Phillip Allen Lacovara Interview 3

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.