Richard Hibey Interview 7

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Oral History of Richard Hibey, Esq.
Seventh Interview
September 18, 2023
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 James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Monday, September 18, 2023. This is the seventh interview.
MR. ROCAP: Good afternoon, Dick.
MR. HIBEY: Good afternoon, Jim.
MR. ROCAP: I think when we finished last time, we pretty much finished up the period of time
that you were at Surrey Karasik and Morse, later known as Surrey and Morse, and
then in 1981, you and several others left Surrey and Morse and formed your own
firm, Anderson Hibey, Nauheim and Blair. So I thought we’d just talk a little bit
about how that came about, what caused it, and how the law firm fared at the
beginning. It’s always tough to start up a new firm. So let me ask the first
question. What caused you and Stan Anderson and others to decide to form your
own firm?
MR. HIBEY: It was for entrepreneurial reasons. The Surrey firm was one of the most excellent
law firms in Washington, and I dare say in the United States. It had a wonderful
reputation built over the years by a group of really excellent lawyers who had a
wide range of expertise, including and especially in the international sector. When
we were there, they had at various times a Paris office, Beirut, Riyadh, Jeddah,
and Tehran. So it was very well established, and as I said, the lawyers were
fantastic.
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Anderson Hibey Nauheim and Blair assessed their professional situations
individually and decided that they wanted to branch out in a way that would allow
the lawyers to make their own mark, so to speak.
We had notions of investing what we earned in projects that didn’t
necessarily involve the law. Indeed, before our little experiment was over, we had
purchased two buildings that housed our expanding practice. So it was, frankly,
an entrepreneurial motive. We set out to prove ourselves individually and in this
collectivity of the four of us.
MR. ROCAP: At that point, you were the head of the litigation group at Surrey Morse?
MR. HIBEY: In Washington, yes.
MR. ROCAP: What expertise to the new group did Nauheim and Blair and Anderson bring?
MR. HIBEY: Anderson was the consummate Republican insider. He had history serving in the
White House. He had in fact been nominated to an ambassadorship at a time when
I think he was only about 33, so he was well-connected, and he set out to exploit
his partisan credentials to the advantage of the practice.
I tried cases and hoped to do so without the protective umbrella of the Surrey
firm, but just out there on my own, albeit in smaller footprint.
Steve Nauheim was a tax lawyer with excellent credentials and who I think
specialized in very complex tax issues.
Lastly, Bob Blair, who was our managing partner, rounded out our group.
Bob, I soon discovered, had a brilliant business mind. He would also jump into
anything you asked him to do. By the time our experience was over, he’d become
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“the house Democrat” and insinuated himself into some of the higher echelons of
the Democratic Party.
So that was the vision, and I have to say, it was realized.
MR. ROCAP: Did you bring clients with you to the new firm or did you start out clean?
MR. HIBEY: I don’t rightly know. I know I didn’t the raid the cookie jar or anything like that. I
might have had one or two cases that I brought with me, but it didn’t take long for
work to come. In that respect, Stan was a real driver. There were people that were
in our little townhouse waiting room just to be able to talk to us about retaining
us, and that was all due to the attractiveness of Stan’s experience. I think there
was an article that talked about “the ins cash in.”
MR. ROCAP That was in the Legal Time, I think, about a year later. They called you one of the
hottest new firms in Washington in 1982.
MR. HIBEY: We wouldn’t deny that. I for one didn’t tout it, but it was a known fact that we
were hot.
MR. ROCAP: So this is a big step before you knew you’d be hot. You were at this point in 1981
around 40 years old.
MR. HIBEY: Yes.
MR. ROCAP: The other part of the group, they were also in their early 40s, I take it?
MR. HIBEY: We may have had two partners in their 30s. Stan was older than I, and I was older
than Bob for sure and I think also Steve, but not by much.
MR. ROCAP: Things took off pretty quickly, I take it.
MR. HIBEY: Oh yes. I don’t think we expected the level of activity and success to be as great as
it was.
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MR. ROCAP: I remember Jack Miller always used to tell the young people in his firm that when
they started out, they had to take uncontested divorce cases to pay the bill. So you
didn’t have to do that, I take it.
MR. HIBEY: No. We avoided that. Although I was once in a case later in my career at
Anderson Hibey which was a domestic relations case. I never took them. I just
didn’t want them, but this had a little twist to it having to do with a $40 million
trust, and the question was who was going to get it. The case was entitled Kramer
versus Kramer. I couldn’t resist that.
MR. ROCAP: Right exactly. For those who are reading this sometime later, that was a famous
movie.
MR. HIBEY: Starring Dustin Hoffman and Meryl Streep.
MR. ROCAP: Just generally, Anderson Hibey continued on as a law firm for about eight to ten
years. Is that right?
MR. HIBEY: 1981 to 1995, I think. I announced my intention to leave the firm in 1993 with the
promise that I would not leave until I was assured that everybody was going to be
taken care of. So it took us a couple years to unravel the day-to-day practice, and
then Bob Blair, as our managing partner, oversaw the settlement of all issues
incident to the closing of the practice.
MR. ROCAP: During that thirteen- or fourteen-year run, you had some pretty big cases, and I
think we want to talk about one of them today, which is the Jonathan Pollard case.
That case started in the very end of 1985 with, as I understand it, a phone call that
you received while you were away from the office. Maybe you could describe
what happened that led you to end up representing Jonathan Pollard.
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MR. HIBEY: My brother Joe and I flew to California for our uncle’s funeral. I had expected
that it would be an event that would unfold over the weekend or three days,
something like that. When we landed at LAX and transferred to the rental car
facility, I think it was called Alamo, we happen to represent Alamo, I walked into
the place where you rent the car, and when I said my name, they told me I had an
important call that required that I return it even before I left the rental facility. I
did, and I learned that an arbitrator in a podiatric malpractice case that I was
handling was insisting that I participate in a discovery conference when I landed.
So I called back to my office to see if I could find out more about what lit this guy
up so much, and the office didn’t know but connected me to the arbitrator, and
then the arbitrator connected counsel for the other side. We started to have a
rather robust discovery conference. For the life of me, I couldn’t understand why
this guy was in such a hurry. It was an unscheduled conference, and I’m 3,000
miles away.
MR. ROCAP: You’re having this call in the waiting area of the Alamo rental car facility?
MR. HIBEY: Exactly. With my poor brother standing there waiting for me to get through this
call. We were on the call for half an hour when the AT&T operator came on
the line and said that she had a life-and-death telephonic message for me, and she
said that it was of such importance that I was to drop everything and call back to
the office of one of my wonderful golf partners, Frank Gregory. Well that was
enough to shake up this arbitrator. He let me off the hook and said get in touch
next week when you get back. At that point I got connected to Frank. Frank had
received a telephone call, urgent, everything was urgent, received a telephone call
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from Dr. Morris Pollard, father of Jonathan Jay Pollard, who I learned had just
been arrested by the FBI for spying and espionage on the United States. Frank
asked me if I felt like I could handle this thing, and I told him yes. He gave me the
names of the prosecutors, and I knew them.
After Frank referred the case to me, and I told him I would immediately
call the prosecutors, I then called my office and contacted a fabulous young
associate by the name of Gordon Coffee, a University of Texas Law School
graduate who had come highly recommended to us by a former partner of ours,
Jay Westbrook, who had become a professor at the University of Texas Law
School. I got the prosecutors on the line, and they took the call in no time. I said,
“What’s this about?” He said, “We’re going to present him to the magistrate in an
hour or two hours. Are you in the case?” I said, “Yes, I am in the case in the
sense that I’ve been contacted. I’ve got a few more things to do before I can
formalize the arrangement.” “Well, we’re going to go to court anyway.” I said,
“Well then, I’m going to send Gordon Coffee to the hearing.” It was only a
presentment, not even an arraignment or anything like that. I said, “Be nice to my
guy because it will be his first appearance in court, and we need to know so much
more before we can proceed the way we would in defense of the guy.” They were
fine with that, and so I sent Gordon to court to counsel Jay Pollard in connection
with the legal proceedings that were coming at him fast and furiously.
So I was on the phone two hours, with my brother cooling his jets, but he’s
a model of patience anyway. And then we went off to do the funereal activities of
the weekend and took an immediate first flight back after that.
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MR. ROCAP: The Jonathan Pollard case, of course, was a very high-visibility case and took up a
fair amount of your time over the next year and a half or so. What was Frank
Gregory’s connection, and why was he calling you to ask you if you could
represent Mr. Pollard.
MR. HIBEY: That’s a good question. The answer is this. Frank was a distinguished graduate of
the University of Notre Dame law school and a former clerk to I think Justice
Brennan. Dr. Pollard was, as I understand it, the highest- or longest-serving
tenured professor at Notre Dame. He got ahold of Father Hesburgh. Father
Hesburgh got ahold of Frank, Frank got ahold of me, and the rest is history.
MR. ROCAP: Remarkable. Just to set the stage, what was the basic charge against Jonathan
Pollard, Dr. Pollard’s son?
MR. HIBEY: That he stole classified material from a secure facility, reproduced those materials
for acquisition by the Israeli spy agency. Don’t hold me to this, but I think it’s
Mossad.
MR. ROCAP: Who did Jonathan Pollard work for? How did he have access to the materials?
MR. HIBEY: He was a Naval intelligence analyst. I can’t remember much more than that. He
had access, and he used that access to harvest huge amounts of classified material
and turn it over to the Israelis.
MR. ROCAP: How did you get your handle around the facts? Did you meet with the
prosecutors, meet with the client?
MR. HIBEY: All of the above.
MR. ROCAP: So, pretty quickly, did you make an assessment on guilt or innocence?
MR. HIBEY: Yes.
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MR. ROCAP: And what was that assessment?
MR. HIBEY: He violated the law. There was absolutely no excuse in the law for him taking the
materials out of the ordinary course and copying them and turning them over to
his handlers and to receive certain gifts of modest monetary value for his service
to Israel.
MR. ROCAP: There’s been an enormous amount written in the public record about the Pollard
case, the facts, and so on, so I don’t think we’re going to spend much time going
into the details of the facts, but I’d like to focus on more the defense lawyers’
perspective here. When you learned the basic facts and you made this initial
assessment, what was your strategy? What did you decide to do for Mr. Pollard?
MR. HIBEY: Once I got through the unfortunate obvious factual analysis, I turned to
negotiation and attempted to persuade the government that he should be treated
leniently on the grounds that while he did violate the law, he did so in the interests
of a close ally of the United States and that therefore there was no real damage
done that would merit a huge sentence.
MR. ROCAP: Did you have a goal in mind for a negotiated plea?
MR. HIBEY: Yes. I wish I could tell you precisely my calculations, but I concluded that in the
year of the spy, which coincidentally was unfolding with just a raft of
prosecutions and sentences of various and sundry spies, he should get an
eighteen-year sentence. In my calculation at that time, with good behavior, he
could get out in far less time.
MR. ROCAP: That was based on your research with similar cases?
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MR. HIBEY: Yes. Well, research in espionage cases. Nothing similar factually. These things all
take their own unique path. I thought as bad as it was, with the Israelis renting an
apartment for him in Washington and installing a Xerox machine where he could
copy all this stuff, keep the originals, and take them back to wherever he
purloined them but have copies ready for his handlers, I somehow calculated, and
the number sticks in my mind, eighteen years, almost as a median sentence.
MR. ROCAP: In addition to the argument that his intent was not nefarious because it was spying
on behalf of a friend of the U.S. and so on, were there other things that you were
offering up such as cooperation?
MR. HIBEY: Yes. He was to be interviewed exhaustively and polygraphed extensively, and as I
recall, I weighed in on that to ask that he be polygraphed by an agent who was my
case agent when I was a prosecutor in the Billie Bryant FBI murder case.
MR. ROCAP: Someone you knew.
MR. HIBEY: I knew him. I trusted him. He had a fabulous reputation for interpreting
polygraphs, which the government relies on very heavily outside of court.
Whether they still persist in that notion, I don’t know. But in those days, they
would find that to be kind of a loadstone for establishing credibility. But none of
that ever made it to court. It just eased their minds about whether what they were
getting was on the level. I wanted that, and they did it.
MR. ROCAP: What did you have to do in order to be able to fully represent Mr. Pollard with
respect to security and so on in your law firm. How did you staff the case, how
did you make arrangements for the documents, and so on?
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MR. HIBEY: We staffed it leanly because we were a small firm. Secondly, we were given a
SCIF, a secured compartment information facility. In Jay’s case, it was in the
Department of Justice. As I remember, they had two- or three-foot thick walls, no
windows, ample room to spread out your papers and review everything, and then
when you left, you left everything behind and were able to move on. So I had a
SCIF. I had top-secret clearance. Gordon Coffee who worked with me also had
top-secret code clearance because that’s how sensitive this stuff was that we were
looking at.
MR. ROCAP: So there wasn’t an issue of over-classification?
MR. HIBEY: No.
MR. ROCAP: Who was your adversary with whom you negotiated?
MR. HIBEY: The line prosecutors took care of the daily stuff associated with litigating a
criminal case. I negotiated with a Justice Department lawyer by the name of John
Martin. I was stunned when he came into the room and introduced himself
because he’s from my hometown. He’s one of ten children. His brother and I were
classmates and very close. We had instant credibility, so we quickly came to an
agreement about how to handle the plea and the sentencing.
One of the key elements of this was that if Jay cooperated and satisfied
them that he was being truthful in all respects and comprehensive in coverage of
his behavior, the government wouldn’t ask for life. They would ask for a
substantial sentence, but they wouldn’t ask for life.
MR. ROCAP: I think there was also supposed to be some kind of an acknowledgment of
cooperation in front of the Court?
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MR. HIBEY: Oh yes.
MR. ROCAP: By this time, I take it you’ve developed a relationship with Jonathan Pollard, and
you were able to advise him. We can’t go into the discussions, obviously, but you
were able to advise him with respect to that, and he ultimately agreed to accept
the deal?
MR. HIBEY: Yes.
MR. ROCAP: His wife was also involved in some way, right?
MR. HIBEY: Yes.
MR. ROCAP: What was her involvement in this?
MR. HIBEY: She knew about it. My sense is that, and I put it this way because I don’t want to
get into the nitty gritty of things, she knew about it, and I’d say she really aided
and abetted in the classic sense what was going on.
MR. ROCAP: We’ll get into it later, but she in fact trumpeted her participation and her
husband’s participation in it publicly, but we’ll talk about that later. Who was her
attorney?
MR. HIBEY: My brother, James Francis Hibey.
MR. ROCAP: Were there any other defendants in the case?
MR. HIBEY: No.
MR. ROCAP: So you work out an agreement. Sentencing is scheduled for some time in the first
quarter of 1987, I believe. There had been cooperation sessions between the
government and Mr. Pollard for some time. Who was the judge that this was
going to be in front of?
MR. HIBEY: Aubrey Robinson.
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MR. ROCAP: In the District Court for the District of Columbia.
MR. HIBEY: Indeed.
MR. ROCAP: You, of course, knew Judge Robinson for many years.
MR. HIBEY: I tried a lot of cases in front of him, both as a public defender and as a prosecutor.
MR. ROCAP: Did you have a strategy with respect to how to approach Judge Robinson in
connection with sentencing and what you were going to ask him to do?
MR. HIBEY: I was happy that he had the case. I thought he had a capacity to be empathic to an
argument that I wanted to make. He was a former juvenile court judge before he
became a federal judge, so I thought that meant that down deep he could muster
the courage to be lenient to a degree.
MR. ROCAP: The sentencing ultimately was the first week in March. In January, and this is all,
again, widely reported, Jay Pollard has some jailhouse interviews with Wolf
Blitzer, who at that time was with the Jerusalem Post. And those jailhouse
interviews later made their way into The Washington Post in an article on
February 15, 1987. Did you have any idea that Mr. Pollard was speaking with
Wolf Blitzer?
MR. HIBEY: No.
MR. ROCAP: When the article came out in The Post, what was your reaction?
MR. HIBEY: Near homicidal. I was shocked when I read Wolf’s article. The Post captioned
Pollard “not a bumbler but a master spy,” something like that. I just couldn’t
believe it.
MR. ROCAP: It’s been written that when you first saw or heard about the article, one of your
partners reported that there was a shriek that came out of your office that went
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through the entire Anderson Hibey office and that there was concern about your
health. Do you remember that?
MR. HIBEY: I was really apoplectic because it had undone what was to be at the essence of my
plea for mercy.
MR. ROCAP: There was also in the government’s sentencing memorandum, there was an
allegation that Mr. Pollard in his conversations with Wolf Blitzer had actually
disclosed additional classified information in violation of the plea agreement.
MR. HIBEY: I don’t remember that. I wouldn’t be surprised, but I don’t remember that.
MR. ROCAP: Anne Pollard, his wife, prior to the sentencing, I think a day or two prior to the
sentencing, ended up being interviewed on 60 Minutes by Mike Wallace in a
fairly famous interview at this point. Did you know about that?
MR. HIBEY: Absolutely not. Nor did my brother.
MR. ROCAP: What was your reaction and Jim Hibey’s reaction to that?
MR. HIBEY: I don’t know who was the more volatile between Jimmy and me because we
understood that this was an undoing of what little we had. I subsequently learned
that Anne’s father was instrumental in causing this interview for 60 Minutes that
we never knew about, an interview in which she says, “My husband and I are not
sorry for what we’ve done.” He did it, but she wanted a little of it coming her
way. So the aiding and abetting information was, as they say in the law, the
equivalent of the principal committing the offense.
MR. ROCAP: So as a criminal defense attorney, you spent at this point well over a year on the
case, from December of 1985 until March of 1987. So you spent a year-plus on
the case, working it, negotiating it, getting it ready for sentencing, fine-tuning
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your arguments, these two things happen within a week, one of them within days
of sentencing. What does a criminal defense attorney in that situation do to repair
the damage?
MR. HIBEY: You try to find a way to repair it, and some things are irreparable. I think these
interviews just made it impossible. You parse the words, what little you know of
what was said in the interview. You’ve got the article, you’ve got the video of her
with Mike Wallace, and you look for something there. I don’t remember that there
was much. It just deepened my argument all the more that Jay had really no intent
to harm the United States, even though what he did was harmful.
MR. ROCAP: When you appeared in front of Judge Robinson, how long did the argument, the
allocution, take?
MR. HIBEY: The hearing I think took a little over an hour because I remember that there was
one break where the defendants were taken back to the cell block behind the
courtroom. So I think maybe, if somebody said it was a whole afternoon from
1:30 to 3:30, I’d say that’s about right.
MR. ROCAP: How did Judge Robinson appear on the bench?
MR. HIBEY: Measured, which frankly surprised me. I tried a number of cases in front of him
and learned quite quickly that he had a stentorian voice, and he liked to use it. But
my recollection is that day he didn’t use it as much as I anticipated. He was
sticking to his script.
MR. ROCAP: And of course the government had brought to his attention The Washington Post
article, the Mike Wallace interview, in their sentencing memorandum.
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MR. HIBEY: All that was in a supplemental memorandum that was submitted a day or two
before sentencing.
MR. ROCAP: At the end of the hearing, did the judge impose a sentence at that point?
MR. HIBEY: Yes.
MR. ROCAP: What was the sentence?
MR. HIBEY: Life for Jay, five years for Anne. That was it. Anne spent a considerable amount
of time in a prison facility associated with the Mayo Clinic because she suffered
from a digestive disorder that was very painful. Jay was simply incarcerated.
MR. ROCAP: Obviously you were disappointed at that point in time?
MR. HIBEY: Yes.
MR. ROCAP: So what did you decide to do? What did you think you could do?
MR. HIBEY: I prepared and ultimately filed a motion to reduce under Rule 35 of the Federal
Rules of Criminal Procedure.
MR. ROCAP: In the sentencing memorandum, you raised the question of whether the
government had breached its agreement on the cooperation issue.
MR. HIBEY: Yes. The argument being he just argued for life after all this cooperation, you
shouldn’t do that. Well their argument was, as I remember it, something to the
effect that we didn’t ask for life, we asked for a substantial sentence, but we
brought to the court’s attention this additional evidence.
MR. ROCAP: The U.S. Attorney at that point was Joe diGenova?
MR. HIBEY: Yes.
MR. ROCAP: How did you deal with Joe in connection with the case and what happened?
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MR. HIBEY: Joe kept an eye on the case, but he was not interactive with us. The people who
ran that case day to day were Charlie Leeper, Dave Geneson, and, I think, Steve
Spivak. They are the ones who did the lifting during the brief period the case was
in the court and pleadings of one sort or another were written.
MR. ROCAP: There’s a bit of a case study here in a client who does things that his counsel is
unaware of that end up becoming damaging to him. When you think about the
case and what happened in connection with the case, do you have any thoughts
about what it teaches other attorneys about this kind of a situation?
MR. HIBEY: It’s all subject to the client’s acceptance of the advice, but the advice is obvious.
Keep your mouth shut at all times. If you want to say something, let us, the
lawyers, know.
MR. ROCAP: Rule One of advice to a client in a situation like that.
MR. HIBEY: Yes.
MR. ROCAP: Any thoughts on the role of the press in all of this?
MR. HIBEY: I don’t begrudge the press what they did. This is a free and open society, and
people can say what they need to or want to, and there’s a consequence. It gets
magnified when the press is reporting it, but there you have it. That’s democracy
in action, even for a charged defendant.
MR. ROCAP: After the motion to reduce, was there anything else?
MR. HIBEY: No. There’s one thing that’s interesting about the motion to reduce. I made a
reference in there to something that I was afraid might be a driver toward an
enhanced sentence, and that is that the defendant, my client, and Anne for that
matter, were exhibiting a certain arrogance which the press had captured. I was
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worried that that might enhance the sentence. So when I moved to reduce, I
drafted a pleading that made some kind of reference to “perhaps the court thinks
that he’s been arrogant.” I can’t remember exactly how I wrote it, but I wrote it,
and I ran it past Jay, and he was not happy about that.
MR. ROCAP: Without going into your conversations with Jay, did you talk with anyone else
about how to deal with that?
MR. HIBEY: Yes.
MR. ROCAP: Who was that?
MR. HIBEY: Alan Dershowitz. I picked up the phone and called Alan Dershowitz. He took my
call. I told him the problem of the tone of the piece, and I’m almost certain I sent
him a copy of the draft, which he supported. I want to say that because the next
thing that happened was, I caused a three-way conversation to take place among
Alan Dershowitz, Jay, and myself.
MR. ROCAP: We can’t go into that conversation.
MR. HIBEY: No. We can’t.
MR. ROCAP: Ultimately, what happened?
MR. HIBEY: I didn’t change anything and filed and then waited for the court to rule. Time went
by, and I was replaced. So that was it.
MR. ROCAP: Judge Robinson denied the motion, I take it?
MR. HIBEY: I have to assume he did. I don’t have a clear recollection that he did it on my
watch.
MR. ROCAP: That, I think, wraps up the Pollard case unless there are any other final thoughts
you have. I think that should probably do it for today. We’ll come back next time
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and talk about an equally, if not more, high-profile case involving the Marcos
family.
MR. HIBEY: Which was going on at the same time.
MR. ROCAP: You had a full plate at the time between Ferdinand and Imelda Marcos on the one
hand and Jay Pollard on the other, along with your day job.
MR. HIBEY: You got that right.
MR. ROCAP: Let’s close for today and meet in the near future and talk about the Marcos case.
MR. HIBEY: Thank you.