Phillip Allen Lacovara Interview 8

228
Oral History of Philip Lacovara, Esq.
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Carrie Johnson, and the
interviewee is Philip Lacovara. The interview took place via Zoom on Monday, September 16,
2024. This is the eighth interview.
MS. JOHNSON: When we left off, you were talking about your time at Morgan Stanley,
and you were going to tell me a little bit more about some assignments
you had throughout this period of your life that actually turned into films. I
wonder if you could talk about those assignments to start.
MR. LACOVARA: Over the course of my life, there were a number of experiences that I was
involved in that turned into movies. Of course, one was working with
Thurgood Marshall, but that was largely about his life, and I just
intersected with him.
The Watergate affair turned into a movie called All the President’s
Men. I don’t think I was featured as one of the characters in that, but when
they were speculating about whether I would have a role in that film, there
was talk about who would be the actor portraying me, and I, of course, had
visualized somebody like Paul Newman, but my wife thought it was more
likely it would be Oscar Homolka or some character actor of that sort.
During the police department days, I was involved with working
with Serpico. That was a movie made I guess in the late 1970s. There was
another film made about one of the characters with whom we were
working in the NYPD who was a source of information about police
corruption. That became a film called Prince of the City, which was also a229
film with at that point a second-tier actor, Treat Williams, not a first-tier
actor like Al Pacino who was in Serpico.
Then ABSCAM. I was counsel to the Senate ABSCAM
Committee, which was made into a film. I’m trying to remember. I think
there were eight or nine incidents in which I was directly involved, not in
the wrongdoing side, but in the investigative side that were turned into
film. There will probably be more that come to mind as we continue to
speak.
I was always insistent to note when somebody would come across
me and say, didn’t I hear about you in Watergate, I would be quick to say
yes, I was on the side that didn’t go to jail. There are people now much in
the media who have become quite notable as commentators, and they were
not always on the side that didn’t go to jail but nevertheless have become
well-regarded political pundits. So I like to make sure that people
understand, for good or ill, that I was on the side that was doing the
investigating rather than being the investigatee.
MS. JOHNSON: Philip, were you ever consulted in the writing or the making of these
films? Did you play a role behind the scenes in any way?
MR. LACOVARA: I was interviewed for a couple of the books that led to some of those
movies. Yes is the answer to that. I was most recently interviewed for
what is the latest book about Watergate written by my former law school
classmate and Watergate colleague, Jill Wine, then Jill Wine-Volner, now
Jill Wine-Banks. Within the last year or two, she wrote a book called230
Watergate Girl, which I thought was a particularly anti-feminist title. It
describes much of her experience in her professional career focusing, of
course, as the hook for encouraging people to buy the book on her role as
the only prominent woman in the Watergate Special Prosecutor’s Office.
She and her co-writer, or ghostwriter, chatted with me for a long time
trying to reconstruct some of the incidents in which we had both been
involved or which she may not have been personally involved but wanted
to feature in the book as part of the overall drama in which she did play a
role.
MS. JOHNSON: It seems to me that these films, these entertainment features, have also
been of use to you as you meet with younger generations of people,
particularly students, people who learn from you in the classroom or
elsewhere. How have you used that?
MR. LACOVARA: Indeed, that’s one of the things that I used as a thematic syllabus for some
lectures that I’ve given. I’ve had the opportunity to speak and lecture at
various colleges and universities around the country since Watergate about
Watergate experiences and other things that I’ve done, such as policing
and my work in the financial services sector and my experiences with
management at GE.
One of the things that I’ve done in connection with some lectures
that I gave to visiting students from England was to distribute a one-page
mockup with facsimiles of the various movies with which I had some
connection. Indeed, just to give them a sense of the history of my own231
experience, I started with a movie going back to the bad old days of the
Cold War. I used a poster from Dr. Strangelove, which made a black
humor comedic reference to the threat of nuclear war. I began explaining
my experience in Washington, noting that I came to Washington at really
the height of the Cold War when it was a realistic possibility that we all
might be incinerated by an exchange of nuclear missiles. I pointed out that
the Cuban Missile Crisis took place during the first week of our first son’s
life. My wife and I had just set up housekeeping. Our first child had
arrived. She had just come home from the hospital with him, and there
was President Kennedy going on television to proclaim the blockade
against further intrusion of Soviet missiles into Cuba. The country was
genuinely concerned that either by design or by accident there might be a
nuclear catastrophe, and Washington, of course, would have been one of
the primary objectives.
I’ve used that kind of historical depiction in film as a way of
threading my own experiences through life as a way of engaging students
to say, look at these things. They were important at the time not so much
because I was involved but because they had some broader significance to
some other people, and producers thought they were worth making films
about.
MS. JOHNSON: I wonder if you want to move to the period after you left Morgan Stanley
or you had additional thoughts about your experiences in the classroom?232
MR. LACOVARA: I would fast forward to my experiences teaching both at John Jay College
and at Hunter. This was while I was at Mayer Brown. After I left Morgan
Stanley, I joined the Mayer Brown firm, jointly resident in the New York
and Washington offices. I actually physically had offices in both of their
facilities in New York and Washington.
I also was involved in a variety of additional activities, including
teaching and lecturing. I taught a number of courses at John Jay College
with which I had connection twenty years earlier when I was in the
New York City Police Department. Just a word about John Jay. It was
originally started as an adjunct of the City University to provide
continuing education for police officers, and it grew into a full-fledged
autonomous college within the City University system, so much so that it
is now a fairly substantial part of the City University system. Only a tiny
fraction of its student body consists of police officers getting additional
education. Rather, it’s an entry-level college mainly of first-generation
Americans, first-time college students. I taught courses in constitutional
law, a basic constitutional law course, to undergraduates there.
A couple of years later, I was asked to teach at Hunter College,
which has long been an honors college in New York City. It’s also now
part of the City University system. I taught a couple of courses there. The
one that was the most relevant to current problems is a course on
presidential power in peace and war, something that makes me particularly
interested in the recent decision by the Supreme Court concocting, in my233
view, the notion that a president is immunized from responsibility for
committing federal crimes when he thinks he ought to be committing
federal crimes in order to be president. Or in the case of Donald Trump, in
order to try to stay being president.
I enjoyed teaching at the college level, teaching political science
courses. The college students tended to be more engaged in the ideas
being discussed, whereas when I was teaching in law school, there was a
bit more of the trade school orientation: I need to learn this in order to pass
the bar or to get a job.
I’ve actually kept in touch with a number of my former Hunter
College students. They were virtually all either minorities or from poor or
working-class families. I think in virtually every case, the first members of
their family or the first generation to go to college. A number of them
have gone on to things that are quite impressive. A Muslim woman
student from Lebanon has become very active and very successful in
international human rights. We’ve been keeping in touch. She works for
the United Nations in Geneva. Others have gone on to other things that
have made me quite proud of them, although it’s kind of presumptuous for
me to take pride in the students. They’ve done this on their own. Some
even have become lawyers.
MS. JOHNSON: Despite your guidance otherwise in some cases?
MR. LACOVARA: Sometimes.234
MS. JOHNSON: Fantastic. Tell me a little bit more about what drew you to Mayer Brown
and the kinds of things you did during your time there.
MR. LACOVARA: I went to Mayer Brown rather than returning to Hughes Hubbard, which
had been my prior incarnation several times, because it had a burgeoning,
at least a beginning, Supreme Court specialty practice. A fellow who had
been in the Solicitor General’s Office some years after me, Stephen
Shapiro, had gone to Mayer Brown in the Chicago office to create a
Supreme Court practice. I think by this time a former member of my
Watergate staff, Ken Geller, who had become a wonderful Supreme Court
advocate, had gone to Mayer Brown in Washington.
Andy Frey, another former colleague of mine from the Solicitor
General’s Office when I was there as the deputy, was also in the
Washington Office. He too is an excellent Supreme Court lawyer. He had
left the government and joined Mayer Brown. So it seemed to me that this
was a place where I would be able to fit in because of my interest in
resuming my career as a Supreme Court advocate. That turned out to be in
retrospect a wise choice because Mayer Brown became known as the firm
with the largest, most diverse Supreme Court practice of any of the major
American firms. Other firms had a prominent Supreme Court practitioner,
including John Roberts, for example, or Carter Phillips, for example, but
basically if you thought about those firms, you thought about one person
at the firm, whereas Mayer Brown ultimately had a group of partners who
could legitimately claim to be Supreme Court specialists. That generated a235
lot of esprit de corps, which I found quite gratifying, and it led to a
relatively steady inflow of interesting matters. I don’t even remember now
how many other cases I actually argued. I think it was another five or six
cases in my career at Mayer Brown.
I worked on lots and lots of other cases with other wonderful
lawyers including Steve, Ken, and Andy and others, helping with briefs,
helping prepare them for arguments, and so forth. So it was a way of
staying in the type of practice that I had been involved with the prior 35 or
40 years, which I continued to pursue with the benefits of a private law
firm backing up that kind of practice.
MS. JOHNSON: I think you mentioned this but I may have missed it. You referred to Andy,
and I’m not sure if you said earlier today or at the end of our last session
who Andy was at Mayer Brown, so just a little bit more about Andy
Pincus.
MR. LACOVARA: One of the other people with whom I worked was Andy Pincus, who had
been with me originally at Hughes Hubbard. Andy then went on to
become general counsel of Arthur Andersen and then went ultimately to
Mayer Brown, so we intersected on a number of occasions throughout our
respective careers.
MS. JOHNSON: Did you offer any strategy, advice, any work when Arthur Andersen began
to come under the sights of regulators?
MR. LACOVARA: I don’t remember whether I was directly involved in that. I think that was
being handled by at that point the Washington office of Mayer Brown. I236
was for the most part by that time focused almost exclusively in
New York. That is, I was by then located in New York. I think I may even
have given up my physical office in Washington, although I remained on
the letterhead and business cards in both. I’m trying to remember. It may
have been Ken Geller who was involved in that or somebody else. I
believe there was some consulting affiliation in the early stages, but I
don’t remember being directly involved in that.
MS. JOHNSON: How did you come to leave Mayer Brown?
MR. LACOVARA: Ultimately, and by ultimately, I would say after ten years, I had reached
early-retirement-possible age, and I’d been doing this for a long time. I
was then 60 years old in 2003, I’d been practicing for 35 or 40 years by
that time, and I wanted to try something new. I decided to try arbitrating,
because of a casual conversation that I had with a former colleague of
mine, John Martin, by that time a former federal judge. I think John was
just retiring from the federal bench. He said that he was thinking about
going into arbitration because it was an interesting second, third, or fourth
career which provided some of the intellectually challenging aspects of
practicing law with a greater degree of control over one’s life and lifestyle.
It lit a spark in me, saying that’s a pretty good thing because this is
a kind of litigation which is what I’d been doing for most of my career in
one role or another. I thought it would be a way of regenerating myself,
reinventing myself, because I was old enough to take early retirement but
far too young actually to retire, especially since I don’t play golf.237
I talked to an organization called JAMS, originally the Judicial
Arbitration and Mediation Service, started in California with a group of
former state court judges who had gone into the business of offering
arbitration and mediation services. JAMS was in the process of expanding,
including expanding to the East Coast. They had been primarily known as
a West Coast operation. I talked to the general counsel of JAMS about
whether they might be interested in a new affiliate in New York, and that
seemed to make sense. I talked to my colleagues at Mayer Brown and said
I’d like to retire as a full-time partner, but I’d like to keep my connection
with the firm if you think that would be mutually beneficial, and I would
be happy to stay as senior counsel. I continued in that role for another
thirteen years.
So while I was developing my practice as an independent
arbitrator, I continued to consult with people at Mayer Brown, consult
directly with clients or serve as an additional sounding board or brief
writer or brief reviewer on Mayer Brown matters. I continued to serve as
the head of the pro bono program. That was one of the things that I
enjoyed most and one of the reasons why I wanted to stay with some kind
of affiliation at Mayor Brown. Pro bono has always been a matter of
interest to me, and by remaining with the firm in that capacity, I could
continue to oversee, energize, and recruit for various pro bono projects
that Mayer Brown lawyers were encouraged to engage in. That was great
fun and very satisfying for me.238
MS. JOHNSON: Was that capital-punishment related? Was it veterans? Anything and
everything pro bono?
MR. LACOVARA: Anything and everything. I would say that the biggest block of matters
that we were able to undertake at Mayer Brown through this program were
the asylum cases, because there’s such an enormous number of migrants
or asylum seekers seeking some kind of representation. They are ideal pro
bono cases for two reasons. One is they’re manageable. They’ve got a
finite beginning and a finite end, whereas some of the pro bono cases in
which I’ve been involved in my earlier career did go on forever. That is, if
you took on a class action, it could go on for years and years and years,
and that involved a personal commitment but also an institutional
commitment, and not every firm was willing to subsidize the amount of
time and out-of-pocket expenses that conducting massive pro bono
litigations involved. So one aspect of pro bono asylum work is that the
cases are manageable.
The second is almost equally important, maybe more important.
They’re very satisfying cases because you’re dealing with real life human
beings with real life problems. In a high percentage of cases, you actually
get the satisfaction of winning. You get something tangible for a real live
human being. This was brought home to me in connection with a hearing
that I attended at the Immigration Court in Jersey City. This was really
close to the time that I severed my connection as senior counsel and just
became completely independent as an arbitrator. One of the young239
associates had done a wonderful job with an asylum applicant and there
was to be a hearing in the court in Jersey City. I’m laughing because it
required a translator. It was a person from North Africa who was seeking
asylum, and the government had provided a translator. One of the early
questions in the proceeding was how old are you, and the translator
translated it to something like I’m five years old. Everybody knew that
couldn’t possibly be right. It turned out that the problem was yes, this was
a person who could do an Arabic translation, but as we know from lots of
languages, dialect is everything. So what the North African Arabic dialect
was communicating was foreign to this certified Arabic translator, so the
proceedings had to be recessed while a person was located who was more
comfortable doing translation of the person who was actually speaking the
version of Arabic that had to be translated.
In any event, the real point came at the end of the hearing. The
judge saw me. I was just sitting in the spectator section watching Melissa
do a brilliant job examining the client as well as some government
witnesses offering the evidence. The judge beckoned me to the bench. He
said are you Philip Lacovara? I said yes, Your Honor, I am. He said I’m
so-and-so, and I used to work in the Criminal Division of the Justice
Department when you were the Deputy Solicitor General, and I just
wanted to tell you how much I appreciate what you and firms like yours
are doing. He said you can’t understand how important it is for these
people who are submitting asylum petitions to have counsel. He said240
without counsel, only 20% of the asylum applications will be found
sufficiently substantiated to justify relief. If they have lawyers, 80% of
asylum applicants are found to qualify. He said, take that message back.
This is really important. And I did take that message back. When you step
back a little bit and you think that it really is a life-or-death matter,
because that is, after all, the standard for an asylum application, the well-
founded fear of persecution in the applicant’s home country, and there is
such an enormous disparity in the outcome depending on whether there is
a lawyer assisting the asylum applicant. It underscores the importance of
having lawyers step up taking their time away from their regular career
paths, they’re money-generating, fee-generating practices, to provide the
kind of professional service that these people as human beings in need
deserve.
MS. JOHNSON: Powerful. What prompted you to finally say I’m just going to be doing
arbitration or mediation? I’m going to turn that corner in my life?
MR. LACOVARA: Basically, it was a practical constraint. One of the things that one has to
demonstrate in order to serve as an arbitrator is the absence of any conflict
or arguable conflict, and appropriately, the standards for possible conflicts
have become more stringent in recent years. One of the reasons for that is
that because of the limited grounds for reviewing arbitration decisions,
parties who are disappointed with the outcome of an arbitration get
increasingly creative in trying to come up with a ground for challenging
the award. One of the very few grounds for challenging an otherwise final241
arbitration decision is corruption, and that has been interpreted to mean
some sort of willful concealment of information that might have affected a
party’s view about the reliably objective nonpartisan impartial nature of
the arbitrator. So the range of things that had to be ferreted out as possible
matters of disclosure began to increase, which required more and more
inquiries into second- and third-tier relationships with parties or their
affiliates or their lawyers. As long as one is in a law firm, there is a
doctrine that all of those relationships get attributed to everybody affiliated
with the law firm. With a law firm with a worldwide presence and
enormous clientele such as Mayer Brown, in almost every significant
matter that was being presented to me, I had to make extensive
disclosures. I suppose in some of those led to my being challenged, either
formally or at least not selected because of the desire to avoid any later
recriminations. It seemed to me it would be a lot cleaner for me just to
make a break with Mayer Brown, with which I had a very nice
relationship with for 23 years. I had a wonderful relationship with them,
but it was time for me to ride off into the sunset.
In the final years there, my role was diminishing anyway. When
they gave me a farewell dinner, I said this is kind of the upside-down thing
because I’m forgotten but not gone. But now it’s time for me to gone
instead of forgotten but not gone. The firm was moving on and had new
and younger leadership, new offices, and so forth, and I was not really in a
position to be useful to them or vice versa.242
MS. JOHNSON: Do you continue to do arbitrations and mediations today?
MR. LACOVARA: Yes. Indeed, just before dialing in, I was filling out my oath of arbitrator
in a new matter, so I continue to work. I was talking to my former brother-
in-law over the weekend who is 85 or 86, still working and teaching, and
we both agreed that as long as you’re physically capable and intellectually
flexible and competent, there’s no reason to stop working. I enjoy it.
MS. JOHNSON: Especially if you have a lot of control over your schedule.
MR. LACOVARA: And I do. One of the things about my arbitration practice is that it gives
me plenty of time to manage my schedule, and I do lots of other things
besides. One of the things that I do that does take time is generate OpEds,
lots of OpEds. I have another one coming out toward the end of this week
or maybe next week. They’re mostly about Donald Trump or the Supreme
Court or both.
I’m also anticipating testifying in a congressional proceeding soon
on the subject of the intersection between Donald Trump and the Supreme
Court. So I get to do a lot of other things besides just work on garden
variety international commercial disputes.
MS. JOHNSON: Speaking of Donald Trump and the Supreme Court, how does it feel to
have worked on a matter, maybe the most nationally significant matter in
your long and productive career, and then many decades later see and
digest a Supreme Court opinion that unsettles your and maybe everybody
else’s understanding of the law as it relates to executive power? That just
happened in July. It’s a lot.243
MR. LACOVARA: To say it’s unsettling or shocking would be an understatement. I did write
a column shortly afterwards in the Bulwark in which I said it was the
“wrongest” decision in my career. In my congressional testimony, I rank it
with three disgraceful decisions which have been repudiated by history as
well as by the later courts. Dred Scott in the 1850s, Plessy v. Ferguson in
the 1890s, and Korematsu, the Japanese internment case in the 1940s, all
of which were – as no less a person that Chief Justice Roberts has said,
although he was reluctant to say it – unsound in law when they were
decided and repudiated by history. I am going to say that I believe that
Trump v. United States fits into that category, and my view is it is about as
wrong and unfounded as a constitutional or historical matter as anything I
could imagine with the possible exception of those cases, and it is at least
as dangerous because it equips the most powerful man in the world with
unlimited power to commit crime. I think that’s just shocking. I also am
prepared to say that before this Supreme Court, before the Roberts
Supreme Court, not a single justice who ever sat on the court no matter
how racist or deluded or benighted would ever have contemplated that the
constitution creates immunity for a president to commit crimes. I feel
absolutely confident of that. I also say in my statement that I’m drafting
for the Senate Judiciary Committee that I am confident that all the justices
in United States v. Nixon , liberal, conservative, democrat, or republican
would agree that this decision is madness and constitutional nonsense.244
You can tell I have strong feelings about this decision and more
importantly about the justices who rendered it.
MS. JOHNSON: The majority opinion in that case, Trump v. U.S., basically said, and I’m
paraphrasing, we don’t want to be tied to these facts in this moment. As
another justice said during the oral arguments, we want to create a rule for
the ages. It sounds as if you think that is not what they did at all.
MR. LACOVARA: Of course they didn’t do that. They created a rule for the ages, but the rule
for the ages that had been in place was perfectly fine because nobody in
the prior 230 years ever thought that one needed to be a criminal in order
to be an effective president. Their rationale that the framers wanted to
have a robust and vigorous president and that that means that the president
has to be able to commit crimes to become an effective president is arrant
nonsense. We’ve had strong presidents who didn’t have to commit crimes
and never thought that they were entitled to commit crimes. Even Richard
Nixon at his most deluded, and in his later days he was getting delusional,
never thought that, and certainly never argued it, and nobody ever thought
that any justice of the Supreme Court would take it seriously. So it makes
no sense. And, of course, when you look at the lineup, you see it is a group
of people who have gone out of their way at every opportunity to do things
that benefit this criminal president.
The other rationale that one has to worry about rogue prosecutors
prosecuting a president after he’s left is also nonsensical. We have had
rogue prosecutors for the last 230 years. None of them has had occasion to245
prosecute a president for one simple reason. Not because of constitutional
immunity but because we didn’t have criminals who were elected as
president. In the future, the constraint is not immunity. The constraint
against rogue prosecutors is the prosecutors get removed or the
prosecutors don’t get indictments or judges throw out baseless
prosecutions or juries acquit. So you don’t need to create a constitutional
immunity made up out of whole cloth in order to deal with a nonexistent
problem.
This was classically a result-oriented solution in search of a
problem. The notion that James Madison or Alexander Hamilton when
they talked about having a strong president thought they would have not
just a king but a Caesar or a Don Corleone. Because they’re strong and
vigorous, that means they should be entitled to do whatever they want to
do. They would have regarded that as non-serious. That would have been
regarded as satire, as opera buffa, and now it’s constitutional law. I mean
for somebody who has spent his whole life cherishing the constitution and
the Supreme Court, I cannot tell you how saddened I am at that decision
and at this court.
MS. JOHNSON: Another follow up is this. You feel confident, or you sound as if you feel
confident, that a future Supreme Court will correct the error of this
decision, but that could take potentially many years and a set of facts that
could be almost as ugly as this set of facts, right?246
MR. LACOVARA: That’s the problem, and it’s one of the dilemmas of our constitutional
system. When the Supreme Court pronounces constitutional rules, only the
Supreme Court can change them. When you announce a decision that
appears to prohibit further proceedings, it makes it not only a matter of
uncertainty when that can be corrected by some future court, but it also
raises a question, well, what would be the mechanism for it. What
circumstances could give rise to a decision by a future prosecutor with the
support of lower courts to start a criminal proceeding against a miscreant
president who makes even Donald Trump’s offenses pale. And that’s a
pretty horrible image to contemplate. That’s the staggering part of it. The
Court wrote with a broad brush, and it’s a decision which will be hard to
overcome in the near term. But indeed, that’s what we have had to live
with with Dred Scott, which took a civil war and constitutional
amendments to overturn. Plessy against Ferguson, that took sixty years to
overturn, and then in the intervening sixty years, you had three score years
of rampant segregation which continued until statutes were passed. And
Korematsu. You had a hundred thousand people who were interned and
stripped of their property. So the mischief before it gets corrected will be
enormous, and that’s a reason for dismay. As with so much in our
republic, we have to remain hopeful that over time it will be corrected.
MS. JOHNSON: I’m tempted to ask you, one of the themes of our delightful sessions has
been what you and, I think, your grandchildren have termed the greening
of Philip Lacovara. Is this yet another example, or in your view, are the247
Trump v. U.S. opinions so beyond the pale, outside the mainstream, that
you might have felt this strongly decades ago?
MR. LACOVARA: Yes. I think that even with my original conservative view, I would have
been sufficiently, I was going to say rigid, but rules-oriented, that I would
have regarded this kind of approach as unfathomable and unforgivable,
because I do think that rules are important, and they’re important even for
presidents. One basic rule is you don’t commit crimes. Period. Full stop.
And that applies to everybody. So yes, I like strong presidents. I like
presidents who can take the initiative. I was a law-and-order type. Indeed,
the whole premise of a republican government philosophy in the Nixon
years, for example, and then the Reagan years was “law and order.” It
seems to me to stand the notion of law and order on its head when one
says, well, law and order except for the president. Everybody’s subject to
the law except the president. And really that brings us to what is
fundamentally different about the Roberts court, the six justices in the
Roberts majority. They are not conservatives of the sort that I once was or
that traditional conservatives were. The classic kind of conservative. This
is the manifestation of a new and I think insidious political philosophy, the
so-called unitary executive theory, which was created by political science
professors and law professors in the 1970s, took hold in the 1980s. It
began to get currency in the Reagan administration, and then became quite
fashionable on some law school campuses. I would say that it has
appealed to people who came from or come from backgrounds similar to248
mine, the Catholic background, where there is, if you will, a kind of
command and control philosophy at work in our faith. But I think it makes
some Catholics more amenable psychologically to the idea of a strong
executive who is in some ways above all other mortals, and that seems to
me to be the animating principle of the unitary executive theory. Roberts
himself in the Trump decision accepts this fiction that the president is an
entire branch of government. They take that as a misreading of Article II
as if the Framers thought that the president would be the executive branch
as opposed to saying, as the term for the last 200 years has implied, he is
the chief executive. He is part of a branch. He is the head of a branch, with
thousands of other people also exercising governmental power. It’s also a
corruption of the idea of separation of powers, which as even Roberts’
hero Justice Jackson emphasized, the powers are not isolated from each
other, they’re intermingled, and that’s part of the balance. And the unitary
executive people, have elevated the role of the president into a degree of
supremacy that would have shocked the framers, and I have no doubt
about that. These are people after all who were the beneficiaries of the
Declaration of Independence which created a catalog of the abuses of an
all-powerful monarch. The last thing in the world they could have
imagined doing was creating a president who would have all power and be
entitled to commit crimes in exercising that power. A 10th grader who has
taken a social studies course would recognize the Trump decision as
making no sense, and it doesn’t.249
I’m sorry, if I’ve been too effusive or voluble, but I feel strongly
about this subject.
MS. JOHNSON: I think this is interesting not only for the people of today, but it will be
interesting in many decades to come for people who happen upon this oral
history.
MR. LACOVARA: I hope if anybody comes upon this oral history in the future decades, they
will say to themselves: What do you mean? At some benighted period in
our history there actually was a constitutional rule that the president is
immune from prosecution for his crimes? And I hope that that will be only
a distant memory, if any.
MS. JOHNSON: I think at the start of our sessions several months ago I neglected to ask
you this question, so I’m going to ask now. You have a glorious and large
family. Among your kids and grandchildren, are there attorneys? Are there
people who thought about becoming attorneys? If so, what kind of advice
did you give to them?
MR. LACOVARA: We have had two sons become lawyers. I’m very proud of both of them.
One went to Harvard, and one went to Columbia. The son who went to
Harvard unfortunately died two years ago suddenly. He was a great
lawyer. He was profiled in the Legal Times I think it was or the National
Law Journal, whichever had “40 Under 40” as one of its features when
they would select forty lawyers from around the country under 40 years
old who were likely to be the great leaders of the profession. And Michael
was. He was a partner at Sullivan and Cromwell, Freshfields, and then was250
at Latham and Watkins when he died. He was a great lawyer. He was the
lead counsel for Microsoft in the antitrust case as a very young partner. He
was wonderful in pro bono until the day he died. He was doing pro bono
cases, major cases. He was doing death penalty cases. He was representing
the poor in cases and had a class action challenging I believe it was in
Oklahoma and a couple of other states that had statutes allowing persons
to be jailed if they couldn’t pay court costs, even if they’d been acquitted
of the crimes for which they were being accused. Anyway, Michael in the
article “40 Under 40” was asked whether his father had given him any
advice when he said he was thinking about going to law school, and he
said yeah, my father said don’t do it. Michael went on to explain that I
explained to him that the legal profession had changed from my earliest
days back in the 1960s and it was much more revenue driven and there
was much more of a focus on the billable hour, and working conditions
were almost slavish and there was a diminished emphasis on pro bono
because lawyers wanted to earn as much money as investment bankers.
This was the corruption of the 1980s when investment bankers became so
dominant making multimillion dollar payoffs and successful lawyers were
only making $800,000, so there was this professional rivalry which really
did change the face of the legal profession. Anyway, Michael went to law
school anyway and became a very successful lawyer.
My other lawyer son is Christopher, who is an interesting
character. He went to Harvard undergraduate, majored in intellectual251
history, then went to Goldman Sachs as an associate, and then went to
Lazard, and then he became the managing partner of Kohlberg &
Company and became quite successful financially. But during all this time
because of his broad interests, he went back and while working full time
as an investment banker got a degree in engineering, an undergraduate
degree, won a Guggenheim and got a master’s degree in engineering at
Columbia, went to chef school, got a certificate from the Culinary Art
Institute, went to Yale School of Architecture and Design for a while. He
went to Columbia Law School, did very well at Columbia, had one or two
professors who were still there from my era. They were young when I was
there, they were old when Chris was there. He clerked on the Third Circuit
and then clerked on the New York Court of Appeals, the highest court in
New York. A little footnote there. He clerked for a judge named Smith
who as it turned out had been a classmate of mine. I did not know him. We
had a class of 300. After I handled an arbitration in Hong Kong in which I
issued an award, in order to challenge the award, it was necessary to show
that the decision had to have been corrupt or the equivalent., The
challenge was that, because my award was so egregiously wrong in
misinterpreting New York law, it was the equivalent of corruption or bias.
In order to support that decision, the losing party got an opinion from the
retired judge of the New York Court of Appeals who just happened to be
the judge for whom Chris had clerked a year or two before, my former
classmate. I’m happy to say that the Hong Kong courts concluded that my252
interpretation of New York law was at least as sound as the expert opinion
of the former New York Court of Appeals judge.
In any event, Christopher went to work for a law firm for a year or
two after the clerkship and decided to pursue what he had originally said
he really wanted to do when he was working as an investment banker,
which was to build housing for the poor. He went to work for a not-for-
profit agency, which, believe it or not builds supportive housing for the
poor, and he is now the chief of everything basically. The chief financial
officer, the general counsel, the chief real estate officer, the chief design
specialist. So he’s able to bring together his skills as an architect, engineer,
finance guy, and lawyer. They have built and are building thousands of
apartments, supportive housing for the underserved, and he’s just acquired
a site from the Archdiocese of New York which will be the first major
construction project for the poor in Manhattan in fifty years. So he has
done well, and is now doing good.
MS. JOHNSON: Fantastic. I don’t have any more questions today. I propose to ask you if
you have additional thoughts and then for us to take a break for a few days
and think about what we’ve discussed and think about whether there are
any gaps, additions, corrections, substitutions you might have, and then do
our last session with that if that works for you.
MR. LACOVARA: That would be great. I will try to find my cheat sheet that has the movie
poster so that I can recall some of these things, and if there are any other253
things that I think might be of interest to people who will be looking at
this, I’ll flag them for you.