Phillip Allen Lacovara Complete Oral History

Oral History Of
Philip A. Lacovara, Esq.
Interviews Conducted by Carrie Johnson
Published 2025
________
The Stephen J. Pollak Oral History Project
Of the Historical Society of the District of
Columbia Circuit
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iOral History of Philip Lacovara, Esq.
Table of Contents
Preface. ……………………………………………………………………………………………………………….. i
Oral History Agreements
Philip Lacovara, Esq…… ………………………………………………………………………………. iii
Carrie Johnson ………………………………………………………………………………………………v
Oral History Transcripts of Interviews
June 12, 2024 ………………………………………………………………………………………………..1
June 20, 2024 ………………………………………………………………………………………………30
July 24, 2024 ……………………………………………………………………………………………….69
August 8, 2024 …………………………………………………………………………………………..104
August 27, 2024, ………………………………………………………………………………………..138
September 4, 2024 ……………………………………………………………………………………..171
September 10, 2024 ……………………………………………………………………………………196
September 16, 2024, …………………………………………………………………………………..228
October 2, 2024 ………………………………………………………………………………………….254
Index …………………………………………………………………………………………………………….. A-1
Table of Cases and Statutes …………………………………………………………………………………B-1
Biographical Sketches
Philip Lacovara, Esq. ……………………………………………………………………………….C-1
Carrie Johnson.. …………………………………………………………………………………….. D-1
ii/
The Historical Society of the District of Columbia Circuit
which I or my executor may be the author or co-author.
Oral History Donation Agreement of Interviewee
Phillip Allen Lacovara
Donor Name
I,
Columbia
Phillip Allen
Circuit,
Lacovara,
Washington,
do hereby
D.C. and
grant
its
and
employees,
convey to
agents,
The Historical
successors and
Society
assigns
of the District
(hereinafter
of
recordings
collectively,
and
“the
cassette
Society”)
tapes)
the right
and
to use
transcripts
the voice
of my
recordings
oral history
(including
interviews
but not
as
limited
described
to digital
in
Schedule A hereto, for the purpose of preservation and publication of my oral history.
All copies of such recordings and transcripts are subject to the same terms herein provided.
I
form
transcripts
or
understand
in
format,
that
any
the
including
manner
Society
that
may
the
publication
Society
duplicate,
on the
edit,
considers
or
Internet.
publish
I
appropriate.
permit
such
the
recordings
use of
and
such
transcripts
recordings
in
and
any
I waive any claims I may have or acquire to any royalties from such use.
I
and
reserve
transcripts
for myself
and
and
their
to the
content as
executor
a
of
resource
my
for
estate
any
the
boo\{\
non-exclusive
(ailiphlet,
right
article,
to use
or
such
other writing
recordings
of
—- ‘ -t,Nvif’\.uv�
Phillip Allen Lacovara
SWORN TO AND SUBSCRIBED before me this ,20_£.
S”‘e,\b,J �,u �-�c\\j
J Notary Public J
My Commission expires: t)””z._,. t><-
6,,,. 20 2-.5
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• ,,-
ACCEPTED this� day of ‘t”�\Jll� , zJ:’2>
, by James E. Rocap, III, President of
The Historical Society of the District of Col • a Circuit.
SHELBY MURRAY
NOTARY PUBLIC
BALTIMORE CITY
MARYLAND
. MY COMMISSION EXPlRES 02-08-2025iv
Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes, and
DVDs resulting from nine interviews of Philip Lacovara on the following dates:
Pages of Interview
No. and Date
Interview No. 1, June 12, 2024 1-29
Interview No. 2, June 20, 2024 30-68
Interview No. 3, July 24, 2024 69-103
Interview No. 4, August 8, 2024 104-137
Interview No. 5, August 27, 2024 138-170
Interview No. 6, September 4, 2024 171-195
Interview No. 7, September 10, 2024 196-227
Interview No. 8, September 16, 2024 228-253
Interview No. 9, October 2, 2024 254-276
The transcripts of the ten interviews are contained on one DVD.The Historical Society of the District of Columbia Circuit
Oral History Donation Agreement of Interviewer
Carrie Johnson
Donor Name
I, Carrie Johnson, do hereby grant and convey to The Historical Society of the District of Columbia
Circuit, Washington, D.C. and its employees, agents, successors and assigns (hereinafter
collectively, “the Society”) the right to use the voice recordings (including but not limited to digital
recordings and cassette tapes) and transcripts of the oral history interviews I conducted with Phillip
Allen Lacovara, as described in Schedule A hereto, for the purpose of preservation and publication
of his oral history.
All copies of such recordings and transcripts are subject to the same terms herein provided.
I understand that the Society may duplicate, edit, or publish such recordings and transcripts in any
form or format, including publication on the Internet. I permit the use of such recordings and
transcripts in any manner that the Society considers appropriate.
I waive any claims I may have or acquire to any royalties from such use.
I will make no use of the oral history, or the information contained therein, until it is
ted and published by the Society, or until I receive earlier permission from the
0..r DON H. KIM
NOIARY PUBLIC OSTBICT OF coLtfiarrie J
SWORN TO AND SUBSCRIBED before me this
il.
41&^-lZ-
My Cormis.sim Expires Ar$rsl 31, i028
Notary Public
My Commission expires 0( {t-} .,; y
* day of 2oxl_
ACCEPTED this M*. r€abr.ror\^ 2e2by James E. Rocap, III, President of
The Historical Society of the District of Colurf,dta Circuit.
J IIIvi
Schedule A
Tapes recordings, digital recordings, transcripts, computer diskettes, and
DVDs resulting from nine interviews of Philip Lacovara on the following dates:
Pages of Interview
No. and Date
Interview No. 1, June 12, 2024 1-29
Interview No. 2, June 20, 2024 30-68
Interview No. 3, July 24, 2024 69-103
Interview No. 4, August 8, 2024 104-137
Interview No. 5, August 27, 2024 138-170
Interview No. 6, September 4, 2024 171-195
Interview No. 7, September 10, 2024 196-227
Interview No. 8, September 16, 2024 228-253
Interview No. 9, October 2, 2024 254-276
The transcripts of the ten interviews are contained on one DVD.1
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place at NPR Headquarters in Washington,
D.C., on June 12, 2024. This is the first interview.
MS. JOHNSON: Good morning, Mr. Lacovara. Let’s start at the beginning. Can you tell me
your full name and your date and place of birth.
MR. LACOVARA: My full name is Philip Allen Lacovara. I was born on July 11, 1943. It
turns out, to my surprise, I was born in Brooklyn, New York, something I
did not realize until I saw it appear in a column by Mary McGrory of the
old Washington Star, who had introduced the discussion of the argument
of the Nixon Tapes case in the Supreme Court by referring to me as
“portly but stately” and “Brooklyn-born.” I did look it up, and in fact, the
hospital where I was born is in Brooklyn, although I’d never thought of
myself as a Brooklynite.
MS. JOHNSON: Did you object to portly but stately?
MR. LACOVARA: I liked the stately part. The portly was more or less accurate, but since
then, I think I’ve made progress on that front.
MS. JOHNSON: Let’s start at the beginning. What do you know about your family history?
MR. LACOVARA: My grandfather emigrated to the United States at the beginning of the
20th Century with his family and became an American citizen. He had
three children, including my father. My mother’s parents were born in the
US, at least her mother was. Her father was an immigrant as well.
My grandfather was a pharmacist living in what is now called
SOHO in Manhattan. It was then just plain Greenwich Village or Little2
Italy. My father went to City College, the public college where many
children of immigrants went, and then went to Columbia Law School.
MS. JOHNSON: So your father was an attorney?
MR. LACOVARA: My father was a lawyer, and his experiences a young lawyer were quite
dramatically different from what I experienced thirty years later. When he
graduated from Columbia in 1936, even though he was a member of the
Columbia Law Review, which at that point meant that you were part of the
top fifteen in the class, he was not able to get a job on Wall Street. In that
era, Italians and Jews were not welcome in the major Wall Street firms.
He told a story about being escorted into a meeting with the hiring partner
at a Wall Street firm and was introduced as “this is P. Philip Lacovara,
he’s Italian,” and the interview ended about three minutes later. So he then
got a job working for then-DA racket-busting district attorney Tom
Dewey. My father was an anxious man, and on his first day, he was given
a stack of files in a criminal case and was told to go into court and arraign
these criminal defendants. He decided this was not for him, so he quit
right away and found another job in a field that occupied him for the next
fifty years or so.
MS. JOHNSON: What was that?
MR. LACOVARA: He became a trusts and estates lawyer and was quite successful at it and
well-regarded. Ultimately, he wound up as the general counsel of the
Fiduciary Trust Company in New York. It used to be at Number 1 Wall
Street and then moved with some drama to the second tower of the World3
Trade Center. He had died before 9/11, but virtually all the people with
whom he had worked who were still working at the bank died on
September 11.
MS. JOHNSON: I’m so sorry to hear that. How tragic.
MR. LACOVARA: It was tragic. To have a personal connection with that building and to
watch it burning. I was on my way to Washington on 9/11, and our flight
was running down the runway to take off from LaGuardia when the pilot
jammed on the brakes, and we went back. We were in the lounge at
LaGuardia watching on television as the towers burned and collapsed.
MS. JOHNSON: Wow.
MR. LACOVARA: Indeed.
MS. JOHNSON: How about your mother?
MR. LACOVARA: Basic education. I think she had two years of high school. After she died, I
found in her papers a certificate that she gotten some kind of training as a
seamstress, although I understood that she worked as a comptometer
operator at a company. I guess they’re still in business, Hammacher
Schlemmer. They now have a big catalog business, but she worked in the
accounting office, I guess. A comptometer was a high-class name for an
adding machine. She was very proud that she was a comptometer operator.
MS. JOHNSON: Absolutely. Your father must have lived a long life if he worked that long.
MR. LACOVARA: He actually died at age 70. I was in Yugoslavia at the time. He had a heart
attack. I was on an international human rights mission for the American
Bar Association and got a call from my wife saying I think you should cut4
the mission short and come home because your dad is not in good shape. I
got back and had a chance to see him right before he died.
MS. JOHNSON:
MR. LACOVARA: Yes. She died four years after my father. He died in 1984. My mother died
in 1988.
MS. JOHNSON: Any brothers or sisters?
MR. LACOVARA: Two sisters, one of whom died a few years ago, and one is still alive who
has two daughters, one of whom is a major Hollywood producer. My sister
constantly sends me notes about what awards my niece Rachel is winning,
Emmys and things of that sort. It’s kind of exciting to watch a completely
different form of family development taking place.
MS. JOHNSON: A lot of family achievement in your family for sure.
MR. LACOVARA: As with any family, people achieve in different ways.
MS. JOHNSON: Can you describe your family gatherings when you were a kid?
MR. LACOVARA: Oh gosh, yes. I don’t know whether this is true of all immigrant families,
but most of the lifestyle consisted of family gatherings rather than
extended relationships with people who would be called “strangers,” that
is anybody not connected by blood or marriage. There were regular,
particularly Sunday, dinners during the wintertime where people would
gather. Either we would go to my grandfather’s house in lower Manhattan,
or people would come to our house. During the summer, there was a ritual
rendezvousing at Jones Beach trying to find other family members in the
throngs of the hundreds of thousands of people. The way one did it in5
those days was that one of my mother’s brothers would be assigned to go
out to Jones Beach early, take a particular beach umbrella near one of the
particular landmarks and then would walk down a hundred yards on the
beach and plant the flag, almost literally, the colored beach umbrella. And
then everybody else would wander around once they arrived trying to find
this needle in a haystack. My children still remember when they were
younger, and this was happening at the tail end of those family gatherings:
dining at the beach on pepper and egg sandwiches which were made all
the more delicious as taste treats because of the sand. They can still
remember chewing on sand when they were just getting their first teeth.
MS. JOHNSON: Amazing. What about the menu for those Sunday dinners, and who did the
cooking?
MR. LACOVARA: My mother was a fabulous cook and one of those cooks who, when she
was asked about a recipe, said well, you throw a little of this in or a pinch
of that. I remember after we were married, my wife asked her about her
recipe for cheesecake, and she told her approximately how many eggs and
how many bars of cream cheese and how many things of this, and when
my wife put all this in, it turned out making about four cheesecakes. She
asked my mother whether she’d gotten the proportions right, and mom
said well yes, but I usually make several because it’s to give to my
brothers, to give to our neighbors, and so forth. So her sense of cooking
was preparing for a large assortment of beneficiaries. But as an Italian
family, we had pasta on Sundays and some sort of meat sauce, what6
Italians call gravy, or at least in New York that was what it was called.
When I grew up, it was during the period when on Friday nights, no meat
was allowed, so Friday night was fish. And since my mother had grown up
relatively poor, that basically consisted of dried codfish, or I think the
Italian term for it is baccàla. It’s kind of salted cod. Pretty tasteless unless
you put a lot of something else on it, but it was nutritious, and it was not
meat, and that was about the best one could say for it.
MS. JOHNSON: What role did religion play in your family life and in your life as a young
man?
MR. LACOVARA: Both of my parents were serious about the Catholic faith. My sisters and I
went to Catholic schools throughout our whole careers. I went to Catholic
grammar schools, Catholic high school, Catholic college. My sisters did
the same. They went to the same grade schools in both of our
communities, and then both of them went to Marymount Manhattan in
New York City, and I went to Xavier High School, a Jesuit school, in
lower Manhattan.
MS. JOHNSON: If you can recall, in those early years, what did you like to do for fun?
What were your hobbies?
MR. LACOVARA: My hobbies. There were two things. One in my formative years, I grew up
in a small suburb just outside New York City called Great Neck, and there
were a lot of young people about my age. This is the post-war period, so I
was sort of in the Baby Boom era, although I was born during the war.
There were young boys and girls my age, and we would just go out into7
the roadway and play ball, boys and girls, going all the way up to early
teens. Bicycle riding. I was an avid biker. I would bicycle to meet a cousin
of mine halfway. He lived about ten or twelve miles away, and we would
meet in the middle. So we did that. But among my principal hobbies were
building models of airplanes and other basically World War II-type
memorabilia. We grew up in the shadow of World War II. Many members
of the family, although not my father, were veterans so we had a tangible
connection with the war, and building model airplanes was one way of
trying to capture a little of that as a youngster.
MS. JOHNSON: What were you reading in those years that made an impression on you, if
you remember?
MR. LACOVARA: At that stage, I was reading the serious reading, such as it was, and I’m
talking now at age 10, I was reading Readers Digest, which was sort of the
everyman journal of the United States. I think it doesn’t exist as such
anymore, but it was a way of getting exposed to a larger world because
among the articles that I looked forward to reading was one called “Life in
these United States,” as I remember, and then another one was “The Most
Unforgettable Character I’ve Met.” These were little vignettes about
people with strange interests or activities, and so for a young fellow
growing up in a suburb of New York, it was a way of learning about the
world.
I will also say that, before I started reading serious books, I was an
avid reader of Classic Comics, which summarized the plots of the basic8
staples of English, American and French literature. My first exposure to
Les Mis came in a Classic Comic 70 years ago or so.
MS. JOHNSON: These were separate books, or did they appear in newspapers or both?
MR. LACOVARA: Classic Comics were the equivalent of comic books, which I also read.
Readers Digest was a pamphlet-sized mailer that my father subscribed to.
He also subscribed to hard-bound books, but they were more sophisticated
than I was accustomed to. He also subscribed to the Ellery Queen Mystery
Magazine, and I would read some of those. They were written with the
level of simplicity that a ten-year-old could master. It was at a time when
nothing terribly salacious or R-Rated was in general circulation. I read
mystery magazines early in my youth.
MS. JOHNSON: Fantastic. What kind of approach did you take to school in your early
years, and how important was education to your parents?
MR. LACOVARA: Education was extremely important, as I think every immigrant group
recognizes that the way to get ahead, to demonstrate acceptability in a
pluralist society, was by demonstrating that you could do at least as well
as anybody else, and the way to do that was by getting a good education
and going into a profession, if possible. That’s the route my grandfather
took. He became a pharmacist. In fact, he went to what was then the
Columbia University School of Pharmacy. My grandfather was the class
of 1916, I think. My father was Class of 1936 at Columbia. I was Class of
1966 at Columbia, and one of my daughters was the Class of 1992 at
Columbia. So we have four generations of Columbia alums.9
My parents were quite enthusiastic about making sure that we went
to the best schools that we could get into and to make sure that we did our
homework. There was nothing that was considered more important than
getting your homework done before you could go out and play or do
anything else, including television.
MS. JOHNSON: When did you get a television? Did you have one in your early memory?
MR. LACOVARA: I remember the first set that we had was probably 1949 because I can
visualize it in our apartment in Elmhurst Queens. The television set itself
was about as big as a 55-gallon drum, and the screen was probably about
as big as an iPhone. Because my father was the most successful member
of the family, we were the first people in the broader family to have a
television, and so various relatives would come over to watch things like
Milton Berle. I think Milton Berle may have been the variety show that
was on as early as 1949. People would cluster around trying to get a
glimpse of this little, tiny image. It was another bonding experience for the
family, of which there were lots.
By the way, I should say I remain an inveterate television watcher.
I am probably as unsophisticated a television watcher as you’re likely to
encounter, and this continued through all of my schooling years, partly
because we had a lot of children early on, and I kept the TV on in the
background while I was studying as my equivalent of white noise. To this
day, I’ve got the television on if I’m writing a draft award or writing an
op-ed, I’ve got the TV on in the background. I may have no idea what’s10
happening, but it’s the background noise that has been a phenomenon in
my style of doing things for let’s say 75 years.
MS. JOHNSON: It seems to be working pretty well.
MR. LACOVARA: I’ll let others be the judge of that.
MS. JOHNSON: What’s the TV tuned to these days most often?
MR. LACOVARA: Most often now it’s tuned either to CNN or to Turner Classic Movies. I’m
a big movie buff. One of the highlights of my recent life was, two years
ago I think it was, one of my sons gave me a trip as a Christmas present.
We have a family phenomenon called Kris Kringle. One of my daughters
picks names out of a hat to assign two people to each other for exchange
of allegedly anonymous gifts, and one of my sons got me for Kris Kringle
passes for the annual meeting of the Turner Classic Movie people in
Hollywood. It was a three- or four-day film festival, so that was a great
experience.
MS. JOHNSON: That sounds like a lot of fun. Did it become apparent early on that you
were good at academics, that it was a successful thing for you?
MR. LACOVARA: I think the answer to that is probably yes. I did well in grammar school,
although I don’t know whether there were ranks in class. But when I got to
high school, Xavier High School, at the end of my first year, I was doing
well enough, so I was given the option of entering one of the honors
classes. They had two different branches. The so-called Greek honors,
which meant that you took, in your remaining three years, Greek as one of
your foreign languages, or the science honors class. I thought maybe I11
would be a scientist or something at that point, and that meant that you
had an extra year of science and studied German, because in the mid-
1950s, German was identified as the language of scientific research and
publication.
When I graduated, I think I must have been first in the class
because I did get the award for the top person in the graduating class. I
received first honors each semester.
MS. JOHNSON: How did you come to attend Xavier?
MR. LACOVARA: I was fascinated by the military element of it. I knew very little other than
that about it. I was young. I was almost a year ahead of myself in grammar
school because of the way overcrowded classes were being set up then.
You could start either in September or February and graduate equivalently
either in June or September. So I never actually graduated from grammar
school. Rather than continue on to so-called 8B, which would have been in
the fall, I asked my parents whether they’d let me take the entrance exam
to go to Xavier directly, and I was accepted and did that. I was fascinated
by the military feature of it, and there are a lot of stories about what
happened there and how that was a formative part of my life, perhaps the
most formative part of my life. I graduated from Xavier at 16 and then
skipped a year in college, so I was only 19 when I finished Georgetown.
MS. JOHNSON: Let’s go back to Xavier for a moment. What about it was so appealing to
you, and what year was this? What was going on in the world in terms of
the military?12
MR. LACOVARA: This was the mid-1950s. I started in 1956, so it was the time of the Cold
War. Everybody now has visualized the duck-and-cover imagery of
children trying to protect themselves from nuclear holocaust by hiding
under a wooden desk. It seemed like a sensible thing at the time, although
in retrospect it’s kind of bathos. I was growing up in that era, and it was in
the aftermath of the Korean War that this was happening. It was the depths
of the Cold War and lots of things were going on even in 1956. It was the
“Suez crisis,” when the French and British tried to retake the Suez Canal
from the Egyptian, Gamal Abdel Nasser, who had seized the Canal, and
that led to a major flap. And then in 1957 I remember being in class when
someone came in to announce that the Russians had put the Sputnik
satellite up into orbit. That was kind of a dramatic illustration of a whole
new world because in the 1950s, science fiction consisted of lots of
movies that I loved, such as Destination Moon and It Came from Outer
Space, and things that were understood to be fictitious. But here all of a
sudden in 1957, man has put something into space, and that was a
psychological as well as technical revolution.
MS. JOHNSON: Beyond your imagination in many ways.
MR. LACOVARA: Absolutely. If you think about it, it was only four years from then until
Kennedy’s pledge that we would put a man on the moon in that decade, as
we ultimately did. In that relatively short period of my life, things that
went from being science fiction to being hard, cold reality, and it was
exciting to live through a period when that was happening while there13
were still all the political and military tensions of the Cold War and
occasionally, as occurred in the 1960s with Vietnam, a hot war.
MS. JOHNSOSN: Tell me a little more about Xavier. How many students per class? All
male?
MR. LACOVARA: Xavier was all-male, and still is. The school was founded in 1847, so it’s
175 years old or so. All males. We had I think about 270 students per year,
with classes of about 30. That was much better than my grammar school
where we had 60 or 70 persons in a classroom taught typically by young
nuns. You couldn’t quite tell how young they were because they were
wearing wimples or whatever the headgear was called, so you couldn’t see
any hair color. I think both my wife and I tried to reconstruct this and
figured that a number of the people who were teaching classes of 60 or 70
students, and every one of whom learned to write and read, were probably
in their early 20s, and certainly with no degrees in educational theory. But
at Xavier, we had I think ultimately when I became a cadet colonel, we
had about 1,000 young men.
MS. JOHNSON: That’s bigger than I thought.
MR. LACOVARA: The military component was described as the regiment, and it was about
the size of an infantry regiment of about 1,000 young men.
MS. JOHNSON: What was the entrance exam like, if you remember?
MR. LACOVARA: I don’t remember much about it. It was a basic aptitude test. A little bit of
math, a little bit of English facility.14
MS. JOHNSON: Once you arrived at the school, was there a class every day? Was there a
period of time every week where you would get certain kinds of military-
like training?
MR. LACOVARA: Yes. We wore uniforms every day. We had dress blue uniforms that were
specialized, that is they were specially designed, and you had to buy them
from a uniform supplier. They were worn on Mondays and Fridays, and
then Tuesday, Wednesday, and Thursday, we had Army surplus khaki
uniforms for the so-called enlisted men, that is people who are not
officers. In the fourth year, there were probably about 40 or 50 young men
who became officers, and we used Army surplus officers’ uniforms, the
one that they have now reinstated as the standard Army uniform for the
current military officer corps, the so-called pinks and greens, two shades
of khaki.
As part of the regular academic exercise, there was a class each
year, a series of courses, in military science and tactics, and one learned all
sorts of academic aspects of military science. And then we had drill. We
were organized into squads, platoons, companies, battalions, and regiment,
and we drilled at an armory not far from the school. We used surplus
rifles. Officers carried sabers, which was kind of an interesting phenomena
going on the subway, taking the F train and carrying a gigantic sword.
And if you were on the rifle team, you took your rifle home with you on
the subway. That, of course, would probably not be de rigueur in modern
New York City, probably just as well.15
MS. JOHNSON: There’s a famous photo of Justice Scalia, the man who became Justice
Scalia, with his rifle on the subway.
MR. LACOVARA: Yes. Scalia and I reminisced fairly often about our respective experiences.
I told him once that I had visualized a young Xavier High School boy who
had grown up in Elmhurst, New York, as an Italian-American and gone to
Georgetown, as being a Supreme Court Justice, and I said to him I didn’t
have you in mind for that. He took that well enough.
MS. JOHNSON: I’m sure. So did you carry a saber or you had your rifle?
MR. LACOVARA: I had a saber. I was an officer in the fourth year. I was the cadet colonel in
charge of the whole regiment.
MS. JOHNSON: What responsibility did that involve? It sounds like a big job.
MR. LACOVARA: It was the equivalent of being the student body president, not elected. I
was appointed by the authorities who, I guess, assumed that I had the right
judgment and temperament. Among other things, apart from being
responsible for the training of the regiment and its public exercises such as
the parades on 5th Avenue on Columbus Day in October and St. Patrick’s
Day in March, I had responsibility for the discipline of the thousand young
men. If I thought it appropriate, I could assign punishments and suspend
people from the regiment and so forth, or from school.
MS. JOHNSON: Did you have to do that sometimes?
MR. LACOVARA: Very rarely. For the most part, the people who went to Xavier and stayed
there understood that part of what they were learning was character, and
character involved basically exercising good judgment and recognizing16
that if you’re part of an institution, you’ve got to abide by the rules, and
the rules probably made sense, and if they didn’t somebody could change
them over time.
There were a couple of occasions where I did suspend people and
had them walk penalty tours, marching in the quadrangle with a rifle on
their shoulders, and some of those people became some of my best friends,
with whom I’m still in touch sixty years later.
MS. JOHNSON: Tell me a little bit more if you could about the experience of participating
in those parades, what it felt like, what it looked like.
MR. LACOVARA: It was an exciting opportunity for young men. These were parades of quite
considerable scale back in the late 1950s. First of all, they were
celebrating major holidays, for New Yorkers in general because both
Columbus Day, which was nominally to celebrate an Italian who had
helped discover America, that has become a much more controversial
phenomenon in this era, but at the time, that was thought to have been a
really good thing worth celebrating. And St. Patrick, of course, the patron
saint of Ireland in a city with a massive Irish population, was regarded as
an event worth commemorating. So we had to organize around 40th or 41st
Street in Manhattan and wait around for a long time until our turn in the
parade came, and then we’d march up to about 86th Street. So it was a long
march, and it was marching. It wasn’t just walking or sauntering. One had
to stay in step, and we had a band and a fife and drum corps and so forth,
and somebody was beating cadence and other people were counting17
cadence. And as a colonel, I was head of the regiment, and I had a
ceremonial function which was when we got to St. Patrick’s Cathedral
where the Cardinal Archbishop of New York would be sitting out on the
steps in front of St. Patrick’s in a chair, kind of a throne. I had to stop the
whole parade and march over smartly to the Cardinal and genuflect and
kiss his ring. There are pictures of this that I have somewhere around. It
would be typically a photograph that would make the daily newspapers in
New York like the New York Daily News because it was an interesting
visual for a newspaper to carry. So there was a typical, almost routine,
photograph for each of these parades. It would be the Xavier colonel
kissing the Cardinal’s ring. And then I would go back in line and off we’d
go the next thirty blocks or so.
MS. JOHNSON: How would you stop? Did you have to whistle? How did you signal
everyone else to stop?
MR. LACOVARA: I had a loud voice, and when I said forward march, it would get repeated
by subsequent commanders down the line, and if I said regiment halt, if I
yelled it loud enough, even in the midst of the crowds, and those years
there were massive crowds lined up along the parade route, generally
people could hear what I needed to say.
MS. JOHNSON: How was this experience so formative for you? How do you think it
shaped the person that you became?
MR. LACOVARA: I think, and I think this is also the view of a lot of my contemporaries at
Xavier, and indeed is a reason why Justice Scalia was estranged from18
Xavier until much later, and I can go into that if that becomes interesting. I
think there was a sense that we did get an aspect of character development
from being part of this kind of structured institution. We didn’t abandon
any sense of self or identity, but there was a sense of participation in
something bigger, the regiment, for example, that had its own proud
tradition. And there was the sense, just the phenomenon of marching with
other people gives you a sense of participation and responsibility because
if you’ve ever seen any kind of military unit marching, you can
immediately see if somebody’s out of step. It’s symbolically important.
You want the whole entity to thrive and to do its job and to look right. So
if you’re out of step, that metaphor “marching to a distant drummer” is
reflective of exactly what happens when you’re out of step. And you may
say well that’s what we want to do is cultivate individualism, but there are
some times when you need to be part of an organization. So that helped.
There was a very distinct and intense religious formation as a Jesuit
school. Mass attendance a couple of times a week was expected. Religion
was not only an academic part of the program, the academic coursework,
but was a theme that suffused the school. So that was part of the character
development.
The other part of it was when I was convinced that I needed to
soften my commitment to one of the military features of the school and do
something else. That’s what I would think is in retrospect the most
formative part of it.19
I had, as a reflection of this preoccupation with the military feature
of Xavier, tried out and become a member of the drill team, the so-called
X Squad, which had an especially spiffy set of accoutrements for the
uniform, a white belt and white chaps, a white cap cover. We did special
tricks with rifles and bayonets, flipping things around, throwing them over
our shoulders, marching in different kinds of formations. It was all quite
fun. But one day I was called to the office of the prefect of discipline, who
was the sponsor of the regiment. He was a Jesuit priest. I met him there
with another teacher, and they said we think that you’re wasting your time
doing this. We think that it would be much more productive for you if you
dropped out of the X Squad and became a member of the speech and
debate club. This was in my second year. I was heartbroken. I questioned
it, and they said no, we really think this would be much better for you.
So to make a long story short, I succumbed. I joined the debate
team. We had a very good debate team. I got a chance to go around the
country doing speech and debate tournaments, which I think turned out to
be useful for my eventual role as a courtroom lawyer, probably much
more effective than being able to twirl a rifle with a bayonet without
cutting off one of my limbs. Most important, when giving a demonstration
debate at the Mary Louis Academy, I spied a young woman who was
judging our debate sitting in the back of the room. I saw nothing but her
ankles which were the only things exposed in her Catholic girls’ school20
uniform. I said, God, she’s cute, and we’ve been married 63 years now. So
that was pretty formative.
MS. JOHNSON: What year was that?
MR. LACOVARA: That was 1959. I’ve never forgiven her for the fact that of the four
debaters on my team who had to be ranked one, two, three, and four, she
ranked me last. But I got even with her, and I married her.
MS. JOHNSON: Give me your wife’s full name.
MR. LACOVARA: Madeline Estelle Lacovara.
MS. JOHNSON: So you began dating shortly thereafter.
MR. LACOVARA: Began dating shortly thereafter. I got her name and her phone number
from a mutual friend and started dating. Both she and her parents were
resistant to this whole thing. She looked down on Xavier boys, thinking
that they were just playing dress-up. Her father was not a big fan of mine
because he thought that I was a little too aggressive and forward. I got a
driver’s license that summer. I had just turned 16, and I wanted to take her
out in the car, and he was having none of it, so we broke up temporarily.
Then I had an accident involving five other cars and he basically said I
told you so. But after a bit of estrangement, we got back together again
and then got married in college and had seven children.
MS. JOHNSON: She lived in New York City also or in one of the boroughs?
MR. LACOVARA: She lived in Queens.
MS. JOHNSON: What was her religious, ethnic background? Similar to yours?21
MR. LACOVARA: Same. Also Catholic. Her maternal grandmother was Jewish. Her father
was Italian and Jewish but was a practicing Catholic, as was her mother.
MS. JOHNSON: She lived not very far from you?
MR. LACOVARA: She lived at the other end of Queens County, and to this day, she tells me
or anybody who’s listening that I was the only cheapskate who insisted
that when we went out on dates, we took the bus and the subway rather
than taxis, whereas all the other young men she was dating would pick her
up in a taxi and take her in a taxi somewhere. My response to this day is
that I was planning for the future by being frugal. She still hasn’t accepted
that.
MS. JOHNSON: What kinds of things did you like to do together, like go to the movies?
What did you do?
MR. LACOVARA: Xavier had, and may still have, what are called basketball dances. There
would be after a basketball game in the gym followed by a dance with a
live combo, typically somebody brought in or from one of the other
schools or the Xavier dance band. It was kind of a sock hop sort of thing
that went on for a few hours and would end at 11:00 so that people could
get home by 12:30 or 1:00.
MS. JOHNSON: That’s kind of a late curfew.
MR. LACOVARA: Growing up in New York then was quite different because there was a
general sense that you could do things in the city and get home late at
night, and you were likely to be safe. Whether the reality is different
today, there’s a sense, at least for younger people as we were, I’m talking22
when I was 15 or 16 years old, that you could get out and around and take
the trains late at night.
MS. JOHNSON: These dances were in the gymnasium?
MR. LACOVARA: In the gymnasium proper. There were other formal events. The school that
she went to was a private girls’ school. It was a good academic school, and
all the girls went on to good colleges, but it also had an element of
finishing school to it so that there were events that were deliberately
sponsored so that you were exposed to the finer things in life and knew
how to behave in society. There was a cotillion, and there was a coming
out, so-called, a debutante ball. And then we at Xavier had the same sort
of thing. We had various proms. We had a military ball where the teenage
girls wore floor-length gowns, the boys wore formal bowties and dress
uniforms. So there were a lot of activities like that. And then movies.
MS. JOHNSON: You were how old when you graduated from Xavier?
MR. LACOVARA: Sixteen.
MS. JOHNSON: What was your thinking about what came next? Was it automatic that you
would go to Columbia as your father and grandfather had?
MR. LACOVARA: I didn’t go to Columbia until law school. When I was at Xavier, there were
a couple of assumptions that were made about me. One was that because I
was the colonel, and my three predecessors had gone directly from high
school graduation to the Jesuit seminary to become priests, so there was a
kind of track record, a well-worn path, from Xavier into the seminary.
That was not anything that was in my game plan. So then the other23
assumption that was made about virtually all of the students was that they
would go from Xavier to another Catholic institution, a Catholic college,
and since I was a Jesuit product, that meant essentially Holy Cross or
Georgetown. I applied to two colleges, Holy Cross and Georgetown, got
accepted at both, and decided Washington sounds a lot more interesting
than Worcester, Massachusetts, and then the rest is history from there. I
went to Washington and basically I’m still thought of as, in large measure,
a Washington lawyer, although I’ve lived in a variety of places and
practiced law in a variety of contexts.
MS. JOHNSON: What did it feel like to arrive here in that era? Was it a sense of excitement
and promise?
MR. LACOVARA: It was tremendously exciting. I remember being dropped off by my
parents with my big steamer trunk, which I had inherited from my
grandfather who had taken this with him on his first and only trip back to
Italy. And parenthetically, my daughter who lives in London told me this
past weekend that she has that trunk, which I knew, and she is shipping it
to her house in Portugal where she’s planning to make it a central theme
piece in some design layout of her house. So I remember being dropped
off with my steamer trunk at Georgetown and looking forward to the
excitement of being away, meeting a lot of new people.
I can also talk about one of the early events of that experience,
kind of a freshman orientation, and in what is probably another highly ill-
advised kind of characterization. One of the things that was organized for24
entering students at Georgetown at the time was something called the
“slave auction” when all of the incoming first-years were paraded, literally
paraded, in front of the main building on the Georgetown campus where
young women from the area colleges or seniors in high schools could bid
on us and then we would be expected to go out on dates with them. It was,
after all, 1960. This is just as the civil rights movement is beginning, and
nobody at the time is thinking that this is in any way bizarre, insulting,
degrading, rather than just humorous or intriguing. Now, of course, it’s the
kind of thing that you could never imagine.
I’ll just interject there. When I went to Georgetown, Georgetown,
and Washington as a whole, was still a sleepy southern city. I mentioned
that we were married when I was at school. We lived in Arlington, In
Arlington, Virginia, the buses were still segregated. My wife, who as an
Italian young woman, would get a dark deep suntan. She was told to go sit
in the back of the bus when she got on a bus in Arlington. In our lifetime.
So it’s almost unimaginable for people in 2024 to visualize what life was
like for people who actually were every day in their lives the objects of
discrimination and condescension, rejection, brutalization. But that was
the environment in which I first went to Washington. It’s also the era of
Dwight Eisenhower and the beginning of the decolonization period in
Africa.
I remember one of the first political causes that I became involved
with involved Kwame Nkrumah. I can’t even remember now which25
African country was seeking independence from Britain, but he was the
leader of the uprising, it may have been Ghana. It was not Nigeria. There
were posters all around. So as young people are, we were rooting for the
underdogs supporting de-colonialism or decolonization in Africa.
MS. JOHNSON: What do you remember about your classes at Georgetown?
MR. LACOVARA: I remember the variety of people. I remember what I considered the
richness of coursework. It was my first exposure to American government
in a serious way, world politics. I had a course in modern foreign
institutions. I will say also it was to some degree a time warp. One of my
favorite stories about how things have changed since that time in terms of
scientific knowledge is that in my course in geography, no one imagined
plate tectonics. We learned that the earth is a solid ball essentially, and for
one reason or another, occasionally there are earthquakes. Period. End of
story. In chemistry, the atom is the smallest indestructible part of matter,
and it consists of protons, neutrons, and electrons. There’s nothing smaller
than those. Oh, okay. And those are the three particles that exist. Protons,
neutrons, and electrons. Okay. So I’ve said this in other settings. It’s
important even for scientists to be humble in asserting what we know to be
true, because what I was taught was true by the people who seemingly had
expertise turns out not to be true at all. So for me, that laid a foundation
for recognizing that one has to be guarded in saying I am the possessor of
truth and nothing more needs to be known than I now have in my own
intellect.26
MS. JOHNSON: Were clergy teaching? Was it a mix of people teaching? What was the
background?
MR. LACOVARA: It was definitely a mix. There were a couple of Jesuit priests on the
faculty. Certainly the religion courses that I had were taught by priests, but
most of the science courses and the social science courses were taught by
PhD lay people. Mostly men, although there were some women PhDs on
the faculty at that time. And also, one other thing about Georgetown, just
as Washington was kind of a sleepy southern town, Georgetown
University for the most part consisted of the college, which was all men,
and it was essentially a college for young Catholic men, so not much in
the way of religious diversity, no gender diversity. That was long before
Georgetown became what it is now described as a great research
university. One of the things that I am most bemused by is that, when I’m
watching a movie or a television show, some young person is so excited
because she just got her acceptance at Georgetown. In 1960, if that
happened, people would have said what the heck is Georgetown. Now it’s
got a worldwide reputation, and one could as easily understand that scene
to be written as Georgetown as Harvard. That would not have been the
case when I went there.
MS. JOHNSON: Two follow-up questions about Georgetown, first about education, and
second about the living situation. The second first. Did you live in a
dormitory in the early years? Did you have an apartment?27
MR. LACOVARA: I did. I lived in my first year in a building called New North, which was
connected to Old North, and Old North had been built in 1790. New North
I think was built in the mid- to late-1800s. So that was New North. For the
second-year accommodations, they were also for the most part on campus.
Almost everybody lived on campus partly because I think it may have
been required, certainly for the first year it was, and as a practical matter
there weren’t options for students to live elsewhere at that point. There
was a new building called New South, which is still known as New South
65 years later. New South was relatively modern. It had a dining hall in it.
It may have been air conditioned.
The way rooms were assigned in the second year was on the basis
of a scoring system. The scoring system consisted of ranked choice. The
team, two persons rooming together, who had the lowest number based on
rank and class had the earliest selection. So, for example, if the person
ranked first in class and the person ranked second in class were going to
be roommates, they would have a score of three. I was I think third or
fourth in my class at the end of the first year, which meant that adding me
to anybody else’s score would give anybody else a leg up. So I was a
popular source of potential rooming accommodation.
I decided to room with a fellow who was not doing all that well.
There’s a story about him too. But as a result of putting my score and his
score together, we never did qualify for New South, and the best room we
could qualify for was in the gym, which is on the other side of campus.28
There were about ten rooms, and the only advantage of being in the gym,
it was one where you could sneak out. My roommate had an illegal car.
That is, it was not allowed to have a car, and he had come from a major
Detroit manufacturing family, and he had a really souped-up hot car. So
we actually got a suite in the sense that it had a bathroom connecting two
rooms, so the four of us whiled away our days in the gym. My favorite
story was that I was sought after only because I had a good GPA. It wasn’t
my personality that led me to my popularity as a roommate.
MS. JOHNSON: You spoke so movingly about your dad’s experience in graduating and
confronting that prejudice. Did you feel that in any of the years of your
early life in educational institutions, or had that mostly passed for you?
MR. LACOVARA: By the time I went to these institutions, I was part of the mainstream
because these were essentially almost a Catholic ghetto. You brought your
own ghetto with you. When I went to high school, everybody was Irish or
Italian. There were a couple of Polish kids. We did have four black
students in our class. A couple of them became quite successful. One of
them in the arts became a prominent poet. But essentially it was white
Italian and Irish kids. Georgetown, as I mentioned, was basically a
Catholic men’s college, and that was it. One of the satisfying elements in
my life as seen by my father was when some years after law school I
became a partner in a Wall Street firm, the same kind of firm from which
he had been rebuffed. And it was a very tangible way in which America
had moved on with respect to this cadre of immigrants. Now you’ve got,29
of course, new cadres of immigrants who are facing this perennial cycle
that the latest group is the one that gets repudiated or stepped on or kept
out or kept down.
MS. JOHNSON: I propose breaking here and picking up next time with more of
Georgetown, your marriage and early married life.30
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. This interview took place via Zoom while Carrie was in
Washington, DC, and Philip in Baltimore, Maryland, on June 20, 2024. This is the second
interview.
MS. JOHNSON: Good afternoon. Nice to see you again.
MR. LACOVARA: Good afternoon.
MS. JOHNSON: I think we left off last time at Georgetown. You were telling me about the
rather exotic living arrangements you had with your roommates at
Georgetown, but I don’t know that we got deeply into your academic
interests and your intellectual interests at the school in that era so maybe
we can start there.
MR. LACOVARA: Sure. I had originally indicated that I was going to major in math because I
enjoyed math in high school. Then when I took my first college-level math
course, I quickly concluded that this was a bit too complex for my not-too
-subtle mind so I then ultimately pursued more soft subjects, and I had a
double major in political science. That turned out to be useful because of
my longer-term interests and philosophy, which just got to the, I would
say, academic part of me.
I did reasonably well at Georgetown. I got at the graduation
ceremonies in 1963 the gold medal for the top student in political science
and the John Carroll medal as the top student in philosophy. In my two
majors I did pretty well. I did graduate in three years rather than four,
which is another reason why I was younger than most of my colleagues in31
the profession. I graduated from Georgetown at age 19 when most of the
graduates were 21 or 22, and the reason for doing that accelerating, again,
was that I was married in what turned out to be my middle year at
Georgetown, and that involved moving off campus to set up housekeeping
with my new wife. Eventually we had a baby, and then Madeline was
pregnant when she joined me at the very hot late-May graduation
ceremony on the Healy Lawn at Georgetown in May of 1963. And that, I
suppose, is unusual even today for students to be married, particularly at
what was then a Catholic men’s college, Georgetown.
There were two other couples who were married, and so they were
our social set at Georgetown. I think both of them also had small children,
so we would all arrange for each other to have babysitters and play bridge
together, and that was about the only kind of extracurricular socializing
that young married couples especially with children were able to do at
college.
One of my friends I’ve kept in touch with is now a very prominent
physicist who is sufficiently erudite that he gets invited to lecture on
cruises all the time. He is still married to the same woman after the same
period of 60-plus years, he’s always sending me emails from some exotic
location where he’s lecturing on either something having to do with
physics, or he’s just written another book about geniuses in general. So,
fascinating relationships we formed.32
MS. JOHNSON: Absolutely. Can you talk a little bit about how you balanced your
accelerated course of study with your family responsibilities.
MR. LACOVARA: It was not easy since I had to double up on some of the courses, go to
school during the summer in order to get the extra credits that I needed to
finish in three years. My wife was then, and she still is now, a great
support for all of this, but we were both teenagers so we were learning
about each other as well as learning about how to be young parents.
As I may have mentioned earlier, this was at a time when
Washington, D.C., was still a small, sleepy southern town. Our apartment
was across the river across the Potomac in Arlington, right outside of
Roslyn which now has enormous high-rise office buildings but then was
noted only for having a pizza joint and a tiny bank branch and essentially
being desolate. I think there was a pawn shop there. Our apartment, which
had a number of mostly medical students and dental students, was just up
Lee Highway. I walked across Key Bridge to Georgetown and up the hill
and walked back, and if I had night classes, I did it both ways. So I was in
reasonably good shape physically at the time I graduated.
MS. JOHNSON: What were your plans after graduation?
MR. LACOVARA: It wasn’t clear what I was going to do. In part for financial reasons, as I
said, by the time I was about to graduate, we were expecting our second
child. We wound up with seven children. I don’t quite know how that
happened. Actually, I do know. I thought I would become a lawyer, but it
wasn’t clear whether or not that was going to be financially possible, so I33
took the civil service exam and did well enough that I was recruited by a
number of government agencies. I also was offered an opportunity to get a
PhD in political science under the National Defense Education Act I think
it was called, but the field that they were willing to subsidize me in
involved what seemed like too much statistics. So I decided not to pursue
a PhD. I almost went to work for what was then called the Office of
Emergency Preparedness. It’s now called FEMA, but at the time, it was
essentially the agency that was responsible for planning for nuclear war
and organizing the evacuation procedures, the continuity of government
mechanisms and so forth. As they emphasized to me, it was at the apex of
government because the Office of Emergency Preparedness basically
coordinated what all of the agencies of government were going to do in
the event of nuclear war. Interestingly, two or three years ago there was a
book written, I think it was called Raven Rock, which is about one of the
two relocation centers that the government is still operating. I knew about
some of them even at that time for relocation of people who are essential
for continuity of government functions. So that sounded like an exciting
thing, especially to a young man who was interested in government and
politics. But in any event, I did apply to law school, with the cooperation
of my parents and my wife’s parents who said, if you want to go to law
school, we’ll help.
So I applied to a couple of law schools, Harvard, Yale, Columbia,
and NYU. And there’s a whole footnote on NYU. They had a special34
program, which may still exist called the Root-Tilden scholars, and it was
a special honors program. My father and I went to see the then-Dean of
the NYU law school, a man named Russell Niles who my father had
known, and Niles said that he thought I’d be great for the program, but all
of the students had to live together in the same dorm, and I said I didn’t
think my wife was going to appreciate that, and he said oh, you’re
married. The students in the Root-Tilden program have to be single, and of
course all men, because they will live together in a common dorm and
that’s the way they’d organized the program. So I said well thank you very
much, Dean. Next.
I was accepted at Harvard, Yale, and Columbia and made what was
largely an economic decision. Harvard had offered me a $700 scholarship,
Yale offered an $800 scholarship, and Columbia offered a $900
scholarship, so I decided to go to Colombia. Now that was the basic
driver, although as I think I mentioned, my father was a Columbia
graduate and so there was a little bit of an extra personal inclination to go
to Colombia, although at the time, Harvard and Yale were considered a
notch above Columbia at least in the common perspective, and I did not
know much more than what the notoriety was. Harvard and Yale were
perceived by the public to be in one category, Columbia and other so-
called Ivy leagues in a slightly different tier. But I went to Columbia, and
as they say in the Robert Frost poem, that has made all the difference.
MS. JOHNSON: How do you think that decision shaped what you went on to do?35
MR. LACOVARA: The people I met at Columbia, and another reference obviously is to the
road not taken by Frost’s narrator, I don’t know where I would have
wound up, what I would have wound up doing as a lawyer if I’d gone
either to Harvard or Yale, but at Columbia, I also did reasonably well. I
was first in my class each of the three years, and after first year as you
know, there is an invitation to join the law review. I don’t know whether
it’s still true today, but in that era, and I’m talking about almost 60 years
ago, there were two different categories of law school graduates from the
major law schools. There were the people who were on the Harvard or
Yale or Columbia or maybe Michigan law review, and there were the
people who weren’t. And being on law review was coin of the realm. You
basically wrote your own ticket, and everybody competed for you. And if
you weren’t, then you were taking your chances.
I was invited to participate in the Columbia law review, and I
chose to decline that invitation because I needed to work. I got an
opportunity to work as a research assistant for a then-former law school
criminal law professor Herbert Wechsler who at the time was the director
of the American Law Institute, ALI, and the reporter for the Model Penal
Code. He was still working on developments of the Model Penal Code and
needed a research assistant to help. It paid a dollar-and-a-half an hour
during the academic year, and if I stayed, it was $2.00 an hour during the
summer. So although some of my professors and all of my fellow students
said that this was going to be the end of my career if I turned down the law36
review. I was just going to be some other schmegeggy who was going to
graduate from Columbia being part of the 270 people who were not on the
Columbia law review. I didn’t see that it was fair for me, either for my
wife and children or for my parents and my in-laws, to pass up the
opportunity to contribute something to our upkeep, so I took the research
assistantship. And that helped me get an entree to the judge for whom I
wound up clerking on the D.C. Circuit, which in turn led to an
introduction to the then-first assistant, now called the principal deputy
solicitor general, who introduced me to Thurgood Marshall who was
looking for a research assistant after I clerked for Judge Harold Leventhal.
So as is true in everyone’s life, one thing leads to another thing, and if you
break the chain anywhere, you don’t know how you’re going to wind up.
So having chosen to decline the Columbia law review invitation, I wound
up getting into a career that I could not have imagined when I ultimately
decided that I was going to law school. And it didn’t hurt when I was
applying to Judge Leventhal, who had been first in his class at Columbia,
that I was first in both first and second years and it wound up at graduation
that I was the first even in the third year as well, so he thought of me as
acceptable. He also knew of my father, and I guess he had known him
many years earlier because my father, as I believe I mentioned, was also
an editor of the Columbia law review but did not have open to him the
options that were later open to me.37
MS. JOHNSON: Let’s go back to a couple of points on Colombia and then I want to move
forward. That was a great story.
MR. LACOVARA: I should interject. Before I got the research assistantship with Professor
Wechsler, I also worked for something at Columbia, a paying position,
called the Legislative Research Drafting Fund. It was actually a think tank
at Columbia that did contract research, and the project that I worked on
was for the United States Arms Control and Disarmament Agency, which I
think was an independent agency working on arms control issues. Our task
was to develop legal and constitutional justifications for enforcement of an
arms control verification treaty, should one be developed. Specifically,
how would we be able to guarantee counterparties, particularly the Soviets
at the time, that we weren’t secretly stashing away chemical, biological,
and radiological weapons in homes or factories. So there were a lot of
Fourth, Fifth, and even Sixth Amendment issues that had to be examined. I
was part of what turned out to be a very thick report that was developed.
We finished that up, and then I went to work for Professor Wechsler.
MS. JOHNSON: It’s very evocative to hear you talk about that and the organization that
later became known as FEMA while you’re really in the Cold War period
and a kid who was obsessed with science fiction and comics, it’s all part of
the same imagination in the public imagination of that era.
MR. LACOVARA: Very much so. It was fascinating because these were cutting-edge issues at
the time. I was in school of course during the Cuban missile crisis and so
these were not simply abstract possibilities. People did live with the38
prospect of nuclear confrontation, something quite raw and seemingly
imminent.
MS. JOHNSON: For sure, especially with kids at home it hits you a little differently. What
was the composition of your class at Columbia like? Mostly men, a few
women? Much diversity ethnically?
MR. LACOVARA: More diversity in terms of women, but that’s minimal. I think we had
maybe a dozen women out of 300. Interestingly, most of the women went
on to become judges. As I go down the list of the women classmates,
virtually all of them became judges, mainly state, but a couple of federal
judges. But even at that time, Columbia, and I think the other major law
schools, were largely male-dominated.
MS. JOHNSON: Besides Wechsler and the ALI, which sounds like a really important and
informative experience, any people you associated with at Colombia,
anybody particularly inspirational in that era for you as a student and a
scholar?
MR. LACOVARA: There was a fellow named Hans Schmidt, a tall Dutchman, whose son I
think it is, is now a colleague of mine in the international arbitration
world. Hans Schmidt was notable for two things. First of all, he was
gigantically tall and rigorous analytically. I had conflicts of laws with him
as well as one of the procedure courses. He was a great teacher in the
sense that he was very engaging. The other thing that he was notable for
was that he was a world championship water polo player, and he would39
delight us occasionally with water polo stories. It was quite different from
what I would have expected.
There was another professor who taught trusts and estates who was
somebody who had been I think a year behind my father at Columbia back
in the 1930s teaching trusts and estates, which was my father’s field. He
took a particular interest in me, which was very generous of him, and so
we got along pretty well.
MS. JOHNSON: Did you have to travel down to Washington, D.C. for your interview with
Judge Leventhal, and were you excited about going back to D.C., which
you had lived in for a while during the Georgetown era?
MR. LACOVARA: Yes. I really wanted to go to Washington because I had this ingrained
interest in politics and the political world which was largely the reason I
chose Georgetown versus Holy Cross, my other option at the college level.
So I wanted to go to Washington if possible. I should interject that I did
apply for Supreme Court clerkships, and this was at a time when the
justices had one or two law clerks, so the opportunity to get a clerkship at
the Supreme Court was pretty rare. It was also at a time, unlike the
present, where the justices took clerks directly from law school rather than
having them serve apprenticeships by clerking on the District Court, the
Court of Appeals, and then coming to them after one or two or sometimes
more years clerking in lower courts. So you applied directly from law
school to one of the justices. If I remember correctly, I only applied to two
justices, and again, I think that it was a slight disadvantage that I was not40
part of the law review. So coming fresh out of law school with nothing
more to commend me than research assistantship and being first in the
class for two years but not having law review training, which was
regarded as a good editorial skill for somebody who might be a law clerk
at the Supreme Court, I applied to Justices White and Stewart, who later
on became two of the justices who I think liked playing with me most
during oral arguments. I just got a rejection letter from White, as far as I
can remember. A couple of years ago I found my rejection letter from
Justice Stewart who said thanks very much. I’ve decided to hire as my law
clerk for the 1966-1967 term a young man from Harvard Law School,
Laurence Tribe. I obviously know Larry Tribe reasonably well. We co-
author op-eds, and I actually represented him in connection with a matter
some years ago. So I sent him this note saying, Larry, our paths actually
crossed virtually very many, many years ago, and I’ve abandoned any
resentment that I might have had toward you. So Larry Tribe got that
clerkship, and the rest is history, for him too.
So, yes. I went to Washington. I interviewed with Judge Leventhal.
Early on, I would say he struck me as rather severe, but we later developed
a very warm relationship, so much so that I viewed him as a kind of
patron. He was so generous toward me in introducing me around while I
was his clerk and then thereafter, and when he died prematurely in 1979,
his widow asked me to deliver the eulogy at his memorial service. His
death and the arrangements there constitute another rather interesting41
story, which I could go into if it seems pertinent to this history, as it might
since it is a D.C. Circuit oral history.
MS. JOHNSON: I think we should, but before we go any further, I neglected to ask you a
couple of questions, and then I want to get back to your D.C. Circuit
experience. You talked in the first interview and this one as well about
how interested you were in politics and the universe of political
happenings. This was a remarkable era. To what extent were you involved
in politics during your time it Georgetown, during your time at Columbia,
and then I want to ask about your response to some rather remarkable
things that happened before you got to D.C. again, some things in 1965 in
particular.
MR. LACOVARA: Okay. Yes. Well interested in politics. I think I mentioned earlier on that
the early 1960s, remember I went to Washington and Dwight Eisenhower
was still President and John Kennedy was just taking office, so it was a
time of transition in the American political sphere. It was also a time of
international tension and a time of decolonization, in Africa, to some
degree in the Far East, so my political interests at the time were in
supporting some of the anti-communist liberation movements in Africa.
There were posters that I and others put up even in our dorms supporting
one faction or another. If I remember correctly, one of the bêtes noires of
US interests was a man named Patrice Lumumba who wound up being
assassinated, perhaps with CIA involvement, and also Kwame Nkrumah.
There were a whole variety of major figures. Some today might call them42
warlords or otherwise, who were emerging on the scene, and they were
either pro- or anti-west. At least that was the way for simple purposes they
broke down. In law school, and this reflects a political orientation that I
had in my younger days that would strike many people as surprising, in
the 1964 campaign, I was the co-chairman of Columbia Students for
Goldwater. There were few enough so that we could practically meet in
the telephone booth, but I did try to agitate for Barry Goldwater against
Lyndon Johnson. I don’t know what it was about Goldwater that attracted
me. I even had a little pin with an elephant with the big horn-rimmed
glasses that were characteristic of Barry Goldwater, and I still have in my
politics file a poster of Students for Goldwater in 1964. That campaign, of
course, fizzled out mightily as Goldwater suffered one of the most
catastrophic defeats in American history.
MS. JOHNSON: But his ideas resonate surely.
MR. LACOVARA: Well, they did at the time. That whole conservative view of things,
encouraging people to stand strong for America, strong defense, and so
forth. I’m not sure, and in retrospect as I try to reconstruct it, what it was
that was so attractive because the 1960s – 1963, 1964, 1965 – that was the
era of several revolutions that were taking place in America, sexual
revolution, civil rights revolution, obviously, and if you will, almost the
revolution about the handling of the war in Vietnam. As I look back on
some of those, Goldwater might have had the right approach. Probably he
wasn’t as attentive to some of the things that should have been higher on43
his list. My children continue to tease me about the “greening of Philip
Lacovara” because I’ve certainly become far more liberal and left-leaning
over the years, which is the inverse of the normal progression. I think it
was Churchill who said if you’re not a liberal when you’re young, you
have no heart, and if you’re not a conservative when you’re older, you
have no head. I think that’s got it completely backwards.
MS. JOHNSON: I wanted you to address Students for Goldwater which I read in your
packet, so thank you for getting there. This was also a time of great
uncertainty and trauma in the country. We had the JFK assassination. We
had the events of 1965. How did those affect you in your daily life to the
extent that they did in that era?
MR. LACOVARA: I remember exactly where I was when John Kennedy’s assassination was
announced. I was in the library at Columbia Law School, and someone
came in and said the president has been shot and myopically, since I was
intense about what was then my life, being a law student, I was thinking
why would anybody shoot President Grayson Kirk, the president of
Columbia University. And he said no, President Kennedy, and that was
astonishing. I still get chills just thinking about that moment. I went home,
as did everybody else. Everything closed down, and so I went home to be
with my wife and two children. I wound up getting sick for unrelated
reasons and was watching television when the warning that Lee Harvey
Oswald was brought to court being arraigned and saw live on American
television Jack Ruby come out of the crowd and shoot him. There was the44
sense the world’s gone mad. What is happening, because none of us had
lived through anything like a presidential assassination, and then the
assassination of the assassin, and it seemed just to be unworldly.
Historians now are taking a whole second look or third or fourth look at
Camelot. There was for young people, especially young people, a
mystique about the Kennedy administration. They were young, and they
were beautiful, and the people who were going to Washington, this is the
reason why I was somewhat ambivalent about my support for Goldwater,
which was a little bit later of course. It was the best and the brightest, and
they were the best and the brightest who were attracted into government.
And sadly, fast forward sixty years. What you see in government today is
not the best and the brightest but the worst and the dumbest, and I just
shudder when I hear some members of Congress, whose names I will not
mention for this purpose, saying the most outlandish things that they either
know are false or they’re too stupid to realize are wrong. So government
in the last sixty years has turned upside down from what I thought it
should be and for a time largely was to what it is today. What it tried to be
then, and obviously not succeeding 100% and not nearly as pure in motive
as was presented at the time, but it was an effort largely by people who
wanted to use the government power to improve the lives of others and not
just to enrich their friends or themselves.
MS. JOHNSON: Do you have some reflections to share on some of the horrible civil rights
tragedies in the South in the mid-1960s and later and any assessment you45
have of that movement which culminated in some rather spectacular
legislation? Some people call it maybe the most successful legislation of
the 20th century. I don’t know that you were directly involved in that, but I
want to give you the opportunity if you have any thoughts to share.
MR. LACOVARA: Yes. Today is actually the anniversary of the murders of Goodman,
Schwerner, and Chaney, and that was one of those riveting experiences,
because these were people who were our age who were putting their lives
on the line for civil rights. It was a galvanizing period because it was
bringing out the best in young people who were out there demonstrating. I
was not on the line demonstrating. I have to confess that. This is another
period where obviously I was not politically opposed to civil rights
legislation. I was even then in favor of it, despite the Goldwater
orientation, which was largely a foreign policy perspective. I mentioned a
little while ago working on the legislative drafting research fund project.
One of the two or three other people working on that project was a fellow
law student, a classmate of mine named Edward Norton, who was black.
He has now died. We had a very good working relationship. He was the
first black person that I would say I had a friendship with in my life. I had
grown up in essentially a white neighborhood. There were three black
students in my high school, a few in college, but none who I would
purport to say were personal friends of mine. Ed was a friend. We used to
joke about the coming civil rights revolution. Ed said that since he thought
of me as a reasonably enlightened person, he would see to it when the46
revolution came that I wound up with velvet chains, which I thought was a
good insight.
I was the invited to his wedding to a young lawyer, a civil rights
lawyer, named Eleanor Holmes, who has gone on to other things, and it
was down here in Maryland. It was a wonderful outdoor wedding in rural
Maryland where her family had come from. Madeline and I got a
babysitter to look after the children, and we rented a car and drove to
Maryland to attend the wedding of Ed and Eleanor Holmes Norton. I think
if there were four or five white people there, it would have been a lot.
So that was a kind of breakthrough moment for me getting past the
heritage of racism, and I would say that my family not maliciously but by
just tradition tended to be, I guess the only term is, racist, at least in the
sense of viewing blacks as a separate group not to be associated with. So
that was my connection personally with the movement for closer
relationships between the races or integration. And the fact that we went to
an integrated wedding was at the time seen as a revolutionary
development. It’s impossible today when you see interracial couples all
the time and nobody gives it a second thought, it’s impossible, and I know
this from talking to my grandchildren who have their own interracial
relationships. It’s impossible for them to try to get their heads around the
reality of an era that is relatively recent but that is so fundamentally
different in terms of attitude.
MS. JOHNSON: Law played a big role in that. Those relationships were illegal.47
MR. LACOVARA: Yes. And I think that’s extremely important. People talk about how we
shouldn’t legislate morality. Well, the law is supposed to establish norms,
and it should reflect the aspiration of the kind of society that we want, and
law should be leading the way and not simply catching up. Or at least I
think it’s a legitimate purpose of law to try to codify our higher angels
rather than to wait for our better natures to evolve, because as you’re
waiting for things to evolve over time, a lot of people are being left
behind.
MS. JOHNSON: One more issue and then get back to the D.C. Circuit. Thank you for
entertaining these questions. You’re a person who by all accounts was
extremely interested in and informed by public policy and foreign policy
in the United States in this era, which to put it mildly, was active. Explain
if you could your assessment of Vietnam during this period, your concern
about it. I guess you didn’t have to serve in part because of your
educational experience but also your family situation. Can you talk about
Vietnam. This is a story that could last a year, but to the extent that you
can discuss.
MR. LACOVARA: Sure. Yes. It could go on for a long time. As you recall, I went to a military
school. I signed up for ROTC when I went to Georgetown and went
through the ROTC program in my first year at Georgetown. Interestingly, I
saw recently the medal that I got from the Department of the Army for
being the superior cadet in the Georgetown ROTC unit in my freshman
year. Then I got married, and I dropped out of ROTC. The reason I48
mention it is it reflected what was at the time my foreign policy
orientation, which is strong America, strong military, I’d be happy to be a
part of it. Once I got married, I was less interested in going to Vietnam,
and because I was classified as 3A, meaning married with children, my
draft exposure was fairly limited but not completely non-existent. So I was
a supporter of the government’s view of the war, and I would say I would
confess that I was quite credulous about all of the statements that were
being made by the Defense Department, including McNamara and his
successors, Johnson, and then Nixon.
I should emphasize a little footnote here. There was one exception
to my Goldwater-type orientation. In law school, one of my classmates,
who was well-connected in New York society, held a small meeting at his
apartment with his very wealthy wife, and Bobby Kennedy was invited as
a guest. This was either 1965 or maybe 1966. Bobby Kennedy gave one of
those presentations in a small group that was electrifying. It caused me to
begin to question whether or not my priorities were right, because
Kennedy was talking about all the things that later in life have become so
important to me, which is trying to use government to help people who
can’t really help themselves, who either by circumstance or by repression,
are being held down. I can visualize that scene where people were sitting
and where Bobby Kennedy was and how I felt listening to this man who a
couple of years later wound up on the floor at the Ambassador Hotel in
Los Angeles.49
Anyway, so that was that exception. But fast forward toward
Vietnam. I was generally a supporter. Among the things that I am
constantly being reminded of by my grandchildren, to whom I’ve
confessed this, when Richard Nixon, in 1969 I guess it was, maybe 1970,
because I know I was living in New Jersey at the time, and I can
remember getting a telegram from him. When he gave his speech
explaining why he was bombing Cambodia or mining Haiphong Harbor, I
sent the president a telegram supporting this, that we really needed to
stand strong, and we couldn’t allow the communists take over Southeast
Asia because the dominoes would continue to fall. So at this time, and I
should have known better. I was still in my relatively early 20s, but I
should have known better, and I was still going hook, line, and sinker for
that approach to American policy in Southeast Asia.
MS. JOHNSON: We’re going to have a lot more words about Richard Nixon later. Thank
you so much for clarifying that and I confess I’m glad you answered that
in a fulsome way because I wasn’t quite clear on the conscription rules. I
didn’t realize there was still a chance possibly you could have to go, so
that was helpful to my mind. So, Leventhal. Where was the courthouse in
this era? Was it at 3rd and Constitution as it is now? Where did you report
to work when you were a clerk?
MR. LACOVARA: Yes. It’s the same courthouse. It’s now called the E. Barrett Prettyman
Courthouse. Barrett Prettyman was a judge down the hall from us. It was
the same courthouse, the United States Courthouse on Constitution50
Avenue and 3rd. Judge Leventhal was one of the junior judges, so his
chambers I think overlooked 3rd Street toward the back of the courthouse.
The rest of the area is completely different now. He had a law clerk, that
was me, as it turned out, and a messenger. It was a very different era. Well,
I’ll just mention, in the Solicitor General’s Office, there were two middle-
aged elderly black men who were messengers, and they were reflective of
what I describe as Washington well into the 1960s as being a sleepy
southern town. The judge had a position for a messenger which he used to
hire another law school graduate to do incidental legal work but at the
time the judges on the court of appeals on the circuits had appropriations
for basically a single full-time law clerk, and I was that clerk for Judge
Leventhal.
MS. JOHNSON: I don’t want to ask you to violate any kind of confidentiality that still
exists, but is there any way you can discuss the kind of legal work that you
did and/or whether there were particular matters of great import?
MR. LACOVARA: I can certainly talk about the generalities of the experience. It was a
fascinating time for a couple of reasons. The workload itself was quite
interesting to me because at the time there were two basic types of case
load that the D.C. Circuit had. One was the beginning or emerging field of
administrative law, although a lot of government agencies were created
during the period of FDR, the New Deal, the whole area of administrative
law was still evolving, and Judge Leventhal became noted as one of the
great administrative law judges, one of the people who contributed so51
much to the whole development of administrative law. That topic is now
perhaps undergoing reexamination, depending on what the Supreme Court
decides about one of the doctrines that really does go back to some of the
formative concepts that Judge Leventhal developed. I’m talking about the
Chevron doctrine which was Supreme Court codification of something
that Leventhal helped to formulate in terms of deference to government
agencies. He had been a Washington practitioner for many years doing a
lot of work before agencies, had worked in a major regulatory agency
during World War II, one of the ones that really control the economy, the
war economy. He had a sensitivity to the importance of government
regulation in economic terms and to the proper role of courts in overseeing
but not necessarily hamstringing government regulatory agencies. So it
was a practical and informed basis for developing the relationship between
courts and agencies, and I found that to be a fascinating emerging
doctrine.
The other part of the caseload was criminal law because at the
time, before court reorganization in the early 1970s, the creation of a
really autonomous court system from the District of Columbia, the United
States District Court for the District of Columbia had general jurisdiction
over almost all civil cases, but more interestingly from my standpoint,
criminal cases. So we had lots of murders, rapes, robberies, auto thefts.
You name it. That was the first time I came upon Marion Barry, later the
perennial mayor of Washington, D.C., and I remember United States52
versus Marion Barry. I think it was a drug case or something of that sort.
Even young Marion Barry sort of community organizer and if you will
ne’er-do well because he was always getting into trouble as he did up
through and after his times as mayor. So the criminal cases were
fascinating. They gave me an opportunity to try to put into practice, to the
extent that I had a role in recommending things, to draw further into the
actual development of criminal law in Washington, some of the things that
were emerging in the Model Penal Code where I had been working with
Professor Wechsler. Wechsler was also known to Judge Leventhal because
Wechsler had been part of that same Columbia coterie, and Wechsler had
been instrumental in getting me connected with Judge Leventhal. So it was
a natural progression, and Leventhal was interested in hearing my views
on how we might approach sensitive or new issues in criminal law. It was
at a time when there was a lot of development in the law of criminal
responsibility, specifically where do you draw the line in formulating an
insanity defense. And one of the other judges on the court of appeals who
was most interested in that was the chief judge, David Bazelon. He had
very decided views about how to reformulate the concepts of basic
criminal responsibility in light of and developing beyond the old 19th
century notions of insanity, which did not have any correlation with
modern notions of psychiatry, which was one of Judge Bazelon’s
particular interests. So we worked through issues like that. It was some
pretty basic stuff about criminal law and criminal justice.53
MS. JOHNSON: It sounds really fascinating. Were you happy with the experience? Was it
what you had expected it would be?
MR. LACOVARA: It actually was. As I say, he was very good to me and really boosted my
career afterward. It was fascinating to work with him because his style
was to ask us, my co-clerk and me, to draft opinions and then bring them
to the judge, and he would sit with us, basically with us at his elbow with
an old fountain pen and mark up the draft opinions. It was a terrific
experience for me to see how his mind worked and also to develop skills
that became very important to me later on in my own legal writing, which
is the importance of choosing exactly the right word and trying to be as
precise as possible, but also to make it as interesting as possible. Leventhal
had a had a wonderful style, kind of puckish. He loved puns. There was
one phrase I remember. He was doing a riff on Alice in Wonderland and
the Cheshire cat and talked about how a particular case had been
overruled, and he said, and I don’t remember the name of the case, but it
was the song of such-and-such has ended but the melody lingers on. He
was trying to say, although the case doesn’t formally bind any longer,
there is this sort of thing. He did another Alice in Wonderland.
My wife and I lived way out in Suitland, Maryland. We bought a
rattle trap car for $400, a Pontiac Tempest with mismatched tires. One of
the things that I would do occasionally was pick up the judge or drive him
home since he didn’t use the messenger as a messenger, and he joked that
this was just like a “tempest in a teapot” because the thing was chugging54
along. So he was fun to work with, a serious taskmaster, but somebody
from whom I learned an awful lot in the formative stage of becoming a
lawyer.
MS. JOHNSON: He definitely seemed as if he warmed to you. So you’re done with the
clerkship. It’s a term clerkship, so a one-year job, right?
MR. LACOVARA: Yes. We were right next to judge Warren Burger, and I probably should
add this too. Years later when Earl Warren was retiring and there was
going to be a new chief justice appointed, there was a lot of speculation
about who it might be. Judge Leventhal called me up and asked what did I
think. I guess I was in the SG’s office at the time. I mentioned a couple of
names. I would say none of them was Warren Burger, and when Burger
was appointed, I spoke with the judge, and we were astonished because
Burger was a fine gentleman, but nobody thought of him as a great legal
luminary, at least I don’t think that was the perception among his
colleagues on the D.C. Circuit. He was one of the leaders, but not really
the leader of the conservative wing of the D.C. Circuit at the time. At the
time, the Circuit, maybe similar to the US Supreme Court today, had two
very distinct left and right wings, and Judge Leventhal and Judge Carl
McGowan, another Columbia alum from the same class actually, were
thought of as centrists. Judge Leventhal was more left leaning, and Judge
McGowan was a little bit right leaning, but on the one end you had Judge
Bazelon, for example, and J. Skelly Wright. And on the other end, you had
Judge Tamm, Judge Burger, and Judge Prettyman. So it was a court that55
would often see dissents, particularly in criminal matters based upon what
one would characterize as the liberal or conservative orientations.
Anyway, that was the experience of the D.C. Circuit.
MS. JOHNSON: Can I follow up and ask, understanding that there were some vociferous or
vigorous dissents, did people generally get along? There have been
periods in my lifetime where the D.C. Circuit was at each other’s throats,
sometimes literally. Was it a collegial place, or do people stay apart from
each other?
MR. LACOVARA: I don’t remember anything that I would view as personal. There was a
small judges dining room where the judges and law clerks ate, and it was
not unusual to see people who were separating each other in a particular
pending decision, and all the decisions were circulated to the full court
before they were issued and that didn’t foreclose the opportunity to
request en banc, but everybody knew what was coming out and you could
see who was preparing to dissent. And it was not unusual to see the same
judges who were saying harsh things about the opinion of the other judge
sitting together and having lunch and just talking about what was going on
in the world. And the same thing was true with the law clerks. Even
though our assignments were to write things that might seem to an
outsider to be quite strident, it was a point that I’ve continued to
emphasize as recently as two or three days ago at a conference that I was
speaking at, to make clear that when you’re a lawyer in a case, the dispute
is between the parties and not between the lawyers, so be courteous to56
each other. And I think that was generally the attitude among the judges at
the time They disagree, but they recognize that it was a dispute basically
between the United States and the defendant or something else and a
decision had to be rendered, but don’t take it personally in the sense that
it’s going to intervene in disturbing professional colleagueship.
MS. JOHNSON: Thank you for that. I’m about to start a new chapter. I’m going to open the
chapter of what you decided to do when you finished your clerkship and
the options that were kind of on the smorgasbord for you and what was
your mindset? Where did you think you wanted to go?
MR. LACOVARA: The options were either joining a law firm in Washington or New York. I’d
been a summer associate at a New York firm Hughes, Hubbard, and Reed.
More about that later, I guess because I ultimately did go back there again
and again. Or a firm in Washington. I interviewed at a number of the
major firms. Or going into the government. That is, going from the
clerkship government to the executive branch.
I had a couple of job offers from law firms, but ultimately it came
down to one of two positions. One was in the Solicitor General’s Office
working as Thurgood Marshall’s specialist assistant or becoming the
special assistant to the assistant attorney general in charge of the antitrust
division. Again, roads not taken. I don’t know what would have become of
me had I become an antitrust assistant AG special assistant, but I didn’t
take that job. What decided it of course was when I got a chance to meet
Judge Marshall as we called him, because he had been a judge on the57
Second Circuit. Nobody called him Thurgood. We became somewhat more
friendly after I left the SG’s office, and that’s another story too. Anyway,
he had a practice of having a special assistant who would help brief him
for preparing for oral arguments and help him actually write out oral
arguments, something that I always discouraged courtroom advocates
from doing. But many of the cases that he had to argue were not cases
that were normally in his wheelhouse. The solicitor general then, as
perhaps now, had to stand up to represent the government in a variety of
cases, which might be tax cases or regulatory cases or Indian rights cases
or whatever that had nothing to do with the normal run of civil rights, civil
liberties cases for which Judge Thurgood Marshall was properly famed. So
he wanted the security of knowing what he wanted to say by writing it out
and sometimes actually reading it. Again, that was a very different era.
Today, a lawyer just stands up and introduces himself or herself and says
I’m here to support the judgment or oppose the judgment, okay now ask
me all your questions. It was not unusual back in those decades for a
lawyer to get to deliver almost an entire prepared address, if that’s what
the lawyer wanted to do, and perhaps get an occasional question or two
which would then allow the lawyer to go back to making whatever
argument had been prepared. So that was what he was looking for. He was
such an engaging, gregarious fellow and had such a notable reputation that
it just seemed to me to be an opportunity that could not be missed, even
though I had no notion that I was ever going to be a Supreme Court lawyer58
because the job for which I was hired was not expected to be that of a
Supreme Court lawyer, just to be that of Thurgood Marshall’s special
assistant, kind of a factotum and general aide de camp. Another fortuitous
development took place when he was succeeded, and the incoming
solicitor general didn’t realize that I was just supposed to be a gopher and
started assigning me cases to argue even before I was eligible to become a
member of the Supreme Court bar, but that’s another story too. And I got
the best office in the place.
MS. JOHNSON: Let’s go back a bit. I’m excited about that. You show up for the interview
with Judge Marshall. It was in his office at the Justice Department?
MR. LACOVARA: Yes.
MS. JOHNSON: He was a figure of great renown already. Had you followed closely his
arguments and his position or place in the law?
MR. LACOVARA: Sure. I mean everybody knew Thurgood Marshall at the time, so he was
already a legend in the legal profession. You did not have to be a civil
rights advocate or somebody who was marching for civil rights to know
that the legal developments in the whole field of equal rights over the prior
thirty years largely revolved around Thurgood Marshall and one of the
other judges on the D.C. Circuit, Spotswood Robinson, a former Dean at
Howard Law School. You knew that there were some figures who were
luminaries and were likely to wind up on postage stamps at some point
because of their central role in American history. Marshall was obviously59
in that category, that select category of people who personally made
history, changed history.
MS. JOHNSON: I’ve heard so many stories about what a storyteller he was, but in those
first days and weeks, was he an imposing guy, or was he a guy who was
delighted to tell legal war stories and joke and laugh?
MR. LACOVARA: He loved telling war stories. He was a big bear of a man, and I am rather
modest in stature, so we were almost Mutt and Jeff when we were
standing next to each other. It wasn’t the most efficient way of operating
because almost anything that came up generated some anecdote, and they
were always interesting, talking about his experiences in the South, of
course, at some point trying to get from one town to another in the South,
occasionally having to ride in the trunk just so that he wasn’t so obvious.
There were lots of anecdotes, and it was an exciting period. Shortly after I
got there, he was nominated for the Supreme Court so that kind of
changed the working arrangement because he was very careful about
which cases he was getting ready to argue while he was preparing for his
hearings and then ultimately getting confirmed and heading off to the
court. We did remain, it would be presumptuous to say that we remained
friends, but we saw each other. Cissy, his wife who recently died, was
somebody whom I kept in touch with over the years before and after he
died.
I remember when I was chairing the section of what was then
called Section of Individual Rights of the American Bar Association back60
in the 1990s, we decided that we wanted to create an award for somebody
who’d made a valuable contribution in the field of civil rights and civil
liberties, and the council decided not surprisingly that what could be a
better type of award than be an award named for Thurgood Marshall. It
would be unacceptable to do that without getting his consent so I was
deputized to call him up and say Judge, we’d like to do this. Would you be
willing to allow us to use your name for an award to recognize other
people who are following in your footsteps pushing civil rights forward.
And, of course, it was understood this was not going to be easy lift. He
had no use for the ABA, because when he got out of law school, the
American Bar Association did not accept negroes or colored lawyers, and
so the initial hurdle was saying that he ought to do anything that involved
advancing what would be seen as the good name of the American Bar
Association by allowing the American Bar Association to have an award
named for Thurgood Marshall. He finally relented. He almost put it in
personal terms. Well since you’re asking me, I guess I’ll say okay. I said
well, Judge, I’ve got one more request. Would you be willing to be the
inaugural recipient of this award, and he burst out laughing. He said I
knew there was going to be a catch, and he said yes, I’ll do it.
He went out to the ABA meeting in San Francisco. By this time, he
was in a wheelchair. He came out with his son, who was in the marshal’s
service, and Cissy. They were on the dais, and one of my favorite pictures
is of him looking quizzically at the award that we created for Thurgood61
Marshall, which is a crystal sculpture. It looks a little bit like a vase. Cissy
is looking at it, and she understands how lovely this is, and he’s looking at
it as if what the heck is that. It doesn’t look like an Academy Award or a
plaque. That’s a piece of crystal. But she told me that the last time he left
Washington was coming out to San Francisco to be the inaugural recipient
of the Thurgood Marshall Award of the American Bar Association.
So I bring that up only to suggest that although we worked together
only briefly, we kept in touch over the years. There were other incidents
which I won’t go into that illustrated how fond I was of him as not only a
historical figure but as a man whom I admired.
MS. JOHNSON: Did you play any role in helping prepare him for confirmation hearings or
the like?
MR. LACOVARA: A little bit, but even then, before Bork, confirmation hearings were
basically perfunctory. I don’t remember what the vote was. The
controversies were largely played out in the newspapers or just in votes.
That is, if you were a right-wing southern racist, you might vote against
Thurgood Marshall, but there was not the kind of effort at a hearing of the
sort that we’ve seen with most nominees since Robert Bork to try to
humiliate the person whom you didn’t want to see on the Supreme Court.
That was not the style. So there really wasn’t much in the way of
preparation needed for his confirmation hearings.
MS. JOHNSON: Thank you for explaining that. That’s great history for me. I want to begin
to discuss the next occupant of the SG job and how your role changed and62
then maybe break and then we can pick up from there with the next
chapter which will include some of your Supreme Court arguments, some
of which I will listen to between now and then, and this fantabulous idea
that you had a badge and a radio in New York City, and move into the
Nixon era if that sounds okay to you. Is that a good game plan?
MR. LACOVARA: Sounds like a good plan to me.
MS. JOHNSON: Okay. Terrific. Tell me a little bit about your relationship with the next
occupant of the SG’s job and the kinds of things you all of a sudden were
able to do that you were not hired to do.
MR. LACOVARA: That was the interesting transition from Thurgood Marshall, who was a
raconteur, loved telling stories, loved just paling around with the guys, to
Erwin Griswold, Dean of the Harvard Law School, known affectionately
as “the Dean” and nothing else. No one would have called him Erwin,
even though he was not a former judge or anything of that sort. Even
though we were his colleagues in the office, he was always identified as
and spoken to directly as Dean or referred to as the Dean. He came in with
a history that helped to shape his attitude toward the office and that
benefited me. He had been in the Solicitor General’s Office in the late
1920s and early 1930s at a time when the office was I think essentially an
outgrowth of Harvard Law School, or The Harvard Law School, as he
would prefer to it. It was a small office then, as it was when I was there
later on in both occasions, and it was viewed as the absolute apogee of law
practice and the apex of the legal regime of the federal government. So the63
Dean came in with this background that anybody who was in the SG’s
office was presumptively the best and the brightest from Harvard Law
School and only people who were accomplished brief writers and oral
advocates.
We had our first introductory lunch. The Dean was a member of
the Smithsonian Associates, I think it was, and so when we had joint
lunches, we walked over to the old castle which had a dining room
available for members. In order to get acquainted with us, the Dean had us
seated around a round table and asked us to introduce ourselves and
identify our law schools. I think at the time there was only one of us from
Harvard. We had Dick Posner, John Martin, Frank Beatty, Harris
Weinstein, Bob Rifkin, people like that. Rifkin might have gone to
Harvard. So we went around and the introductions. Columbia, Columbia,
Michigan, Columbia, Columbia. I was Columbia, and then Louis
Claiborne, the great Louis Fenner Claiborne. Louis was the third assistant.
He was in charge of civil rights cases for the most part, and he clerked for
Skelly Wright on the District Court in Louisiana. Louis said Tulane, and
the Dean, not intending to be humorous, said Ah, the Alpha and the
Omega, and Louis shot back saying, which is which, Dean? And it went
downhill from there. They never got along together. Louis ultimately went
to England where he became first a solicitor then a barrister. He was one
of the smoothest oral advocates I ever saw. He had a very deep Louisiana64
accent, very comfortable before the court. I don’t know whether you ever
encountered him or heard of him.
Just to get to my situation, as I mentioned, the Dean’s experience
was anybody who was there had been selected to be a Supreme Court
advocate purely by virtue of the geography of the office layout. The
solicitor general’s suite consists, I assume it still does, of a huge common
reception area, a beautiful reception area with several desks for secretaries,
all women of course at the time. At one end was the solicitor general’s
office, and at the opposite end was the office for his assistant, namely me
at the time, and my office was by far the grandest of any of the offices
available to any of the other assistants. At that point there were no
deputies. There was a first assistant, a second assistant, a third assistant,
and the undifferentiated assistants. And legally my title was simply
assistant even though I was functionally the special assistant to Marshall.
My office was larger than anyone else’s, had a very high ceiling, had its
own washroom, and was paneled, unlike any of the others which were
standard government issued offices. I had a big wooden desk. I had a
conference table. The Dean, when he walked in and saw this, figured wow,
Lacovara must be somebody important. At least, he’s here, he’s got this
big office, so he must be somebody notable. To compress the two years
plus that I worked there with him, he began assigning me oral arguments
to present in cases where I had worked on the briefs. Keep in mind that
this is 1967, 1968, so I’m 24 years old, not yet eligible to become a65
member of the Supreme Court bar because you have to be admitted to
practice for three years. I had just gotten admitted the year before. It’s a
state bar in New York. The first time I got the assignment slip from his
secretary with the case name on it, you’re assigned to present oral
argument for the United States, I went in to see him. I said Dean, you
know I’m not a member of the Supreme Court bar yet. He said well
prepare a motion to file to appear pro hac vice.
So my first three cases I had to get special leave of court to appear
for the United States because I simply wasn’t old enough or experienced
enough technically to present the arguments, but I did well enough so that
he kept assigning me cases.
And then just to fast forward, I left in 1969, went to New York to
work in a law firm, decided that was really not where I wanted to be then.
I was too big for my britches and thought that being a young associate was
not for me when I’d been a hotshot Supreme Court lawyer, so I then went
to work in the NYPD. I was in the NYPD when Griswold did two things
to show, I guess, what our relationship was. Actually, two things. When I
was back in private practice, before I went to the NYPD, he asked if I
could develop the brief for the United States on the constitutionality of
capital punishment. The Supreme Court had taken a couple of cases to
decide the constitutionality of the death penalty. He said it was an
important enough issue that he thought the United States should file an
amicus curia brief, and he wanted it to be as good as possible. I said what66
position do you want to take, and he said I don’t know. Do research and
then write up what you think is the right outcome, and we’ll talk about it.
So I asked my firm if they would allow me to do this because it was going
to take months of work as it did, and they gave me permission to do this,
and I was appointed technically “special assistant to the attorney general,”
which is simply a way of having a consultant. So I spent a lot of time in
dusty old libraries and drafted a 120-page brief, this is before the court
imposed page limits and submitted it to the Dean. He said that sounds
right to me, and that became the brief for the United States in the first two
death penalty cases.
And then I went to the NYPD, and that was where I was when he
called and said, would you be willing to come back to the Solicitor
General’s Office. By this time, they created the title deputy solicitor
general in charge of criminal and national security cases. I asked my wife,
are you willing to pick up stakes again, and being perennially a good
sport, she said okay, let’s go, and back to Washington we went in June of
1972, shortly before the Watergate break-in.
MS. JOHNSON: That is a good place to end for the day, but it raises many questions in my
mind for the next time, and until we meet again, are there early arguments
you made before the court that I should listen to before we next meet. Or
maybe I should read the death penalty brief?
MR. LACOVARA: That’s a case called McGautha versus California. I think it was a terrific
piece of analysis. The initial issue that they had was does it violate due67
process to allow juries to exercise standardless discretion. The position
that I developed was based on the historical development of that practice
which was viewed as the amelioration of what had been the virtually
inevitable imposition of death upon anybody convicted of felony. So going
back to the 1790s I think it was in Pennsylvania. And boy those were
musty stacks that I had to wander through to find all of this. The idea of
giving juries discretion to spare a life was viewed as tremendous reform in
criminal law. So the McGautha brief is an interesting one.
My first case, as is always the tradition a pretty clear winner, is the
racketeering case the United States versus Nardello. The one that was
more interesting was one of a back-to-back pair of cases. Leary, this is the
Timothy Leary of LSD, and the companion case that I argued. John
Martin, who has been a friend of mine since the SG’s office, later US
attorney in New York and a federal district judge, co-argued the cases.
Leary involved the constitutionality of the Federal Heroin Control Statute,
and I did the Federal Marijuana Control Statute, and the issue is whether
or not they violated the Fifth Amendment privilege against self-
incrimination. Because of doubts about Congress’s power to regulate these
things under the Commerce Clause, the issue was approached by imposing
taxes on all narcotics transactions. You had to pay a tax on transactions in
hard drugs or marijuana and you had to apply to the Treasury Department
to get a certificate that you had paid the tax. Somewhere around, I’ve got
these beautifully engraved certificates with marijuana leaves on them,68
different colors for the different participants in the transaction. John did
the heroin case, and I did the marijuana case, and we tried to develop an
argument that it didn’t violate the privilege against self-incrimination to
require people to come forward to say they are going to be engaging in
transactions that were illegal under state law. I think we lost eight or nine
to nothing in those cases. But if you want to listen to some arguments, that
could be a fun one just to hear what we were trying to do and hear the
relatively few skeptical questions that we got in what we predicted was
going to be an aimless exercise.
MS. JOHNSON: Fascinating. I will read that brief, and I will listen to that oral argument
before we next meet.69
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on July 24, 2024. This is the
third interview.
MS. JOHNSON: When we last spoke, you were talking about your relatively early days in
the Solicitor General’s Office, your time with Justice Marshall and then
Dean Griswold and some of the early cases you argued before the
Supreme Court. I think I neglected to ask you what it felt like to be
standing up on behalf of the United States of America?
MR. LACOVARA: It was an extremely heady experience. When Dean Griswold started
assigning me cases, as I think I mentioned in our last interview, I wasn’t
yet a member yet of the Supreme Court bar, because I had graduated from
law school in 1966 and was admitted to the New York bar in 1967. The
Supreme Court rules required that, to be eligible for the Supreme Court
bar, it was necessary to be a member of a state bar for at least three years.
I was well short of that, and therefore I had to be admitted pro hac vice for
each of my first three Supreme Court arguments because I was not yet a
member of the Supreme Court bar or eligible for it.
Before I argued the first case in the Supreme Court, since I’d never
been in court before, we decided that it was probably a good idea for me to
at least have one courtroom experience under my belt, so I worked with
the Criminal Division in the Justice Department and asked if there was a
good criminal appeal that was ready for argument in the D.C. Circuit. I
think the case was Austin versus United States, or United States versus70
Austin. I don’t remember much about what was involved, but I got the
briefs and worked out with the US Attorney’s Office that I could step in
and argue the case, and I argued the case. I think a conviction was
affirmed. So I at least was a veteran with one case notched in my belt
before going to argue the United States versus Nardello, which was my
first Supreme Court case. I think as is typical in the SG’s office then and
probably now, the first assigned case was pretty much guaranteed to be a
winner, and as it turned out, I argued that case and the decision in the
government’s favor was nine-nothing. It was a remarkable experience
because not only is there a grandeur of the Supreme Court as an
institution, but the chamber itself is so august with heavy red drapes, a
coffered ceiling, and marble pillars. Then there was a straight mahogany
bench, now the bench has been reconfigured and has a slight arc. At that
point, the two junior justices were way off at the far wings. They had to
crane their necks to see counsel, and the same thing was true when
arguing.
The other part of the experience that I remember was having to
wear a morning suit, formal dress, which has been the tradition in the
Solicitor General’s Office from the era in which I understand everybody
who argued before the Court treated this as a formal occasion and wore
traditional morning clothes. That is, a dove-grey swallowtail coat with a
dark grey vest and striped trousers. So I had to rent my formal suit. I’d
never worn anything like that before. It was a bit like Cinderella getting71
dressed for the ball when I put on my cutaway and took a car up to the
Court and got ready for the argument.
MS. JOHNSON: I was going to ask about whether you wore a morning suit. I didn’t realize
that it’s possible to rent such things. My goodness.
MR. LACOVARA: Not only is it possible to rent such things. When I finished my first term, I
had argued three cases before I left the SG’s office on the first installment
and went up to New York, and that’s another story. There was a formal
wear rental place down right on old Pennsylvania Avenue. This is before
the renovation of Pennsylvania Avenue, when it was lined not with hi-rise
office buildings with glass fronts and modern lobbies. It was a place where
there were basically liquor stores and cigarette shops and sort of run-of-
the-mill shoeshine parlors, so it was a pretty decrepit street well into the
late 1960s when the beautification process of Pennsylvania Avenue began.
Not far from the Justice Department, further up Pennsylvania Avenue, was
a formal wear rental place called Rizik Brothers, and I think it was $12 per
rental for the whole kit. I rented my cutaway the first three times at
Rizik’s. I was assured by Dean Griswold, who was a tax lawyer by
training, that the expense was tax-deductible because it was a legitimate
business expense. At that point, I was not in a high enough tax bracket
where a $12 deduction was all that important, but it nevertheless was a
legitimate business expense I was told.
When I came back to the SG’s office at Dean Griswold’s invitation
in 1971, I guess it was, or 1972, I’d have to reconstruct that, I decided,72
since I’d be arguing regularly, that I would buy a used cutaway from Rizik
Brothers. I still have that cutaway, and last year one of my granddaughters
was married at Hampton Court Palace in London in a very formal chichi
occasion, and I wore my cutaway from Rizik Brothers. How old it was
when I bought it in the early 1970s, more than fifty years ago, I don’t
know. I was certainly not the first owner of it, but I’m happy to say it
acquitted me well in Hampton Court Palace in 2023 as it had back in the
Supreme Court in 1973.
MS. JOHNSON: How marvelous is that. When we are almost done with our interviews, one
of my tasks is to ask you to share some photos, so put this on the reminder
list that I’m going to ask you for a photo of yourself in that morning suit,
either of that era in the 1970s or last year. Either one, or perhaps both.
I’m going to ask you your preference. We can go to New York
now or we can stay with the SG’s Office. Would you prefer to proceed
chronologically or not?
MR. LACOVARA: I suppose that makes the most sense just to make sure that I’m able to
keep things relatively straight. As you heard a moment ago, I’m trying to
remember whether I went back in 1971 or 1972. I think it was 1972. It had
to be 1972 for reasons that I will explain, because I was gone from
Washington for three years. I left in the summer of 1969 after two years in
the SG’s Office and went up to New York to join a law firm, Hughes,
Hubbard, and Reed, or at that point, Hughes, Hubbard, Blair and Reed.
Hughes was Charles Evans Hughes, Jr., who had been a solicitor general73
many years earlier. If I remember the story correctly, his father, Charles
Evans Hughes, Sr., was chief justice at the time, and when Hughes, Jr.,
was appointed solicitor general, since the SG is the government’s chief
representative before the Supreme Court, I think that was the occasion for
Hughes to decide to retire, leading to the appointment of Harlan Fiske
Stone as chief justice. I think that’s the story, as I’d heard it.
In any event, Hughes Hubbard is the place where I’d spent my
summer during law school, my summer associate role in law school, and I
decided to go back there and try my hand at being a Wall Street lawyer.
The firm had its offices at the time at what I thought was the most sublime
address for a Wall Street lawyer, Number 1 Wall Street, on the corner of
Wall and Broadway on the 26th floor. It was your classic old-style Wall
Street law firm with lots of polished wood and Persian carpets and
relatively small cubicles for the younger lawyers.
I went there to become a litigator, although in my first stint there,
the assumption was that I was going to follow in my father’s footsteps as a
trusts and estates lawyer. I had done some T&E work during my summer
working with a woman who later went on the Second Circuit where she is
now a senior judge, Amalya Kearse, I think the first Black woman on a
federal appellate court. Amalya was the first Black partner in any
Wall Street firm. She at that point when I was there was a senior associate,
extremely talented, brilliant woman. Also a bridge grandmaster.74
I went there and I was as it was later said about me that I was a
terrible associate. I was a little too big for my britches. Even though I
knew nothing about being an actual litigator, and here I was coming in as
a mid-level third-year associate, but I’d argued several times before the
Supreme Court. I thought that the normal work that third-year associates
do in a corporate law firm in New York was not up to my standards of
pride and accomplishment. I quickly learned that I had a lot to learn, as I
did. I remember sitting at the elbow of one of the senior partners who,
much like Judge Leventhal, delighted in training up younger lawyers by
having them sit at their respective elbows as they worked over documents
to revise them and tighten them and restructure them. So I learned a lot
about the art of brief writing, of effective written advocacy, from both
Judge Leventhal and then from Jerome Shapiro, who was the senior
litigator at the firm.
Interestingly, in the SG’s Office, it was simply assumed that you
knew how to write briefs and to revise briefs, and much of the role in the
SG’s office is revising draft briefs done by the operating division, like the
civil division or the criminal division or, now, the national security
division. So the lawyers then when I was there, and I assume today, rarely
developed briefs themselves from scratch rather than taking a draft
prepared by the individual litigating divisions and then trying to turn it
into what looks like and sounds like an effective Supreme Court brief.75
I learned a lot in my relatively brief time at Hughes Hubbard. But
shortly after I joined the firm and was feeling a little restless already, I got
an inquiry from Dean Griswold asking whether I would be available to
take on a special assignment while still working in New York at the firm.
The Supreme Court had recently granted cert in a pair of cases testing the
constitutionality of the death penalty. These were two state cases, one
from California, one from Ohio. The Dean thought that it was important
for the United States government to take a position on the constitutionality
of the death penalty as amicus curiae. He said with the regular work in the
office, he didn’t have anybody there who could devote what he thought
was the time necessary to draft the brief for the United States. I said I
would have to ask the firm how I could do this or whether they would
allow me the time that was necessary. I said what position do you want to
advance, and he said I don’t know, I haven’t really thought about what the
position should be, but that’s one of the things I’d like you to do if you’re
in a position to do it. So I approached the management of the firm and said
I’ve been asked by the Solicitor General whether I can accept an
appointment as a temporary government employee. The technical title was
Special Assistant to the Attorney General, although the AG himself was
not personally involved. That was just a functional title. I would be paid a
stipend by the government. It was some thousands of dollars, $3,000 or
something of that sort, not a huge amount even by 1970 standards. The
firm said yes, fine, do that and we’ll just work around that.76
Basically, I took three or four months off from my law firm work
to research the history of capital punishment in the United States. The
issue precisely was whether it violated due process of law to allow juries
without any standards to exercise discretion to decide whether a person
convicted of murder, particularly murder, but in some states rape, to live
or die. I spent literally months researching this issue, tracking down the
history of what was then viewed as the amelioration of the automatic death
penalty for felony, which had been the common law tradition in England,
and it carried over to the United States. I developed a brief that I think ran
120 printed pages. I also did research into whether or not there were any
elements of racial discrimination or other forms of bias that infected the
process of providing unfettered discretion to juries to decide who should
live and who should die upon conviction for a capital offense. I concluded
that the best research showed that this was not a racially disparate process.
In fact, what tended to be the most significant factor whether a person was
sentenced to death or not, all other things being equal, that is, spouse
killing, armed robbery, unintentional killing. The most significant
determinant was relative wealth or poverty rather than race.
So I drafted the brief, concluding that the due process clause was
satisfied by allowing juries standardless discretion, sent it to Dean
Griswold. He accepted it virtually without change, and that was the brief
that was filed for the United States, and the Supreme Court, when they
decided the cases, agreed with that position and concluded that the77
standardless jury discretion was consistent with the due process clause.
They then granted cert, I think that same term, maybe when the cases
came out, to decide a separate issue, which is whether or not the Eighth
Amendment prohibition against cruel and unusual punishment invalidated
standardless jury discretion. The following term, the Court decided, I think
by a 7-2 margin, that due process may be satisfied, but since the
imposition of the death penalty in the absence of standards is freakishly
unpredictable, it constitutes cruel and unusual punishment, and that’s the
state of the law today. And that’s what led to the adoption throughout the
country at the federal level and in every state of the enumeration of
aggravating and mitigating factors that are to guide the jury in deciding
death versus life.
Incidentally, not only did the firm continue to pay me, but when I
offered to turn in the stipend that the United States government paid me
for doing that work, the firm quite generously said keep the money and we
just kept you on at your regular salary at the firm, and just regard this as
an extra bonus for good work.
So it was all in all a pleasant enough experience at the firm, but I
concluded at that point this was not what I wanted to do with the balance
of my youth, and that brings me to another topic if you’d like me to go
into it, which is how I came to work for the New York Police Department.78
MS. JOHNSON: I’ve been waiting for this moment for a while now, and I look forward to
hearing more how that came to pass and what you did with your NYPD
equipment and what equipment that was.
MR. LACOVARA: Okay. So not long after I wrapped up the amicus curiae brief on the
constitutionality of the death penalty, I was back in the mold of being
intrigued by public service. Having been in Washington for a couple years
and then having gotten this engagement to be in effect back in the public
sector or public issue environment, I was feeling restless after barely a
year-and-a-half or so as a young Wall Street lawyer.
At the time, the mayor of New York was John Lindsay, who was
an attractive Republican at the time, if I remember correctly, former
congressman, very handsome man, had matinee idol looks, they said. He
was talked about as a potential presidential candidate, and I know in
conversations he very much thought of himself as a potential president.
Lindsay, who was a Yale Law School graduate, had assembled around
him, again this is in the aftermath of the Kennedy administration, Lindsay
surrounded himself with a lot of bright young men. At the time, it was
mainly bright, young men, and his view, much like Kennedy’s ascent to
the presidency in 1961, featured a notion that if you take smart young
people with a lot of energy, they can accomplish a lot. Lindsay actively
constructed a system for doing this. He called it the Talent Bank, and he
invited people who thought of themselves as having something to
contribute to submit their resumes to this talent bank.79
The talent bank was administered by the mayor’s chief of staff, a
man named Jay Kriegel, and I went over to see him at City Hall. He said,
you might be somebody we’d be interested in putting into the Lindsay
administration, and the first job that was offered, and this is serious, I was
then let’s say 27 years old, a lawyer of maybe four years vintage, I was
offered an appointment as New York City Deputy Commissioner of
Mental Health. The idea was, dubious as it sounds, take a smart young
lawyer and put him in charge of something, and he’ll be able to do
something effective in whatever the assignment is. I concluded that I
really didn’t think that the mental health of 8 million people in the City of
New York should be placed in my hands in whole or in part, so I declined
that appointment.
The next thing that was offered was to work for the new police
commissioner who had just been brought in as the reform commissioner in
the midst of a massive corruption scandal which had been occupying the
public attention in New York. There were reports that there was
widespread corruption in the ranks of the police force, people taking
payoffs to protect drug dealers, numbers runners, brothel operators, and so
forth. The mayor had replaced the police commissioner at the time with a
man who had a reputation of being a reformer. He was college-educated
person, although he’d come up through the ranks in New York, Brooklyn-
born and bred, but he had been part of the effort to rethink this whole
strategy of policing and the nature of policing, applying more80
psychological techniques, statistical analysis, and so forth, insisting on
better training and a lot of other things that now have become
commonplace in modern policing. He was the first non-lawyer to be
become the police commissioner in New York in decades or maybe scores
of years. For some reason, it had been the tradition in New York to pick as
the police commissioner a smart lawyer. Maybe the last non-lawyer to
serve in that job had been Teddy Roosevelt back at the turn of the 19th/20th
century.
So again reflecting this view of Lindsay and his chief of staff Jay
Kriegel, a lawyer, that smart lawyers were essential to do anything right
especially in government, they decided that Pat Murphy should have a
lawyer as his something-or-other. The original proposal was that I would
be his assistant or special assistant. I said this would be such a dramatic
change from my career path, almost as severe a change as would have
been accepting the position as deputy commissioner for mental health. I
said I don’t want to lose my identity as a lawyer, so I said, suppose instead
of special assistant, we craft this as a special counsel position. They said
that sounded fine to them, but I should meet with Pat Murphy and make
sure that he was comfortable with this because I didn’t think it was going
to be healthy for me to be imposed upon him by City Hall. Anybody who
watches the long-running TV show Blue Bloods is well aware that there is
almost an endemic tension between City Hall in any city, but particularly
in New York, and the police commissioner or police chief since there are81
conflicting obligations in loyalty. So it seemed necessary to make sure that
Pat would be comfortable with me being appointed as his special counsel.
We hit it off quite well. One of the things that helped was that at
the time, we had six children, one more on the way, and Pat and Betty had
eight children. So we shared this notion of family tradition, both Catholics,
so both of us felt comfortable with each other in the sense that we had
similar backgrounds, similar value structures, so I think he was satisfied
that I had the bona fides to be a trusted counselor.
It turned out, it was, as I’ve said in a number of occasions, the
most fun job I’ve ever had in my life. Watergate, perhaps more important
in a global sense, but not fun by any means. But being a special counsel to
the police commissioner in that period was absolutely fascinating because
it was the time of enormous transition in city life, and in policing, and in
culture. It was a time of civilianization, the rise of the women’s
movement, including in policing. It was a time of dealing with police
corruption. It was a time of addressing terrorism. In my first year there, we
had six police officers who were assassinated by terrorists, actually
assassinated, by being staked out and murdered. It was a time of sorting
out the constitutional limits on surveillance and infiltration, including
trying to formulate standards for infiltrating mosques and so forth, so I had
to work with the intelligence division which in turn was working with then
the origins of the Joint Terrorism Task Force in the early 1970s. All of
these things were beginning to evolve, and as the person who sat in the82
office next to the police commissioner, I was at the apex of all of these
things and was assigned a lot of responsibilities for either developing the
policies or making sure that the right people throughout the Department
were implementing them.
Since the Police Department was then, and probably still is now, a
hierarchical institution, my secretary, one of the best secretaries I’ve ever
had, a first grade detective Howie Hagen, Howie said he needed to
commission a badge for me because I couldn’t really do anything unless I
had a badge, called a shield in police parlance. He was able to arrange
with the police commissioner’s approval for a special brand-new shield to
be crafted for me. It’s the shield of a chief with a legend that says Special
Counsel Police Commissioner with the seal of the city of New York, a big
gold badge that I carried in my special leather wallet. If I went to a crime
scene or some other official function, I tucked it in my breast pocket so the
badge was out just the way you see it on television. Since I was going into
some pretty hairy neighborhoods, this was at a time of race riots in
Brownsville and Bensonhurst and Harlem, I also had a gun, but since I
was not a sworn officer, I had to have a permit signed by the police
commissioner which was fine. So I had my own 38 police special. It had a
little holster.
What was complicated about that was that I was living in New
Jersey at the time, and we had to get an opinion from the Corporation
Counsel’s office that I was exempt from the normal law that required that83
all officers of the city of New York be residents of the state of New York.
The city’s lawyers determined that I was eligible to serve in this position,
and I received a formal commission signed by the police commissioner
that duly appointed me and bearing the seal of the police department. It
was all very elaborate.
I also had a radio car, driving it regularly out of New York to
commute back and forth between my home in New Jersey and New York.
In order to take the gun into New Jersey, I needed a permit from the New
Jersey authorities who really were scratching their heads about why an
official of the New York Police Department was living in New Jersey. But
in any event, after due investigation, I was also issued a permit by the state
of New Jersey to carry a concealed firearm.
Things unfolded quite well. There were a couple of aspects of this
that are particularly humorous. There are a lot of serious things, and I can
talk about those if anybody is interested. The one that my wife most
remembers is that, as I mentioned, we were about to have our seventh
child. We were living in New Jersey. Her obstetrician was in New York,
and there was some concern that if she went into labor with our seventh
child at the last minute, actually we had two children while I was working
in the NYPD. We had five by the time I took the job, and then one was
born and a second was on its way. So there was some concern about
getting into midtown Manhattan if she went into labor during rush hour. I
was mentioning this problem at a senior staff meeting one day, and the84
chief of the traffic division, an assistant chief of police, Chief Kowski,
said that’s no problem. We can send one of the traffic helicopters over to
New Jersey to pick up your wife if she goes into labor. He said we can do
this as a training exercise, but we can’t land in New Jersey because we’d
have to get all sorts of clearances for one police agency from another state
to set foot in New Jersey. So, we could scout out a local ballfield near
your home, and we would hover, and I could have one of my officers help
your wife into the helicopter and then we could fly her into Manhattan. I
came home and told my wife this, and she said I will have my child in the
Lincoln Tunnel before I will at nine months pregnant, in labor, clamor
onto a New York City police traffic helicopter. Thanks, but no thanks.
That episode only exists in imagination. It never actually unfolded as
projected.
MS. JOHNSON: It sounds like on occasion you would get called out in the middle of the
night to a crime scene, say one of these horrible killings of a police officer
or another very serious episode like that.
MR. LACOVARA: Yes. There were a number of those. I remember once we went out to a riot
in, I think it was in the Brownsville section of Brooklyn. This was a time
of racial ferment, which I’m sure you’ve read, in the early 1970s. I was in
the car with the police commissioner and the chief inspector, Mike Codd,
and I made a point of sitting in the middle between the two of them in the
backseat so that if anything went wrong, I would at least have my own
protection on either side of me. I remember the crowd began to swarm85
around us, and it was a pretty hairy scene, and I will say I was a little
anxious. The driver, a young detective, the police commissioner’s driver.
(I had my own radio car, an unmarked car but no driver.) He had his own
driver, and I think the commissioner sensed that something could go really
wrong if we ran down anybody, so he said to the detective, just ease
forward. Be calm. It was a mark of professionalism and the kind of quiet
courage that I admired so much in Pat Murphy. He knew the most
important thing to do in a situation like that is not to panic, not to lose
control, because then things can spiral way out of control. So we managed
to ease our way through the crowd with people banging on the car and
pounding on the windows and so forth and working our way out into a
more secure area.
There were other things like that, gangland shootings. It was the
time of the assassinations of some of the remaining members of the five
mafia families. Crazy Joe Gallo. I remember well, and I’m just going to
pass over details of one incident because it’s embarrassing for somebody
else, so I’ll pass over that. It was at the scene of one of the gangland
assassinations, at Umberto’s Clam House. That’s kind of celebrated in
New York lore, the killing of that gangster at Umberto’s Clam House in
Little Italy.
One incident tells a bit of the times that we were going through.
When I was appointed as special counsel to the police commissioner, we
had a Black police officer who had gone to law school at night, as did a86
couple of the terrific people that I worked with, and he was serving as the
deputy commissioner for trials, meaning he was in charge of the internal
disciplinary system, the equivalent of an administrative law judge in the
federal system. When police officers were subject to disciplinary charges,
they were tried before a police officer designated to a civilian role as
deputy commissioner for trials. It seemed both to me and to the police
commissioner that, and this may sound pandering and maybe it was
pandering, that this fellow, Ben Ward, who later became the police
commissioner and then later a corrections commissioner for the entire
state of New York, that Ben had a lot more to offer than just being cooped
up in the hearing room. He was asked whether he would take on the role
of deputy commissioner for community relations, DCCR, which would
make him the outfacing representative of the Police Department, meeting
with community groups and dealing with sensitive subjects of race
relations, which was then, as I guess now, a very tender issue in the police
community. Ben did a terrific job. He was always on the go, going around
meeting with groups, ones that were supportive and ones that were
antagonistic.
At one point during his tenure, there was simultaneously going on
the effort to increase the hiring of minority police officers, particularly
Black men. It was also at a time, as you no doubt read, of the emergence
of the women’s movement and the demand for equal opportunity on the
part of women. While not everybody thinks of policing as a desirable87
career for women, although it has now become that, and there are a
number of women police chiefs around the country, in the early 1970s, this
was almost unheard of. In fact, in New York, there was in the local law,
the administrative code, a provision providing for the establishment of the
New York City Police Department composed of patrolman, sergeants,
lieutenants, and captains of police who could be designated as chiefs or
inspectors. There was to be, according to law, a policewoman’s bureau
composed of no more than 300 women. So at the time, there were 30,000
policemen and 300, as many as 300, policewomen. The leaders of the
women’s community thought that was facially discriminatory, and it cuts
out a lot of opportunities for women to choose this kind of career if they
are so inclined. So we were able to get the law changed to provide for
equal opportunity, at least theoretically. We had a meeting with half a
dozen women who were very active in the women’s rights community.
They were insisting on making this a realistic undertaking, and at the time,
the examination for becoming a policeman or policewoman was a civil
service exam, and I think it still is. I remember Ben Ward facing down
these women who were demanding equal access to the ranks of
policewoman, and he kind of shook his head. He said, just at a time when
my people are finding opportunities open to them in the ranks of the police
department, you’re going to demand more women having this opportunity,
and he said I know what’s going to happen. It was kind of startling to me
and to the women there. He said we’re going to wind up with a lot of88
smart Jewish college graduates from Hunter College who will be
displacing all of my people. It was utterly stunning that he said what was
probably on the minds of many people in the Black civil rights
community, that to some degree, if you have a fixed number of jobs, it’s a
zero sum game. Any spot taken by somebody else like a woman is a spot
not going to a Black man. There was deadly silence in the room. I can
remember where people were sitting in that conference room. Ben
apologized, and he said, forgive me. I should not have said that. We’ll
work together to provide for equal opportunity. It was simply an
illustration of what continues to be a problem with different groups, and
now it’s immigrants versus non-immigrants, where the people who are
fearful about the people who are now coming in, or the people who are
trying to get in are worried that other people are kind of leaping over them
to get in. It’s human nature, but I don’t think I’d ever heard it expressed so
bluntly, so candidly, and so awkwardly, as in that session.
MS. JOHNSON: So many powerful dynamics in the stories today that are still with us in
virtually every respect. You said it’s the best job you ever had. How did
you come to decide to leave it?
MR. LACOVARA: It was not easy, because I loved it. I ran down a list of some of the things
that I was working on, and I said it was every young boy’s fantasy. I had
my own badge, gun, and police car. What’s not to like. I was working with
terrific people on important issues. I had two special assignments that
were of particular interest, and I’ll mention these before we get to why I89
left. One was the mayor wanted to clean up Times Square. This was I
think a perennial problem, which I think has largely been solved now that
Times Square in New York is more of a legitimate tourist destination, and
there are first-line hotels along there and lots of police presence. But at the
time, in the early 1970s, Times Square was a pit, a hell hole, and it was
rife with crime and drug use and prostitution, particularly prostitution. So
the mayor decided to launch another effort to clean up Times Square.
There was a mayor’s task force on prostitution and pornography, and I
was designated as the liaison for the police department for this task force. I
was kind of a staff director of it. We did a lot of interesting things to try to
deal with things that I must say as a young man having grown up in a
traditional Catholic household were way beyond my imagination. The
things that I learned existed and were part of the normal warp and woof of
the seedier side of New York life, they were kind of mind boggling. In any
event, at one point, one of the interview shows, a Sunday morning talk
show, invited me to come on to be interviewed about what the mayor’s
task force on prostitution and pornography was doing. I think it had
something in there specifically about Times Square but that was the focus.
So I told my mother I was going to be on the local NBC station some
Sunday morning, and she told all of her friends and relatives, but she had
no idea what the subject was and therefore couldn’t tell them. People, as I
later found out, tuned in to see what my mother’s son, of whom my
mother and father were so proud, was going to be talking about on90
television. And there I was on a Sunday morning, normally a church
morning for all the people in our family and friends, and I was talking
about the grimiest elements of human debauchery. It was kind of a
stunning and embarrassing blow for my mother.
The other assignment that I had that was incidental to the role in
the NYPD. I was also the police commissioner’s representative to the New
York City Commission for the United Nations and the Diplomatic Corps.
As you know, the UN is headquartered in New York. There were at the
time probably 150 diplomatic missions plus all the UN delegations and
consular officials. They had a formal liaison through a New York
Commission, but I was the police department’s representative to that
group during. During this period, early 1970s, President Nixon, after the
visit to China, either before or after, changed U.S. policy to agree to seat
the delegation from the People’s Republic of China, then derisively called
Red China, in place of the nationalists on Formosa, now Taiwan, throwing
out the anti-communist and putting in the communists. This was an
extremely controversial thing, and what it involved, of course, was
moving the Red Chinese delegation into New York City where they would
be seated at the United Nations. There were a lot of law enforcement
protective functions that had to be provided because there were, this is the
height if you will of the Cold War and a lot of rabid anti-Communists
thought that this was treasonous by Nixon, and they were not happy at all
to have this new base of “Reds” in New York.91
Everything worked out smoothly, and one afternoon I got a call
from the staff person at the Commission saying the Chinese delegation
wants to hold a dinner of appreciation for the NYPD for all of the security
arrangements that had been provided and the professionalism that had
been exhibited. I said well, that sounds like a great thing. The staff person
said one more thing. Since they are proletariat, they want to make sure that
this is not basically for the brass. They want the working cops to be the
beneficiaries of this dinner. I think it was at the Commodore Hotel or the
Roosevelt Hotel, neither of which exists now. It was to be a full sit-down
dinner but mainly for patrolmen and sergeants, the people who’d been
standing footpost and doing traffic work. I think we could have a couple of
officers. The mayor’s office and the police commissioner and I were
concerned about how these young patrolmen, generally young people
from, if you will, working class backgrounds and their spouses, their
wives virtually in all cases, were going to interact with an array of Chinese
communists who had just come through the Cultural Revolution and are
really avid, and how they would all relate to one another in this sit-down
dinner. Anyway, we did a little briefing on the correct behavior, and I will
say it was a fabulous evening. Everybody had a fabulous time. We were
sitting at the table with the Chinese ambassador to the United Nations. I
think the commissioner and Betty and Madeline and I and the ambassador
and his wife and maybe another chargèe, and at one point, “mao tais” were
flowing freely. There was a lot of raucous but not disruptive behavior at92
the other tables as the young police officers and their brides were having a
grand old time. At one point, the Chinese ambassador took a drink of
“mao tai,” poured it in a saucer, took a match and lit it, and he said this is
how we fueled our trucks during the Long March, which is how they
styled their effort to throw out Chiang Kai-shek and the nationalists in the
late 1940s. It was a great demonstration in the middle of this episode.
Despite a lot of the angst about how this affair would be carried off, a
good time was had by all, and there were no diplomatic incidents.
That’s another reason why I say I can’t imagine a job that could
have been more fun, more broad-gauged, and more stimulating than the
one I had in the NYPD.
MS. JOHNSON: I have one more question about this. I’m entranced by the whole thing, the
episode you described in the car with the driver and your boss at the time.
Commissioner Murphy advised the driver to be very careful and inch
along, and it’s an example of what we would now today call de-escalation,
right? I wonder if at other points in the course of your long and productive
and illustrious career has that resounded with you in any way. Maybe it
hasn’t, and maybe it’s a question to answer for another day, but it just
prompted me to ask.
MR. LACOVARA: That’s exactly right, and in fact it was one of the things that Murphy not
only embodied, but it was part of the of the learning experience that I took
away from it, but it was one of the things that we were trying to do as part
of what was characterized as the reform of the police department. For93
example, and you really put your finger on it, cosmetic things. The “police
force,” that term creates an image. We are an armed constabulary here to
impose order. Pat had hired one of his former colleagues as the first
deputy commissioner, also a former police officer, to implement a change
in culture. So we began substituting the term “police service,” and you
now see on police cars around the country, “to protect and to serve” or
other slogans, mottos like that. That originated, I believe, with what we
did in the NYPD in the early 1970s, which was to change around the
culture. That is, we’re here not just to hit you over the head with billy
clubs if you get out of line, we’re here to try to get everybody to live
together in harmony to the extent possible. Not so much force as service.
Another cosmetic thing, the police cars in New York that you’d see
in the 1960s or earlier, dark green with black fenders or black roof. Police
cars we had repainted either to be white or powder blue, which they still
are to this very day. Powder blue being somewhat calmer. Shirts. They
used to be like the black shirts. If you see an image of an NYPD officer
from the 1960s or before, black or navy blue trousers, navy blue shirt,
navy blue tie. Now, at least in the summer, powder blue rather than black
or navy blue. Again, all of these things designed to convey something
that’s not “in your face.” What you mentioned about the experience in the
car is take it down a tone, a notch. You can accomplish more if you’re a
little bit laid back or if you’re conveying the notion we’re all in this
together rather than it’s us versus you. We’re the good guys, you’re the94
bad guys. So that was all part of what was a very exciting time in the
rethinking of urban policing.
In fact, when I was at the NYPD, I taught a course at Columbia
Law School called Issues in Modern Urban Policing. It was designed to
describe some of the issues, legal issues, policy issues, that were being
addressed as one tried to move from the old way of doing things to the
newer way of trying to do things.
MS. JOHNSON: I remember in the Obama administration there was a task force on
21st Century policing which recommended many of the same things you
were discussing. Police are guardians was the word in that era.
MR. LACOVARA: The whole idea of community policing, which has now become a kind of
watchword in policing, was something that we initiated back in that era,
and that is trying to get cops out of the radio cars to the extent possible and
on the street learning to deal with people. And in part, it was self-
interested. You can learn a lot of information by talking to people,
especially if they think you’re part of the solution, not part of the problem.
So the whole concept of community policing involved a cooperative
relationship with the area being policed rather than the notion of being an
occupying constabulary.
MS. JOHNSON: I have one more question on this. It’s a follow up from something you said
earlier. I would be remiss if I failed to ask you a question about your
interaction with some of the people accusing their fellow officers of
corruption. I imagine, but want you to confirm this, is people like the95
famous Serpico and other whistleblowers, and I wonder to what extent you
had direct interactions with them during this period.
MR. LACOVARA: I had a lot of interactions with them, including Serpico. One of the
photographs that I carried away with me was a picture of me and Serpico
and two or three other people the day we finally gave him his detective
shield. I don’t know whether you have seen the movie Serpico, which
starred Al Pacino. It’s largely based on the history of the problem, that
Serpico was a person who decided not to go down the corrupt route that
many of his colleagues did and wound up getting shot in the face for it.
There was another officer, a detective sergeant who was a Dartmouth
graduate, and people don’t understand that people who have good
education sometimes decide to serve as police officers. I mentioned a
number of lawyers who were working in the NYPD as police officers,
many of them got to be the chiefs. One of them was a man named
Sergeant David Dirk who was plowing a couple of fields. He had good
relationships with a reporter from The New York Times, and he was
feeding him information. He was working with Serpico to get information
about the scope of corruption, who fed it to Dirk, who would in turn give
it to David Burnham at The New York Times. Dirk and I would meet
regularly because he was also working with the US Attorneys’ Office,
which was conducting their federal probe. Meanwhile, there was a
mayoral appointed commission called the Knapp Commission headed by
man named Whitman Knapp who later became a federal judge in the96
Southern District of New York. All of these corruption investigations,
internal by the NYPD, external by the Knapp Commission and external by
The New York Times, were under way simultaneously. We were trying to
do something about corruption, and I suppose in a sense we may have
gone a little too far with our internal inspection function or policies. For
example, there was a notion that corruption starts small and then it goes
one step to another, and you might as well stop it at the outset. For
example, you’re a cop in uniform and you go into a luncheonette for lunch
and the owner says it’s on us. We said that’s just not right. You pay for
lunch just like everybody else because it’s just normal human nature for
somebody not to expect something for nothing. If they’ve given you a free
lunch, they may expect you to be doing something extra for them, whether
it’s part of your job or not. So we tried to be more rigid at the outset.
We took a guy who had been one of the smartest men I had ever
worked with, who had been a Brooklyn Law School night school graduate
and who had been first in charge of personnel throughout the department.
He was such a tough guy, he looked like a bulldog. We made him chief of
inspectional services. That was our principal internal investigator, and he
was really good at trying to crack down on corruption, but in this
connection, with respect to cracking down on corruption, just two little
anecdotes. I know I’m taking more time than you have, but I think they’re
both interesting. One involved this chief that I was mentioning whom we
put in charge of inspectional services or internal affairs as it’s often called.97
At the time, the Los Angeles Police Department had this glowing
reputation largely generated by their own PR department and the fact that
there were several well-regarded television shows like Adam 12 and
Dragnet, and they presented the LAPD as a pristine, perfect exemplar of
modern policing, straight arrows, clean cut guys, everybody’s on the up
and up. So Syd Cooper and I went to California to meet with them, and he
had the right antennae because we went around and met with people at
various local districts and with the senior leadership, and Syd came back
and said they’re just better at covering it up than we are. They’ve got
exactly the same problems that we do. I don’t think we can learn anything
from them because concealment is not what we’re about. I thought that
was a good insight.
The other aspect of my involvement with internal affairs kind of
corruption. At one point an assistant director of the FBI was coming to
town. I think it was his initiative. He wanted just to pay a courtesy call on
the police commissioner, and I was with the commissioner for the
meeting. The FBI had at the time a stellar reputation, also again generated
in large part by Hoover and his tight relationships with the media,
including TV producers and movie producers. They had their own stock of
favorable movies and TV shows. So at one point Murphy asked, how do
you deal with the issue of corruption or suspected corruption. The assistant
director kind of winked and nodded as if we don’t really admit that we
have any corruption in the FBI or any misbehavior, but he said if there’s98
the slightest suggestion of any irregularity, the next day that person, that
agent, is on his way to the resident agency in Butte, Montana, and he’s
never heard from again. So this was their way of dealing with it. I later
learned the significance of that assistant director. Mark Felt was his name.
That was my first encounter with Mark Felt, who later went on to fame or
infamy, depending on your perspective, as Deep Throat in the Watergate
affair that that would bring us together two years later.
MS. JOHNSON: First a defendant and then Deep Throat, or maybe Deep Throat and then
later a defendant and then unmasked as Deep Throat. I want to turn to how
you came to leave this amazing job, and then next time, I want to get back
into your return to Washington, and then the next time will be Watergate,
but Watergate might take two sessions. We’ll see how it goes. Does that
sound okay?
MR. LACOVARA: Sure.
MS. JOHNSON: You’ve reminded me to go back and reread the Edward Conlon book
about the NYPD, another man of great academic distinction who served
with honor and maybe go watch Serpico again just for fun. I’ll also look
up the name last name of David at The New York Times. Let’s discuss
your reason for leaving this job and how your family felt about once again
moving, if they did in fact move, and call it a day for the day, and then on
the 8th when we meet again in August, we can go longer and do a
Watergate chat. I also have a reminder to ask you about Rudy Giuliani, but
I think Rudy Giuliani is later in the chronology than now.99
MR. LACOVARA: Yes. Rudy is a 1981 experience.
MS. JOHNSON: Okay, so we are not even remotely there yet.
MR. LACOVARA: How I am responsible for Rudy Giuliani.
MS. JOHNSON: Your words, not mine.
MR. LACOVARA: It takes a gloss to understand it. But okay, so how did I come to leave.
Dean Griswold. Griswold and I could not have been more different
people. Somehow, for some reason, he trusted me, as illustrated by the fact
that he asked me to do this capital punishment brief and that he was
willing to assign me Supreme Court arguments even though he came to
understand that I was so young that I was not even eligible to be a member
of the Supreme Court. But some time in the Spring of 1972 I guess it was,
he called and asked if I would consider coming back to Washington to
become the deputy in charge of criminal and internal security matters. The
structure at the time was that there were three supervisors under the
solicitor general, and then the staff, the other line assistants. One was in
charge of general civil cases, one criminal and internal security, now it’s
called the national security division, and the third was tax and something
else. I think that’s the way it’s split.
In any event, he asked whether I would consider coming back to
Washington to take on the role of the deputy for criminal matters. It was
not an easy choice for a couple of reasons. One is, I said I loved the job
that I was doing, and there was still more to be done. I liked the people
that I worked with. I did not even go into some of the other aspects of the100
NYPD job, but that’s beyond the scope of this conversation. And I had to
talk to my wife about it. By this time, we were about to have our seventh,
who was born in June of 1972. We had our little house in Cedar Grove,
New Jersey. The older three older boys were all in local parochial school,
and it would have involved uprooting us and changing the direction from
what I thought was going to be the career path, which was after this period
of public service in the NYPD, going back to become a Wall Street lawyer
and make buckets of money. Going back to the Justice Department, not a
civil servant position in the sense of being a part of the permanent civil
service, but going back to a government job with seven children and the
need to find a house big enough for nine people in or near Washington,
was a daunting prospect for Madeline especially, less so for me because
I’ve always been kind of flighty about this thing. We had already moved.
We started out in Arlington, Virginia, in 1962 and then moved to New
York and then back to Washington and then to New Jersey and then in the
space of ten years, we’re going to be having our fifth move. But she was
and she still is a trooper, supportive, and she said if you think this is
something you feel called to do now – she is a big believer in destiny or at
least the movement of the universe – she said if this is something that you
feel called to do, we can make it work. If you want to do it, we need to go
to Washington to see if we can find a place that we might possibly be able
to afford and do the logistics to see whether or not this is a manageable
prospect. We did that. We found a place on V Street Northwest. It looked101
a lot bigger at the time I will say than when I’ve been back by it just a few
months ago. It wasn’t quite commodious for the nine people who wound
up living there, but it worked out. So we decided okay, we’ll do it. I told
that to the police commissioner.
One of the traditions in the NYPD is, when you retire or leave,
they throw you a “racket,” which is a party, kind of a drunken brawl in
some circumstances at least, and traditionally the retirement present is a
gun. I was concerned that since I already had a revolver, I was concerned
that they were going to give me this party and I was going to get a gun as a
farewell present, which I certainly was not going to need in Washington.
They gave me the party. It was a great evening, and what they wound up
giving me was a plaque suitably inscribed with a replica of my shield on
it, with grateful, thanks for the service as special counsel to the New York
City Police Commissioner. I’ve had that in my office for the last almost
fifty years until about two years ago when one of my sons went to work in
the Metropolitan Police Department of the District of Columbia working
for the then-chief of police as his director of internal communications, and
I gave my NYPD plaque with a replica of my shield to Daniel, and he had
it in his office at Metropolitan Police headquarters in downtown
Washington.
That brings us to the end of the NYPD and the beginning of return
to Washington and the beginning of my return to Washington and the
Solicitor General’s Office.102
MS. JOHNSON: Spectacular. As you always do, you have told the story with the beginning,
a middle, and an end which I appreciate greatly. I will do some additional
Watergate research. the question I want to pose to you now it’s a rhetorical
question that we can discuss next time or before next time by e-mail.
There is obviously a lot of current resonance to what we’re about to
discuss next time. I think it makes sense to just speak in the moment and
then at the end of that conversation to talk about how things look now if
that is sensible to you. I think we should get through the chronology of
that moment and then maybe reflect on the events of the last weeks. Think
about that and if you think that is a wise approach.
MR. LACOVARA: Sure. That’s fine.
MS. JOHNSON: One of the reasons I’ve been a little difficult to get ahold of is, every five
seconds it seems like there’s a punch, there’s like an uppercut to my jaw
or cheekbone. You’re just getting over Trump v. US and then the Mar-A-
Lago case goes away. Our post-Watergate understanding of the guardrails
at the Justice Department and the interference of the White House or not.
All of that is kind of on my mind as you know and I think on your mind as
well. So I’m very much looking forward to our next conversation.
MR. LACOVARA: It’s in my soul.
MS. JOHNSON: I am so grateful for having this experience with you. I always leave these
conversations smarter and more optimistic about the future so thank you
for this.103
MR. LACOVARA: I appreciate your taking the time out from being with your mom so enjoy
the rest of your holidays together and we’ll talk soon.
MS. JOHNSON: That sounds great.104
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via phone on Thursday, August 8, 2024.
This is the fourth interview.
MS. JOHNSON: Good afternoon. Thanks for making time for me again.
MR. LACOVARA: Always a pleasure to chat with you.
MS. JOHNSON: Thank you. When we last left off, you and your increasingly large family
were in the process of moving yet again from New Jersey back to the
Washington area for you to return to a job in the Solicitor General’s
Office, and you had just been offered, I think by Dean Griswold, the
portfolio that included criminal matters in the SG’s Office. Did I get that
right?
MR. LACOVARA: Yes. In the interim, between my departure in 1969 and 1972, they had
actually crafted a new title for what had been the position of first assistant
or second assistant or third assistant to the solicitor general, and those
three positions were renamed as deputy solicitor general, and they had
different functional responsibilities for overseeing categories of cases,
including the other assistants in the office who worked on specific cases
on a more or less rotating rather than specialized basis. My function was to
be the deputy solicitor general for criminal and internal security cases.
That was at a time when there were two separate divisions of the Justice
Department, one for criminal cases, and one kind of a throwback to either
the anti-communist era or maybe even the anti-socialist era. I don’t know
whether the division of internal security went back to the A. Mitchell105
Palmer era around World War One. Anyway, that was a separate division
for investigating and prosecuting internal security cases, and that is now
called the National Security Division of the Justice Department, and that
was my portfolio.
MS. JOHNSON: Interesting stuff, and pretty broad sweep there. Are there cases in
particular that you remember arguing?
MR. LACOVARA: I argued a couple of cases before I went over to the special prosecutor’s
office. One of them involved the constitutionality of border searches. It’s
an issue that is very much in the public consciousness today with the huge
political and demographic issue of massive flow across the southern
border, particular the Texas, Arizona, and New Mexico borders. But even
then, border control was an issue, and the question was how far beyond
the border itself, that is the physical line marking the border between
Mexico and the United States, is it possible for federal agents to conduct
warrantless searches of people and cars. I think in that case, called
Almeida-Sanchez, if I remember correctly, there had been a stop of some
people who looked Hispanic about fifty miles from the border. I think in
that case it may have been in southern California or maybe Arizona. I
don’t recall now. The question was whether or not a border search, which
can be done without a warrant, could be done validly that far from the
border.106
MS. JOHNSON: I’m struck by how many of the issues that you faced in the early and
middle parts of your career are with us today in slightly different forms.
Really interesting.
MR. LACOVARA: You know that inscription coming from a Greek proverb that the past is
prologue is certainly an apt description of constitutional and political
history.
MS. JOHNSON: Yes. And I think that’s just outside the Archives, only a few steps away
from the Justice Department building where you served. I think you told
me in one of our earlier sessions that you had a particular approach to
preparing for oral arguments. You were not a guy who scripted things out.
Can you describe your approach?
MR. LACOVARA: Yes. From the very first case that I argued, the only one that I had argued
before I began doing Supreme Court presentations, I decided that it is not
my style to write out a text as many lawyers did at that time, especially
when the practice that has now become so prevalent of staccato
interruptions by questions, so one had to be prepared to deliver an entire
half hour or hour-long argument, part of the technique that many lawyers
used at the time was to write out a prepared speech or text so that if there
were no questions, something coherent could be delivered. I decided in my
first case that I wanted to organize my thoughts with an outline at most
and then be able to speak more or less extemporaneously to make the
points that I wanted to make. That worked out well enough in the first
argument that I had in D.C. Circuit so that by the time I got to my first107
Supreme Court argument and then in all of the seventeen cases that I
argued after that, I strode up to the podium without any notes at all, even
an outline, which I had tried to commit to memory so I knew what points I
wanted to make. I wanted to rely on my facility to get back to those points
if interrupted by questions.
MS. JOHNSON: So not even note cards as some famous practitioners like John Roberts
have used in the past? Not even note cards for you?
MR. LACOVARA: Not even note cards. I know a number of my colleagues who view
themselves as Supreme Court petitioners, as my then-competitor
John Roberts did, viewed this as, you’re arrogant or recklessly
irresponsible, and it certainly was not anything like a routine approach. I
did have the nickname No Notes Lacovara for that, and I came to have a
little bit of perhaps undue pride that I felt comfortable enough to argue
without any notes and to have done reasonably well with that style.
MS. JOHNSON: That’s a great story. You talked about the border search case, and maybe
there were one or two more before you had yet another transition in your
life?
MR. LACOVARA: There were cases about handwriting exemplars before the grand jury. This
was another case of the sweep of the Fifth Amendment privilege against
self-incrimination. The last cases that I had argued in my prior incarnation
in the Solicitor General’s Office were when John Martin, later US
Attorney and federal judge in New York, and I argued cases about the
validity of the narcotics control statutes which depended on requiring108
people to get a federal license to sell heroin or marijuana. The issue on
which those statutes fatally floundered was whether or not the requirement
to get a tax license, to pay a tax on the transaction, violated the privilege
against self-incrimination.
Now I would say just parenthetically, there seems to be in the
course of Supreme Court jurisprudence clumps of periods when specific
constitutional issues seemed to pop up more frequently than when they do
later in the broader sweep of the Court’s history. There was a period in the
1960s and 1970s when the court was very interested in whether certain
kinds of regulations violated the privilege of self-incrimination. Included
in that were the requirements dating back to the anti-communist legislation
requiring people who were communists to register with the Subversive
Activities Control Board. Things of that sort.
The Court was very sensitive about privilege against self-
incrimination issues. One of the issues was whether grand juries, and
particularly in the local level but even at the federal level, could require
suspects to give handwriting exemplars or have their blood taken to test
for drugs or alcohol abuse without regard to their right to be protected
against self-incrimination.
One of the cases that I argued was whether or not in a case
involving a written, I think it was a kidnapping note, whether the suspect
could be required to give the grand jury a handwriting sample. The
Supreme Court eventually held that that was not communicative in the109
sense that the privilege protects. It was not an acknowledgement of guilt in
the sense of requiring the personality of the suspect to be acknowledging
his personal guilt. It was instead simply a physical characteristic, much
like requiring a person to appear in a lineup, that privilege was not
intended to protect. That was another interesting case at the time.
MS. JOHNSON: For sure. What was the atmosphere like in the SG’s Office in this era?
Was it a pleasant experience to return after your time away?
MR. LACOVARA: Yes. I think all the people who were in the Office at the time got along
well. It was a small and congenial office. I think at the time there were
nine or ten of us, three deputies for different substantive areas, and maybe
eight or nine assistants, plus the Solicitor General, Dean Griswold at the
time. It was I think a high-level professional atmosphere. We also did
some socializing, which was good fun. But it was understood shortly after
I returned that it was going to be an office in transition because after
Nixon was reelected in November of 1972 after the Watergate break-in,
etcetera, the President announced that he had decided to replace Dean
Griswold as solicitor general, and he said he was proposing to nominate
Robert Bork from Yale Law School to be the new solicitor general. I
thought this was an illustration of how Nixon actually as a lawyer had
more respect for the SG’s Office than he did for many other institutions in
the legal system. He said he would let the Dean serve out the balance of
the term. Bob Bork was announced to be the new solicitor general many
months before the term ended and Griswold went back to Harvard. That110
had some consequences in the office because even then Bork was known
to be a very conservative person, but not as controversial as he later
became fifteen years later or so when his unsuccessful nomination to the
Supreme Court became such a pyrotechnic issue.
Since the most controversial types of cases that he was going to
deal with involved criminal cases, I met with him regularly over the
course of the spring of 1973. He came down from Yale probably once a
week to get a sense of what the case flow was going to be, what the major
issues were going to be. I don’t remember whether he ever was given the
opportunity to have any role in crafting the positions or reviewing briefs.
It would not have been a surprise to have given him that option, given the
fact that he was going to be responsible for briefs that would be coming up
for argument during the next term when he would be the solicitor general
and accountable for what was being said.
We developed a very good relationship during that period, which
turned out to have important consequences in October of that year, the
night of the Saturday Night Massacre, by which time I had changed my
role, and he was changing his.
MS. JOHNSON: Let me go back and ask you a question, and then we can move to this
point in history. You’re a person of great ability and interested in the
world, interested in politics. How closely did you follow coverage of the
Watergate break-in? Do you have a memory of when you heard about that
or learned about that happening?111
MR. LACOVARA: I learned about it in the way that casual readers of the Washington Post
did. It was a little tiny item about a break-in by some strange people at the
local Democratic National Committee headquarters. The police had
arrested them, and no one was quite sure what they were doing there or
why they were there.
That story actually puttered along as a fairly low-profile story for
many months with occasional pieces by Carl Bernstein and Bob
Woodward. It was not capturing the national attention until significantly
later. Now it’s of course a celebrated issue in American political history,
but in the early days, it did not strike me as having great significance, so I
was more or less casual in following it.
MS. JOHNSON: When did that change? When did your casual interest change into
something more intense?
MR. LACOVARA: I think it became more significant when James McCord, who was one of
the people arrested in connection with the burglary and one of the people
convicted, wrote Judge Sirica and said what everybody suspected but
nobody had been able to prove or corroborate was true, namely that this
had been a higher-level enterprise orchestrated by some people well above
McCord to get him and his co-defendants to lie about their role in this and
their accountability to any higher ups in the Committee to Re-elect the
President. McCord’s confession after he was convicted and threatened
with a lengthy prison term by Judge Sirica was what made the story
explode, at least for me.112
MS. JOHNSON: How did this begin to intersect with your professional life in ways we’re
still talking about fifty years later?
MR. LACOVARA: That kind of testimony made this a matter of central importance within the
Washington establishment, and whether it was purely for reasons of
protecting the integrity of the process or whether there was some political
motivation to stir the pot even more, I’ll leave that to historians to discern.
The Senate created a Select Committee on Presidential Campaign
Activities, which was to inquire not only into the responsibility for
orchestrating the break-in, but also for other kinds of activities that had
begun to surface that reflected shenanigans during the 1972 campaign.
These were the so-called dirty tricks orchestrated by a man named Donald
Segretti and others working for the Committee to Re-Elect President
Nixon.
The Ervin Committee began calling witnesses, and that set of
hearings garnered national television coverage, which made it into an
issue of great political sensitivity.
After John Mitchell resigned as attorney general, it became
necessary to appoint a new attorney general, and the president nominated
Elliot Richardson, a distinguished Republican from Massachusetts, as
attorney general. During his hearings, he was asked how he would go
about making sure that any culpability for high-level involvement in
orchestrating the Watergate break-in and other alleged scandals would be
pursued. He was essentially pushed to confirm that, as the price of his own113
confirmation, he would agree to appoint a special prosecutor to probe a lot
of the things that had come out either in newspaper stories or in the Senate
Select Committee, or Ervin Committee, hearings. That led ultimately to
the appointment of his fellow Massachusettsan, Archibald Cox, as the
special prosecutor.
Cox was appointed I think in May of 1973. The first thing he
wanted to do was to set up an office that would be so independent of the
Justice Department that the office would actually be housed separately.
The offices that were assigned were then in a non-descript office building
at 14th and K, between 14th and Vermont Avenue on K Street. That, by the
way, was a little bit before K Street became famous, or infamous, for
being the center of the lobbying community in Washington.
In any event, Cox made it clear that he wanted this to be not only
an independent prosecutor’s office but one that was to be a model
prosecutor’s office so that it was going to be adhering to the best practices
in conducting fair, objective, responsible, nonpartisan criminal
investigations. It sounded very good, and it was, in my view, a goal that
Cox implemented quite faithfully. Cox, however, although he’d been the
solicitor general in the Kennedy administration, was not a criminal lawyer,
not even a constitutional lawyer. His main field of academic specialty was
as a labor lawyer, so he thought it would be suitable for him to have the
benefit of a Harvard professor who was then one of the leaders in the
criminal law reform movement, a man named James Vorenberg. He asked114
Jim to come down to Washington, without leaving his Harvard faculty
position, and to help organize the office and develop best practices and
help recruit staff. Not surprisingly, a lot of young Harvard lawyers were
recruited.
One of the key things that Cox wanted was somebody to serve as
his chief counsel to oversee what he anticipated would be complex and
important constitutional and criminal law issues and to be responsible for
overseeing the analysis of the issues and their briefing should litigation
ultimately eventuate. Cox therefore had a sense as an alumnus of the SG’s
Office that maybe he should look to the Solicitor General’s Office as a
place to find somebody who could serve in that role. Vorenberg, who was
involved with staffing, said there’s a fellow who’s serving as the deputy
now to whom we’d actually made an offer of appointment to the Harvard
faculty.
I’m not sure I mentioned this earlier, but when I was leaving the
government in 1969, one of the things that I considered doing instead of
going to Wall Street was to start a career as a law teacher. I talked to a
couple of law schools, including Harvard, and was offered an appointment
as an assistant professor of law on the Harvard faculty. I decided instead to
go to Wall Street. So the conjunction of those two things, the Solicitor
General’s Office experience, which gave me immediate credit with Cox,
and the fact that I had been considered a suitable candidate for the Harvard115
Law School faculty, satisfied both Cox and Vorenberg that I probably
could do the job that they had in mind.
I don’t remember whether Jim called or Archie called, but I went
over and talked to Archie, and we hit it off. I talked to my wife and said is
it okay if I change jobs again, and she being eternally supportive said, if
you think this is important work, sure. And that’s the way I came to be the
counsel to the Watergate special prosecutor.
MS. JOHNSON: Incredible. One or two questions, and then I want to delve into this. Did
you have contact with John Mitchell when he was the attorney general, or
was he not somebody in your orbit at all?
MR. LACOVARA: I don’t remember having any contact with him. There was minimal contact
in my earlier incarnation with Ramsey Clark and then with Richard
Kleindienst, who later was briefly the attorney general, but I don’t
remember having any direct contact with John Mitchell at that point.
MS. JOHNSON: When the Ervin hearings were going on, which kind of captured the
attention of a lot of people across the country, was that something that was
on the television in your house? Do you remember your wife, your kids,
and you talking about that?
MR. LACOVARA: The answer is yes because it was essentially taking much of the airwaves
at the time, so we watched it. These were daytime hearings, of course, and
I would get my smattering of information from one of the network news
shows. They often had recaps of the highlights of the hearings at night on
the evening news shows.116
MS. JOHNSON: Thank you for that. So you start this new job as counsel to Archie Cox.
What are the kinds of things you were being asked to do in your early
weeks and months in that office?
MR. LACOVARA: The first thing I had to do is I had to put together a staff. I ultimately
wound up having six or seven lawyers working for me. I hired from
various quarters. Some very young lawyers who I thought would be
energetic and bright. I also brought over to the Watergate special
prosecutor’s office one of the senior lawyers from the Criminal Division
Appellate Section with whom I’d worked on dozens and dozens of cases, a
man named Sidney Glazer. Sidney was probably 20 years older than I and
the other lawyers on my team, but he knew the criminal law inside and
outside and knew both the law and the lore of criminal prosecutions.
Sidney turned out to be a wonderful mentor for some of the younger
lawyers. Like many of the other people from the office, he’s now gone to
the next life. He and the younger lawyers that were part of the team had a
variety of initial tasks. One of them was to help fashion the legal standards
that had to be pursued by the various task forces.
Something that is often overlooked that the Watergate Special
Prosecution Force, WSPF, the official name of the office. Even though
Watergate was in the title, there were five different task forces within that
office, only one of which was devoted to Watergate and the Watergate
break-in and Watergate coverup. The others included some national
security abuses, including the Ellsberg break-in, which was an outgrowth117
of the leak of the Pentagon Papers case. They dealt with the most highly
secure information that we were investigating in the office. We all had to
get not only top-secret security clearances but what is now called SCI
clearances for access to signals intelligence and nuclear secrets. The other
task forces were somewhat more mundane. There was the Dirty Tricks
taskforce. There was an investigation about the settlement of a major
antitrust case that allegedly involved misconduct by deputy attorney
general Richard Kleindienst. Kleindienst ultimately ended up pleading
guilty to a relatively minor offense. But as I say, there were other task
forces.
One of the things my staff had to do was to make sure that all of
the people who were conducting the fact investigations, getting documents
and calling witnesses for interviews and convening grand juries, had an
idea what the elements would be of their crimes, the crimes that they were
to be investigating.
The other major issue, of course, which was evident long before
we got access to any tapes, was the possible criminal culpability of the
president. Shortly before the special prosecutor was appointed, John Dean
had testified publicly in the Ervin hearings that he had told President
Nixon as a result of the belatedly authorized internal investigation that
there were senior people in the White House who were involved in not
only approving, or perhaps approving, the original break-in, but definitely
involved in orchestrating the cover up. That was in some testimony that he118
characterized as reporting to President Nixon that there was a cancer
growing on the presidency. Now Dean did not know himself that President
Nixon had personally approved the cover up within a matter of days. That
was something that we didn’t learn until after the disclosure of the
smoking gun tape that came out after the Nixon Tapes decision. But the
possibility that Nixon himself might have criminal culpability raised the
issue whether a president is constitutionally subject to criminal
investigation and prosecution, especially while still in office. So that was
one of the main issues that I had several of the people on my staff tasked
with analyzing.
MS. JOHNSON: Philip, did you view that as a very difficult or complex legal question, or
was it more of a politically sensitive question, or was it both?
MR. LACOVARA: It was both. As you would imagine, at the time of the investigation into the
White House, probing Nixon’ involvement was viewed by Republicans as
a belated attempt to undo the results of the 1972 election. Nixon, after all,
had been reelected with one of the most massive electoral majorities in
American history, and so many Republicans, not surprisingly, thought that
this was an effort to tarnish the president and try to undermine his political
strength as demonstrated by the November 1972 election.
The whole idea of investigating a president, something that as far
as I could tell had never been pursued before in American history, even in
Grant or Harding years where corruption seemed to have been rife. This
was understood to be a highly sensitive issue, just as a matter of partisan119
politics and the American political tradition. And, of course, legally, since
there was no precedent for it, it was a complex issue. We now know,
thanks to the Justice Department’s in my view highly misguided policy
memos and the even more misguided decision recently by the Roberts
Supreme Court that the president is not only immune from prosecution
while he’s in office, he’s immune from prosecution forever, concepts that
I never considered even remotely honorable or honest or plausible, and I
still don’t. But at the time, it was at least complex, but the core question
was whether the president could be investigated and prosecuted while still
in office. That was the only dividing line, and until a month or so ago, it
was never suspected by anyone and never argued by Nixon’s people that
the president really was constitutionally entitled to violate the criminal law
and never face any consequences. The only issue was whether or not he
could be called to account while still the chief executive.
MS. JOHNSON: Not to mess up this timeline here, but this morning I encountered a video
of Nixon’s television appearance fifty years ago today saying he would
resign as of tomorrow, and then also a blog post from a conservative law
professor who insisted that Nixon maybe should have fought it out and
gone through the impeachment process and never resigned at all. So, some
of the debates you’re discussing, some of the complex problems you’re
discussing, are still very much front of mind, although very much
shadowed by the Supreme Court ruling last month on immunity for sure.
MR. LACOVARA: Yes indeed.120
MS. JOHNSON: As somebody in the office working very hard, things appear to be moving
smoothly. These are complex issues, huge assignments, five task forces,
and yet things are kind of operating and have a sense of momentum in
your mind?
MR. LACOVARA: Yes. Things were humming along. Things changed radically in terms of
pace and intensity, or visibility I would say, when Alexander Butterfield,
Nixon’s former cabinet secretary or administrative officer, he was chief
factotum, announced that there was tape in the Oval Office. I think that
was some time in either early June or July of 1973. Things had been going
along for a month or so in a rather pedestrian way, getting things
organized, and then all of a sudden, this bombshell was dropped, and that
put everything into high gear and posed the issue of what do we do now
about whether to go after the tape that was in the Oval Office.
MS. JOHNSON: His testimony to that Committee was July 16, 1973.
MR. LACOVARA: I think that’s right because I think my subpoena was July 23rd.
MS. JOHNSON: Wow. That was a fast turnaround.
MR. LACOVARA: The intensity picked up enormously at that point. Cox, Henry Ruth, the
deputy special prosecutor, and I, and probably a couple of other people.
Oh yes, Peter Kreindler. Peter Kreindler was Cox’s special assistant. He
had just completed a clerkship with Justice Douglas. He’d been a Harvard
student and may have been president of the Harvard Law Review or some
major role in the Harvard Law Review. An extremely smart guy. He
ultimately became my law partner in the next generation of our lives. Peter121
was probably involved in those discussions. The discussions were what do
we do, what can we do. Can we subpoena the president as the custodian of
the tapes. There wasn’t anybody else we thought we could effectively
subpoena.
That involved an immediate flurry of activity. To what degree do
we have the authority to do this. These were issues that percolated for the
next year until we got to the Supreme Court and the same issues were
litigated and decided in our favor by the Supreme Court. These were
issues such as the role of an inferior officer of the executive branch in
trying to compel the president to take action the president didn’t want to
take, namely releasing this information about White House conversations,
and to what extent is there an executive privilege. Does it exist at all,
what’s it’s nature. Is it common law privilege or a constitutional privilege,
and if it’s any kind of privilege, common law or constitutional, is it
absolutely or merely conditional or contingent so that it can be overturned.
These were issues we discussed quickly within that brief period.
Cox made the decision that we had a legitimate basis for pursuing the
evidence and litigating our right to it if that became necessary. His basic
theme was, and this was repeated at his fateful press conference the
morning of the Saturday Night Massacre, I undertook an obligation when I
became special prosecutor to pursue the evidence wherever it might lead,
and I can’t discharge that obligation if I’m not pursuing the evidence to
see where it leads. The ultimate conclusion was we have to try to get this122
evidence. So I drafted a subpoena and went over to the White House and
served it. I think Fred Buzhardt was the president’s special counsel at the
time. He accepted it on behalf of the president, and that was that.
MS. JOHNSON: What was your state of mind as you’re walking over to the White House to
serve a subpoena on the President of the United States of America? It’s
not that far from 14th and K or 14th and Vermont.
MR. LACOVARA: I was aware that it was a rather unusual and indeed unprecedented activity.
I didn’t have any personal concern about my safety. I’ll note here
parenthetically that that wasn’t quite the situation in which I found myself
a couple months later after the Saturday Night Massacre when I went over
to serve another order issued by Judge Sirica where I actually asked that
the United States Marshals send an armed marshal with me to the White
House. I was aware that the fat was going to be in the fire because the
president had made clear that he was not going to turn over this
information voluntarily, and therefore, we were going to have a fight on
our hands.
The first step in ringing the bell for round one was to get this
subpoena duly served, and I took it upon myself, as the fellow who had
been responsible for counseling Cox that he could do it, to serve it.
MS. JOHNSON: And then what happened?
MR. LACOVARA: Then we got I think a letter back saying thanks but no thanks, I refuse to
honor this. I think he moved to quash. Then there was a hearing before
Judge Sirica. Archie, I still remember this. Archie was the kind of lawyer123
and law professor who felt more comfortable with things written out. He
had a standard foolscap yellow legal pad, a 13-inch yellow pad, which you
rarely see anymore. He had written out page after page after page after
page. There was a lectern set up in Judge Sirica’s courtroom, and as
Archie was going from maybe page three to page four in his argument, he
reached up for a glass of water that he had on the lectern, and he knocked
it over. I was sitting next to him, and I could see the ink running on his
foolscap pad. There was a moment of at least awkwardness or terror, I
couldn’t quite tell, because Archie was very taciturn then, but he was able
to regain his composure and continue on with the argument.
The arguments were well enough presented, and, of course, we had
briefed all of these things as well. Ultimately Judge Sirica rejected the
motion to quash and ordered the president to comply.
MS. JOHNSON: Such marvelous recollections. Obviously, there was still a refusal to
comply to the extent that this found its way to the Supreme Court. Maybe
we should talk a little bit more about the troubles the office and people in
the office started to have with the administration that led to those events in
October?
MR. LACOVARA: Yes. Judge Sirica rather promptly issued an order overruling the motion to
quash and directing compliance. Nixon was seeking an order to direct
Judge Sirica to vacate his order compelling compliance, and that case was
argued before the full D.C. Circuit en banc. I have to confess I don’t124
remember now whether I argued that or whether Archie did because I
know I argued a number of the en banc cases.
The court of appeals decided that most of the cases that they were
going to hear coming out of the Watergate special prosecutor’s office were
going to be heard en banc, which was fine from our standpoint because as
it turned out, it was the liberals, who were normally liberal on criminal
law issues, were much more inclined to support the special prosecutor’s
initiatives, whereas the conservatives on the D.C. Circuit, who were
typically much more hardline on criminal law issues, were the ones who
were most deferential to President Nixon’s constitutional claims or other
kinds of claims raised by either the president or by the other defendants
who were being investigated and prosecuted.
In any event, in October of 1973, the D.C. Circuit, by a divided
en banc decision, ruled that the special prosecutor had the authority to
proceed and that the president did not have any absolute privilege to
withhold the information, and it ordered him to comply. Ultimately, I
think it was to comply by 5:00 p.m. on a certain Friday in that month. I
think on October 19 or so. We kept waiting for the time to come. We did
not have any illusions that the president was going to produce the
information. We assumed that he would seek Supreme Court review.
Instead of taking that course, he simply said he was not going to comply,
and he directed the special prosecutor to desist, to take no further steps to
enforce the subpoena. That’s what led to the potentially lethal125
confrontation. It was fatal for Cox’s possession of office and proved
ultimately lethal for President Nixon’s presidency. That’s what came to a
head on the Saturday, which has come to be known as the night of the
Saturday Night Massacre.
Before that ultimate confrontation took place, which was Cox’s
decision to refuse the president’s directive to stand down, we had another
extensive set of consultations. Same basic cast. Cox, Ruth, Lacovara,
Kreindler. I don’t remember whether anybody else was involved. The
issue was, alright now what. Cox reached the same conclusion he had
reached in deciding to pursue the tapes in the first place, which was, I took
this job to establish that the rule of law applies to everyone including the
president. I promised that I would pursue the evidence wherever it took
me and implicitly to pursue the evidence in order to see where the
evidence would take me, and I cannot stand down at this point. He then
again wrote all of his thinking out in his text and gave probably a 45-
minute press conference that Saturday morning at the National Press Club.
Massive crowds, film cameras and TV cameras, delivering in effect a
high-principled lecture on constitutional governance coupled with his own
personal reflections, almost the anguish of the decision. He said he didn’t
want to seem to be too big for his britches, and who was he to disregard
the instructions of the president, but nevertheless, as he put it, I’ve
undertaken this responsibility and I have to see through what the courts
have said is a valid demand for relevant evidence in pursuing a legitimate126
criminal investigation, and therefore I must seek to have the court of
appeals’ mandate enforced. And then we adjourned until we got messages
by television and radio about 6:00 that night that Cox had been fired and
various other things had happened which remained to be clarified over the
course of that night.
MS. JOHNSON: Where were you? Were you at home with the family? Do you remember?
MR. LACOVARA: I do. Yes indeed. That was another one of those Pearl Harbor kinds of
moments. I was at a dinner party with my wife at the home of my former
New York City Police Commissioner, Pat Murphy, who had left the
NYPD to become the president in Washington of something that still
exists, the Police Foundation, which is a law reform think tank. Pat and
Betty invited Madeline and me and some other friends to dinner. We were
having cocktails at their home in suburban Maryland when somebody
came in and said to me, it’s just on the TV that Cox has been fired. I said
what. We heard Walter Cronkite or John Chancellor, one of the main news
people at the time, talking about this momentous event, and the immediate
question that arose is, what now. I said to my wife I think I need to get to
the office, and she agreed with that. We made our excuses to our host and
hostess and went down to 1425 K Street where not only we and the senior
staff, but our librarian, our driver, our messengers, gathered in what can
only be regarded as a band of brothers and sisters moment.
This group that Cox had assembled barely three months earlier
came together physically in this time of stress at the offices on a Saturday127
night from wherever they had been, and of course there was shock, anger,
confusion, and probably half a dozen other emotions that you can imagine.
What happened, what does this signify, what can be done. There was
immediately a movement with two elements to it. One was, are we also
discharged, and the second corollary was, well if we’re not, shouldn’t we
resign in protest to show solidarity with our chief who has been
decapitated. Henry Ruth, who was the deputy, a very calm and saturnine
fellow, was trying to keep a lid on that. There was a lot of anger at Bork. I
said, I know Bork. I’ve worked with him quite recently. Why don’t I try to
find out from him what he did, why he did it, and what this means for the
whole enterprise of the Watergate Special Prosecution Force.
My two secretaries were there staffing me and the rest of the legal
staff. I asked one of them if she could try to find Bob Bork’s phone
number. It was a simpler time. She was able to find his home phone
number without any great difficulty, and I called him up and we had what
I would say was a strained conversation about what he had done and why
he had done it. He explained his rationale, which was plausible enough for
me. I told him I disagreed with it. When he was later nominated for the
Supreme Court fifteen years later, I provided a statement of support for his
nomination despite the taint of what he had done on the Saturday Night
Massacre. Bork’s explanation was that there were two elements. First was
he believed that the president had the constitutional right to fire anybody
in the executive branch so it was a matter of legitimate power And with128
respect to the policy and whether to defer to that power and to be the
instrument of its exercise, he explained why he did not follow the lead of
the two people above him in the Justice Department, the attorney general
Richardson, who had resigned rather than execute the order given his own
commitment to Cox, and Bill Ruckelshaus, the deputy attorney general
who, and this is a matter of debate, resigned as well or was fired. But in
any event, Ruckelshaus felt he was obliged to follow the path of the
attorney general on that subject, Bork said he thought that if he, Bork, also
refused to comply and resigned in protest or was fired, that would
effectively force every other assistant attorney general in the Justice
Department chain of command to take the similar course, which he said
would have left the Justice Department devoid of leadership, which was
not in the national interest. I argued with him about whether or not that
kind of prospect would have caused the president and General Haig, who
was the person who was communicating the instructions, to back off. So
we argued about that a little bit.
By then, we moved on to the next salient question, have you
dissolved the Watergate special prosecutor’s office and discharged the rest
of the staff. He said he had not been told to do anything like that. The only
thing he’d been told that had to be done was that Cox had to be fired, and
as far as he knew, the office was still functioning and the investigations
would proceed, but probably under a new interim leadership, as part of the129
criminal division, which was headed by a kind of career prosecutor by the
name of Henry Petersen.
I went back and reported that to the staff. There was more
conversation about whether to resign in protest, and ultimately cooler
heads prevailed.
If you want, I can go into some of the details about how we sought
to preserve evidence in the near term and the long term.
MS. JOHNSON: Yes. I have read about this, but I would love to hear it from an eyewitness
to this history.
MR. LACOVARA: I was eyewitness to it. Once we decided that we were not going to give up
without a fight, meaning to continue to try to pursue the investigation as
long as we were still in the office, the next practical issue was what do we
do to safeguard the evidence that we’d already compiled. This was now
four or so months into the investigation by these task forces, and some of
it was kind of sensitive stuff.
Part of General Haig’s instructions, coupled with the discharge of
Cox, was a directive to the Washington field office of the FBI to seal the
offices. I don’t know whether it was to keep people out or keep things in,
but the irony of it was the very same agents who were the agents who
were doing the legwork for these task forces, including the Watergate
cover up task force, were the Washington field office agents who were
told to seal the offices.130
A man named Angelo Lano, a name that still echoes down the hall
of history, had been the lead agent for us and now the lead agent trying
first to keep us out of the offices when we went down there on Saturday
night and then was trying to prevent us from taking anything out of the
offices when we ultimately left at 9:00 or 10:00 or 11:00 that night.
I remember there was a confrontation. I don’t remember if it was
when we were going in or going out, but it was, what are you going to do,
Angie, shoot us? That was kind of a dramatic moment. He was sheepish
since he did not relish being put in that position. Everybody was able to
get in the office, even though it was nominally supposed to be sealed by
White House directive. I mentioned that not only was my wife there, but
most of the other people in the office, most were men, but many of them
had their wives there as well, and some important documents and cassette
tapes were secreted on the persons of the women who were leaving the
office on the assumption, which turned out to be reliable, that there would
not be any kind of search or pat-down as people were leaving. As a result
of that, information that was regarded as important and sensitive was
removed for safekeeping outside the offices of the Watergate Special
Prosecution Force, which, as far as we knew, was going to be impounded
by people who were acting under the orders of the president.
MS. JOHNSON: To the extent that you remember, was there an architect to this extremely
clever idea? Was there a movement among the participants? How did that
get decided, discussed, settled upon?131
MR. LACOVARA: I think it was George Frampton who came up with the idea. I really
shouldn’t go any further. It’s probably too late for people to get in trouble,
but I don’t want to embarrass anybody. But I associate George Frampton,
who did write a book on this, so George’s book would be a place to look
for any more details about who specifically helped to organize this idea
and to recruit volunteers who were willing to serve as secret couriers for
removing material.
MS. JOHNSON: Amazing. So you all just came back to work on Monday or on Sunday?
How did you go about the rest of this mission?
MR. LACOVARA: Peter Kreindler and I went out to the farm in Virginia on Sunday where
Archie was staying with his wife. We got in touch with him somewhere
during the course of the Saturday Night Massacre to find out what he
knew and what his plans were. His plan was that he did not see any point
to fighting about the validity of his dismissal. He said he did not want to
make this about him personally.
So we went to the farm to talk with him about going forward, and
his basic advice was continue to work as effectively as you can for as long
as you can. That was kind of our benediction. We were out there maybe an
hour or two and then went back into the office on Sunday because I
suggested a new course. By this time, it was pretty clear that Judge Sirica
was inclined toward the validity of the investigation, and Sirica, recall,
was the person who felt burned by the original cover-up conspiracy. It was
the perjury by people in his courtroom, which McCord ultimately admitted132
that had tainted the proceedings before him, so he felt invested in trying to
get to the bottom of all this.
The strategy was to apply to Judge Sirica for an order directing the
General Services Administration, which is a kind of quasi-independent
element of the government. It’s the part of the government that runs
federal facilities. We applied for and received an order from Judge Sirica
acting as the chief judge who supervises the grand jury directing the
General Services Administration and all other officers and employees of
the United States, a very broad kind of injunction, to refrain from
interfering with access to the offices of the Watergate Special Prosecution
Force or from removing any information developed by or on behalf of the
grand jury and stored at the offices of the Watergate Special Prosecution
Force.
The idea there was we wanted to get court protection of our
investigation on behalf of the grand jury, thus protecting a judicial
function against any interference by anybody acting on behalf of the
executive branch. Judge Sirica was willing to sign such an ex parte order,
and he directed that it be served on the president and the White House so
that it would be binding on everybody else in the executive branch. That’s
when I said that I would be taking that order over to the White House.
This was at a time, of course, when the Saturday Night Massacre had
provoked what General Haig called that night a national firestorm, and
there was already an initiative to pursue impeachment. That was another133
topic of conversation I had with the House Judiciary Committee general
counsel that Saturday night. It was a time where blood was running hot. I
wasn’t quite sure how I would be received with my second visit to the
White House, so that’s why I asked the United States Marshal for the
District either to serve this or to accompany me in serving it. I don’t
remember exactly why, but the marshal said I can arrange for you to be
accompanied by an inspector from the United States Marshal Service.
That’s a kind of higher-level person rather than just a deputy marshal.
So I met the Marshal Service inspector, and we went to the White
House. The Secret Service agent asked the marshal whether he was armed,
and he said yes. Well, you’ll have to surrender your weapon. We looked at
each other, and I said it’s okay, we’re here now. So he turned over his
pistol. He stood there, and I went in and delivered the order, again to Fred
Buzhardt, and then he got his weapon back and we left. That was the
demonstration that we were going to be in operation at least for a while as
we saw what happened, specifically whether Henry Petersen would
provide any degree of insulation from political interference or, as it turned
out, whether there would be a new special prosecutor to replace Cox who
would be up to the task of pushing forward.
MS. JOHNSON: How did you come to know Leon Jaworski? How did you come to meet
him?
MR. LACOVARA: The first time I met him, and maybe the first time I’d ever heard of him,
was when he was announced as the special prosecutor.134
MS. JOHNSON: Wow.
MR. LACOVARA: That’s another topic for another discussion. Or we can take that up now if
you’ve got the time.
Leon was announced, and I would say that the fairly uniform
reaction to the announcement was one of great skepticism. In order to
appreciate the reason for the great skepticism, one has to consider two
factors. One was he was, after all, selected by the President. Cox had been
selected by Elliot Richardson, a man who was widely respected. Cox was
well known to be a man of great probity and was, not coincidentally
perhaps, a Democrat. Most of the people, with the exception of me, in the
office were Democrats, so Cox had a kind of credibility coming into the
job, whereas Jaworski was appointed by the President, who was already at
the point viewed as the archenemy thanks to his own conduct.
Just to reinforce that part of it, Jaworski was the person who was
known as a Texas trial lawyer, not the kind of person who would be
instinctively viewed favorably by a young staff, primarily of Harvard,
Yale, and Columbia law students. There was, I would say, a high degree
of Ivy League snobbery at play in the reaction to this fellow, who was
quickly identified on the basis of press accounts of his background, as a
Texas wheeler-dealer lawyer who had been president of the American Bar
Association, which was viewed not necessary as a mark of professional
excellence as much as of a political manipulation. That can be unfair and135
indeed probably unfair with respect to Jaworski, but that was the reaction
at the time. There was this degree of cynicism.
What confirmed the cynicism about Jaworski, simply because of
the way he came to be appointed, is that in the period leading up to the
Saturday Night Massacre, Nixon had tried to pull another fast one, as we
saw, which was when he announced what he viewed as a compromise
over the production of the White House tapes. This was to have
transcripts turned over to Senator John Stennis of Mississippi, who would
then listen to the tapes and compare them with the transcripts the White
House prepared and certify that they were reliable, and that should be
enough for us, being the special prosecutor’s office. It was a so-called
compromise that was rejected as laughable for a number of reasons, one of
which is nobody trusted John Stennis, who was one of the most ardent
segregationists and dumb as a post. It was also widely known in
Washington that Stennis was hard of hearing, something that would not
have escaped the attention of President Nixon and his counsel and General
Haig, and therefore that was perceived, I think accurately, as just a way of
the president to try to put his person into the process in order to make sure
that it failed. So there was some of that instinctive suspicion that greeted
Jaworski.
MS. JOHNSON: Thank you.
MR. LACOVARA: What more can I tell you about Jaworski?136
MS. JOHNSON: If you remember his first day of coming to the office, just the marching
orders, the kind of remarks he may have given the staff who, as you point
out, were quite suspicious of him.
MR. LACOVARA: Yes. One of the things that I admired most about Jaworski was his
approach to the staff in the very earliest days. I think he was shrewd
enough as a former trial lawyer whose stock in trade is reading people to
know that he was dealing with a hostile staff that he had inherited and
therefore had been imposed on him. But instead of being arrogant and
didactic, he explained that he viewed this as a public responsibility, that he
was sharing with the staff that he expected them to proceed as they had
under Cox’s leadership. And he did not bridle, even in the first meeting
and then thereafter, when these young people in their 20s or early 30s
addressed him by his first name, Leon, even though I think until his dying
day even his partners in his law firm referred to him deferentially and
respectfully as Colonel Jaworski. He was known as The Colonel in Texas
political circles and in Texas legal circles. Everybody referred to him as
The Colonel, except these brash young men, and some women, who had
the temerity to speak to him directly as Leon. Leon this, Leon that, Leon
what do you think. Instead of him saying, I would prefer to be called
Colonel, or most people call me Colonel, he just absorbed it, and I thought
that showed a degree of character and humility and self-effacement that
spoke volumes about the man.137
MS. JOHNSON: Thank you so much for this. This was fantastic. I am going to propose that
we stop here, and next time we pick up with the chronology and going
through the remarkable oral argument at the Supreme Court and the
decision and wrap up. In particular, I want to ask you another couple of
questions about Judge Sirica and Henry Petersen, about whom I’ve read a
lot, and maybe a little bit into the D.C. Circuit, and then maybe we can
close out the Watergate chapter.
MR. LACOVARA: Sounds like a good plan.138
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Tuesday, August 27,
2024. This is the fifth interview.
MS. JOHNSON: Good afternoon. Thank you so much for rejoining me.
MR. LACOVARA: Nice to be with you again.
MS. JOHNSON: When we left off, you were talking about special prosecutor Leon
Jaworski and how he came into the Watergate office at a challenging time
and that he managed to overcome in some ways some skepticism from
some of the people who remained in the office after Archie Cox left. I
want to pick up with a couple of questions about other people you
interacted with during that period and then move into the Supreme Court
activity. You mentioned Henry Petersen, who at the time was head of the
Criminal Division of the Justice Department. His role in the last fifty years
has come under additional scrutiny, in part because some people suggest
that Petersen may have been sharing information with Nixon’s lawyers or
people inside the Nixon White House. Did you have any question about
that at the time? Any question about your interactions with Petersen and
their professionalism at the time? What were they like?
MR. LACOVARA: I had known Petersen before Watergate because he was the head of the
Criminal Division, as you mentioned, and before becoming Cox’s special
counsel. I was the deputy solicitor general for criminal matters, so I had a
fair number of dealings with the Criminal Division, and a couple of them
involved Petersen. Most of them never rose to the level of requirement.139
My impression of him at the time was he was professional Justice
Department and a straight shooter. We had dealings during Watergate only
very briefly because once Cox was fired, what Bob Bork as acting
attorney general did was to put the Watergate special prosecution force
under Petersen’s supervision since it was a criminal investigation. Within
a day or two of that assignment being made, Henry Ruth and I went over
to the Justice Department to meet with Petersen, and it was an extremely
unpleasant experience. It suggests that there may be some credibility to the
subsequent speculation that Petersen may have been providing information
to the extent he was able to get it to Nixon’s lawyers.
The experience was essentially the following. Ruth and I explained
why it was important that there be a special counsel or a special prosecutor
separate from the regular career Justice Department personnel, including
him. One of the things that I mentioned to him about the sensitivity of the
pending investigations is that one of the task forces, not the Watergate
break-in but the matter that involved the settlement of a major antitrust
case, could involve not only the former deputy general Kleindeinst, but
also my recent boss, Dean Griswold, the Solicitor General. When Petersen
heard that, he exploded and made some highly personal comments
directed at me, vulgarities and the kind of condescending expletives that I
would even suggest that there was a basis for any investigation along those
lines. I told him that I was explaining to him what was part of the charter
of the Special Prosecutor’s Office as the former attorney general Elliot140
Richardson had crafted it and that the whole point of this was not to
assume that anyone was either guilty or innocent but to make sure that
there was a fair and accurate and reliable and credible inquiry.
Ruth and I then left understanding that this was going to be at best
a very ticklish relationship if it proceeded. History shows that the
firestorm that the Saturday Night Massacre provoked forced President
Nixon to appoint a new special prosecutor, Leon Jaworski. So, we rather
quickly, and I think fortunately, were removed out from under Henry
Petersen and reinstated as an autonomous unit of the Justice Department.
MS. JOHNSON: Thank you so much for that explanation. It sounds like your direct
dealings with Petersen were largely limited to that particularly unpleasant
meeting.
MR. LACOVARA: Limited, and happily so, because it was so unpleasant. I would say that I
can’t think of anyone in my life who treated me the way Henry Petersen
did that morning.
MS. JOHNSON: It’s been a long life.
MR. LACOVARA: It’s been a long life, and fortunately that was exceptional. Fortunately for
me.
MS. JOHNSON: Thank you for sharing that. Jaworski comes on board, as you mentioned.
He’s treated with some skepticism, some informality, as you mentioned in
our last session by other staffers on the Watergate team, and yet the cases,
the investigations, proceed. You wind up with an oral argument date
before the Supreme Court in early July of 1974. If you remember, how did141
you decide to prepare for that, and how did you decide who was going to
speak at that argument?
MR. LACOVARA: Let’s go back a little bit before the oral argument date was set. There was
a real strategy at play in handling the case up to the Supreme Court. Leon
was largely out of the picture in terms of crafting the strategy. This was
not anything that he felt comfortable doing. He did not view this as his
strong suit. As I mentioned, I believe, in the earlier interview, his strength
was in getting the investigations back on track and giving the staff enough
leeway to pursue them. He was not directly involved in framing legal
strategy, such as regarding the tapes subpoena that culminated in the
Supreme Court decision.
Let’s go back to the effort to enforce the subpoena. This was a trial
subpoena issued in the Watergate coverup case for evidence that we
thought would bear on culpability of the defendants in that case, Mitchell,
Ehrlichman, Haldeman, Mardian, and Parkinson. Judge Sirica, not
surprisingly, enforced the subpoena, and the President, as he had in the
original grand jury subpoena context, applied to the D.C. Circuit for a writ
of mandamus. That original mandamus had resulted in a case called Nixon
v. Sirica. At that point, we did not want to have a long delay in the trial or
the scheduling of the trial, so based on my experience as at least a short-
term Supreme Court lawyer, I decided that what we should try to do is to
get immediate Supreme Court review through a process known as petition
for certiorari before judgment. At the time, that was an extraordinary142
mechanism. I think there had been only one case perhaps in the prior
twenty years in which the Supreme Court had exercised its statutory
authority to review a case that’s technically in the court of appeals but
before the court of appeals has acted on it or decided it. Now with the
current Roberts court, they’re only too happy to reach down to invalidate
something that the Biden administration has done or to sustain President
Trump’s various arguments or the arguments by Republican attorneys
general around the states.
In any event, it seemed that it was a shot worth taking. It wouldn’t
cause much of a delay if it was unsuccessful. So, we petitioned for
certiorari before judgment. One of the consequences of this, and it was
part of the strategy, was to enable us at that time to frame the caption of
the case so that the case was labeled by us in our petition. Now in history
the case has been known as the case of the United States of America v.
Richard Nixon, President of the United States. This was part of the larger
strategy of trying to frame the essential proposition that was going to be at
issue which was, is the president entitled to withhold evidence because of
his role as president or is he simply for purposes of a legal proceeding
simply like any other witness. Therefor it seemed to me important as part
of the theatre of constitutional litigation to demonstrate that we
represented the sovereign people of the United States, and Richard Nixon
was simply a person who was the custodian of evidence that was material
to a legal proceeding.143
That was part of the strategy. The next part of the strategy was,
who should argue the case. Leon’s original view was I should argue it
alone because I was a Supreme Court lawyer, as he saw it at least. I had
argued a whole bunch of cases before that, and I knew the theories on
which we were relying, and he did not view himself as comfortable with
both, if you will, the substantive constitutional issues about executive
privilege or even the technical issues about the standards for enforcing an
evidentiary subpoena.
My response was, the country expects you to argue the case. You
are the special prosecutor. I am just an anonymous staff person. His
rejoinder to that was, well, let’s compromise. I’ll argue first, and then you
can have the rebuttal. The way we divided it up, and this was partly his
choice, and I think many commentators agree that it was fortuitous, was
that he would have 45 minutes of the hour-and-a-half the Court had
authorized for each side, and I would have 45 minutes. As you know,
normally in any Supreme Court argument, if it’s a half hour, perhaps
three, four, or five minutes will be saved for rebuttal. It’s never thought to
be a rebuttal if half the time is reserved for it. So that was a recognition
that he expected me to play a much larger role in the case than would
otherwise have been the role of his sidekick, as the country would view it.
Another part of this story was that I said part of the strategy was
demonstrating that we were the United States, and therefore there were
some other things that we should be doing as part of what I called the144
theater of this demonstration. One was I said we make sure that we sit
where the solicitor general is accustomed to be sitting, a particular side of
the lectern, and I said the other thing is that government counsel, and we
are representing the government of the United States, wear formal dress,
cutaways, morning suits. I said, so we need to be wearing our cutaways.
He drew the line there. He said “under no circumstances. Just be happy
I’m not going to wear my cowboy boots.” I remember that exchange
vividly. So that’s how we both wound up wearing our dark blue go-to-
court business suits, which had another humorous little side to it. When I
was getting ready to go up the court in my dark blue go-to-court-other-
than-Supreme-Court suit, my secretary tried to cut off a thread dangling
from my suit coat. Her hand was trembling, and she accidentally sliced
off a part of my suit coat.
MS. JOHNSON: Thank you for sharing that remembrance. Did you do a lot of moots? How
did you prepare for what you knew was going to be an historic argument
and maybe also a difficult one where how you looked and how you
sounded really mattered?
MR. LACOVARA: As I mentioned in an earlier session, my style by that time was not to do
formal moot court and not to use notes at the lectern. My preparation was
re-reading the key authorities, going over the brief, preparing an outline.
I’m sure I did an outline of the points that I wanted to make. Normally it’s
hard to prepare an outline for a rebuttal, and I had been involved in trying
to brief the special prosecutor on the points that he was expected to make,145
the main themes. It was not an easy process because he was clearly not
comfortable. For a man who was really at the top of the litigation
profession, and he had been president of the American Bar Association, he
was surprisingly ill at ease about the responsibility for taking the lead
argument in this case when the country was watching. Nevertheless, I
prepared a full argument in case I had to give one as part of the rebuttal,
which is really what turned out to be the case. The Court gave me ample
opportunity to make some affirmative points as part of the rebuttal, and I
was able to pretend, if you will, that these were really rebuttal points when
what I was trying to do was to shore up our own main arguments. So, what
I gave in my 45 minutes was essentially the same argument that I would
have given if I’d opened as the lead for the United States in the case.
I remember there was just one experience as part of the preparation
that was disquieting. I had not read all of the authorities that my staff
members had pulled together in preparing the draft brief that we ultimately
filed. One of the key issues before the Supreme Court was whether a
subordinate official in the Department of Justice, such as the special
prosecutor, could act independently of the president’s own decision. That
is, the president here had made clear he did not want this information
released, and yet here was a subordinate in the Justice Department
demanding that it be produced in contravention of the president’s view
about what reflected the best position and the best interest of the people of
the United States. One of the authorities that we cited for the proposition146
that the special prosecutor had the legal authority to do so as long as in
office as special prosecutor was an opinion of the attorney general from, I
think, 1841. Don’t hold me to the precise date. It was In the Matter of the
Jewels of the Princess of Orange. There was a quote in there that so long
as the United States Attorney was in office, he had the authority to pursue
the forfeiture of the jewels of the Princess of Orange, regardless of the
president’s view about the foreign policy implications. This is from 130
years earlier. It seemed like a great quote. Right on point. In preparing for
the argument, I asked the young lawyer on my staff who had come up with
this authority and quotation to get me the full opinion of the attorney
general so that I could read it. It did contain that quote. Unfortunately, it
was in the context of the attorney general saying yes, the United States
Attorney has this technical legal authority, but it would be hard to imagine
a more flagrant disregard for his duties of loyalty. And it went on and on
and on to excoriate the United States Attorney for taking this independent
position in defiance of the chief executive.
I was mildly embarrassed by the whole thing, hoping that none of
the justices on the court or their clerks would come upon that opinion,
even though technically it supported our view. Much of the law and much
of precedent is about the gestalt, and so the gestalt of this opinion was
basically that subordinates really need to pay attention to what the boss
wants in determining what’s in the national interest.147
Anyway, it never came up. It was not cited in the Supreme Court
opinion, and I don’t know that anybody in the last fifty years has ever
come upon an opinion of the attorney general in In the Matter of the
Jewels of the Princess of Orange.
MS. JOHNSON: Still, sounds like that anecdote contains a lesson for future lawyers.
MR. LACOVARA: I have used that incident in training younger lawyers about the danger of
relying on snippets without understanding the context, and as I say, the
gestalt, or the tone, or the theme, or the melody of the case. So, you can
find the lyrics, but what you really want to be sensitive to, if you’re going
to be an effective lawyer, is the melody.
MS. JOHNSON: Also, the idea that if you miss the broader context and a justice or a
justice’s clerk goes back and searches that authority and finds the broader
context, you’ve just damaged your reputation potentially.
MR. LACOVARA: Your credibility. I gave an interview in one of the Washington Lawyer
magazines where I used what would probably be today an offensive
quotation, but I said if you lose your credibility, your whole case collapses
like a wet taco.
MS. JOHNSON: You certainly did not want that to happen in the case that you worked so
hard to style, the United States v. Richard Milhous Nixon, President of the
United States.
MR. LACOVARA: Exactly.
MS. JOHNSON: I went back and listened to the argument a couple of weeks ago. There
was a moment where Jaworski was struggling a little bit to answer148
questions about Judge Sirica and his role in the case, and I think you
wound up passing him a note to help clarify. Do you have a memory of
sitting there and taking notes and passing them to Jaworski on this day in
July 1974?
MR. LACOVARA: I actually don’t. I would say that I don’t remember that incident
specifically. I would say that if I did it, it must have been because he was
struggling too badly or had misstated something in the record, because one
of the things that I observed from my time in court was that the worst
thing that you can do to a lawyer who’s arguing is distract him by passing
him a note. It suggests that he is flailing, and the worst thing that you want
your team to signify is that the person who’s actually up there on his feet
or her feet is doing such a bad job that a rescue effort like a life preserver
in the form of a little note needs to be tossed.
MS. JOHNSON: What was your feeling, Philip? Do you remember what kind of feeling
you had leaving the court that day?
MR. LACOVARA: There were two thoughts going through my mind. One was, well three,
because there was a huge crowd outside, so it was kind of daunting to
make our way through the crowd. Second thought, the substantive one,
was I think it went pretty well. As I may have mentioned in an earlier
session, if we went back seven or eight or nine months to when we first
decided that we would go after the first round of tapes, we had done some
vote counting, Cox, Peter Kreindler, just off the clerkship with Justice
Douglas, and I, and we thought we could get a majority of the Court to149
sustain our demand for the White House tapes over the President’s
objection. We never imagined that we would get a unanimous decision,
although that became an extremely important goal in light of President
Nixon’s announcement that he reserved the right not to comply with the
Supreme Court decision against him unless it was definitive. That
statement led to about the only carefully rehearsed part of my oral
argument that I did deliver, which was the closing comment urging the
court to render a definitive decision. Everybody, including the justices,
understood that this request was designed to have the court uphold the
validity and enforceability of a decision against the president in a way that
would not have given him room to defy the outcome if it went against
him. So, the second thought was it had gone well. I did not at that point
forecast the unanimous decision, although that’s what I was arguing for.
The third thought that went through my mind was, I’ve got to get
home because I’ve got to change. I’ve got to get from my blue suit into my
shorts because we’re late for our holiday. Months earlier, we had booked a
one-week family holiday out at Rehoboth, I think it was Rehoboth,
Delaware, or Ocean City, Maryland. We alternated. The family had not
had much time together during the prior year thanks to the demands of the
Watergate investigation, so we had a Saturday-to-Saturday rental. The
Supreme Court argument was not anticipated when we booked and paid
for this Saturday-to-Saturday rental, and we’d already missed Saturday
and Sunday, and we were going to lose most of Monday.150
My wife and children, who, as I’ve said repeatedly, were
extremely understanding of my other commitments and were getting
pretty darn impatient that here was Watergate impinging on their lives in a
way that it didn’t affect most Americans in the United States. So I raced
home. I was home probably by 1:00. By about 1:30, we were in our big,
old Dodge station wagon on our way to the Eastern Shore. It was only
when I got there that I began hearing on the news what the spectators,
particularly the correspondents from the major networks and Time
magazine, etcetera, thought was their view of how the argument had gone.
Their view was reassuring in that they thought, first of all, I had done a
creditable job in handling my part of it and that the court seemed to be
responsive to the arguments that our side had been making.
MS. JOHNSON: Did you have the kind of personality where you could listen to those news
reports in the evening on television and the radio and then actually take a
few days off with your family? Do you have the kind of mind that can
kind of turn things on and off in that way?
MR. LACOVARA: I would say yes. It’s a discipline that I developed early on. As I
mentioned, I was married while still in college. We had one and a half
children while I was still in college. I also mentioned that I frequently
would have the television on in the background, either as white noise or
otherwise, so I did develop a way of intellectually compartmentalizing
things or filtering out the different elements of my life and lifestyle so that
I could focus on one thing at a time.151
After the Monday morning argument, I was no longer counsel to
the Watergate special prosecutor. I was the husband and father who was
taking his family to the beach for a somewhat abbreviated summer
vacation of four or five days rather than seven days. I wouldn’t pretend
that I wasn’t in touch with the office to get a sense of what else was
happening and getting reactions. There were some calls I’m sure from
press people for reactions at the time.
MS. JOHNSON: You get back to Washington, and it’s a wait of a few weeks before the
Supreme Court decision comes out. Do you remember what that wait felt
like? Did you anticipate a decision sooner than that or not?
MR. LACOVARA: I think the decision came out about as soon as we could have hoped. We
knew that there were a number of complicated issues that had to be
resolved. Now from seeing what has been exposed in the papers of the
justices and some of the memoirs and interviews that have come out since
then, we know what the mechanisms were that Burger organized, with
different justices drafting different pieces of the opinion on different
issues. Lots of horse trading went on in that period. That was not known at
the time, and so when the case came out with Burger appearing to write
for a unanimous court, it made it seem a lot simpler and obvious an
outcome than it was either when we were arguing the case, briefing and
arguing the case, or when we were arguing it. We now know that it
wasn’t as obvious inside the court during the deliberations and that the
ultimate unanimous opinion was the product of a good deal of152
compromise so that in a constitutional sense, Richard Nixon lost the case,
but the presidency won the case because the court established for the first
time that there is such a thing as executive privilege, and more important,
this is what the conservatives in the court demanded, it is based upon the
separation of powers. So, it’s a constitutionally based privilege not simply
a judicially created common law type privilege. As we understood at the
time, over the longer run, this was going to be an important weapon that
future presidents would use to withhold information even though Richard
Nixon, unfortunately for him, was going to have to turn over information
that turned out to be the undoing of his presidency.
MS. JOHNSON: I’d love to talk later on in a few sessions from now about how that power
the Supreme Court gave future presidents came to bear out for over many
decades and presidents of both political parties to the present day, for sure.
MR. LACOVARA: Absolutely. I was on the phone this morning with a Senate staff person
talking about this very issue, how presidents tend to aggrandize power,
and no president cedes any power that a predecessor has wielded or
usurped. It’s a one-way ratchet, as they say, and that is certainly true with
executive privilege and other kinds of executive assertions.
MS. JOHNSON: Thank you for that. To be continued. The decision comes down. Did the
Office have a celebration? Did you have a personal celebration, or was
this more of a sober moment for the Office and for you personally?
MR. LACOVARA: It was sober. I don’t remember any sort of partying or cracking open a
bottle of champagne. As you may know from photographs of the day, we153
got a notice from the Clerk’s office that a decision would be released that
morning, the 24th of July 1974. I do remember that date. Leon and I went
up to the court with our government-issued car, parked in the basement of
the court as the Solicitor General and others were entitled to do at that
time. I don’t know whether that’s still possible given security needs. So
there we were. We waited. The court came in, and the chief announced the
decision. I don’t remember how long the announcement was, but what I do
recall was that I was waiting to hear ‘and Justice So-and-So has filed a
dissenting opinion.’ And after the chief announced the opinion and
judgment of the court, he said the court is adjourned. I think it adjourned
for the term. And that was it.
So that was the realization that this was a unanimous decision that
the president was going to have to turn over the tapes that we were
seeking. We made our way back out through another somewhat smaller
crowd, went back to read the opinion, and it was then that we realized that
the court had accepted some of what we’d argued on the key issues, that
the president is not above the law. The president may be forced by courts
to turn over information, but he nevertheless has a certain privilege, and
it’s absolute with regard to state secrets, and only conditional with regard
to everything else, and that we had made the showing of the need for
anything that was not a state secret to be produced.
I said afterwards to Peter Kreindler this case will probably be cited
more in the future by presidents, and as a practical matter, its practical154
impact will be most important for what it says about the standards under
Rule 17 of the Federal Rules of Criminal Procedure for enforcing trial
subpoenas. And it may well be that this issue may come up a hundred
times a week in criminal cases where somebody is subpoenaing
information for use in a criminal trial. But in the macro sense, the big issue
was that Nixon had to turn over information. Presidents in the future going
on in ad infinitum do have a constitutional privilege called executive
privilege.
MS. JOHNSON: Did you have a doubt or any uncertainty in your mind even then on that
day in late July 1974 that Nixon may not actually do what the Supreme
Court told him to do even though it was a unanimous and fairly definitive
decision?
MR. LACOVARA: I did have some doubt, but my doubts were diminished in light of the
reaction to the Saturday Night Massacre. Keep in mind that the Saturday
Night Massacre provoked an immediate congressional response. In fact, I
don’t know whether I had occasion to mention this, but that Saturday
night, I was on the phone with the chief counsel of the House Judiciary
Committee about what he thought was going to be now inevitably a formal
impeachment inquiry, and that inquiry did in fact unfold, and lots of
evidence had been taken, and articles of impeachment had been voted on. I
think in the interim, between the argument of the Supreme Court case and
the decision, it never got to the House floor because Nixon resigned, but it
was pretty clear to me that the country would really not have tolerated a155
defiance of the unanimous Supreme Court decision if the president
thought that that was what he wanted to do.
This is another example of how 1974 was so dramatically different
politically from 2018 or 2019 or 2021 regarding congressional willingness
on a bipartisan basis to hold a president accountable. Even before the
release of any of the tapes, some Republicans, both in the House and the
Senate, were prepared to say Richard Nixon has to be held to account if
he’s done something wrongful or criminal. It would have been inevitable,
as Senate and House leadership told Nixon, that he would have been
impeached and convicted in light of the tapes, I think that same result
would have obtained, and he would have been told that would have been
the consequence if he had defied the Supreme Court in an effort to conceal
the tapes. I knew that at the time. The game was up, and he really had no
politically viable much less legally justifiable basis for refusing to turn
over the tapes.
MS. JOHNSON: The game was up. It took another few days for Nixon to announce his
resignation. How active, if you remember, were the investigations up until
that point, and then I want to get up to the resignation itself and your
response to that and the Office’s response.
MR. LACOVARA: Everything was chugging along. Remember, the tapes case that went to
the Supreme Court was an effort to obtain evidence for the criminal trials
in which indictments had already been returned. So people were busy
preparing for those criminal cases. We had said, and this was a genuine156
attitude, that the reason we were subpoenaing this information for trial was
that, while we were satisfied that there was sufficient evidence to indict
these people, the evidence about who said what during these key concert
conversations would be crucial in either demonstrating guilt or
establishing innocence. We said that this is the responsibility of the
Department of Justice. There’s a famous old case called Berger versus the
United States that made this point. The United States wins its case when
justice is done in one of its courts. We said the country and the Watergate
special prosecutor have as much interest in knowing whether these people
are actually innocent as in knowing that they’re guilty, and the tapes will
show that. So the cases were being prepared for trial while awaiting the
production of tapes which might show that they were entitled to
exoneration or it would confirm the other available evidence tending to
show that they were guilty. The key additional element, of course, was
that it showed Nixon’s active complicity at the earliest possible moment.
MS. JOHNSON: It’s so interesting you say those things because these same things were an
issue as part of the January 6 investigations and remain so. The Justice
Department’s job, its obligations, as its goal of seeking and pursuing
justice for people. So August 7, August 8, roll around. Where were you
when you heard that Nixon was going to resign or might resign?
MR. LACOVARA: I believe I was on my way to New York for my sister’s wedding. One of
the ways I can remember her wedding anniversary, and she just celebrated
her 50th anniversary, is by relating it to Nixon’s announcement of his157
resignation. I was relieved but distracted because we were driving up to
New York with the family. A couple of the children were in the wedding
party. So a little bit like the aftermath of the tapes argument where
immediately I had to shift gear into being father and husband, I was in the
process of shifting gears to being brother, father, and husband at the same
time as the announcement was being made that he was going to resign.
MS. JOHNSON: This is a man that you had supported politically early in your life, I think,
and had come to take a different view of based on your interactions with
him, his interactions with the Justice Department and Archie Cox and
others. Did you have a personal set of feelings about this resignation?
MR. LACOVARA: Yes. I thought it was sad. The dominant emotion that I had was sadness
because I had been, as you say, a supporter of Richard Nixon. I’d been a
life-long Republican. I thought that he was a man of substance. In the
convention the other night, Kamala Harris made the comment that Donald
Trump is not a serious man. That concept of being a serious person or a
serious man is one that I have used myself over time to distinguish people
who are mere flashes in the pan or mere performers or mere politicians, as
contrasted with people who are serious persons. I thought of Nixon as a
serious person. He’d had a long career in Congress, as vice-president, as
president. Extremely smart lawyer. He’d even been a Wall Street lawyer.
He’d argued before the Supreme Court. So he was a serious man, and it
seemed to me sad that it had all come crashing down.158
There was also, of course, the relief that he was gone since he
seemed to have been oppressing the progress of the country. We knew
that, and I’m sure you’ve read about this subsequently, that there was
concern even within his administration that he might do something
reckless or dangerous. There’s a famous comment by Schlesinger,
Secretary of Defense, that as we were told, if the president picks up the red
phone, nobody will answer it. We had been given assurances on the q.t.
that the president was being effectively isolated from exercising some of
the powers of the presidency because it was thought at the time that he
was not stable and might do something desperate in order to cling to
power. There was a sense of relief that that threat was now being
eliminated by his resignation. So sadness and regret. I did not have any
sense of triumph or victory or elation when Nixon decided to stand down.
MS. JOHNSON: Closing this chapter, did you have personal views or office-wide views on
Nixon’s need for and acceptance of a pardon when that came?
MR. LACOVARA: Yes. First of all, there was the immediate question what should the special
prosecutor’s office do about Nixon, and there was I would say unanimity,
with one big exception, that he should promptly be added to the
indictment of the other co-defendants because they were indicted for
things that the smoking gun tape showed were done with the active
connivance of President Nixon himself.
The exception to that was Leon Jaworski, and his vote counted a
lot of course since he was the one who would have to sign an indictment.159
Immediately after resignation, signals began to emerge from the Ford
White House that a pardon was being considered, and those rumors
continued to percolate during the ensuing month or so. Jaworski had
regular contacts with the White House, with President Ford’s counsel, a
man named Philip Buchen, a very honest, distinguished, I would say non-
partisan fellow, during the period. I don’t know how to describe this. We
jump ahead following the pardon. I may have mentioned this. Jaworski
and I became estranged after the pardon was issued because he viewed me
as having pushed him into getting President Ford to issue the pardon. In
my view, that wasn’t quite accurate, but I could see in retrospect how he
could come to that conclusion and why he thought that my resignation as a
protest upon the issuance of the pardon had embarrassed him and showed
him up when he decided not to do anything about the pardon. The context
for his comments was my assertion, and I think this is documented in
some of the memos that may now be in the National Archives, was that it
was not good for the pendency of the existing case for the jury pool to be
wondering about where the key figure in the whole case, namely the
president, was, and wondering if the case went to trial why wasn’t the
president there as a co-defendant. So, what I did say to Jaworksi was, you
should urge the White House to act quickly. If he’s going to pardon
Nixon, it should be done sooner rather than later. It certainly should not be
as one of the possibilities being mooted: It was we’ll wait to see if he’s
indicted, then we will pardon him. Or if he’s indicted and goes to trial and160
convicted, then we’ll pardon him. So my recommendation to Jaworski was
let’s get this cleared up now. If Ford is seriously interested in pardoning
Nixon at some point, better now than later. And Ford apparently acted on
that advice. I don’t know that it was my view communicated to Jaworski
and passed along to the White House that was decisive, but from
Jaworski’s viewpoint, he had made this representation to the White House
at my urging. The president had acted, and then I made this grand stunt of
resigning in protest against the pardon, and his view was they just did
what you told me to tell them to do
MS. JOHNSON: Did you view it as a resignation in protest at the time?
MR. LACOVARA: Yes. It was announced as such. My explanation was that the pardon of
Nixon had undercut the whole purpose of the special prosecutor’s office.
That is, when Richardson had announced this venture and Cox had taken
the job and, as we argued to the Supreme Court, the underlying premise
for creating a special prosecutor with authority among other things to
investigate the president was to demonstrate that no man is above the law,
including the president. And yet, the way I reasoned it, here the person
who is the central figure in the conspiracy and the motive for the
conspiracy is the one person who is walking free, and the others are on
their way to trial and, as anticipated, ultimately on their way to prison. So
it seemed to me that the pardon itself struck at the core of what we were
trying to demonstrate, which is that no person is above the law. Fast
forward fifty years and you have Trump v. the United States, and the161
Supreme Court says, well, one person is above the law. But at that point,
such a notion was not considered a serious one.
MS. JOHNSON: You’ve had a very long and productive and successful career. How do you
situate your Watergate experience in that context? Was it the most
important thing you’ve ever done in some ways, or is that too far?
MR. LACOVARA: In professional terms, I would have to say it’s the most important thing
I’ve done because it had consequences affecting the larger community. I
was involved in an investigation that led to the departure of a president. I
was involved in a case that has created ripples in time that are still
reverberating today, the Nixon tapes case. I think that in terms of
importance in a global sense, the Watergate experience would have to be
the most prominent thing in my professional life. I’ve done other things of
which I’m proud. I don’t think I’ve done anything that ranks with
Watergate in terms of impact.
I think I said earlier when we were talking about my experiences in
the New York City Police Department that was a much more enjoyable,
and in a sense intellectually fascinating professional experience, because
of the range of issues that I was dealing with. But Watergate has to be a
capstone.
Of course it’s with some reluctance that I say that, because that
was fifty years ago, and no person likes to think that the rest of his life has
been downhill since then. I don’t think of my life as that way because I’ve
had, as one of my former partners used to say, the four great careers that a162
lawyer can have. I’ve been a government lawyer, I’ve been a private
practitioner. I’ve been a public interest lawyer, and I’ve been a law
professor. I guess a fifth one is corporate counsel. So I’ve done a lot of
interesting things in a lot of different contexts, but in terms of the larger
impact, Watergate would have to be it.
MS. JOHNSON: Your resignation in 1974 brought to an end, at least for a while, a very
intense period of public service for you and also one where you and your
wife were raising a growing family on a government salary. You’ve
alluded to this a few times, but that must have been an enormous personal
challenge for you and for the family.
MR. LACOVARA: It was, and I didn’t even notice it as much as I’m sure they did. My wife
reminds the kids that, when we went to Red Barn, which was the
equivalent of McDonald’s at the time or Burger King now, several of the
kids would have to share a bag of french fries. Money was tight. There’s
no doubt about it. When we first came back to Washington when I was
clerking for Judge Leventhal, he appreciated that my law clerk salary was
pretty tough to support a wife and three children, and he actually arranged
with a friend of his who worked for, I think was the managing editor of the
old Bureau of National Affairs, BNA, US Law Week. US Law Week is now
owned by Bloomberg. But that was the kind of legal journal that almost all
lawyers read weekly. They had two sections, the General Law section and
the Supreme Court section, and they came in loose leaf pages. One of the
things that the Supreme Court section did was digest summaries of the cert163
petitions that had been filed recently so that lawyers could keep track of
what issues were going up to the Supreme Court. What the judge arranged
for me to do was to have a night-time side hustle preparing the summaries
of Supreme Court cert petitions. This is long before I got to the Solicitor
General’s Office. I think I got paid a dollar a petition to summarize them
in the standard format that Law Week published them. So I would get a
foot-deep stack of cert petitions, and I’d crank them out at night while the
kids were asleep.
And then Dean Griswold, who appreciated the same thing, when I
was in the early stages of the SG’s Office, he must have gotten a request
from the US Ambassador to the Organization of American States, a man
named Sol Linowitz, who had been the chairman of Xerox and left the
corporate world to take on this public service assignment. He wanted kind
of staffing assistance, especially in writing speeches on issues of social
policy and the way governments throughout the Americas might be able to
help the underprivileged. So the Dean put Linowitz in touch with me, and
I did a number of gigs for him, and he paid me generously for my
speeches. It was just an example of how the people that I was working
with at the time were extremely helpful to me in helping to get some extra
income to supplement my salary at the time.
MS. JOHNSON: How did you decide to return to law firm life and to return to I think the
same firm that you had been at years earlier?164
MR. LACOVARA: Yes. I had been at Hughes Hubbard and Reed twice. I had done my
summer internship there while in law school, and then when I left the
Solicitor General’s Office the first time and went back to New York
thinking I might want to be a Wall Street lawyer, I went there as a mid-
level associate. So after leaving the special prosecutor’s office, I had to
find something else to do. One of my sons who was I think nine years old
at the time said, daddy, do you have another job? He asked me after I
announced that I had resigned from the special prosecutor’s office, and I
said no, but I have confidence I can get another job. I’m not sure he was as
confident as I was, so there were some very intensive efforts to see what
my opportunities might be in Washington. We wanted to stay in
Washington. A couple of firms contacted me or I contacted them, and one
of them of course was Hughes Hubbard. I’ll explain why I went back there
and under what circumstances.
One of the firms that I interviewed with was Williams and
Connolly, a great firm even then. I knew a number of people from
Williams and Connolly. At the time, Joe Califano who had been one of
LBJ’s chief assistants, later Secretary of Health, Education and Welfare,
was a partner at the time. This was a funny episode. We agreed to have
lunch at an Italian restaurant on Connecticut Avenue that I’m sure no
longer exists, and I don’t even remember its name, but it was down in the
basement. It was very dark. It was a very chichi trendy restaurant at the
time. I was trying to be extremely cool in this interview. Keep in mind I’m165
still maybe 30 years old trying to make my way in a different world. I
looked at a menu and it was written in small print. It was handwritten, and
I just looked at things, and it was all in Italian, and I don’t really speak
Italian. The one word that I recognized was pollo, chicken, so I pointed to
this thing on the menu. Califano and I kept up our banter, and then when
my order finally came, it was chicken in a sense. It was an entire bowl that
must have weighted two pounds of nothing but chicken livers. Joe must
have known from the expression on my face that I was completely
befuddled by what I was going to do about this, and he was watching to
see whether I would eat any of these things or if so, how far I could go in
trying to maintain some sense of aplomb while I was trying to project the
degree of confidence and éclat.
We had wonderful lunch, and they did offer me a job, but since I
had a total of about a year-and-a-half as a law firm associate and I was
then just seven years out of law school, which was the minimum at that
point for law firm partnerships, he said you’d have to come in as a senior
associate for a year. I said, again being kind of smug and too big for my
britches, I’m not going anywhere as an associate at this stage in my life.
So I did not go to Williams and Connolly.
Hughes Hubbard offered me a partnership. In fact, basically to
create and head the Washington office of the firm. I was told somewhat
later by a friend, a kind of mentor at the firm who had been urging that the
firm elect me a partner, what he had to tell them. This of course came166
after I’d gone to Hughes Hubbard in 1969 and almost immediately done
this special assignment on the death penalty case, which took several
months out of my work for the firm, and then I left to go to work for the
New York City Police Department. Bob’s theme, as he said he had argued
for my cause was, Phil Lacovara was a terrible associate, but he’ll make a
great partner. And apparently that swayed the day, and I spent the next
fourteen years heading the Washington office of Hughes, Hubbard and
Reed.
MS. JOHNSON: Spectacular. In our next session, I would like to get into that and your
Wall Street lawyer days, but I have one more question for you before we
stop today, and it’s because you mentioned Arnold and Porter. I think you
had recounted to me at one point that you had some experience with Abe
Fortas, who of course came from the Arnold and Porter law firm, and now
may be a good moment for you to discuss that interesting experience you
had with Fortas.
MR. LACOVARA: I argued against Abe in the only case he argued after he left the Supreme
Court, and this was part of my private practice experience. And indeed,
I’ve just been asked by the Supreme Court Historical Society to do a little
narrative which I think they’re going to be publishing as part of their
blurbs concerning Supreme Court justices as lawyers before the court.
Almost all of them, maybe all of them, had that kind of experience before
they went on the court rather than, as in Fortas’s case, afterwards.167
In any event, I had done some work for the Commonwealth of
Puerto Rico doing work on their legal status for the so-called
Commonwealth party. In Puerto Rico, as we have divergence between
Democrats and Republicans, they have the Commonwealth party and the
Statehood party. The Commonwealth party is the one that likes this loose
affiliation with the United States, whereas the Statehood party wants
Puerto Rico admitted to the union as a state. So early in my time at
Hughes Hubbard, the head of the Federal Relations Office of the
Commonwealth of Puerto Rico, a Commonwealth party representative, a
man named Jose Cabranes, later general counsel at Yale, now judge of the
United States Court of Appeals for the Second Circuit, asked me to do a
constitutional analysis of Puerto Rico’s capacity under the constitution to
engage in autonomous foreign relations. Okay. I did that.
Two or three years later, I was approached by the Statehood party
to represent them in a case that was working its way up to the Supreme
Court. The case involved the question whether under the US Constitution
it was permissible for a political party simply to appoint a member of the
legislature when a vacancy occurred. So not an appointment by a
government official but by a political party. The control of the Puerto Rico
Senate turned on the answer to that question. The case ultimately went to
the Supreme Court, and I was to argue for the Statehood party. The
Commonwealth party hired Abe Fortas, who by that time had left the
Supreme Court. He had had a relationship with Puerto Rico and168
specifically with the Commonwealth party from the time that he was the
Under Secretary of the Interior back in the FDR New Deal days. At that
point in a kind of condescending way, US territories were under the
control not of the State Department but of the Interior Department as if
they were national parks. So Justice Fortas had had this longstanding
relationship with Puerto Rico and the Puerto Rico government, which had
been for decades and decades of generations under the control of the
Commonwealth.
We were scheduled to argue the case. We did our respective briefs,
and the case was set I think for February of some year. He called me up on
the phone and said I’ve got a favor to ask for you. He said it’s not in the
nature of a professional conflict, but I wonder if you would agree to ask
the court to move the argument date, to postpone it. I said what’s the issue,
and he said well, it’s not a professional conflict. Every year for the last
twenty years, my wife Caroline and I have used this two-week period to
go to our condo in Colorado to ski. She’s a busy lawyer. We made
arrangements for doing this long before the court scheduled the argument.
I said that’s fine. I believe that personal conflicts are even more
compelling than professional conflicts. You can represent that counsel for
the Rodriguez parties consent to a delay, so the court clerk put the case off
for two months. I never asked my client whether they had any objection,
and probably that was not a wise thing to do, but in any event, we did
argue the case two months later. He did a terrific job arguing. He was a169
very accomplished lawyer. And then he happened to die, unfortunately,
before the decision came out.
My takeaway from this was that I would have felt miserable had I
deprived him and his wife of their last vacation together by saying no, this
is the argument date, let’s just stick to it, too bad for you and Caroline. He
won by the way, unanimously. It was kind of an honor for me to go up
against him because he had been one of the leading lawyers of the
Washington bar. He was kind of the consummate Washington lawyer,
although he had left the court under a bit of cloud and had not gone back
Arnold and Porter. He was nevertheless a person of substance. He was a
serious person, and it was in my view an honor first of all to be going up
against him but also to have been asked to do him a favor on the personal
level, and so I was in retrospect especially delighted that I had acquiesced
in his request.
MS. JOHNSON: Absolutely. That would have felt awful had you not. I’m persuaded by
your explanation. Let’s leave it there for the day, and let’s get into your
life at Hughes Hubbard on behalf of clients and maybe your life then
working for Wall Street banks next time around, if that works for you.
MR. LACOVARA: Yes. And don’t forget Jack Welch and the General Electric Company at its
heyday, before it imploded.
MS. JOHNSON: That will be a long session. And we have to get to Rudy Giuliani as well.170
MR. LACOVARA: Yes. And in terms of public service, while I left Watergate, I did a couple
of Congressional assignments after that which might be worth a couple of
minutes.171
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Wednesday, September 4,
2024. This is the sixth interview.
MS. JOHNSON: Thanks so much for making time for me today.
MR. LACOVARA: Glad to be with you again.
MS. JOHNSON: When we last left off, you had, after a period of deliberation and some
wining and dining, maybe without the wine, other firms, you had decided
to return to the firm Hughes, Hubbard & Reed. You were talking a little
bit about the generous offer they made, including a partnership. I wonder
what it felt like to be back in private practice after the really high-pressure
public service you had done immediately prior.
MR. LACOVARA: It was a bit of a relief getting back into something that was more of an
orthodox legal pathway. It did, however, carry with it some tensions of its
own because part of the assignment was that I was to build the
Washington office of the firm as a free-standing aspect of the Hughes,
Hubbard legal regime. They had formed an association with two
established Washington lawyers, two people of some note to anybody who
has been around the Washington legal and political circles. One man,
Harry McPherson. Harry worked for Lyndon Johnson. He was one of his
key advisors and one of the most erudite cultured men I ever knew. The
other was a man named Berl Bernhard, who was also a political operative.
A pretty good lawyer who, among other things, wound up during the
course of my association with him owning the short-lived Washington172
Federals football team, which was a spring football team. I think it was
then the USFL, United States Football League, and Berl acquired the
franchise for that team, which played at RFK Stadium in the spring.
In any event, they were both partners at Hughes Hubbard and also
partners in their own firm in Washington, the Verner, Liipfert, Bernhard &
McPherson firm which had a basic Washington regulatory practice. It was
kind of the old-line approach to Washington law practice specializing in a
couple government agencies. One of the focal points of that firm’s practice
was the aviation industry, and that, in fact, turned out to be an entrée into
one of the major types of legal work that I wound up doing.
The overall goal in my appointment as a partner was to establish an
independent Hughes Hubbard Washington presence with partners solely at
Hughes Hubbard. I went about trying to build the office by recruiting
some of my colleagues from the Watergate special prosecutor’s office,
including Peter Kreindler, who had been the special assistant both to Cox
and Jaworski, Jerry Goldman, who had been one of the lawyers on the
Watergate prosecution team, and several other people. I then also looked
to recruit some of the people who might have had credentials similar to the
ones that I had, specifically clerkships with Judge Harold Leventhal. So
two of my early hires were former Leventhal clerks who had gone on to
clerk on the Supreme Court, so I hired Jay Kelley Wright, not to be
confused with J. Skelly Wright, the Court of Appeals judge, and David
Becker. They had both clerked on the Supreme Court. We had a nucleus173
of a few people very quickly after I joined the firm in 1974, and we began
building. We acquired our own offices and went through a couple of
migrations from a little office on L Street to what was then a brand new
outpost on Pennsylvania Avenue when Pennsylvania Avenue was just
being redeveloped. We went into the first purpose-built law office
building of the modern era on Pennsylvania Avenue, at 1201
Pennsylvania, and we were the other major tenant in the building besides
Covington & Burling, which had about five-sixth of the building, and we
had two little floors, second and third floors. It was one of my favorite
offices. I had a corner office there.
The practice evolved very quickly. We started doing work, as I
mentioned, for some airline clients that the Verner Liipfert people had
introduced me to, especially Northwest Airlines. That went on for virtually
all of my practice with Hughes Hubbard in Washington, which lasted until
1988. I did a lot of work for Northwest and had a couple of matters that
went to the Supreme Court.
We also developed another outgrowth of the Hughes Hubbard
practice with the accounting profession. Hughes Hubbard had done a lot of
work for what was then Coopers & Lybrand, now
PricewaterhouseCoopers. As a result of some of that securities fraud-type
litigation, I began doing a fair amount of work not only in SEC
investigations and litigation but also doing lobbying work. The lobbying
was for the accounting profession in general about legislation affecting174
fraud statutes and so forth. I developed an active practice as a substantive
lobbyist. That is, my role was to lay out position papers, meet with
senators and congressmen and staffs, along with the representatives, the
so-called Washington representatives of different companies. They would
be the people who had the political connections, and I would be the person
who tried to make arguments about why whatever was in that company’s
or that industry’s interests really coincided with the national interests.
Sometimes it took more of an effort to keep a straight face while making
these arguments. When I would rehearse them with my wife, she would
shake her head and say you really don’t think you’re going to get away
with that one, do you? And I would say I’m going to give it my best.
Sometimes it worked, and sometimes it didn’t.
I will say that the lobbying aspect was quite enjoyable. It was at a
time when Congress was going through a transition, some of which was
benign and some of which I think turned out to be destructive. The benign
part was money was becoming less and less an obvious inducement to
taking votes or staking out positions. I think probably when I started,
Congress was evolving from a rather tawdry environment to one where
it’s a little bit more cautious and at least more sanitary, although money
still talks, and everybody is aware of the corrosive impact of money in the
political system.
The not so benign evolution in the post-Watergate period: I think
political scientists have marked the 1974 congressional election as really175
the turning point in the 20th Century in terms of congressional
functionality. With the advent of the Young Turks in that class of 1974,
the old seniority system crumbled. That, as a practical matter, has made
the situation that we have now. We’re now talking fifty years later. It’s
much more difficult to get anything accomplished. And as the ouster of at
least one recent Speaker of the House illustrates, every young buck views
himself or herself as entitled to make as much mischief as possible without
any real consequences.
By contrast, under the old system, the committee chairman, as it
was invariably then, decided what was going to move forward, what
legislation should look like, and everybody else on the committee
essentially saluted and said yes, sir. That made it easier to be a lobbyist
because you could have a practical way forward to getting legislation
moving forward. Also, from the standpoint of optimal political science
principles, it made it possible to get things done, mostly good things,
sometimes not so good things. The paralysis that we’ve seen in the last
two decades or so is largely a result of what I saw emerging when I first
began becoming involved in legislative lobbying.
I will tell you one little story about the course of evolution as I was
describing it. I remember going in to see one senior senator from a
southern state. At that point, I was doing some lobbying for what’s now
called Big Pharma, and we were talking about pushing for legislation to
provide some antitrust protection in the pharmaceutical industry and other176
aligned industries. After I did my presentation on why this proposed
legislation was really good economics and good social policy, we were
just about to leave and the senator said to my client, whose name was Bill,
last name not to be mentioned, Bill, I appreciate you coming by to see me.
I wonder if you could do me a favor. I’ve got this fundraiser, and I’ve got
some tickets for this fundraiser, and I wonder if you could maybe place
these somewhere, Bill. Maybe your company would want to take a table
for the fundraiser. He handed him a stack. They may have been $1,000 a
plate tickets. Bill looked at me and said, senator, this fundraiser was last
week. The senator said, well, Bill, that’s not going to make it any easier
for you, but I really appreciate your help.
So that’s the way it was, and it may still be that way now. I don’t
know, but that’s the way it was in the 1970s and thereabouts.
MS. JOHNSON: Okay, so let me interject here. You are a fellow whose favorite job was
perhaps having a badge and driving around in your car with NYPD.
You’re confronted with a situation that seems problematic at best and
illegal at worst, so what did you do with that?
MR. LACOVARA: It was awkward, and I had to content myself with the principle that I
wasn’t doing anything illegal, and Bill wasn’t doing anything illegal
either. It was in accordance with campaign finance regulations, and I was
registered a lobbyist. He was registered as a lobbyist. These things were
not going to the senator directly. He had a campaign committee. And
that’s still the same way it is today. It’s how millions and millions of177
dollars goes into campaigns. None of the money is supposed to go directly
to the members, and occasionally if they dip into their campaign funds,
they get found out.
It was not so much a question of, am I skirting on the edge of the
law here. I thought I had been doing great things in the public interest, and
now I’m representing private commercial interests. Indeed, big business
interests. What I contented myself with was a pair of justifications. One
was, well, it’s a living, and I have to support my family, and it’s not
illegal. Another justification, and this was quite explicit, I was part of the
advocacy process, and I know that this was literally the case, either right
in front of me as we were making these visits or right behind me were
people from Public Interest Research Group or the ACLU. So I could say
to myself, I’m an advocate. I’m presenting my best arguments. There are
people who actually employed to present a contrary argument, and it’s up
to the people who get elected to make the decisions about which
arguments are more persuasive. Sometimes we lost, despite all the factors
that I mentioned, and sometimes we prevailed. I was able to reconcile
what I was doing with those explanations.
The other part of it was I was also quite deliberate in pursuing
pro bono causes. So this was the way that I was reconciling in my own
soul what I was doing in order to make a living and develop my law firm’s
office and help keep employed what turned out to be thirty or forty people
ultimately. I had to generate fees to do that. It had its own enjoyable178
aspects because I liked the intellectual part of it. I liked the advocacy part
of it. I then became active in a variety of pro bono efforts. One of them
was a class action on behalf of migrant apple pickers. We did a class
action in the US district court and got a huge settlement for these migrants
against the big agricultural interests. I did that sort of thing.
I became involved with the American Bar Association in two
capacities. I was at the time a conservative Republican, and I knew people
from the Washington Bar who were active in the American Bar
Association Section of Individual Rights which was the Civil Liberties
section. One of these women who was a friend of mine said, you really
ought to be involved in this because it would be useful to our policy taking
and policy formulating positions in the section of Individual Rights to
make sure that we understand the other side of issues. I was nominated for
the so-called council of the Section of Individual Rights sometime in the I
think late 1970s or early 1980s. I found out that, far from contesting a lot
of these policies, I’m not sure I served the sounding board function that
they had in mind originally. I began to emerge or, as I call it, to green
myself. I refer to this as the greening of Philip Lacovara. I became much
more liberal and perhaps open-minded. So eventually, I became the
chairperson of this section, and it was in that capacity that I helped to
create the Thurgood Marshall Award with Justice Marshall as its first
recipient.179
Among the things that I became involved in through that section
was the ABA International Human Rights Trial Observer Project, which
was initially under the sponsorship of the Section of Individual Rights,
although it later became a major ABA project. In that conjunction, I did
two trial observer missions, which my firm was willing to let me take the
time and spend the money to pursue. One was in Yugoslavia before the
breakup of Yugoslavia. It was a trial of the Belgrade Six. I have some
interesting stories about that if there’s time or interest. The other was to
monitor the trial before a military security court in Istanbul. These are
human rights challenges that persist ‘til this day. These trials were both in
the 1980s.
The Yugoslav trial involved the conjoined prosecution of six
people who ranged all the way from Euro-Socialists to Trotskyite
communists, but all of them had different views about what should happen
to Yugoslavia, and that included Serbians, Kosovars, Muslims, and so
forth. There was nothing that these people had in common other than they
were trying to make trouble for the central government of Yugoslavia. I
remember meeting with the prosecutor during one of the breaks. This was
in Belgrade. I said I’m familiar with the Yugoslav constitution that talks
about right of political assembly, freedom of speech, freedom of
conscience. Why are you prosecuting these people? They want the same
thing that all people around the world want which is an opportunity for
freedom, which your constitution guarantees, and everybody wants the180
same thing, a peaceful lifestyle where their families can grow up with
opportunity. I remember him sitting behind his desk shaking his head, and
he said, you Americans, you think that every country in the world is a
melting pot like yours. He said this is not a melting pot country. This is a
country that was patched together after World War I with different
warring ethnic groups that have been at each other’s throats for centuries.
Tito was able to keep a lid on things. Marshal Tito, who had died two or
three years earlier, was able to keep a lid on this because he was a hero in
fighting the Nazis during World War II, but he’s gone, and all we’re trying
to do is keep the country from exploding. I looked back at him with my
know-it-all American condescension saying you don’t give people enough
credit trying to repress these efforts at political activism. Partly because of
the attention that was being paid to the trial by the ABA and a couple of
other European groups that had sent trial observers, the men were
convicted, but they were given suspended sentences so there was no real
consequence, largely because the international community was watching.
And then, of course, within a very short period of time, two or three years,
Yugoslavia exploded, and you had NATO involvement, you had tens of
thousands of people killed, and the country fractured into six different
countries now. It’s unclear exactly where Kosovo is as a country. That’s a
Muslim enclave, but the Kosovars and the Serbs are still at each other’s
throats, and the Orthodox and the Latin Christians, the Catholics versus
the Orthodox, they’ve been slaughtering each other with almost as much181
abandon as the Muslims and the Christians have been slaughtering each
other. So he was right, and I was wrong, at least in the sense that he
understood a problem that I did not appreciate.
There was a similar episode in Turkey. I remember going into the
chambers of the military judge who was presiding to talk about the trial of
those people, and they were the people who were affiliated with the PPK,
which is still the Kurdish minority that is still pressing for a homeland or
independence, and they’re still being slaughtered, and occasionally there’s
a terrorist attack fifty years later. That problem too is still festering. I
remember talking to him about the whole concept of justice in a court. He
was a judge but a member of the military. One of the things that was more
startling and that has remained with me is that he had a kind of a pen
holder on his desk. One end was a hand grenade, and the other end was an
upraised bayonet. I thought okay. In the US, we have the scales of justice.
We have a wooden gavel. We have other indicia of justice, and in this
tribunal where I’m trying to observe the administration of justice, you’ve
got the bomb and the bayonet.
It was things like that that allowed me to feel comfortable in my
skin that what I was doing for those fourteen years was a satisfactory way
for an honorable person to lead his life.
MS. JOHNSON: Fourteen years is a good long time for somebody who had as many jobs as
you did.182
MR. LACOVARA: By far, that was the longest place I’d ever been and the longest segment of
my career. As I was mentioning, it had variations because I did regular
litigation, I did Supreme Court work. My specialty even then was in
Supreme Court litigation, and I argued a number of cases for different
clients. One of my proudest ones in the sense of having felt that I as an
advocate made a difference involved another pharmaceutical company.
Sometime in the 1970s, what was then the GAO, the General Accounting
Office, now it’s I believe the General Accountability Office, was trying to
investigate pricing of pharmaceuticals. Another issue that is as current as
today’s headlines, price gouging by pharmaceutical companies, Big
Pharma, the research companies. The GAO was demanding that
companies provide cost information, and the companies viewed this as
highly sensitive trade secrets kind of information. One of the controller
generals, I forgot which side sued the other. This all happened before I got
involved. There was a litigation in several different districts and thus in
several different circuits brought by five different pharmaceutical
companies versus the GAO opposing access to these cost records.
The Supreme Court took one of the cases, and it had gone against
the pharmaceutical company. The Supreme Court affirmed the decision by
a 4-4 vote, so “affirmed by an equally divided court.”
Simultaneously with that announcement of the 4-4 decision, the
Court granted cert in another identical case. I was then retained by another
drug company, Merck, to represent them in the Supreme Court. We183
briefed the case, and I argued it. A year after the Court had split 4-4 on an
identical set of legal issues and facts, the Court decided in my favor by a
7-2 vote. Not only did I pick up the new Justice, I don’t remember who it
was, but two of the Justices changed their minds. I thought that was about
the best indication that lawyering can make a difference. In many
situations, it doesn’t. The result is fore-ordained, and you could have
Daffy Duck do the oral argument, and the case would come out however it
was going to come out even with Clarence Darrow or Daniel Webster.
That was one where I think it did make a difference.
I argued a couple of other cases. At least one for Northwest
Airlines. I argued a case that the court ultimately dismissed as
improvidently granted, which was fine since we were the respondent. I
was doing that Supreme Court work, and doing lobbying, and doing
garden variety litigation and supervising and recruiting. I spent a lot of
time on the road recruiting for entry-level positions at the firm and then
trying to take in lateral partners.
One of the lateral partners I took in was another former Leventhal
clerk, Cal Collier, who had been chairman of the Federal Trade
Commission during the Reagan years. He was just a year or two behind
me so I’d known both him and his wife for many years.
I brought in somebody from the Justice Department who was an
aviation accident lawyer in the torts branch of the Civil Division, one of
the most flamboyant people I’ve ever known. Even though he was a184
Justice Department lawyer, somehow or other, because of the books he
wrote, he drove a red Ferrari or Corvette or some high-level sports car
with his own vanity license plates 4TRIALS. He had a big house out in
McLean. He was maybe a GS-15 in the Justice Department. He knew
everybody in the aviation accident industry. I went with him to London to
visit the Lloyd’s Syndicates, which would be a source of aviation accident
litigation for him at the trial level.
One of the cases I argued in the Supreme Court, again somewhat
controversial, involved the so-called government contractor defense. The
issue is, when a company is manufacturing something for the military and
it turns out that there’s a problem with it and it causes an injury, is the
manufacturer of this military product liable for tort damages.
The specific case that I had and for which my wife to this day has
never forgiven me involved a military helicopter made by Sikorsky
Helicopters. It was a CH-53 helicopter. Lieutenant Boyle of the United
States Marine Corps was flying this helicopter off an aircraft carrier in the
Pacific, and it crashed and sea. Lieutenant Boyle drowned because the
hatch for escaping from the helicopter was designed to open outward.
With sea water pressing against the hatch, there was no way for Lieutenant
Boyle to escape. His family brought a lawsuit claiming negligence in the
design of this helicopter to have a hatch opening outward rather than
inward. The specifications for the helicopter provided by the United States
Navy called for a hatch with a certain configuration which was in this case185
to be able to be opened inward, which would be a lot safer if you’re crash-
landing on land apparently. The issue was, can the manufacturer be
blamed for following the specifications ordained by the military. This has
enormous consequences. It applies to Agent Orange. It applies to almost
anything the military makes, airplanes, tanks, weapons of all sorts,
uniforms. It’s applied to people who are breathing in asbestos and so forth.
So the issue was, is there such a defense as a so-called military contractor
defense. Naturally on behalf of Sikorsky and United Technologies, its
parent company, we argued that there is such a defense.
I had to reargue that case because Justice Scalia wanted to have the
case reargued and re-briefed on the issue of the capacity of the federal
courts to recognize such a defense. The issue as he saw it was that this
sounds like a law-making function. Is it proper for the courts to decide
whether there should be such a defense or is this simply a matter of
statutory policy-making that Congress ought to make. So I had to argue
that one twice.
Sadly for Lieutenant Boyle’s family, and sadly for my relationship
with my wife, we won the case, and the government contractor defense is
an essential element of federal tort law to this day. It has the practical
effect, of course, of denying some injured people, some benefits, although
on that one I had to content myself with the position that I was taking,
there are other benefits that are provided for people who are injured in the186
armed forces, who suffer injury that’s related to the performance of their
functions.
So those were the kinds of things that I was doing for fourteen
years as the head of the Washington office at Hughes Hubbard.
MS. JOHNSON: Let me follow up on that enormously consequential case just to ask, you
may have said it and I didn’t catch it, the name of the flashy sports-car
driving gentleman you recruited out of the Civil Division of the Justice
Department into your law firm?
MR. LACOVARA: Mark Dombroff.
MS. JOHNSON: He wrote books about his cases or fiction books?
MR. LACOVARA: He wrote books about methodology. They were basically practice manuals
and he had a major legal publisher publishing these things. I guess he must
have gotten large enough advances or royalties to have managed to have a
pretty nice lifestyle. His travels while still in the government led him to
meet a very attractive stewardess on one of his flights, and she was his
wife when we knew him.
MS. JOHNSON: When did you start to get the itch about leaving this place that had been
very good to you financially and otherwise for a long, long time?
MR. LACOVARA: I would say a couple of things were happening at this point that are
necessary in order to answer the question. I didn’t really get an itch myself
until shortly before I left, which was 1988. This was the Reagan years in
the 1980s. We have not gone into any of the things that relate to the
Reagan years or my involvement with the Reagan administration or how I187
am responsible single-handedly for making Rudy Giuliani. I can go into
those if you’re interested. There was a bit of disquiet on my wife’s part
more than mine with Washington, with how it had evolved. She was at the
time a family therapist, and if you have read about this, this is long before
your time, one of the great themes of the Reagan Republican
administration was that it was family friendly, and this was the family
values era. It was before abortion became the kind of issue it is today in
the aftermath of the latest Supreme Court decision, but abortion was still
an issue but not as high-level as it is now because the Supreme Court ten
years earlier seemed to settle it. But there was a lot of emphasis on family
values, and I suppose it was designed to serve as a counterpoint to the
licentiousness of the left as people on the right saw it.
So in the midst of this climate of supposed concern for good,
healthy, wholesome family values, my wife was seeing patients, typically
teenage daughters, but some wives, of senior people in the government,
and without betraying professional confidences, she would regularly talk
about the hypocrisy that she was being forced to confront with the wives
and children of the wholesome family values politicians. So for her, the
disconnect, the cognitive dissonance between what was supposedly the
climate of the Washington establishment and what she was seeing in the
real-world behavior of these people, was becoming a bit of a strain for her,
and she was getting frustrated.188
At about that time, or at a point in 1988, a person I’d known
slightly in Washington, a man named Ben Heineman contacted me. Ben
had been a partner at Sidley Austin, a very smart guy who had been a
Supreme Court law clerk, I think he may have been editor in chief of the
Yale Law Journal, Ben had been recruited to go to work as general
counsel at General Electric Company working for Jack Welch who then
was viewed as the corporate manager of the century, or at least of the half
century. History has not judged him quite as well as commentators viewed
him at the time that Ben went there and that I went there. Ben sent a note
around to a number of people in Washington saying he was looking for
somebody to join him to be responsible for worldwide litigation. He also
was going to hire somebody to head tax planning, and it was going to be
like a small law firm. The three of us were going to be like partners
together in this venture. He asked whether there was anybody I could
suggest for the job. I must say I’m sure he wrote to a lot of people with the
exact same inquiry. I wrote back or called him up and said, this sounds
like an interesting job, GE is a great company, do you think it would be
something suitable for me. He said it sounds like a great idea. Come up
and meet with Jack. I met with Welch, and the rest is history. I said yes,
this is great. We’re going to pick up stakes and move from Washington to
Connecticut.
Corporate life, at least at GE at that time, was something that was
otherworldly. It was like being carried around in a sedan chair. I had a189
factotum assigned to me to make everything work, including selling our
house and getting everything arranged and getting possible places for us to
live. It was the kind of lifestyle which a humble country lawyer in
Washington was not accustomed to.
I had an interesting time at GE. Not surprisingly, it didn’t work and
really couldn’t work as Ben had originally designed it because he was the
general counsel. He was a senior vice president. I was vice president and
senior counsel for litigation and legal policy. The other lawyer that he
brought in, John Samuels, who was a partner at Dewey Ballantine, I think.
John went up as vice president for tax matters. In any corporate
environment, there’s a pyramidal structure. There’s the chairman and
CEO, and Ben reported to him. Although I had a so-called dotted line to
Welch on litigation, I was a direct report to Ben, so while I had a number
of direct contacts with Welch, I had to make sure that Ben who was
technically my boss was in the loop.
The issues that I was working on were fascinating, and GE at the
time was the largest company in the world and had what Ben accurately
called the biggest playpen in the world to play in. GE’s operations ranged
from nuclear energy on one end through aircraft engines, locomotives. GE
had acquired RCA, so it had the entire defense establishment business of
the old RCA. It owned NBC. It had insurance companies, and it had GE
Capital, which at that point was financing most of the world, and it had
lots of international corporations. Any conceivable kind of legal issue that190
a practicing lawyer might have the remotest opportunity to become
involved in was right there as part of the GE universe. As the vice
president in charge of worldwide litigation, I got to decide which things I
wanted most to pay attention to as long as I was accountable for the things
that I wasn’t paying as much attention to. It was a great playpen. It
ultimately came undone. That may not be exactly the right way to put it,
but if you want me to fast forward, I can go through that two years.
That was when I left Hughes Hubbard and worked at GE. Before
going to Hughes Hubbard back in 1974 another option was to join Nino
Scalia. I may have mentioned to you the reason I didn’t go to work with
Scalia when he asked me. Did we talk about this at all?
MS. JOHNSON: No.
MR. LACOVARA: When I was leaving the Watergate prosecutor’s office in 1974, Scalia,
who was head of the Office of Legal Counsel, asked me to come in as his
deputy, as deputy assistant attorney general for the Office of Legal
Counsel. I said to him I’m not taking any deputy jobs anymore. I had a
level of responsibility as counsel to the Watergate special prosecutor. I’ve
just come off arguing the Nixon tapes case. So I was feeling kind of full of
myself at the time. That was the same attitude I had that led me to turn
down the job at the beginning of the Reagan administration. This is how I
made Rudy Giuliani. When Reagan came in in 1981, I was asked to go
over to meet with Ed Schmaltz at his White & Case office. He was to be
the new deputy attorney general in the Reagan Justice Department, and he191
asked whether I would be willing to accept the position of associate
attorney general, which was the number three position at Justice. I told
him I appreciated that offer, but I didn’t think that that was a job that
ought to exist. It was a newly created position. I said I think that it just
introduces another level of insulation between the attorney general and the
heads of the operating divisions, and it just seems too bureaucratic a
position, so thank you, but no thanks. This is where my perspicacity once
again could be called into question. I said nobody who takes that job will
ever be heard from again. The next thing I heard, they offered it to Rudy
Giuliani who was at that point a kind of obscure assistant US attorney in
New York. Rudy took the job and managed to parlay it into a high-
visibility job. Because of his high-visibility job, he got himself appointed
United States Attorney in New York where he became a high-visibility US
attorney with his own PR people.
Footnote here, my dear friend John Martin, who was a US attorney
in New York before Rudy, would for years afterwards introduce himself
as the United States Attorney in New York before television, which was
his way of distinguishing himself from Rudy.
Further footnote about Rudy and how I feel myself responsible for
making him America’s mayor and whatever he became thereafter. Later in
the 1990s, by that point I was back in New York after leaving GE, I don’t
remember why it was, but I was asked to do the debate prep for the
woman running against Rudy for Mayor of New York. She was a City192
Councilwoman named Ruth Messinger. New York was basically a
democratic city. Rudy was going to be running as a Republican. Ruth
Messenger, as the City Council president, a senior position elected city-
wide in New York, was thought to have a good shot at it. I was asked
whether I would stand in in a mock debate or a series of mock debates
playing Rudy Giuliani so that she would be prepared to deal with Rudy
across the debate stage. I remember being as nasty and aggressive and
condescending and confrontational as I knew by this time Rudy to be. I
guess I didn’t prepare her well enough because Rudy got elected, or re-
elected, and that was 1997. As a result, Rudy was the Mayor of New York
on 9/11 which catapulted him into national and international fame. I think
he got an honorary knighthood from the Queen because of his role in
organizing New York in the aftermath of 9/11.
Those are interludes, but you asked about why I left Hughes
Hubbard and why I left GE. I left GE in part because I was chafing a little
bit at being the number two and having to report to Ben. Meanwhile, and
this an important part of my oral history, when we were in Washington,
we would go to parties, meet new people, and people would say to my
wife, you must be Phil Lacovara’s wife. We then moved to Connecticut,
and things shifted. My wife and I we were at a dinner party, a small party
with just six people organized by one of the other lawyers at GE. He was
much older than I but was not an officer. Because of his role in assigning
litigations over the years, he knew a lawyer in New York City by the name193
of Ira Millstein. Ira was the senior partner at Weil, Gotshal & Manges. The
six of us had dinner at the home of my friend, and Ira was there. We were
having a conversation, and I don’t remember what it was about, but the
next day I got a call, and it was Ira Millstein on the phone. I had met him
maybe once or twice before that. He said I don’t want to talk to you. I
want to talk to your wife. Ira said he was chairing a commission that had
just been appointed on the use and security of Central Park. This was in
the aftermath of the infamous rape of the jogger for which five young
black men were arrested and Donald Trump demanded that they be
executed. He still has not acknowledged that they were wrongfully
arrested. The political powers or the economic powers in New York
decided that something needed to be done about Central Park, and they
organized a commission. I think it may have had city blessing, and it
included on it some of the rich and powerful, including Donald Trump. Ira
said he needed somebody to be the executive director of this, to run it and
supervise whatever was going to come out of this whole enterprise, and he
said he decided there’s only one person in the world who could do this,
and he said that’s you, Madeline. He had met her just that one night. I
think I may have mentioned to you on another occasion, I once told Jack
Welch the only person I knew who could run GE besides him was my wife
Madeline, and apparently Ira concluded the same thing. To compress this
long story, this was the commission that really is responsible for the
regeneration of Central Park, which is now used from north to south by194
tens of thousands of people, almost completely safe space for black people
and white people and Hispanic people largely because of the efforts of this
commission that Madeline helped organize and administer and helped
develop the policy recommendations for. As a result of it, she met a lot of
the key players in New York, the key people in the investment banking
community, the real estate community, the Old Line 400 and so forth. So
for all the rest of our time in that part of the world when we would go to a
party, somebody would say to me oh, you must be Madeline Lacovara’s
husband. Our roles had completely inverted, and she was the prominent
well-connected figure in New York, and I was sort of the plus-one, the
opposite of the way that it had been in Washington where I was a minor
celebrity in the Washington community.
MS. JOHNSON: Amazing. I have just learned in the last several months the term trailing
spouse, which is used in the academy. It resonates in light of that
anecdote. I am going to propose that we end, and next time we’ll pick up
with a little more about Jack Welch and your marvelous spouse and then
get to Wall Street and Morgan Stanley if that works for you. And we can
track back with anything else about the Reagan administration that you
wanted to touch.
MR. LACOVARA: Sure. I’m trying to drag in some of these things simply because, to the
extent that anybody ever reads this transcript, they’re not going to be
interested in me, they’re going to be interested in what I know about195
people who are famous or people about whom other people might be
doing research.
MS. JOHNSON: I think you’re certainly interesting enough in your own right, but your
point is well taken with respect to the truly incredible number of situations
and personages you have encountered in your long career.196
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Tuesday, September 10,
2024. This is the seventh interview.
MS. JOHNSON: Philip, when we last spoke, you were telling me a little bit about the rather
larger-than-life person who was Jack Welch. I don’t know if you have
additional recollections of Jack Welch, but I’d be happy to hear them if
you do.
MR. LACOVARA: I liked Jack a lot. He was a feisty fellow, strong-willed, and he could make
grown men cry, maybe grown women too, although I never saw that. The
amazing thing about him, though, was that, as he said to me explicitly, if I
disagreed with something that he wanted to do or didn’t want to do, I
should tell him. What I found was he was willing to be backed off. He
appreciated, as he really put it, smart lawyers, and that’s the reason he
hired Ben Heineman to be his general counsel, and I think the reason that
he was comfortable hiring me because both of us were strong enough to be
able to push back on him. Jack was not a lawyer but was a very aggressive
businessman. I did find that if he got something in his head that seemed to
me just to be wrongheaded and if I told him why I thought it was wrong,
he would say from time to time okay, I’m not sure you’ve persuaded me,
but let’s do it your way. I think that’s the closest I ever came or saw him
come to admitting that he might have been wrong. He was willing at least
to say alright we’ll do it your way.197
There was one other incident which I found informative. We were
having lunch one day, and it was at a time that there had been a discovery
of a major issue in the GE appliance business. They had come out with a
new line of refrigerators with a new compressor. It turned out it worked
fine in most parts of the country, but in the Southwest, in the dry, hot
climates, the compressors apparently did not work efficiently, and they
tended to overheat as they were trying to dissipate the heat, which is the
way that a refrigerator compressor works I learned. There wasn’t enough
ability to dissipate the heat, so they failed. This was going to be a multi-
million-dollar loss for the company. I said to him, I assume that some
people are going to lose their jobs as a result of this mistake. He said
absolutely not. He said the last thing in the world I want to do is to send a
signal to people that if they make a mistake in good faith, they’re going to
lose their jobs. We want to be a company that innovates and makes
progress, and you have to be prepared to take risks, and if they turn out to
go awry, that’s just one of the costs of doing business. I thought that that
was different from the image that people had of Neutron Jack, as they put
it. The man who could come in and take over a business and nothing
would be left standing but the buildings, not the people. And here he was
sensitive to the psychology of operating a business that has its primary
goal moving forward with novel ideas and new technologies.
MS. JOHNSON: It’s so interesting in part because of the many companies that following in
GE’s wake and got in a lot of trouble in the decades after your tenure at198
GE. They seem to have something in common, which is that chief
executives did not want to hear bad news, and they didn’t want to listen to
the gatekeepers.
MR. LACOVARA: Yes. The reason GE got in trouble was different, and it basically I would
say was more in a way of creative bookkeeping, not in an unlawful sense,
but GE had as one of its major financial engines a business called GE
Capital. It loaned money to an enormous range of businesses and actually
bought a lot of things which it would then lease back to businesses, and
that was the financial model, and it worked out pretty favorably for a lot of
tax reasons for both sides of the transaction.
I remember going to the Inaugural in 1989 I guess it was. It would
have been George H.W. Bush’s inauguration. I was riding in a limo with
the head of GE Capital going to the inauguration, and his wife and my
wife were teamed up in the same car. As we were going down
Pennsylvania Avenue, there was a whole line of port-a-potties because of
the crowds that were expected for Inauguration Day. Gary Wendt, the
head of GE Capital, pointed to them and said I, meaning I being GE
Capital, am the largest owner of port-a-potties in the world. And I thought
here you go. This is GE, the company that owns the most sophisticated
nuclear medicine and exotic defense businesses, and yet GE Capital is
“long” on port-a-potties. It was an illustration of the variety of things
going on at GE. In retrospect, it turned out that a lot of the things that
GE Capital was doing in order to show paper profits turned out to be199
somewhat inflated or more financial engineering than hard assets, and
that’s why GE ultimately fell into disfavor and almost went bankrupt in
the 2008 collapse and has now been thrown out of the Dow Jones 30, even
though it was an original member of the Dow Jones.
At the time, Jack Welch was regarded as the greatest manager of
the 20th Century, and then as it was noted after he became involved with
another person, a somewhat younger woman, he went from being the
world’s best manager to being the world’s biggest disappointment.
MS. JOHNSON: Susie was her name.
MR. LACOVARA: Yes indeed.
MS. JOHNSON: I want to go back a moment in time just to make sure I’ve captured your
recollections of some key figures in the Reagan era, especially the man
who went on to become Justice Scalia. We talked earlier about how the
two of you attended the same high school, military prep school, and how
he had offered you a job in the Office of Legal Counsel which you turned
down because you were no longer a deputy or a staffer. Is there anything
else you wanted to share about that relationship in particular?
MR. LACOVARA: We maintained, I would say, a cordial friendship. We were not intimate
friends. I wouldn’t want to be presumptuous in that way, but we did know
each other. We did see each other from time to time. I did a couple of
mock oral arguments for the Supreme Court Historical Society, for
example, and Nino presided at one or two of those in the Supreme Court
chamber. There was also one that was sponsored by the New York200
Historical Society, and I went up against a law professor from Duke,
Walter Dellinger. We were doing one of the war powers cases, and Nino
was invited to come to that as well. He had been estranged from the high
school that we both attended, a military high school called Xavier High
School in New York City run by Jesuits. It had had a military feature
going back to before the Civil War, so the students were cadets and wore
uniforms. Nino was very intense in his notion that the military feature at
Xavier was essential to the quality of the education.
During the Vietnam War when everything military went out of
favor in some quarters, and some people might say in the trendy quarters,
Xavier dropped the compulsory military feature so that participation in the
regimen became optional. He regarded that as a betrayal, and I think
betrayal is not too strong a word because he insisted that he would have
nothing further to do with the school after that, even though they viewed
him aptly enough as the most distinguished graduate, certainly in recent
decades.
At this event at the New York Historical Society, the president of
the school, a lay person, brought a bunch of cadets in uniform to attend the
argument at this grand hall at the New York Historical Society on Central
Park West. I brought Justice Scalia over to meet with them, and they had a
pleasant enough exchange. One of the cadets, a cadet colonel actually as I
understood it later, wrote to Justice Scalia thanking him for being there,
and they maintained a correspondence. Scalia was then invited back to201
Xavier and went back and there was a rapprochement. By the time he
died, there was a reestablishment of a favorable relationship so much so
that shortly after he died, during a renovation of the school, they got
permission from his wife to name a conference center the Scalia
Conference Center. I was invited to be the speaker at the event at which
they dedicated that conference. So Scalia went 180 degrees around I guess
and came back to being a son of Xavier.
MS. JOHNSON: Whereas you were always a son of Xavier and proud to be described as
such?
MR. LACOVARA: I am true blue, or true maroon and blue, which are the school colors.
Maroon and blue will see you through. We’ll fight for you.
MS. JOHNSON: I love it. You know every word. You have talked with great vibrancy
about your job with the NYPD, the New York Police Department. But
there was another scenario in your life where you might have once again
had a badge, and it involved this idea of you becoming the FBI director.
Can you describe how that came about.
MR. LACOVARA: As remarkable as it may seem, this is still in the 1970s, the late 1970s. The
FBI, of course, had had a rather checkered career thanks to J. Edgar
Hoover and then the immediate aftermath of Hoover. I remember Hoover
had an office down the hall from mine on the fifth floor of the Justice
Department, and I would see him every once in a while walking kind of
stiff-legged between his two colleagues, Clyde Tolson and I forgot the202
name of his other partner. People are still speculating exactly about what
those relationships were, but that’s for another day.
Hoover by that time was at the end of his tenure, it was clear that
he had been more infamous than properly famous. For decades he had
cowed high-level politicians because of the information he had about
everybody both in government and in private life.
After Hoover left, the next couple of people who ran the FBI on a
short-term basis got themselves in trouble, including during the Watergate
escapades when they were not turning square corners. L. Patrick Gray was
one of those people. I don’t remember whether he wound up getting
indicted. He may have, but he was certainly a controversial figure.
There was another interim director, somebody that I served on a
board with later. When President Carter came in, he wanted to go through
a process that would assure that the next FBI director would be a person of
great probity and judgment and all that sort of stuff, so he appointed a
commission that had six or eight or ten people on it, headed by the
chairman of DuPont, a man named Irving Shapiro. They put out a call. It
was basically anybody who thinks he could recommend somebody to be
the FBI director should write a recommendation. As I later learned, the
president of Columbia University put forward my name for this. They did
preliminary screening, and I wound up being among the ten semi-finalists
who were invited for interviews. It was all being done on a very hush hush
basis. The woman who was staffing them was somebody I knew from the203
Office of Legal Counsel when I had been there years earlier, a woman
named Mary Lawton. She was one of the great examples of the
professional civil service, a brilliant woman, totally dedicated, knew
everything about the kind of law that the Office of Legal Counsel focused
on. She was staffing this commission, and she said, you’ve been asked to
meet with the commission, but it’s all being done on a highly secret basis.
We can send a car for you.
They had a meeting room set up in a hotel somewhere in Foggy
Bottom. I can’t remember which one it was. We drove in through the
garage, so I wasn’t even supposed to go in through the front door. I went
up to an elevator, and I met with them. They had a chief counselor, a staff
director with the commission, another estimable character, Fritz Schwartz,
FAO Schwartz Jr., the scion of the famous department store. Fritz was
staffing this, and I don’t remember any of the other commissioners. I went
in there and one of the questions they asked me was what do you think is
the most important qualification that we should be looking for in the next
director of the FBI. I hesitated for a moment, and I said, “a good sense of
humor.” They were all started, understandably so. I don’t know whether
they thought I was being flippant or disrespectful, but Shapiro asked me
why do you give that answer. I said what I’ve found, and I’m sure you
gentlemen, because it was all men at the time, I’m sure what you
gentlemen have observed yourselves is that the FBI director, as shown by
Mr. Hoover, has an enormous amount of power, and in that scenario, and204
in my recent experience, what I’ve seen is people who have a lot of power
tend to take themselves too seriously and think that whatever is good for
them is good for the country. And I said, I think what you want to have is
somebody who doesn’t really take himself too seriously, in the sense that
he recognizes that he’s fallible and can laugh at himself, can admit that he
makes mistakes. That’s really what I was trying to sum up. They nodded
as if at least it was a plausible answer and it wasn’t intended to be
insulting.
The interview went on for a little while, and then I said, I
appreciate your consideration, but I think I should withdraw my
candidacy. I don’t think I should be going any further with this. Either
Shapiro or Fritz Schwarz said why not, and I said, and I remember this. I
said, because if you can’t come up with a better qualified person to run the
FBI than I am, then the country is in a hell of a shape.
As it turned out, they came up with two candidates whom they
recommended to Carter. He rejected both of them. When I saw the names
of the two, and I don’t know whether either of them is still alive, I kind of
doubt it. When I looked at the two candidates, I said to myself gee, the
country must be in a hell of a shape if that’s the two best people they could
come up with. So Carter rejected those. I think he appointed Frank
Johnson, a federal judge from Louisiana, as an interim FBI director, and
then they went back to the drawing board. I don’t think the commission
was reactivated.205
Anyway, that was my acquaintance with possibly being the
director of the FBI.
MS. JOHNSON: Sounds like no regrets on your end.
MR. LACOVARA: No. It would have been an interesting job, but I was truthful when I said I
didn’t think that I was the right person for the job. When I said to them the
answer that I gave, I said you’re obviously looking at people who are
smart, who are learned in one way or another, who have some
administrative skills, and that’s when I said, but what I think you really
need to be looking for is somebody with a sense of humor. That was the
ingredient that I thought they should be looking for, apart from all the
routine things, the obvious things, that they presumably screened for when
they were looking at resumes.
MS. JOHNSON: I don’t know if you’ve read the Beverly Gage biography of Hoover that
came out a year or two ago, but it certainly demonstrated the man had
absolutely no sense of humor.
MR. LACOVARA: No sense of humor. In my limited contact with him, I never saw him
smile. That may have been one of the inspirations for my response.
MS. JOHNSON: Should we talk now about your experience with the D.C. Bar?
MR. LACOVARA: I think it’s probably worthwhile mentioning a couple of other things from
the Reagan years. A person who I’d known who had actually been, I
believe, in the White House counsel’s office in the Nixon years as a very
junior staffer, a man named Richard “Dick” Hauser. Dick was a really
good guy. When President Reagan came in, Dick became deputy counsel206
to the President, and it was probably he who recommended me for an
appointment by Ronald Reagan to be the President’s representative on the
District of Columbia Judicial Nomination Commission. That’s kind of a
peculiar statute, and anybody who’s interested in the D.C. Circuit would
probably be familiar with it. It’s a multi-member commission with a
couple of members appointed by the mayor of D.C., the chairman of the
City Council, some community members, a judge from the United States
District Court, and then the President has one designee on the
Commission. The Commission’s responsibility is to come up with three
candidates for vacancies on the D.C. courts, and the President selects one
to nominate for a possible Senate confirmation. So I was the person
appointed to this role.
Unfortunately, when President Reagan appointed me, there was
already a person in place who had been appointed by Jimmy Carter, and
by statute, the President’s designee had a term of five years. The man who
was in place, a man named William Borders, did not want to leave. It’s a
non-compensation position. I guess he liked the idea of being a
presidential member of a federal commission. The President sent him a
letter saying, thank you very much for your service. You are hereby
removed. And I was given a wonderful commission, signed by the
Secretary of State General Haig and Ronald Reagan, the kind of thing that
I proudly had displayed for many years.207
In any event, Mr. Borders was not heading for the highways
gracefully. He filed a lawsuit in the United States District Court, William
Borders v. Ronald Reagan, Alexander Haig and Philip Lacovara. Reagan,
because he was the appointing authority, Haig because he countersigned
the commission, and Lacovara because I was the would-be successor.
It raised an interesting constitutional issue that Judge John Garrett
Penn resolved in favor of Mr. Borders saying that this kind of appointment
was the sort for which Congress could lawfully create tenure. Anybody
who’s interested in history will remember that Andrew Johnson was
impeached for violating the Tenure of Office Act for trying to remove
people from office whom Congress had tried to insulate from removal by a
president. This led to some constitutional decisions in the 1920s and 1930s
over the scope of the president’s power to remove people from various
kinds of positions, including cabinet positions and agencies. It would
come out very differently today. Anyway, Judge Penn said this is a five-
year term. Borders’s term has not expired, and Congress basically
guaranteed his tenure.
The case went to the D.C. Circuit. I was being represented by the
Justice Department along with my co-defendants Reagan and Haig. At that
point, Mr. Borders was implicated in a bribery scandal for bribing a
federal judge in Florida, a man named Alcee Hastings. At that point, Bill
Borders decided it was time to get going and he had other fish to fry. So208
he resigned, and I duly took office and continued to serve. Indeed, I served
out the balance of the term and was reappointed by Reagan.
If you care, I can tell you about why I resigned in protest in
conjunction with writing an editorial in The New York Times.
The footnote to the Borders/Hastings story is that Alcee Hastings
was impeached, and I believe removed, convicted, by the Senate after
being impeached, one of the few federal judges impeached and removed.
Then politics being politics, he went on to win election to Congress and
served several terms in Congress despite having been removed from office
as a federal judge on the grounds of corruption. But that’s politics for you.
I left that position after being reappointed when I was getting some
mentions when there were impending vacancies for the Supreme Court. I
got at least one mention in the Legal Times and a couple mentions in other
places as among the people who might possibly be candidates for the
Supreme Court or certainly the D.C. Circuit. That was well within reach, it
was thought. But I was told by people in the White House that in order to
demonstrate my bona fides, even though I’d been a life-long Republican, I
had after all been involved in investigating Richard Nixon, so there were a
lot of people who were suspicious of me, people who counted who were
suspicious of me. So, it was said, what you really should do is join the
Federalist Society. We’re talking about the mid-1980s. It’s forty years
ago. At that point, very few people had heard of the Federalist Society.
Today, of course, it’s on the lips of anybody who studies politics,209
especially judicial politics. I said I probably agree with almost everything
they stand for. Indeed, I’m pro-life. I think Roe versus Wade was wrongly
decided as a constitutional matter. But I don’t think it’s right to apply any
sort of litmus test to anybody, and I don’t think you should have to join a
particular political organization in order to demonstrate that you’re
qualified to be a judge. So I resigned from the Judicial Nomination
Commission, and I wrote an Op-Ed that was published in The New York
Times called “the wrong way to pick judges.” I explained that I was
concerned about the increasing use of litmus tests on both sides in
screening people for judgeships, that I thought that was essentially
corrosive, and all it was going to do was force the judiciary to the
extremes.
I would say that I had not thought I was as prescient as I turned out
to be. This was a year or so before Bob Bork. The Bork confirmation
hearings was the critical turning point in the nature of the federal judiciary
because since that time, both sides have been applying very fine litmus
tests, largely on the subject of abortion, but there are some other issues.
You’re either in or you’re out. It’s not relevant how smart you are, how
honest you are, how experienced you are, how wise you are, or whatever.
You’re either in or you’re out, and you’re in or you’re out because of your
views on this one issue or maybe two or three crucial issues. I think things
have gone downhill in terms of the staffing of the federal judiciary
including the Supreme Court of the United States since then.210
So that was the end of my prospects for a judicial career. My wife
regularly reminds me how wise I was, because she says, every time she
hears about the Supreme Court, I would have been as miserable as any
human being could ever be, had I been serving on the Supreme Court. I
think she’s probably right because I don’t think I have the tolerance or the
patience that Elena Kagan has, for example.
Anyway, that’s my nodding acquaintance with both the FBI and a
possible career in the federal judiciary.
MS. JOHNSON: You had told me in one of our earlier sessions, since you brought up the
Bork nomination, that you had actually written a letter in support of Bork I
think, and I wonder if you could explain how that came to be.
MR. LACOVARA: When Bob Bork was nominated, he, of course, was controversial for two
reasons. One was he was quite evidently an extreme conservative, and that
made him a persona non grata to the Democrats or the left, however you
want to define it. But one of the ways that people could conceal or at least
obscure a political partisan or ideological basis for opposing him was to
taint him with the Watergate Saturday Night Massacre brush. It could have
been or was, in the minds of some, a fair criticism. He had made a
decision, which the attorney general and deputy attorney general were not
willing to make. I was asked if I would sign a letter or send a letter on his
behalf supporting him, and I said I was happy to do that, because I thought
he was qualified according to my standards for appointment to the
Supreme Court. The president gets to select people. That’s the way the211
process works, subject to Senate confirmation. Footnote aside here, for the
most part, nominations to the Supreme Court were not controversial. If
people had careers in public life that were otherwise distinguished,
regardless of their partisan identification or their political ideology, the
Senate tended to confirm them. And that was true with the minor
exceptions of Louis D. Brandeis because he was Jewish and Thurgood
Marshall because he was Black, where there was a bit more of a wrinkle.
But for the most part, judicial nominees selected by the president were
affirmed as long as they had the necessary academic and experiential
qualification.
Bork in my view easily satisfied that set of criteria. I said to the
Senate in my letter that, when I called Bork the night of the Saturday
Night Massacre, he explained to me why he thought it was the
constitutionally legitimate and practically appropriate thing to do to
execute the order from the president to fire Cox. I disagreed with him at
the time, but he presented it in a way that seemed to be me to be honest
and honorable, and I did not view that as any basis for viewing him as
disqualified to serve as a justice on the Supreme Court. To the contrary, I
said he’s a serious person and is otherwise an honorable man and I did not
regard what he did as dishonorable. Even if I disagreed with the judgment,
it was well within the bounds of reason as he explained his motivations at
the time and which I took as of the date of his nomination at face value.212
MS. JOHNSON: Thank you for that. I took you on a slight detour. You were going
somewhere else before I asked about your Bork letter.
MR. LACOVARA: Not a detour at all because Bob Bork of course was serving on the D.C.
Circuit at the time and so anyone who’s interested in the oral history
relating to the District of Columbia Circuit might be interested in the
career path that Robert Heron Bork followed before and after the D.C.
Circuit.
I was going to mention one other thing that came up while I was in
Washington. I was approached by a private counsel for the governor of
Alaska, a man named William Sheffield, Bill Sheffield, who was the
subject of a threatened impeachment by the Alaska Senate. What was
interesting about the background for that was that the impending
impeachment proceedings grew out of a grand jury investigation in Alaska
that had been conducted by a special attorney selected by the Alaska
attorney general’s office, a colleague of mine from the Watergate special
prosecutor’s office, George Frampton. The Senate Republicans, who were
in charge of the committee, had appointed as their special counsel to press
the impeachment charges against the governor Sam Dash who had been
the chief counsel for the Senate Ervin Committee, the so-called Senate
Select Committee on President Campaign Activities, which had done so
much of the groundwork in exploring the Watergate break-in and the
aftermath. Sam Dash was a daily figure on national television sitting next213
to Sam Ervin, with his big black glasses and his very I guess New York or
New Jersey accent examining and cross-examining witnesses.
I was asked whether I would consider representing the governor in
these proceedings which would require going up to Juneau, Alaska,
making a number of trips, and then if the proceedings went forward,
representing the governor in the proceedings. I said, gee, this is too good
to be true. It’s like getting the band back together again but not in quite the
same configuration.
So I went up there, and I met with Governor Sheffield and what a
fascinating character. He died just maybe two years ago, well into his 90s.
I was even invited to his 90th birthday a couple of years ago. He had
become quite wealthy, but he had started out as I think a Hoover, or
maybe it was Sears, vacuum cleaner salesman. His territory was the
Pacific Northwest, Idaho, Montana, Washington State, and Alaska. He had
gone out to Alaska in the territorial days, so this gives you a sense of the
history of the area before 1959 when Alaska became a state. So he was up
there wandering around going from native villages to native villages
seeing who would want a vacuum or other appliances that you might be
able to get through the Sears catalog, and he thought Alaska had some real
possibilities. He began buying up land, and he became quite wealthy. At
one point, in fact while I was up there, he owned what was then the best
hotel in Anchorage, the Captain Cook. In fact, I stayed there when I was
with my family on a family trip on a cruise probably five years ago. The214
Captain Cook Hotel is still there, still a fine hotel in Anchorage. Anyway,
I went to Juneau, and this is shortly after the territorial days. Juneau was
still kind of a ramshackle town, isolated and still accessible only by ship or
air, and there were no roads into Juneau from anywhere outside the
immediate area so we had to fly in. It was like a muddy frontier town is
the way I would describe it.
Just a little anecdote. The governor was I think basically an honest
man but a little naïve. I would say innocent in the sense of that
implication, and I don’t mean innocent versus guilty. I mean innocent
versus sophisticated. Some of his friends were not quite as innocent, and at
one point, when I was up there for the hearings, my wife came up and she
was, as she still is, charming and attractive. She met with some of the
governor’s friends at some of the evening events that we went to. At one
point I saw she had come back with a very nicely carved what I guess was
a walnut ivory bracelet and explained who had given it to her, one of the
governor’s cronies. The governor’s chief of staff said you know who he is.
He runs the brothels here in Juneau. Both Madeline and I thought that was
kind of a charming little aside, but that’s the way it was in Juneau at the
time in the mid-1980s.
Footnote here. I went back there, as I mentioned, with my family
four or five years ago, and Juneau is now a city, completely different with
the advent of tourist ships, which were not a significant element forty
years earlier. Juneau is all spruced up, and there are lots of touristy things,215
neat and clean, at least on the surface. Whereas when I was there for the
impeachment proceedings, it was a much more robust kind of honky-tonk
large-scale village.
In any event, I used some of my colleagues from my Hughes
Hubbard office, and we did a lot of research and found out there really
wasn’t much law on impeachment of governors. As far as we could tell,
there hadn’t been a gubernatorial impeachment anywhere in the country
since the 1920s so we were essentially making it up as we went. We
borrowed from some state precedents; we borrowed from some federal
practice and tried to explain what the governing standards ought to be. The
basic allegations were that the governor had been improperly influenced in
awarding government contracts, kind of an everyday allegation of
government corruption. Lots of state governors since then have gone to
prison for doing things that were suspected or alleged.
I remember one exchange that is always brought to mind when I
hear on the news a prosecutor explaining to a jury the analogy that should
make them comfortable finding guilt on the basis of circumstantial
evidence. It’s the old adage that if you’re going outside and you see that
there are people walking around with umbrellas and the street is wet and
it’s cloudy, you may not see that it’s rained, but it certainly would be
reasonable for you to infer from the circumstances that it just rained and
therefore you should convict. This analogy is used every day in criminal
courtrooms.216
Sam Dash used this analogy to try to convince the Senate that they
should convict Governor Sheffield on the basis of circumstantial evidence
about the awarding of these contracts. I said, yes, you certainly could infer
that it rained, but I don’t know whether you have these things here, but I
know back in the cities where I come from, sometimes you’ve got a
sanitation truck, it’s a big truck that comes along with water to go along
the streets and wash down the streets. I said it’s just as possible that right
before you went outside, and you might have seen people carrying
umbrellas and the street might be wet, but if you inferred, after that truck
had gone by spraying down the roadway that it had rained, you’d be
wrong.
They voted 9-11 against the governor, but they needed a majority
to impeach, and he was acquitted by a close vote, but nevertheless was
acquitted.
We had kind of a celebratory party afterwards, and I decided to
give a parting gift. I went to an antique store, and I got a big circular horn,
the kind of air horn that they used to have on the side of automobiles in the
old horse-and-buggy days, and I wrote a little note saying, if you ever
need my help again, governor, just sound the horn. He remembered that
and wrote to me a number of times afterwards saying that he was glad he
didn’t need to blow the horn anymore.
MS. JOHNSON: Splendid. Should we go to the D.C. Bar now and then take a break for the
day?217
MR. LACOVARA: Sure. In the late 1980s, I had been involved in the D.C. Bar for a number
of years. I had served on the Board of Governors. I had served as chairman
of the Code Committee of the D.C. Bar Ethics Committee. I was serving
as the volunteer general counsel of the bar and decided to put my hat in
contention to run for president-elect, which is the way the process works. I
was elected in 1987 as president-elect, and that meant that I would serve in
that role at the elbow of the president of the bar for that year, and then I
would automatically become the president as of July 1, 1988.
The president at that time was a wonderful lawyer from Steptoe
and Johnson. Bob Jordan. In the interim, as I mentioned, I was asked to go
to GE, which would involve moving out of Washington to Fairfield
County, Connecticut. No Bar president had ever been either elected from
outside of Washington, D.C. or been outside of Washington, D.C. during
his term, so the immediate question was whether or not I should resign and
just let the next candidate in line take over the position. I talked to a
number of people about it, and indeed I spoke to Jack Welch about it
during my interview with him. I said I’ve got this role that I’ve been
elected to serve in Washington, and I would like to do that, if at all
possible, but I realize that my primary responsibility will be to GE. One of
the reasons I became so fond of him was he said no, you should do this.
You took on an obligation. He said it would be helpful for you to maintain
your connections with Washington, and indeed, GE has a lot of
connections in Washington and therefore, this should be easy for you. He218
said you can take the time that you need to do it because I have confidence
that you can get it all done.
The principal opponent to my service was a person who remains a
very good friend of mine, now a federal judge, Paul Friedman. Paul and I
had worked together during the Watergate years, and I think he went into
the SG’s Office after that. Paul thought this was a terrible idea. He became
Bar president a couple of years after I was there. He thought it was a
terrible idea and there was no way I could possibly devote enough time to
the job if I was not only working full time for a major company but was
300 miles away from Washington. I told him that I thought I could get the
job done, and I would do whatever was necessary to get it done. So I
stayed, did the job, commuted regularly to Washington, so much so that
when I left, the little caricature that the Bar commissioned for me is a
picture of me sitting on the Eastern Airline shuttle surrounded by loose-
leaf binders marked D.C. Bar with a telephone in my hand and a
stewardess saying “oh Mr. Lacovara, it’s the D.C. Bar calling. They need
you to turn the plane around to get back to Washington.”
One little anecdote. One of the aspects of being a headquarters
officer at GE was that I had the ability to requisition a private jet, part of
the GE fleet, and since this was considered kind of quasi-official, it would
have been possible for me to have used the GE planes to go back and forth
to Washington, which would have been a lot easier than going from
Fairfield County down to LaGuardia and waiting on line at the Eastern219
shuttle to get to Washington and waiting for the shuttle back. Quite
consciously, I said to myself, do not do that. Some day you may leave GE,
and you will have to go back to standing in line like mere mortals. It was a
bit of self-discipline, which I’m glad that I was able to assert. I stayed at
GE about two years, and during this time when a lot of my colleagues
were using corporate planes to do a lot of things that were kind of quasi-
official, I took a car down to LaGuardia and waited online like everybody
else and took the shuttle and got hemmed in my middle seats as often as
anything else, even though I was a person who could have avoided the hoi
polloi and behaved like a senior corporate executive. It turned out to have
been wise because for the balance of my life, I’ve had to wait on lines like
everybody else. So that little bit of self-discipline turned out to have been
a wise bit of restraint.
MS. JOHNSON: Two follow-ups. One is the level of interest and column inches devoted to
this so-called controversy over your living in Connecticut and presiding
over the D.C. Bar in Washington. The legal press seemed preoccupied
with it, and I wonder if that just rolled off your back or what your reaction
was in the moment.
MR. LACOVARA: I would say that I was not surprised. I was more disappointed that the
people who were willing to support or encourage me were not as
outspoken as the persons who were critical. I guess even at the time it
shouldn’t have been surprising because it was a no-win proposition for
people to support me. If I failed terribly, they didn’t want to be tarred with220
my failure, whereas if I was able to do it, as I think I did, there really
wasn’t much upside for anybody. So that was the part that was surprising.
I don’t know that the larger community really cared very much, but
the people who care about the D.C. Bar cared a lot about it. I think we just
had the 75th anniversary of the creation of the D.C. Bar. I think it’s in that
range. I am still the only person ever elected to serve as president of the
D.C. Bar who was either not in D.C. when elected or served his term
outside of D.C. It’s been for the most part, not surprisingly, a kind of
inbred community even though far more members of the D.C. Bar are
non-residents of D.C. I think there are 100,000 members, and only a
fraction of those members are actually practicing in Washington.
MS. JOHNSON: Looking back on that tenure, the controversy seemed to get more attention
than any specific incident or initiative during your tenure. Are there any
things you want to highlight about your actual work in that year?
MR. LACOVARA: As with many of the people who have been bar president, the key was
trying to maintain support for the projects in the courts to serve the
underserved. That is, provide opportunities for defense of indigents. So
you’ve got a lot of effort being put into making sure that there are
adequate resources available for things like the Public Defender Service.
A footnote here. I was chair of the Public Defender Service for
several years while I was in Washington.
Another challenge was just trying to encourage, successfully I
think, more support for law firms for pro bono projects, and that’s221
something I continued many years later. Probably eight or nine years ago,
I was asked to create a new bar project for leadership. There’s now called
the John Payton Leadership Institute at the Bar. We named it for John
shortly after he died. I was asked to organize this as a way of getting
younger lawyers trained for leadership, not only in the bar directly, but
also for taking a greater role of leadership in the profession in the larger
sense. Even despite having gone off to other parts of the world, I remained
active with the D.C. Bar still trying to promote the same basic values that
being a lawyer is not a job, it’s a profession. And that includes public
responsibilities that are different from those of wage earners who can turn
off any thoughts about their jobs after they’ve punched out. Being a
lawyer involves a virtually lifetime commitment to something larger, and
that includes service to the poor and the underserved.
MS. JOHNSON: Thank you for that. Do you want to break now and then get into Morgan
Stanley and some of the mediation stuff next time, or are you able to go
another ten minutes or so?
MR. LACOVARA: I can go more time if you’ve got the time.
MS. JOHNSON: Yes. Let’s do Morgan Stanley and then break, and then I think there’ll be a
lot to talk about. In our earliest session, you talked about your dad, your
dad’s work as a lawyer, your dad’s aspirations, and when it came time for
you to leave GE and you were itching for something more, you wound up
at Morgan Stanley in the heart of Wall Street. What did that mean to you,
and what did it mean to the family?222
MR. LACOVARA: The genesis of the Morgan Stanley opportunity is interesting. I’ve
mentioned my wife a number of times in the course of our conversations. I
think I also mentioned that when we went to New York, or went to
Connecticut, my wife, thanks to a dinner party that Fritz Heimann, not to
be confused with Ben Heineman, at GE had arranged, we met with Ira
Millstein, the head of Weil Gotshal. Ira then recruited her to be the
director of a committee to do something about Central Park, something
that was enormously successful. On that committee were some of the rich
and powerful of New York. One of the people on the committee was a
man named Lewis Bernard. Lewis had been the first Jewish partner at
Morgan Stanley, which was itself notable. Lewis at the time was the chief
administrative officer of the firm. Morgan Stanley had just gone from
being a private partnership to being a public company, and Lewis had the
idea that Morgan Stanley should, as he put it, upgrade its general counsel’s
position because it was now not only undertaking the responsibilities of a
public company, but also needed to be a larger player in the public arena,
including especially Washington.
At some Central Park Committee meeting, Lewis apparently said
to Madeline, your husband is a lawyer, isn’t he? Yes, she said. I don’t
know whether he knew anything about my Watergate experience or
whatever, but she must have described my role at GE, my experience in
government, my Washington law firm experience. Lewis called and asked
me if I would like to talk to him about perhaps coming to work at Morgan223
Stanley as general counsel. I talked to him, and I liked him a lot, and I
kept saying no. I don’t want to do this. At some point, to be crass about it,
it was simply something that I couldn’t say no to.
MS. JOHNSON: An offer you couldn’t refuse.
MR. LACOVARA: He made me an offer that I could not refuse. That was at a time when
almost anything seemed reasonable. I was still reluctant because I loved
GE, and I loved the job that I had, and I loved working with Welch and
some of the other senior people. I was uncertain about whether I would
actually say yes, once I got an offer that was sufficiently tempting. I made
a tactical mistake, or maybe it was a Freudian way of abdicating
responsibility for having to make a decision. I told Ben, my nominal boss,
I’ve got this offer from Morgan Stanley to become the general counsel
there, and I’m uncertain what to do. The next thing, I got within minutes a
call from Jack Welch. Can you come over and see me. Okay. Jack
basically said, congratulations, good luck, I hope you’re really successful
there. As I reconstructed it, Ben felt that he had to let Welch know that I
was even considering this. I probably did not want that to have been the
way it unfolded. I was actually looking for a conversation rather than for a
fait accompli to be delivered. But anyway, Welch, having invested in me. I
didn’t mention how I was sent to INSEAD, the European institute of
business administration in Fontainebleau for the executive development
program. Welch had said you’re a smart lawyer, but if you want to go
further in the GE universe, you need to know more about business. That224
was also a fascinating experience. I think Welch may have felt that the
mere fact that I was even thinking about some other job meant that it was
not going to work any longer, so essentially the decision was made for me.
I then went to Morgan Stanley and took on a role there that
included being a member of the management committee, which was pretty
fun, and corporate secretary. I was a managing director, general counsel,
and member of the management committee, which consisted of six or
seven people from inside the firm, not including the outside board
members. It was a major position, and I had a lot of learning to do because
I had not been primarily a finance guy, and so I had to do a lot of catching
up. Included in my portfolio was government relations, so I oversaw the
government relations group, which was headed by a former Morgan
Stanley general counsel. So that was kind of an awkward situation, but the
man who had had that position and headed government relations while I
was there was extremely cooperative and very gracious and knew a lot of
people and was able to introduce me to a lot of people in Washington
whom I hadn’t known, including a young Chuck Schumer.
I don’t know whether I mentioned to you, but one of the things that
I admired so much about Schumer was that he had a gift that any politician
should have, and it’s the ability to remember names and connections. I
saw him occasionally while I was overseeing government relations for
Morgan Stanley because he was on the Financial Services Committee in
the House. He was in financial services. Years and years later, maybe ten225
years later, I was on an airplane walking down the aisle past him, and I
sort of looked at him and nodded, and he said, “Phil, how are you. I
haven’t seen you in a long time. How have you been.” He meets thousands
of people a year or more, but he remembered my name and remembered
my connection long after we had any dealings. I thought that was a great
insight into one of his qualifications to be the Senate Majority Leader in
2024.
The issues were quite interesting. It was an era of turmoil in the
financial services industry. A lot of competition was emerging. Banks
were recasting their own roles of the old depression era. Distinction
between commercial banking and investment banking was beginning to
blur. The reason that the House of Morgan had to split in the 1930s was
because of something called the Glass-Steagall Act, which was a kind of
pro-competitive financial regulatory measure that tried to distinguish
investment banking, where people are at least nominally using their own
money to make investments, from commercial banking, where banks are
lending other people’s money and having to take risks with other people’s
money rather than their own. By the time that I got to Morgan Stanley, this
was beginning to blur, and commercial banks were becoming bigger
players in the lending for capital markets purposes. There’s a major
distinction.
One of the things that I was put in charge of was strategic planning
for the firm. This was a major initiative trying to figure out during this226
time of transition who were Morgan Stanley’s likely competitors going to
be in the next five to ten years and what areas needed to be strengthened
and which not. So I organized a group of young managing directors,
figuring I could draw on their experiences and their hopes and their fears
to put together a strategic plan, which we did.
I did a few other things that I thought were useful. I deputized
specific members of my staff to be in charge of subject matter areas that
people throughout the firm could contact when they needed legal advice.
We did a summary of major legal concepts that everybody from top to
bottom in the firm needed to know about and then designated in an index
which persons to call for specific areas. We had this thing bound up. It
looked beautiful. I went to bring this directory or manual to the chairman
of the firm. Dick Fisher. It looked great all printed up. I went and I said,
Dick, this is something we’ve prepared. We’re going to be distributing it
as kind of a playbook or manual for everybody in the firm. He shook his
head and said, it looks awfully nice. He said, just tell me one thing. You
haven’t created a logo, have you? I said no. This was before Morgan
Stanley had a logo. He said, because I’ve noticed that the two signs of a
business in decline are first, when it changes its name for its personnel
department to human resources, and second, when it creates a logo. I said,
Dick, you don’t have to worry. No logo, although we have already
changed the name of personnel to human resources. Anyway, that was a
good run.227
MS. JOHNSON: Thank you so much. Let’s take a break for the day here. When we return,
I’m going to ask you about the movie posters that you showed your
classes that describe things like KoreaGate and ABSCAM, and we can
pick up maybe with a little more Morgan Stanley and then your experience
in arbitration and mediation if that makes sense to you. Does that sound
good?
MR. LACOVARA: We can go quickly through Mayer Brown. After I left Morgan Stanley, I
went to Mayer Brown. We can do the next twenty years pretty quickly.
MS. JOHNSON: Okay. That all sounds great to me.228
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Monday, September 16,
2024. This is the eighth interview.
MS. JOHNSON: When we left off, you were talking about your time at Morgan Stanley,
and you were going to tell me a little bit more about some assignments
you had throughout this period of your life that actually turned into films. I
wonder if you could talk about those assignments to start.
MR. LACOVARA: Over the course of my life, there were a number of experiences that I was
involved in that turned into movies. Of course, one was working with
Thurgood Marshall, but that was largely about his life, and I just
intersected with him.
The Watergate affair turned into a movie called All the President’s
Men. I don’t think I was featured as one of the characters in that, but when
they were speculating about whether I would have a role in that film, there
was talk about who would be the actor portraying me, and I, of course, had
visualized somebody like Paul Newman, but my wife thought it was more
likely it would be Oscar Homolka or some character actor of that sort.
During the police department days, I was involved with working
with Serpico. That was a movie made I guess in the late 1970s. There was
another film made about one of the characters with whom we were
working in the NYPD who was a source of information about police
corruption. That became a film called Prince of the City, which was also a229
film with at that point a second-tier actor, Treat Williams, not a first-tier
actor like Al Pacino who was in Serpico.
Then ABSCAM. I was counsel to the Senate ABSCAM
Committee, which was made into a film. I’m trying to remember. I think
there were eight or nine incidents in which I was directly involved, not in
the wrongdoing side, but in the investigative side that were turned into
film. There will probably be more that come to mind as we continue to
speak.
I was always insistent to note when somebody would come across
me and say, didn’t I hear about you in Watergate, I would be quick to say
yes, I was on the side that didn’t go to jail. There are people now much in
the media who have become quite notable as commentators, and they were
not always on the side that didn’t go to jail but nevertheless have become
well-regarded political pundits. So I like to make sure that people
understand, for good or ill, that I was on the side that was doing the
investigating rather than being the investigatee.
MS. JOHNSON: Philip, were you ever consulted in the writing or the making of these
films? Did you play a role behind the scenes in any way?
MR. LACOVARA: I was interviewed for a couple of the books that led to some of those
movies. Yes is the answer to that. I was most recently interviewed for
what is the latest book about Watergate written by my former law school
classmate and Watergate colleague, Jill Wine, then Jill Wine-Volner, now
Jill Wine-Banks. Within the last year or two, she wrote a book called230
Watergate Girl, which I thought was a particularly anti-feminist title. It
describes much of her experience in her professional career focusing, of
course, as the hook for encouraging people to buy the book on her role as
the only prominent woman in the Watergate Special Prosecutor’s Office.
She and her co-writer, or ghostwriter, chatted with me for a long time
trying to reconstruct some of the incidents in which we had both been
involved or which she may not have been personally involved but wanted
to feature in the book as part of the overall drama in which she did play a
role.
MS. JOHNSON: It seems to me that these films, these entertainment features, have also
been of use to you as you meet with younger generations of people,
particularly students, people who learn from you in the classroom or
elsewhere. How have you used that?
MR. LACOVARA: Indeed, that’s one of the things that I used as a thematic syllabus for some
lectures that I’ve given. I’ve had the opportunity to speak and lecture at
various colleges and universities around the country since Watergate about
Watergate experiences and other things that I’ve done, such as policing
and my work in the financial services sector and my experiences with
management at GE.
One of the things that I’ve done in connection with some lectures
that I gave to visiting students from England was to distribute a one-page
mockup with facsimiles of the various movies with which I had some
connection. Indeed, just to give them a sense of the history of my own231
experience, I started with a movie going back to the bad old days of the
Cold War. I used a poster from Dr. Strangelove, which made a black
humor comedic reference to the threat of nuclear war. I began explaining
my experience in Washington, noting that I came to Washington at really
the height of the Cold War when it was a realistic possibility that we all
might be incinerated by an exchange of nuclear missiles. I pointed out that
the Cuban Missile Crisis took place during the first week of our first son’s
life. My wife and I had just set up housekeeping. Our first child had
arrived. She had just come home from the hospital with him, and there
was President Kennedy going on television to proclaim the blockade
against further intrusion of Soviet missiles into Cuba. The country was
genuinely concerned that either by design or by accident there might be a
nuclear catastrophe, and Washington, of course, would have been one of
the primary objectives.
I’ve used that kind of historical depiction in film as a way of
threading my own experiences through life as a way of engaging students
to say, look at these things. They were important at the time not so much
because I was involved but because they had some broader significance to
some other people, and producers thought they were worth making films
about.
MS. JOHNSON: I wonder if you want to move to the period after you left Morgan Stanley
or you had additional thoughts about your experiences in the classroom?232
MR. LACOVARA: I would fast forward to my experiences teaching both at John Jay College
and at Hunter. This was while I was at Mayer Brown. After I left Morgan
Stanley, I joined the Mayer Brown firm, jointly resident in the New York
and Washington offices. I actually physically had offices in both of their
facilities in New York and Washington.
I also was involved in a variety of additional activities, including
teaching and lecturing. I taught a number of courses at John Jay College
with which I had connection twenty years earlier when I was in the
New York City Police Department. Just a word about John Jay. It was
originally started as an adjunct of the City University to provide
continuing education for police officers, and it grew into a full-fledged
autonomous college within the City University system, so much so that it
is now a fairly substantial part of the City University system. Only a tiny
fraction of its student body consists of police officers getting additional
education. Rather, it’s an entry-level college mainly of first-generation
Americans, first-time college students. I taught courses in constitutional
law, a basic constitutional law course, to undergraduates there.
A couple of years later, I was asked to teach at Hunter College,
which has long been an honors college in New York City. It’s also now
part of the City University system. I taught a couple of courses there. The
one that was the most relevant to current problems is a course on
presidential power in peace and war, something that makes me particularly
interested in the recent decision by the Supreme Court concocting, in my233
view, the notion that a president is immunized from responsibility for
committing federal crimes when he thinks he ought to be committing
federal crimes in order to be president. Or in the case of Donald Trump, in
order to try to stay being president.
I enjoyed teaching at the college level, teaching political science
courses. The college students tended to be more engaged in the ideas
being discussed, whereas when I was teaching in law school, there was a
bit more of the trade school orientation: I need to learn this in order to pass
the bar or to get a job.
I’ve actually kept in touch with a number of my former Hunter
College students. They were virtually all either minorities or from poor or
working-class families. I think in virtually every case, the first members of
their family or the first generation to go to college. A number of them
have gone on to things that are quite impressive. A Muslim woman
student from Lebanon has become very active and very successful in
international human rights. We’ve been keeping in touch. She works for
the United Nations in Geneva. Others have gone on to other things that
have made me quite proud of them, although it’s kind of presumptuous for
me to take pride in the students. They’ve done this on their own. Some
even have become lawyers.
MS. JOHNSON: Despite your guidance otherwise in some cases?
MR. LACOVARA: Sometimes.234
MS. JOHNSON: Fantastic. Tell me a little bit more about what drew you to Mayer Brown
and the kinds of things you did during your time there.
MR. LACOVARA: I went to Mayer Brown rather than returning to Hughes Hubbard, which
had been my prior incarnation several times, because it had a burgeoning,
at least a beginning, Supreme Court specialty practice. A fellow who had
been in the Solicitor General’s Office some years after me, Stephen
Shapiro, had gone to Mayer Brown in the Chicago office to create a
Supreme Court practice. I think by this time a former member of my
Watergate staff, Ken Geller, who had become a wonderful Supreme Court
advocate, had gone to Mayer Brown in Washington.
Andy Frey, another former colleague of mine from the Solicitor
General’s Office when I was there as the deputy, was also in the
Washington Office. He too is an excellent Supreme Court lawyer. He had
left the government and joined Mayer Brown. So it seemed to me that this
was a place where I would be able to fit in because of my interest in
resuming my career as a Supreme Court advocate. That turned out to be in
retrospect a wise choice because Mayer Brown became known as the firm
with the largest, most diverse Supreme Court practice of any of the major
American firms. Other firms had a prominent Supreme Court practitioner,
including John Roberts, for example, or Carter Phillips, for example, but
basically if you thought about those firms, you thought about one person
at the firm, whereas Mayer Brown ultimately had a group of partners who
could legitimately claim to be Supreme Court specialists. That generated a235
lot of esprit de corps, which I found quite gratifying, and it led to a
relatively steady inflow of interesting matters. I don’t even remember now
how many other cases I actually argued. I think it was another five or six
cases in my career at Mayer Brown.
I worked on lots and lots of other cases with other wonderful
lawyers including Steve, Ken, and Andy and others, helping with briefs,
helping prepare them for arguments, and so forth. So it was a way of
staying in the type of practice that I had been involved with the prior 35 or
40 years, which I continued to pursue with the benefits of a private law
firm backing up that kind of practice.
MS. JOHNSON: I think you mentioned this but I may have missed it. You referred to Andy,
and I’m not sure if you said earlier today or at the end of our last session
who Andy was at Mayer Brown, so just a little bit more about Andy
Pincus.
MR. LACOVARA: One of the other people with whom I worked was Andy Pincus, who had
been with me originally at Hughes Hubbard. Andy then went on to
become general counsel of Arthur Andersen and then went ultimately to
Mayer Brown, so we intersected on a number of occasions throughout our
respective careers.
MS. JOHNSON: Did you offer any strategy, advice, any work when Arthur Andersen began
to come under the sights of regulators?
MR. LACOVARA: I don’t remember whether I was directly involved in that. I think that was
being handled by at that point the Washington office of Mayer Brown. I236
was for the most part by that time focused almost exclusively in
New York. That is, I was by then located in New York. I think I may even
have given up my physical office in Washington, although I remained on
the letterhead and business cards in both. I’m trying to remember. It may
have been Ken Geller who was involved in that or somebody else. I
believe there was some consulting affiliation in the early stages, but I
don’t remember being directly involved in that.
MS. JOHNSON: How did you come to leave Mayer Brown?
MR. LACOVARA: Ultimately, and by ultimately, I would say after ten years, I had reached
early-retirement-possible age, and I’d been doing this for a long time. I
was then 60 years old in 2003, I’d been practicing for 35 or 40 years by
that time, and I wanted to try something new. I decided to try arbitrating,
because of a casual conversation that I had with a former colleague of
mine, John Martin, by that time a former federal judge. I think John was
just retiring from the federal bench. He said that he was thinking about
going into arbitration because it was an interesting second, third, or fourth
career which provided some of the intellectually challenging aspects of
practicing law with a greater degree of control over one’s life and lifestyle.
It lit a spark in me, saying that’s a pretty good thing because this is
a kind of litigation which is what I’d been doing for most of my career in
one role or another. I thought it would be a way of regenerating myself,
reinventing myself, because I was old enough to take early retirement but
far too young actually to retire, especially since I don’t play golf.237
I talked to an organization called JAMS, originally the Judicial
Arbitration and Mediation Service, started in California with a group of
former state court judges who had gone into the business of offering
arbitration and mediation services. JAMS was in the process of expanding,
including expanding to the East Coast. They had been primarily known as
a West Coast operation. I talked to the general counsel of JAMS about
whether they might be interested in a new affiliate in New York, and that
seemed to make sense. I talked to my colleagues at Mayer Brown and said
I’d like to retire as a full-time partner, but I’d like to keep my connection
with the firm if you think that would be mutually beneficial, and I would
be happy to stay as senior counsel. I continued in that role for another
thirteen years.
So while I was developing my practice as an independent
arbitrator, I continued to consult with people at Mayer Brown, consult
directly with clients or serve as an additional sounding board or brief
writer or brief reviewer on Mayer Brown matters. I continued to serve as
the head of the pro bono program. That was one of the things that I
enjoyed most and one of the reasons why I wanted to stay with some kind
of affiliation at Mayor Brown. Pro bono has always been a matter of
interest to me, and by remaining with the firm in that capacity, I could
continue to oversee, energize, and recruit for various pro bono projects
that Mayer Brown lawyers were encouraged to engage in. That was great
fun and very satisfying for me.238
MS. JOHNSON: Was that capital-punishment related? Was it veterans? Anything and
everything pro bono?
MR. LACOVARA: Anything and everything. I would say that the biggest block of matters
that we were able to undertake at Mayer Brown through this program were
the asylum cases, because there’s such an enormous number of migrants
or asylum seekers seeking some kind of representation. They are ideal pro
bono cases for two reasons. One is they’re manageable. They’ve got a
finite beginning and a finite end, whereas some of the pro bono cases in
which I’ve been involved in my earlier career did go on forever. That is, if
you took on a class action, it could go on for years and years and years,
and that involved a personal commitment but also an institutional
commitment, and not every firm was willing to subsidize the amount of
time and out-of-pocket expenses that conducting massive pro bono
litigations involved. So one aspect of pro bono asylum work is that the
cases are manageable.
The second is almost equally important, maybe more important.
They’re very satisfying cases because you’re dealing with real life human
beings with real life problems. In a high percentage of cases, you actually
get the satisfaction of winning. You get something tangible for a real live
human being. This was brought home to me in connection with a hearing
that I attended at the Immigration Court in Jersey City. This was really
close to the time that I severed my connection as senior counsel and just
became completely independent as an arbitrator. One of the young239
associates had done a wonderful job with an asylum applicant and there
was to be a hearing in the court in Jersey City. I’m laughing because it
required a translator. It was a person from North Africa who was seeking
asylum, and the government had provided a translator. One of the early
questions in the proceeding was how old are you, and the translator
translated it to something like I’m five years old. Everybody knew that
couldn’t possibly be right. It turned out that the problem was yes, this was
a person who could do an Arabic translation, but as we know from lots of
languages, dialect is everything. So what the North African Arabic dialect
was communicating was foreign to this certified Arabic translator, so the
proceedings had to be recessed while a person was located who was more
comfortable doing translation of the person who was actually speaking the
version of Arabic that had to be translated.
In any event, the real point came at the end of the hearing. The
judge saw me. I was just sitting in the spectator section watching Melissa
do a brilliant job examining the client as well as some government
witnesses offering the evidence. The judge beckoned me to the bench. He
said are you Philip Lacovara? I said yes, Your Honor, I am. He said I’m
so-and-so, and I used to work in the Criminal Division of the Justice
Department when you were the Deputy Solicitor General, and I just
wanted to tell you how much I appreciate what you and firms like yours
are doing. He said you can’t understand how important it is for these
people who are submitting asylum petitions to have counsel. He said240
without counsel, only 20% of the asylum applications will be found
sufficiently substantiated to justify relief. If they have lawyers, 80% of
asylum applicants are found to qualify. He said, take that message back.
This is really important. And I did take that message back. When you step
back a little bit and you think that it really is a life-or-death matter,
because that is, after all, the standard for an asylum application, the well-
founded fear of persecution in the applicant’s home country, and there is
such an enormous disparity in the outcome depending on whether there is
a lawyer assisting the asylum applicant. It underscores the importance of
having lawyers step up taking their time away from their regular career
paths, they’re money-generating, fee-generating practices, to provide the
kind of professional service that these people as human beings in need
deserve.
MS. JOHNSON: Powerful. What prompted you to finally say I’m just going to be doing
arbitration or mediation? I’m going to turn that corner in my life?
MR. LACOVARA: Basically, it was a practical constraint. One of the things that one has to
demonstrate in order to serve as an arbitrator is the absence of any conflict
or arguable conflict, and appropriately, the standards for possible conflicts
have become more stringent in recent years. One of the reasons for that is
that because of the limited grounds for reviewing arbitration decisions,
parties who are disappointed with the outcome of an arbitration get
increasingly creative in trying to come up with a ground for challenging
the award. One of the very few grounds for challenging an otherwise final241
arbitration decision is corruption, and that has been interpreted to mean
some sort of willful concealment of information that might have affected a
party’s view about the reliably objective nonpartisan impartial nature of
the arbitrator. So the range of things that had to be ferreted out as possible
matters of disclosure began to increase, which required more and more
inquiries into second- and third-tier relationships with parties or their
affiliates or their lawyers. As long as one is in a law firm, there is a
doctrine that all of those relationships get attributed to everybody affiliated
with the law firm. With a law firm with a worldwide presence and
enormous clientele such as Mayer Brown, in almost every significant
matter that was being presented to me, I had to make extensive
disclosures. I suppose in some of those led to my being challenged, either
formally or at least not selected because of the desire to avoid any later
recriminations. It seemed to me it would be a lot cleaner for me just to
make a break with Mayer Brown, with which I had a very nice
relationship with for 23 years. I had a wonderful relationship with them,
but it was time for me to ride off into the sunset.
In the final years there, my role was diminishing anyway. When
they gave me a farewell dinner, I said this is kind of the upside-down thing
because I’m forgotten but not gone. But now it’s time for me to gone
instead of forgotten but not gone. The firm was moving on and had new
and younger leadership, new offices, and so forth, and I was not really in a
position to be useful to them or vice versa.242
MS. JOHNSON: Do you continue to do arbitrations and mediations today?
MR. LACOVARA: Yes. Indeed, just before dialing in, I was filling out my oath of arbitrator
in a new matter, so I continue to work. I was talking to my former brother-
in-law over the weekend who is 85 or 86, still working and teaching, and
we both agreed that as long as you’re physically capable and intellectually
flexible and competent, there’s no reason to stop working. I enjoy it.
MS. JOHNSON: Especially if you have a lot of control over your schedule.
MR. LACOVARA: And I do. One of the things about my arbitration practice is that it gives
me plenty of time to manage my schedule, and I do lots of other things
besides. One of the things that I do that does take time is generate OpEds,
lots of OpEds. I have another one coming out toward the end of this week
or maybe next week. They’re mostly about Donald Trump or the Supreme
Court or both.
I’m also anticipating testifying in a congressional proceeding soon
on the subject of the intersection between Donald Trump and the Supreme
Court. So I get to do a lot of other things besides just work on garden
variety international commercial disputes.
MS. JOHNSON: Speaking of Donald Trump and the Supreme Court, how does it feel to
have worked on a matter, maybe the most nationally significant matter in
your long and productive career, and then many decades later see and
digest a Supreme Court opinion that unsettles your and maybe everybody
else’s understanding of the law as it relates to executive power? That just
happened in July. It’s a lot.243
MR. LACOVARA: To say it’s unsettling or shocking would be an understatement. I did write
a column shortly afterwards in the Bulwark in which I said it was the
“wrongest” decision in my career. In my congressional testimony, I rank it
with three disgraceful decisions which have been repudiated by history as
well as by the later courts. Dred Scott in the 1850s, Plessy v. Ferguson in
the 1890s, and Korematsu, the Japanese internment case in the 1940s, all
of which were – as no less a person that Chief Justice Roberts has said,
although he was reluctant to say it – unsound in law when they were
decided and repudiated by history. I am going to say that I believe that
Trump v. United States fits into that category, and my view is it is about as
wrong and unfounded as a constitutional or historical matter as anything I
could imagine with the possible exception of those cases, and it is at least
as dangerous because it equips the most powerful man in the world with
unlimited power to commit crime. I think that’s just shocking. I also am
prepared to say that before this Supreme Court, before the Roberts
Supreme Court, not a single justice who ever sat on the court no matter
how racist or deluded or benighted would ever have contemplated that the
constitution creates immunity for a president to commit crimes. I feel
absolutely confident of that. I also say in my statement that I’m drafting
for the Senate Judiciary Committee that I am confident that all the justices
in United States v. Nixon , liberal, conservative, democrat, or republican
would agree that this decision is madness and constitutional nonsense.244
You can tell I have strong feelings about this decision and more
importantly about the justices who rendered it.
MS. JOHNSON: The majority opinion in that case, Trump v. U.S., basically said, and I’m
paraphrasing, we don’t want to be tied to these facts in this moment. As
another justice said during the oral arguments, we want to create a rule for
the ages. It sounds as if you think that is not what they did at all.
MR. LACOVARA: Of course they didn’t do that. They created a rule for the ages, but the rule
for the ages that had been in place was perfectly fine because nobody in
the prior 230 years ever thought that one needed to be a criminal in order
to be an effective president. Their rationale that the framers wanted to
have a robust and vigorous president and that that means that the president
has to be able to commit crimes to become an effective president is arrant
nonsense. We’ve had strong presidents who didn’t have to commit crimes
and never thought that they were entitled to commit crimes. Even Richard
Nixon at his most deluded, and in his later days he was getting delusional,
never thought that, and certainly never argued it, and nobody ever thought
that any justice of the Supreme Court would take it seriously. So it makes
no sense. And, of course, when you look at the lineup, you see it is a group
of people who have gone out of their way at every opportunity to do things
that benefit this criminal president.
The other rationale that one has to worry about rogue prosecutors
prosecuting a president after he’s left is also nonsensical. We have had
rogue prosecutors for the last 230 years. None of them has had occasion to245
prosecute a president for one simple reason. Not because of constitutional
immunity but because we didn’t have criminals who were elected as
president. In the future, the constraint is not immunity. The constraint
against rogue prosecutors is the prosecutors get removed or the
prosecutors don’t get indictments or judges throw out baseless
prosecutions or juries acquit. So you don’t need to create a constitutional
immunity made up out of whole cloth in order to deal with a nonexistent
problem.
This was classically a result-oriented solution in search of a
problem. The notion that James Madison or Alexander Hamilton when
they talked about having a strong president thought they would have not
just a king but a Caesar or a Don Corleone. Because they’re strong and
vigorous, that means they should be entitled to do whatever they want to
do. They would have regarded that as non-serious. That would have been
regarded as satire, as opera buffa, and now it’s constitutional law. I mean
for somebody who has spent his whole life cherishing the constitution and
the Supreme Court, I cannot tell you how saddened I am at that decision
and at this court.
MS. JOHNSON: Another follow up is this. You feel confident, or you sound as if you feel
confident, that a future Supreme Court will correct the error of this
decision, but that could take potentially many years and a set of facts that
could be almost as ugly as this set of facts, right?246
MR. LACOVARA: That’s the problem, and it’s one of the dilemmas of our constitutional
system. When the Supreme Court pronounces constitutional rules, only the
Supreme Court can change them. When you announce a decision that
appears to prohibit further proceedings, it makes it not only a matter of
uncertainty when that can be corrected by some future court, but it also
raises a question, well, what would be the mechanism for it. What
circumstances could give rise to a decision by a future prosecutor with the
support of lower courts to start a criminal proceeding against a miscreant
president who makes even Donald Trump’s offenses pale. And that’s a
pretty horrible image to contemplate. That’s the staggering part of it. The
Court wrote with a broad brush, and it’s a decision which will be hard to
overcome in the near term. But indeed, that’s what we have had to live
with with Dred Scott, which took a civil war and constitutional
amendments to overturn. Plessy against Ferguson, that took sixty years to
overturn, and then in the intervening sixty years, you had three score years
of rampant segregation which continued until statutes were passed. And
Korematsu. You had a hundred thousand people who were interned and
stripped of their property. So the mischief before it gets corrected will be
enormous, and that’s a reason for dismay. As with so much in our
republic, we have to remain hopeful that over time it will be corrected.
MS. JOHNSON: I’m tempted to ask you, one of the themes of our delightful sessions has
been what you and, I think, your grandchildren have termed the greening
of Philip Lacovara. Is this yet another example, or in your view, are the247
Trump v. U.S. opinions so beyond the pale, outside the mainstream, that
you might have felt this strongly decades ago?
MR. LACOVARA: Yes. I think that even with my original conservative view, I would have
been sufficiently, I was going to say rigid, but rules-oriented, that I would
have regarded this kind of approach as unfathomable and unforgivable,
because I do think that rules are important, and they’re important even for
presidents. One basic rule is you don’t commit crimes. Period. Full stop.
And that applies to everybody. So yes, I like strong presidents. I like
presidents who can take the initiative. I was a law-and-order type. Indeed,
the whole premise of a republican government philosophy in the Nixon
years, for example, and then the Reagan years was “law and order.” It
seems to me to stand the notion of law and order on its head when one
says, well, law and order except for the president. Everybody’s subject to
the law except the president. And really that brings us to what is
fundamentally different about the Roberts court, the six justices in the
Roberts majority. They are not conservatives of the sort that I once was or
that traditional conservatives were. The classic kind of conservative. This
is the manifestation of a new and I think insidious political philosophy, the
so-called unitary executive theory, which was created by political science
professors and law professors in the 1970s, took hold in the 1980s. It
began to get currency in the Reagan administration, and then became quite
fashionable on some law school campuses. I would say that it has
appealed to people who came from or come from backgrounds similar to248
mine, the Catholic background, where there is, if you will, a kind of
command and control philosophy at work in our faith. But I think it makes
some Catholics more amenable psychologically to the idea of a strong
executive who is in some ways above all other mortals, and that seems to
me to be the animating principle of the unitary executive theory. Roberts
himself in the Trump decision accepts this fiction that the president is an
entire branch of government. They take that as a misreading of Article II
as if the Framers thought that the president would be the executive branch
as opposed to saying, as the term for the last 200 years has implied, he is
the chief executive. He is part of a branch. He is the head of a branch, with
thousands of other people also exercising governmental power. It’s also a
corruption of the idea of separation of powers, which as even Roberts’
hero Justice Jackson emphasized, the powers are not isolated from each
other, they’re intermingled, and that’s part of the balance. And the unitary
executive people, have elevated the role of the president into a degree of
supremacy that would have shocked the framers, and I have no doubt
about that. These are people after all who were the beneficiaries of the
Declaration of Independence which created a catalog of the abuses of an
all-powerful monarch. The last thing in the world they could have
imagined doing was creating a president who would have all power and be
entitled to commit crimes in exercising that power. A 10th grader who has
taken a social studies course would recognize the Trump decision as
making no sense, and it doesn’t.249
I’m sorry, if I’ve been too effusive or voluble, but I feel strongly
about this subject.
MS. JOHNSON: I think this is interesting not only for the people of today, but it will be
interesting in many decades to come for people who happen upon this oral
history.
MR. LACOVARA: I hope if anybody comes upon this oral history in the future decades, they
will say to themselves: What do you mean? At some benighted period in
our history there actually was a constitutional rule that the president is
immune from prosecution for his crimes? And I hope that that will be only
a distant memory, if any.
MS. JOHNSON: I think at the start of our sessions several months ago I neglected to ask
you this question, so I’m going to ask now. You have a glorious and large
family. Among your kids and grandchildren, are there attorneys? Are there
people who thought about becoming attorneys? If so, what kind of advice
did you give to them?
MR. LACOVARA: We have had two sons become lawyers. I’m very proud of both of them.
One went to Harvard, and one went to Columbia. The son who went to
Harvard unfortunately died two years ago suddenly. He was a great
lawyer. He was profiled in the Legal Times I think it was or the National
Law Journal, whichever had “40 Under 40” as one of its features when
they would select forty lawyers from around the country under 40 years
old who were likely to be the great leaders of the profession. And Michael
was. He was a partner at Sullivan and Cromwell, Freshfields, and then was250
at Latham and Watkins when he died. He was a great lawyer. He was the
lead counsel for Microsoft in the antitrust case as a very young partner. He
was wonderful in pro bono until the day he died. He was doing pro bono
cases, major cases. He was doing death penalty cases. He was representing
the poor in cases and had a class action challenging I believe it was in
Oklahoma and a couple of other states that had statutes allowing persons
to be jailed if they couldn’t pay court costs, even if they’d been acquitted
of the crimes for which they were being accused. Anyway, Michael in the
article “40 Under 40” was asked whether his father had given him any
advice when he said he was thinking about going to law school, and he
said yeah, my father said don’t do it. Michael went on to explain that I
explained to him that the legal profession had changed from my earliest
days back in the 1960s and it was much more revenue driven and there
was much more of a focus on the billable hour, and working conditions
were almost slavish and there was a diminished emphasis on pro bono
because lawyers wanted to earn as much money as investment bankers.
This was the corruption of the 1980s when investment bankers became so
dominant making multimillion dollar payoffs and successful lawyers were
only making $800,000, so there was this professional rivalry which really
did change the face of the legal profession. Anyway, Michael went to law
school anyway and became a very successful lawyer.
My other lawyer son is Christopher, who is an interesting
character. He went to Harvard undergraduate, majored in intellectual251
history, then went to Goldman Sachs as an associate, and then went to
Lazard, and then he became the managing partner of Kohlberg &
Company and became quite successful financially. But during all this time
because of his broad interests, he went back and while working full time
as an investment banker got a degree in engineering, an undergraduate
degree, won a Guggenheim and got a master’s degree in engineering at
Columbia, went to chef school, got a certificate from the Culinary Art
Institute, went to Yale School of Architecture and Design for a while. He
went to Columbia Law School, did very well at Columbia, had one or two
professors who were still there from my era. They were young when I was
there, they were old when Chris was there. He clerked on the Third Circuit
and then clerked on the New York Court of Appeals, the highest court in
New York. A little footnote there. He clerked for a judge named Smith
who as it turned out had been a classmate of mine. I did not know him. We
had a class of 300. After I handled an arbitration in Hong Kong in which I
issued an award, in order to challenge the award, it was necessary to show
that the decision had to have been corrupt or the equivalent., The
challenge was that, because my award was so egregiously wrong in
misinterpreting New York law, it was the equivalent of corruption or bias.
In order to support that decision, the losing party got an opinion from the
retired judge of the New York Court of Appeals who just happened to be
the judge for whom Chris had clerked a year or two before, my former
classmate. I’m happy to say that the Hong Kong courts concluded that my252
interpretation of New York law was at least as sound as the expert opinion
of the former New York Court of Appeals judge.
In any event, Christopher went to work for a law firm for a year or
two after the clerkship and decided to pursue what he had originally said
he really wanted to do when he was working as an investment banker,
which was to build housing for the poor. He went to work for a not-for-
profit agency, which, believe it or not builds supportive housing for the
poor, and he is now the chief of everything basically. The chief financial
officer, the general counsel, the chief real estate officer, the chief design
specialist. So he’s able to bring together his skills as an architect, engineer,
finance guy, and lawyer. They have built and are building thousands of
apartments, supportive housing for the underserved, and he’s just acquired
a site from the Archdiocese of New York which will be the first major
construction project for the poor in Manhattan in fifty years. So he has
done well, and is now doing good.
MS. JOHNSON: Fantastic. I don’t have any more questions today. I propose to ask you if
you have additional thoughts and then for us to take a break for a few days
and think about what we’ve discussed and think about whether there are
any gaps, additions, corrections, substitutions you might have, and then do
our last session with that if that works for you.
MR. LACOVARA: That would be great. I will try to find my cheat sheet that has the movie
poster so that I can recall some of these things, and if there are any other253
things that I think might be of interest to people who will be looking at
this, I’ll flag them for you.254
Oral History of Philip Lacovara, Esq.
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 Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Wednesday, October 2,
2024. This is the ninth interview.
MS. JOHNSON: It’s a pleasure to see you again. Since this is a project of the D.C. Circuit,
it makes sense to explore a little bit some of your deeper connections
there. Can you talk about how professionally and socially you interacted
with members of the Circuit and the greater community?
MR. LACOVARA: Sure. I chaired a couple of committees for the court, including the
Advisory Committee on Procedures for the D.C. Circuit. We developed an
internal operations handbook to guide practitioners before the court of
appeals on the lore not just the law in the formal rules.
I also participated as the chair of the Committee on Procedures in
revision of rules to deal with the growing caseload, especially in the field
of administrative law where complex records became the norm as distinct
from what much of the case law had been in the earlier days when they
were pretty simple and straightforward criminal appeals. The nature of the
caseload became much more heavily slanted toward complicated federal
regulatory matters. So those kinds of changes or evolution in the caseload
led to revising both the formal rules as well as the operating procedures.
We wanted to provide guidance to practitioners about the way the court
actually functioned in a way that would be helpful to them.255
I also chaired for a while the Admissions Committee, although that
was essentially a standby committee in case there were disciplinary
matters. I don’t remember whether there were any.
In addition, both before and even after Judge Leventhal’s untimely
passing, I was regularly a member of the Judicial Conference of the
Circuit. The court met regularly during the summer for a bench and bar
kind of process either in Williamsburg, Virginia, which is lovely, or at the
Greenbriar out in the Blue Ridge Mountains. Those were interesting and
convivial experiences where lawyers and judges got to spend time with
each other. That was even before CLE was required, but there were
typically interesting panel discussions on developments in the law. That
was, I suppose it’s candid to say, the nominal explanation for why these
were tax-deductible business trips out into what were otherwise
considered wonderful vacation spots. So there was a combination of
professional development as well as conviviality meeting with other
judges and their spouses and other lawyers and their spouses. It was a
source of longer-term developments that I think was generally a healthy
process.
MS. JOHNSON: Did Madeline go with you?
MR. LACOVARA: She almost always came with me, and that was true for other lawyers who
brought their spouses. Women lawyers brought their husbands.
As I was going through my career in Washington, one of the very
benign and wholesome developments was that more and more women256
lawyers were achieving prominence in a sense that they were serving as
law clerks and then going on to be invitees to the Judicial Conferences. So
more and more, it was typical to see women lawyers as conference
members, and their accompanying spouses were their husbands or
significant others. I think at that point it was much more traditional for
couples to be formally wed rather than just be significant others.
MS. JOHNSON: You raise a question in my mind, and I’ll get back to some of your circuit
interactions in a moment. I continue in my day job to hear about an
increasing number of women practicing, arguing before the High Court
and the circuit courts and yet the numbers are not even close to parity. I
wonder how that strikes you as you have watched the arc of this over time.
MR. LACOVARA: I think it’s true that while the profession is now virtually at par between
men and women, and I think certainly that’s true in law schools, the
number of women going into litigation is not measuring up to the same
percentage. I don’t know whether it’s a personality thing or a lifestyle
choice thing, but litigation tends to be much more confrontational, much
more intense than tax law, employee benefits law, corporate law,
environmental law where the matters tend to be more manageable and
more circumspect, or at least not as hostile. Litigators tend to be much
more aggressive and Type A’s. I don’t know whether this is always going
to be true of the case, but I think it probably still is the case that a smaller
percentage of women are comfortable with that kind of demanding
lifestyle. It is also the case that women of a childbearing age are257
sometimes taking interruptions in their professional careers. I think it may
be harder because of the long-term commitment of litigations to schedule
your personal life around the specialty of a litigator, and that I think
explains why there are in my observation fewer women in court, trial
court, appellate court, and Supreme Court.
MS. JOHNSON: Thanks for that, and I wanted to ask one more question before I get back
into some of your circuit responsibilities and duties. We’ve talked a little
bit about Judge Leventhal. We’ve talked a little bit about Judge Sirica.
We’ve talked a little bit about Judge Bork and Judge Paul Friedman. Are
there any other judges on the circuit with whom you had a pretty close
relationship that bears mentioning in your oral history?
MR. LACOVARA: Certainly, Judge Bazelon. He was the chief judge for much of my period.
He was a towering figure, a very engaging person, and very strong in his
opinions on a lot of things. He was the head, of course, of the liberal
branch of the circuit during the years when I was spending most of my
time there. He had a passion for reform of criminal responsibility,
particularly with respect to mental health and the way that impacted
criminal responsibilities. He was also quite active in pursuing medical
expertise as a guide to dealing not only with criminal responsibility but all
sorts of other types of problems that one confronted in a major city like
Washington. So medical healthcare was something that he was active in.
There were cases that I would say provided him with an opportunity to
pursue his vision of mental health law reform. Had the cases come before258
a panel without Chief Judge Bazelon on them, they might not have
unfolded as they did or indeed the mental health issue may not have
acquired the kind of prominence that they did.
He and his wife Miriam were quite gracious to Madeline and me
over the years. The opportunity to spend some time with them was a
treasured aspect of my life there.
I also had a relationship with Carl McGowan. Judge McGowan
was sort of a centrist. He was a little bit right of the middle. I think most
observers would say that on a court that was split reasonably cleanly
between left and right with the left being Bazelon and J. Skelly Wright and
Judge Fahey, another wonderful man.
I recently, just as a parenthetical, got a couple of notes from Judge
Fahey’s grandson who is doing a biography. He sent me some articles that
he had come upon of Judge Fahey in his World War I flying costume. He
sent me another note quite recently about a racial justice case that Fahey
had undertaken pro bono in the 1920s. As I was reading these things and
recollecting my connection with Fahey, I realized this brought me back to
within one degree of separation World War I, a person who had had just a
wonderful career as a generous, spirited and warm and gracious man.
Anyway, Fahey was part of the liberal wing. The right was Judge
Burger, Judge Tamm, and I can’t remember now who the third was. But in
the middle were Leventhal left of center and McGowan right of center.
McGown, like Leventhal, were members of the Class of 1936 from259
Columbia Law School. Both of them had been in law school with my
father. McGowan for that reason took more of an interest in me as a mere
law clerk than he might have in some other random law clerk.
One little story about McGowan. As I mentioned a couple of times,
the court of appeals when I was there in the mid-1960s had a very heavy
criminal caseload because it was reviewing virtually all of the major what
would otherwise be local cases before the establishment of the truly
autonomous D.C. court system in the 1970s. I remember going to a
lecture, a luncheon talk that Judge McGowan gave probably a couple of
years after I finished my clerkship. He had been a corporate lawyer in
Chicago, and the title of his talk was “a railroad lawyer looks at federal
criminal law.” It was such an amusing topic because it illustrated one of
the aspects of the D.C. Circuit that made it unique. That is, people from
around the country were appointed to the D.C. Circuit. It was not
composed exclusively and perhaps not even primarily of lawyers from
Washington D.C., but rather it was at that point truly the national court. It
was a little later that the federal circuit was created with its specialized
jurisdiction, but the D.C. circuit was viewed as the national court both in
terms of its oversight of federal responsibilities including federal agency
practices, but also because its personnel was selected from around the
country, and that was not true of the other regional circuits.
So I would say that McGowan, Fahey, and Bazelon were the
judges with whom I had the most regular contact. Burger I also recall260
being very nice to me. There was a law clerk’s softball team and then, as I
believe now, there were softball leagues that played on the Mall, on
various ballfields on the Mall. We played against other teams from federal
agencies and from law firms. I remember at one point I actually tore up
my knee and was in the hospital for a week in traction while I was serving
as a law clerk. Both Judge Leventhal and Judge Burger made very
gracious accommodations to get me a parking space in the courthouse
garage because I was on crutches for a while after that. Judge Burger was
very kind in doing some accommodations and working with me in the
courthouse to get me up and around.
MS. JOHNSON: Was this a running play? Was it a defensive play? What happened, if you
remember?
MR. LACOVARA: I was going for a flyball and stepped in a hole. The image that anybody
who’s come to Washington lately has of the Mall or much of Washington
is quite artificial because if you go back sixty years ago, things were a bit
more ramshackle. I’ve talked a little bit about Pennsylvania Avenue,
which is now gleaming with marble and granite facades and everything is
manicured and spic-and-span. Back in the 1960s, Pennsylvania Avenue
and the Mall and lots of other areas of D.C. were a lot sketchier, and that
included maintenance of the Mall. Yes, we played softball, but you really
did put life, or at least limb, at risk playing there. I was not the only person
who suffered what was otherwise an annoying injury trying to lope around
on the irregular surface of the Washington Mall.261
MS. JOHNSON: What a story. I’m glad I asked that question. Turning back to some of the
service work you did for the circuit, you had mentioned in your CV that
you had some responsibility or oversight for discipline I think.
MR. LACOVARA: Yes. There was the Committee on Ethics I think it was, or the Committee
on Admissions, which had oversight over disciplinary matters. That
typically was simply derivative. I don’t remember any proceedings that we
actually initiated. It was rather making recommendations if there were
questions about the eligibility of a candidate because of some other
disciplinary matter or criminal conviction that might have shown up on an
application or if the lawyer who’s eligible to practice before the circuit had
become subjected to discipline in some other jurisdiction, we would have
to analyze it. As I said, there was mainly a derivative function.
One other local matter that came about, and I honestly don’t
remember how this originated, I became a trustee and then ultimately
chairman of the Board of Trustees of the District of Columbia Public
Defender Service. I did that for a number of years. I may have been
appointed by the district court or by the court of appeals. I don’t remember
how the trustees were selected. But I served on that for a number of years,
and it was very satisfying work because the D.C. Public Defender Service
was then and I think probably still is very highly regarded as one of the
premier public defense agencies and had a reputation for providing high-
quality defense to indigents. I would venture to say better than the service
that might have been provided by appointed counsel who did not have262
criminal law as their expertise but were doing this kind of work as
volunteers in performing pro bono service.
MS. JOHNSON: Yes. Still has a sterling reputation. Was this during the period when
Charles Ogletree was there if you recall? Did you have interactions with
him or others?
MR. LACOVARA: He was one of the staff lawyers when I was there, a highly regarded trial
lawyer. He went on to academic achievement thereafter, but that was the
period when I was there.
I remember I did get sued because we passed over the deputy
director who was a black lawyer who wanted to be promoted to replace
Pat Hickey. I think Pat Hickey was the director of PDS when I was there,
and then he left to do something else, and we did not promote Franklin
Carter. Frank Carter was the deputy, and when he was passed over for
promotion, he sued the trustees for race discrimination. I believe there was
a trial before Judge Joyce Hens Green who dismissed the complaint
finding that the motive for the personnel decision was not racially based or
racially tainted.
So that was one of the two cases in which I wound up being sued
because of my professional role. The other one I think I mentioned was in
connection with my service as President Reagan’s nominee for
appointment on the District of Columbia Judicial Nomination
Commission.263
MS. JOHNSON: Did you have to sit for a deposition or testify or anything in this PDS-
related case?
MR. LACOVARA: Yes. There was an actual trial. I testified at trial about why we had decided
that Carter was not the right person for the job.
MS. JOHNSON: What was the experience like sitting on the witness stand instead of being
the person in control asking the questions?
MR. LACOVARA: It’s frustrating. We had counsel, and I don’t remember who our counsel
was. As you would intuit, I was carefully instructed to listen to the
questions, the same sort of advice that a trial lawyer gives to his own
client. Listen to the questions, don’t be combative, don’t try to make up
what you think is the answer that will help your cause or don’t try to make
speeches to justify your decision. Wait for the questions that will be asked
in your lawyer’s view to give you the opportunity to make these points. It
was not a comfortable position certainly. I think I said to my wife when
we first received the papers, this is another example of the principle that
no good deed goes unpunished. It took a lot of time to serve first as trustee
and then as chair of the PDS board, a non-compensation position, of
course, and yet I wound up being sued. For years thereafter when
questionnaires came along, question 14 or something on a mortgage
application or something was, have you ever been sued. Yes, I’ve been
sued, and so forth.
MS. JOHNSON: A 360 view of the legal system whether you liked it or not.
MR. LACOVARA: Absolutely.264
MS. JOHNSON: Is there anything else you wanted to share about the D.C. Circuit? If not,
I’m going to move in a slightly different direction.
MR. LACOVARA: I think that’s about it. Have we talked about Judge Leventhal’s funeral?
MS. JOHNSON: I don’t think we have. We should.
MR. LACOVARA: I think I mentioned that I remained reasonably close with Judge Leventhal
and his wife Kay for the thirteen years or so after my clerkship with him. I
remember when he suddenly died, there was a gathering at his home, and
Kay, who was Lutheran, the Judge was Jewish, and she was in some
distress because there was an uncertainty about how and what funeral
arrangements could be made that would allow her to be buried with him
ultimately when that time came. One of the possibilities was a burial at
Arlington Cemetery where a Jewish burial could be performed with the
appropriate recital of the kaddish, which the judge would have wanted. I
don’t remember the precise detail about why no other feasible site was in
the offering, but at the time, Arlington Cemetery was closed for burials of
persons who had not been in active combat. This was in 1979. Madeline,
my wife, the great problem-solver, said well there’s no doubt that that
restriction can be waived for somebody who after all did render great
service to the country. He was an officer. I think he was technically in the
Coast Guard during World War II. He was on General Jackson’s staff at
the Nuremberg Trials, and so had a distinguished military career apart
from his service to the country as a judge. So Madeline suggested that
someone call Lloyd Cutler, who at the time was serving as counsel to265
President Carter. Cutler was somebody we all knew from being around
town. That’s somebody else I maintained a long-standing relationship
with. So someone called Lloyd and said here’s the problem. Is there any
way that the President can waive the limitation on burials for non-combat
veterans. To make that long story short, an exception was granted, and
Judge Leventhal was buried at Arlington. I believe that his wife ultimately
was interred beside him.
It was an example of a couple of things. One is my wife’s problem-
solving abilities, but second, it was also an illustration of the principle, as
harsh as it may sound, that it’s not what you know, it’s whom you know.
If a person was not in a position to call up the counsel to the president to
say here’s our problem, can you help get it solved, the problem may have
become unsolvable or at least unsolved.
MS. JOHNSON: A very good story about the way Washington works. I want to invite you
to share some lessons that you have learned over time for people who may
be reading this decades into the future who are interested in law or
practicing law.
MR. LACOVARA: I would say that over the span of the sixty years that I’ve been doing this,
the practice of law has evolved, or I might say devolved. I say that fully
recognizing that if one goes back to some of the Greek philosophers, one
can find repeated statements that the current generation is much worse off
than the prior generations, and the children are more ill-behaved and
society is coarser and so forth. There is a natural tendency I think for all266
old men and maybe now old women to have this golden-age philosophy. It
was made into a wonderful movie called Midnight in Paris, a Woody
Allen movie, which is a great example of the fallacy of golden age
thinking – that it was always better in the past.
With that acknowledgment and disclaimer, I would say that one of
the ways in which the profession has changed for the worse, in my view, is
that it has become more dollar-centered, more aggressive, more all-
consuming. And all these things I think tie together. I would attribute
much of this to the resentment that lawyers in the 1980s began to feel
about the enormously greater sums that investment bankers seemed to be
making than lawyers were.
I remember when I was interviewing with a major Washington law
firm, I made a comment to one of the partners with whom I was talking
about how I sure hope that one day I would be in a position to make
$100,000 a year. Now, of course, $100,000 is a part of a starting bonus for
young lawyers. I know this is all inflation adjusted, but even without
inflation adjustment, the amounts of money that lawyers make,
particularly Wall Street lawyers, now is multiples, even inflation adjusted
as contrasted with the amounts of money that Wall Street lawyers made
when I started. That is not without cost, and the cost is, in my observation,
a diminution in the relative amount of time and maybe the absolute
amount of time that lawyers spend on such things as community activities,
professional involvements, pro bono work. When I started working as a267
young partner in a Wall Street firm, the norm that was expected for
lawyers, partners and associates, was something like 1,700 hours. Now it’s
2,100, 2,200, 2,300.
I remember my late-son who was a partner at some major law
firms would typically log 2,800 or 3,000 hours. That’s almost twice as
much time as was the norm when I started. Even the 2,200-hour norm is
40% more on top of what was viewed at the time as a full-time
professional life. That does not come without cost.
I think lawyers have tended to become more aggressive and less
congenial. I think I’ve told the story about my case against Abe Fortas
when I was asked to make an accommodation so that he and his wife
could take a trip for their winter vacation, even though it was going to
require that we postpone the oral argument in a Supreme Court case. I
would bet dollars to donuts that that kind of request would not have
received a favorable response in this climate, where it’s much more “I’ve
got the upper hand and why should I yield to it?”
I have repeatedly tried to emphasize in recent years the importance
of civility in practice. In fact, this is not just a new phenomenon. I wrote
an article in the ABA Journal that was captioned “Supreme Incivility,” and
I was taking as my point of departure what was even at that point, this is
probably 20 or 25 years ago, a notion that the legal profession could
become more uncivil and that lawyers were simply getting to be more like
combatants in a prize ring than members of a profession. The point of the268
article was it’s hard to encourage work-a-day lawyers to be more civil to
each other when you see the way justices of the Supreme Court are
haranguing each other and accusing each other of the most vile kinds of
misstatements, unjust and deceitful commentary. Unfortunately, I
highlighted Justice Scalia as one of the chief offenders at the time because
he was unconstrained in the way he would describe the majority opinion.
Of course dissents are almost always more vitriolic than majority
opinions, but there are ways to do it that recognize that honest people can
have differences of opinion, and even if you don’t think they’re being
honest, you shouldn’t say it, especially when you’re in a position of
authority in a way that can influence others.
That, I think, is a consequence of the flow-down from the senior
ranks to the junior ranks. Younger lawyers learn by example, and when
they see senior lawyers engaging in what used to be called sharp practice,
they figure, well, that’s the way lawyers behave, and that’s the way I’ll
behave, and indeed, in order to show that I’m better than the average run-
of-the-mill lawyer with whom I’m competing for promotion, I’ll be even
sharper in my practice. Sharper in the sense of being unforgiving, harsh,
manipulative.
I think the great strides that have been made in the financial
remuneration that lawyers in the first quarter of the 21st century are
earning have come at a price manifested in various ways.269
MS. JOHNSON: I’m going to end this with a topical question, except I think it fits partially
into the theme you just outlined. This morning there was a news release in
my inbox that said Trust in U.S. Supreme Court continues to sink. Asked
how much they trust the Court to act in their best interest, one in three
Americans say not at all. This was from the Annenberg Public Policy
Center at the University of Pennsylvania. People in law school, including
some I’ve met recently, are talking about a legitimacy crisis in the courts.
Some like to call it a perceived legitimacy crisis. This is a matter of much
ongoing debate and public concern among practitioners, especially folks
like you who have reached the highest levels of the profession. How do
you think about this exactly?
MR. LACOVARA: I think a lot about it, and I’ve written a lot about it. I’ve testified as recently
as a week ago today at the Senate Judiciary Committee about one aspect
of it. Two days ago, I had an article published in Bloomberg U.S. Law
Week on this very subject in which I addressed the falling sense of public
confidence in the Supreme Court, and I offer a couple of explanations for
it. It is profoundly important because, and this is something that I quoted
in my Senate testimony a week ago. In the 1950s, a Yale law professor
named Alex Bickel wrote an article called the “Least Dangerous Branch,”
and it was at a time when the court was being attacked in part because of
its desegregation decisions and its extension of civil rights or civil
liberties, particularly in criminal cases. This was resented on the
desegregation front by white southerners and on the criminal procedure270
front by the right-wing law-and-order types. What Bickel was saying was
the court needs to be cautious because it needs to preserve its legitimacy.
It has neither the purse nor the sword, that was his point, thus the least
dangerous branch, and it depends for its effectiveness on public
acceptance. So credibility, public confidence, is absolutely central to its
performing its vital function in maintaining a system of the rule of law.
The rule of law can be sustained largely to the extent that the public
believes that the law as being articulated by the Supreme Court is well-
grounded in honest, honorable, articulable, and understandable premises.
Today, we have gotten to the extreme where, as you mentioned, a
very sizeable either plurality or majority of the country doubts that the
court is acting in that way. It’s not unique that the court comes in for
criticism, but at least I think it is the case that the criticism today is based
upon doubt in the honesty or integrity of the decisionmakers.
In prior eras – a criticism is not unique to even the 20th century
much less the 21st – the criticism was of decisions not of the court as an
institution or the justices as honorable men and women, and that is what’s
decisively different.
There are several reasons in my mind why the confidence in the
court has fallen to its low ebb now. I think the turning point is 1987 with
the nomination of Robert Bork to the Supreme Court, and things have
gone downhill since then. The principal ingredient was the change from
what had been almost 200 years of tradition of accepting the president’s271
nominee, assuming basic capability, as worthy of confirmation, even if he
came from another party. On this one, the Democrats are to blame for
starting it because they decided to sabotage Bork. He was extreme on the
right. There’s no doubt about it. But by any of the traditional measures
that had been in place for almost 200 years, Robert H. Bork was well-
qualified to sit on the Supreme Court. He was rejected solely because of
his ideology, which was not consistent with the views of some people,
including Senator Kennedy most especially. That was the end of that. And
then maybe Joe Biden as well. That changed the landscape.
One of the other consequences, and this was evolving almost
simultaneously, is the rise of the litmus test, and for that, abortion is the
classic test so that no one can be appointed to the Supreme Court today by
a president from the left who is a Democrat unless he or she is ardently
pro-choice, and no one could be nominated, perhaps confirmed by the
Senate, depending on who’s controlling the Senate, by a Republican unless
one is ardently pro-life.
Now that took us up through the Dobbs case in 2022 when Roe v.
Wade was overturned. There will be new litmus tests, but what the litmus
test phenomenon did was introduce into the equation of judicial selection
for the Supreme Court two groups or two viewpoints for screening of
candidates more or less institutionalized. On the right, that is the
Federalist Society, which has a whole host of ingredients but one of them
was pro-life, that is anti-Roe versus Wade, but pro other things, including272
pro presidential power. So that as we’ve observed, one could not get
appointed to the federal bench, or at least would not be under
consideration to be promoted to the Supreme Court, without having
Federalist Society membership or Federalist Society-approved credentials.
On the left, the same thing is done. Several groups are active, some of
which I have actually worked with despite my earlier traditional
conservative Republican affiliations, and they are equally avid on the
opposite side for screening out people.
Another unwholesome development that has taken place since
1987, and I’ve written on this subject as well, that I think essentially
institutionalizes this process of litmus testing is the phenomenon of
looking exclusively or virtually exclusively for candidates for the Supreme
Court to candidates who are already serving on the courts of appeals.
What this has done is eliminate and designedly eliminate the uncertainty
that led to a Sandra Day O’Connor or John Paul Stevens or a Warren
Burger or a Harry Blackman, people who might have been thought
generally conservative or generally liberal but who turned out once they
got to the Supreme Court to be different. It has also eliminated a lot of the
people who provided much of the integrity or plausibility or respectability
from prior eras, people who had been United States senators, who had
been presidents of the bar, who had been leaders in other segments of the
law. That gave them their own stature that a mere anonymous court of
appeals judge from somewhere doesn’t have. So when the decisions came273
out, in my view, they were tempered with wisdom and experience that is
different from the kind of decision you get from a professional magistrate,
somebody who has spent virtually his whole career in a lawbook-lined
judge’s chambers who then winds up on the Supreme Court and is
unknown outside of the narrow confines of the legal profession except as a
judge.
So the phenomenon of selecting exclusively from courts of appeals
has two consequences that I think tended to undermine both the quality of
the decision making and the public confidence in the decisions. One is that
it has deprived the court of membership of people of varied types of public
stature so that they carried with themselves public reputations that created
a presumption that they knew what they were doing and that they were
acting in the public interest, having served in the Senate or as governors or
in other public roles. But also this phenomenon has made it easier for the
groups either seeking to support or oppose a candidate to screen their
records because they’ve made records that commit themselves to one
philosophy or the other, one extreme or the other. And indeed, I think even
below the Supreme Court it is an unwholesome phenomenon because it
provides the worst possible incentive for judges on the courts of appeals to
prove themselves as candidates for promotion. It drives them to show that
they can be good reliable liberals or good reliable conservatives. The more
extreme and definitive their views are, the more likely they are to be
selected by their group once that group is in power, left or right.274
So that is my take on the structural factors that have led to the
court’s diminished public repute and therefore the diminished public
acceptance of the validity and legitimacy of its decisions.
MS. JOHNSON: I don’t know if you’ve seen or read this, but a leading conservative
practitioner, Kannon Shanmugam, gave a speech a couple of weeks ago to
the Federalist Society at Duke basically saying it is not helpful for people
to continue to describe the Court as illegitimate or cast doubt or aspersions
on its legitimacy. It’s actually quite dangerous. It sounds to me as if you
have a somewhat different view of the cause and effect, the chicken or the
egg there.
MR. LACOVARA: A similar point was made by Senator Lindsey Graham at a hearing at
which I testified last week. I think that’s mistaking the problem or its
cause. I don’t think it’s dangerous to challenge the legitimacy of the
Court’s decisions if you’re also explaining why they are illegitimate. Now,
it is certainly true that we need to reconstruct legitimacy, but I don’t think
you get there unless you grab the people who are in a position to affect
that process by the scruff of the neck and say, look at the conditions that
you have created. And this applies not just to the Federalist Society and
the people on the right. It applies equally to the people on the left, in my
view. If you are a Democrat and you believe, just for example, as long as
there are restrictions on abortion being enacted by states, this kind of issue
is going to keep coming up. If you are a liberal Democrat and you say I
will never ever tolerate a pro-life person being appointed to the Supreme275
Court, then you are part of the problem. And the fact that you’re engaging
in the rhetoric that makes ideology the touchstone rather than objectivity,
respect for the legal tradition, respect for precedent, and all sorts of things
that ought to be the touchstones for determining who is qualified to be on
the Supreme Court, then you are part of the problem that is leading to
decisions that are driven by a result-oriented ideologically premised
membership.
So I think while it is certainly undesirable to have the Court’s
legitimacy in question, the reality is there are reasons why its legitimacy is
in question, and I think, as I testified last week, the decision by a 6-3
majority in the Trump immunity case cannot be justified as honest and
legitimate on the basis of precedent, history or text. In my view that
decision could only be reached by people who were driven to a result that
they wanted to reach, and that’s a reason why I consider it illegitimate in a
functional sense. It’s legitimate in the sense that they are the Justices of
the Supreme Court. They’ve got the power to do it, but they are
squandering their diminished power as the least dangerous branch. They
are making themselves even less dangerous as the country is paying less
and less deference to what they decide.
MS. JOHNSON: Thank you so much for sharing these thoughts. It has been such a pleasure
to speak with you for these hours. Is there any closing thought you wanted
to share?276
MR. LACOVARA: I appreciate all the time you’ve taken. I know when you volunteered to do
this, you probably never expected that it would consume nine sessions, but
I have appreciated your courtesy and your insights. It’s been a great
pleasure for me to have spent almost sixty years as a practicing lawyer.
I’ve met a lot of wonderful people. I’ve had a chance to chat about some
of them during our conversations. I remain optimistic about the legal
profession, and I remain optimistic about our country. We’ve gotten
through worse, and I hope we’ll get through this sooner rather than later.
Thank you very much for the opportunity to vent or expatiate.
MS. JOHNSON: The pleasure is all mine.277A-1
Oral History of Philip Lacovara, Esq.
Index
ACLU, 177
ALI (American Law Institute), 35, 38
All the President’s Men (movie), 228
Almeida-Sanchez (case), 105
American Bar Association, 3, 60-61, 134, 145, 178
Section of Individual Rights (Civil Liberties section), 178
Annenberg Public Policy Center at the University of Pennsylvania, 269
Arnold and Porter, 166, 169
Arthur Andersen, 235
Austin v. United States (case), 69
Bazelon, David, 52, 54, 257-59
Bazelon, Miriam, 258
Beatty, Frank, 63
Becker, David, 172
Bernard, Lewis, 222
Bernhard, Berl, 171
Bernstein, Carl, 111
Bickel, Alex, 269
Biden, Joe, 271
Blackman, Harry, 272
Blue Bloods (televiaion show), 80
Borders, William, 206
Bork, Robert, 61, 109-10, 127-28, 139, 210-12, 257, 270-71
confirmation hearings, 209
Boyle, David, 184-85
Brandeis, Louis D., 211
Buchen, Philip, 159
Bulwark (news and opinion website), 243
Bureau of National Affairs (BNA), 162
Berger v. the United States (case), 156
Burger, Warren, 54, 151, 258-60, 272
Butterfield, Alexander, 120
Buzhardt, Fred, 133
Cabranes, Jose, 167
Califano, Joe, 164
Carter, Franklin (Frank), 262
Carter, Jimmy, 202, 204
Chancellor, John, 126
Claiborne, Louis, 63A-2
Clark, Ramsey, 115
Codd, Mike, 84
collegiality, 55
Collier, Cal, 183
Committee to Re-Elect President Nixon, 112
Coopers & Lybrand (now PricewaterhouseCoopers), 173
Cox, Archibald, 113-16, 120-26, 128, 129, 131, 133-34, 136, 138, 148, 157, 160, 172, 211
Cronkite, Walter, 126
Cutler, Lloyd, 264
D.C. Bar, 218, 233-35
John Payton Leadership Institute, 221
Dash, Sam, 212, 216
Dean, John, 117
Dellinger, Walter, 200
Dewey, Tom, 2
District of Columbia Circuit, 36, 41, 47, 50, 54-55, 58, 69, 106, 123-24, 141, 206-08, 212, 259,
264
Bork, Robert, 212
Dobbs (case), 271
Dombroff, Mark, 186
Douglas, William, 120, 148
Dr. Strangelove (movie), 231
Dred Scott (case), 243, 246
Ehrlichman, John, 141
Eighth Amendment, 77
Ervin, Sam, 213
hearings, 115, 117
Fahey, Charles, 258-59
FBI, 97, 129, 201-05, 210
Federal Heroin Control Statute, 67
Federal Marijuana Control Statute, 67
Federal Rules of Criminal Procedure, 154
Federalist Society, 208, 271, 274
Fifth Amendment, 67, 107
Fisher, Dick, 226
Ford, Gerald, 159
Fortas, Abe, 166, 167-68, 267
Frampton, George, 131, 212
Frey, Andy, 234
Friedman, Paul, 218, 257
Gage, Beverly, 205
Gallo, Crazy Joe, 85
GAO (General Accounting Office or General Accountability Office), 182A-3
Geller, Ken, 234, 236
Giuliani, Rudy, 98-99, 169, 187, 190-92
Glass-Steagall Act, 225
Glazer, Sidney, 116
Goldman, Jerry, 172
Graham, Lindsey, 274
Gray, L. Patrick, 202
Green, Joyce Hens, 262
Griswold, Erwin, 62, 65, 69, 71, 75-76, 99, 104, 109, 139, 163
Smithsonian Associates member, 63
Hagen, Howie, 82
Haig, 128-29, 132, 135, 206-07
Haldemanm H. R., 141
Harris, Kamala, 157
Hastings, Alcee, 207-08
Hauser, Richard (Dick), 205
Heimann, Fritz, 222
Heineman, Ben, 188, 196, 222
Hickey, Pat, 262
Hoover, J. Edgar, 97, 201-03, 205, 213
Hughes Hubbard and Reed, 73, 75, 164-65, 167, 169, 172-73, 186, 190, 192, 215, 234-35
Hughes, Jr., Charles Evans, 72
In the Matter of the Jewels of the Princess of Orange (case), 146-47
Jackson, Robert, 248
Jaworski, Leon, 133-36, 138, 140-41, 143, 147, 158-59. 172
Johnson, Andrew, 207
Johnson, Frank, 204
Jordan, Bob, 217
Kagan, Elena, 210
Kearse, Amalya, 73
Kennedy, John
administration, 44, 78, 113
assassination, 43
Kennedy, Ted, 271
Kirk, Grayson, 43
Kleindienst, Richard, 115, 117
antitrust case, 117
Korematsu (case), 243, 246
Kreindler, Peter, 120, 125, 131, 148, 153, 172
Kriegel, Jay, 79-80
Lacovara, Phillip, 125A-4
Lacovara, Christopher (son), 250
Lacovara, Madeline Estelle (wife), 20, 31-32, 46, 91, 100, 126, 130, 193, 214, 222, 255, 258, 264
Lacovara, Michael (son), 249
Lano, Angelo, 130
Lawton, Mary, 203
Leary, Timothy, 67
Legal Times (newspaper), 208, 249
Leventhal, Harold, 36, 39-40, 49-54, 74, 162, 172, 183, 255, 257-58, 260, 264-65
Leventhal, Kay, 264
Lindsay, John, 78-80
Talent Bank, 78
Linowitz, Sol, 163
litmus testing, 209, 271-72
Lumumba, Patrice, 41
Mar-A-Lago (case), 102
Mardian, Robert, 141
Marshall, Cissy, 59-61
Marshall, Thurgood, 36, 56-58, 60-62, 64, 69, 178, 211, 228
Thurgood Marshall Award, 178
Martin, John, 63, 67, 107, 191, 236
McCord, James, 111, 131
McGautha v. California (case), 66
McGowan, Carl, 54, 258-59
McGrory, Mary, 1
McPherson, Harry, 171
Merck & Company, 182
Messinger, Ruth, 192
Midnight in Paris (movie)
by Woody Allen, 266
Millstein, Ira, 193, 222
Mitchell, George, 141
Mitchell, John, 112, 115
Morgan Stanley, 194, 221-28, 231-32
Murphy, Betty, 81, 91, 126
Murphy, Pat, 80-81, 85, 92, 126
Police Foundation President, 126
National Defense Education Act. 33
National Law Journal (magazine), 249
New York Daily News (newspaper), 17
New York Historical Society, 200
New York Times (newspaper), 95-96, 98, 208-09
Niles, Russell, 34
Nixon v. Sirica (case), 141
Nixon, Richard, 1, 48-49, 62, 90, 109, 112, 117-120, 123-25, 135, 138-40, 142, 149, 152, 154-
60, 205, 208, 244, 247A-5
tapes case, 161, 190
Nkrumah, Kwame, 24, 41
O’Connor, Sandra Day, 272
Obama administration, 94
Ogletree, Charles, 262
Organization of American States, 163
Pacino, Al, 229
Palmer, A. Mitchell, 105
Parkinson, Kenneth, 141
PDS (Public Defender Service), 220, 262, 263
Penn, John Garrett, 207
Pentagon Papers (case), 117
pers
Ellery Queen Mystery Magazine, 8
father
Columbia Law Review,, 2
Columbia Law School, 2
general counsel of the Fiduciary Trust Company, 2
Pers
birth Brooklyn, New York, 1
born in Brooklyn, New York, 1
cadet colonel, 15, 200
Catholic upbringing.
chiildhood, 6
Classic Comics,, 7
Cold War, 12, 13, 37, 90, 231
colonel, 17, 22
Columbia Law School, 2, 8, 22, 33, 34, 35, 36, 37, 38, 39, 41, 43, 51, 52, 54, 63, 101, 249, 259
Columbia Law School Students for Goldwater co-chairman, 42
Columbia Law School teaching, 94
Columbia University, 202
Cuban Missile Crisis, 231
father a trusts and estates lawyer, 2
Georgetown University, 11, 15, 23, 24, 25, 26, 28, 29, 30, 31, 32, 39, 41, 47
grandfather was a pharmacist, 1
greening of Philip Lacovara, 178, 246
importance of civility in practice, 267
inveterate television watcher, 9
legal profession now more dollar-centered, more aggressive, more all-consuming, 266
military science. at Xavier, 14
mother comptometer operator, 3
mother training as a seamstress, 3
Niece Rachel, 4A-6
prejudice father, 28
Readers Digest, 7
role did religion play in your family life, 6
some reflections to share on some of the horrible civil rights tragedies in the South in the mid-
1960s, 44
the Legislative Research Drafting Fund, 37
thoughts on “sharp practice”, 268
thoughts on the structural factors that have led to the court’s diminished public repute and
therefore the diminished public acceptance of the validity and legitimacy of its decisions,
274
unitary executive theory, 247
why the confidence in the court has fallen to its low ebb now, 270
Xavier, 6, 10, 11, 13, 15, 17, 18, 19, 20, 21, 22, 23
Xavier at Xavier, we had I think ultimately when I became a cadet colonel, 13
Xavier character development, 18
Xavier High School, 6, 10, 15, 200
Xavier speech and debate club, 19
PERS
sisters, 4
Petersen, Henry, 129, 133, 138, 140
Phillips, Carter, 234
Pincus, Andy, 235
Plessy v. Ferguson (case), 243, 246
Posner, Dick, 63
Praof
nickname “No Notes Lacovara”, 107
Prettyman, E. Barrett, 49, 54
Prince of the City (movie), 228
Prof
ABA International Human Rights Trial Observer Project, 179
Admissions Committee chair, 255
Advisory Committee on Procedures for the D.C. Circuit, 254
arbitrations and mediations, 242
arbitrator, 240
atmosphere in the SG’s Office, 109
Belgrade Six, 179
chair of the Committee on Procedures, 254
chairing the section of what was then called Section of Individual Rights of the American Bar
Association, 59
chairman of the Board of Trustees of the District of Columbia Public Defender Service, 261
Committee on Admissions, 261
counsel to the Watergate special prosecutor, 151
D.C. Bar, 205, 216, 217, 218, 219, 220, 221
D.C. Bar as chairman of the Code Committee of the D.C. Bar XE “Prof:D.C. Bar” Ethics
Committee, 217
D.C. Bar President, 220A-7
D.C. Bar pro bono projects, 220
deputy solicitor general for criminal and internal security cases, 104
deputy solicitor general for criminal matters, 138
Dirty Tricks taskforce, 117
District of Columbia Judicial Nomination Commission, 206, 262
Ellsberg break-in, 116
GE, 188, 189, 190, 191, 192, 193, 197, 198, 199, 217, 218, 219, 221, 222, 223
GE appliance business, 197
GE Capital, 189, 198
GE management, 230
GE vice president and senior counsel for litigation and legal policy, 189
Hughes, Hubbard, and Reed (New York law firm), 56
Hughes, Hubbard, and Reed (New York law firm) previously Hughes, Hubbard, Blair and
Reed, 72
INSEAD, the European institute of business administration in Fontainebleau for the executive
development program, 223
JAMS, originally the Judicial Arbitration and Mediation Service,, 237
Joint Terrorism Task Force, 81
lobbying for what’s now called Big Pharma, 175
Mayer Brown, 227, 232, 234, 235, 236, 237, 241
Mayer Brown head of the pro bono program, 237
Mayer Brown pro bono asylum cases, 238
Mayer Brown Supreme Court XE “Supreme Court” specialty practice, 234
mayor’s task force on prostitution and pornography liaiaon, 89
member of the Judicial Conference of the Circuit, 255
Northwest Airlines, 173, 183
NYPD, 65, 66, 78, 83, 90, 91, 92, 93, 94, 95, 96, 98, 100, 101, 126, 176, 201, 228
NYPD equal opportunity, 86, 87, 88
NYPD special counsel to the police commissioner, 80
post Watergate period, 174
pro bono efforts, 178
SEC investigations and litigation, 173
Solicitor General’s Office, 164
Special Assistant to the Attorney General, 75
special assistant to Thurgood Marshall, 58
teaching at John Jay College and at Hunter College, 232
Watergate, 66, 81, 98, 102, 109, 110, 112, 116, 124, 129, 137, 138, 139, 140, 141, 150, 151,
161, 162, 170, 172, 190, 202, 210, 212, 218, 222, 228, 229, 230, 234
investigation, 149
prosecution team, 172
special prosecutor, 156
Watergate Special Prosecution Force, 128
Watergate break-in, 139
Watergate prosecutor’s office, 190
Watergate Special Prosecution Force, 116, 127, 130, 132
Watergate special prosecutor., 115A-8
Watergate Special Prosecutor’s Office, 230
Prof:, 116, 220
Public Interest Research Group, 177
Raven Rock (book)
by Garrett M. Graff, 33
Reagan administration, 183, 186, 199, 205, 247
Reagan, Ronald, 186, 206-07
Richardson, Elliot, 112, 128, 134, 140, 160
Rifkin, Bob, 63
Rizik Brothers, 71-72
Roberts, John, 107, 119, 142, 243, 247-48, 234
Robinson, Spotswood, 58
Roe v. Wade (case), 209, 271
Roosevelt, Teddy, 80
Ruckelshaus, Bill, 128
Ruth, Henry, 120, 125, 127, 139
Samuels, John, 189
Saturday Night Massacre, 110, 121-22, 125, 127, 131-32, 135, 140, 154, 210-11
Scalia, Antonin (Nino), 15, 17, 185, 190, 199-200, 268
Schlesinger, James, 158
Schmaltz, Ed, 190
Schmidt, Hans, 38
Schumer, Chuck, 224
Schwartz, Fritz, 203
SCI clearances (Sensitive Compartmented Information), 117
Second Circuit, 57, 73, 167
Segretti, Donald, 112
Senate Select Committee on President Campaign Activities, 113, 212
Serpico (movie), 228
SG. See Solicitor General
Shapiro, Irving, 202
Shapiro, Jerome, 74
Shapiro, Stephen, 234
Sheffield, William (Bill), 212-13, 216
Sirica, John, 111, 122-23, 131-32, 137, 141, 148, 257
Solicitor General’s Office, 50, 56, 62, 66, 69-70, 101, 104, 107, 114, 163, 234
Stennis, John, 135
Stevens, John Paul, 272
Stone, Harlan Fiske, 73
Subversive Activities Control Board, 108
Supreme Court, 1, 15, 39, 51, 54, 57, 59, 61-62, 64-65, 69, 72- 76, 99, 106- 08, 110, 119, 121,
123-24, 127, 137-38, 141, 143, 145, 149, 151-52, 154-55, 157, 160, 162, 166-67, 172-73, 182-
84, 187-88, 199, 208-11, 232, 234, 242-46, 257, 267-73, 275
ruling on immunity, 119A-9
tapes case, 141, 155
Watergate, 140
Watergate opinion, 147
Supreme Court Historical Society, 166, 199
Tamm, Edward, 54, 258
Tenure of Office Act, 207
Time (magazine), 150
Tolson, Clyde, 201
Tribe, Laurence, 40
Trump v. the United States (case), 102, 160, 243, 247
Trump, Donald, 157, 193, 233, 242, 246
U.S. Law Week (magazine), 269
United States Football League (USFL), 172
United States of America v. Richard Nixon, President of the United States (case), 142, 147, 243
United States v. Nardello (case), 67, 70
US Law Week (magazine), 162
Verner, Liipfert, Bernhard & McPherson, 172
Vietnam War, 200
Vorenberg, 114, 115
Vorenberg, James, 113-15
Ward, Ben, 86-87
Washington Lawyer (magazine), 147
Washington Post (newspaper), 111
Washington Star (newspaper), 1
Watergate
Ervin Committee, 112-13, 212
Select Committee on Presidential Campaign Activities, 112
Watergate Girl (book)
by Jill Wine-Banks, 230
Wechsler, Herbert, 35, 37-38, 52
Weil, Gotshal & Manges, 222
Weinstein, Harris, 63
Welch, Jack, 169, 188-89, 193-94, 196, 199, 217, 223
Neutron Jack (nickname), 197
Wendt, Gary, 198
William Borders v. Ronald Reagan, Alexander Haig and Philip Lacovara (case), 207
Williams and Connolly, 164-65
Williams, Treat, 229
Wine-Banks, Jill
formerly Jill Wine-Volner, 229
Woodward, Bob, 111
Wright, Jay Kelley, 172
Wright, J. Skelly, 54, 63, 172, 258A-10
Young Turks, 175B-1
Oral History of Philip Lacovara, Esq.
Cases and Statutes
Cases
Almeida-Sanchez v. United States, 413 U.S. 266 (1973), 105
Austin v. United States, 509 U.S. 602 (1993), 69
Berger v. United States, 295 U.S. 78 (1935), 156
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), 271
Donald J. Trump v. USA, No. 22-13005 (11th Cir. 2022), 102
Dred Scott v. Sandford, 60 U.S. 393 (1856), 243, 246
In the Matter of the Jewels of the Princess of Orange, 2 Opin.A.G. 482 (1832)
Korematsu v. United States, 323 U.S. 214 (1944), 243, 246
McGautha v. California, 402 U.S. 183 (1971), 66
New York Times Co. v. United States, 403 U.S. 713 (1971), 117
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973), 141
Plessy v. Ferguson, 163 U.S. 537 (1896), 243, 246
Roe v. Wade, 410 U.S. 113 (1973), 209, 271
United States v. International Telephone & Tel. Corp., 349 F. Supp. 22 (D. Conn. 1972), 117
United States v. Nardello, 393 U.S. 286 (1969), 67, 70
United States v. Nixon, 418 U.S. 683 (1974), 142, 147, 161, 243
William Borders v. Ronald Reagan, Alexander Haig and Philip Lacovara, 518 F. Supp. 250
(D.D.C. 1981), 207
Statutes
Glass-Steagall Act (Banking Act of 1933), 12 U.S. Code § 227, 225
National Defense Education Act, Pub.L. 85-864 Stat. 1580, 3
Tenure of Office Act, Pub. L. 39–154 14 Stat. 430, 207Philip Allen
Lacovara
Experience
Management and business; arbitration and mediation; corporate legal
counseling, including securities, antitrust and corporate governance;
litigation, including Supreme Court, appellate and trial litigation and regulatory
enforcement; academic research, teaching and lecturing; government
service and public policy formulation..
Professional Employment
 Independent commercial arbitrator in international and domestic disputes;
legal consultant, 2004 – to date.
 Mayer Brown LLP: Partner, New York and Washington, D.C.,
1993-2003; Senior Counsel, 2004 – to 2016.
 JAMS, The Resolution Experts: New York and Washington, D.C.,
arbitrator and mediator, 2004 to 2006.
 Morgan Stanley & Co., Inc: Managing Director, General Counsel, and
member of Management Committee, New York, 1990-1993.
 General Electric Co.: Vice President and Senior Counsel for Litigation
and Legal Policy, Fairfield, CT, 1988-1990.
 Hughes Hubbard & Reed: Partner-in-Charge, Washington, D.C.,
1974-1988; Associate, New York City, 1969-1971.
 Watergate Special Prosecutor’s Office: Counsel to the Special
Prosecutor, Washington, D.C., 1973-1974.
 Office of the Solicitor General, Department of Justice: Deputy Solicitor
General of the United States, 1972-1973; Assistant to the Solicitor General,
1967-1969, Washington, D.C.
 New York City Police Department: Special Counsel to the
Police Commissioner, New York, 1971-1972.
 U.S. Court of Appeals for the District of Columbia: Law Clerk to United
States Circuit Judge Harold Leventhal, Washington, 1966-1967.
Education
 Executive Development Program, European Institute of
Business Administration (INSEAD), Fontainebleu, France, Fall 1989.
 Columbia University, J.D. summa cum laude, 1966. First in class each
year. Awarded John Ordronaux Prize as outstanding graduate. Chairman of
Board of Visitors, 1991-1995.
 Georgetown University, B.A. magna cum laude, 1963. Pi Sigma Alpha.
Publications
Articles published in Columbia Law Review, Yale Law Journal, Harvard
Journal of International Law, Arizona Law Review, Minnesota Law
Review, Inter-American Law Review, St. John’s Law Review, Law &
Contemporary Problems, New York Times, Washington Post, Los Angeles
Times, National Law Journal, and others.
Lectures
Academic lectures presented at Yale Law School, Columbia Law School,
Duke University, United States Military Academy (West Point), University of
Arizona, Arizona State University, Marymount Manhattan College, Hunter
College and others.Teaching
Formerly: Adjunct Professor, Department of Political Science, Hunter College
of the City University of New York; adjunct lecturer, John Jay College of
Criminal Justice, City University of New York; Adjunct Professor of Law,
Georgetown University Law Center and Columbia Law School.
Professional Associations
 American Bar Association: formerly: Chair, Section of Individual
Rights; Chair, ABA Special Committee on Amicus Curiae Briefs; and
member, ABA House of Delegates (Delegate from the District of Columbia Bar).
 District of Columbia Bar: President, 1988-1989; formerly General Counsel
and member of Board of Governors.
 American College of Trial Lawyers.
 American Association of Appellate Lawyers
 American Law Institute (Life Member)
Civic
 Counselor/Legal Adviser, Permanent Observer Mission of the
Sovereign Military Order of Malta to the United Nations, 2005 – 2020.
 Appointed by Governor Cuomo to the New York State Superintendent of
Banks Advisory Commission on the Regulation of Transnational Banking
Institutions, 1991-1992.
 Appointed by President Reagan to Judicial Nomination Commission for
the District of Columbia, 1981-1985.
 Other appointments include Chairman of the Board of Trustees of District
of Columbia Public Defender Service, various judicial conferences, and
court committees, and not-for profit boards and foundations..
Honors
 Chambers & Partners, Award of Excellence for Outstanding Contribution to
the Legal Profession, 2006.
 Charles A. Horsky Award for Outstanding Lawyering, Brennan Center
for Justice at New York University School of Law, 1997.
 Columbia University Medal for Excellence, awarded by Trustees of
the University, 1975.
Bar Admissions and Certifications
 New York, 1967  District of Columbia, 1974  U.S. Supreme Court, 1970
 U.S. District Court for the Southern, Eastern, and Northern Districts of New
York and for the District of Columbia  U.S. Courts of Appeals for the First,
Second, Third, Fifth, Seventh, Eighth, Ninth, Eleventh and District of
Columbia and Federal Circuits.
 Solicitor of the Supreme Court of England and Wales, 2003.
 Member, London Court of International Arbitration.
 Fellow, College of Commercial Arbitrators
 Fellow, The Chartered Institute of Arbitrators (London).D-1
Carrie Johnson
Biographical Sketch
Carrie Johnson is NPR’s National Justice Correspondent. She covers a wide variety of
stories about justice issues, law enforcement, and legal affairs. Johnson regularly appears on
the NPR Politics Podcast.
Prior to coming to NPR in 2010, Johnson worked at the Washington Post for 10 years.
Earlier in her career, she wrote about courts for the weekly publication Legal Times.
Her work has been honored with awards from the Robert F. Kennedy Center for Justice and
Human Rights, the Society for Professional Journalists, and SABEW. She served as a fellow
at the Nieman Foundation for Journalism at Harvard University from 2019-2020. In 2021,
the National Association of Criminal Defense Lawyers honored Johnson with a rarely
bestowed Champion of Justice award for her journalism work.
She has been a finalist for the Loeb Award for financial journalism and for the Pulitzer
Prize in breaking news for team coverage of the massacre at Fort Hood, Texas.
Johnson is a graduate of the University of Wisconsin-Madison and Benedictine University
in Illinois. She sits on the advisory board for the Center for Journalism Ethics at UW -M and
the Historical Society of the D.C. Circuit.