Richard Hibey Interview 9

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Oral History of Richard Hibey, 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 James Rocap, and the interviewee
is Richard Hibey. The interview took place in Dick Hibey’s home on Cathedral Avenue on
Wednesday, September 27, 2023. This is the ninth interview.
MR. ROCAP: Good morning, Dick.
MR. HIBEY: Good morning, Jim.
MR. ROCAP: In the last session, which was just a couple of days ago, we focused on the Marcos
representation. Today, we’re going to focus on the Clair George representation,
which followed within a year or two of the conclusion of your work for the
Marcos family.
I thought I would just at the outset mention a couple of things for those who
don’t recall. Clair George was a highly and widely respected intelligence officer
in the CIA. His career began in 1955, and he rose through the ranks until July
1984 when he became the Deputy Director of Operations, which means that he
was the chief clandestine officer for the CIA, I believe. He retired from that
position in late 1987, and then in September 1991, Mr. George was indicted by a
grand jury at the instance of Independent Counsel Lawrence Walsh, who was
conducting the Independent Counsel investigation of what was known as the Iran-
Contra affair.
There were two trials in which you represented Mr. George in 1992 that
we’re going to talk about, the first resulted in a hung jury in a mistrial, and the
second resulted in a conviction on only two of seven counts of lying to Congress.
And then later that year, on December 24, 1992, President Bush pardoned
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Mr. George and several others involved in the Iran-Contra affair for any alleged
wrongdoing.
So, at least from my perspective, this looks like it was probably quite a
rollercoaster in a very condensed period of time starting in the fall of 1991 and
ending in December of 1992. Why don’t we start then? How did you come to
represent Clair George?
MR. HIBEY: I received a telephone call from Brendan Sullivan who represented Colonel Oliver
North in what I think people would agree was the most contentious political
drama of the period. It was known as the Iran-Contra affair. It had to do with arms
and the diversion of funds and arms to assist the Contras, which was, as I
remember, contrary to American policy, and it was intertwined with some
clandestine activity that was occurring in Iran. Hence, the phrase Iran-Contra
affair.
Brendan, one of the preeminent lawyers of his generation and mine,
represented Ollie North, who was a target writ large in political Washington. The
Democratic politicians, led by John Kerry and Thomas Eagleton, wanted to take
down the Republican administration of President Reagan. So they did everything
they could to reveal the political considerations that undergird the efforts, to take
down the administration through what became known as the Iran-Contra affair.
Brendan had his hands full, so to speak, representing Oliver North, so he turned to
me to ask if I would meet with Clair and explore the possibility of my
representing him. I agreed to that. I met with Clair. We hit it off immediately, and
within days, I’d say, of that meeting, I undertook to represent him.
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MR. ROCAP: The Iran-Contra hearings I think were in 1986, and that was when Brendan
Sullivan, I believe, gave his famous quote, “I am not a potted plant” when he was
sitting at the table with Colonel North. The Independent Counsel was then
appointed at some point, and it wasn’t until 1991 that Clair George was indicted.
Along that timeline, when was it that you started representing Clair George? Was
it close to the indictment?
MR. HIBEY: Yes. All the drama that is associated with the history you just narrated in leading
up to this particular question took place before I got involved. I did not represent
Clair during the hearings where he gave testimony that later was the basis for his
indictment. I seem to recall that I began representing him very shortly after he
was indicted.
MR. ROCAP: Who was the case assigned to? It was here in the District of Columbia, right?
MR. HIBEY: Yes. As I remember, it was assigned initially and only to Royce Lamberth, now a
senior judge, but at the time a very highly experienced, highly regarded trial judge
in the US District Court for the District of Columbia. He was also very tough. His
reputation was he’ll give you a good hearing, but if your client is found guilty,
you can expect your client’s liberty will be at risk.
MR. ROCAP: You knew Judge Lamberth before the trial?
MR. HIBEY: I knew him because he had been in the Office of the United States Attorney on the
civil side. So I knew of him. I don’t think I had any cases in front of him because
I might have been out of the Office when finally, as they say, he took silk and
became a judge.
MR. ROCAP Who did you pick from Anderson Hibey to help you on the case?
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MR. HIBEY: A young lawyer by the name of Gordon Coffee.
MR. ROCAP: His name has come up before.
MR. HIBEY: Yes. As you know, we were a very small firm. This was a young man who’d
come to me on strong recommendation from a former partner of mine who was on
the faculty at the University of Texas where Gordon went to law school. Over the
years, he developed into one of the finest lawyers I know. He never disappointed
me. Never. And I reposed an enormous amount of trust in him, especially in these
cases that I was attracting that were high-profile and subject to a lot of criticism. I
really had very little room for making a mistake, something that I necessarily was
averse to and more so in the glare of publicity.
Gordon was my go-to guy for all the big cases when I was at Anderson
Hibey. He was one of three people at Anderson Hibey that I relied on. I brought
him with me to Winston and Strawn where he took on even larger responsibilities
in my cases. He was the person I turned to in the Clair George case.
MR. ROCAP: He was indicted in September of 1991. By October of 1991 you were already, of
course, seeking documents from the government, and one of the first head-toheads
that you had with the Independent Counsel team involved access to the
production that the Independent Counsel had made in the North and Fernandez
cases that preceded the indictment of Clair George. Could you talk just a little bit
about that?
MR. HIBEY: I thought it was a routine request that would be easily complied with because
they’d already done it in two instances for Ollie and for Fernandez. They chose to
resist. We went to court and argued a basic discovery motion which Judge
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Lamberth granted in part and denied in part. The result was I had about two
million classified documents that were in the trove of materials that made up the
story in documentary form of the Iran-Contra affair.
MR. ROCAP: How did you go about organizing the review of that large a group of documents?
MR. HIBEY: That’s a very interesting question, especially in the light of what is happening
these days with classified discovery in the Trump criminal prosecutions and
particularly, well I guess January 6 and Mar-a-Lago that immediately come to
mind.
On reflection, I think in my instance, we just got lucky. Here’s why. I had
received, and Gordon had received, top-secret-plus clearance in the Pollard case,
and that enabled me to look at the evidence of classified, top-secret, code-word
evidence that the government had in Pollard’s case. This case, Clair’s case,
followed as I remember in reasonable temporal proximity to the whole Pollard
saga, so my clearance from the Pollard case, and Gordon’s clearance from the
Pollard case, needed to be updated, and that could be done on a relatively
expeditious basis because of the Pollard processing. So with respect to the defense
lawyers who had to work on the case, we received our clearances with relative
speed. There was the subsequent problem of my now having access to a SCIF that
contained I think upwards of two million documents, and it was confounding to
me how I was going to get through them and understand what was in them
because this stuff was all in CIA coded language, security coded language.
As I think I might have said earlier, or you might have in the introduction
to this story, Clair was a legend at CIA. He had done great things that warranted
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the agency over the years to recognize his stellar service on behalf of the country
in the clandestine services. He had a following. On any given day that we were in
court and not in classified hearings, I could count on two or three dozen retirees
who would show up to witness the day’s proceedings before the court. They were
all cleared in their day. They were all professionals. They understood these
documents innately so they volunteered to review the materials and assist me in
dealing with whatever they yielded that would help me in representing Clair. So
they were subsequently and quickly cleared and therefore were available to go
into the SCIF and review documents. That’s what they did. We fell into a
methodology that allowed us to get through all that we came to understand we
needed to get through. I would target certain events that the evidence revealed and
have my people go into the trove and recover documents relative to the event that
was of interest to me in a particular moment. I met with everybody in a group
meeting once a week and they would report to me. It was fantastic because I
really had the confidence after a while that I was not going to get tripped up by a
document that we missed because these people don’t miss. And that’s exactly
how it happened.
In fact, in a quick fast forward, at the end of I think the first trial, the
government offered a document from Ollie North’s burn bag as a smoking pistol,
so to speak, that they wanted to use for rebuttal. We saw that coming because we
found the document too, and I put money on the fact that that’s exactly what they
were going to do is try and spring it on me in rebuttal. So we were ready, and
Judge Lamberth declined to admit the document.
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I had a wonderful experience with these people and would jokingly say to
them that I was proud to lead what I was sure was the largest CIA station of
operatives anywhere. We got a kick out of that.
MR. ROCAP: All of those documents and all that work in preparation for trial led to something
called CIPA hearings, which is the Classified Information Procedures Act, that
was enacted to protect both the government’s interests and the defendant’s
interests in a fair trial. So at some point, what did you have to do, give notice and
then have hearings? How did that work?
MR. HIBEY: I don’t have a clear memory about what the government did to use CIPA, but I
can tell you that we would proffer documents as we developed our case.
MR. ROCAP: This is in advance of trial?
MR. HIBEY: Oh yes. We would proffer them to the court, and the government would be
required to say yay or nay as to the classified nature of the documents and their
disclosability in an open court proceeding. The court would have to find that the
document was admissible because it supported our defense. The government
would point out in the document what was classified and needed to remain
undisclosed. Then the defense was required to demonstrate to the court how we
wanted to deal with the document in light of its classified nature and the
government’s objection. So a document could end up being redacted. If that didn’t
do the job, then summarized with different language and whether the sensitive
language could be substituted with other language which was okay from the
standpoint of classified information.
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If none of those alternatives worked and a summary was the only thing left
to save the evidence for use, it was incumbent upon the prosecutor to write the
summary, and not upon us, the defense. We just had to be sure, and this is critical,
that we were placed in an evidentiary position that was no less than what we
would have been in if the document had come in without redaction, summary, or
substitution. It’s a remarkable statute. I don’t think it was intended by the
Congress when they wrote it, but that’s what it was back then as I remember it,
and I haven’t looked at CIPA since I had to deal with it.
MR. ROCAP: This had to result in, I assume, a number of hearings in front of Judge Lamberth?
MR. HIBEY: Yes. Picture the summer spent in his courtroom where I have no way of, or did
not take the opportunity to, count the number of rulings he made. I probably
wouldn’t be able to because as I remember, so many of them were themselves
classified. But the number 35 sticks in my mind that that was the number of
rulings he wrote in the lead up to the first trial.
MR. ROCAP: That’s all in a pretty condensed period of time too. I think the first trial began on
July 13 of 1992, so all of this had to be resolved well in advance.
MR. HIBEY: Not well in advance. I’d say on a rolling basis through June.
MR. ROCAP: So you were still developing your own evidentiary presentations depending upon
what Judge Lamberth decided right up until the time of trial?
MR. HIBEY: Yes.
MR. ROCAP: The first trial starts in mid-July. Who were your adversaries in the courtroom?
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MR. HIBEY: Well the lead adversary, the one I remember the most, is Craig Gillen, who was
an assistant US attorney from Atlanta who came up to Washington to work on the
Iran-Contra affair for Judge Walsh.
MR. ROCAP: So it was a jury trial, of course, in front of Judge Lamberth. What was your
primary strategy? What did you want to get across to the jury?
MR. HIBEY: It’s not that I wanted to get anything across to the jury. During the selection
period, I was just looking for people who didn’t have preconceived notions about
the Iran-Contra affair. It was as divisive an issue as any that we had at the time
and is akin to the divisiveness of the current political scene in Washington. I just
wanted to get the doctrinaire types off the jury, unless, of course, they evinced
certain favor toward Clair. But that didn’t happen. I just didn’t want anybody who
was going to stink up the works by planting a flag of division.
I used materials that we ordinarily got, which was not a lot. We didn’t
have the money to go out and get jury experts and people who could find out
things within the limits of the law about our jury. I just had to make sure that or
feel confident that nobody on the jury hated us in the beginning. If they didn’t
hate us in the beginning, I was going to be damn sure they weren’t going to hate
us at the end.
MR. ROCAP: Did you have an evidentiary strategy in terms of how to present Clair George to
them?
MR. HIBEY: To the jury? I should tell you one thing. I didn’t have the money to get a jury
expert to consult during selection and do all the things jury experts do, but what I
discovered was that I had sitting at the counsel table with me someone who on a
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modest fund of facts could weave a personality analysis that was several layers
deeper than I could do, and I thought I was pretty good at. That person was Clair.
He actively participated in our review of the information we were able to cull
during voir dire that formed the basis of our selecting and striking jurors for the
trials. It was quite a revelation.
MR. ROCAP: You had to decide whether to have Clair George testify, always a very difficult
decision and one that I suppose the presumption is that the defendant would not
testify. In this case, Mr. George did testify. Could you talk a little bit about the
decision-making process there?
MR. HIBEY: Yes. I think you’ve got it right that the general wisdom is don’t put him on. Give
him a taste of cross examination if he feels otherwise. And force the government
to their proof without contributing to the tone and content of what was going
down through the testimony of the client himself. I knew instinctively that not
calling him would not work. And it was the case that only he could convey to the
jury his position as an appropriate counter to Kerry and Eagleton. That’s where I
came out. I tried not to taint the decision with my own views. I waited to hear
from Clair as to what he wanted to do, and what he wanted to do was testify, and I
supported that.
MR. ROCAP: How did he do in your view in his examination?
MR. HIBEY: It was an uneven performance. In hindsight, memorable for its drama and for its
substance. But there was substance there. It’s just that it kept being delivered
with exclamation points.
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MR. ROCAP: I understand that there came at one point in time a rather dramatic moment with
Judge Lamberth in the course of Mr. Gillen’s cross examination of Clair George.
What do you recall about that?
MR. HIBEY: Yes. I recall that Clair had a habit, just had a habit, of interrupting a question,
even when he was dealing with me. I couldn’t break him of the habit in order to
refashion him for trial. I quickly came to the conclusion that I couldn’t and
wouldn’t because this is who he is, but what I didn’t expect is that the judge
simply lost all patience with the way Clair responded to questions on his cross
examination. Gillen could hardly get the question out, and Clair was answering.
That just wore on the judge until there came a moment. What happened was the
judge kept a gavel in his hand during cross, and finally after telling him wait for
the question to be asked before you answer it, there came a time when he
interrupted him again, and this arm of the judge just came slamming down with
gavel in hand and everybody jumped at the sound that it made. A thunderclap. He
excused the jury, and then, to put it mildly, admonished Clair, threatening him
with contempt if he didn’t play by the rules. Then he turned to me and said, “Talk
to your client and get this straight because I’m not going to tolerate it anymore.” I
told him, “Yes, of course.” He left the bench. Clair remained in the witness stand.
I walked over to him, and he said to me in a whispered tone not to be picked up
by the microphone, “I guess I f****d up, huh.” I said, “You might say that.
You’re lucky you’re not in the can right now. We’ve got to straighten this out. I
want you to apologize to the judge, and I want you to apologize to the jury, and
then go back into your testimony.” That’s what he did.
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MR. ROCAP: His testimony, along with everything else during the first trial, seemed to work
pretty well because when it went to the jury, there were at least, I think, six days
of deliberations and ultimately resulted in a hung jury that the judge declared on
August 26. Could you describe the rollercoaster of emotions that went on during
that period of time?
MR. HIBEY: I don’t think it hit us right away – the psychological implications of the failure to
reach a verdict – because we didn’t know what the count was. That came later,
and that got my attention. I had twelve jurors, and the worst I think any vote on a
hung count was 7 to 5 for acquittal. There was never a vote on any count where
the majority was for conviction. I thought to myself wow, that tells me a lot. So I
can’t tell you I was elated and on cloud nine, but I was very hopeful that if we had
to go through with this, the result would probably be the same. I thought that
Walsh and his team would recognize the good sense associated with a verdict
sheet that never had any of these counts for conviction and that that meant
something in their calculus as to what to do next. Not a chance.
Walsh was older. I laugh when I say it now, but I think he might have
been close to 80. He had many friends and associates in the legal community of
comparable age. I recall that so many of these men called him and urged him not
to go a second time. I think there might have even been an editorial in the Post
that urged Walsh to step down and not prosecute this case a second time.
I went and saw him and brought somebody with me, but I can’t tell you
who because I don’t remember, and I made my pitch. Gillen was there, and he
was stone cold non-responsive to anything I said, would not engage in
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conversation, would not accept in any way anything that I said and demonstrated
that through his stony silence. Gillen’s view carried the day, and Walsh allowed
the prosecution to go forward a second time.
MR. ROCAP: Interesting. I know the jury foreman actually spoke to the press and talked about
the majority votes for acquittal during the course of deliberations. He also met
with you at some point?
MR. HIBEY: Yes. Around the time of that news article in which he was interviewed, he
contacted me. I’m almost sure I would not have contacted him. I was old school
about that. You don’t talk to jurors unless the court specifically gives you
permission. I’ve been through that exercise and it’s benign. Reaching out to this
guy, I didn’t. But that didn’t stop him apparently because he called me. The
upshot of the call was for him to come down and spend a day talking about the
case and specifically going through documents that were admitted into evidence
and giving me his view and the jurors’ views of each one of these items. It was
during that extraordinary visit by this highly intelligent individual who exhibited
no political view regarding the case that I, I’ll put it this way, that we discovered
that in a critical document, which I think was Clair’s briefing book as compiled
for him by his associates, there was a page in this critical document where the
print was different than the other pages of the same document. That was just a
new item for cross examination that I could rely on, and that’s what happened.
MR. ROCAP: That’s remarkable.
MR. HIBEY: I want to say very quickly, in the second trial, he was acquitted on, as I remember,
eleven “calls” of the indictment. I put it that way because I’ve lost track of what
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the terms of art are. But if you have a false statement, let’s assume the statement
is a compound sentence. So and so did this and somebody else did that. But it’s all
one sentence. The prosecutor could argue based upon the evidence that the first
clause was a lie without commenting on the second clause. So there are two
opportunities for them to decide whether a crime had been committed based on
the sentence. So I think we whittled the case down to seven counts but a total of
thirteen possible verdicts off of the seven counts, and they acquitted on eleven of
them, and convicted him on two.
MR. ROCAP: Pretty remarkable out of all of that. So the second trial did go forward. I think it
started on October 19th and went to the jury on November the 19th, and there were
eleven days of deliberations there. I assume that was another bit of an emotional
rollercoaster for those eleven days over Thanksgiving.
MR. HIBEY: I’m sure it was. I don’t have any independent recollection of that.
MR. ROCAP: One thing I did want to ask you about. The principal adverse witness against
Mr. George was a gentleman named Alan Fiers. You, of course, needed to cross
examine him. There are newspaper articles about your cross examination of him
during the trial. What do you recall about the cross examination?
MR. HIBEY: From the standpoint of preparation, I felt I was loaded and that I had pretty much
scoped out every possibility where he could veer in one direction or another in
support of his position. But he was on the record making one or two statements
that were just incendiary enough for me to take advantage of them and then parlay
those statements in such a way as to affect generally and specifically his
credibility on all the stuff that the government really wanted him for. He was a
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very bright man. I could understand how his intelligence was remarkable. But I
think he was a little too full of himself too and enjoyed a turn of phrase. I seem to
remember that one of the phrases that I used on him was his characterization of
some testimony that it was “generally truthful but specifically misleading.”
MR. ROCAP: It was testimony that he had given that he was describing in the hearings back in
1986?
MR. HIBEY: Yes. I pounded him on that. There was something he said about honor, and that
didn’t hold up given what he testified what he was saying about Clair in a
situation. And then I dug up a fact that he had gone to Ohio State and worshipped
Woody Hayes, long-time head coach of the Ohio State Buckeyes football team,
who was a character in and of himself, totally driven by the pursuit of victory. He
described Hayes a long time before this trial as a man that he revered, a mentor, a
guide for him, and was a factor emotionally in his life going forward. So I asked
him about that, and he owned up to it, “Yes, that’s true.” And then I asked him,
“Was this the same Woody Hayes who punched a player running down the Ohio
State sidelines after intercepting an Ohio State pass?” And it cost Woody his
career as I remember it. I was examining on that, and easily was about to deliver
the coup de grace on that particular point when the prosecutors flew out of their
chairs and strenuously objected, and Royce cut me off. But I thought it was kind
of neat. But it also, on a more serious note, reflected the tone of this entire
dispute. The politicians had an axe to grind, and they were going to see it
through. Fiers was a naturally bright guy who was told – perhaps on too many
occasions – that he’s a naturally bright guy. And he thought that by the sheer
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force of his intellect and his personality, he would be recognized as truthful.
That’s crap. Or it was as far as I was concerned.
MR. ROCAP: The result ended up with, as you say, acquittals on everything but two counts of
lying to Congress, and then ultimately within about two weeks of the verdict,
which was on December 10th, President George H.W. Bush ended up granting a
pardon, not only to Clair George but to a number of other individuals in the Iran-
Contra affair. Did you have any advance notice of that coming?
MR. HIBEY: I knew it was in the works. In the middle of my trial, I feared that the government
might have learned from its mistakes to the point that they were going to put on a
much better case, and that increased the possibility of a conviction and the
prospect of jail for Clair by a judge who was firm, fair, who gave me two great
trials, but who would have no hesitation in stepping Clair back for a sentence of
some sort. So I called Bob Bennett, a dear friend, a fine lawyer. He represented
Cap Weinberger, who had been indicted in connection with all this nonsense. I
said, “I just want to let you know that if you can do anything to get a pardon for
your guy and mine, I’d appreciate your doing it. I can’t because I’m in trial and
I’m not as connected.” He said he understood my situation. He didn’t guarantee
anything. He didn’t even say he was going to do anything about it, but he did. I
learned later that he had lobbied the White House, so to speak, on behalf of Cap
and Clair. I forget who else, if anybody else, and in due course, pardons were
received.
MR. ROCAP: That, I think, is the end of the Clair George story, at least for the oral history. I
think we’ll conclude here, and the next time we meet, we’ll talk about some
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matters that you undertook of, again, a high-profile nature in the 2000s. Thank
you.
MR. HIBEY: Thank you.