Phillip Allen Lacovara Interview 4

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.