Roger Zuckerman Sixth Interview: May 22, 2014

121 ORAL HISTORY OF ROGER E. ZUCKERMAN Sixth Interview May 22, 2014 This is the sixth interview of the oral history of Roger Zuckerman as part of the Oral History Project of the Historical Society of the District of Columbia Circuit. The interviewer is Gene Granof. The interview took place in the office of Mr. Zuckerman at his law firm in the District of Columbia on Thursday, May 22, 2014, at 2:00 p.m. Granof: In our last interview, number 5, we talked about the growth of the firm in other cities and then about the growth of the firm in D.C. in the 80s and 90s. When we ended last time, you were going to describe the cases that came to the firm in the 1980s and 1990s and you mentioned major trials in New York and your involvement in representing the Church of Scientology. I just have a quick question before we get to it that I can’t resist asking. You talked about the ten year period in which the firm developed a national footprint and particularly where in D.C. high-quality lawyers came to the firm because they wanted to do interesting work but didn’t want to be in a big firm. You also discussed the Florida office and you made a distinction between rainmakers and firm managers and their different skill sets. You described rainmakers as quirky, eccentric, and self-centered, whereas managers had an entirely different skill set. The question is, “Where do you think you fit?” Zuckerman: I think I am more in the former category. I was, just by virtue of my seniority as the first lawyer here, required to be a manager. I think I have certain strong managerial qualities. I think I am a very good conciliator and try to set a caring, non-self-centered tone that’s very important. I try not to be an egocentric person – I fail sometimes, but I try – and I think that that example has translated into a so-called ethos for the firm that’s made it a fairly humane place. On balance I am really not a great manager. I am not really interested in systems and the like. I think, although I have some good qualities as a manager, my personality skill set is more effective in its marketplace impact. So, I would put myself in that category. 122 Granof: More of a rainmaker but still without some of the qualities that you describe. Zuckerman: I don’t have the passion for systems and detail that a really good manager has to have. What I do have is a good feel for how lawyers ought to interact with one another and get together and treat one another. I think that is pretty useful. I think there are others in the forty years or so of the life of the firm who have run it much more effectively than I could have run it. Granof: Are you doing much managing now? Zuckerman: No, I am not. What we’ve done is transition the firm to the next generation – we would like it to be multi-generational. I and my older partners have done the George Washington move of transferring from positions of power back into the body politic and letting other younger people have a feeling that it’s as much or more their firm. It’s their future, indeed, more than it is our future, and they deserve to make the decisions about the direction of where the firm will go in in the next twenty or thirty years. It’s not an easy thing to do for a father or grandfather who has been instrumental in starting a business to turn it over to his daughters and sons and his granddaughters and his grandsons, and then watch them fiddle with it and keep his fingers at a distance. I am a practicing lawyer; I am a member of the firm; but other people are tasked with the responsibility of running the firm and you must accept that and you must live by that. And you hope your influence still can guide people, without being overbearing, in directions that you think are useful. There is one area where I think it is fair to say, historically, that I left a mark on the firm or an area. It is that it was principally I who was interested in seeing the firm become a multi-city firm. I thought it would be fun to have offices in other cities, and I think in fairness that it was probably not a feeling that many of my partners shared. They looked at me as if I were crazy, but I think in the end it pretty much worked. Granof: It seems to me that the one office that has an almost compelling justification 123 would be New York because that’s the site of so much white collar crime. Zuckerman: It is. We had been doing that for almost twenty-five years. It’s been the hardest office to sustain in some respects because it is the most competitive legal city in the country. The lawyer costs are high, the real estate costs are high, and the quality of the bar is exceptional. It’s a big economic commitment and a big competitive task to compete in New York effectively. For the moment, I am making the sound of knocking on wood here. But like a lot of these things, there is complete one-hundred percent “free agency” in the practice of law. There was not free agency, at least, in the virtuous moral sense back when I started in the 60s and you read Louis Auchincloss’ novels and short stories about the great New York firms. Then, people joined a firm and stayed with the firm because that was the way it was done. You didn’t have people moving around with the ease that they do now. You did not have the mergers, and you didn’t have the spinoffs. There is now no shame in leaving a firm and going somewhere else. It’s an issue that has bedeviled us. You’re always fearing that your key players – young lawyers and older lawyers – will be solicited because of their talent, the size of their practice or whatever, solicited to go elsewhere, including your offices; your offices may be solicited to go elsewhere. It’s not an easy thing. Let’s move on. They were good questions. I want to go to the 1980s to try to give a flavor of sorts for what the firm was doing and what I was doing, returning a bit to the theme that in the 80s the core older lawyers of the firm were in their early to mid-40s. It was still, relatively speaking in the scheme of things, a youngish group of people. As was characteristic of law firms who did this kind of rough-and-tumble litigation that we did in the 80s, that’s the way the bar was. You still had very large numbers of young people and a sophisticated litigation bar. Particularly in the white collar or quasi-white collar areas, the mean age was very young. There are two cases that stand out for me in the 80s of significant interest. They are both out of town cases 124 and they took me out of the city for six weeks apiece, more or less. The first was a trial that I had in New York in 1983 – I was 40 – and I came to represent one of the principals in a case involving a tax shelter. Back in the 80s, there were tax shelters that you could invest in, and you could write off a vast amount of your investment. Many of these tax shelters were bogus in one sense or another. Eventually, the IRS gave people who did this enough trouble – changed their rules – so that participating in these tax shelters became not worth it. I represented an individual named Herman Friedman, who was one of the principals in a series of shelters involving coal mines in West Virginia. You invested your money and you got fabulous write-offs. The shelters were investigated by Robert Morgenthau and his principal investigative prosecutor at the time, John Moscow. John’s father was a prominent New York Times editor. John was a very dogged fellow. I have known him since the trial – thirty years at least. He is now in private practice and we speak from time to time. He was a longtime and well-known prosecutor in New York. Granof: Was this when Morgenthau was the U.S. Attorney? Zuckerman: Was the District Attorney for New York County. Granof: Oh, he was the New York District Attorney? Zuckerman: Yes. John secured an indictment of about six or seven individuals including Herman Friedman, who was the head of the sales force that sold these tax shelters. The shelters were allegedly fraudulent – there were a number of misrepresentations in the Offering Memoranda that had been created and disbursed. It was purportedly a fraud. It was the first big trial that I had following the “Dare to be Great” trial in Florida back in 1973-1974. I remember my mother died on January 7, 1983. The Redskins won their first Super Bowl with John Riggins in that iconic picture in which he is pulling away from one of the Dolphins who is grabbing on to his jersey and running 125 to his left around the left end for a touchdown to make it something like 27- 17. That occurred later that month. The trial began soon after that. One of the worst days of my life and one of the best days of my life shortly before the trial began. I went up to New York in early 1983 and was there for about six weeks at 60 Center Street, which was this gritty state courthouse right next to Foley Square. It was grit – a state court – rough-and-tumble. The case was a significant case so it had some of the deans of the New York trial bar, and also it had a young lawyer – younger than me even at the time – named Ben Brafman. Ben has become a good friend, has since worked a great many cases with the firm, including Dominique Strauss-Kahn, and is now probably the dean of the New York criminal trial bar – at least the nittygritty trial bar. He represented Puff Daddy. He has represented a lot of wellknown people. Granof: An interesting clientele I guess you would say. Zuckerman: Yes, he’s a very talented man. Interesting among other things because he is a highly religious Jew and has a second home in Israel and flies back and forth to Israel something like once a month to visit his kid or kids who are there and to spend time there. There were a number of other very prominent lawyers who were involved. And some good lawyers from Boston whom I became very close to. I rented the upper floor of a townhouse on the East Side at 61st and Second. I went down to court and fiddled around in a crazy case for about six weeks and had a blast and did, I think, a really good job. The judge was kind of an odd duck. The courtroom was not well managed. The judge, for example, walked around in his socks, some of the defendants had candy on the table in front of them. It was the antithesis of a formal federal proceeding but serious stuff. All of the defendants, but one, including my client were convicted. I had done enough of a good job that my client was given a probationary sentence. It’s probably more of personal anecdote than a professional anecdote, but I 126 got to know New York City. I was there for six weeks – I got to know the East Side – Irene came up and spent some time with me. It was pleasurable in the way the Turner case was, with one exception which is very interesting, and which I remark on very briefly here. Even though my client didn’t go to jail, we technically lost the case and it demonstrated to me that the quality of memory that you have from two absolutely similar experiences is completely affected by the jury verdict. You can have a great time at a trial, feel as if you are doing a great job, feel as if you made many new friends, feel as if the court loves you, feel as if you’ve grown professionally, and if the jury comes back “not guilty,” it’s one of the great experiences of your life. However, if the jury comes back “guilty,” it taints and affects your memory of all of the prior activities. I had that sense and it foreshadowed exactly the same experience that I had in New York in 2008 in a federal case when I was there for six weeks in a securities fraud case living on the West Side. A much tougher case, a much tougher judge, much tougher lawyers, much tougher facts. Did a great job, felt as if we had done professionally magnificent work, had a great time, enjoyed the city, felt as if we had persevered – same deal. The jury came back and convicted and it tainted the memory of the entire six-week war. Tainted memories of New York in these two six-week trials. It must be similar to a soldier who goes off to war and acquits himself well on the battlefield, and where the war is won he feels great and looks back on his wartime experiences very proudly and happily. However, where the war is lost it’s just terrible. Yet, his experience, at least by my hypothesis, is the same in both instances. Granof: In the first trial in New York and you represented Mr. Friedman there were other defendants? Zuckerman: The lead defendants who were convicted got eight years. It was a serious case. There was a lawyer who was convicted and disbarred named Peter Gettinger. Richard Firestone and Milton Dorison got eight years. Herman Friedman was convicted, but was sufficiently portrayed as a marginal 127 character and got no jail time. Granof: Was he? Zuckerman: Yes, I think the conviction was a little bit unfair. What was very painful to Herman was that he had spent his life as a securities salesman. He was divorced and got whatever human connection he had in his life from his professional work in the securities marketplace. Thus, to lose your license and really not be able to pursue that activity – and not to have the personal contact that it included – I think was very hard for him. It was not an easy result even though he got probation after his conviction. That observation is further to the point, from my forty-year perspective that, although it is the lawyer’s first job to keep his client from going to jail, most non-jail resolutions while seemingly great victories often have unexpectedly harsh consequences to the people who endure them, such that while the lawyer may feel as if he is a hero – he has kept his client out of jail – the client receives deep scars. Granof: So Friedman was effectively barred from his profession. Zuckerman: Actually barred from his profession. If I have seen it once, I have seen it a lot – those kinds of wounds are very deep even where you don’t go to jail. That was an early 80s case for me. It kept me rolling and led to an equally impactful case, professionally, but a much longer case. Granof: There were five other defendants? Zuckerman: Yes. Each defendant probably had one primary lawyer and a secondary lawyer to spell him. I was spelled by Steve Glickman, who was my partner at the time, and is now a judge on the D.C. Court of Appeals. Steve came up and spelled me. One problem with the case, I will tell you Gene – it’s a problem that is characteristic of white-collar defense work often – and that is there was no insurance money, there was no D&O coverage, in that sense 128 there was no corporate indemnification. The money that you got, you got from the pocket of the client, and that inhibits – a gentle way to put it – constrains how you live in a foreign city during a lengthy trial. It means that you eat hamburger or something like for dinner, you’re not at a restaurant, and if you are at a restaurant, you’re not getting a bottle of wine. I’m not ashamed to say that the one feature of out-of-town work that’s important to me is about one hour at the end of the day – say 8:00 p.m. to 9:00 p.m. – when you can find a reasonable restaurant, and get a reasonable glass of wine and eat a fairly decent meal. That’s not so bad. You got a lot of work to do before you get there, and a lot of work to do from 9:00 to 9:30 p.m. onward, before you go to sleep. There is a period in which you ought to be able to eat dinner and decompress for an hour. We had that, fortunately, in my second New York case because we had insurance defense money, but the Herman Friedman case was a tight budget case. Granof: I guess he had to be able to afford you. Zuckerman: I would say in a significant percentage of those cases way back when – Florida, Philly, New York to be sure of those – they were cases in which the money, in one sense or another, ran out. So you were basically supporting yourself. Doing it because you were a professional. You were living a very tight existence and knowing that you were not contributing to the firm’s coffers. Granof: How did you ever get Friedman as a client? Here you are a Washington, D.C. lawyer. Zuckerman: The lead defendants had come to D.C. lawyers for whatever reason. The D.C. lawyers that they came to referred one of the remaining defendants to me. I remained friendly with Herman for a long time after that. It was a good experience. It was very much like the experience I had had in Florida. It’s being in the trenches with a half-dozen other buddies, having a common 129 foe, trying to live and work collegially, toward a common strategy, and realizing that one of the skill sets I had was not just being a good lawyer, but understanding how to get along. I always felt, and feel now, that I was a good, accommodating, collegial participant in foxhole trial work. I understood how to compromise; I understood how to be convivial; I understood how not to be too egocentric; I understood the limits of what you could do and that there were certain things you couldn’t do. It is a pleasurable environment for me. Putting it politely and deferentially, there are some lawyers who have very powerful personalities, extraordinarily talented in many respects – perhaps more talented than I am – who find it very difficult to be on a team. Granof: F. Lee Bailey? Zuckerman: Yes, I think Lee is probably one of those. There are many of them. They are very able, but they’re much more comfortable being in controlling positions. They’re much more comfortable not having to compromise their views, not having to modify the strategies that they are interested in. It’s not a question of right or wrong – it’s just a personality style – and my style for whatever reason, more or less, fit these larger groups of lawyers who would get together and team up and hang in a foxhole together and bond. It was fun. Granof: How does it in fact work on a daily basis your interactions with the lawyers? Do you get together at the beginning, do you have a meeting, do you decide on strategy? How did it work in the Herman Friedman case? Zuckerman: I guess you could say the rhythms of these cases differ from case to case. I think in general if your team is working well, there is an effort to meet with some frequency on general strategy. There is an effort to know before the courtroom day begins who is doing what cross-examination. There is an effort to assign responsibility for cross-examination, and there is certainly an effort to assign responsibility for who is drafting a particular motion. There 130 are periodic defense meetings covering any number of issues. These protracted cases with many defendants and lawyers assume a rhythm. When the case begins, the lawyers are unfamiliar with the judge, the judge is unfamiliar with the lawyers, and everybody is getting to know one another. It’s like the first ten minutes of a dinner party or a regular party – getting to know each other is a little bit intense. After a few days, the rhythm settles in and you get accustomed to what the government’s style and approach is going to be in presenting its witnesses, you know the cross-examination styles of the various lawyers, you get a sense of the direction in which the lawyers are going, you understand who you are going to talk to in the morning and who you are going to talk to in the evening. I don’t know that one can generalize about it. It differs from case to case. A lot depends on the court and a lot depends on the other lawyers who are involved. Granof: Why the court? Zuckerman: If you are dealing with a judge who is constructive and reasonable, life’s a whole lot easier. If you are dealing with a judge who is seemingly constructive and reasonable, but really has it in for your side of the case, it’s a lot harder and I think changes your view of what to do. The comparable experience I had in the 80s – it’s actually of interest to me now because I’ve just settled a case. It’s not an out of town case; it’s a civil case that I’ve just settled, in which we were essentially lead counsel. We had six or eight other law firms involved for six or eight other parties. It required this effort to congeal a workable unified group. It was a lot like proverbially herding cats. You had to have a sense of where you wanted to go and you had to be, at the same time, very deferential and very collegial and the like. The other case that I had that was like this during the 80s was the case involving the Church of Scientology. Granof: Was the judge in this case reasonably constructive or seemingly reasonable 131 and constructive? Zuckerman: I think my characterization of the judge in this case in New York was that he was less helpful than he could have been as a jurist because he was indecisive and weak. He did not grab hold of the case in a controlling way and give it good direction. Granof: He did not manage it? Zuckerman: He did not manage it well. I think he was fair-minded. I think the case was a little bit beyond his capacity at the time. Granof: I guess you get that with state court judges. Some are very good and some are not so good. Zuckerman: Yes. But it made it hard. In effect, there were periods in which the parties were essentially trying the case against one another without much of the referee in between. Granof: In dealing with other lawyers, when you have interchanges do you find it’s useful for your case and that you make a contribution to their case? In other words, where you can say, “You can do what you want, but here’s a suggestion you might want to consider.” And they do the same for you. Do you find that useful at all or does it happen? Zuckerman: It’s not something I am keen on doing. I try to do it very judiciously. I don’t mind when people make suggestions to me, but generally I feel like I’ve figured everything out. I think, particularly if you are not cross-examining, you might pass a note to your colleague and say, “See if you can get them to say X, or see if you can get them to say Y, but be careful of Z.” Where the examination you are watching is an examination that affects his client but doesn’t really affect your client, yet it might affect your client so you put your two cents in and you have to be careful. Some lawyers react better to 132 that than others. Do you play golf? Granof: No, I’m not a golf player. Zuckerman: I’m a golfer. I play golf with some golfers that if you say to them, “Look out there is water on the left or what club are you hitting or the like,” they take it quite well. But other golfers will bark at you, “Don’t tell me what to do. Let me play my own game.” It’s very surprising. Granof: You were going to talk about the Church of Scientology. Zuckerman: This was another one of these multi-defendant cases, and it began what for our firm was a twenty-five-year relationship with the Church. The engagement began in 1978 and involved a campaign that the Church of Scientology had waged to obtain tax exempt status as a formal, recognized religion with the IRS – something it had been unable to do. The Church was at the time composed at its leadership levels of very bright, very sophisticated, very dedicated people. We represented two of its leaders. The two leaders were part of a group of about six or eight who were alleged to have put together a campaign in which they infiltrated, through the use of their agents, the IRS and indeed the U.S. Attorney’s Office that was litigating some of these issues – for example, “religion or not religion”– and purloined documents and materials from the IRS and from the U.S. Attorney’s Office. One or another of their members was arrested in the U.S. Attorney’s Office in D.C. or found to have entered. Their plan unraveled, and six or so of them were indicted in D.C. for a variety of crimes related to this break-in in a very notorious case. The indictment was sealed in order that the U.S. government could execute a search warrant on the headquarters of the Church of Scientology, then in the Los Angeles area, to look for documents that had been purloined from the federal government. This occurred in July 1977 and about fifty or one hundred FBI agents descended on “The Celebrity Center” – it’s a huge complex in Los Angeles, California – and searched the entire 133 premises for a long period of time for these documents and rifled all of the files that the Church had. The case was a very topical and notorious event. The indictment was returned here in D.C. and was assigned to United States District Judge Charles Richey. In my humble view, Judge Richey was not a good choice to administer justice in these circumstances as he had a very jaundiced view of the Church and the Church’s activities. The core issue in the case was the issue of whether or not the raid on the Church premises was legal. If the raid was legal, the documents that were seized were admissible, the clients were guilty. If the raid was not legal, then the documents were suppressible, there would be at least not as much evidence against the clients, and the result would be different. Granof: When did you get in the case? Zuckerman: We got in the case very early. Granof: Had you had a relationship with the Church of Scientology? Zuckerman: No, again, it was a referral. I can’t remember. It was one of the lawyers in town. We got into the case after the raid and before the indictment, which came down in the late summer of 1978. After the indictment was unsealed they were looking for lawyers. We were interviewed and two of them hired us. Granof: Who did you represent? Ron Hubbard was the head of it, right? Zuckerman: I represented Greg Willardson and Richard Weigand. Granof: I take it there was no problem representing two of the defendants. Zuckerman: No. There were conflict waivers and there was no problem. It was unclear whether L. Ron Hubbard was alive. His wife, Mary Sue Hubbard, a lovely lady, was one of the defendants. It was unclear whether Ron still existed or not. There were rumors that he was dead. There were rumors that he was 134 still alive. One just didn’t know. Mary Sue was the face of the Church. Granof: How come nobody knew? Zuckerman: It’s not exactly clear to me why no one knew or not. The Church was mysterious in this regard. Granof: Was he indicted? Zuckerman: No. L. Ron had passed from the scene and nobody knew whether he was alive or not. Granof: So, his wife was the face of the Church. I remember reading some years ago a long article in The New Yorker about the Church of Scientology. Who was actually running the Church, managing it? Zuckerman: The current president of the Church is a person named, I think, David Miscavige. We represented two of the defendants of nine or eleven defendants. On the joint defense team were two very notable attorneys – a lot of very fine lawyers including Earl Dudley, who had a long and illustrious career as a University of Virginia law professor, has written an autobiography in which he has devoted large portions of the book to this case and to his unvarnished dislike of Judge Richey. But the two most prominent lawyers on the team were Phil Hirschkop, who is well known and a wonderful civil liberties lawyer, now in his mid-70s in Virginia, and a fearless fighter; and his friend and semi-mentor, Leonard Boudin, of Boudin, Rabinowitz, Standard, Krinsky & Lieberman. Leonard at the time he was in the case was probably well into his 70s and was kind of a scion/denizen of the liberal civil liberties bar of the fifties. He was just an extraordinary person whose children included Michael Boudin, who had been on the First Circuit for a long time, and Kathy Boudin, who was a Weather Underground bank robber and fugitive for, not years, but decades, and was captured during the pendency of 135 this case. I remember it extremely well. She was captured at some point in the 80s. Leonard and Phil became very close friends of ours and we had long and enduring relationships with them and worked very closely with them on a number of matters. The focal point of the case was whether or not the documents seized on this raid at the Church headquarters by the hundred FBI agents would be suppressed. There are a host of very stringent rules that govern how you search for documents and how you deal with the intrusion into private areas that occur where there is a search warrant – say, for Gene Granof’s 1983 tax returns – and the police go in and rummage through every private document that you got in your house looking for one tax return. It’s a fertile area of law to litigate and the conduct of the FBI in conducting this search was, as you can imagine with fifty or one hundred agents, in many respects open to criticism. We filed a very substantial motion to suppress. It really was the defining event in the case and the judge, Judge Richey, made the decision that because most of the FBI agents who would be witnesses to how this search was conducted were in California, we would all go to California for the suppression hearing. Those of us in the case – prosecutors, defense attorneys, judge, and court personnel – all journeyed out to Los Angeles and lived in Los Angeles for about four or five weeks during a suppression hearing. Granof: Awful long hearing. Zuckerman: A long hearing. We went to Los Angeles and litigated. Judge Richey was a quirky person to deal with, to put it gently, and it was a difficult judicial environment in which to litigate. Granof: I’m surprised. Even if you have fifty FBI agents, it seems a lot easier for them to fly out here than it is to transport court personnel, U.S. marshals, all the defendants, all the lawyers, etc. out there. 136 Zuckerman: We lived in this big round cylindrical-shaped hotel in downtown Los Angeles, I can’t think of the name of it, but we lived well. We were there a long time, a long time. Granof: This was a client who had money? Zuckerman: The client had money and we were paid. My partner, Roger Spaeder, and I shared the duties. My recollection is that often we were both out there. The two of us were out there most of the time. It was highly contentious because the government prosecutors had more than the normal antipathy for the Scientologists. The perception was you were dealing with skillfully subversive people who were motivated above and beyond the levels of the normal fraudsters. The government was convinced that the defendants had this enduring committed cult-like attitude that made them dangerous even in the confines of a courtroom with a bunch of marshals – they were up to no good, somehow, some way. As the case moved along, we litigated aggressively, argued our motions, and the judge ruled against us and found that the search was lawful. We then decided we needed to plead our clients guilty because we had no chance at trial. We tried to negotiate pleas with the prosecutors. That got snagged in a number of ways. Then the case took an odd turn. The odd turn began on a Sunday with my receiving a phone call to come to Phil Hirschkop’s office right away. There was a video that was going to be played. I came to Phil’s office and there was a video of a woman being deposed. She was placed under oath, she was being deposed and she said, “My name is so and so. How are you employed? I am a prostitute. Will you describe what happened on XYZ day. On XYZ day, I was near or around the pool at this particular hotel. I was approached by a man who said he was a U.S. marshal and asked to go to a particular room and when I got there, an individual was there whom she described – I forget how she identified him – but she did identify him as Judge Richey. She thereupon described how she had sex with the Judge and then got paid and left. How had this been unearthed? The Scientologists claimed they found her. We 137 then discussed, however unseemly this was, what exactly the relevance was to our situation. We had a judge who clearly didn’t like our clients, who was clearly giving us a lot of difficulty, who seemed to have a certain degree of bias, but what does this prostitute have to do with it all? It was decided that the Judge had put himself in a very vulnerable position by his behavior and that the Judge may have been concerned that not merely the marshals were aware of his behavior, but that the marshals may have raised it with the U.S. Attorney’s Office. Because of the possibility that the U.S. Attorney’s Office was aware of his behavior, his reactions to the case intentionally or unintentionally were skewed. This was cause for requesting his recusal. Somebody had to write him a letter and ask that he voluntarily withdraw from the case because of these concerns. And if he failed voluntarily to withdraw, advise him that we would be forced to seek his recusal. I drew the short straw and it was I who was tasked to write a letter to a sitting federal judge asking that he withdraw from the case because we had certain reasons to believe that his behavior was affected by certain events that occurred in California to the detriment of our clients, and that he if he did not withdraw we would be forced to seek his recusal. I wrote such a letter, sent it to him with a copy to the prosecutor, as was proper, but without referencing in any detail what we believed to be the case. He then called me on the phone. Granof: Ex parte? Zuckerman: Ex parte although in a convivial way to ask me what I was referring to. And I said to him, “I am not going to speak with you, Your Honor unless the prosecutor is on the phone.” He tried very hard to push me to talk and I refused. I said, “I cannot deal with you in an ex parte way.” What he did not tell me at the time was he was taping the call. Granof: How did you know that? Zuckerman: I don’t know how I knew it but somehow it came to light. I can’t remember 138 the details of why this occurred but there was a conference with all of the lawyers and all of the prosecutors where the tape of the call was played in his jury room. I know – I’m assuming that what he intended to do was to get me to say something and then send the tape to the FBI and claim that I was engaged in blackmail or obstruction of justice or something. I wouldn’t say anything. I said, “I’m happy to talk you, I’m happy to discuss anything you want, but not unless it is in the company of a prosecutor.” He then took the matter of my letter under advisement, and without our having filed anything, wrote an opinion which has not been published in F. Supp. in which he withdrew from the case claiming that he was being harassed by counsel and could no longer function effectively and identifying me by name as having attempted to blackmail him. He withdrew from the case. The matter was duly reported, including with my name and his allegation that I attempted to blackmail him, in the Post by Laura Kiernan, who was a reporter I knew, who at that time was dating Bill Taylor, my partner. I was annoyed that she had both reported his words in their verbatim context and not had the decency to call me for a comment because I would have said something. This was in the early 80s. For a long time thereafter, for whatever reason, the windows in his courtroom door were card-boarded in so you couldn’t look into his courtroom. The oddest thing. And for years thereafter, if he spied me in the courthouse – or if he spied Spaeder, for example – he would in the most convivial way imaginable give you a hug, including me. For some, he would invite them to his chambers and regale them with verbatim recitations of events that had occurred during this case, which obviously was as emotionally impactful to him as virtually anything that had happened to him on the bench. Granof: You were invited into his chambers? Zuckerman: He did not do that to me but he did treat me publicly with as much respect and friendship as any human being whom I have ever dealt with. And he taught me something for which I am very grateful and that is the social 139 lubricant of being “hail and well met” – even when it’s completely disingenuous, you know it to be disingenuous, your counterpart knows it to be disingenuous – that that’s just the way people behave in public. It is a great social lubricant. It absolutely works – and all of this stuff notwithstanding – in a million years you would have never guessed in public that he and I weren’t the best of friends. It was an extraordinary clash between a group of very determined defense attorneys confronting a very determined adversary. As a side light, the prostitution aspect of this was leaked by somebody and it was reported, I think, by Jack Anderson in the Post. I was 41or 42 or 43 at the time. There was probably on my part a rough-andtumble gunslinger attitude or foolhardiness that I am not sure I would display at my current age. Granof: If you hadn’t done it, it’s pretty clear that since neither Phil Hirschkop nor Leonard Boudin were shrinking violets or gave a damn what federal judges thought about them, they would have done it. Zuckerman: True, true. In retrospect, I try to be a gentle soul, but there are times when you have to do what you have to do. The rest of the story is that the clients did indeed plead guilty. Mary Sue, I believe, got four or five years. These were not good crimes; they were bad things these people did. Our clients got something in the three-year range. The Scientologists loved us and among other things we ended representing Mary Sue in connection with her parole. We were honorable, well-regarded lawyers, who believed in the fairness of the system and they appreciated our commitment. We ended representing the Church in connection with some very serious matters a decade or two later in connection with the death of a parishioner in Tampa, who was denied psychiatric and other medical care during a period of extreme disorientation, and the parishioner died. The Church was sued for intentional or negligent homicide and investigated by the States Attorney’s Office in Tampa. It was 140 a long, long case. We did a lot of work for the Church in connection with that and in connection with other matters. At the time we did this in the late 70s and early 80s the Church was an outlier and not a lot of orthodox firms would represent it. In the competition fueled world of the 90s and 2000s, if you have the money, they’ll represent you and it became a completely different turn of events and law firms were much less “white shoe” about taking controversial clients. We were there early. Granof: Perhaps we can go into those subsequent representations. What was the position of your clients in the Church? Zuckerman: There was a leadership group. These were among the five or six major leaders of the Church. Granof: How did they tie those leaders, each of them individually, into the crime? Zuckerman: I think the government had turned one or more Church members as witnesses. So there were some key insiders, I think, who were going to testify as to what the campaign was. It was a spying campaign – these were the people that planned it, this was the way it was going to work. Granof: So they had the confirming documents from the search plus testimony. Zuckerman: I believe so. Granof: Judge Richey had issued an opinion refusing to suppress? Zuckerman: That was the nail in the coffin. As I recall, my view is that his opinion – you could have gone either way – was reasonable. I have no criticism of the intellectual quality of his thinking. It’s where he came from in the process that struck me as unfortunate. Granof: It seemed to me odd to go to California anyway for a hearing – to move so many lawyers, prosecutors, the judge and U.S. marshals out there. But he made that decision. When he wrote this opinion accusing you of blackmail 141 which was not a published opinion, but clearly a part of the court docket records and subsequently reported in the Post, what did you do about it? They besmirched your name. Zuckerman: I really don’t remember what my reaction was except pleasure at the fact that we had gotten done what we had hoped would be done; that is, with minimal debris and minimal casualties, we had gotten a judge whom we felt to be biased off the case. Granof: But still, a judge writes an opinion accusing a lawyer of trying to blackmail him and nothing happens? That seems odd. Zuckerman: I felt as if I had protected myself well. I was very oblique in what I wrote. I refused to say anything to him when he called me. Granof: This concludes our session for today.