Thomas C. Green Interview 3

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ORAL HISTORY OF THOMAS C. GREEN
This interview was conducted on behalf of the Oral History Project of the Historical
Society of the District of Columbia Circuit. The interviewer is Judy Feigin and the interviewee
is Thomas C. Green. The interview took place at the D.C. office of Sidley Austin on May 30,
2024. This is the third interview.
MS. FEIGIN: It has been quite a while since the last two sessions.
MR. GREEN: Indeed.
MS. FEIGIN: And they were taken by someone else. So there are a few things I would
like to ask to add to some of the information that’s in there, if you don’t
mind going back over the old stuff.
MR. GREEN: Quite alright.
MS. FEIGIN: One of the first things I’m curious about, because you didn’t talk too much
about it, is your time in the Army. You’ve got to be one of the only
lawyers that served in the Artillery. I assume there were times that you
were facing danger and quite dramatic moments. I wonder if you can tell
us a little bit about that experience.
MR. GREEN: I previously described how I ended up in the Army and was commissioned
as an artillery officer and then how the Army let me go to law school, and
I have told the story about how the Army tried to convince me to join the
JAG Corps after I had been on duty for almost a year at Fort Leonard
Wood, Missouri. The price I paid for rejecting that offer was a flight to
Vietnam and orders to report to the First Air Cavalry Division in Vietnam.
I was sent to the First Air Cavalry Division and I was a forward observer
which means I went up in two-man helicopters with a pilot who flew over
enemy territory looking for targets. We would call those targets into the
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fire direction center. They would then shoot on those targets. That was
not an extraordinarily secure assignment but it was what I was trained to
do.
Not long into my tour I received what they call a battlefield
promotion to captain. I was then assigned to command an artillery battery.
I was just one of the fortunate. We were fired on every night by the North
Vietnamese — Vietcong. Just one of those things, my number didn’t come
up. I lived through it. One of the funny stories that’s not funny – – it’s
funny but it’s also tragic. Soon after I arrived in Vietnam the Jewish
holiday Rosh Hashanah came up. I’m like the only Jewish guy in the
entire artillery brigade. I knew it was Rosh Hashanah. One day there’s a
helicopter in the sky and it lands and it’s the commanding officer. He’s
looking for Lieutenant Green and I identify myself. He says, “Look, I see
here that you’re Jewish and there’s this holiday, Rosha, Rosha.” He
couldn’t really pronounce it so I helped him pronounce it. I’m not sure
how he knew it or that it was approaching at least. He said “You’re free to
go to those services if you want.”
MS. FEIGIN: So you hadn’t put in a request?
MR. GREEN: Oh no. I said where are the services? He said they’re in Nha Trang and I
said where’s Nha Trang? He said it’s down south of us and I said how do
you get there? He said just have one of the guys call in one of the
helicopters that’s moving south and hitchhike down there. You’ll get to
Nha Trang in time. That didn’t sound very easy either so I said no thank
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you, I’m fine. Then guilt started to wash over me [laughter] as I thought
about my mother lecturing me “You go to services like a good boy” and
this and that. And so finally I said all right, I’m going to go. I’ll give it a
try. So I did. I hitchhiked in helicopters and got to Nha Trang. It took me
a while to find the rabbi. There was one rabbi in probably all of Vietnam
and I remember services were in a tent. There must have been maybe 12
of us, that’s all. And then I hitchhiked back the same way in other
helicopters.
When I got back I discovered that my unit had been attacked while
I was gone. It suffered a mortar attack. There were a number of casualties
and there was actually a mortar round that went right through my tent. In
my tent there were two of us. The tent was dug into the ground with
sandbags around it. In my tent was my sleeping bag and the first
sergeant’s sleeping bag. He was severely wounded and medevacked out
of there and went ultimately back to the States. I never saw him again.
I don’t know what would have happened to me had I been there as
I was right next to him, but I wasn’t there. That’s just one of a number of
stories where I just seemed to have gotten lucky. I was often in convoys
and the convoy would be attacked and the attack would be at the front of
the convoy and on that day I was at the rear of the convoy. It’s just kind of
one episode after another. I made it through. I got very lucky. When I
got back and when the Vietnam Memorial was built I wrote a piece and
sent it to The Washington Post and they published it. It was short. It was
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about my feelings seeing the wall and having survived. I’ll try to get that
for you. [The piece is posted on the Historical Society for the D.C. Circuit
website as part of this oral history.]
MS. FEIGIN: What were your feelings?
MR. GREEN: Just how fortunate I had been. How serendipitous it is that I’m alive and
these 58,000 are dead. It could have so easily been the other way around.
It was just pure fate or whatever you want to attribute it to. There were a
million guys in Vietnam, maybe even a few more over the years. Fiftyeight thousand died, a huge number of people when you think about it.
There were, of course, many more wounded but most soldiers who went to
Vietnam were lucky like me and came home. Maybe not altogether
emotionally or mentally, but physically.
MS. FEIGIN: Do you think it changed you?
MR. GREEN: Well when you’re there, the only thing you think about is living, seeing the
sun come up the next day. That’s the only thing you think about. We
knew the war was unpopular. We knew that stuff was going on in the
United States. Not to any great extent, but we understood a little bit of
what was happening. But we weren’t in the mood to process that or even
think about it at the time. At the time it was just a raw instinct to survive
and stay alive. When I got home and afterwards, not immediately, but
certainly as the years progressed, I came to understand how senseless a
war that really was and how difficult it would have been to prevail in
Vietnam, assuming we should have prevailed.
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People would always ask me if I had been back to visit Vietnam. I
never wanted to go. Never ever, ever wanted to go. Finally, many years
later, I went with another guy and his wife who had served in Vietnam.
He was a friend of mine and we went together and there was no trace of
the war at all – just two museums, one in Saigon and one in Hanoi. But
with respect to every place else in Vietnam, every piece of battlefield
debris, every screw, every nut, every bolt was melted down and taken and
removed from the battlefield and used by them in some way so you see
nothing. There’s no battlefield markers, there’s no battlefield cemeteries,
there’s nothing. We had a guide and I asked him to take me up to Khe
Sanh. My artillery battalion was shooting for the marines in Khe Sanh,
and he said to me there’s nothing to see there. He said it’s a long, arduous
drive up there. No great roads or anything. And when you get there, he
said, there’s nothing to see. So I didn’t go.
I could talk about the war for hours and hours. I visited the
Vietnam Memorial once and I was overcome. It was really an emotional
moment. I’ve never gone back again. I certainly would not want any of
my sons to have to ever go off to war.
As far as being in the service, I would still say the service was a
very positive experience in my life. I was in the military at a time when
the military was really a melting pot. Young men — I never came across
women — young men from every walk of life, from every socio-economic
element in our society, unlike the volunteer service today. It’s interesting.
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I always thought that if we still had the draft we wouldn’t be in a lot of
conflicts or have so much social strife. But we don’t have the draft, and I
think it was a healthy experience. I was out in the field as a commanding
officer at 26 years old. I’ve got 122 men under my command and they all
look to me for advice and leadership and problem solving and everything
else. It was quite an experience. But I don’t dwell on it. I rarely talk
about it. I hardly ever talk about it and I guess somewhat deliberately. I
came back and I was able to resume my life. A lot of guys came back and
were unable to resume their life. They were damaged. Sadly damaged.
But I survived.
MS. FEIGIN: Thank you for sharing that. So when you came back, you talked in your
earlier interview about how you got your job at the U.S. Attorney’s Office
in part because you talked about this experience. But I’d like to learn more
about your life at the U.S. Attorney’s Office. You made some references
that maybe we can flesh out a bit. I know you did a bunch of high-profile
murder cases. Are there any you would like to share?
MR. GREEN: I didn’t do that many. I did a couple of murder cases where I was
conscripted. One of the cases I was asked to try involved a jewelry store.
There was a famous jewelry store around 14th and T in D.C. Back then
that was an African-American neighborhood and kind of a tough, rough
neighborhood. The jewelry store was called Mosby’s Jewelry Store and
two guys walked into that jewelry store and robbed it and in the process
shot Mrs. Mosby. Apparently she was a very well-respected and admired
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woman in that community. So there was a bit of an uproar. They
assigned two of us to try the case – me and Luke Moore.
Luke Moore was the U.S. Marshal here. I can’t remember whether
he was the Marshal after he was in the U.S. Attorney’s Office or before he
was in the U.S. Attorney’s Office. Then he became a Superior Court
Judge, a very prominent and well-respected guy. They wanted him in this
case for obvious reasons but he hadn’t tried that many cases. So they
wanted someone with him who had tried a number of cases. So we were
assigned that case.
MS. FEIGIN: When you say they wanted him for obvious reasons . . .
MR. GREEN: How should I put it? You’ve got a predominantly African-American jury.
MS. FEIGIN: So he was Black.
MR. GREEN: You have a wonderful and respected African-American victim. And Luke
was African-American and very well-known and respected in the
community. So every one of those jurors in the courtroom saw and said
wow, there’s Luke Moore. I am not sure they saw me. I don’t know
[laughter]. Anyway, we tried the case together and there were a few times
that Luke kind of got a little off track regarding permissible remarks in the
courtroom. Nothing unethical for certain, just a bit too exuberant. He just
would make a comment that a prudent prosecutor wouldn’t make probably
because he hadn’t been doing it for a long time. Then I would kind of
massage it over somehow. We prevailed in that case. I think that was
probably the most significant murder case I tried. I did try the D.C. 9.
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MS. FEIGIN: You mentioned that earlier but you didn’t explain what it was.
MR. GREEN: These were Vietnam war protestors — I think a Catholic priest or two and
maybe a nun and some others. This is after I came back and the war was
still going on and they were protesting the war quite vigorously. As part
of that protest one day, they gathered a group and they broke into the
offices of the Dow Chemical Company. Dow Chemical Company was the
maker of napalm which was used in Vietnam. The office was on the 9th
or 10th floor of an office building right in downtown. They went in and
ransacked the office on March 22, 1969 and threw a blood-like substance
around the office. They also threw furniture through the windows and the
glass plate fell ten stories and could have killed somebody.
They were prosecuted for destruction of property, obviously not
for protesting the war. The aggravating circumstance that the U.S.
Attorney felt warranted prosecution was the fact that they had been so
dismissive of the risk to people down below who were just walking along
the sidewalk. So the decision was made to prosecute.
The defendants were principally a group of Catholic nuns and
priests. There may have been one who was not ordained. Had they just
gone in there and ravaged the office it maybe would have been a
misdemeanor or whatever, but they decided to prosecute them for a felony
or a couple of felonies, and they needed a prosecutor. And so they’re
looking around for someone who had been in the service and there I was.
So they said you’re going to prosecute this case. I might have had some
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reservations about doing that but given what had happened as I’ve just
described, I didn’t feel that uncomfortable about it at all.
At trial they were appointed counsel, but most of them moved to
represent themselves. One of them was actually represented by Edward
Bennett Williams. He had been appointed to represent one of the
defendants.
Edward Bennett Williams had a young lawyer – a contemporary of
mine age-wise – named Bill McDaniels, who was Mr. Williams’ second, if
you will. The lawyers moved on behalf of the clients to allow the clients
to represent themselves. Judge John Pratt was not disposed to do that. He
was worried about disruptions to the trial and prejudice to the other
defendants from possibilities of loose conduct or lack of expertise and so
forth.
A hearing was held and he ultimately denied the request. It went
to trial and the courtroom was filled with young people who were
protesting the war. He allowed the defendants to give an opening
themselves but he kept counsel in the case. He let Edward Bennett
Williams out and Bill McDaniels took over the representation of that
client.
Judge Pratt – who I was always very fond of — was trying to keep
control of the courtroom. His apprehension was justified because in the
middle of the trial there was a pretty aggressive disruption with spectators
making remarks and standing up and screaming about the Vietnam War.
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It developed into a substantial altercation and the courtroom had to be
cleared. It was a mess. The marshals had to remove Judge Pratt very
quickly because some of the protesters either threw something or started to
approach the bench. I remember going to the front of the bench but I don’t
believe I got involved in any physical confrontation. Eventually we
reconvened.
The defendants also wanted to introduce the concept of jury
nullification. They wanted to argue that the jury was free to ignore the
instructions of the court and follow their conscience and acquit on that
basis. That was another one of the motions they made that was denied by
the judge. Anyway, they were convicted.
It went up on appeal. Their convictions were reversed for a new
trial on the grounds that they had an absolute right to defend themselves
absent some compelling counter-reason that was apparent at the trial. And
there being none when the motion was made, the appellate court
concluded that it had been error to deny them that right and they reversed.
Judge Bazelon, who was on the panel, wrote a concurring opinion
in which he actually suggested they should have been able to argue
nullification as well. But the other two judges did not buy into that. When
they were resentenced they were basically resentenced to time served.
The one thing I don’t have is the initial sentences.
MS. FEIGIN: I think they ranged. There was one that was four years, one that was six
years. Others were less.
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MR. GREEN: But they were resentenced I think for probation and community service
and that was the end of the case.
MS. FEIGIN: Were they retried?
MR. GREEN: They entered a plea.
MS. FEIGIN: In addition to all that, and that’s plenty to go on during a trial, I believe
that one of the defense lawyers, Phil Hirschkop, was held in contempt for
his conduct during the trial.
MR. GREEN: Yes. He was held in contempt but I think his contempt was put aside
eventually when all of us made it clear that we did not think his conduct
was sufficiently unattractive that it required a contempt citation. I think
Judge Pratt dissolved the contempt or rescinded it.
Hirschkop used to come to court dressed with a big peace
medallion hanging around his neck. Phil loved the cameras and Phil loved
the stage and he loved the arena and he loved to make a lot of noise. This
trial gave him an opportunity to do that. But the jury was unimpressed
with all that. They were not deliberating for a long time from what I can
recall.
I think had they taken a different tack at trial, and not tried to be so
aggressive in asserting the moral righteousness of their position, but tried
to explain a bit more calmly, they might have had more success. As a
prosecutor, my objective was simply to make the trial about the
destruction of property and the potential massive injury to innocent
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victims who were walking on the sidewalk, and not about the Vietnam
War.
MS. FEIGIN: I gather that the judge, in some effort to accommodate their request to selfrepresent, also let them testify without questioning by their counsel.
MR. GREEN: Yes. He gave them considerable license and allowed them to say what
they wanted to say on the stand. And I think that almost with every one of
them – probably with every one of them – I had no questions. No crossexamination because I wasn’t going to give them a chance to say it all
over again. Regardless of what I would ask them they would launch into
their preplanned platform. I wasn’t ready to do that. So I think I had
basically no questions for them, or if I did, it was “State your name again”
or something.
In court were the priests wearing their liturgical vestments?
No, I don’t think so.
MS. FEIGIN:
MR. GREEN:
MS. FEIGIN: So jury nullification having been an issue in this case, what is your
opinion on jury nullification?
MR. GREEN: First of all, you’re never going to get an instruction on jury nullification.
They wanted an instruction on jury nullification. I think every federal
district judge would be loath to agree to do that because it would be
directly contrary to the instruction that they’re supposed to follow the law
and so forth. But in your closing argument, if you give it some thought,
there are a number of ways to hint to the jury that they are free to decide
the case as they see fit. When you’re commenting on various witnesses
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and their testimony, you can tell the jury that they’re free to disbelieve this
witness or that witness and to disregard their testimony in its entirety
because of this or that. There are ways to get them to think they can do
whatever the hell they want to do. And they do. They don’t need to be
told. It’s kind of an instinctive reaction when you get in the jury room.
A lot of these instructions are so complicated that the jurors, even
after they ask to read them in the jury room, and reread them, they still
can’t totally comprehend them and exactly what they’re supposed to do.
And so they decide the case on the basis of their sense of fundamental
fairness. Right from wrong. Good from bad. That’s basically
nullification, or the concept of nullification, integrated into their
deliberations.
MS. FEIGIN: Just one more question about the case. You said Edward Bennett
Williams was replaced so he wasn’t your adversary in this case. But I
assume you must have had other dealings with him. He was one of the
giants of the era.
MR. GREEN: The interesting thing is that when I left the U.S. Attorney’s Office and
went to practice with David Bress, who had been the U.S. Attorney, Bress
was one of the great civil lawyers at the time. Edward Bennett Williams
was a great criminal trial lawyer and a great lawyer. They both were great
lawyers but they had their areas of concentration if you will. Bress and
Williams knew each other quite well and they had lunch together maybe
once every month-and-a-half or every two months. And Bress would take
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me along. Williams never brought anybody so there I was at the table
with Bress and Williams watching these two guys talk. And I got to know
Ed. I wasn’t one of his close personal friends or anything close to that but
I did get to know him.
I have a distinct recollection of sitting in his office. He had a
grand office on the corner of 17th and I. The whole building at that time
was given over to the offices of Williams & Connolly. And he was up on
one of the higher floors. He had a conference room attached to his office.
In his office he sat behind a huge horseshoe desk that was filled with a lot
of tchotchkes around the desk. Often he would say “Let’s go in the
conference room and sit in there and talk.” We’d go in the conference
room which adjoined his office — a sizeable conference room with a long
table — and the walls were just plastered with plaques and commendations
and you name it. Cartoons and everything. It was impressive, no doubt
about that.
We were in a couple of cases together because I have this distinct
recollection of going over to his office and talking about those cases and
so forth. There are just too many cases to remember the details, but he
was always very gracious and very nice to me. I value those moments that
I had with him, for sure.
Anyway, to get back to the U.S. Attorney’s Office, I had a great
time there because of my relationship with David Bress, the United States
Attorney. I got some great cases to try. Big bank robberies.
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MS. FEIGIN: Any in particular you want to discuss?
MR. GREEN: I can’t without getting into the nitty gritty of the law books and trying to
figure them out again because it’s so long ago. I think what’s just as
important about the cases I tried is the fact that I made friendships that
have survived through the years and they’ve been critically important to
me throughout my career.
When I left the U.S. Attorney’s office in 1970 there was hardly
anyone practicing on the defense side in white-collar cases. Bob Bennett
may have left shortly before me or shortly after me. He has now passed
away. Dick Hibey as well. But there were very few of us and I always
tell people we were on the front wave of this new practice area. I don’t
know what to chalk that up to — timing, good fortune, luck.
MS. FEIGIN: There was white-collar crime before.
MR. GREEN: There was but you kind of have to trace the history of white-collar crime.
There wasn’t a great focus on white-collar crime earlier than when we
were in the U.S. Attorney’s Office, and to the extent there was, individuals
were hardly ever involved; the cases were against companies rather than
individuals. I’m not talking about street crime now. I’m talking about
white-collar crime. There’s plenty of street crime. But the area as an area
of specialized expertise really didn’t begin to grow until Watergate and
after Watergate. Watergate was critically interesting to this whole area
because it wasn’t just a prosecution of a president and his closest advisers.
It gave birth to the FCPA [Federal Corrupt Practices Act]. It gave birth to
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the Independent Counsel Act. It started a revolution in the prosecution of
white-collar crime. We were out and looking for work and the work was
there. Most of it came to this very, very small fraternity of guys.
MS. FEIGIN: And it was guys.
MR. GREEN: There were a couple of women but it was really mostly guys, unlike today.
We stuck together and traded cases; we got each other into cases and we
kind of commandeered the field.
MS. FEIGIN: Before we talk about that, because that’s your post-U.S. Attorney’s Office
life, I’d like to ask you a couple more things about life in the U.S.
Attorney’s office. Did you do ridealongs with cops?
MR. GREEN: A couple of times I did. I had some really nice relationships with
detectives. There were a number of officers who kind of kept coming to
court with cases and I got to know them. I didn’t do a lot of ridealongs
because most of that was in connection with street crime cases, what I call
street crime cases. Every once in a while I did a couple but I don’t
remember anything dramatic happening.
MS. FEIGIN: We should probably make clear for people reading this who might not
know, the U.S. Attorney’s Office did the local crime and the federal crime
in D.C.
MR. GREEN: Did the local crime and the federal crime and still does the local crime and
the federal crime. When I first came here there was a Court of General
Sessions, which was essentially a misdemeanor court. And so the felony
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street crime, like the larger bank robberies and other federal crimes, were
all tried in front of the federal court.
It was the federal judges, George Hart in particular, who felt that
they were being mistreated by being a judge in the District of Columbia
because they had to try local crime as well as federal crime. I don’t know
whether George felt he was overworked or that it was just demeaning in
some way. So it was several of the judges who really pushed for the
creation of a new court for the District of Columbia, federal judges who
were pushing for a new court to get these cases out of their court. That
was the impetus. They wanted to be like every other federal judge and
just try federal crimes, which could translate into they just wanted to work
less, like every other federal judge. I don’t know, but those interests were
aligned with local political interests and home rule interests and all that.
So there was a lot of support for the notion of establishing a superior or a
separate court.
MS. FEIGIN: When did that come into being?
MR. GREEN: I think it happened around the time I was in the U.S. Attorney’s office, so
around 1970.
MS. FEIGIN: You were there at a time that there were some really interesting famous
and infamous judges on the bench. Maybe we can discuss a few of them.
Let me throw out some names. You can tell me others if there are others to
add. Judge Halleck.
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MR. GREEN: Here you’re throwing out names of characters in the Court of General
Sessions or maybe even the Superior Court at that time whom I never
knew. I never was over there. I’ve heard all those stories from all those
guys. Whenever we’re together, I still hear those stories. It’s now 2024
and I’m still hearing those stories. I’ve heard them so many times
[laughter] but I’m going to let them tell those.
MR. FEIGIN: Okay. Let me let me ask you some others that maybe you have your own
stories about. Judge Gesell.
MR. GREEN: Judge Gerhart Gesell. I think he was a Covington lawyer but he was
imperious. I’m not trying to be unkind but he always thought he was the
smartest guy in the room. And he may have been, to give him his due. He
may have been. But he wanted you to know that he thought he was the
smartest guy in the room.
I had a very interesting case where I sued a lawyer for some breach
of contract type violations. I think he had been appointed to be a monitor
or special counsel to ensure that the corporate defendant did not engage in
further securities violations. Instead of giving the company guidance, he
provided the SEC with information on what he thought were new
violations without giving the company any notice and the opportunity to
take corrective action. I think he may have been a former SEC official
actually. He was represented by a well-known lawyer whose name I can’t
remember right now either. They asked for a bench trial. You could see
Gesell was clearly wanting that result. He wanted to try this case. It may
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have been simply because he knew — maybe not well because I think if he
had known him really well Gesell would have said something — but I
think he knew of this guy. The defendant was of some reputation. Gesell
wanted to try the case. I was not about to let him try this case so I
objected and said we invoke our right to a jury trial. He was so visibly
pissed off it was unbelievable. If looks could kill, he gave me a look like
you’re done.
We tried the case and we prevailed. I can’t remember what
happened but from that moment on Gesell would not pay me 2¢ of
attention. We’d be at the Judicial Conference down in Williamsburg or
elsewhere and I’d be walking outside and I’d see him coming. He would
just turn around [laughter]. He carried this grudge for a long time. I don’t
know, maybe I’m misinterpreting him. He thought I had horribly
disrespected him by asking for a jury trial like I’m not going to let you try
this case.
MS. FEIGIN: How about Judge Bryant?
MR. GREEN: Judge Bryant was a prince. Everybody loved Judge Bryant. He was fair.
You might even say fair to an extreme. He kind of bent over backwards to
be fair and to appear fair and sometimes he would appear almost to be
agonizing on the bench over a decision as to what to do. I tried a couple
of cases in front of him. I don’t think they were anything out of the
ordinary; he was so well respected and he let you try your case. I think
every one of us admired him. I don’t think there was any prosecutor that I
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worked with that held any negative views about Bill Bryant. He was a
great guy, wonderful guy.
MS. FEIGIN: Aubrey Robinson?
MR. GREEN: I liked Aubrey, I really did. Aubrey could exude a real tough demeanor
but on balance he was a great guy and I knew his wife. There’s a funny
story about him. Fast forward years later when I’m defending Richard
Secord in the Iran-Contra affair. For a lot of reasons Lawrence Walsh, the
independent counsel, came to focus on me. He was such a jerk.
[laughter]. If you’re reading this Larry, you were a jerk. He put me in
front of the grand jury because they wanted to ask me questions about my
client and about Oliver North, who had been my client, and about
everybody else that I met. When they started questioning me I told them
that I invoke the First, Second, Third, Fourth, Sixth, Seventh, Eighth, and
Ninth amendments of the Constitution and that I refused to answer.
There was a female prosecutor who said “You can’t do that.” I said “What
do you mean? I just did that.” “Well, you can’t do that.” I said “Well I
did it and I’m not answering.” “Okay, I’m going to take you in front of the
chief judge.” I said “Okay, take me in front of the chief judge.”
The proceedings were adjourned. After lunch I was told to report
to Aubrey’s courtroom. So I go in there and Earl Silbert might have been
with me. He was my lawyer I think at that time. I got a lawyer.
Anyway, I went into Aubrey’s courtroom and the lawyer working for
Walsh gets up and she says “Mr. Green took the First, Second, Third,
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Fourth, Sixth, etc. You can’t do that, Your Honor.” Aubrey starts to
laugh.
I had tried half a dozen cases in front of him. We knew each other
pretty well. He’s shaking his head and doing some chuckling. So he looks
over at me and puts up his finger and says “Come here; come to the bench.
Tom come up here, come up here.” She starts to go up and he said “No,
you sit down there. I just want to talk to Mr. Green. Come up here.” So I
go to the bench. He said [laughing] “Listen Tom, we’ve got to get this
over because I want to go home. So here’s what I want you to do for me.
Go back down there, go back in the grand jury and use that other number.
Use that other number and then let’s all go home, okay?” I said “Okay, I’ll
do it.” They put me back in the grand jury and I said “I take the First,
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth
amendments.” She said “You can’t do that.” I said “I just did that and
that’s what I’m doing.” So she finally said “Okay, you’re excused.”
There was an article in The Washington Post the next morning —
somebody must have leaked it — that said I had been in the grand jury and
taken the Fifth. It’s an occupational hazard, that’s all. It really didn’t faze
me.
MS. FEIGIN: No? It’s so wrong to leak that.
MR. GREEN: Well Walsh was crazy. Before they put me in the grand jury I had gone to
see Walsh with Earl because they asked me to come. They had asked me
whether I would tell them about certain things and I said no. And then
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somehow I said I want to see Walsh. I said to him “Look, these guys were
my clients and I am never going to tell you what the discussions were with
me. Never, ever. So you do what you’ve got to do but I’m not sharing
anything with you.”
MS. FEIGIN: I mentioned some of the district court judges. Are there any others I
should have mentioned?
MR. GREEN: I was there at a time when three prosecutors were assigned to every judge
as a permanent team — a senior, a next junior, and a junior. I had come to
know Judge Pratt. Judge Pratt had served in World War II. We had a very
warm relationship. He was the judge on the D.C. Nine case. He selected
me for his lead prosecutor slot. I tried a lot of cases in front of the judge.
MS. FEIGIN: The judge selected the lead prosecutor?
MR. GREEN: I think the judge had some input. Or maybe the office did and I said I
want to be in front of Pratt. There are guys who still tease me today
because of Judge Pratt. We got to the point where he trusted me a lot. It
was almost like when I started to rise out of my seat to make an objection
he would say “Sustained.” There are guys that still tell stories of being in
Judge Pratt’s courtroom representing a defendant. These guys are good
friends of mine. They’re representing the defendant. They still laugh
about how every time I opened my mouth, it was sustained. I could do no
wrong in that courtroom, which is probably a little bit true. I got very
close to Pratt.
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MS. FEIGIN: I’ve heard reference to his secretary, her role in the courtroom. Can you
tell me about that?
MR. GREEN: I can’t remember her name. She was a character. She didn’t intrude upon
the judicial process but she was very vivacious and assertive and kept
things rolling and under control.
MS. FEIGIN: In the courtroom itself?
MR. GREEN: In the courtroom and out of the courtroom. She kept the cases rolling and
getting things filed on time and so forth. Judge Pratt married Pam and me.
He was the officiant. Judge Pratt conducted the marriage and she was a
witness.
MS. FEIGIN: Any other judges we should discuss in the district court?
MR. GREEN: I tried cases in front of Gasch and Waddy and I think every other judge on
the court at the time but I don’t have any anecdotes to add.
MS. FEIGIN: You were there at a time when there were also giants on the court of
appeals. I know you said in your earlier sessions you didn’t spend that
long in the appellate section but Bazelon, Wright, Leventhal — I think they
were there then. Do you have anything to say about them or others?
MR. GREEN: I probably only argued a dozen cases on appeal. That would be my guess.
Leventhal, I can still see him; I can still kind of hear him talking. I can
still see Bazelon and hear Skelley Wright as he moves his head around.
The people in the office used to call him Skelley Wrong [laughter].
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It was a pretty powerfully gifted court in those days. The one thing
I remember is that although I always felt so unbelievably comfortable in a
trial courtroom, I never felt that comfortable in an appellate courtroom.
I think it’s simply because I never had the confidence that I had prepared
to the point where I felt comfortable in knowing that I had an answer to
any question they might ask me. So I was always like, if I go up there and
they ask me something I don’t know, what’s going to happen? It didn’t
happen very often. I’m not sure it ever happened, but it was just enough.
I do believe that they are separate arts.
Some people say if you can try a case you can go up and argue an
appeal. But I do feel that there’s a talent for each. And I never felt
completely comfortable in an appellate court. Plus the fact that you’ve got
some very bright guys that are peppering you with tough questions.
You’re asking the questions in the trial court. You’re answering the
questions in the appellate court — a little bit of a different protocol. But
being in appellate allowed me to read transcript after transcript after
transcript of trials. That contributed significantly to my development as a
trial lawyer because I could see what these trial lawyers were doing and
how they were asking questions.
When you’re a prosecutor there’s a lot of rote, believe it or not.
How do you introduce a lineup? There’s a certain number of questions
that have to be asked. How do you authenticate a photograph or a chart?
There’s a certain number of questions. How do you authenticate a
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business record? There’s a certain number of questions. The art of, I won’t
say presenting the case, because you’ve got to prepare your witnesses and
then be artful in how you question them, but there’s a lot you can learn by
just reading these transcripts about how to do things and I did it. It was
like putting it in with a syringe for me. It was just going right in.
The other thing I did as a young lawyer, whenever I had a free
moment in the U.S. Attorney’s Office, I would walk downstairs and find a
trial that was in progress. I would just sit in the back and listen. And
often I was the only person in the courtroom. There were people from the
street that used to come in and sit in the court room day after day probably
just to get warm and get out of the weather, but often I’d be the only
person and one of my colleagues would be trying the case. I’d just be
watching and writing things down and just absorbing everything I possibly
could. Listening to the objections, how they’re articulated. Listening to
the arguments, watching them, watching their closing argument. Part of
the advice I would give to any lawyer who wants to learn how to try a case
is to watch lawyers try cases. You can learn so much.
MS. FEIGIN: You worked with some amazing colleagues and you mentioned a couple
of them in your earlier interviews. You worked with Judy Rogers and you
worked with Earl Silbert.
MR. GREEN: They were my two initial mentors. I knew nothing about lawyering. I had
gone to law school but then I was in the service so I didn’t know about
lawyering.
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Oscar Altshuler ran Special Proceedings. That’s where I was sent.
Judy and Earl were there and then I was the number three person. Oscar
was an enormously well-respected and admired guy in the U.S. Attorney’s
Office, a career Assistant, one of the few back then. He knew everything
there was to know about mental health commitments — 2255s, habeas
corpuses — whatever Special Proceedings covered. He was a great teacher
and a great mentor. That’s where I got my start, watching them. And they
helped me. I learned how to write by looking at what they were writing.
They were both great friends. I saw a lot of Earl but less of Judy. But
Judy and I were good friends and still are friends.
MS. FEIGIN: In another oral history that was taken for the Historical Society, which was
John Aldock’s, he talked about the U.S. Attorney’s Office a little after
your time. He served under a different U.S. Attorney, Tom Flannery. But
he discussed it as — under Flannery at least — a wonderful, wonderful
experience, but with sort of a Wild West aspect to the office. Did you find
that?
MR. GREEN: When I started there, the office was quite small. There were only 16
lawyers who were trying cases in the federal court. You had, I don’t know
how many judges, probably at least a dozen I would think. We weren’t a
big crew. Before we went to the system of being assigned to a particular
judge you might try two or three cases a week, one after the other. You
would end one case and then go out in the hall to talk to the policeman and
the witnesses for the next case. I remember it as being stimulating and
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inspiring, fun and interesting. It was more Wild West over in the Court of
General Sessions certainly; that was the real Wild West.
MS. FEIGIN: I think he was probably talking about General Sessions.
MR. GREEN: It really was the Wild West. That was crazy land over there from what
they tell me.
MS. FEIGIN: Is there anything else you want to discuss about the U.S. Attorney’s Office
before we begin to talk about what happened when you left and the
beginning of the white-collar bar?
MR. GREEN: As I covered earlier, I went to work with Bress. He had been denied his
judgeship, which was not only a tragedy for him, but I think it was a
tragedy for the court because he would have been a superb federal judge.
He really would have.
MR. FEIGIN: Could you talk a little bit more about him? You didn’t really describe him.
MR. GREEN: I probably in one sense got as close to David as anybody in the office ever
did. Then in the years after we got even closer. He was a gifted trial
lawyer but a civil trial lawyer. His expertise was trying what they call
aircraft cases — when the plane goes down and there are survivors. He did
a fair amount of that. He did a fair amount of tort work and so forth. He
was enormously bright.
He was not an extrovert and he didn’t open himself up to any of us
in any substantial way. I think Flannery probably was much more inviting
of relationships than David was. Bress had two adopted children. I’m not
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sure how close he was to them. He had a great sense of humor but he
wasn’t a warm, fuzzy type of guy. I thought he was a good U.S. Attorney.
He had decisions that he had to make. I wish I could recreate
everything that happened. But there were times — it didn’t happen often –
where he’d invite me into his office and we would just sit there and talk
about everything under the sun. It got to the point where he started
inviting me to his home for the [Jewish] High Holidays and Passover and
so forth. I got to meet his brothers and his brother-in-law and his wife. I
really did like him. Some people found him very kind of severe but he
was always very kind and nice to me. As a result of that, I got to try some
of the more meaningful cases during my tenure there because he would
assign them to me. So I felt fortunate to be able to go to work with him.
He smoked a pipe which eventually killed him from lung cancer. I
remember he used to write everything by longhand, the pleadings back
then. He could write a complaint in ten minutes that would take me ten
days to write. He knew his stuff. When Watergate came along, that’s a
story in and of itself. That was kind of the beginning of everything for
me.
MS. FEIGIN: Let’s start talking about that.
MR. GREEN: Watergate started with a break-in at the Watergate complex with James
McCord and four others and their handlers Howard Hunt and Gordon
Liddy. They entered the Watergate office building seeking to tap Larry
O’Brien’s phone. He was chair of the Democratic National Committee at
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the time and their offices were in the Watergate building. It was a very
famous investigation with Woodward and Bernstein [of The Washington
Post]. There’s a movie. They wrote a book. You could read extensively
about Watergate although I think there’s a lot of people today who
wouldn’t know what the hell you’re talking about — probably right in this
building too [laughter].
As the investigation developed, the prosecution of the burglars
turned into a bit of a cause celèbre when McCord wrote a letter to John
Sirica, the trial judge, that there had been a cover-up and others were
involved and so forth. Eventually the investigation spread to certain
individuals who were close to President Nixon, both on his staff and off
his staff. When that happened, one of them was Robert Mardian, who was
the former assistant attorney general in charge of the Internal Security
Division. I think that division has now been abolished.
Mardian was a lawyer from Phoenix, Arizona, a big-time
Republican. He was a friend of John Mitchell. I think it was through John
Mitchell, who was then the attorney general, that Mardian got his
appointment from the president to the Department of Justice. By the time
that Congress started investigating Mardian, both he and Mitchell, to the
best of my recollection, had resigned from the Department and had gone,
as we say, across the street, to run President Nixon’s campaign for reelection in 1972. They were heading up the office to reelect the president
which they called CREEP, Committee to Reelect the President. Mitchell
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was heading up the reelection effort and Mardian went with him to be his
deputy over there. So in this probe Mardian was somehow referred to
Bress.
I met him early on. He was not a warm and fuzzy guy either,
Mardian. That’s being gracious. But David Bress took him on. Other
lawyers were representing the other gentlemen under investigation –
Haldeman, Ehrlichman, Mitchell and others. There were many others.
The first major undertaking was to represent them in connection with the
congressional committee that began to investigate the facts and
circumstances surrounding the break-in and the connection to the
Administration.
Sam Dash, a professor from Georgetown, was counsel to the
committee. The chairman was Senator Ervin. I was Dave Bress’s young
lawyer assistant. That was maybe 1972 say, so I’m 31 years old. I’m
sitting in on the interviews and listening to everything. Of course Mardian
claimed he didn’t know anything about anything. We got him prepared for
his appearance before the Ervin committee and I’m pretty sure he testified
before the Ervin committee. I was there.
MS. FEIGIN: Can we talk a little bit about the testimony? Those hearings were
televised on TV. Those were a big deal. What was it like to be there?
MR. GREEN: For a kid it was extraordinarily exciting. I felt like I’m at the center of the
universe right now.
MS. FEIGIN: You were.
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MR. GREEN: But still in the dark about a lot of what really happened. None of us
understood the full scope of the Watergate endeavor, if you will. So I was
just kind of taking it in. I can’t remember specific instances. If I saw the
tape things would probably come back to me. What happens is that
ultimately five of Nixon’s associates get indicted. John Mitchell, John
Erlichman, Ken Parkinson, who was the lawyer to CREEP, Mardian and
Bob Haldeman were indicted.
MS. FEIGIN: Why did they testify before the committee if they were in jeopardy of
being indicted?
MR. GREEN: I think Haldeman and Erlichman probably thought they could bluff their
way through and that would be the end of things. Mardian, on the other
hand, if he were alive today he would be pounding this table. “I did
nothing wrong.” He didn’t feel he had any exposure or anything else. He
felt he was being unjustly accused, unjustly treated; that’s just the way he
was. So after that they’re indicted. We get ready to try the case and I’m
working very hard with Bress to get him ready to try the case. He hadn’t
tried that many criminal cases. He tried a criminal contempt case while he
was the U.S. Attorney but he hadn’t really tried many criminal cases so I
was hard at work getting him ready. There was a younger associate, Jacob
Dweck, who’s now quite an accomplished lawyer in his own right in this
city. He and I are getting everything ready for the trial. The trial opens.
Mitchell is represented by Bill Hundley and Plato Cacheris. Hundley and
Cacheris were good friends of mine by that time. We came to be good
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friends very quickly. They were two wonderful guys. Erlichman was
represented by William Frates. He had this booming voice like this
[mimics voice]. It just reverberated off the walls of the courtroom. But I
thought he was overrated. He had a couple of talented young guys around
my age that were behind him but I didn’t think he had a lot of substance.
Haldeman was represented by John Wilson. He was quite old but
he had a reputation of being this fearless, pugilistic defense lawyer. I
thought he turned out to be overrated as well. More on that in a moment.
Parkinson is represented by Jake Stein — wonderful guy. Then Mardian,
represented by David Bress, backed up by young Tom.
So the trial starts and at some point, I can’t put these things in
sequence unfortunately, but David Bress – not long into the trial —
collapses in the courtroom. An ambulance is called. He’s taken from the
courtroom and to the National Institutes of Health. He made an
appearance late in the trial, maybe while on or after he had chemotherapy;
he just was there for a day or half a day or something to watch the
proceedings. Other than that, he never came back and in all practical
terms he never left the hospital. He died in 1976 from lung cancer which I
think had to be attributable to his smoking and inhaling that pipe all those
years. More to that story in a moment, but before that happened, I’m pretty
sure, one of the government’s principal witnesses had taken the stand,
either Dean or Magruder. I have this recollection of John Wilson saying,
essentially, “Let me at him. I’ll take care of it. Let me at him.” John
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Wilson’s about five feet two inches tall and he is 80 maybe. Looked to be
80, maybe 75, but when you’re young everybody looks old [laughter].
I can’t recreate the cross-examination but I can recreate how he
goes up to the witness and barks at him, the equivalent of saying “What’s
your name? What’s going on? Is it a fact that you were . . .?” [recounted
with a barking voice] It was so inept. It was embarrassing to me. I was
embarrassed for him and it was embarrassing because everyone in the
world is watching this. I’m thinking, What? This guy is supposed to be
some shtarker [Yiddish for a tough guy or enforcer].
Later, when Bress collapses in the courtroom, he is taken from the
courtroom and Judge Sirica says “I’ll see everyone in chambers.” We go
into chambers and I said, “Your Honor” — the most self-effacing thing I’ve
ever done in 55 years of practice – “I move to sever Mr. Mardian from this
trial because he is no longer represented by the counsel of his choice,
which is his entitlement under the Sixth Amendment.” Jimmy Neal was a
great guy.
MS. FEIGIN: He’s the prosecutor.
MR. GREEN: They brought him back. He’d been at the Department. He’s got this drawl
like from Tennessee. “In light of my long relationship with Mr. Bress,
I’ve the utmost respect for him, and because of that the government has no
objection to the severance motion of Mr. Mardian.” [recounted with a
southern drawl] I thought, well, I’m home free. Judge Sirica says “Well I
do have an objection.” He said “I have known Mr. Green. He’s tried
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many cases in front of me. He’s a fine young lawyer. Mr. Mardian, meet
your new lawyer, Mr. Green, and gentlemen, we’ll reconvene in the
courtroom in ten minutes.” That was that. I think Mardian almost had a
heart attack. He may even have tried to say something to Sirica but Sirica
brushed him off.
MS. FEIGIN: Tell me about Judge Sirica.
MR. GREEN: [laughter] He was a piece of work. A good guy but tough guy — a nononsense guy. Ten minutes later, there I am. I’m 31 years old. I’m the
youngest defense lawyer in that case by 100 years.
MS. FEIGIN: There’s not even a recess? You weren’t prepared to be the lead lawyer at
that point.
MR. GREEN: Well I was and I wasn’t. I certainly wasn’t in the sense that you suggest
but was I prepared by virtue of experience to do it? Sure. I knew all the
witnesses better than Bress did, which is not to say anything negative
about him. I knew the case best of all. Probably knew the case better than
many of the other lawyers in the courtroom. That doesn’t mean I wasn’t
going crazy at that moment. I’m 31 and I’ve got a 26-year-old young
associate with me and we’re now Mardian’s counsel and, of course,
Mardian’s pissed and we are in the biggest trial of century. He can’t
believe that now he’s got this young whippersnapper representing him.
But he did. So we went on with the trial.
I spent an amazing amount of time getting Mardian ready to
testify.
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In every session in which we worked together it was obvious that he was
not pleased in having to work with me. I don’t think it was personal, I
think it was situational, but nevertheless, it wasn’t totally comfortable. I
worked hard because he had a volatile temper and he wasn’t by nature a
kind of smiling and affable human being. So I worked hard at trying to
get him to control his demeanor and his emotions as we worked through
the testimony. Finally I put him on the stand. We had a decent shot at
things up to that point because there wasn’t an enormous amount of
testimony about him. What there was wasn’t particularly helpful but by
comparison there wasn’t that much testimony against him.
He did reasonably well on his direct examination — not perfect but
reasonably well. Then comes cross-examination. There was one woman
on the prosecution team — Jill Volner — a lovely woman who has gone on
to have a great career. In those days women dressed in short skirts. She
was dressed in a very short skirt, almost like a mini skirt. In a stroke of
what will go down as one of the most incredible, insightful moves at a
trial, Jimmy Neal sends her out to cross-examine Mardian. Mardian sees
this coming. He cannot abide the fact that they have sent a woman to
cross-examine him. He is visibly ticked off. She begins to question him
and he begins to bark at her. It’s ugly at the outset and it gets uglier by the
moment.
I felt I had to do something. So I stood up and said “Your Honor, I
really need a quick recess to use the restroom.” He knew immediately
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what I was doing. Knowing what I was doing he could have easily said
hold it till this is over. But he didn’t. He looked at me and said “We’ll
take a ten minute recess.” I got Mardian out in the hall and I read the riot
act to him as best I could because mind you, in his view I don’t have the
stature to be lecturing him, but it didn’t deter me. I was certainly as big as
he was physically. I told him what he was doing to himself and that if he
didn’t stop he could just go back out there and put handcuffs on. He took
it all in. He went back. He was better — far from perfect — but better. But
a lot of the damage had been done.
The trial continued. According to newspaper accounts, people
generally felt that Mardian had a shot at acquittal. The jury goes out and
they come back. They acquit Parkinson and convict all the rest. Mardian
is shattered. He was stunned even though we certainly had told him of the
possibility of everything. It took a long time for him to get up from
counsel’s table. He was immobilized for a period of time. He was just so
stunned. So he got up and he left.
I can’t remember day by day after all of that, but my law firm,
Ginsburg Feldman and Bress, handled the appeal. We appealed on two
grounds. One was that the evidence was insufficient to demonstrate his
guilt beyond a reasonable doubt — that no reasonable juror could have
concluded otherwise. And two, the denial of his constitutional right to be
represented by the lawyer of his choice. All the cases go on appeal.
They’re all sentenced to prison I’m pretty sure. Mitchell: conviction
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affirmed. Haldeman: conviction affirmed. Erlichman: conviction
affirmed. Mardian: conviction reversed. The Court of Appeals reverses.
My recollection is that they reverse by holding that the evidence was
pretty much in equipoise. But what pushes it over the cliff is the
constitutional violation. Somewhere they drop a footnote and say this is no
reflection on Mr. Green. There’s some footnote in there that says what he
did was okay. He wasn’t incompetent. He was okay. [laughter] So
Mardian is a free man at that point. From that moment on, to the day he
died, I never heard from him. He never said thank you, never sent a note
of appreciation. Such is life.
MS. FEIGIN: That is quite dramatic. Let me end with one last question because I’ve
seen this quote from you in several places saying that you think the
Watergate trial was the most significant criminal trial in U.S. history.
MR. GREEN: I don’t think there is any doubt about it. If you just think of what it was all
about: the president of the United States actively engaged in a cover-up
with the attorney general resigning and the deputy attorney general
resigning and one thing after another. And the case involving tapes made
in the Oval Office and the subpoena going to the Supreme Court. That
would be enough to make it memorable.
There were crowds outside the courthouse every day — lines that
went for blocks trying to get in. The news, the vans with the antennas up
for blocks. It was extraordinary. I remember preparing for that trial. I
was down in the basement of the courthouse with earphones on listening
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to those tapes between John Dean and Nixon and Nixon and others. I was
flabbergasted. I don’t have the words to describe what I’m listening to —
that this is going on inside our government. I don’t want to get started on
today – what’s going on inside our government. Not so much inside our
government but from this other guy.
MS. FEIGIN: We should put this in context. We are doing this interview in the era of
Trump, and he’s been charged with several serious crimes.
MR. GREEN: The reason why Watergate takes on even a different dimension is what I
mentioned earlier. It was a watershed moment in the development of the
criminal law — the anti-bribery law, independent counsel, investigations
and the regulation of corporate money in campaigns, and on and on. It
was like an explosion that just kept expanding as far as everything that
Watergate created, was the impetus for. It was just amazing to live
through that — really amazing to live through that time.
MS. FEIGIN: You more than lived through it. You were in the center of it.
MR. GREEN: I’m the last surviving defense lawyer. The rest are all gone.
MS. FEIGIN: Thank you so much for sharing these stories. They are important. They
are amazing. I really appreciate it.