Phillip Allen Lacovara Interview 5

138
Oral History of Philip Lacovara, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Tuesday, August 27,
2024. This is the fifth interview.
MS. JOHNSON: Good afternoon. Thank you so much for rejoining me.
MR. LACOVARA: Nice to be with you again.
MS. JOHNSON: When we left off, you were talking about special prosecutor Leon
Jaworski and how he came into the Watergate office at a challenging time
and that he managed to overcome in some ways some skepticism from
some of the people who remained in the office after Archie Cox left. I
want to pick up with a couple of questions about other people you
interacted with during that period and then move into the Supreme Court
activity. You mentioned Henry Petersen, who at the time was head of the
Criminal Division of the Justice Department. His role in the last fifty years
has come under additional scrutiny, in part because some people suggest
that Petersen may have been sharing information with Nixon’s lawyers or
people inside the Nixon White House. Did you have any question about
that at the time? Any question about your interactions with Petersen and
their professionalism at the time? What were they like?
MR. LACOVARA: I had known Petersen before Watergate because he was the head of the
Criminal Division, as you mentioned, and before becoming Cox’s special
counsel. I was the deputy solicitor general for criminal matters, so I had a
fair number of dealings with the Criminal Division, and a couple of them
involved Petersen. Most of them never rose to the level of requirement.139
My impression of him at the time was he was professional Justice
Department and a straight shooter. We had dealings during Watergate only
very briefly because once Cox was fired, what Bob Bork as acting
attorney general did was to put the Watergate special prosecution force
under Petersen’s supervision since it was a criminal investigation. Within
a day or two of that assignment being made, Henry Ruth and I went over
to the Justice Department to meet with Petersen, and it was an extremely
unpleasant experience. It suggests that there may be some credibility to the
subsequent speculation that Petersen may have been providing information
to the extent he was able to get it to Nixon’s lawyers.
The experience was essentially the following. Ruth and I explained
why it was important that there be a special counsel or a special prosecutor
separate from the regular career Justice Department personnel, including
him. One of the things that I mentioned to him about the sensitivity of the
pending investigations is that one of the task forces, not the Watergate
break-in but the matter that involved the settlement of a major antitrust
case, could involve not only the former deputy general Kleindeinst, but
also my recent boss, Dean Griswold, the Solicitor General. When Petersen
heard that, he exploded and made some highly personal comments
directed at me, vulgarities and the kind of condescending expletives that I
would even suggest that there was a basis for any investigation along those
lines. I told him that I was explaining to him what was part of the charter
of the Special Prosecutor’s Office as the former attorney general Elliot140
Richardson had crafted it and that the whole point of this was not to
assume that anyone was either guilty or innocent but to make sure that
there was a fair and accurate and reliable and credible inquiry.
Ruth and I then left understanding that this was going to be at best
a very ticklish relationship if it proceeded. History shows that the
firestorm that the Saturday Night Massacre provoked forced President
Nixon to appoint a new special prosecutor, Leon Jaworski. So, we rather
quickly, and I think fortunately, were removed out from under Henry
Petersen and reinstated as an autonomous unit of the Justice Department.
MS. JOHNSON: Thank you so much for that explanation. It sounds like your direct
dealings with Petersen were largely limited to that particularly unpleasant
meeting.
MR. LACOVARA: Limited, and happily so, because it was so unpleasant. I would say that I
can’t think of anyone in my life who treated me the way Henry Petersen
did that morning.
MS. JOHNSON: It’s been a long life.
MR. LACOVARA: It’s been a long life, and fortunately that was exceptional. Fortunately for
me.
MS. JOHNSON: Thank you for sharing that. Jaworski comes on board, as you mentioned.
He’s treated with some skepticism, some informality, as you mentioned in
our last session by other staffers on the Watergate team, and yet the cases,
the investigations, proceed. You wind up with an oral argument date
before the Supreme Court in early July of 1974. If you remember, how did141
you decide to prepare for that, and how did you decide who was going to
speak at that argument?
MR. LACOVARA: Let’s go back a little bit before the oral argument date was set. There was
a real strategy at play in handling the case up to the Supreme Court. Leon
was largely out of the picture in terms of crafting the strategy. This was
not anything that he felt comfortable doing. He did not view this as his
strong suit. As I mentioned, I believe, in the earlier interview, his strength
was in getting the investigations back on track and giving the staff enough
leeway to pursue them. He was not directly involved in framing legal
strategy, such as regarding the tapes subpoena that culminated in the
Supreme Court decision.
Let’s go back to the effort to enforce the subpoena. This was a trial
subpoena issued in the Watergate coverup case for evidence that we
thought would bear on culpability of the defendants in that case, Mitchell,
Ehrlichman, Haldeman, Mardian, and Parkinson. Judge Sirica, not
surprisingly, enforced the subpoena, and the President, as he had in the
original grand jury subpoena context, applied to the D.C. Circuit for a writ
of mandamus. That original mandamus had resulted in a case called Nixon
v. Sirica. At that point, we did not want to have a long delay in the trial or
the scheduling of the trial, so based on my experience as at least a short-
term Supreme Court lawyer, I decided that what we should try to do is to
get immediate Supreme Court review through a process known as petition
for certiorari before judgment. At the time, that was an extraordinary142
mechanism. I think there had been only one case perhaps in the prior
twenty years in which the Supreme Court had exercised its statutory
authority to review a case that’s technically in the court of appeals but
before the court of appeals has acted on it or decided it. Now with the
current Roberts court, they’re only too happy to reach down to invalidate
something that the Biden administration has done or to sustain President
Trump’s various arguments or the arguments by Republican attorneys
general around the states.
In any event, it seemed that it was a shot worth taking. It wouldn’t
cause much of a delay if it was unsuccessful. So, we petitioned for
certiorari before judgment. One of the consequences of this, and it was
part of the strategy, was to enable us at that time to frame the caption of
the case so that the case was labeled by us in our petition. Now in history
the case has been known as the case of the United States of America v.
Richard Nixon, President of the United States. This was part of the larger
strategy of trying to frame the essential proposition that was going to be at
issue which was, is the president entitled to withhold evidence because of
his role as president or is he simply for purposes of a legal proceeding
simply like any other witness. Therefor it seemed to me important as part
of the theatre of constitutional litigation to demonstrate that we
represented the sovereign people of the United States, and Richard Nixon
was simply a person who was the custodian of evidence that was material
to a legal proceeding.143
That was part of the strategy. The next part of the strategy was,
who should argue the case. Leon’s original view was I should argue it
alone because I was a Supreme Court lawyer, as he saw it at least. I had
argued a whole bunch of cases before that, and I knew the theories on
which we were relying, and he did not view himself as comfortable with
both, if you will, the substantive constitutional issues about executive
privilege or even the technical issues about the standards for enforcing an
evidentiary subpoena.
My response was, the country expects you to argue the case. You
are the special prosecutor. I am just an anonymous staff person. His
rejoinder to that was, well, let’s compromise. I’ll argue first, and then you
can have the rebuttal. The way we divided it up, and this was partly his
choice, and I think many commentators agree that it was fortuitous, was
that he would have 45 minutes of the hour-and-a-half the Court had
authorized for each side, and I would have 45 minutes. As you know,
normally in any Supreme Court argument, if it’s a half hour, perhaps
three, four, or five minutes will be saved for rebuttal. It’s never thought to
be a rebuttal if half the time is reserved for it. So that was a recognition
that he expected me to play a much larger role in the case than would
otherwise have been the role of his sidekick, as the country would view it.
Another part of this story was that I said part of the strategy was
demonstrating that we were the United States, and therefore there were
some other things that we should be doing as part of what I called the144
theater of this demonstration. One was I said we make sure that we sit
where the solicitor general is accustomed to be sitting, a particular side of
the lectern, and I said the other thing is that government counsel, and we
are representing the government of the United States, wear formal dress,
cutaways, morning suits. I said, so we need to be wearing our cutaways.
He drew the line there. He said “under no circumstances. Just be happy
I’m not going to wear my cowboy boots.” I remember that exchange
vividly. So that’s how we both wound up wearing our dark blue go-to-
court business suits, which had another humorous little side to it. When I
was getting ready to go up the court in my dark blue go-to-court-other-
than-Supreme-Court suit, my secretary tried to cut off a thread dangling
from my suit coat. Her hand was trembling, and she accidentally sliced
off a part of my suit coat.
MS. JOHNSON: Thank you for sharing that remembrance. Did you do a lot of moots? How
did you prepare for what you knew was going to be an historic argument
and maybe also a difficult one where how you looked and how you
sounded really mattered?
MR. LACOVARA: As I mentioned in an earlier session, my style by that time was not to do
formal moot court and not to use notes at the lectern. My preparation was
re-reading the key authorities, going over the brief, preparing an outline.
I’m sure I did an outline of the points that I wanted to make. Normally it’s
hard to prepare an outline for a rebuttal, and I had been involved in trying
to brief the special prosecutor on the points that he was expected to make,145
the main themes. It was not an easy process because he was clearly not
comfortable. For a man who was really at the top of the litigation
profession, and he had been president of the American Bar Association, he
was surprisingly ill at ease about the responsibility for taking the lead
argument in this case when the country was watching. Nevertheless, I
prepared a full argument in case I had to give one as part of the rebuttal,
which is really what turned out to be the case. The Court gave me ample
opportunity to make some affirmative points as part of the rebuttal, and I
was able to pretend, if you will, that these were really rebuttal points when
what I was trying to do was to shore up our own main arguments. So, what
I gave in my 45 minutes was essentially the same argument that I would
have given if I’d opened as the lead for the United States in the case.
I remember there was just one experience as part of the preparation
that was disquieting. I had not read all of the authorities that my staff
members had pulled together in preparing the draft brief that we ultimately
filed. One of the key issues before the Supreme Court was whether a
subordinate official in the Department of Justice, such as the special
prosecutor, could act independently of the president’s own decision. That
is, the president here had made clear he did not want this information
released, and yet here was a subordinate in the Justice Department
demanding that it be produced in contravention of the president’s view
about what reflected the best position and the best interest of the people of
the United States. One of the authorities that we cited for the proposition146
that the special prosecutor had the legal authority to do so as long as in
office as special prosecutor was an opinion of the attorney general from, I
think, 1841. Don’t hold me to the precise date. It was In the Matter of the
Jewels of the Princess of Orange. There was a quote in there that so long
as the United States Attorney was in office, he had the authority to pursue
the forfeiture of the jewels of the Princess of Orange, regardless of the
president’s view about the foreign policy implications. This is from 130
years earlier. It seemed like a great quote. Right on point. In preparing for
the argument, I asked the young lawyer on my staff who had come up with
this authority and quotation to get me the full opinion of the attorney
general so that I could read it. It did contain that quote. Unfortunately, it
was in the context of the attorney general saying yes, the United States
Attorney has this technical legal authority, but it would be hard to imagine
a more flagrant disregard for his duties of loyalty. And it went on and on
and on to excoriate the United States Attorney for taking this independent
position in defiance of the chief executive.
I was mildly embarrassed by the whole thing, hoping that none of
the justices on the court or their clerks would come upon that opinion,
even though technically it supported our view. Much of the law and much
of precedent is about the gestalt, and so the gestalt of this opinion was
basically that subordinates really need to pay attention to what the boss
wants in determining what’s in the national interest.147
Anyway, it never came up. It was not cited in the Supreme Court
opinion, and I don’t know that anybody in the last fifty years has ever
come upon an opinion of the attorney general in In the Matter of the
Jewels of the Princess of Orange.
MS. JOHNSON: Still, sounds like that anecdote contains a lesson for future lawyers.
MR. LACOVARA: I have used that incident in training younger lawyers about the danger of
relying on snippets without understanding the context, and as I say, the
gestalt, or the tone, or the theme, or the melody of the case. So, you can
find the lyrics, but what you really want to be sensitive to, if you’re going
to be an effective lawyer, is the melody.
MS. JOHNSON: Also, the idea that if you miss the broader context and a justice or a
justice’s clerk goes back and searches that authority and finds the broader
context, you’ve just damaged your reputation potentially.
MR. LACOVARA: Your credibility. I gave an interview in one of the Washington Lawyer
magazines where I used what would probably be today an offensive
quotation, but I said if you lose your credibility, your whole case collapses
like a wet taco.
MS. JOHNSON: You certainly did not want that to happen in the case that you worked so
hard to style, the United States v. Richard Milhous Nixon, President of the
United States.
MR. LACOVARA: Exactly.
MS. JOHNSON: I went back and listened to the argument a couple of weeks ago. There
was a moment where Jaworski was struggling a little bit to answer148
questions about Judge Sirica and his role in the case, and I think you
wound up passing him a note to help clarify. Do you have a memory of
sitting there and taking notes and passing them to Jaworski on this day in
July 1974?
MR. LACOVARA: I actually don’t. I would say that I don’t remember that incident
specifically. I would say that if I did it, it must have been because he was
struggling too badly or had misstated something in the record, because one
of the things that I observed from my time in court was that the worst
thing that you can do to a lawyer who’s arguing is distract him by passing
him a note. It suggests that he is flailing, and the worst thing that you want
your team to signify is that the person who’s actually up there on his feet
or her feet is doing such a bad job that a rescue effort like a life preserver
in the form of a little note needs to be tossed.
MS. JOHNSON: What was your feeling, Philip? Do you remember what kind of feeling
you had leaving the court that day?
MR. LACOVARA: There were two thoughts going through my mind. One was, well three,
because there was a huge crowd outside, so it was kind of daunting to
make our way through the crowd. Second thought, the substantive one,
was I think it went pretty well. As I may have mentioned in an earlier
session, if we went back seven or eight or nine months to when we first
decided that we would go after the first round of tapes, we had done some
vote counting, Cox, Peter Kreindler, just off the clerkship with Justice
Douglas, and I, and we thought we could get a majority of the Court to149
sustain our demand for the White House tapes over the President’s
objection. We never imagined that we would get a unanimous decision,
although that became an extremely important goal in light of President
Nixon’s announcement that he reserved the right not to comply with the
Supreme Court decision against him unless it was definitive. That
statement led to about the only carefully rehearsed part of my oral
argument that I did deliver, which was the closing comment urging the
court to render a definitive decision. Everybody, including the justices,
understood that this request was designed to have the court uphold the
validity and enforceability of a decision against the president in a way that
would not have given him room to defy the outcome if it went against
him. So, the second thought was it had gone well. I did not at that point
forecast the unanimous decision, although that’s what I was arguing for.
The third thought that went through my mind was, I’ve got to get
home because I’ve got to change. I’ve got to get from my blue suit into my
shorts because we’re late for our holiday. Months earlier, we had booked a
one-week family holiday out at Rehoboth, I think it was Rehoboth,
Delaware, or Ocean City, Maryland. We alternated. The family had not
had much time together during the prior year thanks to the demands of the
Watergate investigation, so we had a Saturday-to-Saturday rental. The
Supreme Court argument was not anticipated when we booked and paid
for this Saturday-to-Saturday rental, and we’d already missed Saturday
and Sunday, and we were going to lose most of Monday.150
My wife and children, who, as I’ve said repeatedly, were
extremely understanding of my other commitments and were getting
pretty darn impatient that here was Watergate impinging on their lives in a
way that it didn’t affect most Americans in the United States. So I raced
home. I was home probably by 1:00. By about 1:30, we were in our big,
old Dodge station wagon on our way to the Eastern Shore. It was only
when I got there that I began hearing on the news what the spectators,
particularly the correspondents from the major networks and Time
magazine, etcetera, thought was their view of how the argument had gone.
Their view was reassuring in that they thought, first of all, I had done a
creditable job in handling my part of it and that the court seemed to be
responsive to the arguments that our side had been making.
MS. JOHNSON: Did you have the kind of personality where you could listen to those news
reports in the evening on television and the radio and then actually take a
few days off with your family? Do you have the kind of mind that can
kind of turn things on and off in that way?
MR. LACOVARA: I would say yes. It’s a discipline that I developed early on. As I
mentioned, I was married while still in college. We had one and a half
children while I was still in college. I also mentioned that I frequently
would have the television on in the background, either as white noise or
otherwise, so I did develop a way of intellectually compartmentalizing
things or filtering out the different elements of my life and lifestyle so that
I could focus on one thing at a time.151
After the Monday morning argument, I was no longer counsel to
the Watergate special prosecutor. I was the husband and father who was
taking his family to the beach for a somewhat abbreviated summer
vacation of four or five days rather than seven days. I wouldn’t pretend
that I wasn’t in touch with the office to get a sense of what else was
happening and getting reactions. There were some calls I’m sure from
press people for reactions at the time.
MS. JOHNSON: You get back to Washington, and it’s a wait of a few weeks before the
Supreme Court decision comes out. Do you remember what that wait felt
like? Did you anticipate a decision sooner than that or not?
MR. LACOVARA: I think the decision came out about as soon as we could have hoped. We
knew that there were a number of complicated issues that had to be
resolved. Now from seeing what has been exposed in the papers of the
justices and some of the memoirs and interviews that have come out since
then, we know what the mechanisms were that Burger organized, with
different justices drafting different pieces of the opinion on different
issues. Lots of horse trading went on in that period. That was not known at
the time, and so when the case came out with Burger appearing to write
for a unanimous court, it made it seem a lot simpler and obvious an
outcome than it was either when we were arguing the case, briefing and
arguing the case, or when we were arguing it. We now know that it
wasn’t as obvious inside the court during the deliberations and that the
ultimate unanimous opinion was the product of a good deal of152
compromise so that in a constitutional sense, Richard Nixon lost the case,
but the presidency won the case because the court established for the first
time that there is such a thing as executive privilege, and more important,
this is what the conservatives in the court demanded, it is based upon the
separation of powers. So, it’s a constitutionally based privilege not simply
a judicially created common law type privilege. As we understood at the
time, over the longer run, this was going to be an important weapon that
future presidents would use to withhold information even though Richard
Nixon, unfortunately for him, was going to have to turn over information
that turned out to be the undoing of his presidency.
MS. JOHNSON: I’d love to talk later on in a few sessions from now about how that power
the Supreme Court gave future presidents came to bear out for over many
decades and presidents of both political parties to the present day, for sure.
MR. LACOVARA: Absolutely. I was on the phone this morning with a Senate staff person
talking about this very issue, how presidents tend to aggrandize power,
and no president cedes any power that a predecessor has wielded or
usurped. It’s a one-way ratchet, as they say, and that is certainly true with
executive privilege and other kinds of executive assertions.
MS. JOHNSON: Thank you for that. To be continued. The decision comes down. Did the
Office have a celebration? Did you have a personal celebration, or was
this more of a sober moment for the Office and for you personally?
MR. LACOVARA: It was sober. I don’t remember any sort of partying or cracking open a
bottle of champagne. As you may know from photographs of the day, we153
got a notice from the Clerk’s office that a decision would be released that
morning, the 24th of July 1974. I do remember that date. Leon and I went
up to the court with our government-issued car, parked in the basement of
the court as the Solicitor General and others were entitled to do at that
time. I don’t know whether that’s still possible given security needs. So
there we were. We waited. The court came in, and the chief announced the
decision. I don’t remember how long the announcement was, but what I do
recall was that I was waiting to hear ‘and Justice So-and-So has filed a
dissenting opinion.’ And after the chief announced the opinion and
judgment of the court, he said the court is adjourned. I think it adjourned
for the term. And that was it.
So that was the realization that this was a unanimous decision that
the president was going to have to turn over the tapes that we were
seeking. We made our way back out through another somewhat smaller
crowd, went back to read the opinion, and it was then that we realized that
the court had accepted some of what we’d argued on the key issues, that
the president is not above the law. The president may be forced by courts
to turn over information, but he nevertheless has a certain privilege, and
it’s absolute with regard to state secrets, and only conditional with regard
to everything else, and that we had made the showing of the need for
anything that was not a state secret to be produced.
I said afterwards to Peter Kreindler this case will probably be cited
more in the future by presidents, and as a practical matter, its practical154
impact will be most important for what it says about the standards under
Rule 17 of the Federal Rules of Criminal Procedure for enforcing trial
subpoenas. And it may well be that this issue may come up a hundred
times a week in criminal cases where somebody is subpoenaing
information for use in a criminal trial. But in the macro sense, the big issue
was that Nixon had to turn over information. Presidents in the future going
on in ad infinitum do have a constitutional privilege called executive
privilege.
MS. JOHNSON: Did you have a doubt or any uncertainty in your mind even then on that
day in late July 1974 that Nixon may not actually do what the Supreme
Court told him to do even though it was a unanimous and fairly definitive
decision?
MR. LACOVARA: I did have some doubt, but my doubts were diminished in light of the
reaction to the Saturday Night Massacre. Keep in mind that the Saturday
Night Massacre provoked an immediate congressional response. In fact, I
don’t know whether I had occasion to mention this, but that Saturday
night, I was on the phone with the chief counsel of the House Judiciary
Committee about what he thought was going to be now inevitably a formal
impeachment inquiry, and that inquiry did in fact unfold, and lots of
evidence had been taken, and articles of impeachment had been voted on. I
think in the interim, between the argument of the Supreme Court case and
the decision, it never got to the House floor because Nixon resigned, but it
was pretty clear to me that the country would really not have tolerated a155
defiance of the unanimous Supreme Court decision if the president
thought that that was what he wanted to do.
This is another example of how 1974 was so dramatically different
politically from 2018 or 2019 or 2021 regarding congressional willingness
on a bipartisan basis to hold a president accountable. Even before the
release of any of the tapes, some Republicans, both in the House and the
Senate, were prepared to say Richard Nixon has to be held to account if
he’s done something wrongful or criminal. It would have been inevitable,
as Senate and House leadership told Nixon, that he would have been
impeached and convicted in light of the tapes, I think that same result
would have obtained, and he would have been told that would have been
the consequence if he had defied the Supreme Court in an effort to conceal
the tapes. I knew that at the time. The game was up, and he really had no
politically viable much less legally justifiable basis for refusing to turn
over the tapes.
MS. JOHNSON: The game was up. It took another few days for Nixon to announce his
resignation. How active, if you remember, were the investigations up until
that point, and then I want to get up to the resignation itself and your
response to that and the Office’s response.
MR. LACOVARA: Everything was chugging along. Remember, the tapes case that went to
the Supreme Court was an effort to obtain evidence for the criminal trials
in which indictments had already been returned. So people were busy
preparing for those criminal cases. We had said, and this was a genuine156
attitude, that the reason we were subpoenaing this information for trial was
that, while we were satisfied that there was sufficient evidence to indict
these people, the evidence about who said what during these key concert
conversations would be crucial in either demonstrating guilt or
establishing innocence. We said that this is the responsibility of the
Department of Justice. There’s a famous old case called Berger versus the
United States that made this point. The United States wins its case when
justice is done in one of its courts. We said the country and the Watergate
special prosecutor have as much interest in knowing whether these people
are actually innocent as in knowing that they’re guilty, and the tapes will
show that. So the cases were being prepared for trial while awaiting the
production of tapes which might show that they were entitled to
exoneration or it would confirm the other available evidence tending to
show that they were guilty. The key additional element, of course, was
that it showed Nixon’s active complicity at the earliest possible moment.
MS. JOHNSON: It’s so interesting you say those things because these same things were an
issue as part of the January 6 investigations and remain so. The Justice
Department’s job, its obligations, as its goal of seeking and pursuing
justice for people. So August 7, August 8, roll around. Where were you
when you heard that Nixon was going to resign or might resign?
MR. LACOVARA: I believe I was on my way to New York for my sister’s wedding. One of
the ways I can remember her wedding anniversary, and she just celebrated
her 50th anniversary, is by relating it to Nixon’s announcement of his157
resignation. I was relieved but distracted because we were driving up to
New York with the family. A couple of the children were in the wedding
party. So a little bit like the aftermath of the tapes argument where
immediately I had to shift gear into being father and husband, I was in the
process of shifting gears to being brother, father, and husband at the same
time as the announcement was being made that he was going to resign.
MS. JOHNSON: This is a man that you had supported politically early in your life, I think,
and had come to take a different view of based on your interactions with
him, his interactions with the Justice Department and Archie Cox and
others. Did you have a personal set of feelings about this resignation?
MR. LACOVARA: Yes. I thought it was sad. The dominant emotion that I had was sadness
because I had been, as you say, a supporter of Richard Nixon. I’d been a
life-long Republican. I thought that he was a man of substance. In the
convention the other night, Kamala Harris made the comment that Donald
Trump is not a serious man. That concept of being a serious person or a
serious man is one that I have used myself over time to distinguish people
who are mere flashes in the pan or mere performers or mere politicians, as
contrasted with people who are serious persons. I thought of Nixon as a
serious person. He’d had a long career in Congress, as vice-president, as
president. Extremely smart lawyer. He’d even been a Wall Street lawyer.
He’d argued before the Supreme Court. So he was a serious man, and it
seemed to me sad that it had all come crashing down.158
There was also, of course, the relief that he was gone since he
seemed to have been oppressing the progress of the country. We knew
that, and I’m sure you’ve read about this subsequently, that there was
concern even within his administration that he might do something
reckless or dangerous. There’s a famous comment by Schlesinger,
Secretary of Defense, that as we were told, if the president picks up the red
phone, nobody will answer it. We had been given assurances on the q.t.
that the president was being effectively isolated from exercising some of
the powers of the presidency because it was thought at the time that he
was not stable and might do something desperate in order to cling to
power. There was a sense of relief that that threat was now being
eliminated by his resignation. So sadness and regret. I did not have any
sense of triumph or victory or elation when Nixon decided to stand down.
MS. JOHNSON: Closing this chapter, did you have personal views or office-wide views on
Nixon’s need for and acceptance of a pardon when that came?
MR. LACOVARA: Yes. First of all, there was the immediate question what should the special
prosecutor’s office do about Nixon, and there was I would say unanimity,
with one big exception, that he should promptly be added to the
indictment of the other co-defendants because they were indicted for
things that the smoking gun tape showed were done with the active
connivance of President Nixon himself.
The exception to that was Leon Jaworski, and his vote counted a
lot of course since he was the one who would have to sign an indictment.159
Immediately after resignation, signals began to emerge from the Ford
White House that a pardon was being considered, and those rumors
continued to percolate during the ensuing month or so. Jaworski had
regular contacts with the White House, with President Ford’s counsel, a
man named Philip Buchen, a very honest, distinguished, I would say non-
partisan fellow, during the period. I don’t know how to describe this. We
jump ahead following the pardon. I may have mentioned this. Jaworski
and I became estranged after the pardon was issued because he viewed me
as having pushed him into getting President Ford to issue the pardon. In
my view, that wasn’t quite accurate, but I could see in retrospect how he
could come to that conclusion and why he thought that my resignation as a
protest upon the issuance of the pardon had embarrassed him and showed
him up when he decided not to do anything about the pardon. The context
for his comments was my assertion, and I think this is documented in
some of the memos that may now be in the National Archives, was that it
was not good for the pendency of the existing case for the jury pool to be
wondering about where the key figure in the whole case, namely the
president, was, and wondering if the case went to trial why wasn’t the
president there as a co-defendant. So, what I did say to Jaworksi was, you
should urge the White House to act quickly. If he’s going to pardon
Nixon, it should be done sooner rather than later. It certainly should not be
as one of the possibilities being mooted: It was we’ll wait to see if he’s
indicted, then we will pardon him. Or if he’s indicted and goes to trial and160
convicted, then we’ll pardon him. So my recommendation to Jaworski was
let’s get this cleared up now. If Ford is seriously interested in pardoning
Nixon at some point, better now than later. And Ford apparently acted on
that advice. I don’t know that it was my view communicated to Jaworski
and passed along to the White House that was decisive, but from
Jaworski’s viewpoint, he had made this representation to the White House
at my urging. The president had acted, and then I made this grand stunt of
resigning in protest against the pardon, and his view was they just did
what you told me to tell them to do
MS. JOHNSON: Did you view it as a resignation in protest at the time?
MR. LACOVARA: Yes. It was announced as such. My explanation was that the pardon of
Nixon had undercut the whole purpose of the special prosecutor’s office.
That is, when Richardson had announced this venture and Cox had taken
the job and, as we argued to the Supreme Court, the underlying premise
for creating a special prosecutor with authority among other things to
investigate the president was to demonstrate that no man is above the law,
including the president. And yet, the way I reasoned it, here the person
who is the central figure in the conspiracy and the motive for the
conspiracy is the one person who is walking free, and the others are on
their way to trial and, as anticipated, ultimately on their way to prison. So
it seemed to me that the pardon itself struck at the core of what we were
trying to demonstrate, which is that no person is above the law. Fast
forward fifty years and you have Trump v. the United States, and the161
Supreme Court says, well, one person is above the law. But at that point,
such a notion was not considered a serious one.
MS. JOHNSON: You’ve had a very long and productive and successful career. How do you
situate your Watergate experience in that context? Was it the most
important thing you’ve ever done in some ways, or is that too far?
MR. LACOVARA: In professional terms, I would have to say it’s the most important thing
I’ve done because it had consequences affecting the larger community. I
was involved in an investigation that led to the departure of a president. I
was involved in a case that has created ripples in time that are still
reverberating today, the Nixon tapes case. I think that in terms of
importance in a global sense, the Watergate experience would have to be
the most prominent thing in my professional life. I’ve done other things of
which I’m proud. I don’t think I’ve done anything that ranks with
Watergate in terms of impact.
I think I said earlier when we were talking about my experiences in
the New York City Police Department that was a much more enjoyable,
and in a sense intellectually fascinating professional experience, because
of the range of issues that I was dealing with. But Watergate has to be a
capstone.
Of course it’s with some reluctance that I say that, because that
was fifty years ago, and no person likes to think that the rest of his life has
been downhill since then. I don’t think of my life as that way because I’ve
had, as one of my former partners used to say, the four great careers that a162
lawyer can have. I’ve been a government lawyer, I’ve been a private
practitioner. I’ve been a public interest lawyer, and I’ve been a law
professor. I guess a fifth one is corporate counsel. So I’ve done a lot of
interesting things in a lot of different contexts, but in terms of the larger
impact, Watergate would have to be it.
MS. JOHNSON: Your resignation in 1974 brought to an end, at least for a while, a very
intense period of public service for you and also one where you and your
wife were raising a growing family on a government salary. You’ve
alluded to this a few times, but that must have been an enormous personal
challenge for you and for the family.
MR. LACOVARA: It was, and I didn’t even notice it as much as I’m sure they did. My wife
reminds the kids that, when we went to Red Barn, which was the
equivalent of McDonald’s at the time or Burger King now, several of the
kids would have to share a bag of french fries. Money was tight. There’s
no doubt about it. When we first came back to Washington when I was
clerking for Judge Leventhal, he appreciated that my law clerk salary was
pretty tough to support a wife and three children, and he actually arranged
with a friend of his who worked for, I think was the managing editor of the
old Bureau of National Affairs, BNA, US Law Week. US Law Week is now
owned by Bloomberg. But that was the kind of legal journal that almost all
lawyers read weekly. They had two sections, the General Law section and
the Supreme Court section, and they came in loose leaf pages. One of the
things that the Supreme Court section did was digest summaries of the cert163
petitions that had been filed recently so that lawyers could keep track of
what issues were going up to the Supreme Court. What the judge arranged
for me to do was to have a night-time side hustle preparing the summaries
of Supreme Court cert petitions. This is long before I got to the Solicitor
General’s Office. I think I got paid a dollar a petition to summarize them
in the standard format that Law Week published them. So I would get a
foot-deep stack of cert petitions, and I’d crank them out at night while the
kids were asleep.
And then Dean Griswold, who appreciated the same thing, when I
was in the early stages of the SG’s Office, he must have gotten a request
from the US Ambassador to the Organization of American States, a man
named Sol Linowitz, who had been the chairman of Xerox and left the
corporate world to take on this public service assignment. He wanted kind
of staffing assistance, especially in writing speeches on issues of social
policy and the way governments throughout the Americas might be able to
help the underprivileged. So the Dean put Linowitz in touch with me, and
I did a number of gigs for him, and he paid me generously for my
speeches. It was just an example of how the people that I was working
with at the time were extremely helpful to me in helping to get some extra
income to supplement my salary at the time.
MS. JOHNSON: How did you decide to return to law firm life and to return to I think the
same firm that you had been at years earlier?164
MR. LACOVARA: Yes. I had been at Hughes Hubbard and Reed twice. I had done my
summer internship there while in law school, and then when I left the
Solicitor General’s Office the first time and went back to New York
thinking I might want to be a Wall Street lawyer, I went there as a mid-
level associate. So after leaving the special prosecutor’s office, I had to
find something else to do. One of my sons who was I think nine years old
at the time said, daddy, do you have another job? He asked me after I
announced that I had resigned from the special prosecutor’s office, and I
said no, but I have confidence I can get another job. I’m not sure he was as
confident as I was, so there were some very intensive efforts to see what
my opportunities might be in Washington. We wanted to stay in
Washington. A couple of firms contacted me or I contacted them, and one
of them of course was Hughes Hubbard. I’ll explain why I went back there
and under what circumstances.
One of the firms that I interviewed with was Williams and
Connolly, a great firm even then. I knew a number of people from
Williams and Connolly. At the time, Joe Califano who had been one of
LBJ’s chief assistants, later Secretary of Health, Education and Welfare,
was a partner at the time. This was a funny episode. We agreed to have
lunch at an Italian restaurant on Connecticut Avenue that I’m sure no
longer exists, and I don’t even remember its name, but it was down in the
basement. It was very dark. It was a very chichi trendy restaurant at the
time. I was trying to be extremely cool in this interview. Keep in mind I’m165
still maybe 30 years old trying to make my way in a different world. I
looked at a menu and it was written in small print. It was handwritten, and
I just looked at things, and it was all in Italian, and I don’t really speak
Italian. The one word that I recognized was pollo, chicken, so I pointed to
this thing on the menu. Califano and I kept up our banter, and then when
my order finally came, it was chicken in a sense. It was an entire bowl that
must have weighted two pounds of nothing but chicken livers. Joe must
have known from the expression on my face that I was completely
befuddled by what I was going to do about this, and he was watching to
see whether I would eat any of these things or if so, how far I could go in
trying to maintain some sense of aplomb while I was trying to project the
degree of confidence and éclat.
We had wonderful lunch, and they did offer me a job, but since I
had a total of about a year-and-a-half as a law firm associate and I was
then just seven years out of law school, which was the minimum at that
point for law firm partnerships, he said you’d have to come in as a senior
associate for a year. I said, again being kind of smug and too big for my
britches, I’m not going anywhere as an associate at this stage in my life.
So I did not go to Williams and Connolly.
Hughes Hubbard offered me a partnership. In fact, basically to
create and head the Washington office of the firm. I was told somewhat
later by a friend, a kind of mentor at the firm who had been urging that the
firm elect me a partner, what he had to tell them. This of course came166
after I’d gone to Hughes Hubbard in 1969 and almost immediately done
this special assignment on the death penalty case, which took several
months out of my work for the firm, and then I left to go to work for the
New York City Police Department. Bob’s theme, as he said he had argued
for my cause was, Phil Lacovara was a terrible associate, but he’ll make a
great partner. And apparently that swayed the day, and I spent the next
fourteen years heading the Washington office of Hughes, Hubbard and
Reed.
MS. JOHNSON: Spectacular. In our next session, I would like to get into that and your
Wall Street lawyer days, but I have one more question for you before we
stop today, and it’s because you mentioned Arnold and Porter. I think you
had recounted to me at one point that you had some experience with Abe
Fortas, who of course came from the Arnold and Porter law firm, and now
may be a good moment for you to discuss that interesting experience you
had with Fortas.
MR. LACOVARA: I argued against Abe in the only case he argued after he left the Supreme
Court, and this was part of my private practice experience. And indeed,
I’ve just been asked by the Supreme Court Historical Society to do a little
narrative which I think they’re going to be publishing as part of their
blurbs concerning Supreme Court justices as lawyers before the court.
Almost all of them, maybe all of them, had that kind of experience before
they went on the court rather than, as in Fortas’s case, afterwards.167
In any event, I had done some work for the Commonwealth of
Puerto Rico doing work on their legal status for the so-called
Commonwealth party. In Puerto Rico, as we have divergence between
Democrats and Republicans, they have the Commonwealth party and the
Statehood party. The Commonwealth party is the one that likes this loose
affiliation with the United States, whereas the Statehood party wants
Puerto Rico admitted to the union as a state. So early in my time at
Hughes Hubbard, the head of the Federal Relations Office of the
Commonwealth of Puerto Rico, a Commonwealth party representative, a
man named Jose Cabranes, later general counsel at Yale, now judge of the
United States Court of Appeals for the Second Circuit, asked me to do a
constitutional analysis of Puerto Rico’s capacity under the constitution to
engage in autonomous foreign relations. Okay. I did that.
Two or three years later, I was approached by the Statehood party
to represent them in a case that was working its way up to the Supreme
Court. The case involved the question whether under the US Constitution
it was permissible for a political party simply to appoint a member of the
legislature when a vacancy occurred. So not an appointment by a
government official but by a political party. The control of the Puerto Rico
Senate turned on the answer to that question. The case ultimately went to
the Supreme Court, and I was to argue for the Statehood party. The
Commonwealth party hired Abe Fortas, who by that time had left the
Supreme Court. He had had a relationship with Puerto Rico and168
specifically with the Commonwealth party from the time that he was the
Under Secretary of the Interior back in the FDR New Deal days. At that
point in a kind of condescending way, US territories were under the
control not of the State Department but of the Interior Department as if
they were national parks. So Justice Fortas had had this longstanding
relationship with Puerto Rico and the Puerto Rico government, which had
been for decades and decades of generations under the control of the
Commonwealth.
We were scheduled to argue the case. We did our respective briefs,
and the case was set I think for February of some year. He called me up on
the phone and said I’ve got a favor to ask for you. He said it’s not in the
nature of a professional conflict, but I wonder if you would agree to ask
the court to move the argument date, to postpone it. I said what’s the issue,
and he said well, it’s not a professional conflict. Every year for the last
twenty years, my wife Caroline and I have used this two-week period to
go to our condo in Colorado to ski. She’s a busy lawyer. We made
arrangements for doing this long before the court scheduled the argument.
I said that’s fine. I believe that personal conflicts are even more
compelling than professional conflicts. You can represent that counsel for
the Rodriguez parties consent to a delay, so the court clerk put the case off
for two months. I never asked my client whether they had any objection,
and probably that was not a wise thing to do, but in any event, we did
argue the case two months later. He did a terrific job arguing. He was a169
very accomplished lawyer. And then he happened to die, unfortunately,
before the decision came out.
My takeaway from this was that I would have felt miserable had I
deprived him and his wife of their last vacation together by saying no, this
is the argument date, let’s just stick to it, too bad for you and Caroline. He
won by the way, unanimously. It was kind of an honor for me to go up
against him because he had been one of the leading lawyers of the
Washington bar. He was kind of the consummate Washington lawyer,
although he had left the court under a bit of cloud and had not gone back
Arnold and Porter. He was nevertheless a person of substance. He was a
serious person, and it was in my view an honor first of all to be going up
against him but also to have been asked to do him a favor on the personal
level, and so I was in retrospect especially delighted that I had acquiesced
in his request.
MS. JOHNSON: Absolutely. That would have felt awful had you not. I’m persuaded by
your explanation. Let’s leave it there for the day, and let’s get into your
life at Hughes Hubbard on behalf of clients and maybe your life then
working for Wall Street banks next time around, if that works for you.
MR. LACOVARA: Yes. And don’t forget Jack Welch and the General Electric Company at its
heyday, before it imploded.
MS. JOHNSON: That will be a long session. And we have to get to Rudy Giuliani as well.170
MR. LACOVARA: Yes. And in terms of public service, while I left Watergate, I did a couple
of Congressional assignments after that which might be worth a couple of
minutes.