Judge Gerhard A. Gesell Supplement to Oral History

THE HONORABLE
GERHARD A. GESELL
Supplement to Oral History
Oral History Project
The Historical Society of the District of Columbia Circuit
Supplement to Oral History of
Judge Gerhard A. Gesell
There follows notes taken by Jeffrey Brandon Morris during his interviews of Judge
Gerhard A. Gesell in preparation of the history of the Courts of the D.C. Circuit, Calmly To
Poise the Scales of Justice, by Jeffrey Brandon Morris. Attached to the notes as appendices are
papers Judge Gesell provided to Professor Morris during the interviews. Professor Morris has
donated these notes and papers to the Historical Society of the District of Columbia Circuit.
TABLE OF CONTENTS
Jeffrey B. Morris Notes on conversations with Judge Gerhard A. Gesell, pages 1 through 15
APPENDICES:
A. Judge Gesell’s handwritten notes regarding Pentagon Papers time line.
B. Memorandum opinion by Judge Gesell in United States ofA merica v. The Washington
Post Company, et al. denying the government’s motion for a temporary restraining order,
dated June 18, 197 I.
C. Transcript of Judge Gesell’ s ruling from the bench in United States of America v. The
Washington Post Company, et al. denying the government’s motion for a preliminary
injunction, dated June 21, 1971.
D. Letter and Interrogatory Answers from President Nixon to Judge Gesell in United States
of America v. John Ehrlichman, et al., dated July 10, 1974.
E. Transcript of sentencing by Judge Gesell of defen dants in United States of America v.
John D. Ehrlichman, et al., dated July 31, 1974.
F. Interview of Gerhard A. Gesell, “Handling News Medial Arrangements During High
Visibility Trials, in Federal Judicial Center’s Chambers to Chambers No. 3, (Nov. 27,
1989).
G. Memorandum prepared by Judge Gesell, entitled “The Statute of Liberty July 3, 1986
Naturalization Proceeding,” outlining the events surrounding the District Court’s .refusal
to participate in a multi-court proceeding. Remarks of Judge Gesell at the Naturalization
Ceremony, July 3, 1986, in the United States Courthouse, Washington, D.C.
JEFFREY B. MORRIS NOTES ON CONVERSATIONS WITH GERHARD GESELL
Note: My conversations with Judge Gesell were not tape-recorded. I jotted down notes as we
were talking and transcribed them immediately after the conversations ended, which several
times was some hours later. The notes were as accurate as I could make them, but the
transcription is not for the most part verbatim. When it is, I have indicated with quotation marks.
I have not put in this transcript some of the “procedural” suggestions Judge Gesell made
regarding my research, such as whom I should talk with. Since I did not always copy down my
questions, nor extraneous comments by Judge Gesell, the notes sometimes are a jerky read. This
is particularly true of the conversation of May 21, 1990. Judge Gesell also provided
docwnentation, which is attached to this oral history. The reader is also referred to my history of
the courts of the District of Columbia, Calmly to Poise the Scales of Justice, which not only
reflects my conversations with Judge Gesell, but which provides background to some of the
matters discussed in this conversation.
May 21, 1990, District of Columbia Circuit Conference (Hershey, Pennsylvania)
This interview occurred at the beginning of the writing of the history of the District of
Columbia federal courts. Judge Gesell was very supportive of the project. Previously, he had
strongly supported the inclusion of the District Court in what had originally been intended as a
history of the Court of Appeals. At this meeting, he indicated his strong desire to be of
assistance to the author.
Judge Gesell, who had practiced with Covington & Burling, indicated that he seems to
have been the first judge to serve on the District Court of the District of Columbia whose
practice was not essentially local. Many of his predecessors had been former U.S. Attorneys or
who had other experience in the government of the District of Columbia and/or had been from
the Washington area.
Reflecting on his colleagues, Judge Gesell considered Holtzoff to have been a major
figure; very good on the civil side, but increasingly biased pro-government on the criminal side.
He considered Bumita Shelton Matthews to be “a good judge;” William Bryant, “very good on
the criminal side” and a “very rare person.” [Note: This I took to mean a man of great character]
He spoke of Judge McGuire as “a delightful Irishman” and of William [“Bill”] Jones, “an
outstanding local practitioner.” Gesell thinks highly of Judge Oliver Gasch. Richey was
“Agnew’s appointee.” Gesell spoke of Barrington Parker’s “tragic history.” Parker was hit by a
car and badly injured, he “soured up.” Judges Sirica and Corcoran were forced off the court by
Gesell and others several years before, because they weren’t working and the court was short of
space.
There was a rivalry between George Hart and John Sirica for appointment to the bench,
which continued during their tenure. Although Hart was chairman of the Republican Committee
for the District, Sirica beat Hart out for the judgeship. Of the Chief Judges of the District Court
Gesell had served under, he thought “important” Geor$e Hart and Aubrey Robinson.
Judge Gesell also spoke of the judges of the Court of Appeals. Bazelon was warm and
sometimes charming, who could be a loving man (for example, he financed a law clerk’s medical
treatment in Chicago), but he also could be very petty. District Court judges, in Bazelon’s eyes,
ranked below Court of Appeals secretaries in getting parking. In 1967, Bazelon told Gesell,
when he wanted to appoint him to head a committee to consider reforms in the District of
Columbia courts, that he would hate him in two to four months. Gesell, therefore, insisted on
ap pointment by the Judicial Council.
By contrast, Judge J. Skelly Wright was well-liked by conservatives, Edgerton was “very
proper.” Gesell recalled representing the management in the General Electric[?] Communist
case. Edgerton, who was sitting, said that you can never fire anyone for their beliefs. Gesell
posited a soda drugstore near a high school. The soda jerk was fired for preaching free love.
“Edgerton turned red.” Gesell won the case. E. Barrett Prettyman had been an outstanding
Corporation Counsel. Harold Leventhal Gesell thought was very bright but an [intellectual]
snob. Carl McGowan, who headed the Administrative Conference, was a balance wheel with
“an awful lot of common sense.” He was the member of the Court of Appeals “closest” to
Gesell. Roger Robb was a boyhood friend of Gasch. Robb was a more broadly qualified person
for the Court of Appeals than just his involvement in the Oppenheimer security clearance case.
Robb had a “meticulous legal mind,” which was “highly analytical.” Robb had been Earl
Browder’s lawyer and Barry Goldwater’s. Senator Eastland engineered Robb’s appoin tment to
the Court of Appeals. Gesell thought highly of Warren Burger’s experience in legal practice,
while he [Gesell] denigrated Bazelon’s practice experience. Malcolm Wilkey left the Court of
Appeals to become an Ambassador when it became clear he would never become chief judge (as
Spottswood Robinson would not retire). Gesell had the impression that Wilkey had not been
well-liked [by his colleagues?]. Judge Bastian was local practitioner and “a wonderful man.”
Judge Gesell also spoke about the judges of the Court of Appeals in our April 1991
interview. Gesell remembered Judge McGowan speaking at a ceremony for the District Court
and saying, “I want to pay my respects to the loyal opposition.” Gesell stated that there we re
many friends of the District Court on the Circuit Court, singling out E. Barrett Prettyman, Wilbur
K. Miller, Edward Tamm, Walter Bastian and Carl McGowan as well.
The anger the District Judges had was not with the Circuit judges or the Circuit Court,
but with Bazelon (there was “violent anger”) and the (extreme) view [of some] that J. Skelly
Wright was “silly.” Bazelon was viewed as a “scalawag.” Gesell went on: “Bazelon could be
the most charming fellow you ever sat next to. [But], he could be mean as a snake. He kicked
people off [the judge’s] elevators.
Bazelon went outside the record in deciding cases. He had an extreme attitude about the
social causes of crime that [led to the feeling] that he was not taking his Uudicial] oath se riously.
Returning to the 1990 interview: In the l 950s, there was the constant feeling in the
Washington community that the police were overreaching. “Red-necks” were appointed to the
force by Congressmen. There were not enough black officers. The bar got very worked up
about this.
On Watergate [discussed further later]: Sirica was Chief Judge and took all cases. He
spun off the financial cases to Hart; other stuff to Gesell (including the trial of the seven -Ehrlichman,
Colson, Segretti, Chapin, Liddy, Krogh and … ). During the period Sirica was
handling the case, he was very nervous about it, slept very little, got to the office between six and
six-thirty in the morning. As Gesell got there at seven, Sirica often discussed troublesome
problems with Gesell, but not as much as with Judge Matthew McGuire and with his [Sirica’s]
law clerk.
– 2 –
On the Pentagon Papers case [see also later]: The government was never able to prove
anything. The White House lav,,.,yers didn’t want the defendants at the hearing. Gesell threatened
to dismiss the case unless the defendants were present. There was a hearing at Gesell’ s house
that Saturday. After the hear ing. two marines tried to take documents from Gesell.
The special jurisdiction of the U.S. District Court for the District of Columbia
encompasses voting rights cases, terrorists cases (held in a special secure courtroom), all
overseas cases, some tax jurisdiction, local crimes and federal crimes. It also involves
adminis trative law cases, maritime cases, cases involving the Merit Systems Protection Board
(rare), Freedom of Information Act cases and the appearance of Congressmen in litigation. The
District Court of the District of Columbia is “part of the federal triangle.”
In a later interview, Judge Gesell added to the list of the work of the U.S. District Court
for the District of Columbia: cases dealing with the environment, civil rights, migrant workers ,
sexual preferences, impeachment of judges, riots, Martin Luther King papers, passports, the
Railway Labor Act, cases involving government unions, the National Mediation Act, solicitation
of funds for charities from government employees, cases involving overturning major federal
policies and cases involving the separation of powers.
Gesell spoke about the fight he led in the late 1960s to get the District Court to switch to
the individual calendar from the master calendar. The individual calendar was adopted by a vote
of eight to seven. Ultimately, everyone went along.
In 1961, Gesell recommended Burke Marshall over Harris Wofford to head the Civil
Rights Division of the Department of Justice. He thought Marshall was a better lawyer.
Interviews April 4-6, 1991 in Judge Gesell’ s Chambers and Georgetown home
Pentagon Papers Case (United States v. Washington Post Co.)
Gesell’s growing suspicions about the Nixon Administration before the Pentagon Papers
case:
Gesell was a Democrat and had been a law partner of Donald Hiss- and Dean Acheson.
He had witnessed Nixon’s “McCarthy-like” behavior. At this time [e.g., the time of this
interview], he views Nixon as a “complex person,” in some ways a good President, but also “a
vulgar man, if not a sick man.”
By the time Gesell got the Pentagon Papers case, Gesell had had two experiences while
he was on the bench which made him skeptical of the motivation of the Nixon Administration.
The first was the student rioting at Howard University in May I 969. Judges McGuire
and Jones had issued TROs [temporary restraining orders] directed at the students. The case then
came to Gesell as a motions judge. Gesell found the students in contempt and directed the
Justice Department to enforce and present a form of an order. Deputy Attorney General
Kleindienst and Wiiliam Ruckelshaus 1 crune over to see Gesell in chambers. At first they
refused to say how they would enforce the order. Then, they told him that they would bring in
U.S. marshals, the National Guard and police and announce that anyone on the campus at 1 a.m.
1
The interviewer is not certain that Ruckelshaus was involved.
– 3 –
would be arrested and put in jail. “You’re not going to do it [that way],” said Gesell. Gesell
indicated to them that if they proceeded that way, he would not issue the order. Instead, Gesell
said that they would use a few marshals and not announce a specific time. He directed them to
air radio announcements to parents urging them to ask their children to come home. Ultimately,
four or five marshals went out and arrested eight or ten students.
From this experience, Gesell got the impression that the administration was “hyping up”
the crisis for political reasons, “that they were in league with the red baiters.” This troubled him
a lot. He saw the Attorney General [John Mitchell] as a “very narrow man in his area.”
The second pre-Pentagon Papers experience which made Gesell suspicious of the Nixon
Administration involved the House Un-American Activities Committee hearings chaired by
Rep. Ichord. The hearings which were intended to produce a list of”red-sympathizers,” which
would be sent to colleges, who would be urged not to invite those on the list to speak on campus.
The U.S. Attorney defended the hearings. Gesell enjoined the public printer and was attacked on
the Hill for his pains, but “Ichord pulled in his horns.” This Gesell saw as stirring up the old
Martin Dies red-baiting, and from Gesell’s perspective, such red-baiting was not being resisted
very hard by the Administration.2
Gesell added that his skepticism of the Administration’s motivation was also reinforced
by impoundment cases which came before a number of judges.
Gesell was the only judge who sat in the litigation over the Pentagon Papers who did not
vote a single time not to stay publication, which took place in several circuits. He pointed out
that this was not his first case in the national limelight; that the Vuitch case [discussed later in
these interviews J had also been.
[The District of Columbia’s part of the Pentagon Papers litigation began three [??] days
after the attempt to prevent publication of the Papers by The New York Times in the Southern
District of New York. J The government brought suit against The Washington Post on Friday,
June 18, 1971 at 5:15 p.m. The hearing before Gesell on the TRO occurred from 6 to 7:15 p.m.
that evening. Gesell denied the TRO at 8 p.m. The Court of Appeals panel issued a stay of
Gesell’s ruling on June 19th by a 2-1 vote. The lawyers in the case met at Gesell’s house in
Georgetown on Sunday, June 20th. The hearing on remand before Gesell began at 8 a.m. on
Monday, June 21. Gesell refused to grant the injunction the same day, but the Court of Appeals
granted an immediate stay to permit an appeal. On Wednesday, June 23, the Court of Appeals
affinned Gesell, but stayed resumption of publication by the newspaper in order to permit the
Justice Department to appeal the decision to the Supreme Court. That same afternoon, the Court
of Appeals for the Second Circuit ordered Judge Murray Gurfein to determine which portions of
the report were so sensitive that their publication in The New York Times should be eajoined.3
2 In the interviewer’s notes is a sentence that reads: “During the brouhaha someone came out to the [Gesell] fann
[in Virginia] to try to kill Gesell. The interviewer has no further notes on this.
3 The information on the litigation from June 18 to June 21 is taken from handwritten notes of Judge Gesell. See
Appendix A.
-4-
On June 19, the Court of Appeals put Gesell “on a short tether.” He had to hold a hearin?
and render his decision by Monday at 5:00. As the courthouse was closed Saturday and Sunday,
Gesell asked the lawyers to come out to his Georgetown home.
[ Assistant Attorney General] Robert Mardian crune out to Gesell’ s house and said, “‘Now
judge, I want you to understand that the defendants will not be allowed in the courtroom.'”
Gesell responded, ‘This isn’t Russia. You go up to the study and telephone the White House and
tell them [that if the defendants cannot be in the courtroom], I’m going to dismiss the case.’ They
[the government] pulled back.”
[At the Monday hearing?], Gesell asked the government to select the ten worse examples
[ of national security problems in the Pentagon Papers] and to let him have a set of the [Pentagon]
Papers over the weekend. Later, uniformed men crune for the Papers because “you haven’t the
security [clearance].” Gesell said, “I’ll keep them secure. I’ll place them under my pillow.”
Again, they pulled back. [This episode also J troubled him.
Another exrunple of what he didn’t like was that the Pentagon public relations people
were all over Capitol Hill saying that “‘this man will release war plans and young men will die.'”
At the Monday hearing [parts of which were secret] to determine the parts of the
Pentagon Papers, the publication of which would cause irreparable injury, one witness testified
that our ‘”most important secrets … will be given away.'” Gesell said that they should get a
general ”down here” who knows about war plans. A general crune out and testified that the plans
[in the Pentagon Papers] were out of date and that it would be great if we could convince the
Russians that these were indeed our war plans. At another time, there was testimony that the
Papers contained the nrune of a Canadian official who was feeding information to our people in
China and, if that comes out, he is going to be hung. But [it was shown in the hearings], that this
account appeared in three different books. The reporters “blew those people out of the water.”
Gesell said that “he got a bad impression again.” This is what was “sold to” [Solicitor General
Erwin] Griswold and he believed it until later.
Gesell did find Macomber’s testimony [for the State Department] that publication would
hurt us with foreign diplomats, proper and “‘sincere.” But, this wasn’t good enough. He [Gesell]
has a strong view of the First Amendment.
Gesell went on: “There is and ought to be a tendency in this court [the U.S. District
Court for the District of Columbia] to believe the government, to respect the government. We
don’t like to disbelieve the government any time.” [But, Gesell] began to find from [previous
encoW1ters with the Nixon Administration] and from the case itself “a record of a lack of
fairness” which “puts you on [your] guard [in dealing with its representations.” “I was unsettled
by the tactics and instinctively against the idea of suppression.” He “did not like,” Gesell said,
“being a super-censor.”
Some miscellaneous thoughts on the Pentagon Papers case:
Judge Gurfein [who had the Pentagon Papers case in New York] called him once and
asked why he was refusing [a TRO]. 5
4 Due, Gesell thought, to repairs on the air conditioning.
5
In the interviewer’s notes is this statement, “Gurfein was not sure of himself followed by a question
– 5 –
All of the opinions Gesell delivered in the Pentagon Papers case were oral. See
Appendices Band C.
Gesell felt he could afford to deny the stay because the “Court of Appeals is upstairs.”
He never understood the motivation of the Administration. Ges ell unsealed the record of
the case over time.
On the difference in quality between the Gurfein and Gesell opinions in the Pentagon
Papers case on the one hand and those of the appellate courts on the other:
“You can say what you want as a district judge. You can’t on the Court of Appeals.”
“They’re not used to doing things in a hurry in the Court of Appeals. We are accustomed
to disposing of matters [ making rulings] quickly. Up there, things are vetted through a series of
law clerks. “6
[Based on the mail he got], the Pentagon Papers case did not strike a nerve with the
public the way Vuitch, the Watergate cases, or the North case did.
Gesell on His Colleagues
Luther Youngdahl — Youngdahl offended many members of the bar by the tactics he used to get
settlements. He [al so] stayed around too long …
Howard F. Co rcoran — Tom Corcoran’s brother; Assistant U.S. Attorney, Southern District of
New York. Solid, fair, even-handed; well-liked; very much liked by the bar; good trial judge.
Leon ard P. Walsh — Not a good judge; had a booze problem; great football player – played for
University of Minnesota with Bronco Nagurski and George MacK.innon. Came from out west.
Drinking problem less apparent in court. Also eyes going bad …
Edward M. Curran — Gave his life to public service; gregarious Irishman. Stayed way too long.
Very shrewd. Good settler of cases. Not es pecially good as a trial judge … very good as chief
judge in getting done the things he wanted [and not getting done things he didn’t want.] Always
wanted to be on Court of Appeals. Old time Irish judge, sagacity, not much legal experience.
George L. Hart, Jr. — Outstanding chief judge. Very unusual man. Good trial judge. Deeply
liked by everybody. Fair. Got people to work together and be collegial. Hart was a superb
manager. Extraordinary man. Military man. Self-made. Hart started out as a court reporter.
Played key administrative role as Army went up through Italy. Daring man –had American
pilots steal British planes — real doers. Always willing to listen. Every time Gesell suggested
mark. I probably was not clear that Judge Gesell had said that.
6 Gesell stated that he was the first district judge in the D.C. Circuit to sit with the Court of Appeals and
that he had “‘learned a lot about his own job there.” He had “sensed how little they know about [the] trial
process and vice versa.” The District Court and the Court of Appeals are “two different worlds.”
-6-
something, he made him head of a committee. He attracted people’s loyalty. Everybody loved
the guy. Had terrible arthritis.
Hart used to make glass models of every kind of sailing ship.
William B. Jones — A leading local trial lawyer of greater ability than anyone mentioned so far
other than Hart. Irishman. Great sense of weaknesses of court. Concerned with standards of
advocacy. Nationally respected as trial lawyer/judge. An innovator. One of the staunchest
opponents of the individual calendar. He was one of the few [district} judges to write opinions …
He was in charge of professional standards. He and Gesell both interested in professional
standards.
Oliver Gasch-Extraordinary man. Still trying cases at 84 or 85. U.S. Attorney and practicing
lawyer. Ardent Episcopalian. Conducts prayer breakfasts .. . prejudiced, but not in dealing with
cases. Rarely reversed.
John H. Pratt– [does not reach out to make law]. A real member of the community, like Robb.
Best friends with Robb. His wife is harpist with the National Symphony. Wonderful member of
the court. Solid as a rock — a good trial lawyer and judge. He is an ardent Republican, who was
appointed by a Democrat. No use for the First Amendment, but applies it. He has sharpened the
law in a lot of places.
He comes from a long line of Marines and had a hard fighting war in the Pacific. He was
president of every legal institution you can think of in D.C. He has a phenomenal memory and is
an omnivorous reader. He is still playing golf and has a dandy bunch of grandchildren.
June L. Green — Extraordinary woman … got bum rap for a long time. Her rating by the bar
made her life tougher. Handled herself with dignity. May have had weak law clerks. Since she
went senior (while she still tries cases), she teaches prisoners to read and write three days a
week.
Warren Christopher had called him and indicated that the need for the appointment of a woman
on the District Court. Gesell recommended June Green.
Thomas A. Flannery — Gesell worked hard to get Flannery the judgeship, which he (Gesell)
ultimately filled.
Gesell on Gesell — He has been a monastic sort of judge. He has done nothing in the community
including bar association activities. He has cut himself off from everything but his job. He has
worked within the court, stuck at his job and tried to help it be a better place.
Gesell had not taken senior status because he would lose the right to participate in matters of
judicial administration and would lose a court reporter.7
Aubrey E. Robinson, Jr. — Outstanding chief judge. Strong leader. Raised standards in the
Clerk’s Office and the probation office. Also a member of the executive committee of the U.S.
7 At the time, Gesell was carrying a full load.
– 7 –
Judicial Conference. Accepted immediately in each place[??] of the city. Deep fires within him
of a racial character. Influential with businesses leaders. Attends all functions as part of his job.
Stem — insists on standards. Has been anticipating the transition when he leaves. He has had
rows with some judges who won’t cooperate.
William B. Bryant — Unusual dedication to job. He has a real interest in the criminal law. Tries
the fairest criminal case of any ofus. He was a gentle sentencer. Has a nice sense of humor.
Everyone loves him. Recluse in a way — not a great mingler.
Joseph C. Waddy — Gesell and Waddy straightened out racial practices in the Clerk’s Office.
The “personal prerogative stuff in the Clerk’s Office was gone under Robinson’s leadership,”
although neither Hart nor Smith had fostered it. This was “[a] southern court until more recent
times.”
Thomas F. Hogan– “first class.”
Spottswood W. Robinson III [as a district judge] — Gesell tried the Alton Railroad case before
Spottswood Robinson and said, “My God, I’d try anything in front of that man. He’s a real
judge.”
Gesell on some earlier District Judges:
T. Alan Goldsborough — “a nut.”
Richmond B. Keech — “crackerjack judge.”
Alexander Holtzoff — architect of the Federal Rules of Civil Procedure. His life was the court.
He would profess to know nothing about the case, but he knew them cold. Sharp martinet. A
favorite among lawyers. Rigid. Human. He was so pro-government in criminal cases that the
Court of Appeals took him offthem.8 Everybody was a little afraid of him.
Edward Allen Tamm [who also had a lengthy career on the Court of Appeals] –Tamm was
J. Edgar Hoover’s right-hand man. Tamm was present at Yalta. Tamm was opposed by the Bar
as unqualified for a judgeship. He had never practiced. However, he spent his first summer on
the bench with Wigmore [on Evidence] and his second with Corbin and Williston [Contracts
treatises]. He became a topnotch trial judge. He was fair and he worked like hel1. He became a
leading administrator in the court system during [Warren] Burger’s time.
Tamm was head of a committee to make the court reporting system work for the court. He met
resistance and threatened criminal prosecutions. Everyone came aboard. Every reporter was
audited by someone who didn’t know the judge. “He rode a white horse over that thing.” He had
enough foresight, FBI experience and moral sense to make it work. It proved of great
importance. Tamm did it singlehandedly. A real service to the whole bench.
8 Interviewer’s note: While there were some stirring run-inS between Holtzoffand the liberal wing of the Court of
Appeals and, while some Holtz.off cases were explicitly remanded to other judges, I do not believe there was any
general ban on Holtzofftrying criminal cases.
– 8 –
Before the Second World War, local bar officers or their choices were appointed to the courts in
D.C.
Gesell (“Ellison”) Committee9
In the late 1960s, the District Court [for the District of Columbia] was in trouble. The
court’s business was not getting done. This was due to the priority that had to be given to
criminal cases. The court was the object of a “big push” from [Senator] Tydings [ of Maryland].
The Circuit Court of Appeals was worried about freeing up time for administrative law. The
Judicial Council wanted input from the bar.
At the time [ c.1966), Gesell “was a terribly busy trial lawyer trying big antitrust and
business cases around the country. He was not involved in the local scene. (Covington &
Burling was a New York-type firm.)”
“A call came from [Chief judge] Bazelon out of the blue. [Gesell] barely knew him.
[Bazel on wanted Gesell to chair a committee to make recommendations on all aspects of the
work of the courts of the District of Columbia. [Gesell, concerned about what he might be
getting into or] concerned that Bazelon didn’t [really] want him, [insisted] that he had to be the
unanimous choice of the Judicial Council. [He was. After that] he dealt with Judges Leventhal
and McGowan, who told Gesell to choose the committee. [There was no money budgeted for it.]
[Among the weak spots in the D.C.judiciary wasJ the Juvenile Court. Two of its three
members wouldn’t talk to each other. [The Committee also] focused on the legislative Changes
necessary to adjust the workload of the Court of Appeals and the District Court. Gesell, himself,
focused on the problems of the District Court.
Gesell’s key contribution was the adoption of the individual calendar. But the court itself
[would have to adopt it]. There was no resistance from the District Court over the fact that the
committee was imposed on from above.
Attorney General Ramsey Clark supported the reforms.
After Gesell joined the bench, he did not keep in close touch with the committee.
Gesell’ s backgrowid
Gesell came from an extraordinary family. His grandfather, an orphan, was a drummer’s
boy in the Union army. He was the first professional photographer on the Mississippi River. 10
His grandfather had two girls and three boys, all of whom got a college education. One brother
was a heart researcher and was elected to the National Academy of Science; one brother was the
City Manager of Cleveland; one sister was a pianist.
9 When Gesell was made a judge of the District Court in December 1967, the chairmanship was taken over by one
of his law partners, Newell W. E\Hson. “Ellison was a Southern Republican.”
10 My notes are not clear. He may have meant the first professional photographer west of the Mississippi.
-9-
On his mother’s side, her father was a leading lawyer in Washington and nationally -Jefferson
Chandler, a member of the Supreme Court bar. He was offered a Supreme Court
vacancy, but was not confinned.
Hanging Judge Parker [of Arkansas] was part of the family tradition. He was a cousin.
Gerhard Gesell’s father was a research professor who was totally wrapped up in his work.
Gesell had a sister. [His parents] believed that he should find his way ….
His father was a Wilsonian Democrat and his mother a suffragette who worked with
Katherine Hepburn. Gesell left home immediately after law school.
Gesell attended law school in the heart of the Depression. He graduated in 1935. Gesell
said he wasn’t much of a student at Yale. He worked two summers while in l aw school for Legal
Aid and during school time as well. He had “1800 clients,” who would come in with questions
such as “My wife has been knocked up by this man, what should we do?” He learned a lot about
people and misery.
A lot of people in Gesell’s law school class became policemen, life insurance salesmen.
Gerhard Gesell’s first job was with the Securities & Exchange Commission. He had had William
0. Douglas in class at Yale Law School, but arrived at the SEC before Douglas became a
commissioner. Gesell headed the Recker-McKinley investigation[??], which had enormous
prominence. He questioned J.P. Morgan among others. Douglas put him in charge of the
Temporary National Economic Committee on Insurance. f??] Douglas was an excellent
administra tor. He hired people and let them do their job. Then, Gesell became a technical
assistant to Jerome Frank. While he was at the SEC, Felix Frankfurter called Gesell and
suggested lwich. He wanted to know how Gesell had learned to ask such succinct questions.
Frankfurter asked him, “how would you like to meet Brandeis.” He went to one of the Brandeis’
[ salons J — “stale cookies, weak tea, no booze.” He then got on the list for the Brandeis teas. The
hearings had demonstrated the economic power of life insurance companies. Brandeis had been
interested in economic power and in life insurance and liked his [Gesell’s] method of getting
down to the facts.
When he left the SEC, Gesell went to Covington & Burling and helped build Covington.
It was an unusual place. During the loyalty security [hysteria], Dean Acheson and Donald Hiss
were members of the firm.
Gesell has been awarded twenty-eight honorary degrees and has been on the cover of
Time m agazine.
The Vuitch Case
Vuitch was a pr ofessional abortionist. He performed abortions openly.
Gesell had given thought to the social problem of abortion before he had the case. He
remembered that, when he was a kid in New Haven, a doctor Greddick (??) had been put in jail.
– IO –
Gesell’s wife’s major interest had been Planned Parenthood. She has been a national
official. That made him aware of some of the conditions that existed [ apart from what he read in
newspapers}. Gesell also had been on the board of the Children’s Hospital.
Judge [Charles] Fahy [who wrote the Court of Appeals opinion], was “an ardent Catholic
in the best sense of the word.” His opinion indicated moral distaste for abortion and changed the
burden of proof to the defendant. Due process seemed so absolutely clear to Gesell on the
burden shifting. The Court of Appeals had changed a key element.
Gesell hoped from his opinion that Congress would take a [close] look at a law from a
different era — like a law prohibiting the sailing of boats on Swidays. He was not full of any
great ideas of reform — he wanted the statute to be modernized, practical, common sense.
Gesell was “utterly amazed at the great rushing in of the press.” That came as a great
surprise to him. He had not realized the extent to which women reporters had been interested.
[One reporter was so assertive] that he almost had to have her arrested in chambers.
The Supreme Court decision [in Vuitch] did stop a large number of prosecutions.
Prosecutions dried up.
The case was a “one-day wonder.”
Part of the role of a judge is “giving some nudges.” He does it through speeches and
opinions.
Fifty percent of the work of district judges is decided by judges on issues not presented
[because of the limits oflawyers]. Cases come in unshaped fashion. Part of the role of district
judges is in shaping cases.
Gesell and the Watergate Cases
The Watergate defendants Gesell handled were Donald Segretti and Egil Krogh, who
pied, John Ehrlichman, E. Gordon Liddy, Bernard Barker and “the two Cubans” who were tried
for the Fielding break-in; Dwight Chapin, who went to trial, and Charles Colson. Gesell also
handled the Ervin Committee request for the Presidential tapes. (Senate Select Committee on
Campaign Activities v. Nixon, 370 F. Supp. 521 (Feb. 8, 1974); Anderson v. Nixon (conspiracy
to chill reporting); and Nader v. Bork, 366 F. Supp. 104 (1973).
The first defendant Gesell dealt with was Donald Segretti. Segretti was involved in
providing false campaign information. Gesell didn’t think what Segretti did was very serious.
He gave him six months in Lompoc [?].
By the time he sentenced Segretti, he had the Egil Krogh case. Krogh was accused of
perjury. Krogh pled. Gesell thought Krogh “a very interesting guy.” While Krogh was in the
prison camp at Allenwood, he sent Gesell letters. Gesell was particularly impressed with one of
Krogh’s letters that had been written at 3 a.m. and by the way he had acted in comparison with
the others. He reviewed how he [had gotten] into trouble. He had thought it out. Gesell thought
Krogh “a victim.”
– 1 I –
Dwight Chapin went to trial. He was represented by Jake Stein … Chapin had filed false
statements with the grand jury to protect Haldeman. He was the “man Friday” for Nixon and
Haldeman. Gesell’s impression was that he was “a lackey.”
Gesell got the second of the two indictments in March 1974- one involving Watergate;
the other, the break-in of Dr. Fielding’s office (Daniel Ellsberg’s psychiatrist).
Charles Colson “was a freeswinger helping the President [to] do what he thought he
wanted.” Colson made a deal with the Independent Counsel to plead to the count of obstruction
of justice before Gesell, which would have settled his involvement in both cases. He said that he
was trying to get records from the White House and had begun to see just what obstruction of
justice was.
Gesell was up in Maine while Colson was awaiting sentence. Gesell refused to put
Colson on probation. Gesell gave him a harsh sentence to keep him in line. At the time,
Colson’s “reformation” had begun. He was involved with a Christian Fellowship group. Colson
told Gesell that he didn’t want this to be taken into consideration. The group asked to meet in
the jury room and wish him luck. Colson had several problems. His wife had had a mental
breakdown and his son had been involved with drugs. Colson tried unsuccessfully to see Gesell
after he got out of prison.
Regarding the Fielding break-in: Gesell dismissed Diego’s case?? defense.” Gesell was
reversed as to Bernard Barker and Martinez’s “following orders” defense. That came back to
haunt him in Oliver North’s criminal case. Gesell then had John Ehrlichman and Gordon Liddy.
Liddy never testified. “He was there to take the fall.” He “winked at Gesell from time to
time.” Liddy said “Judge Gesell is a Rolls Royce and Sirica is a fliver.”
Liddy was “an extraordinarily interesting person; a total believer in authority.” He did
not participate in any phony defenses. Gesell came to admire him in part and issued an order
allowing him to go home to attend his father’s funeral.
Ehrlichman was represented by a Florida lawyer selected by Bebe Robozo. His
representation was very poor. He didn’t do what he told the jury he would do. The defense was
fuzzy and fell apart. However, it was the pre-trial maneuvering which was key.
The Fielding case pre-trial: Colson and Ehrlichman had been kicked out by the
President. All the files were in the White House and Nixon put them under lock and key.
Colson and Ehrlichman needed their files to defend themselves. [The president] raised a national
security defense; executive privilege on the fringes. He went through this “dogarndest series” [of
non-cooperative behavior]. He brought in St. Clair [as his lawyer. St. Clair] was naive about
Washington. He ended up taking the President’s orders. Gesell became more and more
concerned.
By May 1974, after a public hearing, Gesell had [St. Clair] in chambers and “roasted his
ass off telling St. Clair that “you’d better give him some [legal] advice.” The president then
“tUilled turtle.”
– 12 –
Ehrlichman then made sweeping demands of the [executive] agencies. Gesell called
Ehrlichman’s bluff. On the eve of trial, Senator Ervin was screaming for the tapes. Gesell was
concerned that it might ruin Sirica’s trial and his own. He thereupon sustained the executive
privilege claim. It caused harm to the investigative power of Congress.
At trial, regarding the testimony of Nixon, Gesell suggested interrogatories, but only
approved five or six questions. Gesell sent Nixon a letter stating “I can’t make you do this,” but
requested Nixon consider interrogatories. Nixon complied. This maneuvering got little
attention. See Appendix D.
Gesell was visited by the lawyers connected with the impeachment proceedings about the
hearings, which they deferred because Gesell kept the case on schedule. His whole concentration
was on having a fair trial. The reputation of the judiciary was at stake. Gesell contrasted this with
the “posturing and slobbering” of the impeachment proceedings on the Hill. “If this court in
those high visibility [proceedings] hadn’t come through well, the judiciary in the nation would
have been in bad [shape].”
Gesell singled out these as being the principal themes [ or issues] in the letters written by
the general public to him over the Watergate cases: preventing Senator Ervin from getting the
tapes; Gesell’s failure to impose harsh sentences; placing restrictions on the use of the tapes
when they were released; interference with the impeachment process; the attacks on Nixon were
a Communist plot; he did a good job/poor job with the trials; the whole thing is a political smear.
See Sentencing Transcript of Watergate defendants-Appendix E.
On dealing with the press in high-visibility trials 11
Gesell’s first encounter with a stirred-up press was the abortion case [Vuitch]. In the
Watergate cases, he wanted a press liaison. The press appointed Harry Rosenfield. The press
liaison was responsible for assigning seats in the courtroom. He told Gesell of press needs, for
example, copies of exhibits. Gesell never has had a press call at home since. He used the same
procedure in the North case.
Gesell did not move cases outside of Washington because the press would go with the
case.
On Judge Sirica and the Watergate:
[See also the May 21, 1990 interview above}
[Interviewer’s Note: In taking notes during this part of the interviews, I primarily took down
what Gesell added to the existing literature. As a result, what I have is a co11ection of statements
about how things looked behind the scenes and Gesell ‘s judgments of a fellow professional.
Even where I have not used quotation marks, the words are close to verbatim. What was
absolutely clear to me during the time we discussed Watergate was judge Gesell’s deep respect
11 See Appendix F to these Notes on Interviews with Judge Gesell – Gerhard A. Gesell, “Handling News
Media Arrangements During High Visibility Trials, Chambers to Chambers No. 3 (Nov. 27, 1989).
– 13 –
for Judge Sirica’s handling of the Watergate cases. Gesell was by no means an unabashed
admirer of Sirica as a judge and he pointed out where Sirica sought assistance from his
colleagues, but Gesell expressed no reservations about Sirica’s achievements in the Watergate
cases.]
Gesell began by stating: “I came from a different culture.” Sirica was a “friendly, nice
guy. This was his life.”
Sirica handled the “press attention like a pro.” [His handling of] public relations was
”masterful.”
Sirica assigned and controlled all Watergate matters. [In addition to cases assigned to
GesellJ, Sirica assigned the campaign contribution cases to George Hart and a miscellany of
cases to William Bryant. Sirica turned over the day-to-day affairs of the District Court to Hart.
“Sirica had only tried one big case in his life [ dealing with railroads and he was reversed]
before this one. He blew that case. He also had no sense of management [of a case]. As the
cases developed, the pressures [on Sirica] seemed to grow. He was excited, cauti ous, nervous,
mercurial, taut. His guard was up all the time. Some defense arguments bothered him very
much. The case was more of an experience for him [than it would have been for some of the
other judges].”
He was persistent. He was dealing with a bunch of liars. He knew something was rotten.
He did make technical lapses (as occurs in all big cases). He [could be too much] a participant…
He rode heavily on witnesses.
Sirica was not a fast lawyer. He had a lot of help from judge [Matthew] McGuire, who
had been Assistant Attorney General in charge of the Criminal Division. McGuire was a wise
Irishman. Sirica didn’t rely on Hart. They were rivals.
Sirica brought great prestige to the court. He went into a risky area and came out on top.
The result was a sound result. He did nothing that was underhanded or improper. He did just
what a federal judge should do.
Regarding Watergate sentencing: Gesell would not sentence without knowing Sirica’s
sentences. Gesell matched his sentences to what Sirica said he would do.
Irangate
Judge Gesell said that the Toobin book on the trial is very incomplete and exaggerates his
role. 12 The Oliver North prosecution involved the Classified Information Procedure Act and the
Et hics in Government Act. There were ninety defense motions. The case was tried
expeditiously. NBC News contacted the jurors.
12
The interviewer is not clear as whether Judge Gesell meant that Toobin exaggerated Gesell’s role or
Too bin’s role.
– 14 –
Gesell had little patience with the sweeping conspiracy counts [and dismissed those
counts]. The jurors in the North case settled on the concrete ( aiding and abetting an obstruction
of Congressional inquiries). Gesell narrowed the superior orders defense. North also was
convicted for altering official NSC documents and for the cover-up of a botched illegal gratuity.
Naturalization Proceeding July 3, 1986. See Appendix G.
– 15 –
APPENDICES
A. Judge Gesell’s handwritten notes regarding Pentagon Papers time line.
B. Memorandum opinion by Judge Gesell in United States of America v. The Washington
Post Company, et al. denying the government’s motion for a temporary restraining order,
dated June 18, 1971.
C. Transcript of Judge Gesell’s ruling from the bench in United States of America v. The
Washington Post Company, et al. denying the government’s motion for a preliminary
injunction, dated June 21, 1971.
D. Letter and Interrogatory Answers from President Nixon to Judge Gesell in United States
ofA merica v. John Ehrlichman, et al., dated July 10, 1974.
E. Transcript of sentencing by Judge Gesell of defendants in United States of America v.
John D. Ehrlichman, et al., dated July 31, 197 4.
F. Interview of Gerhard A. Gesell, “Handling News Medial Arrangements During High
Visibility Trials, in Federal Judicial Center’s Chambers to Chambers No. 3, (Nov. 27,
1989).
G. Memorandum prepared by Judge Gesell, entitled “The Statute of Liberty July 3, 1986
Naturalization Proceeding,” outlining the events surrounding the District Court’s .refusal
to participate in a multi-court proceeding. Remarks of Judge Gesell at the Naturalization
Ceremony, July 3, 1986, in the United States Courthouse, Washington, D.C.
? ‘-‘
?tr?,-
MQJ)d.iw, –
h\ M””-‘-1
f?,·
f-4/ 5, 15 Pl’I\ t /rs/?! ‘>’A?
,?o ? – 7· /5 /Ph(
P-u!ui ‘i”‘ I°..,
C!.t’ I) ./’d? 2.-1 •? {!f/:.1
·Yl4.tZt; R I? 6 I 2-e/’1!
/,μ..,..:./ S’ AM l,,/-q/71
?- “?-Z…. ti, ,9.
” – ? Ci$?<… l/:1i7/
Appendix A
,.
‘ tr, TUE UNITED ST/1.Tl?S DISTRICT COUR’r
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AM.ERICA, • )
)
Plaintiff, )
)
li?LL, J.
‘:… ….. .. ,…. ., . ______
FI L. i::: fJ
–
JUI, 18 j97I
–. . …… – . •-….
v. )
)
Civil Action No, 1235-71
Tim WASHINGTON POST COMPANY, )
ET AL-, – )
. )
Defendants, )
MEMORANDUM
..
This morning the Washington Post, a paper of general
c::.rculation in this city “with correspondents throughout the
country, published an article based upon matters contained in a
. .
47-volume “top-Secret” publication prepared under the auspices
of the Department of Defense, reviewing various developments
r,· l .’.lting to the Vietnam war over a period of some Sixteen years
1,.·i.01· to 1_%8, ‘l’hc United States, througii”ffl? Attorney General,
•I;,; ,1 t<•mpor.ary rcstr.iining orclcr prohibiting the ? from
t.,rthcr publications based on this data, which the ?
c?,atcmplates making in serial fashion continuing with tomorrow’s
;,;.:..rriing edition which goes to press at 9iOC p.m., and subsequent
ti(i tions. In a related cilse the New York Times, which was also
:,ulJlishing excerpts £?cm this material, has been temporarily
c,,joincd until 1:00 p.m. OR Saturday, June 19,. and proceedings
. ,: iiow in progress in the southern District of New York, !!!,
.mcra, to determine whether or not a preliminary injunction
s:1all issue against. the Times • -· ·
‘l’he United States contends _that the material
c•:int.:.ined in these 47 volumes is h?ghly sensitive, as its dtcp
. -i.clt ·• des.;..’:I••—— .: •• Jiuate? ,. ar.;1 . . “,. ‘
——– .
,.tc:: ..,ill be irreparably injured in its conduct of the w.i.r
. ·;•.i .:.:, i.t:: diplom«tic rcl.:.itirms by disclosures which it il.:s
· ·,,, . ..-. t.o believe arc contcr,11 ,1,11:ccl in tha subsequent P(,:. L
•-?lr:;:;;, 18 U,S,C. S 793_ pt:t>Vidcs for possible cri1ainal
.:;,•·_,.,-.:,:; ·in thc:,c circum?t.-u11.;,?? but Congress in that. :,L,1tutc
AppendixB
,, _,_
did 11-,1;. .-iuthorize any injunctive action, Indeed, Congress
• appc:n·.; to have condemned any pre•cxisting r?straint. or
ccnn0;.•::hip of the press by the lnnguage of the Internal
Sccudty Act of 1950 {Sec. l (bl), of which this statute is.
· a pal:t, and the Supreme court speaking through Chief Justice
Hugb?–s in Neir v. Minnesota, 283 U.S. 697 {1931), has outlined
the historic reasons support?nef the total freedom ot the press
to; publish as ·guar;ntee4 by the First IUllendment 0£ the’i
Constitution.
A temporary restraining order is designed to
prascrve the status quo for a brief ?riod until all of the
issue:. can be fully_ develope4: It is a matter of discretion
with a court whether such an order shall issue. ‘l’he Court
has before it no precise information suggesting in what
•· resp?cts, if any, the publication of this information will
injure the United States and must take cognit,’.aifc ,,;.. e of the
fact that there a re apparently private parties in possession
of this data which_ they will continue to leak to other s·o1.1rcas.
What is presen’·ed is a raw question of preserying
the freedom of th? pres·s ·a, ,it confronts the efforts of the
Government to impose a prior restraint on publication of
essentially historical data. The information unquestionably
will bC emb?rrassing tO the united States but there is no
possible way aft8r the-most full and careful hearing that a
court would be able to.determine the implications of publication
on the conduct of Govern:ment affairs or to weigh these
implications against the effects of withholding information
from the public. -? .. –? It is to be strongly regretted that the?
•;;, .. .. • ?,,r. ,. .. –
i”,.i::; Dc’:ln unwilling to allow the· Court to pursue this matter
ovc); t:·,c next two or three days .:ind voluntarily to withho:c.
;·,-?,,? ic?”t.ion. Unfortunate a1, ·.;:;””;is r.iay be, the Post• s posi;:,:..-;;:
C:o:-:, r.ot obviate ·the neccs::dt;.· ;c,::: the Court to dctcrll\il1c t;;o
1-: ·, ;,?::t.icularly since the r.tto:::nc?• General has stated h? ·.-;1.ll
Appendix B
Page2
..
•.
—
•
-Jpui
·:,u,? thi:i action rcgiltdlc:.s of what result is reached ,in
the ‘l’imcs Cilse.
. . . The? stands in serious jeopardy of
cri::1inal prosecution. This is the only remedy our Constitution
or -the Congress bas provided. The Post will be allowed to
publish and the request for a t€lmporary restraining order is
denic:d.
The application of the American Civil Liberties •
Onion to partiCipate in these proceedings as amicus is.denied.
so ordered.
Ju;i.c 18, 1971.
ii:00 p.rn.
Appendix B
Page 3
A. TRUE CO.P.X’ . •*-•?-:
Wl!:S (. DAVEY, Clerf,
Oy f.f, -i I° 4-
°’?’.’. “?• r
.
266
COUP.T’S RULING
TilE COURT: The Washington Post has certain papers
from The History of United States Decision·!-faking Process
on Vietnam Policy, a forty-seven-volume document, ‘\<:hich was
given an over-all Top Secret classification.
The United States Court of Appeals granted a tempera y
restraining order against publication by the Post and directed!
! that this Court hold a hearing today and made a determination
by 5;00 p,m. with respect to the prayer of the United States
for a preliminary injunction against further publication.
This Court was directed by the Court of Appeals to deterTI’.ine
whether publication of material from this document would so !
prejudice the defense interests of the United States or result I
in such irreparable injury to the United States as l:.’ould
justify restraining the publication thereof.
The role of quasi-censor thus imposed is not one
Ii that any District Judge will welcome to have placed on him I !:’!
11 1:
by an appellate decision. It has been a doubly difficult role
because the material to be censored is unavailable for tlicre
is absolutely no indication of what the Post actually will
print and no standards have been enunciated by the Court of
Appeals to be applied in a situation such as this, which is
i one of first impression. 1!
1
1 Venturing: onto this unfamiliar and uncongenial groun
the Court has in public hearings and in the secret he_arings
ii
Appendix C
267
that the Court’s directive necessarily required sought to
carry out its responsibilities.
Voluminous material was submitted in affidavit
form, testimony was taken from several witnesses at the
session starting at 8:00 a. m. today, and the parties were
heard in brief oral argument at conclusion.
The Court finds that the documents in question include
material in the public domain and other material that
was Top Secret when written long ago but not clearly shol,;n to
he such at the present time. The Court further finds that
publicationof the documents in the large may interfere Kith
the ability of the Department of State in the conduct of
delicate negotiations noH in process or contemplated for the
future, whether these negotiations involve Southeast Asia
or other areas of the world. This is not so much because of
anything in the documents, themselves, but rather results fron
\: the fact that it will appear to foreign governments that this
I
i! Government is unable to prevent publication of actual Governme ·t
II
11 communications when a leak such as ihe present one occurs. i:
11 i’-tany of these governments have different systems than our own
and can do this; and they censor,
The problem raised in this instarice is partic…ilarly
\! acute because two major papers are involved and the volume of I! 1[ the material leaked is great.
There has been some adverse reaction in certain
Appendix C
Paae2
268
foreign countries, the degree and significance of which cannot:
now be measured even by opinion testimony. No contemporary
troop movements are involved, nor is there any compromising
of our intelligence.
On the other hand, it is apparent from detailed
affidavits that officials make use of classified data on
frequent occasions in dealing with the press and that this
situation is not unusual except as to the volume of papers
involved.
The Court of Appeals appar ently felt that the
question of irreparable injury should be considered; that is,
,
1
that the Court should weigh the equities of the situation in
the traditional manner; and this Court has attempted to do so.
1.
I I
I
I:
i’.
ji
I
This requires a word with respect to the classification process.
There is no showing that in this instance there was
any effort made by the Government to distinguish Top Secret
and other material, to separate the two, or, indeed, to maJ..:e
any effort once the publication was completed, to determine
the degree, the nature or extent of the sensitivity whict stil
existed in 1968 or for that mat:Er exists at the present time.
At the close of the argument today, the Government
i stated it was engaged in declassifying some of the material
and requested time to complete this process with the thought
that permission would then perhaps be given to the Post to
I Appendix C
Pa2:e 3
269
publish what is ultimately declassified out of the whole.
The volumes stretch back over a period well into
the early· forties. The criteria of Top Secret are cl ear;
and the Government has not presented, as it must on its
burden, any showing that the documents at the present time
and in the present context are Top Secret.
Ther e is no proof that there will be a definite
break in diplomatic relations, that there will be an armed
attack on the United States, that there will be an armed
attack on an ally, that there will be a war, that there
will be a compromise of military or defense plans, a com-
I promise of intellieence operations, or a compromise of
‘1
scientific and technological materials.
The Government has made a responsible and earnest
appeal demonstrating the many ways in which its efforts
particularly in diplomacy will not only be emharrasscd
I•I but compromised or perhaps thwarted. In considering irrepara ilc
:i
j; injury to the United States, however, it should be obvious
”
ij
11 that the interests of the Government are inseparable from
,,
thep.1blic interest. These are one and the same and the
public interest makes an insistent plea for publication.
This was represented not only in the eloquent statements of
Congressman Eckhart, which the Court found persuasive,
speaking on behalf of amicus curiae, but it also is apparent
from the context in which this situation presents itself.
Appendix C
Pa?e 4
!!
;,
;1 I
!!
ii
‘i
270
Equity deals with realities and not solely with
abstract principles. A wide-ranging, long-standing and
often vitriolic debate has been taking place in this country
over the Vietnam conflict. The controversy transcends
party lines and there are many shades and differences of
opinion. Thus the publications enjoined by the Court of
Appeals concern an issue of paramount public importance,
affecting many aspects of Governmental action and existing
and future policy.
There has, moreover, been a growing antagonirns
between the Executive branch and certain elements of the
press. This has seriou$ implications for the stability of
our denocracy. Censorship at this stage raises doubts and
rumors that feed the fires of distrust.
Our democracy depends for its future on the informe
will of the majority, and it is the purpose and effect of
the First Amendment to expose to the public the maximum
amount of information on which sound judgment can be made
by the electorate. The equities favor disclosure, not
suppression. No one can measure the effects of even a
momentary delay.
Given these circumstances, the Co?rt finds it is
still in the same position that it was in When it denied
the request for a temporary restraining order. There is
presented the raw question of a conflict between the
Appendix C
Pae-e 5
271
First Amendment and the genuine deep concern of responsible
officials in our Government as to implications both immediatel
and long-range of this breach of confidentiality. II In interpreting the First Amendment, there is
no basis upon which the Court may adjust it to accomodate I
the desires of foreign governments dealing with our diplomats1,
nor does the First Amendment guarantee our diplomats that
they can be protected against either responsible or irresponsible
reporting.
The First Amendment in this case prohibits a prior I
restraint on publication. Accordingly, on the issue of like!•
success on the merits which is presented in any preliminary
injunction application, the Court has concluded there is
no likelihood of success.
There is not here a showing of an immediate grave
threat to the national security which in close and narroh·ly·
1/ defined circumstances would justify prior restraint on pub- !j ,,
ii
II
,I!’
·1
lication.
The Government has failed to meet its burden and
without that burdenbeing met, the First Amendment remains
supreme. Any effort to preserve the status quo under these
circumstances would be contrary to the public interest.
Accordingly, the Government’s prayer for a preliminary
injunction is denied.
I have signed an order to that effect in order to
Appendix C
Page6
!I
II
‘ .,
I, ,,
27 2
fac.::..,:;:t.ate appeal by the United States. I will state nor.·
on __ ,..= record that the Court will not under any circumstances,
gra:c::::: a stay.
You may file this.
I wish to again thank counse.1 in the case.
MR, MARONEY: Would Your Honor grant us a stay
of ?? order dissolving the restraining order to pen.ii t
us -::=Ifle to go to the Court of Appeals?
THE COURT: I will not grant any stay. You have
t\se:-:–::-r – minutes. I am sure they are waiting for you upstairs.
(\’lhereuponat 4:40 p.m., the hearing was concluded. )f
CERTIFICATE OF COURT REPORTER
I, Ida Z. Natson, certify that I reported the
pro•.:::;:-“2dings in the ahove-entitled cause on June 21, 1971,
anC. -:..-;.at the foregoing Pages 266 to 272, inclusive, consti-::..:.
·:e the official transcript of the Court’s Ruling.
Appendix C
Page 7
I
I
. -·-
THE WHITE HOUSE
WASHINGTON
July 10, 1974
Dear Judge Gesell:
Re: United States of America
V8
John Erlichman et al
CC74-116
As a matter of discretion, and in the interest of
justice, I have decided to r espond to the
interrogatories dated June 9, 1974, propounded
to me in the above-captioned matter, My sworn
response is enclosed.
Sincerely,
,,,/)_ ,,, IJ/’1-4 :c — ?- f'”‘-r
Honorable Gerhard Gesell
U.S. District Court
Constitution A venue at John
Marshall Place
Washington, D. C.
Appendix D
Appendix D
Page2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTR.iCT OF COLUMBIA
UNITED STATES OF AMERICA )
)
v. )
)
JOHN D. EHRLICHMA.N, ET AL. )
Criminal No. 74-116
ANSWERS OF PRESIDENT
TO INTERROGATORIES
The President answers the interrogatories as follows:
In response to Ulterrogatory (1):
I authorized the Special Investigations Unit to prevent
and halt leaks of vital security information, and to
prepare an accurate history of certain critical nationalsecurity
matters which occurred under prior Administrations.
In response to interrogatory (Z):
I instructed John D. Ehdichman to exercise gene:ral
supervisory control over the Special Investigations
Unit.
In response to interrogatoi:-ies (3) and (4):
l do not have a precise recollection of instructions
given to Mr. Ehrlichman with respect to any speci!ic
agencies. In substance, however, I do recall repeatedly
emphasizing to Mr. Ehrlichman that this was a highly
classified matter which could be discussed with othets
these instructions because I believed that the Unit
could not function effectively iJ_its exist’ence or the
nature and details of its Nork were compromisc!d hr
times after the Special Investigations Unit was formed,
which was shortly after June 13, 19il.
!
. ,
.
• •
In response to interrogatorr (5):
March 17, 1973.
In response to interrogatory (6):
No.
Subscribed and :,wo:rn to before me
this /0 t!
day of July, 1974
,;,., ti., ‘4 ‘I1/1 ?, f) <!.. .
. twlJ?
Notary Public
My commi!ISion expires: ?/{, /f?S’
Appendix D
Page 3
,
JS: 1-12
IN THE UNITED STATES DISTRICT COURT
FOR TIIE DISTRICT Of COLUf-lBIA
– – – – – – – – – · – – – :
UNITED STATES OF AMERICA
•
v. Criminal No. 74-116
JOHN D. EHRLICI·IMAN,
G. GORDON LIDDY,
BERNARD L. BARKER,
EUGENIO R. MARTINEZ,
Defendants·
– – – – – – – – – – – – – – t
Washington, D. C.
July 31, 1974
The above-entitled cause came on for Sentencing of
Defendants before the f!ONORADLE GERHARD A. GESELL,
United States District Judge, at 9:30 a.m.
APPEARANCES:
WILLIAM II. MERRILL,
Associate Special Prosecutor,
CHARLES R. BREYER,
PHILIP J. BAKES,
Assistant Special Prosecutors,
PHILIP HEYMANN,
Consultant to Special Prosecutor,
Counsel for Government
WILLIAM S. FRATES, Esq.,
ANDREW C. HALL, Esq.,
Miami, Florida,
SPENCER H. BOYER, Esq.,
HENRY H. JONES, Esq.,
Washington, D. C,
Counsel for Defendant Ehrlichman
Appendix E
IDA Z. WATSON
Official Reporter
U. S. Court House
Washington, D. C.
COPY FOR:
JUDGE GE?ELL
,
APPEARANCES:
PETER L. MAROULIS, Esq. ,
Poughkeepsie, New York1
CHARLES F. BARKER, Esq.,
Washington, D. C.,
Counsel for Defendant Liddy
DANIELE. SCHULTZ, Esq.,
•
2
Counsel for Defendants Barker and Martinez
Appendix E
Page2
3
P R O C E E D I N G S
THE COURT: Before proceeding with the sentences
scheduled for this morning, I w·ish to state the Court has instructed
the Marshals that during these proceedings no one is
to enter or leave the courtroom and following the completion
of these proceedings there is to be no contact in this courtroo
between any members of the press and any attorney or any
Defendant.
I also want to say now, before talking to any of the
Defendants, I apprise each of you that you have a right to
appeal. You must notice your appeal within ten days. If you
cannot afford an attorney, an attorney will be appointed for
you to prosecute the appeal.
I propose first to deal with the sentences in the
order the Defendants are listed in the indictment; and I will
then take up as appropriate with each Defendant the question of
bond pending appeal,
You may come forward, Mr. Ehrlichman, with your
counsel.
(Whereupon Defendant Ehrlichman and Mr. Frates approached
the lectern.)
THE COURT: Mr. Frates, is there anything you wish to
say to the Court before sentence is imposed on Mr, Ehrlichman?
MR. FRATES: No, Your Honor, there is not. Thank you,
sir.
Appendix E
Page 3
THE COURT: Mr. Ehrlichman, is there anything you
wish to say to the Court before sentence is imposed?
DEFENDANT EHRLICm,IAN: May it please the Court, I
believe that I am the only one in this room who really knows
whether I am guilty or not guilty of the charges. Your Honor,
I am innocent of each and ever y one of these charges i nvolved
in this case.
THE COURT: Mr. Ehrlichman, the Court, of course,
accepts the verdict of the jury.
You are a lawyer and among the Defendants you held
the highest position of public trust in our Government and
the major responsibility for this shameful episode in the
history of our country.
The Constitution was ignored; the rights of citizens
abused; the impor tant Ellsberg Federal prosecution was tainted
and had to be dismissed by Judge Byrne; falsehoods and concealment
were employed to thwart the lawful inquiry into this
abuse; and the jury has found that all of this occurred with
your approval and your affirmative par ticipation.
The Court has put out of the Court’s mind all accusations
concerning you in Watergate matters and all other pending
indictments; and after giving heavy weight to the many affirmative
aspects of your life, without which the Court would impose
a far more severe sentence, you are sentenced to twenty months
Appendix£
Page4 to five years on each count, the counts to run concurrently,
;
s·
That is the sentence of the Court.
Mr. Liddy, if you will come forward with your
attorney.
(l’nlereupon Defendant Liddy and Mr. Maroulis approache
the lectern.)
THE COURT: Is there anything you wish to say,
Mr. Maroulis, before sentence is imposed on Mr. Liddy?
MR, MAROULIS: May it please the Court, I should like
to insure that the Court is accurat.ely informed concerning
Mr. Liddy’s present situation. I say that because there have
been repeated reports in the media which are misleading to the
effect that Mr. Liddy is currently under sentence of six years
and eight months.
I would like to hand to the Court a copy of the
official sentence computation of the Federal Bureau of Prisons.
It reflects accurately that Mr. Liddy is currently under
sentence of twenty years and a $40,000 fine,
THE COURT: That is the Court’s understanding.
MR. MAROULIS: Yes, sir.
(Whereupon the document was submitted to the Court.)
MR. MAROULIS: The document reflects — and I direct
the Court’s attention to the bottom of the page — that the
sentence is inoperative until October 3 of this year, The
net effect of that is to adjust the dates listed by the addition
Appendix E – of one and a half years, which happens to be exactly the time
Page 5
Mr. Liddy has served in prison, as he stands here.
Mr. Liddy will not be eligible for parole, much less
receive it, until April 1, 1981, at which time he will have
served eight years and two months in prison.
Thank you, sir.
THE COURT: Is there anything you wish to say to me,
Mr. Liddy, before sentence is imposed?
DEFENDANT LIDDY: Nothing at all, Your Honor.
THE COURT: Mr. Liddy, as the Court views the evidenc
a middle level degree of responsibility in this case was
yours. Your involvement, of course, remains unexplained.
The Court is well aware that you are an experienced
trial lawyer. The evidence demonstrates your violation was
deliberate and your offense is clear.
You are now serving a civil commitment imposed by
Judge Sirica. The Court is going to impose a sentence of oneto-
three years, to run concurrently with your sentence in the
earlier criminal matter tried before Judge Sirica; and your
sentence is ·to commence on October 3 of this year or such
earlier date, in the event that civil commitment is in any
manner modified or set aside.
The Court is very concerned that you are in the
D. C. Jail, which I don’t think is a fit place for you or
anyone else to be. I cannot affect the civil commitment order
Appendix E
P?P-t>: n
of Judge Sirica; but I strongly recommend that as soon as
you start serving this sentence, concurrently or otherwise
with Judge Sirica’s sentence, depending on how that comes out
on appeal, that you be committed to the Lewisburg Federal
Penitentiary.
That is the sentence of the Court.
Now I think Mr. Barker and Mr. Martinez. can come up
together with you, Mr. Schultz.
MR, SCHULTZ: Yes, sir,
(Whereupon Defendant Barker and Defendant Martinez
and Mr. Schultz approached the lectern.)
THE COURT: Is there anything, Mr. Schultz, you wish
to say before sentence is imposed on each of these men?
MR. SCHULTZ: Just briefly, Your Honor.
In January of this year Mr. Barker was released from
jail after spending twelve and a half months incarcerated in
connection with his eightee1i-month-to-five-year sentence imposed
in the original Watergate case. If we lose the appeal that is
pending now, he will return to jail for another five and a half
months before he would become eligible for parole.
In January of this year, Mr. Martinez also had the
.ability to be released by the Court of Appeals on his personal
recognizance pending the appeal4 At the same time the
Parole Board had set his parole date, as he had become eligible
Appendix E after a sentence of one-to-four years and had served his year,
Page?
•
8
I had lengthy discussions with Mr. Martinez, because
there were two months to go before the parole date; and the
conclusion of those discussions was that Mr. Ma rtinez continued
to want to remain in jail for that additional two
months, because he did not want to have to come out and worry
about going back in. He thought it would be better for him to
finish out his time than to have to worry about having his
life disrupted in returning to jail.
He came out on March 7 of 1974 and on the same day
he was indicted again in connection with this case.
I have represented Mr. Barker and Mr. Martinez for
eighteen months. I deeply believe that they have been punished
enough. The reasons why I believe that I have stated during
the course of this trial. The facts on which I base that by
and large have come out during the course of this trial.
Thank you, Your Honor.
THE COURT: Mr. Barker, is there anything you want to
say to me before sentence is imposed?
DEFENDANT BARKER: No, Your Honor.
THE COURT: Mr. Martinez?
DEFENDANT MARTINEZ: Yes’ Your Honor.
Really, this is not the place in which I had decided
to be when I became m. American citizen. It was never in my
mind to do any wrongdoing.
Appendix E
Page 8
‘
I believe if I had been in front of this Court, what
we did in this case, which h?ppened prior, for which I was
co nvicted after, the same people who brought us to this charge
took us, after nine months, to the other place. They were not
apprehended or they came back in the same condition. They do
not represent to us any other change in attitude or purpose or
motivation.
If I have committed an offense, that it looks like
I did according to the conviction of the thing, I feel sorry;
but my motivation was not to become a criminal or an offender.
My guilt, I tried to find out in my conscience, with
my family, is to have trust or to have faith in those people
who were running this country. The same ones who have had the
trust of the people of this country,
I never thought that to carry out orders, as you
have found out in Court, that came out from the White House·
could lead me into becoming a criminal, Your Honor. My motivation
have never been to be a criminal.
It is nothing new: We went to the Bay of Pigs.
Cubans have died in the Congo. They have been called
mercenaries, They are not. They have died in Vietnam, And
now we are facing in Washington a similar case, Your Honor,
If I have done something wrong, I hope that in your
mind at least, if I did it not according with the law, you do
Appendix E
Page9
Appendix E
Page 10
10
not think that my motivation or my intention are crimi nal.
I have became an American citizen about two years,
a year prior to my conviction. Never was it my intention to
become a criminal or a felon, Your Honor.
That is all.
THE COURT: I want to say something to each of you
to give you the view of the Court.
Without giving the matter adequate thought, it ap•
pears to the Court that you contributed to illegal activity
by our Government which in many ways was typical of the very
regime you each so strenuously and courageously opposed in
Cuba.
As you both should well know, it is impossible to
preserve freedom anywhere when zealots take over and the rule
of law is ignored.
You have never sought to conceal your minor, non•
policy.roles. You were duped by high Government officials.
Your good names have been tarnished by your impulsive, mis?
guided conduct. You have each already served time for similar
conduct in a related matter.
The Court feels that you have been adequately punishe
The Court will suspend sentence and place each of you on
probation for a period of three years.
Now, I want to say on the matter of bond, while you
are both before me, that you, of .course, have your right to
11
appeal. If you choose to serve your probation during the
pendency of the appeal which is what the Court would recommend
to you, though it is your choice and.your choice alone
to make — it would be the Court’s purpose to transfer the
question of probation supervision to the Miami probation office
where you both live, and where you can proceed pending the
appeal.
DEFENDANT MARTINEZ: Thank you, Your Honor.
DEFENDANT BARKER: Thank you.
THE COURT: If you decide not to do so, Mr. Schultz
can so advise the probation office later today or tomorrow.
The thought I would then have is that you would remain on
your personal recognizance under the present arrangements we
have with respect to )OUT bond, if you choose not to go forward
and serve your probation pending the appeal.
DEFENDfJl!T o!ARTINEZ: Thank you, Your Honor.
MR. SCHULTZ: Thank you very much, Your Honor.
DEFENDANT BARKER: Thank you.
THE COURT: Now, Mr. Frates, as far as },.·lr. Ehrlichman 1
bond is concerned, I am sure there is no objection from the
United States. Mr. Ehrlichman will be continued on the same
bond he has been on, pending appeal, with the understanding, of
course, that he will report to you or directly to the Bail
Agency here any change in address if he moves from the address
Appendix E
Page 11
12
we now have as to his residence.
MR. FRATES: Thank you, sir, We appreciate that.
THE COURT: Return of Court.
(Whereupon at 9:50 a,m,, the proceedings were
concluded. J
CERTIFICATE OF COURT REPORTER
I, Ida Z. Watson, certify that I reported the proceed
ings in the above-entitled cause on July 31, 1974, and that
the foregoing Pages 1 to 12, inclusive, constitute the official
transcript.
Appendix E
Page 12
rCfhambee-sto Cham11?:rs
@ Federal Judicial Center ____ _
November 27, 1989 Vol 7, No. 3 Chamoers to Chambers ,s provided to advise Judges ot
techniques end procedures 1ound he1plul by oiner Judges.
HANDLING NEWS MEDIA ARRANGEMENTS
DURING HIGH VISIBILITY TRIALS
Items for publ•cat,on are 1nit1ahy prepared by and rev,ewed
by federal 1udges Publ1cat1on signifies that lhe Genier
regards these contrrbut,ons as resoons1b1e ana vaiuable
They sriould not be considered a recommendat,on 01 othc,a1
policy o! the Center on matters ot po11cy tile Federar Jue11c1a,
Center speaKs on,y through its Board
Judge Gerhard A. Gesell (D.D.C.) recently presided over a criminal trial that attracted
widespread local and national news media coverage. We asked Judge Gesell to describe some of the
techn.iqUes he used to permit media access but avoid disruption. His descriptinn follows.
A recent case that fell my wayl was obviously going to be one of those occasional very high
visibility criminal trials preceded by extensive pretrial proceedings that would attract the full weight of
dai1y coverage by local and all major national news organizations. The case also involved a large
volume of classified material, raising other problems of access. Drawing on lessons learned during the
Watergate and other nationally publicized cases, we developed procedures to assure maximum press
access and avoid expected disruption of the proceedings by a “full court press.” The following
arrangements worked fairly well.
First, we set up the usual code-a-phone system, immediately recording on the assigned number
each pretrial and trial development and all announcements of future scheduling as dates were set The
press and members of the public were encouraged to telephone the code-a-phone for information.
But, of course, this arrangement met only some of the problems. Following my normal practice, I
declined all picture taking, television panels, and interview requests. Yet there were bound to be some
press matters that required contact with the court, as, indeed, there were. Seating for the courtroom
immediately became an acute problem of vital interest to the press as well as the court’s administrative
staff.
I had refused to go to the larger ceremonial courtroom because of the circus atmosphere it might
create and other difficulties. My regular courtroom seats 100 behind the rail. Approximately 75 different
print and TV news organizations, foreign and domestic, would be covering every development, day to
day, through what promised to be extensive pretrial proceedings and trial. Other members of the press
anticipated dropping in from time to time. Some news organizations worked in relays, some needed room
for sketch artists. Apart from the media, there was an enormous demand for seats from all quarters
competing for space with the press. We needed space for the public, for the defendant’s family, for
families of the lawyers on both sides, for counsel advising witnesses, for court personnel interested in the
proceedings, for security and classification specialists, for VIPs, and others. When push came to shove,
only 45 seats at most could be set aside for the press. The court was ill-equipped t.o a.11ocate these seats,
given the large press interest, and, of course, access to the courtroom was vital, considering the lack of any
electronic coverage which could be viewed or heard elsewhere.
1U.S. y Poindexter, North, Secord and Hakim, Criminal No.·aa-so.
Appendix F
c.?amoers 10 Chaml)ers ,s prov,ded lor 1he ,nfo•ma11on ol leoe,a· 1uages on,y 11 snou,d no! oe c,teo e,o,e, ,n op,n,ons o, Otherw,se
2
While courthouse personnel could and did handle other demands for space, allocating press seats
involved an expertise no one at the courthouse had. I designated a senior, well-respected member of the
press to act as liaison between the court and aU branches of the media. He had covered other high visibility
criminal cases for a major TV network and understood the needs of the press. A notice was put out on the
city wire service notifying news agencies that they could apply for seats by writing to a designated court
official. The name and office telephone number of the liaison representative was made available so that
he-not the court-would receive questions and complaints.
I made it clear that the press could not sit beyond the bar of the courtroom or attempt to interview
anyone in the courtroom during recess or otherwise. Passes for the tria1, entit1ing the holder to sit in on e
of the press rows, were assigned by the liaison representative without involvement of the court. Applicants
other than the major newspapers, networks, and news services were put in pools sharing a single pass.
Once this was arranged, courthouse administrative personnel made certain the press passes were being
used and that each pooled seat was rotated properly.
Several passes were cance11ed after the news organizations to which they were issued failed to use
them at least half of the time. Forfeited passes went to the news organizations next in line on a waiting list
compiled by date of application. Reporters without permanent passes were permitted to form a special l ine
and were given any press seats not occupied within 20 minutes of the start of the morning or afternoon
session. Most of the reporters were accommodated. The first row was reserved for sketch artists. Wire
service reporters, who frequently must leave to file, were given aisle seats near the rear to minimize
distraction.
The liaison representative also assisted in another significant way. Through him I learned of
press needs and problems anticipated or unexpected and was able to satisfy many concerns. He was
designated to pick up copies of exhibits from the courtroom clerk and to arrange for their duplication on a
photocopy machine rented by the pressroom regulars. The liaison representative also arranged a rotat ing
pool of the television stations to make videotape copies of photographic exhibits. If the arrangements made
for assuring availability of copies of exhibits, orders and memoranda, or names of jurors chosen, etc.,
happened to break down in some respect, the difficulties were brought t.o the court’s attention by the liaison
representative and were ironed out where possible, or explained. The reporters regularly assign ed to the
courthouse had no special privileges as far as the coverage of the case was concerned.
Because of the large volume of classified material involved in the case and the consequent need
for closing the courtroo m at various times during pretrial and for nonjury matters during trial, many
novel problems of media access developed. Techniques for promptly supplying as much material from
closed sessions as pos sible to the press were put in place in consultation with the liaison representative and
court personnel
In a case of this character, the press needs clea r-cut factual answers to reasonable questions
concerning procedures, timing of decisions on pending motions, schedule, and the like. Camera crews
and other personnel outside the courthouse are involved. Reasonable concerns must be satisfied when
possible. What the press writes is its business and not the court’s, but the process flows more smoothly if
purely neutral factual information can be made available to all merribers of the press in the same form at
the same time.
Under the procedures established by the court, reporters knew they could funnel relevant questions
through the liaison representative. He gathered the questions in the pressroom after each morning and
afternoon session, eliminating duplicative and ove rlapping inquiries. The boiled-down list, usually two
or three questions, was telephoned to chambers, and appro priate responses provided-often immediately,
but never more than an hour or two later-to be relayed to reporters in the pressroom on a non-attribution
Appendix F
Page2
3
basis. On some occa sions, the court believed it was necessary and useful to inform counsel of the
questions received and the answers the court proposed to give.
These procedures were established as th e sole means of communication between the press corps
and the court. And they worked. The press knew that the court itself was involved and that there was no
need i ndividual1y to try to get the infor mation from courthouse personnel or trial participants. Several
times the court was able to use the liaison apparatus to relay concerns to the press about its activities, and to
enlist its understanding and cooperation.
It is difficult to convey the benefits of such an arrangement unless one has experienced the
ma ssive attention one of these high visibility criminal cases can gen erate. The story of the trial becomes
dai1y grist for the pre ss, even if there is nothing to report. Without clear, fair rules and established lines
of communication, the entire courthouse and the chambers of the trial judge come under siege: court
personnel are distracted, and it is difficult to concentrate on the work at hand as re porters seek something
to write about or talk about, running down the wildest rumors. When rules and procedures are dear the
press bene fit s. As long as all are treated equally, matters move forward more responsibly with less
confusion and greater accuracy.
In this instance the procedures worked well. My home telephone is listed, but I never received
calls at home from the press. There were no newspape r personnel seeking access to chambers, and it was
possible to concentrate on the judicial work at hand. Of course, designated administrative and clerical
personnel and the security people were stHI extremely busy, but by centralizing all inquiries through the
liaison representative their task was considerably lightened. Most of the problems that arose would have
required the clerk of court or one of his deputies to check with the court, in any event; direct access
hastened and simplified the process. Whenever inquiries touched on the evidence or the merits they were
ignored. The press wrote and spoke as they chose.
• • •
As announced earlier this year, Chambers to Chambers is devoting space on a trial basis for
judges to share innovative solutions to problems and ideas for improving case management and court
operations. Judge H. Lee Sarokin (D. N.J.J, Judge Murray Schwartz (D. Del.), and Judge David Dowd
(N.D. Oh.) will review contributions from judges and periodically forward materials to the Center for
publication. Please send contributions for this “Innovations” column to Judge Sarokin, U.S. Post Office
& Courthouse, Post Office Box 419, Newark, NJ 07102.
Appendix F
Page 3
THE STATUTE OF LIBERTY JULY 3, 1986
NATURALIZATION PROCEEDING
Once a month our Court holds special naturalization
proceedings to swear in about 50 or more new citizens. Unlike
some other neighboring United States District Courts, our
proceedings are bit more elaborate. There is a special speaker
chosen by the Bar Association, the Marine Color Guard advances
the Colors, the presiding Judge makes some remarks, and there is
a coffee reception afterwards under the auspices of the Daughters
of the American Revolution and other patriotic groups. It is
simple but impressive. On occasion we have held these special
proceedings at the Archives in conjunction with anniversaries of
historical events. Once when I presided, Ross Perot gave a very
moving talk, and all four pages of the Constitution and the Magna
Carta were on display.
1986 was the year to celebrate the one hundredth
anniversary of the Statute of Liberty and elaborate festivities
were scheduled in New York City stretching over several days
during the July 4th holiday, with everything from the magnificent
tall ships to Elvis Pressley “look-alikes,” Since I happened to
be the Motions Judge in e arly July” I became unexpectedly
embroiled in the· unusual series of events summarized below.
It all started with a March 12, 1986, letter from the
Immigration and Naturalization Service of the Department of
Justice, the body responsible nationwide for processing
applications for citizenship, whose duty it is to make certain
that all technical formalities have been satisfied. The letter
Appendix G
advised that on July 3rd there would be a national swearing-in
ceremony to be broadcast by ABC television from Ellis Island,
with similar judicial ceremonies tied in by satellite from Los
Angeles; St, Louis: Washington, D. C,1 Miami; Independence,
Missouri: Boston and Philadelphia. The letter stated that “The
Chief Justice of the Supreme Court is scheduled to swear in
applicants at each hearing via the televised hookup.” “The TV
production will be in good taste and will respect the d ignity of
court proceedings. President Reagan and the Chief Justice would
not be involved h ad they not exacted such a promise from Wolper
[the producer].”
We heard that as many as 15,000 new citizens would be
taking the oath from the Chief Justice. It was suggested we hold
our normal full naturalization ceremony on the steps of the
Jeff erson Memorial and that ABC would take shots of our ceremony
during the televised portion emanating from New York, This
seemed like a good idea, considering the assurances and high
sponsorship, but details were lacking and many practical
questions that arose could not be answered when we asked
questions,
Unfortu nately, there was nobody in charge. Wolper, a
Hollywood producer, was in charge, but all detailed arrangements
w ere in the hands of ABC. Uncertainties continued. Finally a
meeting was set up at the Jef ferson Memorial. I went with a
Deputy u. s. Marshal and court personnel. Park Service,
Natu ralization, and Bar Association people were on hand. We were
told the program should be so arranged that the Chief Justice
would give the oath by TV monitor precisely at 9:07 p.m., but no
Appendix G
Page2
thought had been given to the formal court proceedings that, by
law, had to precede this event. After much discussion the
various functionaries took heed of this fact and tentative
arrangements were made. We needed at least 125 chairs, tables,
parking spaces, a rainy day alternative because there w as no
shelter, and it looked as though the normal tourist traffic could
not be held back. Still no one was in charge. With the aid of
the Park Service and the Bar Association, some of these gaps were
filled but the Naturalization and Immigration people offered no
help and we broke up with little nailed down.
I went off to Maine the middle of June for a week
thinking that everything might nonetheless fall into place. When
I returned I found that ABC had finally supplied more details
about its plans. Someone had told them the new citizens would
sing two songs after taking the oath — America the Beautiful and
This is My Country — and immediately after the oath was given by
the Chief Justice a commercial would be televised during the
t wo-and-one-half minute lull when the Chief Justice would fly by
helicopter from Ellis Island to join the President on Governor’s
Island. I was told that when the Court staff objected to the
songs, pointing out it would be dark and the group might not know
the words, ABC confidently had replied they would “dub in” sound
.,
and “pan” from a distance. In other words, they would fake it if
need be! It had further developed that the Chief Justice’s oath
would be purely symbolic and without legal effect because he
could only administer a binding oath to those in his immediate
presence on Ellis Island. I was very troubled.
Appendix G
Page 3
This all seemed most unfortunate. I couldn’t believe the
Chief Justice was aware of what was going on and I could not
allow show business gimmicks to take over the court proceedings.
I reported my information and concerns to the Chief Justice’s
personal staff and public relations people, made several calls,
but never heard a word. The Supreme Court was still in session,
the Chie f Justice had just resigned, and irnpeachmeht proceedings
involving a judge of another Circuit had arisen. These and other
matters naturally had higher priority. I simply couldn’t get
through.
After waiting a week I told Chief Judge Aubrey Robinson I
thought our participation should be dropped. A few telephone
calls indicted that some judges in other cities chosen to be
involved in the affair were becoming concerned and one had
already cancelled, saying “the Courts are not in the
entertainment business.”
We decided to cancel and I wrote the Immigration and
Naturalization Service saying I felt arrangements were not in
good taste, as promised,. and that we were not going along because
the Court proceedings were being turned into a pageant over which
I had no control. Because various newspaper reporters, rival
broadcasters and some members of the public had been asking
questions about ou”r- court’s program and some had planned to cover
or participate, we released the letter, without comment, to the
public and the other members of our Court.
The response was varied. ABC said it wouldn’t lose any
money, thus emphasizing its narrow focus. David Wolper, the
impresario who had directed and designed the Liberty Week-end,
Appendix G
Page4
however, was angry. He pleaded with me over the telephone but to
no avail. He was crude and vulgar. Soon the Commissioner of
Immigration and Naturalization, with his lawyer, met with Chief
Judge Aubrey Robinson and me for a full hour, putting on every
kind of persuasion, but we stood our ground. We assumed W olper
had agitated someone at the White House. False rumors floated
around that I had been disciplined by the Chief Justice and was
changing my mind and it was apparent that W olper was pulling
every string. This increased the publicity until this rather
simple decision became a national news event kicked off by a
front page story in the New York Times on June 28, 1986, headed
“Judge Citing Commercials, Drops TV Citizenship Oath.” Thia was
followed by another piece in July 4, 1986, headed “Judge Gesell
Has it His Way, Without TV.” The telephones rang off the hook. I
must have had a dozen requests for interviews on ta lk shows and
the press built things up in their usual fashi on.
I avoided getting involved in any way and turned to
arranging our own program for 4:00 p,m. on July 3, in the
Ceremonial Courtroom at the Courthouse. The Immigration and
Naturalization people remained unresponsive and our own people
had to write or telephone many prospective new citizens to be
sure all were aware of the change of plans for fear belated
written notices frOm Immigration and some of their half-hearted
calls might be insufficient.
Immediately I had my own TV problem. While the federal
courts have strict rules against TV or radio or photographers in
court, ceremonial occasions may nonetheless be opened to these
media in the discretion of the presiding judge. ABC had
Appendix G
Page 5
negotiated an exclusive with Wolper for Liberty Week-end and NBC
and CBS were mad. They asked to have their cameras at our
courthouse. Public TV and radio, Time Magazine and others also
wanted to cover. By this time there appeared to be considerable
interest in what a normal naturalization ceremony was like and I
thought if the public could see and hear what we were going to do
the contrast with the artificiality of New York would make a
point. Accordingly, I opened the proceedings to the media with
the following strictures.
(l} No commercials to interrupt proceedings would be
shown.
(2} Only one stationary TV camera would be allowed
-pooled coverage.
(3) No lights in eyes of audience or Court.
(4) Two still photographers to remain stationery and
pool pictures.
(5) One small radio microphone.
The press fully cooperated in every way. There was no
disturbance or intrusion. The 99 new citizens and many others
filled the Ceremonial Courtroom to capacity and all went
smoothly. After my remarks, ! I went down and shook hands with
some of the new citizens. To placate the still grumbling
Naturalization people I told the new citizens they could take
another symbolic oath from the Chief Justice on the Jefferson
Memorial steps at 9:00 p.m., but only twelve went. I didn’t.
lsee copy, attached,
Appendix G
Page6
This was our first experiment with full TV-radio mass
press coverage of a court proceeding and fortunately it went
well.
Our decision not to allow commercials in the midst of a
court proceeding struck an unexpected response. There were a
number of favorable editorials and wide press coverage. Members
of the public call chambers indicating strong approval, The mail
was very heavy — all favorable, A few samples are excerpted
below and give the tone of the unanimous reaction that came my
way. A judge is so used to hate mail that these often thoughtf ul
letters carried a double significance. In a small way, perhaps,
respect for the Federal Courts was enhanced.
Here are samples2 from letters received:
Just a word to let you know how much your highly
unusual (in these days) move was, and how much your
personal decision as a judge, h as done for many of us.
I’m sure there are many more of us than you will hear
from.
* * *
Thank you for understanding that becoming a naturalized
citizen of the United States is a decision made with much
thought and feeling.
Thank you for understanding that a landmark in my life
was not for the benefit of commercial television, jus? as
it should not have been in July, 1986.
* * •
To introduce commercialization into such ceremonies is
to reduce, if not destroy, the dignity and significance
of the naturalization process, and the office which you
hold.
• • •
2None of these excerpts are from letters written by friends or
acquaintances, although many in this category also wrote.
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I want to tell you how much I admire you for deciding
not to participate in a “spectacle.” As an immigrant
myself becoming a citizen is a wonderful special
spiritual experience – not to be commercialized.
Congratulations for your courage and integrity. It is
not easy to go against the ”tide. ”
• • •
My thanks to you for emphasizing the serious commitment
of citizenship by refusing to make it part of a
commercial entertainment. The dignity of the Court
should not be seen as part of the “fun.”
Many of us are grateful for your stand,
• • •
Please accept the gratitude of one citizen for your
action in refusing to participate in a lowering of the
dignity of the U.S. courts.
I hope, with modest expectation of fulfillment, that
your refusal to join in a televised, commercial-sponsored
administering of the oath to new citizens on July 3, that
this will be educational for some of our fellow
Americans. I fear the act may be lost in our national
hoopla. But better this than acquiescing in a demeaning
scene.
• • •
Please accept my deep thanks for you r wisdom, sobriety,
dignity and good taste in with drawing from the Statue of
Liberty gala in the manner that you did.
I am happy that there is someone like you, who refuses
to surrender our values to the show business managers of
our country.
• • •
Please accept my congratulations for your having
resisted the attempts to make your official duties a part
of the circus that will be televised next weekend.
* • •
I agree with you completely — a natur alization
ceremony is not commercial entertainment. Keep the
hucksters out of itl
• * •
Thank you for having the courage to speak out.
Appendix G
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• • •
Perhaps your welcome quiet exercise of judicial
prerogative will help reverse an ugly and destructive
trend, In any event, it was heartening and inspiring to
find someon e in public office willing to stand and say,
“No farther. ”
• • •
The quiet dignity of a court room is the proper place
to officially welcome our immigrant fr iends. A judge
whose solemn duty is to administer the oath should not be
discarded or replaced by a voice and picture on TV. New
citizens deserve personal attention not an Orwellian 1984
substitute.
• • •
May I congratulate you on the courage and the wisdom
you showed in refusing to make a naturalization
proceeding a part of a television show. You have shown
that even in this entrepreneurial age not everything is
to be measured by the bottom line.
* • *
we read of your refusal to participate in the July
Fourth parody of patriotism and your decision to swear in
the new citizens on July 3rd. We support your decision
with enthusiasm. This country stands to lose all of its
values to commercialism, Your stand helps to slow that
process.
• • *
It is heartening to know that one voice survives with
the courage to sp eak out against the nauseating
cheapening of the high standards on which our country was
based.
• * *
I applaud your decision to abstain from participation
in the cominercialization of the statute of liberty. I
only wish that there were more leaders of integrity and
taste.
• • *
My parents were immigrants who arrived in Boston years
ago. In their lifetime they instructed and were sponsors
for many “new citizens” in the Northampton/Hadley,
Massachusetts area. The induction of these people was a
solemn and most often moving occasion. It was done with
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dignity. I hope if they were alive today, they would be
saddened by the carnival atmosphere of today’s Liberty
celebration.
The fact that everything went so smoothly and many
possible mistakes were avoided was due to the interest and
dedicated work, under pressure, of LeeAnn Flynn and the
naturalization team in the Clerk’s Office.
October, 1986.
Gerhard A. Gesell
Appendix G
Page IO
Remarks at the Naturalization Ceremony
July 3, 1986, by
Gerhard A. Gesell
United States District Judge
This formal court proceeding is required by law. Congress
has for many years placed upon ·United· States District judges like
myself the pleasant responsibility to complete the process that
brings you into full citizenship. Every month naturalization
proceedings like this are held here and elsewhere throughout the
country under prescribed rules and procedures. It is traditional
for the presiding judge to make a few remarks at this point to
emphasize the significance of the oath you have just taken.
This nation has had a long-standing a nd continuing
willingness to welcome and accept men and women from all land$
who seek citizenship here. The Statute of Liberty being honored
in ceremonies today symbolizes that commitment. We have
liberalized uniform rules of naturalization, always recognizing,
as Chief Justice Marshall declared in 1824, that a naturalized
citizen becomes a member of the society, possessing all the
rights of the native citizen and standing in the view of the
Constitution on the footing of a native.” [Osborne, 22 u.s.
827.]
By accepting citizenship today you are now a part of a
great experiment ·in government which has relied heavily on the
talents and energies of its naturalized citizens. Indeed, if you
think about it a moment, you will realize we are a nation of
immigrants trying to make a unique experiment work — an
experiment whose ideals are so forcefully stated in the
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..
2
Declaration of In dep?ndence and embodied in our Constitution.
Our government is un1ike that existing anj’\’fhere else in the
world. Ours is not a government originating in takeover and
fraud; or one- ·imposed by designing individuals for their personal
advantage. Nor is this a country of military dictators,
hereditary rulers or one governed by a self-chosen rich elite who
control the destiny of t?e poor.
Our experiment in government has a system to assure that
the will of the people, not the will of its officials, shall
decide what is best for the public good. We seek to perfect a
society where those who live here have the right to be left
alone, to speak out for what they believe is best for the good of
the whole, and to worship as they choose. We want to live and
work in peace, free from molestation, subject to rules set out in
laws chosen by us as the most appropriate for our general
welfare. This was and is a new, r·adical and daring experiment.
Remember, this is a very young country. In many
countries of the world, people trace their heritage back hundre ds
of years to relatives who lived in the same town or village and
worked in the shadows o f the same a ncient church or buildings.
Not so here. This is a nation of immigrants, like yourselves,
and the children; grandchildren, and great-grandchildren of
immigrants who have preceded you. As recently as when my
grandfather came here from Germany, he went to the far West and
was wounded by an Indian arrow. The land was vast, our
Appendix G
Page 12
·-
3
population was relatively small, and the country was still
opening up.
As life has become more crowded and complex, our
–“• experi:ment in· government demands more than ever that each
citizen get involved in the process of government to assure that
it continues to serve the best interests of us all. This is your
high responsibility that comes With the privilege of citizenship.
Do not take our form of government for granted. It will prosper
only if those born into citizen?hip and those, like you, who are
sworn into citizenship, remain vigilant and participate to keep
our form of government working. It must not be allowed to wither
because the people for whom it was created simpl y don’t care
enough.
There are some who mistakenly believe that the civil
liberties guaranteed by our Constitution authorize them to impose
their own private views and moral standards upon everyone else.
These people are sometimes strident# excessively demanding and
well financed. They would interfere with religious beliefs and
practices of others, or dictate what we or our children can read,
or control intimate family affairs and other aspects of
individual personal lawful conduct. We should be wary of these
people and examine carefully what underlies their vehement
assertions. Some special interests may not always be as
concerned with our welfare as they purport to be. They may well
be peddling forms of bigotry and intolerance in disguise and, if
Appendix G
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4
so, they must be thwarted to assure that the basic principles
underlying our unique form of democracy are preserved.
We have moved ahead as a nation because we strive for
something better. This land of opportunity and promise-will not
continue to prosper if we become smug, self-satisfied and think
only of ourselves. We have not been willing to allow inequities
to continue simply because things are that way. We have in the
past worked to correct deep-rooted societal problems such as
poverty, racism and sex discrimination. These and other
problems, such as illiteracy, housing, unemployment, concerns for
the aged and drug addiction, continue to challenge ingenuity.
We must not give up, but continue to learn and improve,
using the talent and experience that people like yourselves bring
when they come into our citizenship from other lands.
others
In short, do not be willing to leave government to
parti cipate. Demand competence in your leaders. Ours
must be a vital, not a complacent, conforming, wholly
materialistic society.
You can help in some way. Seek out the good, shun the
bad. Vote, work, help others, be useful, obey the law, speak out
against intolerance, get involved. Use your minds, not your
fists. Your voice will be heard. If you do this your
citizenship will be especially valuable and will remain a
precious tool by which you can gain the good life you sought by
coming here and our radical experiment in government will
continue to flourish.
Appendix G
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