some way or
another and maybe for the first year or two about 30 or so showed up on a
given Sunday. The attendance went down slightly as time went by. But
none of the kids that were involved dropped out completely. They would
maybe come every other Saturday. So we tutored them and we also fed
them a delicious and enormous breakfast at about 10:30 each Saturday
morning. I think that was the significant draw. The positive energy that
came out of this enormous kitchen. And almost all the cooks were men. I
don’t know why that happened or how it happened.
MS. CAVANAGH These are fellow church members?
MR. NIELDS Fellow church members.
MS. CAVANAGH About the same number as the number of kids.
MR. NIELDS About the same number as the number of kids. That’s not counting the
cooks. It was just a wonderful experience. We got to know a number of
these kids extremely well. A lot of them went to college, not as many as
you would have hoped, but a lot of them graduated from high school and a
number of those went to college. Personally, my wife and I kept in touch
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with a number of them and the same is true for other members that got
involved. Indeed, one of the Dreamers, as we called them, lived with us
for many years up until we changed houses 2 years ago. We think of him
more as a member of our family than anything else. So it was an
enriching and educational experience for every person that got involved
from the church. We loved the kids. Some of them got themselves into
trouble. It was very educational for us what life was like for the people we
were working with. That’s a snapshot of that.
MS. CAVANAGH Moving away from service-type activities, I was hoping you would talk a
little bit about a case that you worked on with Ben Kuehne that you were
involved with when you were at Howrey.
MR. NIELDS Let me lay the foundation for this. There was a very prominent lawyer in
Miami named Roy Black who was asked to represent a man named Fabio
Ochoa Vasquez who was a well-known prominent member of the
Medellín drug cartel. This would have been sometime around 2000, I
think, when the issue came up. It might have been a little later than that,
2002, 2003. So that you don’t think this is silly, I should put in that Fabio
Ochoa took advantage of a law passed by the country of Colombia that
said for the major drug offenders, if they confessed and served a
significant jail sentence, they would not be extradited to the United States.
Ochoa took advantage of that and spent about 6 years in jail and then came
out.
MS. CAVANAGH In Colombia?
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MR. NIELDS In Colombia. Then the U.S. government thought they had evidence that
he had gone back into the trade after he’d come out. That was not great if
he did that. That was not covered by the no-extradition. So extradition
proceedings were brought and he was extradited back to the United States,
claimed his innocence, and wanted to hire Roy Black as his defense
lawyer. So Roy hires Ben Kuehne, who is a Florida and Miami lawyer,
quite well-known with a very good reputation. Ben vetted the fees
received by Black. I’ll tell you more about that in a few minutes. But he
vetted the fees and he wrote careful opinions that these fees were being
paid with clean money. And he gave those opinions in writing to Roy
Black and Black took the case. Ochoa was convicted, and a few years
after that, or maybe it was a year after that, the Main Justice (Asset and
Forfeiture Section of Criminal Division) started an investigation of Ben
Kuehne for money laundering, looking into whether the money was dirty
and whether he knew the money was dirty and blessed it anyway. Ben
was in a two-person partnership and the other partner was somebody that I
had been in the U.S. Attorney’s office with in New York City, who was a
very good friend. He called me up one day and said, will you take this
case over, it’s just unbelievably important. And so I said yes. I don’t
think I’ve ever felt under the same kind of pressure on any other case that
I ever took as a private practitioner. The idea of losing the case — having
my client get indicted, losing the case — was just unthinkable. The
sentencing guidelines would have called for a sentencing close to 20 years.
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My client’s entire life was at stake. It was not acceptable that that might
happen. But it was also a serious risk if he got indicted and was brought
in front of a jury with the Medellín drug cartel defendant paying $5
million in fees. You could see that case going sour very easily. I took it.
I thought I should be able to persuade the department not to indict. It was
being controlled by the Asset Forfeiture and Money Laundering Division
of the Department and they live in a hermetically sealed room, I think.
They have nothing but drug cases and they win them all and they get
unreasonable decisions in their favor in all of them because when it comes
to drugs, the courts tilt very strongly in one direction. We did not succeed
in talking them out of filing the case. I had some very nasty conversations
with higher ups in the Criminal Division. I’m not mentioning names but it
was a really cold-blooded …. Some high-up person said to me during one
of the meetings, “why don’t you just ask your client.” I mean I’m arguing
the evidence isn’t there. “Why don’t you just ask your client.” It was like
they knew and they weren’t telling me how they knew. But they knew. It
was chilling. But I had at least enough notice, and I don’t know why I tell
this part of it but, I knew when the indictment was going to come down
and be public in Miami. They were going to file it at 9:00 in the morning
or something and I had somebody waiting to find out when they filed, and
I instantly filed my own document, it was a Request for a Status
Conference, but it laid out our case. And so now I’ll tell you more or less
what that was and then I’ll tell you more. This is taking a lot of time
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because it used up as much of my emotional and intellectual energy as any
case I ever worked on. The reason my client had rendered the opinions he
had is that as part of the process … well, two reasons. One is as part of
the process of Ochoa’s going through this sort of amnesty in Colombia —
confess, serve your time — he also had to, under Colombia prosecutors
supervising it, he had to turn in all of his illegally gained assets. And the
Colombian authorities had gone through a procedure that my client knew
about where they said okay, these are the assets that we are deeming to be
the fruits of drug trafficking and here are the assets which you and your
family can keep. There was a division, bad assets/good assets, that the
Colombian legal system had made and blessed. The good assets mostly
were his parents’ and his family’s. His parents had been very successful
long before Ochoa went into the drug trade. They were very successful
breeders of Paso Fino Colombiano horses. A very famous and elegant
show horse. They were also major cattle ranchers with enormous amounts
of cattle. Most of the money that had been raised to pay Ochoa’s fee had
been the fruits of the sale of Paso Fino horses at a huge auction, and cattle,
some of which were located right near where the Ochoas lived, and some
of which were pastured in other parts of Colombia. My client had been
down to Colombia several times. He hired somebody to be a monitor at
the auction. I think there was more than one auction. I laid that all out for
the judge in my short document filed the morning of the indictment. So
that the very first thing, when she read the indictment, she then also read
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that. I also admit that I was at a press conference when the government
did their little thing, I was able to get up and speak from my own
document that was already on the public record and say my piece, which I
did.
What I was most concerned about was that the Justice Department was
going to have access, almost unlimited access, to the facts almost all of
which were in Colombia, and that we were going to have none. I got my
partner Jason Raofield, who is one of the finest lawyers I’ve ever worked
with and he has got tenacity that you would not believe. We hired a
person from South Florida, an investigator whose wife was Colombian.
And so he was very familiar with that country and its language. He and
Jason went to Colombia, both to Medellín and Bogatá at least 15 times. I
went down there over 10 times. Just to give you an idea of the kind of
access we got. First is this story. A woman named Laura Shores at
Howrey was also working on the case. She came in my office one day.
We were trying to get in touch with somebody who mattered down in
Colombia. She said, look at this email that just came in from Jason — he is
having cocktails with 2 people, one of whom is the former president of
Colombia, and he’s going to help us and he is going to put us in touch
with people that can help us. Oh my God. Our investigator got us into the
files of the courthouse in Colombia and found all of the documents
relating to the Ochoa case. In all of the documents it showed how they
had gone about deciding that these assets were going to be forfeited and
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these assets were going to be okay. There were proceedings regarding the
assets not only of Ochoa the defendant, but also the assets of his family.
And so you had to get those files before you really could see that the
investigation by the Colombian authorities covered what had actually been
sold to raise the fees.
We went in and had a meeting with the high-ups at DOJ. I think
the head of the Criminal Division was at the meeting and a couple of, at
least one very unpleasant person working on the case. We had this
meeting with them. They said, “we understand you’ve had unprecedented
access to information in Colombia.” It was to them like an outrage that
we had access to the same documents they did. I said yes, and we found
your fingerprints on them too, because they left their post-its on some of
the documents. But they hadn’t put post-its on any of the documents that
helped us. The bad part of the case, and the reason they indicted was, the
Colombian banks wouldn’t take the clean pesos raised by Ochoa’s family
and transmit them to the U.S. to pay the fees. And so what the Ochoa
family had to do was use what our government termed the BMPE (Black
Market Peso Exchange). This is a perfectly lawful way of exchanging
pesos in Colombia for dollars in the U.S. But the problem is that the
people who have dollars in the U.S. to sell to brokers who will take your
[clean] Colombian pesos and trade them for U.S. dollars, include not only
drug dealers who have sold Colombian drugs for cash and have suitcases
full of dirty money (in both senses of the word), but there are a lot of
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undercover activities in the U.S. where undercover agents grab this money
and put it in banks. And some of the clean pesos raised by Ochoa’s family
ended up being traded for dirty drug money under the control of federal
drug enforcement agents. Not only that, but my client had made the
mistake tactically, not morally, but tactically, of having the fees put in his
bank account, so he would have a chance to vet those fees before passing
them on to Roy Black. So he ended up with dirty money in his trust
account. Of course, nobody told him it was dirty. And if you’re going to
run a sting on somebody, the whole point of running a sting is that you
make sure that the fence that you’re giving stolen property to is told that
it’s stolen. And you have that on a microphone or something.
MS. CAVANAGH Culpability.
MR. NIELDS Well, that’s the way you find out whether the person in question will
knowingly take dirty or stolen goods or not. They either take it or they
don’t take it. Well, they never told Ben and he had no idea that that had
happened. Anyway we did a lot of work on the BMPE and got experts.
We got experts from Colombia to talk about it and unravel the fact that it’s
totally lawful and widely used. Although there is some risk that you end
up with dirty dollars.
And then, maybe the most important thing that happened that we
did, and this is something I glommed onto immediately when I got the
case. There is a provision in Section 1957 of Title 18 of the United States
Code, which they ended up eventually charging him with. They charged
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him with something else too, but the only thing that really might have
applied was 1957, and it basically says anybody — well it says anybody
who knowingly engages or attempts to engage in monetary transaction in
criminally derived property … shall be punished, but of course only if
they do so willfully and knowingly. And then there is the following
language that is used in this section; the term “monetary transaction”
means blah blah blah blah blah. “But such term does not include any
transaction necessary to preserve a person’s right to representation as
guaranteed by the Sixth Amendment to the United States Constitution.”
My belief, I had known about that provision for some time, and my
belief had always been that it was intended to exempt from criminal
punishment fees paid to criminal defense attorneys: The government can
forfeit a lawyer’s defense fee if he knowingly takes dirty money but it
can’t take his liberty away from him. It would be too great a chilling
effect on the ability … lawyers would never take any fee. I mean you are
dealing with a criminal class of human beings.
The Justice Department, however, had taken the position very
publicly, that there was a case that said that a defendant does not have a
constitutional right to use the proceeds of crimes to hire a lawyer and
therefore the defense fee carve out in section 1957 had no meaning. No
Court of Appeals had ever bitten into that issue. We filed a motion to
dismiss the indictment on that ground. We won in the District Court and
then the government appealed up to the 11th Circuit, and we had a very
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successful argument from the 11th Circuit and got that count dismissed.
And then (I think partly because their lawyers knew we were beating them
up on the facts in Colombia thanks to Jason), the Justice Department
dropped the case. [See United States v. Velez, 586 F.3d 875 (11th Cir.
2009).]
MS. CAVANAGH That was really a complete victory.
MR. NIELDS It really was.
MS. CAVANAGH Ok.
MR. NIELDS And the judge, we had a very successful time in front of the judge.
MS. CAVANAGH In the District Court?
MR. NIELDS In the District Court.
MS. CAVANAGH Do you remember who it was? I can look it up.
MR. NIELDS It will come to me before this conversation ends and I know it perfectly
well. [Judge Marcia G. Cooke, U.S. District Court, S.D. Fla.]. She
understood the case, she understood the procedures, she understood the
time it was going to take to get testimony from far away witnesses and
how much time we all needed to do that, and then she ruled on our
motions in a very favorable way.
MS. CAVANAGH In Miami?
MR. NIELDS In Miami. Yeah. When we notified her that the Department was dropping
the case and then requested that she sign the Order of Dismissal as soon as
possible, it took about 5 minutes.
MS. CAVANAGH Eager to get rid of that case? That’s funny.
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MR. NIELDS So that’s, sorry I took so long.
MS. CAVANAGH No that’s really interesting. I guess next I was going to ask you about,
let’s talk a little bit about the dissolution of the Howrey firm, if that makes
sense in terms of where we are.
MR. NIELDS Yes it would have happened ….
MS. CAVANAGH Can I maybe close this [window shade] a little bit. If I close the shades.
MR. NIELDS Oh I’m sorry, oh yes.
MS. CAVANAGH You’re getting very bright.
MR. NIELDS I totally forgot.
MS. CAVANAGH Here we go, we’re still recording. I just thought, you’re starting to get
bright.
MR. NIELDS Well now you’re getting blasted yourself. I don’t think I know how to
stop it.
MS. CAVANAGH That’s much better. Thank you. So yes, dissolution of the Howrey firm.
MR. NIELDS Yes, it was a very sad and very unnecessary thing, and it’s very hard to
understand why it happened or whether it absolutely needed to happen.
MS. CAVANAGH Is this 2011?
MR. NIELDS 2011 sounds right.
MS. CAVANAGH Or maybe ‘10.
MR. NIELDS I think it was ‘11.
MS. CAVANAGH Ok.
MR. NIELDS It was 2011. So the firm’s earnings had been going up for quite a long
time in a more or less consistent way, and a number of groups of lawyers
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from other firms wanted to come and join us because they thought they
would do better with us than wherever they were before. And some of
these groups were involved in opening new offices, long-term leases ….
By the way, the last thing I understand is how a law firm’s finances work
and what would make a good way to run a law firm. I’m the last person in
the world you would want to put in charge in your law firm. But this is
my general take on it. And then for two years the firm’s earnings were
disappointing and went down. And the people who had joined us because
they thought they were going to make more, were making less, and there
got to be some restlessness and some departures.
MS. CAVANAGH Partners?
MR. NIELDS Partner departures and maybe even some groups, I can’t quite remember,
to what degree this was worry and to what degree it was actual people
were leaving. And if it got to be like a run on a bank it would be fatal and
we would end up with long-term leases in a lot of places, and then the firm
had expanded, opened new offices quite apart from new groups coming in,
not only all over the country but all over the world, and so people got very
concerned. We were still making more money that I ever thought I would
make as a lawyer when I started practicing law, and no one was
impoverished. And I was sure we were going to turn it around, and even
if we didn’t, if we stayed at that level or even dropped further, who cared,
we were practicing law together. And if we would have just been our
Washington office, nobody would have left, not a soul that would have left
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that firm. I mean, we had been together for a long time and we’d had one
other bad patch when I first joined the firm, where the firm contracted
from 125 to 78 lawyers I think, and then from that and then turned right
around and went through the roof over time. But anyway that was not the
case, we weren’t just that office, and people got very worried, and that led
us to have some conversations about merging with another firm in
Chicago (has that been publicized? I think it has ….)
MS. CAVANAGH I have that a number of partners went to Winston & Strawn, but you did
not because there were client conflicts. That’s all that I know, so I don’t
know.
MR. NIELDS Well Winston & Strawn was the firm that we were talking about merging
with but we did not merge with them.
MS. CAVANAGH Right.
MR. NIELDS And I think we did not merge with them in part because I and many other
lawyers had conflicts and it didn’t seem like Winston & Strawn was going
to find a way to get them waived, and some people ended up at Winston &
Strawn but not as a result of the merger of the two firms, just because they
got to know some people as a result of the conversations and went there.
But there was a month period that people had allotted to getting the
merger done after there was an agreement that we would do it. Two and a
half, three weeks into that process it was like, I’m not sure this is going to
happen. It’s sort of looking like it isn’t. And then everybody had to go
find some other place to be a lawyer and have offices and have Xerox
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machines. And so the firm broke up. As I think I mentioned to you off
the record, it was particularly part of the reason that the earnings had gone
down, it isn’t the only reason, but part of the reason is that the firm was
investing lots of resources in contingency cases that ended up being
extremely successful with nine-figure fees, that if people had just waited
around they would have been the beneficiaries of. But instead the fees
basically went, well they went either to the bankrupt estate or they went to
the groups of lawyers that were handling them who were now at some
other firm.
MS. CAVANAGH Were those antitrust cases?
MR. NIELDS Yes. They were big big antitrust cases. I certainly have no basis to
complain. My idea of my favorite firm in D.C. with the possible
exception of Howrey has always been Covington. Covington welcomed
me and the people working on cases with me and a couple of other
antitrusters.
MS. CAVANAGH Alan Wiseman.
MR. NIELDS Alan Wiseman. By that time I had tried and worked on a number of
complex antitrust cases throughout the ‘90s and ‘00s.
MS. CAVANAGH Did you bring a whole group of antitrust lawyers here?
MR. NIELDS Sort of. I think seven, eight of us came over together.
MS. CAVANAGH Associates too?
MR. NIELDS Yes, two of whom are now partners at Covington. There is just no finer
firm in the city than Covington and its culture is just unique and special
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and good. That was all a happy thing for me. But having Howrey fail, it
felt more like a death in the family than anything else.
MS. CAVANAGH Well, I have a happier topic. Why don’t you tell us about the Washington
Revels.
MR. NIELDS That’s one of the best things that ever happened to me in my whole life.
It’s an organization that, what it does has grown over time. It started out
as and primarily still is an organization that puts on … you can call it a
Christmas show and we call it the Christmas Revels but it’s actually a
winter solstice show and it draws each year from a different culture.
We’ve had Russian Revels, we’ve had Scandinavian Revels, we’ve had
Gypsy Revels, I think we’ve had Bulgarian Revels, French Revels, we’ve
had Victorian Revels, Elizabethan Revels, and we’ve had Appalachian
Revels. But it’s nothing but music, dance, sort of skits. We have
professional people who come in and do like Irish step dancers and these
Norwegian people who can kick hats off a pole as they dance around. It’s
strong on audience participation and we play to an audience of
approximately 10,000 people a year. It’s put on at Lisner Auditorium over
two weekends in December. Saturday two shows, Sunday, Friday for two
weekends more or less, we move those around a little bit. I got to perform
in, that’s a little bit in quotation marks, roughly the first seventeen. I think
there were one or two years where we agreed that people who had been in
every show had to take a year off to make room for others. I basically was
in every show up until… it started in 1983 and so I must have gone toward
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the end of the ‘90s until I gave my wife a veto. She has exercised it every
year since.
MS. CAVANAGH She doesn’t want you to do it.
MR. NIELDS No she doesn’t, right. Because it was Wednesday evening rehearsals
starting in mid-September, a full weekend of rehearsals in October.
Another full weekend of rehearsals in November. Then they added a third
full weekend of rehearsals. And then there’s tech week, which is before
the first show on a Friday, that the entire week is gobbled up. She said
you’re not around for the Christmas season; this is intolerable.
MS. CAVANAGH So when was the last time you performed in it? In the ‘90s, you said?
MR. NIELDS Late ‘90s. It’s conceivable I was in it in 2000, but I think I faded away.
MS. CAVANAGH And you sang and danced in it?
MR. NIELDS I sang and danced. Part of it was an amateur chorus of women and men,
four parts. The music also got more complex so probably I would have
had a harder time with it. It was nothing but joy. I didn’t understand why
people liked to come watch it, but boy did I understand why people liked
to be in it. We formed a very close-knit community of people that you
shared something with that you all just thought was wonderful. And we
thought we were giving something to the audiences too and certainly they
kept coming. Then I served two stints as chairman of the board of the
Revels. During the second one, which was for six years, and much more
recently, that was in the 2005 to 2011 period probably or maybe later.
MS. CAVANAGH You were still involved but not going to rehearsals.
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MR. NIELDS Not going to rehearsals. I was allowed to go board meetings. No veto on
that. The organization had grown and we had our own building and we
had staff and we had organizational things we did. We were going to
schools and doing teaching of Revels traditions in schools and putting on
various kinds of … there is Spring Revels now. That started actually quite
a while ago. We put on pub sings. I’ll lead a song or two at a pub sing,
which are also rollicking events.
MS. CAVANAGH Are you still involved in that right at this moment?
MR. NIELDS At the moment to the degree that I’m involved is mostly going to a pub
sing and as I said leading a song or two. But we go to the Revels gala and
we contribute money to it. We go to one performance every year. It’s
part of a nationwide kind of thing that had its roots in Cambridge,
Massachusetts, under the leadership of a charismatic man who is no longer
living named Jack Langstaff. He went all around the country and started
chapters in New York City; Philadelphia; Portland, Oregon; Berkeley,
California; Houston, Texas; Dartmouth, Hanover, New Hampshire.
MS. CAVANAGH I went to Dartmouth.
MR. NIELDS Is that right.
MS. CAVANAGH And my husband. Is the Revels there? I don’t remember.
MR. NIELDS There’s Northland Rebels is what they call it and it’s Hanover. I’m pretty
sure it’s still there. For a time we went up to Cambridge, Massachusetts,
and would go to their Revels show, at least one show for about six or
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seven years, and my sister-in-law is actually a percussionist who lives in
Cambridge and performs sometimes in the Cambridge Revels.
MS. CAVANAGH Was your wife involved in it as well?
MR. NIELDS Well really she was. I should say all 3 of my daughters. There are kids.
Every Revels has a group of ten year olds, which are drawn from a
different school each year. They rehearse for a long time and do little
dances and sing and add charm to the whole thing. But my wife is the one
who actually got me involved in it in the first place. She teaches at the
Potomac School. Jack Langstaff taught at the Potomac School way back
in the ‘50s and established a musical tradition there that is matchless and
part of the reason why we sent our kids there. We smelled that when we
went there.
MS. CAVANAGH At the Potomac School?
MR. NIELDS Yes. He put on a one-show benefit for the Potomac School at Lisner in
1975. It was a Spring Revels, not a Christmas Revels. And Gail, my wife,
signed up to do it and grabbed me and said you’re doing it too. I was ….
MS. CAVANAGH You were hooked.
MR. NIELDS Well, I was partly hooked. I then got a call from the person who was
running it in 1983. I knew there had been try-outs and I just didn’t have
the time for it. She called me Sunday night and said we don’t have
enough tenors, would you mind trying out? Then I said all right. I’m not
sure I can do it.
MS. CAVANAGH You weren’t busy enough in 1983. You were very busy!
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MR. NIELDS So I was going over to her house to “try out,” I think in quotes, Monday
evening. I got a call from my daughter Abigail, who was ten years old, at
noon. She said, guess what Daddy, I’m in the Revels! So that was the end
of that, I was going to do it. And I want to say, so you know I’ve got my
priorities right, I never missed a show and I never missed a rehearsal.
MS. CAVANAGH That’s impressive. We can remind the listeners how busy you were in
those days. So that brings me to your daughters. Were your older
daughters involved in the Revels?
MR. NIELDS Yes. In reverse order of age, oddly enough. Abigail was the youngest and
was in at as a child. Katryna was in it the first year they had teenagers.
There were four teenagers and she was one of them in 1986. It was a
French Revels. It was just delightful having her there. And then when
Nerissa graduated, she was our oldest, she graduated from college and
came back to this area, she was in it as an adult for two years, must have
been 1991 and 1992, something like that.
MS. CAVANAGH So I know that Katryna and Nerissa have been very engaged in music and
you mentioned The Nields. Before we talk about that I wonder is Abigail
engaged in music as well?
MR. NIELDS She is very musical. She’s got a lovely singing voice and she concentrated
as a child/teenager in theater, and got under the clutches of a slightly
controlling person who we thought needed her more than she needed him,
and kind of eased off of that. She is five years younger than her sisters
and so not at an age when she could be part of them.
280
MS. CAVANAGH They say that if a child is five years younger than the other siblings, that’s
more like an only child. Both for the child and for the parents.
MR. NIELDS Abigail is the only one of our children who actually raised us. She taught
us how to be better parents.
MS. CAVANAGH You were burnt out by then.
MR. NIELDS She really has her act together, that child. But no, she’s never done
singing as a career.
MS. CAVANAGH Does she live in this area?
MR. NIELDS She went to Yale and she got a masters in teaching at Brown. Then she
went and taught high school history at the Newton School, Newton North
outside of Boston. Then she had twins and that was the end of teaching.
She now lives outside of Philadelphia with her husband and three children,
and she tutors and she is very good at it. She counsels people on college
applications. I listen to her stories about that. It’s just marvelous. It’s just
wonderful.
MS. CAVANAGH There’s a lot of demand for that.
MR. NIELDS A lot of demand for that. She says one of the most important things to be
able to do is make sure that the parent doesn’t have too much to say about
what the child writes.
MS. CAVANAGH I hear that. I have a senior in high school.
MR. NIELDS You probably aren’t that kind of parent.
MS. CAVANAGH I try not to be. It’s hard.
281
MR. NIELDS A lot of parents are all over their kids. They think that it’s them who are
applying and if they don’t get in they are the ones who will be
embarrassed and humiliated.
MS. CAVANAGH Yes. Boston is not that different from Washington in that regard. Okay.
So Katryna and Nerissa. Can you tell me a little bit about The Nields and
what they do today. I read that they run a music program for children in
western Massachusetts?
MR. NIELDS They do lots of things. When Katryna graduated from college, Nerissa
told her in no uncertain terms that they were going to have a singing career
and it was going to be the two of them.
MS. CAVANAGH This is in the early ‘90s.
MR. NIELDS This is in the early ‘90s, ’92 maybe. And so they did. Nerissa has written
almost all of their music. A little bit of it has been written by Katryna and
every so often they record what they call a “cover” of what somebody else
wrote. But it’s mostly what they write. They’ve got seventeen CDs out
there and maybe more than that. First there were the two of them. I went
to shows where there were two other people in the audience at various
places in D.C. And then they got known and then they got a bigger fan
base. Then they added on … well actually fairly early on, Nerissa’s
husband played the guitar and he performed with them, and then they
found a friend of Katryna’s from Trinity College, where she went. He
joined. He’s a marvelous musician, marvelous. He is now her husband.
All three were named Dave. There was a drummer who is still with them
282
from time to time, named Dave Hower. I knew that if Katryna ever found
a man and wanted to marry him and he wasn’t interested in music, Nerissa
would die. So I figured she had actually only two people in the world that
she would be allowed to marry. [This is not to be taken seriously.] And
they were the two other men in the band already.
MS. CAVANAGH Daves.
MR. NIELDS So she married one of them.
MS. CAVANAGH The Nields and the Daves.
MR. NIELDS Now they perform mostly just the two of them, but for major events they
often get the band together and perform with them. So they do a lot of
writing, composing and recording and performing, mostly in New England
now. They did tour before they had children, they toured around the
country. They had a van or two vans and they grossed a lot of money.
MS. CAVANAGH A colleague of mine at work mentioned she saw them in the late ‘90s.
MR. NIELDS Is that right?
MS. CAVANAGH Yes. Because I mentioned that I see you and she said, I saw The Nields.
They did sort of alt-rock, kind of folk?
MR. NIELDS It’s closer to folk music than anything else. But when they were with the
guys and they were touring everywhere, then it was rockier. It was
significantly rockier at that point in time. They were pretty successful.
But they had a lot of mouths to feed because they had five musicians, they
had a booking agent, they had a lawyer, they had a sound person that
traveled with them. So life has gotten saner. I’ve always loved their
283
music but I love it more every year, what Nerissa writes and Katryna
contributes to that, too. They are just delightful to listen to on stage. They
are friendly and funny and warm and they are very politically aware at this
point. Nerissa has started what she calls her local chorus, which are
children from the age of eight to fourteen or so. They were asked fairly
recently to perform at a Town Hall that was done in Northampton,
Massachusetts by one of the Senators from Massachusetts. I can’t
remember anybody’s name any more. Markey.
MS. CAVANAGH It’s [Ed] Markey.
MR. NIELDS So he was coming and he called up and said, Nerissa and Katryna, would
you sing at my Town Hall, and they said sure. How would you feel if we
brought our local chorus of kids? Yes, bring them. They are delightful.
They counsel, Nerissa teaches writing, she also has written a couple of
books and she holds classes on writing and …
MS. CAVANAGH They have a great website and they have a blog. There is a lot of
interesting discussion about how they basically learned music at the feet of
their parents, and growing up never listening really to the radio or
anything like that but listening to performances from you and Gail and
your music that you played for them. So they were clearly inspired. You
played guitar?
MR. NIELDS Yes. You might not say so if you heard me. But yeah I play chords. I can
play a lot of songs strumming. That’s about it. I actually keep thinking in
284
retirement I’m going to learn how to play the guitar a little more properly.
Anyway I get a lot of pleasure out of it.
MS. CAVANAGH I’m supposed to ask you about that too. In terms of your plans for the
future. Might you retire? You’re not really retired.
MR. NIELDS First of all I will answer that question. But I won’t do it until I first say,
and my daughters have children.
MS. CAVANAGH Yes, well you mentioned that Abigail has twins. And Katryna and
Nerissa?
MR. NIELDS They’ve each got two. Each has a boy and girl. And they are to die for. I
had no idea this was in my future. I knew I wanted grandchildren. But no
idea.
MS. CAVANAGH You have six.
MR. NIELDS I have seven. Because Abigail has twins and then one five years younger.
MS. CAVANAGH Nice! So they are how old?
MR. NIELDS The oldest is seventeen and just applying to college. The youngest is I
think eight.
MS. CAVANAGH Oh nice. Wide range.
MR. NIELDS There is what Gail calls a cohort between … there is a ten year old,
Nerissa’s son Johnny. There are four of them that are clustered around
thirteen to eleven or something like that.
MS. CAVANAGH Do you get to see them a lot?
MR. NIELDS We make sure we see them a lot. We go up there and my thirteen year old
has become a rabid baseball fan, as is my ten year old, oh my God.
285
Nerissa and Katryna now live two blocks from each other. And their
children are besotted with each other.
MS. CAVANAGH That’s so nice for everyone. Are you a baseball fan?
MR. NIELDS Yes.
MS. CAVANAGH Which team?
MR. NIELDS At varying degrees of passion. Probably my maximum passion was as a
child, I was a New York Giant baseball fan. Willie Mays was my
childhood hero and Willie Mays was my wife’s childhood hero. And then
they sold my childhood to the West Coast for cash.
MS. CAVANAGH That happened to my father. He was a Dodgers fan. It’s a heartbreaker.
MR. NIELDS Oh gosh. So we still lasted, for Willie Mays’ baseball life we were Giants
fans. But not as passionate as when he was in New York. Our first date
was going to the Giants’ first baseball game in New York since they left
for San Francisco in 1961. There was an exhibition game at Yankee
Stadium against the Yankees. That was our first date.
MS. CAVANAGH Nice. So you couldn’t become a Yankees fan. Did you become a Mets
fan?
MR. NIELDS Oh never a Yankee fan. I became a Mets fan, especially in 1969, and I’ll
never forget watching Al Weis, who batted .211 I think, hit a ground ball
single between first and second against the Chicago Cubs in early
September, in the bottom of the 12P
thP, and it scored a run that won the
game and the Mets were in first place for the first moment in their lives.
286
They’d never won the first game of any season. So they weren’t even tied
for first after opening day.
MS. CAVANAGH I grew up in a Mets household. Now you probably have Red Sox
grandchildren.
MR. NIELDS Not only that, but in 1999, and this gets to my — then we were kind of
Orioles fans — barely. But the next passion, the high passion level was
started in 1999, maybe it wasn’t in ’99. I think it was but I’m not sure, but
my daughters were asked to sing the national anthem at Fenway Park.
MS. CAVANAGH That’s amazing.
MR. NIELDS And I have a picture of them doing that down at my office and in our
home. Katryna was the baseball fan and she kind of arranged it, which is
very rare. Nerissa is mostly the arranger of things. She might not have
been interested in it. Katryna says I’m singing the national anthem —
“well me too.” So anyway they sang it together of course. And we went
there. And then we stayed for the game and I saw somebody putting up
Ks in deep right field — you know those huge Ks. I’d never seen that
before.
MS. CAVANAGH They have that at Nats Park.
MR. NIELDS Yes I’ve seen it. And I said what’s that? Oh that’s a strike out, and I said,
well maybe this pitcher must be a strikeout pitcher. Well it was Pedro
Martinez. I really didn’t even know who he was at that point. Anyway,
we both became rabid Red Sox baseball fans. And I have — hey were my
American League team from the time I went to school in Massachusetts.
287
We became rabid fans and we lived through the agony of 2003 and then
we lived through the glory of 2004.
MS. CAVANAGH And again this year.
MR. NIELDS And again this year. We’ve watched all the games. Last year we were up
with our daughters in Massachusetts during the playoff season and we
watched game after game on their big screen TV in one of their houses
with all the grandkids, and one of them spouting statistics and telling us
everything about every player on either team.
MS. CAVANAGH Not very DC-courts related here.
MR. NIELDS No it’s not. Sorry about that. We may have to wipe this whole section
out.
MS. CAVANAGH No, no it’s okay. I started asking about plans for the future besides sports
rooting, grandchildren visiting.
MR. NIELDS So apparently I haven’t communicated this to you. I am officially retired.
MS. CAVANAGH You know you said that to me, but I didn’t entirely believe it.
MR. NIELDS Well I’m completely retired from practicing law for money.
MS. CAVANAGH OK. But you’re still working on pro bono cases.
MR. NIELDS I work on pro bono cases. I’m working on a …
MS. CAVANAGH With people here at Covington.
MR. NIELDS Yes. And they’re Covington cases. I mean they are not John Nields
cases.
MS. CAVANAGH So you are not really retired then.
288
MR. NIELDS Well but I’m not doing that much and I’m also writing an article — did I
mention this to you before?
MS. CAVANAGH You mentioned that you were working on it. But mention it again.
MR. NIELDS So it’s on the Fifth Amendment privilege against self-incrimination and I
actually just delivered what may be the first draft — I mean I’ve done
many drafts of it — but it’s actually — I mean I’ve done the whole thing
now and I’m going to need to work on it some more. But I’ve actually got
something that I’m about ready to show somebody. It’s on the Fifth
Amendment’s privilege against self-incrimination. It is a subject that I
became very interested in in the following context, and that’s how it
applies to document subpoenas.
MS. CAVANAGH With Webb Hubbell.
MR. NIELDS With Webb Hubbell, which was a case I argued, and Fisher was the case
that Justice White decided in one of the years that I was clerking.
MS. CAVANAGH Right. We’ve talked about this.
MR. NIELDS Okay.
MS. CAVANAGH Well that’s great.
MR. NIELDS But it goes beyond that.
MS. CAVANAGH Sure. Is it like a law review?
MR. NIELDS Yes it’s a law review type thing. I don’t even know what people take
these days but I have sort of at least know who I am going to be calling on
the phone and saying, would you be interested in this. It’s about — it’s
forty pages, I guess, in normal typewriting.
289
MS. CAVANAGH That’s about article length.
MR. NIELDS I’m very comfortable with everything I’ve written about how it should
apply and hopefully will apply to document subpoenas.
MS. CAVANAGH Interesting.
MR. NIELDS But there is an intriguing — maybe not, maybe it’s just simple and
obvious, but the Fifth Amendment document jurisprudence all turns on
whether you’re compelling testimony, whether a document subpoena
compels testimony, and the court cases are clear that the Fifth Amendment
privilege only applies if you are compelling testimony. If it is something
else, like a fingerprint or a blood sample or even a handwriting exemplar,
you are deemed not to be compelled to give testimony and therefore the
Fifth Amendment does not apply. But the Court has never said why. So I
thought it would kind of be helpful for somebody to at least try to say
why. Once you answer that question, then you get a little window into
what the Fifth Amendment is actually all about, and so that’s the last part.
MS. CAVANAGH Advice for young lawyers?
MR. NIELDS Do something that you love. Find something that you love. A lot of
things you can do. Maybe you can love to make money and maybe you
can love to be a really top-notch legal practitioner, maybe you like to
please clients, maybe you like to attract them. But if you like to do things
that help people then do that, and look for jobs where you’re going to get
an opportunity to do things that you love, and it might be teaching and it
might be working for the government and it might be working for a big
290
firm or it might be working for a tiny firm. It might be working for clients
that are people, it might be working for clients that are corporations, and
then maybe you want to — but anyway that’s my only thing I can think of.
MS. CAVANAGH Washington has a lot of opportunities for all of those things. It’s a nice
place to be a lawyer in that sense.
MR. NIELDS And I don’t want to sound negative because I’m mainly positive, but I
think I started practicing law at a time that was really good for lawyers.
Supreme Court decisions were coming down, whether you agreed with
them or not, and some of them I didn’t even though I thought they were
doing good things, I didn’t think they were what necessarily the courts
ought to be deciding. But it was just full of new principles and new ideas
and lots of jobs in government where government was doing good things
with the law and lawyers could play a big role in that. And law firms
hadn’t turned quite as much into mandatory maximize-your-profit
machines, and I more or less somehow, I don’t quite know how, but I sort
of escaped all that culture.
MS. CAVANAGH Might be harder to do today.
MR. NIELDS I don’t think it would be possible. I think I was a little clueless.
MS. CAVANAGH It worked.
MR. NIELDS It worked. So that’s it. So we’re done.
MS. CAVANAGH Yes we’ll wrap it up. Thank you.
MR. NIELDS That is great.
MS. CAVANAGH Thank you so much.
291
MR. NIELDS Thank you.

A-1
ORAL HISTORY OF JOHN W. NIELDS, JR.
Index
Adirondacks Putnam Camp, 20
Advisory Neighborhood Commission (ANC), 152
Al Shiraa (newspaper), 165
Amsterdam, Anthony, 28
Anderson, R. Lanier, 204-05, 207
Andover, 8-9, 15, 39
antitrust laws, 156-58, 230, 274
Arms Export Control Act, 167
AT&T, 156-59
Atchison v. Barry (case), 212, 217
Austin v. New Hampshire (case), 258
bag jobs, 98, 100-01, 103, 109, 113-15, 117, 119, 122, 125, 127, 180
Baker, Hal, 132
Ballen, Ken, 188
Baltimore Sun (newspaper), 223
Banner v. United States (case), 259
Baron, Alan, 222, 225
Barry, Marion, 134, 141
Bender, Paul, 29-30
Black, Roy, 208, 262-63, 268
Blackman, Harry, 55
Blakey, Bob, 112
BMPE (Black Market Peso Exchange), 267-68
Boland Amendment, 172, 183
Boland, Eddie, 89
Bono, Gaspare (“Gap”), 161
Bookchin, Murray, 125-26
Booth, Joan, 139
Booth, Michelle, 151
Bork, Robert, 149, 150
Bossie, David, 244
Brandeis, Louis, 99
Brennan, William, 55, 56
Brind, Ira, 28
Brosnahan, James, 200
Brown, Bill, 39
Bryant, William (Bill) 104, 107, 111-12, 124
Burns, Ken, 34
Burton, Dan, 243
Bush, George H.W., 196, 200
Nixon pardon, 200
Weinberger pardon, 199
A-2
Cahill Gordon, 1, 3, 30
Cahill Gordon Reindel & Ohl, 1
Cahill, John, 2
Carome, Pat, 187
Casey, Bill, 168, 192-93
Castro, Jose Luis, 208
Cheney, Dick, 173
Christ House, 215
Church and Pike committees, 98
CIA, 167-68, 175
City Gas (case), 205
Civiletti, Ben, 94
Clark, Ramsey, 116-17
Classified Information Procedures Act (CIPA), 105
Clifford, Clark, 184
Clifton Terrace, 135, 138-39, 141, 146, 153
Clinton, Bill, 230-32
Clinton, Hillary, 232
Cochran, Thad, 80
Cohen, Ben, 122-25
Cold Spring Harbor, 4, 6, 11, 13
Colombia, 263-64, 267-68, 269, 271
Community for Creative Non-Violence (CCNV), 217
Contras, 170-72, 183, 196
Cooke, Marcia G., 270
Cooper, Charles, 189
Coors, Adolph, 183
Counter Intelligence Program (COINTELPRO), 99
Covington, 133, 274, 287
Crowell & Moring, 240
Cutler, Lloyd, 110-11
cy-près doctrine, 31
D.C. Appleseed, 257
D.C. Bar, 251, 253-54
pro bono progam, 254, 257
Dalton, 6-8, 15, 18, 35
Daniels, Veronica, 215
Davis Polk, 31-33, 39-41, 43, 175, 204, 230
rotation system, 31
Deep Throat, 121, See Felt, Mark
Dickinson, Tandy, 71
District of Columbia
Court of Appeals, 239, 242, 255
homeless people, 213-14
A-3
structural deficit, 258
Superior Court, 151, 153, 215, 255-56
Doe I (case), 238
Dohrn, Bernadine, 122
Dohrn, Jennifer, 122
Douglas, William, 55
Easley, Steve, 216
Edmondson, James, 209
Edwards, Edwin, 91
Eggleston, Neil, 182, 187, 189, 233
Eighth Amendment, 65
Equal Protection Clause case, 57, 258
Erie Railroad Company v. Tompkins (case), 29
Ervin, Sam, 113
FBI (case), 160
FBI, 61, 76, 94-100, 104, 109, 118, 123-26, 143, 156, 160, 185, 223
Black Bag Job, 4
FCC (Federal Communications Commission), 158, 188
Felt, Mark, 95-96, 100-01, 103-04, 110, 113, 121-22, 124, 150, 180
Felt-Miller (case), 100-01
Fenwick, Millicent, 77-80
Ferguson, Carr, 204, 207
Fifth Amendment, 47-48, 64, 183, 207, 238-39, 288-89
Fisher v. United States (case), 64, 238, 288
Fiske, Bob, 230-33
Flannery, Thomas, 131
Flowers, Walter, 79
Flynt, John, 80, 81
Foster, Vince, 232
Fourth Amendment, 99, 113
Gallagher, Cornelius, 76, 82
GAO (Government Accountability Office), 258
Garden Memorial Church, 260
Gardner, Bill, 99-100, 113
Garfinckels (department store), 141
Genachowski, Julius, 188
Gesell, Gerhard, 197
Gillespie, Hazard, 32
Glekel, Jeff, 51
Goetcheus, Janelle, 215
Goss v. Lopez (case), 58
Graham, Fred, 120
Gravel, Camille, 83
A-4
Gray, Billy, 39
Gray, L. Patrick, 100-01, 223
graymail, 95, 101-02, 105, 110
Greene, Henry, 153
Hakim, Albert, 171, 184-85, 193
Hall, Fawn, 170
Hamilton, Lee, 80, 173-74, 179, 185, 188
Hanna, Richard, 82
Hart and Wechsler’s The Federal Courts and the Federal System (Bator, Meltzer, Mishkin and
Shapiro), 29
Heller (case), 203, 206-09
Heller, Dan, 203, 205
Heyman, Phil, 123
Hill, James Clinkscales, 204
Hiss, Alger, 17, 18
Hiss, Tony, 18
Holtzman, Elizabeth, 82
Home Rule Act of 1973, 257
Hoover, J. Edgar, 100, 103-04, 118
House Committee on Standards of Official Conduct, 68
Howard, George Jr., 235
Hower, Dave, 282
Howrey & Simon, 92-5, 133, 155-60, 203, 207, 214, 216, 219, 262, 266, 274-75
dissolution, 271
Hubbell, Suzy, 248
Hubbell, Webster (Webb), 64, 200, 202, 229-39, 242- 49, 288
HUD (Department of Housing and Urban Development), 135-7, 146
Hughes Hubbard, 67
Hundley, Bill, 71, 75
Huston Plan, 117
“I Have a Dream” program, 260
Imbler v. Pachtman (case), 65
immunity, 72, 84, 179-80, 184-85, 198-99, 236-38, 242
inconsistent pro bono practices, 252
Independent Counsel, 175, 177-78, 200-02, 230, 234, 240-41
Reauthorization Act of 1994, 231
statute, 231, 244, 245
Inouye, Daniel, 173, 174
Internal Revenue Code, 83
Iran-Contra, 37, 61-62, 165, 92, 155, 163, 172-74, 200, 201-03, 212-13, 233
“the Enterprise,” 193
diversion of arms sales proceeds, 171, 192-93, 196
hostages, 166
Independent Counsel, 244
A-5
November 1985 Finding, 167-69, 180, 199
Reagan plausible deniability, 196
See also North, Oliver
IRS, 207, 248
Jackson, Robert, 2, 4, 113, 202
Nuremberg trials, 113
Jacoby, Oswald, 14
Jaworski, Leon, 68
Johnson, Lyndon, 34
Johnson, Sara, 155
Joseph, Bob, 155
Kaplan, Sharon, 28
Katz v. United States (case), 99
Katzenbach, Nicholas, 116-17
Kavanaugh, Brett, 235
KCIA See Korean Central Intelligence Agency
Kearney, John, 98
Keith (case), 102
Keith, Damon, 102
Kelly, Sharon Pratt, 152
Kendall, David, 243
Kennedy, John, 18, 34
Kennedy, John F., 17
Ketcham Elementary School, 261
Keuch, Bob, 111
Kim, Dong Jo, 84
Kim, Hyong-uk, 85, 86
Kim, Yung Gil, 85
Kleindienst, Richard, 116
Koreagate, 61, 63, 67-68, 70, 90, 173, 188, 201
Korean Central Intelligence Agency, 85, 87
Kuehne, Ben, 262-63
Lacovara, Phil, 67-68
Laird, Melvin, 78
Laney, Zellene, 138
Lang, Eugene, 260
Langstaff, Jack, 277-78
Lasker, Edward, 47, 48
Lawyers Committee for Civil Rights, 220
Lee, Gerald, 134
Levin, Leo, 30
Liberty Life Insurance Company, 161-62
Liman, Arthur, 176, 185, 190, 201
Litton Industries (case), 156
A-6
Peace Corps, 220
Luque, Nancy, 153
Machtinger, Howard, 109
Machtinger, Leonard, 109, 122
Madison Guaranty Savings and Loan Association, 231, 237, 239
Malysiak, Jim, 53
Marchetti v. United States (case), 47
Markey, Ed, 283
Marks, Andy, 251
Marquette Credit Union, 229
Marshall, Thurgood, 55
Martin, Frank, 98, 107, 111-12
McCarthy, Eugene, 36
McCarthy, Joseph, 17-18
McFall, John, 75, 81
McFarlane, Bud, 167, 172, 177, 184, 188, 193
McGowan, Carl, 149-50
McGrory, Mary, 62
MCI, 157, 159
MCI (case), 157
Medellín drug cartel, 262-64
Meese, Ed, 169, 171, 189, 193
Metropolitan Life Insurance Company, 161
Miami Herald (newspaper), 206
Michel, Paul, 94-95
Mickens, Johnny, 140, 143
Mikva, Abner, 198
Miller, Ed, 95, 100-01, 103-04, 122
Mishkin, Paul, 29
Mitchell, John, 116-17
Mollo, Silvio, 49-50
Moon, Sun Myung, 87
Morgenthau, Bob, 50
Morrison v. Olson (case), 201-02
Mueller, Robert, 175, 245
Mullan, Fitzhugh Seamus McManus, 7
National Credit Union Administration (NCUA), 221, 226
National Family Planning and Reproductive Health Association (NFPRHA), 129
New York City, 1, 4, 5, 6, 21, 24, 25, 28, 213
New York Times (newspaper), 39, 126, 231
Newbold, Artie, 28, 34
Nields, Abigail (daughter), 25, 279-80, 284
Nields, Elizabeth (sister), 9-10, 12-13, 122
Nields, Gail Tenney (wife), 13-14, 16, 19-22, 53, 92-94, 148, 194, 261, 276, 278, 285
A-7
Brearley School in New York City, 21
Bryn Mawr Master’s, 24-25
Hewitt School teaching, 24
University of Pennsylvania, 24
Nields, Jenifer (sister), 9
Nields, John W. Jr. – Personal
Aunt Jo, 13
Adirondack Mountains, 12
Andover (Phillips Academy, 8
bar exam, 37, 39-40
birth in New York City, 6
Cold Spring Harbor, Long Island, 6
Dalton School, 6-7
draft status, 36
death threats, 195
summer jobs
Cahill Gordon, 3
Patterson Belknap, Webb & Tyler, 30
Utah ranch, 19
University of Pennsylvania, 26
Yale, 15
Political science major, 16
Nields, John W. Jr. – Professional
Assistant United States Attorney for the Southern District of New York, 41
Board of Directors at the D.C. Appleseed Center, 257
Chief Appellate Attorney and then I was head of the Civil Division, 49
Chief Counsel House Select Committee, 165
chief counsel to the Committee on Standards of Official Conduct, 68
D.C. Bar
Board of Governors, 252
pro bono committee chair, 254
President, 252
Davis Polk, 31
Koreagate evidence, 72, 81
law clerk for Justice White, 50
Pro bono, 129
thoughts on independent counsel law, 202
United States Attorney
Assistant Chief and Chief, 44, 49, 67
United States Department of Justice
Chief Appellate Attorney and head of Civil Division, 49
United States House of Representatives
Chief Counsel House Select Committee, 68, 165, 173
Nields, John W. (father), 1
RCA, 2
teaching Sarah Lawrence College, 1
A-8
Yale Law School, 3
Nields, Katryna (daughter), 279, 281-83
Nields, Laura (sister), 9, 11-12, 20
Nields, Lila Hall Franklin (mother), 5
Board of Bennington College, 6
Nields, Nerissa (daughter), 38, 279, 281-283
Nixon, Richard, 100, 112, 115-18, 120
Noerr-Pennington doctrine, 158
North, Oliver, 119, 167, 170-72, 177-80, 188-94, 197-99, 209
document shredding, 10
immunity, 180
testimony, 172
NSC (National Security Council), 170
O’Neill, Thomas (“Tip”), 73, 88, 90
O’Sullivan, Julie, 233
Oakes, James, 160
Obama, Barack, 233
Oberdorfer, Louis, 104
Ochoa Vasquez, Fabio, 262-63
Page, Mark (brother-in-law), 11
Paine, James, 211
Park, Tongsun, 71, 72-74, 81, 83
Passman, Otto, 70-72, 75, 77, 81, 83, 91
Patten, Edward, 75, 80-81
Patterson Belknap, Webb & Tyler, 30
Paul Weiss, 185
Peace Corps, 34
Pear, Robert, 126
Penn, John, 132, 140, 149
Pike and Church hearings, 108
Pinkerton charge, 146
Pitt, William, 113
Plamondon (case). See United States v. U.S. District Court
Plamondon, Lawrence, 102
Planned Parenthood, 129, 131-32
Planned Parenthood (case), 131
Poindexter, John, 168, 175, 177, 179-80, 193, 196-98
Potomac School, 25, 278
Powell, Lewis, 51, 53, 55
Preyer, L. Richardson, 80
Pride, Inc. Properties, 135
pro bono, 32, 129, 133, 214, 219, 237, 252-54, 257, 287
Providence Journal (newspaper), 223, 228
A-9
Pryer, Richardson, 129
Public Law 480, 69-71
Radio Corp. of America v. United States, 2
Raofield, Jason, 267
Reagan Administration, 128, 166
Reagan, Nancy, 191
Reagan, Ronald, 168-69, 171, 174-75, 180-81, 191-93, 196
Administration
family planning, 128
hostage policy, 166
Iran-Contra, 166
pardon, 118-19
Regan, Don, 196
Rehnquist, William, 55, 58, 103, 242
Renfrew, Charles, 123
Reno, Janet, 231, 234-35
Revels, 276-80
See also Washington Revels
Reynolds, Brad, 189
Rhode Island Shares and Security Depositors’ Indemnity Corporation, 220-23, 226-27
investigation, 220
Richey, Charles, 83
Ripple, Ken, 51
RISDIC See Rhode Island Shares and Security Depositors’ Indemnity Corporation
Robb, Chuck, 191
Roberts, John, 154
Robertson, James, 237-39
Rogers, David, 37
Rogovin, Mitch, 137
Romatowski, Pete, 240
Rose Law Firm, 232-34, 236-37, 248
Rosoff, Bill, 28
Roybal, Edward, 75, 81-82
Rudman, Warren, 173-74, 201
Russian election interference, 245
Scalia,Antonin, 201-02, 238
Schrieberg, Frances Carol, 122
Secord, Richard, 171, 177, 184, 188, 192-93
Section 1983, 66
Senate Intelligence Committee, 168, 192, 201
Sherwood Webster (case), 150
Shores, Laura, 266
Siemer, Deanne, 132
Silberman, Laurence, 198
Simms, Larry, 52, 62
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Simon, Bill, 157, 158
Sixth Amendment, 269
Snyder, Mitch, 213-17
Social Security Act, 57
Socratic method, 29
Spiegel, John, 60, 62, 67
Sporkin, Stanley, 175
Starr, Kenneth (Ken), 231, 234-36, 240-41, 246
Stearns, Barbara Nields (aunt), 14
Stearns, Sherman (uncle), 14
Stevens, John, 53
Stewart, Potter, 53
Sullivan, Emmet, 151
Sundlun, Bruce, 227
Tamm, Edwin, 149-50
Taylor, Harriett, 214-15, 219
Teague, Olin (“Tiger”), 80
Teitz, Jeff, 222-23, 225
Tolson, Clyde, 100
Tower Commission, 174-75
Treadwell (case)
appeal, 148
Treadwell, Mary, 62, 132-36, 138-42, 144, 146, 148-49, 153, 155, 203
Tritell, Randy, 145
Tuttle, Elbert, 204
U.S. Court of Appeals for the District of Columbia Circuit, 56, 165, 198, 207, 218, 239-42, 252
U.S. Court of Appeals for the Eleventh Circuit, 204-05, 209-10, 269-70
U.S. Court of Appeals for the Seventh Circuit, 51
Sentelle, David, 198
Unger, Barry, 28
Unification Church, 87
United States v. Castro (case), 208
multiple conspiracy arguments, 210
United States v. Heller (case), 203-05
United States v. Hubbell(case), 239, 242
United States v. Velez (case), 270
United States Supreme Court, 2, 48-49, 58, 64-65, 99, 102-04, 112-13, 116-18, 234, 242, 259,
290
“Highest Court in the Land,” 60
Vietnam War, 17, 34-36, 190
Wald, Patricia, 198
A-11
Wall Street Journal, 37, 39, 232
Walsh, Lawrence, 175-76, 179
Warren Court, 28
Washington Post, 62, 186, 256
Washington Revels (Christmas Revels), 275
Watergate, 87, 91, 113, 118, 141, 201, 245
Weather Underground, 96, 102-03, 107, 109, 114
Weather Underground (Weathermen), 96, 122
Webb v. Texas, 207-08
Weinberger, Caspar, 199-200, 244
Whitaker, Duncan, 161
White, Byron, 24, 49-53, 56, 58, 61-62, 64, 65, 66-67, 238, 288
Whitehouse, Sheldon, 227
Whitewater, 201, 203, 230-32, 244
Williams, Lois, 214, 216, 218-19, 258
Lawyers Committee for Civil Rights, 220
Williams, Ted, 63
Wilson, Charles, 75, 81
Winston & Strawn, 273
Wiretap Act, 112
Wirtz, Willard, 134
Wiseman, Alan, 274
Wright, James, 65, 88
Yale Law Journal, 3
Youth Pride, 134, 141, 143

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ORAL HISTORY OF JOHN W. NIELDS, JR.
Table of Cases and Statutes
Cases
Atchison v. Barry, 585 A.2d 150 (D.C. 1991), 212, 217
Austin v. New Hampshire [420 U.S. 656 (1975), 259
Banner v. United States, 303 F. Supp. 2d 1 (D.D.C. 2004), aff’d, 428 F.3d 303 (D.C. Cir. 2005),
cert. denied, 547 U.S. 1143 (2006), 260
Consolidated Gas Co., Fla., v. City Gas Co., 931 F.2d 710 (11th Cir. 1991), 205
Fisher v. United States, 425 U.S. 391 (1976), 64, 239, 289
Goss v. Lopez, 419 U.S. 565 (1975), 58-59
Imbler v. Pachtman, 424 U.S. 409 (1976), 65
Ingraham v. Wright, 430 U.S. 651 (1977), 65
Katz v. United States, 389 U.S. 347, 99
Litton Sys., Inc. v. AT&T Co., 700 F.2d 785 (2d Cir. 1983), 156, 160
Marchetti v. United States, 390 U.S. 39 (1968), 47
MCI Communications Co. v. AT&T Co., 708 F.2d 1081 (7th Cir. 1983), 157, 15j9
Morrison v. Olson, 487 U.S. 654, 697 (1988), 201-02
Olmstead v. United States, 277 U.S. 438 (1928), 99
Pinkerton v. United States, 328 U.S. 640 (1946), 146
Planned Parenthood Fed’n of Am., Inc. v. Heckler, 712 F.2d 650 (D.C. Cir. 1983), 131
Planned Parenthood Fed’n of Am., Inc. v. Schweiker, 559 F. Supp. 658 (D.D.C. 1983), 131
Radio Corp. of America v. United States, 341 U.S. 412 (1951), 2
Webster v. Sun Co., Inc., 561 F. Supp. 1184 (D.D.C. 1983), 150
United States v. Castro et al., 829 F.2d 1038 (11th Cir. 1987), 210
United States v. Doe, 465 U.S. 605 (1984), 239
United States v. Felt, 502 F. Supp. 71 (D.D.C., 1980), 95-96, 100-04, 110, 113, 121
United States v. Gray, 502 F. Supp. 150 (D.D.C. 1980), 96
United States v. Heller, 785 F.2d 1524 (11th Cir. 1986), 204
United States v. Heller, 830 F.2d 150 (11th Cir. 1987), 206
United States v. Hubbell, 11 F. Supp. 2d 25 (D.D.C. 1998), 239
United States v. Hubbell, 167 F.3d 552 (D.C. Cir. 1999), 240
United States v. Hubbell, 530 U.S. 27 (2000), 243
United States v. North, 920 F.2d 940 (D.C. Cir. 1990), 198
United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1992), 198
B-2
United States v. Treadwell, 760 F.2d 327 (D.C. Cir. 1985), 148
United States v. Treadwell, 594 F. Supp. 831 (D.D.C. 1984), 149
United States v. U.S. District Court (Keith case), 407 U.S. 297 (1972), 102
United States v. Velez, 586 F.3d 875 (11th Cir. 2009), 271
Webb v. Texas, 409 U.S. 95 (1972), 207
Statutes
Agricultural Trade Development and Assistance Act, Pub.L. 83–480, 69
Arms Export Control Act (AECA), 22 U.S.C. 2778, 167
Classified Information Procedures Act (CIPA), Pub.L. 96–456, 94 Stat. 2025, 105
Criminal Justice Act, 18 U.S.C. § 3006, 133
D.C. Home Rule Act of 1973, Pub.L. No. 93-198, 87 Stat. 774, 258
Independent Counsel Law, 28 U.S.C. §§ 591-599 (1994), 231
Independent Counsel Reauthorization Act of 1994, Pub.L. No. 103-270, 231
Internal Revenue Code, 26 U.S.C. § 61 (2006), 83
Social Security Act, 42 U.S.C. §§ 301-1305 (Suppl. 4 1934), 57
Wiretap Act, 18 U.S. Code § 2511, 112
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Elizabeth A. Cavanagh
Biographical Sketch
Elizabeth A. Cavanagh is the Associate Director of the SJD Program at the Washington College
of Law at American University. Professor Cavanagh has taught legal research and writing as
well as appellate advocacy, and previously worked at Jenner & Block’s D.C. office as an
appellate and trial court litigator. She attended Dartmouth College and Yale Law
School. Following graduation, she clerked for the Honorable Louis F. Oberdorfer of the U.S.
District Court for the District of Columbia and for Justice John Paul Stevens of the U.S. Supreme
Court. Professor Cavanagh serves on the board of a nonprofit organization devoted to improving
legal representation for domestic violence survivors, and also helps screen cases for the MidAtlantic Innocence Project. She is admitted to practice law in D.C. and Maryland.
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