Sally Gere Interview 2

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Oral History of Elizabeth Sarah (“Sally”) Gere
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 Barbara Kagan, and the
interviewee is Elizabeth Sarah Gere. The interview took place on Thursday, February 13, 2020.
This is the second interview.
MS. GERE: Good afternoon, Barbara.
MS. KAGAN: Good afternoon, Sally.
When we last finished, which was a good while ago, we were coming to
the end of your college years, but we hadn’t fully wrapped that up. I know
that you had mentioned you were working in the college cafeteria. That was
important to you, and it kept you grounded with some of the kids there that
weren’t all from affluent backgrounds. So in addition to that, did you work
during high school?
MS. GERE: Yes. That’s one of the things after we talked, I realized that I had not given
proper emphasis to the importance that my family placed on working, in
significant measure as a way to learn the virtues of being on time, doing a
good job, learning how to work with people that you might not otherwise
know or come into contact with, so I started working at a pretty young age. I
think I mentioned in my neighborhood growing up, there were a lot of large
families which offered very fruitful opportunities for babysitting, which I did
frequently for the neighbors as soon as I was old enough to be a babysitter
instead of being the babysittee. And then when I was in high school, I had
jobs during the summer, even though I probably wasn’t even 16 years old,
that involved working for somebody who had a little concession booth in a
resort town in Alexandria Bay, N.Y. I had a regular schedule there.
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MS. KAGAN: Daily, nine-to-five?
MS. GERE: Yes. I watched people put paint on cards and then spin them around and go
home with their artwork. They spun the cards around, not themselves. And
from there I graduated to being a waitress in a steak restaurant, which was,
for the area, quite upscale.
MS. KAGAN: Did you have to carry heavy trays?
MS. GERE: I carried heavy trays and had to learn all about the menu, learn how to deal
with getting between people and their food, which I learned is sometimes an
unpleasant place to be if they haven’t gotten what they think they wanted in
the amount of time they wanted it. So that was a very interesting and good
experience in terms of learning how to deal with people, including working
with, and at that time it was all women, and we did not wear anything like
scanty outfits, but that didn’t stop the people who came there from being
inappropriate. So I learned from an early age how to kind of navigate that as
well. Part of the time I worked at the same restaurant as a cocktail waitress.
That was even more of a challenge. I remember working in the bar while
watching the Apollo moon shot. It was extraordinary. I have good memories
of amazing things that Americans accomplished while I was at work in a bar.
MS. KAGAN: Did people get physically forward?
MS. GERE: Yes. There was and still is a military base nearby, and so a lot of times the
guys would come in in a group, and they were the ones who tended to be the
most rowdy.
MS. KAGAN: They were there for meat, so to speak.
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MS. GERE: Right. I worked one summer at a different resort, and I’m trying to think
which came in what order. I think that one came first, where I had to serve
breakfast, which as a server notoriously is the worst. The amount of money
that gets charged is less, so the tip is less, but the amount of work you do in
exchange for that is more because there are more pieces, there are more
things that you have to remember to do, bring the coffee, the sugar, the toast,
the eggs, the cereal, the maple syrup. I can remember one day these guys
came in and decided it would be very funny if they left my tip in change in a
plate of maple syrup so that I had to wash every coin. And I couldn’t afford
not to, so I did. But that was the funny part. I guess funny. There were
other parts that weren’t quite so funny.
MS. KAGAN: And there’s not much you could say to the management to help you?
MS. GERE: No, because, at least in one of those places, the management was part of the
problem. So I learned from an early age about hard work and the importance
of doing a good job.
MS. KAGAN: And people skills.
MS. GERE: And people skills.
MS. KAGAN: I think that’s really important. I appreciate that myself. There’s not enough
of that, I think, these days.
MS. GERE: Certainly not with everybody on their device screens.
MS. KAGAN: We’re getting to the end of college, and you found a husband, and he
happened to be going to law school. I know you mentioned that you were
trying to figure out what to do, you didn’t have a husband, and all your male
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friends were going to law school, so you thought about that. You took the
LSATs, and you were off to the races. Did you meet your husband in that
context?
MS. GERE: Actually, I met him in college, right at the very end of college.
MS. KAGAN: He was planning to go to law school?
MS. GERE: He was already planning to go to law school. And then we both lived for the
summer before we got married in the resort town, Alexandria Bay, N.Y.,
because it was a good area to try and make some money. Then he started at
GW in the Fall, and I started at Syracuse.
MS. KAGAN: Was it just a coincidence that your husband-to-be was planning to go to law
school? It wasn’t like interest in the law brought you together or anything
like that?
MS. GERE: No. Probably early on, I would have considered him one of the guys who
was my friends who was taking this law-school route. I had another close
friend in college, Alex Curchin, who actually had applied for and decided to
go to Syracuse Law School. He lived with one of my parent’s friends who
happened to have a big house. She was getting on in age and was thrilled to
have somebody in the house with her. He too ended up transferring from
Syracuse after the first year, so he and I didn’t stay.
My first year of law school was challenging because as I think I mentioned
that there were, to my recollection, only two other women in my class. At
the time I was accepted, I was the only one.
MS. KAGAN: Out of how many?
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MS. GERE: I don’t even know. I guess several hundred as far as I can recall. Law school
was a different learning experience, and as I mentioned, I didn’t know any
lawyers. I didn’t really know what would be expected of me as a law
student, let alone as a lawyer, but there I was as a law student and just figured
well, if I study hard enough, everything will work out. I still look back on
those times, and I’m not sure how or why, but my two closest friends in law
school were two other students, Richard George and John Laidlaw, who had
served in Vietnam and came back and started law school. They seemed to me
to be more grounded. They seemed to be more mature, and they had wicked
senses of humor, so that’s how I got through my first year of law school. It
was having some close friends because the professors were very skeptical of
having women in the class, but at least at Syracuse, I was more ignored than
picked on, I would say. I’m not sure which one ended up being better
because I had the other experience when I got to GW.
MS. KAGAN: Let’s back up a second. Did your husband have a particular goal in mind
when he decided that he was going to go to law school?
MS. GERE: Yes. He definitely was going to be a labor lawyer and represent labor
unions. His dad was a truck driver, a teamster, and Glenn (Whitaker), my
husband-to-be, felt very passionately that that was a segment that needed
good legal representation. So he had his eye on the prize early on.
I, on the other hand, was somewhat more, I don’t know, either a drifter,
ambivalent, and just wasn’t certain. Maybe it’s more of a reflection on me,
but I started out as a history major in college and ended up being a French
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major because I wanted to write my college honors thesis in French. I had to
change majors to find sufficient faculty fluent in French to read and grade my
thesis. I’m not sure that’s an education plan one scopes out years in advance.
In some ways, I guess, law school was that way for me. I was searching for
why did I do this, and what am I going to do next. But going through my
first year of law school, I can’t say that anything stuck out for me as showing
me a path for where I wanted to go.
MS. KAGAN: None of the basic classes spoke to you?
MS. GERE: No, although I guess if I had to pick anything, I probably would say that
criminal law was more comprehensible to me and more meaningful, and
constitutional law, which I think law students love or think that they love.
But more critically for me was getting married in January 1970 at the end of
the first semester of law school and trying to figure out, all right, now I’ve
gotten married, I’ve got a husband who lives 500 or 600 miles away. How
are we going to navigate this. I also had taken a part-time job as a check-out
cashier at Loblaws, a local grocery store. More lessons about getting
between people and their food. More learning people skills.
My new husband quickly made it clear there was no way he was moving
to Syracuse. I’d never even been to Washington, D.C. and so I said well I’ll
at least come and look at it and see if there’s any way that I can transfer.
It was a very difficult process because that would have been in the spring
of 1970, which basically was the time that most college campuses were in the
throes of extreme distress, demonstrations, and disarray over the Vietnam
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war. The National Guard killed four students at Kent State. There were
demonstrations at schools and in cities across the country. At most law
schools, final exams in the spring of 1970 were cancelled. People couldn’t
get to class, so law schools just didn’t give exams. Nonetheless, I had been
told by GW that there was no way that I could transfer unless I had taken
final exams for the second semester of my first year, even though GW didn’t
have final exams for its own students that year and Syracuse was not offering
final exams. And so this other fellow that I mentioned earlier, Alex, and I,
and I think there was one other person that I can recall very vaguely, had to
go to professors and get them to give us final exams so that we could
transfer. So there were three or four of us in the first-year class at Syracuse
who did took final exams.
MS. KAGAN: The professors were willing to do that?
MS. GERE: There were professors who were willing to do it. I can remember my father
driving me up to the SU campus and practically, he was not very happy about
the whole situation, and felt, I think, quite rightly, threatened. Even to drive
up onto campus through the demonstrators was quite an undertaking,
especially if you didn’t have your peace sign jacket on, which my father
clearly did not. He was somebody’s father driving his daughter to take
exams and you best get out of his way.
In any event, I got through exams and interviewed at GW. The then-Dean,
Wallace Kirkpatrick, was a very difficult man. During my interview, he said
I’ve looked at your husband’s record, and he’s done very well his first
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semester here at GW, so I’m sure he’ll be able to help you through law
school. With that, I’m willing to recommend your acceptance. Mind you,
my husband and I had basically the same GPA graduating from college and
probably about the same LSAT scores too. My husband was very bright, but
he was going to get himself through law school. He wasn’t getting me
through law school. I’ll never forget that. Of course then I set about making
it my business that I did a good job and never looked back. I did well at GW.
I graduated with honors, as did my husband.
Then that interest in criminal law started to speak to me because some of
the professors were so interesting. Ironically my ex and I, it’s not ironic, but
we were poor. We concluded the one way we could finance our way through
law school was to take the same classes and buy just one set of books. If one
of us had to work, then the other could go to class, and we would tag team so
we wouldn’t miss anything. I took a lot of labor law, and he took a lot of
criminal law, which was okay. It was all right for both of us.
MS. KAGAN: How political were things at the law school?
MS. GERE: By the time I got there, we could have gone to a march every weekend had
we wanted, and we did, and I, going fast-forward, thought afterwards, now
how am I ever going to get a job with the Justice Department because I’m
sure I’m on somebody’s photo feed marching down Pennsylvania Avenue.
But I’m getting ahead of myself.
Getting to my second year of law school, being a transfer student, being
newly married, was kind of isolated in a way. The people who had started
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together had formed their cliques and study groups of which I was not a part.
Shortly after I got to GW, I found a job and so was working a fair amount.
MS. KAGAN: What were you doing?
MS. GERE: I worked for what was then, and this will come full circle, I worked as a law
clerk for the D.C. Corporation Counsel, now today’s D.C. Attorney
General’s Office. I worked on a project that was funded by the LEAA, Law
Enforcement Administration Association. We worked to prepare a jury trial
manual for use by the Corporation Counsel lawyers, so a lot of legal
research, a lot of it on criminal issues for local prosecutions for which they
were responsible.
MS. KAGAN: At that time it was traffic offenses and misdemeanors less than 180 days?
MS. GERE: Yes. I believe probably juvenile too. One of the very first bosses, well, the
very first boss I had as a lawyer, was a woman, which was pretty
extraordinary, I later came to find out in my naivete. Margaret Hines was a
very bright person, a very good manager. I think there were four of us who
were law clerks. She might have had a staff lawyer. I can’t remember. But
she kept us all very busy, and it was, again, a very good experience. A
learning experience. And, through that work, I met a GW classmate, John
Leonardo, who remains today my closest law school friend. He went on to
be a judge on the State Court bench in Arizona and later, the US Attorney
there.
MS. KAGAN: How many hours a week did you work?
MS. GERE: I think it was twenty. But I got paid.
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MS. KAGAN: Was your husband working?
MS. GERE: He was working. His first job was with a government contracts law firm.
His second job was with the Teamsters Union. He got a job with the inhouse
General Counsel for the Teamsters, which was a dream job for him,
and he did very well at that.
MS. KAGAN: Were you working the summer after your first year?
MS. GERE: Yes.
MS. KAGAN: And was that in D.C.?
MS. GERE: No. That would have been the summer after my second year. After our first
year of law school, we lived in the resort area of Alexandria Bay in the
Thousand Islands on the US-Canada border. Glenn worked there too. I was a
waitress and he worked at the marina. We didn’t have legal jobs. We were
trying to make money so we could someday have legal jobs.
MS. KAGAN: Did you take night classes to help with your schedule?
MS. GERE: Yes. We both took night classes. I also liked them, not just because it was
good for my schedule, but I also found that the professors were more often
people who were engaged in the active practice of law. It also seemed that
the students in the class who were night students more mature and more
focused, kind of get in and get out, learn what I need to, and then I need to go
home and eat my dinner or whatever because they had already been working
all day.
MS. KAGAN: Right. Approach it like a job. Where did you live when you first moved to
D.C.?
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MS. GERE: We lived in an efficiency apartment in Arlington, Virginia, which was right
across the street from Ft. Myer, so we could hear reveille in the morning, and
if we could get home in time, taps at night, but that was not that frequent.
We kept our bikes parked next to our dining room table. But it was fun. It
was a good place to live. It was near a laundromat. It was cheap. I think we
paid $80 a month.
MS. KAGAN: How did you get back and forth to law school?
MS. GERE: We either drove or we biked, depending on what was going to happen during
the day or which of us had to work or who needed to be where.
MS. KAGAN: Was there such a thing as a kind of a typical law school day?
MS. GERE: I can’t think of a typical one.
MS. KAGAN: Did you do most of your studying in the library?
MS. GERE: Yes. I remember thinking if I could buy a soft drink during the day, that was
living large. We packed lunch and never bought anything to eat at school.
MS. KAGAN: You didn’t get a scholarship at GW?
MS. GERE: I did, beginning my, I think I got it the second semester of my second year,
and then I had it my third year as well. We both had what were called
Trustee scholarships. I think it must have covered a goodly amount. We had
loans that we had taken out, but it certainly was a tremendous help.
MS. KAGAN: At what point did your father become proud of you for your path?
MS. GERE: Not until I got a job at the Justice Department, which would have been after
my clerkship. I was there for a while and was assigned to a case to represent
former President Nixon.
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MS. KAGAN: Okay. We’ll get to that later.
MS. GERE: So that’s down the road. It takes a while.
MS. KAGAN: He wasn’t thrilled with your choice of spouse because he wasn’t able to
support you?
MS. GERE: More I think it was his political persuasion that my father did not share.
MS. KAGAN: Did you have a large wedding?
MS. GERE: No. We got married in January 1970 in Syracuse, New York.
MS. KAGAN: Where was his family?
MS. GERE: In Cincinnati, Ohio. There was one of those blockbuster blizzards that
weekend. We weren’t going to have a big wedding anyway. We got married
in a church, and the reception was downstairs in the church hall with a
champagne cocktail, so it was not anything extravagant. But we, I thought,
had a very lovely wedding. So that part started off fine.
MS. KAGAN: Given that there was so much pressure, social and familial, to get married, to
be married, did you feel any different after you had gotten married?
MS. GERE: I thought now I can get that off my checklist of things that I don’t need to
worry about now. Getting married was one of them. My parents were
pleased that I got married. I think they were then concerned, how was I
going to be married and be starting off on this career that was just not what
women did. How was I going to be able to do that. Which I also asked
myself.
MS. KAGAN: And the pressure to have kids.
MS. GERE: Yes. That quickly became the next box to check.
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MS. KAGAN: Right. Okay, so now you’re sort of humming along, on low octane, in law
school. And then after your second year, did you keep the job with the
Corporation Counsel?
MS. GERE: Yes. It seemed like a good job. I worked with one of the other interns who
also was from GW, and to the extent that I made any friends during law
school, it was because of that internship or clerkship, whatever you want to
call it. As I mentioned earlier, his name is John Leonardo. He and I became
very good friends. We remain good friends.
MS. KAGAN: Is he still in D.C.?
MS. GERE: He is in Tucson, Arizona. He was an AUSA. He then went on to become a
judge on the State Court in Arizona. He then became the U.S. Attorney in
Arizona, and within the last few months, has just returned from living in
Albania for several years under the auspices of the Department of Justice to
train Albanian lawyers on legal systems because Albania wants to become
part of the EU, and in order to do that, there are certain markers that they
have to meet. Anyway, John had a very illustrious career and has just retired.
So I stay in good touch with him. His daughter lives here in D.C., so we’re
lucky to keep in touch with him when he visits, and we usually vacation once
a year in Tucson, so it works out to see each other regularly despite the
distance.
MS. KAGAN: So while in law school, were the criminal classes still the ones that you
enjoyed the most?
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MS. GERE: Between the two of us, I found actually that I liked a lot of the labor classes,
and then my husband, I’m not sure why, got interested in government
contracts because GW has a really outstanding government contracts
program. So we dabbled, but here and there. My husband during his first
year of law school tried out for a place on law review, which he was
successful in achieving. I, of course, missed the mark because I wasn’t there
at the law school. But I had half a law review experience because he was too
busy to do most of what he was supposed to do so a lot of it he handed off to
me. I was on another journal, the Journal of International Law and
Economics. I don’t recall it taking a great deal of my time and attention.
MS. KAGAN: Any professors stand out in your memory?
MS. GERE: John Banzhaf, who taught, I can’t remember what I took, something that was
a little bit off the beaten path. It must have been consumer law or something
like that. Professor Banzhaf went on to take on the tobacco industry and had
a lot of major impact lawsuits that he brought using GW law students. He
was very engaging.
There was another professor, James Starr, who taught a number of
criminal courses that I took, and he too developed somewhat of a reputation
for some kind of cutting edge, some people might not think it was quite
cutting edge, they might have thought it was over the edge, analysis of
identification of criminal remains, forensics theories. That developed after
my graduation, but as he was building up his resume, I took a couple of
classes from him. He was a very interesting professor.
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I was busy working. I was busy being a newly married person. I was
busy trying to make sure I was succeeding in law school, at least
academically. But again, I don’t know what comes next. I don’t have this
burning desire I’m going to be a tax lawyer, a criminal lawyer, a
constitutional lawyer. Again, looking around a bit at people in law school,
not that I had —
MS. KAGAN: How many women were there?
MS. GERE: I later learned that there were, I think, our class had maybe 6% women, so
maybe a dozen, fifteen, twenty. But again, because by the time I transferred,
people were in their places, their cliques. It wasn’t as though you were in
your first-year classes where you’re divided up alphabetically, so a lot of
people I didn’t really even know. I didn’t have time to hang out at school
and socialize.
MS. KAGAN: Was there a dorm for first-year students?
MS. GERE: My husband lived in a dorm for first-year students during his first year at
GW.
MS. KAGAN: That’s what kind of cements the first-year experience.
MS. GERE: Yes.
MS. KAGAN: How was the domestic life going? Were there expectations you or he had for
yourself that weren’t the same for him?
MS. GERE: I would say it was pretty good. There were certain things that I did and
certain things that he did, but I don’t remember feeling as though he said
okay, these are your duties, and these are mine. To his credit, or maybe his
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good luck, his mother worked most of her life as a secretary/special assistant
to an executive in a chemical company, so from an early age he had a vision
of women going to work.
MS. KAGAN: Which was unusual to have a working mother back then.
MS. GERE: Which was unusual. His mother was also quite impressive in terms of what
she might have achieved in another day and age. She did graduate from high
school; she was bright. She clearly would have had much more of a career.
That is one of the things that likely endeared me to her. She looked
vicariously at my life and said this is good for a woman.
MS. KAGAN: Did she have daughters?
MS. GERE: No. My husband was an only child.
MS. KAGAN: So you had to pass muster.
MS. GERE: Which I did. His parents were wonderful people. Very much regular people,
very hard-working.
MS. KAGAN: His dad was a union guy?
MS. GERE: His dad was a union guy. His dad was a prisoner of war in World War II and
barely survived.
MS. KAGAN: Oh wow. Where was he?
MS. GERE: He was captured in North Africa. He was moved to Germany for at least
some part of his captivity, but he came back to this country weighing less
than a hundred pounds and had been severely mistreated. But he muscled on.
He was really quite remarkable. It was a different age, a different generation.
– 59 –
So I’m getting toward the end of law school and thinking okay, now what.
Again, looking around, lots of people had identified their prize, had their eye
on it, and they were going for it. I looked around and thought I need another
year to figure this out, so people said well, there are these things called law
clerks to judges, and maybe you should think of that as kind of an extension
of law school.
MS. KAGAN: Were there professional career counselors at school?
MS. GERE: Not that I recall. As a matter of fact, GW had a formal clerkship committee
through which one had to go to secure a clerkship, and I can’t remember why
or what happened, but I think my husband got crosswise with them for some
reason and said the heck with that, I’ll just go apply for a clerkship by
myself. Why do I need these people. So I thought, why do I need these
people. We decided between the two of us that there was going to be enough
competition as it was. I was very interested in getting a clerkship with a
woman. Of course I had no idea how few women in 1972 were on the bench.
Very few. My husband did not have necessarily the same goal. He just
wanted a clerkship. We both decided a federal clerkship would be nice, so he
said alright, I tell you what. I’ll apply to judges in Baltimore, and you apply
in D.C. because you’re going to have more women judges to apply to. They
might not be federal, but at least they’re women. And so that was the extent
of our preparation for a clerkship.
He interviewed with a number of federal judges up in Baltimore, got two
offers, and took one with Judge James R. Miller on the District Court for
– 60 –
Maryland. I identified the, maybe there were three women judges in D.C.
One on Superior Court, one on the D.C. Court of Appeals and one on the
federal bench.
MS. KAGAN: And you only applied to women judges?
MS. GERE: I definitely heard that I should save my paper and my energy because there
was no way that I was even going to get an interview let alone a job with any
of the male judges. Some people whose reputations to this day are how open
and progressive they were not, but in the early 1970s, they weren’t. I
obviously saw that in the treatment of the judge for whom I did clerk.
Anyway, so going back to that, I had an interview as I recall with Judge
Sylvia Bacon who was one of the early judges on Superior Court. I also had
an interview with Catherine Kelly who was on the D.C. Court of Appeals,
and I had an interview with June Green who was the only active female judge
on the federal court in the District of Columbia and the fourth woman to be
appointed to the federal trial bench. She had been appointed by President
Lyndon Johnson. I had an interview with her that included being interviewed
by her secretary and her current law clerks because, from her perspective, it
was a very small and close-knit setting, and if there was someone who was
not going to get along, then the judge wanted to suss that out before going
too far. I doubt that too many other judges thought that way. I thought it
was a terrific idea, particularly in those days because judges’ secretaries
pretty much ruled the roost. Law clerks came and went. Secretaries did not,
and the secretaries were an integral part of the judge’s work, everything from
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the various dictation, typing, to just okay, judge, you want a real-world view,
here’s my two cents. So I passed muster apparently. As a matter of fact, the
judge and the judge’s secretary told me after my interview that I must have
walked out of the courthouse very quickly because the judge sent her
secretary to catch me to make me an offer on the spot but missed me. The
Judge called me the next day to offer me a clerkship with her.
MS. KAGAN: Oh wow. Oh my goodness.
MS. GERE: And so it didn’t take long for me to get an offer. I was thrilled to have it.
That was one of the best parts of my legal career. And it was totally, I don’t
want to say dumb luck, but I had set a goal to clerk for a woman judge that I
did not even realize how hard it would be to meet that goal. I learned a
phenomenal amount from the judge, not just about the law and not just about
how to be a good lawyer, but how to be a good person, which were all
valuable lessons.
MS. KAGAN: Did you have any idea what to expect when you were going into the
clerkship?
MS. GERE: Gosh no. I had very little idea. As a matter of fact, I remember the second or
third day that I was there, the judge, I don’t know, somebody called
chambers and had a question, so I went in to ask the judge, lawyer x called
and wanted to know should he do xyz, and the judge looked at me and said
just tell him to file a praecipe, and I turned around and walked out. Oh my
gosh, what’s a praecipe. Nobody told me in law school what that was. So I
had a number of moments like that, but the positive management by Judge
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Green of her chambers was that she required a two-year commitment from
her law clerks and then staggered their start dates, so she always had
somebody who was slightly more in the know. But Eleanore Soltanoff, her
secretary, could have told me, she could have filled out a praecipe by herself.
So I had a lot of times like that where I did a lot of learning very quickly.
MS. KAGAN: Did you read up on her opinions before you went to the interview?
MS. GERE: I did. There was no internet. There was not a lot of way to find out about
people, but I learned that she had been a trial attorney, had been a very
successful trial lawyer, in spite of the era and in spite of her gender. I learned
that on kind of a spectrum of things, she probably was considered to be
liberal, in some respects probably more on the criminal side, but also a
person of real empathy and somebody who listened well. From a lawyer
practicing before her, I know a lot of lawyers used to say she’ll just let you
try your own case because she’s been on the other side of the bench, and she
knows there are times that judges need to step back. Yes, it’s their
courtroom, but it’s not their case to try. But I watched a lot of men come in
and think this is just a woman.
MS. KAGAN: They underestimated her?
MS. GERE: Oh yes. Underestimated her and overestimated themselves, as if I’m a man
therefore I’m going to know how to do this better, I’m going to be better, I’m
going to be more successful. To my shock and amazement, the men would
be very blatant about it and be very dismissive of the judge.
MS. KAGAN: How did she handle that?
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MS. GERE: With great equanimity. She’d had plenty of that kind of treatment in her
private career. She was always one to say you have to be prepared. You
can’t rely on your gender. Either man or woman, you’ve got to do your
homework. But I think she also thought particularly in jury trials, she had a
great deal of faith in jurors. If a juror observed a lawyer being dismissive of
the judge or seeming to talk down to a woman as a witness or, later on, to
women lawyers, jurors would see it, and the judge said they’ll get it.
MS. KAGAN: Did you and the judge discuss those kinds of issues?
MS. GERE: Yes. Because I would ask. I would say, so how on earth did you do this.
How did you get here. How did you succeed.
MS. KAGAN: After a day in the courtroom when you saw the disrespect that she had faced?
MS. GERE: Yes. She was very much of the view you have to be better than everybody
else. You’ve got to be more prepared. You’ve got to be stronger. You’ve
got to stand tall.
MS. KAGAN: How was she treated by her fellow judges?
MS. GERE: It depends on which ones you look at. Not surprisingly, Judge Aubrey
Robinson and she were quite close. I say not surprisingly because he was
African American, so they were sort of out of the mainstream. She had a
very good relationship with Judge Joseph Waddy, who also was an African
American. She had a good relationship with Judge John Sirica whose
chambers were down the hall. She had, I don’t know what adjective I’d give
it, but her chambers were right next to Judge Gesell, and he was a very strong
presence on the court. They got along fine. In her time on the bench, and
– 64 –
this is a tradition that the current judges on the trial bench at least have
carried on, the judges always had lunch together in the judges’ dining room.
I think that was a way that many of the judges got to know Judge Green
personally, and it gave her an opportunity to demonstrate I don’t have three
heads and can understand the law as well as you men. I always thought that
was a good thing. She cared very much about, I don’t want to say she cared
about the opinions of the other judges of her, but she cared about being part
of a group of judges that really set the tone for civility for the court, for the
work that they did, for the community.
MS. KAGAN: Was there a clubiness among the clerks?
MS. GERE: Oh yes. There definitely was. That may have changed by now, but there was
no way that any of us who were trial judge law clerks would eat lunch with
the Court of Appeals’ law clerks because they viewed themselves as
academically above us.
MS. KAGAN: And the District Court as well as the Court of Appeals judges, would all of
them eat lunch together?
MS. GERE: Yes. They were more open and inviting. I just remember the trial judge law
clerks, the District Court judges’ law clerks tended to eat more together. But
because we would talk at lunch time, your judge would be in the middle of
trial, and you’d be up there saying okay, the judge wants me to research
XYZ, has anybody ever looked at this. We were forever, in obviously days
before computers or anything like that, we would always trade draft jury
– 65 –
instructions. I’ll trade you one of these for one of these. That was a lot of
how information circulated around the courthouse to the good.
MS. KAGAN: How many women law clerks were there?
MS. GERE: During my tenure, I don’t recall any on the District Court. Judge Green had
had a woman as her first law clerk. She tried to have a man and a woman
law clerk together, and sometimes it didn’t quite work out timing-wise.
Toward the end when more women were given opportunities for clerkships,
she ended up with her last several law clerks being women because they were
available and there were other opportunities for them after clerking.
MS. KAGAN: Did you get a sense of how she juggled her professional life and her personal
life? Was that problematic for her?
MS. GERE: I don’t think it was problematic. Her husband also was a lawyer. He had a
number of very important, significant government positions, but the law was
not the reason he lived. Frankly, I think he lived for her, and in many
respects, she for him. They had a very close relationship. He probably made
more adjustments to his life for her career than the other way around. I don’t
think he regretted or minded. I think he was one of her biggest cheerleaders.
MS. KAGAN: Did she discuss any of that with you?
MS. GERE: Yes, but a lot of it was just plain observation. Because the judge and
Mr. Green were very close to her law clerks, we all became part of that
network, and every year we would be invited, we’d have a cookout at her
home in Annapolis, and she just made a point of keeping up with all of us
and making sure we were doing alright. So you could see that. I became
– 66 –
particularly close to Mr. Green just, I don’t know, partly when I was going
through my divorce of all things, he seemed to be a good, steady sounding
board.
MS. KAGAN: That happened during your clerkship?
MS. GERE: No. This was years afterward. I’m just saying it was kind of the genesis of a
long friendship, one that I kept up long after Judge Green passed away.
MS. KAGAN: Were many of the clerks married, male or female?
MS. GERE: During the time that I was there, none of my co-clerks was married. An
interesting thought. I clerked with three different men. My successor was a
woman, and she was not married. But the judge later on then had more
clerks who were married. The closeness of the judges’ judicial law clerk
family ended up with two of her clerks getting married to each other.
MS. KAGAN: They overlapped?
MS. GERE: Yes. I can’t remember if they knew each other somehow before.
MS. KAGAN: That must have pleased her.
MS. GERE: Oh yes. Every law clerk was her favorite for some reason. It’s kind of like
being a parent and not wanting to show too much favoritism.
MS. KAGAN: So during the time of your clerkship, you didn’t have any problem with
divisions of domestic labor?
MS. GERE: No, and we had very different clerkship experiences. Glenn’s clerkship was
for one year. His judge was very, very bright and had very definite ideas
about what he wanted his law clerks to do. I don’t think my husband got to
spend as much time in the courtroom, for example, as I did. Some judges are
– 67 –
interested in having their clerks there all the time. Of course nowadays you
can sit back in the chambers and flip a switch and hear what’s going on in the
courtroom, but back in the day, that wasn’t the way it was. And Judge Green
encouraged us to be in the courtroom because her thought was if you’re a law
clerk for a trial judge, it’s probably because you want to be a trial lawyer, and
the best way to learn is to watch how other people do it. How to be debriefed
on, okay, this is what worked, this didn’t, this is something you should think
about. Everybody has to find their own rhythm, their own way. So I got to
spend a lot of time in the courtroom.
MS. KAGAN: Right. You probably saw a whole spectrum of lawyers. Were you still living
in Arlington?
MS. GERE: Yes. And then partway through, because I started my clerkship before I
graduated from law school because the prior clerk had to leave early. He had
a take it or leave it offer from the US Attorney’s Office and the judge said
I’m not going to hold you up, you should go. Anyway, Glenn and I then
moved from Arlington to Greenbelt, Maryland, because with him going to
Baltimore and me coming to D.C. and we had one car that went in alternate
weeks to alternate places. We each found people to carpool with on alternate
weeks.
MS. KAGAN: Were you both working long hours?
MS. GERE: Yes, but not, I don’t recall it being as bad as being in private practice or
being at the Justice Department or the Office of the Attorney General.
MS. KAGAN: How did it compare to being in law school?
– 68 –
MS. GERE: It was more than law school. The judge was solicitous of people’s health and
their personal lives to the extent that she could be. At that time, it was just
not as much a thing to grind through law clerks as I understand it is now.
MS. KAGAN: So you spent two years there. Your husband was in Baltimore for one year.
MS. GERE: Yes. And then he got a job in D.C. at a small boutique labor union law firm,
O’Donoghue & O’Donoghue, doing just what he wanted to do or what he
thought he wanted to do. He did very well, but having been a law clerk in a
trial judge’s chambers, he was bitten by the courtroom bug. There was a fair
amount of arbitration work at his firm, but he didn’t see a lot of actual
courtroom work. I’m trying to think, it’s hard to keep all these dates straight.
After I finished my clerkship, I started at the Justice Department and was in
court a whole lot more than my husband was.
MS. KAGAN: Just to nail down some dates. The date you graduated from law school.
MS. GERE: I graduated from law school in 1972.
MS. KAGAN: And then you clerked.
MS. GERE: I clerked for two-and-a-half years, until January of 1975. And I started at
Main Justice in the Criminal Division in January of 1975.
MS. KAGAN: Was it unusual to switch in January?
MS. GERE: In part, as I said, I took the place, I started way early because this person had
been offered, and he had already been with the judge a year-and-a-half, and
she didn’t want to hold him up. I don’t remember what the timing was or
why, whether it was just there happened then to be an opening at DOJ. I
remember doing interviews and so forth while I was still clerking. But the
– 69 –
Judge did push me out the door. Actually, she pushed me out the door. I
wanted to stay there forever. It was a lot of interesting, good work.
MS. KAGAN: So how did you decide then that you wanted to go to DOJ? Let me back up.
Maybe the better question is what roads did you see available to you as a
result of the clerkship?
MS. GERE: As a result of the clerkship, to the extent I had seen myself as a criminal
defense lawyer, I quite quickly saw myself as something else. I believe it
was a combination of the weight of the work of being a criminal defense
lawyer and the people who were good at it were the people who were very
quick-witted and rolled with the punches. This is the days before Brady was
given significant emphasis, so it was very much a you’ve got to be on your
toes. I fairly quickly saw that my strength would be in the puzzle piece
moving of civil litigation. When do you ask this interrogatory or when do
you take that deposition, how do you lock them in with a request for
admission. The strategy before you get in the courtroom, not as you’re
standing up there in front of a jury going now what do I do.
So part of the education that I got as a law clerk was seeing where young
lawyers seemed to be doing really interesting meaningful work at a stage in
their career that I didn’t see other people doing it. I also had been bitten by
that I want to be in the courtroom bug. I had seen lawyers in the courtroom.
I thought I can do better than that. It kind of boosted my confidence and my
interest in what I thought I might be good at. Particularly impressive to me
– 70 –
were a couple of very young lawyers at the Department of Justice and I
thought, that looks like that would be an interesting place to go.
MS. KAGAN: Did you find that they had greater roles to play than their counterparts in
private practice?
MS. GERE: Yes. And you would look and see decades of difference in age. I also
interviewed at a couple of firms. At Williams and Connolly, I’m trying to
think whether it was Steve Umin or David Webster, one of the giants at
Williams and Connolly, who, after my interview, learned I had gotten an
offer from Justice, and they said, oh you should take that. The firm will be
here. Go get some experience.
So the other part of it was there were still very few women in private
practice even here in D.C., even fewer in anything that might be described as
trial work or litigation. The Justice Department, that was one of the selling
points, the Honors Program. The Department was open to all comers
regardless of gender, racial identity, anything else. So I thought well that
would be a good place for me to look.
I also had heard that there was a section in the Criminal Division at Justice
where there already were a couple of women who had taken time off to have
children, which was pretty much unheard of, and I thought I’m going to aim
for that, and if I have a long-range plan, that’s perfect. So I applied. It was
the Criminal Division Appellate Section. I applied, and the next thing that I
can recall is somebody from a brand-new part of the Criminal Division that
had just been set up called me and invited me to come in for an interview. It
– 71 –
was called the Special Litigation Section. So I thought I’ll go see what this is
about. I very much enjoyed the interview with a man who then pretty
quickly became the Deputy Assistant Attorney General in the Criminal
Division. He was a very nice guy, a good lawyer, and they made me an
offer, and I accepted. I found out that Special Litigation basically meant that
we were set up to represent federal officials who had been sued civilly for
actions that they had taken in the context of a criminal prosecution. So
essentially Bivens cases where people could file lawsuits against individual
government employees. That meant a lot of our clients were Assistant U.S.
Attorneys, FBI agents, ATF agents, Presidents of the United States,
Attorneys General, and even a Secretary of State. It was a very exciting
place to be. It was a brand-new part of the Division given very high-profile
responsibility, and I felt like I got in a great office on the ground level.
MS. KAGAN: Why was it established?
MS. GERE: Because they were finding, apparently, an increase in cases against federal
employees following the decision in Bivens v. Six Unknown Named Agents.
People saw such cases as a way, a two-fold way to litigate. One, to get a
monetary recovery, but the second, it was used strategically by people
improperly, I think. For example, ATF agents in the middle of an
investigation would be sued and because once they were the subject of a
lawsuit, they no longer could be a lead investigator or involved. So it was a
way of getting rid of people that were giving you a hard time. There was a
recognition that people in the Criminal Division were outstanding lawyers in
– 72 –
criminal defense matters, but they weren’t experts in civil litigation, and so
this was a Section that was established to know how to handle these matters
from a civil perspective.
MS. KAGAN: How large was the unit when it was established?
MS. GERE: I think we had about a dozen lawyers.
MS. KAGAN: And you come in on the ground floor?
MS. GERE: Yes. I was one of the first lawyers hired in that Section.
MS. KAGAN: Did they all come from outside of Justice pretty much?
MS. GERE: Yes. I don’t recall exactly but young law clerks. One of the lawyers had
clerked for one of the District Court judges in D.C. One of them I think had
been a law clerk for I want to say a judge in Kentucky or somewhere in the
Midwest.
MS. KAGAN: Anyone with a lot of actual experience?
MS. GERE: No. The supervisory attorneys, we had a supervisory chain, and they had
more experience, but this was a group of young lawyers that was itching to
learn, itching to get out there and do it. There couldn’t be a lot of people
who had experience because this was a whole new area of the law that was
just developing.
MS. KAGAN: But just as civil litigators, generally.
MS. GERE: Right. Just as civil litigators generally.
MS. KAGAN: Many women in the group?
MS. GERE: No, except as secretaries.
MS. KAGAN: So you have a pattern of being pretty much the only woman.
– 73 –
MS. GERE: There were no other women in that section when I was hired. Another
woman was hired some time later.
MS. KAGAN: So you got pretty much used to that?
MS. GERE: Yes. And at one point we did have a supervisor who, summing things up
said, Sally, we have to move offices, so I’m going to put you in charge of the
decoration committee for the conference room because girls know stuff like
that. In any event, I can’t say that he didn’t give me a fair shot at cases. He
was just very difficult.
MS. KAGAN: Oh, so he didn’t?
MS. GERE: He did. But there was just too much work not to assign some of it to me.
Had it been any other way, I might not have fared so well. After some time,
probably at least a year, it might have been a little more, there was a change
in administrations. Edward Levi became the Attorney General. He set about
reorganizing the Justice Department.
MS. KAGAN: That would have been around 1975?
MS. GERE: Yes. 1976-ish. He looked at this group of civil litigators housed in the
Criminal Division and said what on earth are these people doing there. They
should be in the Civil Division where other people are doing civil litigation.
So our Section wholesale got picked up and put into the Civil Division. We
being my whole group.
MS. KAGAN: How many of you were there by then?
MS. GERE: I don’t think we had grown significantly. It probably would have been
somewhere around the same, a dozen.
– 74 –
MS. KAGAN: Including the supervisors?
MS. GERE: The supervisors, at that point, the supervisor who was the next up in the
supervisory chain left somewhere along line to become either general counsel
or deputy general counsel of the TVA, Tennessee Valley Authority. A
terrific job for him, but a loss for the Department. Ed Christenbury was a
very fine lawyer and good human being.
So I found myself in a new home where, probably weeks before, my thenhusband
had just accepted a position in the Civil Division of the Department
of Justice in the Federal Programs Branch, which is where I was transferred
to. So there was again something new to navigate.
MS. KAGAN: You were still with a different subset.
MS. GERE: Yes, although we basically we got folded into the Federal Programs Branch,
and most of us stayed with a national security, Bivens “major.” The Branch
did a broader array of civil litigation defending federal programs that were
challenged.
MS. KAGAN: Like government contracts?
MS. GERE: Government contracts were handled in a different Branch of the Civil
Division, but Federal Programs handled constitutional challenges to any kind
of a federal program that you could think of. We also did challenges to
housing issues. There were a lot of class action employment cases that we
worked on, and I kind of got pulled in some of those directions, but stayed
mostly on national security litigation.
MS. KAGAN: How large was that group of attorneys?
– 75 –
MS. GERE: That was much larger. Probably thirty to forty-ish I would say by the time I
left. A goodly number of people. The supervisors in the Branch and the
Division were outstanding. I learned so much from Dave Anderson, Irwin
Goldbloom, and Denny Linder. They were great teachers and examples of
outstanding and devoted public service lawyers.
MS. KAGAN: So you started there in the spring?
MS. GERE: The spring of 1977 I would say and then I had to figure out the issues about
nepotism. My then-husband and I weren’t working for each other or one
supervising the other.
MS. KAGAN: Were you at the same level?
MS. GERE: Yes.
MS. KAGAN: That didn’t create problems initially?
MS. GERE: No. Because we each had our own cases. We had, I would say, a common
set of friends that we worked with in the office, and we all just hung out
together. We went to lunch together. We’d go have drinks together. We’d
all talk incessantly about work and trade ideas and theories.
MS. KAGAN: So they were pretty heady times.
MS. GERE: It definitely was heady times.
MS. KAGAN: Was it a surprise to the group there that suddenly this couple shows up
together.
MS. GERE: Yes. People were not sure how to handle that, but it became really a nonissue.
We did not, it seems to be a pattern that I have, because I ended up
working with my second husband at the D.C. Attorney General’s Office, but
– 76 –
that’s another story too. But we were very professional in the office. We
commuted in and out together.
MS. KAGAN: Still from Greenbelt?
MS. GERE: No. By then we moved to Georgetown and lived there maybe a year or yearand-
a-half, and then we bought a house in Arlington, before I-66, before
Metro. It was back in the day when one could afford as two young
government lawyers to buy a house.
MS. KAGAN: You still had a good domestic division of labor? No problems because you
were actually then really working in the same situation.
MS. GERE: Yes. We both understood the pressures of, because back then at Justice,
there was a lot of travel and there were some ships passing in the night and
knowing that somebody’s got to pick up whatever loose ends there are at
home.
MS. KAGAN: Were there women in the larger division?
MS. GERE: Yes. There were. One of the more memorable Assistant Attorneys General
for whom I worked was Barbara Babcock. She ran the Civil Division. She
later became the first woman faculty member at Stanford Law School. She
was a dynamo. She had been a trial lawyer here in D.C. and had an
outstanding reputation. Again, it was exciting to have a woman in charge, to
see a woman could rise to those levels. Of course she was a political
appointee, but nonetheless, extremely impressive. She was appointed by
President Carter. She was the supervisor, if you will, on one of the early
cases that I did at Justice.
– 77 –
MS. KAGAN: Were there any very noteworthy cases that you dealt with when you were a
clerk?
MS. GERE: Yes. One involved a Voting Rights Act issue. I remember there was a threejudge
panel, and my judge was on it, and it ended up going to the United
States Supreme Court which was interesting. I remember going to watch the
argument in the Court. But there were a lot of cases that the judge had that
were very high visibility at the time. In some respects because when I first
started as her law clerk, the federal court was still the court of general
jurisdiction. It was before the Home Rule Act, so the judges in federal court,
had all kinds of cases including pickpocketing and prostitution cases. It ran
the gamut. The federal court used to be much more bustling. You would go
into the federal court, which now when you go in, it’s like a tomb, but it used
to be like walking into Superior Court back in the day when the court had
much broader jurisdiction. There would be all kinds of people in the
courthouse. That was an interesting time.
MS. KAGAN: Would you draft opinions for the judge?
MS. GERE: Yes.
MS. KAGAN: How much would you discuss the case before you set off on a draft?
MS. GERE: A fair amount. I would have a sense of where the judge thought she wanted
to go, and then it would be doing research to see how to frame it or was it
just going to be something that she might have thought was a good idea, but
the law didn’t bear it out.
MS. KAGAN: Did you find yourself disagreeing with her viewpoints much?
– 78 –
MS. GERE: From time to time. She would always listen if you had a rational argument
and case law to back it up, a proposal of how to improve what route she
wanted to take, she certainly was open to that.
MS. KAGAN: So she would change her mind?
MS. GERE: I did change it a few times. I can’t tell you a specific case, but I can
remember turning in drafts after having discussion and having her come back
and say things like yes, you were right, or yes, it’s better that way, or that
makes more sense or that case fits better. There were lots of good lessons on
how to write.
MS. KAGAN: Did she help you with your writing stylistically as well as legal content?
MS. GERE: Yes, as well as the substantive, she would have no qualms about correcting
your grammar, even if you were talking to her, or especially if you were
talking to her. We law clerks laughed. Somebody among the Judge’s former
clerks actually not too long ago put together a list that we kind of got going
round robin about what we considered to be Judge Green-isms, and half of
them have to do with grammatical errors that we were perpetually being
enlightened on.
MS. KAGAN: And those lessons stuck.
MS. GERE: Yes indeed. They did.
MS. KAGAN: Did you find that you were a little ahead of the curve compared with your
similar level colleagues in your writing ability?
MS. GERE: Yes. And in my comfort in what went on in the courtroom or what a
pleading should look like or how to frame issues, how to remember
– 79 –
important lessons like a judge gets a lot of paper. If you want to grab the
judge’s attention, you need to focus on that first paragraph, and you need to
keep it short. Not the first paragraph only, but all your documents. Brevity
is a virtue, and a very difficult thing to do.
MS. KAGAN: So did you mentor some of your colleagues along those lines.
MS. GERE: Certainly as time went on. For all of us who had been law clerks, I think we
were sources of reference for lawyers in the Branch that had not had similar
experience.
MS. KAGAN: How long were you there before your first case went to trial?
MS. GERE: Let’s see. My first case that went to trial was after I had transferred to the
Federal Programs Branch in the Civil Division. The case was filed in 1978
in the Eastern District of Virginia before Judge Oren Lewis, “Roarin Oren”
to lawyers who appeared before him. He was a legend both in his own mind
and in the courthouse, in addition to being part of the rocket docket, which
required that anybody that litigated there better be prepared from day one to
go to trial, and if you weren’t prepared, it didn’t matter to him. You were
going to move your case. He didn’t really believe in extensions of time or
rescheduling trials or anything like that. The case that I had at the
Department that went to trial was a suit that, unusually for my part of the
Department, was a plaintiff’s lawsuit, the United States was acting as the
plaintiff in this lawsuit. The lawsuit involved a man who had worked at the
CIA who wrote a book about his work with the Agency and its withdrawal
– 80 –
from Vietnam when Saigon fell. He published his book without obtaining
required Agency review and approval.
MS. KAGAN: What was the name of the case?
MS. GERE: It was United States v. Frank Snepp. He had written a book called Decent
Interval. He took great pains to have the book published in secret. He had it
published by Random House. There was a whole clandestine effort to
publish the book without getting the required CIA clearance.
MS. KAGAN: Was the pre-publication review process pretty well-established?
MS. GERE: This is the case that really established it. There was a part of the employment
contract that employees at the CIA and many other federal agencies that
handle classified information would have to sign which said before you can
disclose any information about your employment, you had to get clearance
from the agency for which you worked. The Department of Justice, once it
found out that the book was on the market, considered litigation at the
request of the CIA. The United States was in a very difficult position
because if we sued and said you disclosed classified information, that’s a
dagger to the heart because the whole point is you don’t want to confirm or
deny or give credence to classified information. So we spent time thinking
about how do we keep this from happening again without further damaging
the country.
MS. KAGAN: And the book was already out.
MS. GERE: The book was already out, so we filed a lawsuit for breach of contract, which
was a straightforward breach of contract action, and for unjust enrichment
– 81 –
seeking to impose a trust over any of the ill-gotten gains, i.e., profits, from
the sale of the book. So we didn’t say there’s classified information or there
isn’t classified information. We said we don’t have to prove classified
information. We just have to prove that there was a contract that required
pre-publication review, the contract was breached, and we are entitled to
appropriate damages and imposition of a trust.
MS. KAGAN: How long had you been there at the time?
MS. GERE: About a year or so. I had been in the Department a couple of years. I was a
pretty young lawyer, about 30 years old.
MS. KAGAN: Had you been in second chair in court before that?
MS. GERE: I had done a lot of motions, summary judgments, mediations, things like that,
but this was my first trial. Ironically, my co-counsel, Brook Hedge, was my
successor with Judge Green, who after she finished her clerkship, came and
worked in the same Department of Justice office where I was.
MS. KAGAN: Did you encourage her to do that?
MS. GERE: Yes. And so we were assigned to try this case together. We filed suit in the
Eastern District of Virginia. The ACLU was on the other side representing
Snepp. A lawyer by the name of Mark Lynch who later went to Covington
and Burling was lead counsel. He may be retired by now. I’ve seen him
from time to time over the years. Harvard Law Professor Alan Dershowitz
also was on the defense team.
MS. KAGAN: For the ACLU?
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MS. GERE: Yes. They were out to make a point, and their point was this is a First
Amendment case. Government employees should be able to publish freely.
MS. KAGAN: Who was the author’s lawyer? The ACLU represented him?
MS. GERE: Yes. The ACLU represented him. Judge Lewis, I’ll never forget, when we
filed the complaint and we had a status conference four days later or
something, the judge said, well what’s your timetable for this case. I
remember saying we’re going to send out interrogatories and eventually we’ll
do depositions, the usual steps. And the judge looked at me and said, “You
don’t want to ask him any interrogatories. You’re just going to find out what
his lawyer thinks. You need to get him under oath. What are you doing on
Saturday?” What am I doing on Saturday? The judge was a terror. We may
have had some interrogatories somewhere along the way, but very quickly
we did depositions. Those were the days before you had a seven-hour limit,
so I believe we probably spent more than a day, probably a couple of days,
taking his deposition. Snepp also had appeared on the Today show and on 60
Minutes. He had been interviewed and was very proud of the fact that he had
done an end-run around the CIA, and no, he didn’t submit his book, didn’t
think he had to. He could decide for himself what was publishable.
MS. KAGAN: This is the first time it had happened?
MS. GERE: Yes. There may have been one matter that people considered suing over
earlier but it could have been after. I can’t remember, but this is the first one
where there was definitely public attention and an author-agent thumbing his
nose publicly, I’m going to show you all, and I’m going to open the flood
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gates for anybody else who works in the government regarding whatever
kind of access they’d had. So the case very quickly went to trial.
MS. KAGAN: How quickly?
MS. GERE: Months later. The Complaint was filed in February 1978 and the trial was in
June 1978. We used Snepp’s TV appearance statements as part of a request
for admissions. I always used to tell my law students don’t take anything for
granted because you don’t know what the other side is going to do. People
would say things like requests for admissions, they’re a waste of time. We
sent out requests for admissions and attached the transcripts, which we had a
hard time getting, of the interviews on the Today show and 60 Minutes where
Snepp made all these admissions. So we sent out this request for admissions.
MS. KAGAN: Like he knew he was being a bad actor.
MS. GERE: Oh yes. He was quite proud of it. We sent out this request for admissions,
and he never responded. And you know what happens when you don’t
respond to requests for admissions? They’re deemed admitted, and
Judge Lewis was not interested in hearing about why they didn’t get
responded to in time or anything else, so we had a very good start with that.
Snepp made some very damaging admissions substantively during the course
of these interviews as well as in his deposition. So we went to trial.
MS. KAGAN: Was it a jury trial?
MS. GERE: On the morning of trial, Judge Lewis concluded that it was not going to be a
jury trial because, based on the pretrial stipulations, there were no issues of
fact for the jury to decide. We were seeking equitable relief, which the court
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decided. We had drafted jury instructions and they were all ready to go. At
the last minute, we also decided we needed another lawyer to assist at trial,
and so our supervisors at Justice were looking around and saying this is a big
case, there’s a lot to learn. Who has the time? And then somebody said how
about Sally’s husband, Glenn. He knows all about the case because he’s had
to live with it. So he joined our trial team, which was interesting. He and
Brook Hedge were the other lawyers for the United States.
MS. KAGAN: You were lead counsel?
MS. GERE: Yes. I was lead counsel.
MS. KAGAN: Did that create tensions?
MS. GERE: No.
MS. KAGAN: It doesn’t sound like the two of you had been competitive at all.
MS. GERE: No. Not really. We were, maybe we were subconsciously, but it wasn’t
anything obvious. We both had enough of our own lanes that we didn’t
necessarily feel that. We had a very good trial team though for Snepp we
thought. One of the witnesses we called was the man who ran the office that
administered the paperwork at the CIA to get all the orientation forms signed
and to get the employment agreement that had the key language in it into
evidence. This poor man, I’ll never forget, was petrified about being on the
stand. It was very painful for him. The CIA was a very secretive place. I
spent a lot of time preparing him for trial. I remember they asked him during
his deposition, I don’t know what they thought they were going to get out of
him, but did you prepare for this deposition? Yes. Did you meet with a
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lawyer? Yes. Did she give you instructions? I probably told him don’t tell
them what I told you, but I can remember him blurting out during the
deposition, “yes, and she told me to tell the truth and wear a blue suit.” But
he managed to get through his trial testimony very well.
We put on the stand, I’m trying to think, we didn’t have very many
witnesses because basically it was a contract with language that the Judge
could read. We put on Stansfield Turner, who was then the Director of the
Central Intelligence Agency. He was our star witness, if you will. Someone
who could talk about the importance of the pre-publication review process
and the risks to national security attendant to not having such a process in
place. He was, I don’t know if you ever recall him, but he was out of central
casting, just an immensely attractive man with piercing blue eyes and full of
patriotism and very persuasive in presenting the case for the United States.
MS. KAGAN: Was he able to discuss it without revealing the sensitive parts of the book.
MS. GERE: Yes, because this was more to show, Snepp signed the contract, here’s a
provision of the contract that he’s already admitted he ignored or flouted,
which basically kind of came in with the first witness, who was in charge of
security at the Agency but our concern was that part of Snepp’s defense was
that he had a First Amendment right to tell the American people what
happened in Vietnam, to tell the American people what the CIA did or didn’t
do. We knew that we would have to have a witness who could say without
going off the track about the First Amendment, that the reason for the
provision of the contract was to protect the national security through pre-
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publication review of material learned during the course of employment to
assess what was classified and what could be disclosed. But no individual
employee could decide that; it had to be done by the Agency.
The defense called William Colby as a witness, and by then, the defense
team was joined by Harvard Law Professor Alan Dershowitz. I was not
privy to their internal deliberations, but apparently with his advice, the
defense lawyers put William Colby on the stand without ever having talked
to him. Colby had at about this same time written a book himself. He had
submitted it for pre-publication review and was in the midst of a battle with
the Agency over what they were telling him he had to take out before
publication, and he had been quite vocal about the whole process. He was
upset that he had written this book and now somebody was going to be
telling him what he couldn’t put in it. So Snepp’s defense lawyers apparently
concluded that calling him as their witness was going to work just fine
because he’ll get up and tell Judge Lewis all the problems with prepublication
review. Instead, Colby got on the stand and basically testified as
well as or better than Director Turner about the importance of this whole
process and the significance of it to the national security and the operation of
the Agency. Yes, it was an aggravating thing to go through now that he was
an author, but he absolutely believed in the integrity of the process and the
importance of it. After that, people referred to Mr. Colby as the government’s
witness. I had to keep saying no, he’s a defense witness, not ours. But we
wholeheartedly agreed with what he said.
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Snepp himself took the stand, and I cross examined him.
MS. KAGAN: So this is your first real cross examination?
MS. GERE: This is my first trial cross examination, except with Barbara Babcock, who
was then Assistant Attorney General of the Civil Division, mooting me. The
defense lawyer kept objecting. When he objected to one of my questions, the
judge looked over at him and said something like counsel, this young lady
has not given your client as hard a time as she might have. She asked
appropriate questions. Whereupon the judge decided he was going to
conduct a further examination of Snepp.
MS. KAGAN: Before you were even finished?
MS. GERE: As I recall, I was finished. Because there was one of those “now, well, the
court has a few questions, and counsel basically I don’t want you to be
objecting to my questions” moments. I think at one point maybe, Mark
Lynch may have objected unsuccessfully to one of the Judge’s questions.
It wasn’t a long trial. It was covered by the national news media. It was
the subject of articles and editorials in the Times, the Post, the Star and
papers across the country. Herblock, the famed editorial cartoonist, even
drew a cartoon after the Supreme Court ruled on the case. At the end of the
trial, the judge ruled in our favor. The opinion was 10 pages long.
MS. KAGAN: Did you have to do closings?
MS. GERE: That’s a good question. I believe we had brief closings, but it was a bench
trial, so the Judge was not interested in hearing much more after the evidence
was in. The Judge said let me hear briefly what people have to say, but I
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don’t need to hear the lawyers’ take on it because I can pretty much guess.
After I retired, I purged most of my work papers, but I did keep a copy of the
trial transcript.
So Judge Lewis ruled in our favor, both as to breach of contract and to the
imposition of a constructive trust, which, as a legal matter, was probably a bit
more of an argument, a bit more of a stretch. This wasn’t traditional contract
damages. Snepp appealed to the Fourth Circuit, and we had oral argument in
the Fourth Circuit. The Department at that time had, and still has, very
talented and gifted appellate lawyers whose job it is to step back, take a look,
and re-evaluate and decide on the merits of taking or defending an appeal.
Obviously, it didn’t have a choice in Snepp because the other side had
appealed.
MS. KAGAN: Would you have liked to have done the argument?
MS. GERE: Yes. I would have. But I knew that the Department was going to be having
the best and brightest on it, and it did. Bob Kopp, who was the head of Civil
Appellate did the argument. So we went to the Fourth Circuit. I recall sitting
at counsel table in the Fourth Circuit and shaking the judges’ hands after the
argument as is the Fourth Circuit practice. Maybe we should stop at this
point.
MS. KAGAN: Whatever’s good for you.
MS. GERE: Why don’t we, before I launch into the rest.