Complete Oral History of Mark Tuohey - Historical Society of the DC Circuit

Mark H. Tuohey III, Esq.

Interviews conducted by: William Marmon, Esq. October 1, 17 and 24, 2018 November 7, 14 and 28, 2018 December 5 and 16, 2018

TABLE OF CONTENTS

Preface. ……………………………………………………………………………………………………………….. i Oral History Agreements

Mark H. Tuohey, Esquire……………………………………………………………………………… iii William Marmon, Esquire ………………………………………………………………………………v

Oral History Transcripts of Interviews

October 1, 2018……………………………………………………………………………………………..1 October 17, 2018………………………………………………………………………………………….17 October 24, 2018………………………………………………………………………………………….35 November 7, 2018………………………………………………………………………………………..52 November 14, 2018………………………………………………………………………………………69 November 28, 2018………………………………………………………………………………………82 December 5, 2018 ………………………………………………………………………………………..93 December 11, 2018 …………………………………………………………………………………….102 December 16, 2018 …………………………………………………………………………………….115

Index …………………………………………………………………………………………………………….. A-1 Table of Cases and Statutes …………………………………………………………………………………B-1 Biographical Sketches

Mark H. Tuohey, Esquire………………………………………………………………………….C-1 William Marmon, Esquire ………………………………………………………………………..C-3

NOTE

The following pages record interviews conducted on the dates indicated. The interviews were recorded digitally or on cassette tape, and the interviewee and the interviewer have been afforded an opportunity to review and edit the transcript.

The contents hereof and all literary rights pertaining hereto are governed by, and are subject to, the Oral History Agreements included herewith.

PREFACE

The goal of the Oral History Project of the Historical Society of the District of Columbia Circuit is to preserve the recollections of the judges of the Courts of the District of Columbia Circuit and lawyers, court staff, and others who played important roles in the history of the Circuit. The Project began in 1991. Oral history interviews are conducted by volunteer attorneys who are trained by the Society. Before donating the oral history to the Society, both the subject of the history and the interviewer have had an opportunity to review and edit the transcripts.

Indexed transcripts of the oral histories and related documents are available in the Judges’ Library in the E. Barrett Prettyman United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., the Manuscript Division of the Library of Congress, and the library of the Historical Society of the District of Columbia

With the permission of the person being interviewed, oral histories are also available on the Internet through the Society’s Web site, www.dcchs.org. Audio recordings of most interviews, as well as electronic versions of the transcripts, are in the custody of the Society.

Schedule A

Tapes recordings, digital recordings, transcripts, computer diskettes and CDs resulting from three interviews of Mark Tuohey conducted on the following dates:

Interview No. and Date

No. 1. October 1, 2018 No. 2. October 17, 2018 No. 3. October 24, 2018 No. 4. November 7, 2018 No. 5. November 14, 2018 No. 6 .November 28, 2018 No.7. December 5, 2018 No. 8. December 11, 2018 No. 9. December 16, 2018

Number of Tapes or CDs

}
}
}
}
}All on one CD }

} } }

Pages of Final Transcript

1-16 17-34 35-52 53-68 69-81 82-92 93-101 102-114 114-125

The

transcripts of the nine interviews are on one CD.

Schedule A

Tapes recordings, digital recordings, transcripts, computer diskettes and CDs resulting from three interviews of Mark Tuohey conducted on the following dates:

Interview No. and Date

Number of Tapes or CDs

}
}
}
}
}All on one CD }

} } }

Pages of Final Transcript

1-16 17-34 35-52 53-68 69-81 82-92 93-101 102-114 114-125

The

transcripts of the nine interviews are on one CD.

Oral History of Mark Tuohey First Interview October 1, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the first session of the oral history of Mark Tuohey. Bill Marmon is the interviewer. The interview is taking place at Baker Hostetler, Mark’s law firm.

Mr. Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey:

Good morning!
Good morning, Bill.
We want to start with first things. Where were you born? When were you born?
I was born on September 27th (I just turned 72), 1946 in Rochester, New York to Mark H. Tuohey, Jr. and Josephine Slattery Tuohey. I am the oldest of seven children and when I was born, my father, having returned from World War II a year earlier, was completing up his college education. And so my first year of life was spent in Olean, New York at St. Bonaventure University where my father completed his college degree.
Tell us a little more about your Dad and your Mom.
My father was born in Rochester, and, after college, he joined the FBI in 1946. His father’s family hails from Galway, Ireland and his mother’s family from Germany. My mother’s parents were born in Tipperary – Michael Slattery and Margaret Horrigan. They came to the United States in the early 1900s and settled in Rochester, New York, where my parents grew up. My father had two siblings and my mother had three sisters, one a nun, and a brother, a priest. Both families lived on the west side of the city. They were great folks, good parents.
Did you know your grandparents?
I did. My grandmother, Elma Bornkessel Tuohey died in 1954 at the age of 54. My grandfather, Mark H. Tuohey Sr., owned Rochester Heel Company and died

Mr. Marmon: Mr. Tuohey:

in 1962 at the age of 62. My grandfather Tuohey was very generous. As oldest of seven, in an Irish Catholic family, I felt special. Grandpa Tuohey always took good care of me. When I had a project for school or an organization, e.g. to craft a science project or build an item, my grandfather brought me down to his shop to help me complete it. My grandparents on my mother’s side, Michael and Margaret Slattery, lived very close to the parish school I attended, St. Monica’s Grammar School. During the eight years of grammar school, I went to my grandparents almost every day for lunch. My grandfather, with a touch of the brogue, loved to chat. He was a great Tipperary hurler in Ireland. He spent many years as a postman in Rochester, which was a very suitable job for somebody who loved to chat with folks. My grandfather would talk to people all day long downtown, delivering his mail. In fact, he often did not get home until dinner or after!

What were the circumstances of their coming to the United States?
The Great Irish Famine in the latter part of the 19th century, especially in the west of Ireland, was devastating. My grandparents were among the many Irish immigrants who came across to New York thru Ellis Island, and they made their way to Rochester.
My journey in life also began in Rochester, New York where I was born on September 27, 1946. Just after my birth, I moved to Olean, New York, while my father, having returned from World War II (as a marine officer in the Pacific) to finish his college education at St. Bonaventure University. After graduation, my dad joined the FBI. His first assignment was in New Orleans.

Mr. Marmon: Mr. Tuohey:

Mr. Marmon:

Mr. Tuohey:

I spent a couple of years in New Orleans, and then my father was transferred in 1948 to Chicago where the next two Tuoheys, my sisters Suzanne and Nancy, were born. And we moved from Chicago back to Rochester in about 1951. And that’s where I grew up and went to school.

How old were you then? I would have been five.

These Irish connections — an important part of your personality and your life?
A very important part of my life. I became an Irish citizen in 1992. I have an Irish passport and have spent – we’ll get to this later –a lot of time in Ireland professionally and socially over the years. I am very devoted to my Irish heritage, as are my entire family.

You were six years old when you came to Rochester. Where did you go to grammar school?

St. Monica’s Grammar School, over on the west side, the second largest Catholic parish in Rochester during those years. I had great years in grammar school, a lot of friends, played sports. The 19th ward was a great place to grow up in those days. Rochester, in the ‘50s and ‘60s, was a blend of ethnic neighborhoods: Irish, Italian, German, African American and Hispanic. My father was very involved in the FBI, but he and my mother were also, over all the years they spent in Rochester, very involved in the life of the community, and certainly the Catholic community. My mother’s oldest sister was a St. Joseph nun, and her brother was a priest. My father was very involved in a number of organizations during those years. Growing up in Rochester taught me a good deal.

Mr. Marmon: Mr. Tuohey:

What did your father do when he left the FBI?

He was named Public Safety Commissioner in 1966, which meant he oversaw police, fire, and EMT departments. He loved his job and was respected and admired by police officers and firefighters because he cared for them.

He grew up as a law enforcement professional. And that continued throughout his life. He stayed with the city until roughly 1971, when he was named by the Chairman of Eastman Kodak as the Director of Health, Safety and Security at Eastman Kodak, in those days, Rochester’s largest employer. The three largest companies when I was growing up were Kodak, Xerox, and Bausch & Lomb. The city really was the beneficiary of those three major companies because they were large, prosperous companies, and they were very generous to the city and to the educational institutions, and the like.

Tell me about your schooling after elementary school.

After elementary school, during my first year in high school – which as I look back, was way too young to make those kinds of decisions – I entered the seminary, St. Andrew’s Seminary which was then the local minor seminary. The major seminary, St. Bernard’s, was referred to as “The Rock”. During that year, I decided it was way too early to commit to that kind of life, so I left and enrolled at McQuaid Jesuit High School, one of the two Catholic boys’ high schools in the 1950s and 1960s, the other being Aquinas Institute. Aquinas was founded in 1902. My father, my uncles, and my wife’s father and uncles went to Aquinas. McQuaid was opened in 1956, so I was trained by the Jesuits. McQuaid was a

Mr. Marmon: Mr. Tuohey:

formative experience for me and I relished the experience – great classic education, fun sports and great friends.

Which sports?

I played soccer and basketball. In grammar school, we had a very active CYO program, so in 7th and 8th grade I played football and basketball and baseball. It was a very competitive CYO program. In high school, soccer, some basketball and swimming.

What does CYO stand for?

Catholic Youth Organization. Very active. In grammar school, CYO basketball and football was very competitive and Monica’s competed very well. In football, we wore pads, practiced every day, and played a schedule of eight games of tackle. In basketball, we played fifteen games and won the diocesan tournament in eighth grade

Tackle?
Oh yes. We had our own gym at St. Monica’s. We were very competitive. What position did you play?
In football – half back; soccer – left wing; basketball – point guard.
How about baseball?

I played Little League Baseball and one year of Pony League Baseball, which was the next level up, and then that was it. Sports were a part of my young life, for sure, as sports has been in terms of participation for all three of my sons.

Mr.Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey:

Mr. Marmon:

Mr. Tuohey:

Mr. Marmon: Mr. Tuohey:

Were you active in any other activities in High School? Any extracurricular activities?

I was on the Student Council. I was one of the editors of the school newspaper called “The Lance.” I was involved in Debate and Oratory. And I was certainly involved in the booster club which was a popular organization that supported the sports program. Yeah, I would say I was active in high school.

What were your favorite courses?

I think over the high school and college experience history and English Literature would have been my favorite courses.

Did you take Latin?

Six years – four years in high school and two years in college. Back in those days, Jesuit high schools required four years of Latin.

I think that four years of Latin is a fantastic background

Oh, in terms of word derivation, very much so. In fact, back then, I could recite until very recently the opening verses of the Aeneid or the Iliad. I loved the experience.

Social life:

I knew Marty in high school. McQuaid, like Aquinas, had relationships with the three Catholic women’s’ high schools. On the west side of the city, St. Agnes, where my sisters and cousins attended; on the north side of the city, Our Lady of Mercy, where my wife, her sisters, her mother and aunts went. And also on the

Mr. Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey:

north side of the city, Nazareth Academy where my mother and her sisters attended and where my aunt, Sister Jamesetta [Slattery] was the Principal. She later served as Director of the Rochester Anti-Poverty Program in the mid-1960s, and in that position, addressed the Democratic and Republican platform meetings in 1968. She was a great woman and I relied on her for a lot of advice, as did my father when he was Police Commissioner. She used to write a lot of his speeches.

Anyway, getting back to your question, the relationship between McQuaid and the three Catholic women’s high schools was ongoing. I met my wife in the course of that relationship during high school. We did not date in high school but attended many of the same events. We started dating the summer after Marty’s graduation from high school in 1965. That summer, we both worked at the Martin de Porres Center in the inner city. Marty worked with young women, and I ran a combination tutoring/sports program for a lot of young men. And that’s when we started dating.

And you’re a year older than she is? One year.
Tell me about your college acceptance?

I ended up choosing to St. Bonaventure University. Really for me, it came down to Holy Cross and Bonaventure. I had friends going to both schools, and as you might imagine. Jesuit high schools regularly sent graduates to Jesuit colleges. Many of my McQuaid classmates went to Jesuit colleges: Holy Cross, Boston College, Fordham, Georgetown, Lemoyne, Canisius. I was very familiar with

Mr. Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey:

Mr. Marmon: Mr. Tuohey:

Bonaventure because of my father, and I had been to Bonaventure basketball games with my father. And I decided that’s where I wanted to go. So I started at St. Bonaventure in September of 1964. I had a very fulfilling and interesting four years at Bonaventure where I served as freshman class president, sophomore class president, then elected to the Student Senate in my junior year. In my senior year, I was elected Student Body President, as my father had been in 1946. The front page of the school newspaper, in announcing my election in an article written by a dear friend and classmate, who spent forty years as a very respected journalist for the Washington Post, Jacqueline Trescott, wrote the story about my father and I following the same path. It was a very fulfilling four years.

What did you major in? History, minored in English. Did you play sports?

Freshman year, I played soccer but I didn’t finish the season simply because I decided to enter the race for freshman class president in October. I played in four or five games, but with campaigning and studies, and wanting to be fair to both, I decided to step back from playing soccer.

Were there issues that came up before the student council or the senate?

Many. My junior year, I chaired the Cultural Affairs Committee, and we presented the first year-long comprehensive major cultural program at the University. That experience was fantastic with events every other week: speakers, concerts, plays, lecturers, etc. I remember spending time with Leslie Frost, the

Mr. Marmon: Mr. Tuohey:

daughter of Robert Frost, who gave me one of Frost’s unpublished poems; Arthur Schlesinger, Jesuit theologian, Avery Dulles, later Cardinal Dulles, (brother of Allan and John Foster Dulles), who spoke about the famous Time magazine cover story, “Is God Dead?” I later reminisced with Cardinal Dulles about his speech during my law school days at Fordham. It was a very interesting four years, but during those four years I dated Marty, who attended Nazareth College in Rochester. Marty is the second oldest of seven. Her mom and dad, now deceased, were great folks. Her father was a prisoner of war for a year in Germany during World War II. He rose from being a lineman for the phone company to serving as vice president. Ray built his own house and could do any task with his hands, but shortly after retirement, he contracted Alzheimer’s and suffered for eight years in the VA hospital. They were great folks, but when it came to college and tuitions, Marty, an honor student, who could have gone away to college, felt it was important that all her siblings should go to college. And so she decided to go to Nazareth, which was local. Very good school, but local. She lived the first two years at home and the last two on campus to help her parents afford to send all her younger siblings to college. We dated throughout her college years, and we got married a week after her graduation in June of 1969. We’re celebrating 50 years this June.

Other issues?

In my senior year, when I served as student body president, the Vietnam controversy hung like a cloud over every college campus in America, including Bonaventure. It generated lots of very serious and angry debate. I was in ROTC,

Mr. Marmon:

which made me eligible for a deferment for law school. But it was a very emotional issue, as you might imagine. For example, I remember being at a student body president conference at Rutgers in the late fall of ’67, where one of the featured speakers was General Lewis Hershey, the director of the draft – a very unpopular man. I was sitting with a group of student leaders who I had just met, including Mark Rudd from Columbia, who was a very angry man. I remember him looking up at Hershey when he was talking and saying, with words to the effect, “Somebody’s going to kill him.” Ironically, that summer after graduation, when the Greenwich Village townhouse blew up. Those responsible, including Rudd, went underground for years. That comment resonated with me. It was a very tough time. Campuses were exploding, anger was in the air.

Finally, during my final semester at Bonaventure, a group at the university invited the beat-poet, Allen Ginsberg to speak. The president of the university, a very scholarly philosopher, called me into his office, together with the director of the campus radio station, where he told us that after consulting with various university presidents, he decided not to allow Ginsberg to speak on campus. My colleague and I told the president that is was a mistake, that an important value of Catholic, and particularly Franciscan and Jesuit education, was then exchange of ideas. We assured the president that if the speaker got out of line, he would be escorted out. The president did not change his mind. There was a huge fray on the campus about this. So, my senior year witnessed a real schism on campuses across the country due to the Vietnam conflict.

Where were you in this schism?

Mr. Tuohey:

I had serious doubts about the Vietnam War, but I was in ROTC, and I knew that I could very well end up serving in Vietnam at some point. I tried to be an honest broker, decided we had to listen to both sides. Some of the ROTC military staff, because I was student body president, questioned my statement on the war while I was in the ROTC program. I told them that while I may end up having to go, I did not have to agree with the war, and that in my position I had a responsibility to be an honest broker. In any event, I think the year after graduation – when I was at Fordham Law was worse. But I had a very good experience in college. I made a lot of friends, lifelong friends. Next, of course, was law school for me.

Tell me about your decision to go to law school.

You know, I think that at some point, and maybe it was in college, I knew that is what I wanted to do. My father always hoped I would join the FBI, and I thought about it, but I decided that the law, as a dynamic institution, really affected in so many ways peoples’ lives. Was I influenced by Perry Mason? Probably. I was not thinking detailed thoughts about corporate reorganizations or estates and trusts. I knew I wanted to be in the courtroom. And I also knew pretty early on in law school that I wanted to have the experience as a prosecutor. I wanted to be a trial lawyer. That is what influenced my decision to join the United States Attorney’s Office. I had a wonderful experience at Fordham. During my first year in the law school, I served as a resident advisor in a house on the undergraduate campus up at Fordham with 60 sophomores, juniors and seniors in the house. Great group, and I enjoyed that experience. (I had been a resident advisor during my senior year in college), which paid for my room, board, and

Mr. Marmon: Mr. Tuohey:

tuition. I enjoyed that year on the undergraduate campus. I married Marty on June 14, 1969, after my first year at Fordham. We moved into a rent-controlled apartment in the Bronx. During my second year, I was notified – out of the blue – that my deferment was conditional upon the needs of the army and that I was going to have to finish up this year and go on active duty. That made no sense to me, and I actually went to Indianapolis to the Army department that oversaw deferments and argued my case to no avail. So after exams, in May – in the mist of huge anti-war protests over the invasion of Cambodia, Marty and I packed up, stored our things and drove to Ft. Sill, Oklahoma to serve a two-year hitch. I spent almost two years, then came back to Fordham for my third year.

And where were you?

I was stationed at Fort Sill, Oklahoma. I was assigned – at the request of the Provost Marshall – to serve as a military police officer stationed at Fort Sill Stockade where I had multiple responsibilities: correctional officer at the stockade and post MP duty officer several days a month. I served in that capacity for the first year, until I received orders. There were two jails in Vietnam during the war: the Marine brig at Danang, and the Army jail at Long Binh (about 30 kilometers north of Saigon). Shortly before I was scheduled to leave, the President issued an executive order to the effect that all two-year ROTC officers were ordered to complete their tours at 22 months rather than 24. As a result, since an officer could not be assigned to Vietnam for fewer than 12 months, my orders were cancelled and I remained at Sill for the completion of the service and returned to Fordham Law School for my third year in September, 1972.

Mr. Marmon: Mr. Tuohey:

I leaned toward the Manhattan DA’s office under Frank Hogan, the legendary Manhattan DA. During September, I began interviewing for a job after graduation. I interviewed with John Keenan, the Chief Deputy and now a distinguished federal district judge in the SDNY. Judge Keenan and I had a great interview and he told me he would recommend that I be hired. I looked forward to the prospect. In the meantime, one of my old friends from McQuaid, David Larimer, an AUSA in Washington, called me in late September, 1972 to inform me that the US Attorneys Office decided to experiment and hire a few of the entering class direct out of law school, rather than through clerkships or work experience. I told him that I was very interested and sent my resume to the office. After several days of interviews, I was told to return for the final interview with the then United States Attorney for the District of Columbia, Harold Titus. After the interview, Harold Titus offered me the position which I immediately and enthusiastically accepted. Then I finished up school, although, on reflection, the break from school for the army was consequential. When I returned, I was named an editor of the Urban Law Journal and spent that year writing a Note and editing articles. It was a memorable year, and my final year in New York.

What was your law review note about?

My Note involved a constitutional law issue involving adoption in the New York Court of Appeals. It was a case of first impression in New York. It had to do with the rights of indigent parents in adoption proceedings so it was suited for an Urban Law Journal review.

We lived that year in a street-level apartment in Inwood, an Irish neighborhood in the northern tip of Manhattan. My cousin, Jim Costello, a well-known Irish saloon keeper at Runyon’s (50th Street and Second Avenue), frequented by writers and journalists, cops and firemen, basketball coaches and announcers, offered us his apartment for a year while he took care of his brother, who had just been diagnosed with Multiple Sclerosis. So we did. We lived in this wonderful ground-floor apartment. I commuted to the law school on the D Train, and Marty drove to White Plains where she did social work. After I accepted the offer to join the US Attorneys Office, we made plans to move to Washington. After graduation, I went down to study for the bar exam in Washington and Marty worked until August, when we moved to DC.

I decided to take the DC bar. The US Attorneys Office advised me that the Chief Judges of the District’s Courts (David Bazelon, D.C. Circuit; Bill Jones, US District; Gerard Reilly; DC Court of Appeals, Harold Greene, Superior Court) had advised the United States Attorney’s Office that the new hires coming direct from law school had to be admitted to practice before starting at the office. The office helped place all of us until we were admitted to the D.C. Bar and sworn in as AUSAs. Henry Kennedy, Bernie Panetta, Dave Addis and I were the first four of our group sworn in on December 7, 1973, the same day we were admitted to the D.C. Bar. The rest of the group started over the next few months.

I arrived in DC in June and spent the summer with one of my college roommates and a couple of his buddies at their Georgetown townhouse while I took the bar review course at Georgetown Law Center. Of course, that was an interesting

summer because of the televised Watergate hearings. You can imagine that before and after class, we were glued to the televised hearings. Georgetown Law Center had recently moved to the new law school on New Jersey Avenue. So much for the summer of 1973. After the bar exam, I returned to New York to pack up and we moved to DC. We lived for a month at a house of a friend in Georgetown. We lived for the first year in an Alexandria apartment complex, and our oldest son, Brendan, was born on June 13, 1974. We then selected a home in the Shepherd Park neighborhood, upper Northwest, off 16th Street. We wanted to live in an integrated neighborhood. We spent the first four years on Holly Street, N.W., right around the corner from the house where the Hanafi leader, Haamas Abdul Khaalis, lived with his family. Khaalis led the 1977 siege and kidnapping of hostages in downtown Washington, a case which I prosecuted with my colleague, Marty Linsky, also a Fordham Law graduate. In 1978, we moved up 16th Street a few blocks to Locust Road, where we lived for 10 years. We moved across 16th Street in 1987 to our current home on Kalmia Road. We have spent virtually all of our time in Washington in this exceptional integrated neighborhood with very interesting people. When Devin, our youngest son, was a freshman basketball player at Colgate 1998, John Feinstein was writing his book, The Last Amateurs, a depiction of college basketball in the Patriot League, which, together with the Ivy League, did not give scholarships to scholar-athletes, Feinstein focused on one player from each of the schools (Colgate, Lafayette, Lehigh, Bucknell, Army, Navy, Holy Cross) to highlight each team’s program. Devin was selected as the Colgate player. Speaking on behalf of himself and his

Mr. Marmon: Mr. Tuohey:

older brothers, who played at Colgate and Lehigh, Devin told Feinstein that the greatest gift his parents gave them was growing up in a neighborhood that was colorblind. So many of their friends today include those kids with whom they grew up. We have had a wonderful experience over these last nearly forty years in the neighborhood.

Law School Professors who were memorable?

Law School professors who are memorable to me… There are a number: The legendary Dean of Fordham Law School, during my first two years, William Hughes Mulligan, also a famous Irish raconteur and the best after-dinner speaker in New York; his successor Dean Joseph McLaughlin, a great teacher of Evidence and New York Practice; Professor Joe Sweeney, Torts; John Calamari, Contracts and Gus Katsoris, Tax, were memorable.

Oral History of Mark Tuohey Second Interview October 17, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the second session of the oral history of Mark Tuohey. Bill Marmon is the interviewer.

Mr. Marmon:

Mr. Tuohey:

We are going to be talking about his time with the US Attorneys Office and some of the key trials that he participate and was involved in during that period. How did you get associated with the US Attorneys Office after law school?
In September, 1972 at the commencement of my final year of law school, I, like my classmates, interviewed for permanent positions after graduation. I interviewed with several law firms and the office of the Manhattan District Attorney, Frank Hogan. I was particularly interested in starting my career as a prosecutor, an experience that would provide me the opportunity to try criminal cases. After my interview with Mr. Hogan’s deputy, John Keenan, a now senior federal trial judge in New York, I was informed that I would be recommended for appointment as an Assistant District Attorney in Manhattan, which I intended to accept. Shortly thereafter, I received a telephone call from an old high school friend, Dave Larimer, who was an Assistant US Attorney in Washington. Dave informed me that the Office had decided to experiment in the hiring process for the following year and to interview a select group of graduating law students to join the Office right out of school, waiving the standard requirement of a clerkship or private practice experience. I immediately expressed interest, sent my resume and other materials that the Office required, and then received an invitation to come to Washington for the first round of interviews with the United States Attorney’s Office for late September, 1972. I interviewed with six

Assistant US Attorneys and enjoyed the exchange. I was invited back for a second round of interviews, after which I met Harold Titus, the United States Attorney, who informed me that, subject to an in-depth FBI background check, I was selected to join the Office after graduation and passing the bar. I returned to New York, thrilled with the opportunity, and finished my last at Fordham. That year was busy, between my course load, a trial advocacy clinic and my responsibilities as writing and research editor of the Urban Law Journal. I very much looked forward to starting my legal career as a federal prosecutor in the nation’s capital. The only other decision was whether I take the New York Bar exam or the DC Bar exam, but in view of the policy that incoming AUSAs must first be admitted to the D.C. Bar, I decided to take the DC Bar exam and its preparatory course at Georgetown Law Center. We were advised that during the period between the bar exam and admission in the following December, the Office would assist in placing us on an interim basis with a DC law firm. After graduation, while Marty stayed in New York to finish her work before we moved, I came down to Washington for the June-July course. I stayed with my college roommate and a group of his colleagues in their Georgetown townhouse and spent my days (and many nights) at Georgetown Law Center. During that course, I met a few of my soon to be classmates in the US Attorneys Office and they became great friends: Henry Kennedy, who just retired as a US District Judge, Judy Heatherton, now retired after a great career with the US Attorneys Office and the office of the DC Bar Counsel, Bernie Panetta, now a criminal defense attorney in El Paso, among others. After the bar exam, I returned to New York, where Marty

and I packed up and moved to Washington in August 1973 to begin the next phase of our lives. The office placed me with the firm of Kellogg, Williams, Lyons and Zuckerman – a very successful boutique of four former assistant US Attorneys who were highly regarded lawyers and even better mentors. I enjoyed a memorable three months with Roger Zuckerman, Phil Kellogg, Jim Lyons and Ed Williams. In November, I received notice that I passed the Bar, and the Office scheduled me to be sworn in on the same day I would be admitted to the DC Bar – December 7, 1973 – together with Henry Kennedy, Bernie Panetta and Dave Addis.

On December 7, 1973, I was sworn in by Harold Titus as an Assistant United States Attorney at the United States Courthouse. My parents attended from Rochester. My father, who had served twenty years with the FBI, followed by five years as the Public Safety Commissioner in Rochester, New York, was very proud. This was the beginning of a great journey for the next four and a half years through October, 1977, when I joined the Assistant Attorney General (Criminal Division), Ben Civiletti at Main Justice. I spent 18 months at Justice as a Special Trial Counsel prosecuting several major organized crime cases in New York and Florida, and the bribery case against a member of Congress.

In the US Attorneys Office experience, one began either in misdemeanor trial or appellate. There were a series of rotations that were anticipated and required during the required four-year term. My first assignment was in misdemeanor trial, and several of my classmates joined me in misdemeanor, including Henry Kennedy, Bernie Panetta, Judy Heatherton, John Kern, Peter George, Jonathon

Mr. Marmon Mr. Tuohey:

Marks, Andrea Harnett, Jeff Demerath and Steve Spivack. As people were sworn in over the next three to four months, they began their tenure in misdemeanor or appellate. Misdemeanor trial was consequential for a couple of reasons: first and foremost, we learned how to try a case, how to talk to a jury and how to present evidence. I had had an excellent advocacy course at Fordham, so I had the experience of standing on my feet and asking questions of the witness, and arguing a case to a mock jury…but this was the real thing. During the roughly 10-12 months spent in misdemeanor trial, I tried 50-60 jury trials. I was in court every day.

Do you remember your first case?

I know my first assignment was to the “witness room” where misdemeanor cases up for a trial that day were assigned to courtrooms and judges, and pleas were negotiated as well. I spent time in both the witness room and the arraignment court for the first couple of weeks, in order to get my feet wet. I remember the first judge I appeared before Harry Alexander, a judge who was notorious for intimidating young AUSAs. A former Assistant US Attorney and Principal Assistant at one point, Judge Alexander made clear his view about courtroom decorum, how a defendant should be addressed, and how a prosecutor should act. He was defense-oriented and he insisted that prosecutors conduct themselves with the dignity required of the courtroom. He was tough on prosecutors, but once you understood his persona, you could try your case without hassle. I was anxious to get into trial, and in my third week I started a rotation. We had a rotation system for a week at a time in front of judges assigned to misdemeanors. I believe my

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first assignment in misdemeanor trial was before Judge John Doyle, now deceased, an experienced judge, former prosecutor, as many Superior Court judges were in those days. I rotated week after week in front of different judges. It was an important experience, learning by your mistakes. I was confident on my feet, but an experienced lawyer on the other side challenged you and taught you how to react. In those days, most of the misdemeanors were handled by court appointed lawyers, known in a colloquial sense as “Fifth Street lawyers”, whose offices were near the courthouses. Most were very good and some were over the hill, but the judges kept everyone in line.

What was the next rotation?

The next rotation was appellate. The legendary John Terry, now a senior judge on the DC Court of Appeals, highly regarded as was his predecessor, Frank Nebeker, also a senior judge on the Court of Appeals, headed the Appellate Section, and was revered for his encyclopedic memory of appellate cases. More than anyone in my legal career, John Terry taught me the fundamentals of legal analysis and brief writing. John made you work at it until you got it right. The Appellate section handled appeals to the DC Court of Appeals from Superior Court and to the US Court of Appeals from the District Court. John gave new AUSAs easier cases at first, and as you progressed, more difficult cases. I handled about 20 appeals during my 10-12 months in the Appellate section. John Terry was a lawyer’s lawyer in every aspect. He would meet with you to discuss the case assigned and suggest an approach. We would then meet after the draft brief was submitted for review and John would personally edit the draft with his red pen.

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He was an excellent teacher and he demanded the best from us. He or his deputy, Jim McMullen, would accompany you to oral argument, whether in the DC Court of Appeals or the US Court of Appeals. Several cases were memorable, including an appeal before a panel in the US Court of Appeals with retired Supreme Court Justice Tom Clark and an en banc case before the entire U.S. Court of Appeals.

In the 1970s the D.C. Circuit had an extraordinary group of judges including Chief Judge David Bazelon, Judges J. Skelly Wright, Carl McGowan, Harold Leventhal, Edward Tamm, Roger Robb, Spottswood Robinson, and George McKinnon. The court was roughly split, with a blend of conservative, liberal and moderate thinkers a distinguished court. It was a great honor for me to be able to argue cases in DC Circuit.

Do you remember what the en banc case was?

The en banc case, United States v. Coefield, dealt with the retroactivity of the Federal Youth Corrections Act, a statute with lenient provisions for youthful offenders. Our position was that the FYCA was not retroactive. It was a great honor to have that opportunity because there are only a few en banc cases in a given year. On the other hand, I remember the other en banc case before the court that day, United States v. Crowder, a Fourth Amendment case, involving the removal of a bullet from a defendant, was very contentious at oral argument.

During my time in appellate, Bill Collins, the Chief of the District Court Criminal Section, asked me if I’d were interested in trying a District Court criminal case. John Terry approved it as long as I got my appellate work done. I tried my first

felony case, involving federal postal fraud, before Judge Barrington Parker, and the jury convicted the defendant. Near the end of my time in appellate, I also co- tried an armed robbery case in Superior Court. After the appellate experience, I was assigned to the Grand Jury section in Superior Court where, day after day, I presented witnesses to the grand jury to seek the return of a felony indictment. This involved weeding out cases that did not have merit. The cases ran the gamut from routine felonies like burglary, unauthorized use of a motor vehicle and false statement, to serious sexual offenses, assault with a dangerous weapon, robbery and murder. One learned the criminal code very thoroughly in the grand jury experience. I do not remember how many cases I handled but it would have been several a day, because you had to interview the investigative officers, and in many cases, the primary witnesses, and if the case did not have merit, you could break it down to a misdemeanor, or dismiss the case. The experience was valuable in its own, but I was anxious to move to the felony section – where the action was.

During my time in the Office, the lawyers from the D.C. Public Defenders Service and AUSAs who tried and defended serious felony cases, had, for the most part, a strong positive relationship. We fought hard in court. At night, we would go out for drinks and dinner after a trial, and socialize on weekends. The friendships remain to this day. Unfortunately, things changed in these relationships in the 80’s – after many of us moved on, and the administration of justice suffered in my opinion.

I tried a number of felony trials during my tenure in the Supreme Court Division.

I was promoted to felony 1 in October, 1976. From October through March 9, 23

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1977, when the Hanafi takeover occurred, I prosecuted the most serious felony cases – murder, rape and armed robbery before the best judges on the Superior Court bench, and against the best criminal defense attorneys in the bar. Our three lawyer team, Mike Scheiniger, Marty Linsky and I were in trial most days – an experience that shaped my entire career at the bar.

Let’s take on the Hanafi trial. Maybe you could set the scene of what happened, what the underlining facts were, your role and what happened in the court.

In 1973, a group of 5-6 men associated with the Nation of Islam traveled from Philadelphia to Washington to murder Hamaas Abdul Khaalis, the leader of the Hanafi sect in Washington, because of his outspoken opposition to the Nation of Islam and its leader, Wallace Muhammed – who he believed were responsible for the murder of Malcolm X in New York City in 1968. Khaalis and his family lived on 16th Street, Northwest in the Shepard Park area (around the corner from my home), in a home donated to Khaalis by Kareem Abdul Jabbar, a Hanafi follower. Khaalis and his wife were not at home when the group arrived at the house, and the group proceeded to brutally murder nine members of his family, including several babies. They escaped just as Khaalis and his wife, Khadija arrived home. The defendants who murdered Khaalis’s family were later captured and successfully prosecuted by the US Attorneys Office. They were sentenced to multiple terms of life imprisonment, as there is no death penalty in the District. Khaalis, unbeknownst to the police and the US Attorneys Office, not only grieved, he began to act out his resentment at not having had the death penalty imposed on the murderers of his family. He planned his revenge. The

16th Street home became a gathering point for a number of young men, who joined the Hanafi sect and regularly gathered at his house for meetings and physical fitness training on the front lawn in the evenings. Having lived in the neighborhood since 1974, I remember seeing blue cabs parked outside the Khaalis house on 16th Street at night and on weekends, with a group of men exercising on the front lawn. What no one knew was that Khaalis was planning an attack of his own. The MPD homicide squad, the best in the country in the 1970s – as it is again today – had a working relationship with Khaalis because they investigated and arrested the murderers of his family, but there were no clues about the impending attack. I believe he lost his mind over the tragic deaths of his family. He seethed while he planned.

At about 10:00 a.m. on March 9, 1977, I was about to begin my closing argument in a murder case involving two parents charged with the murder by starvation of their baby. The case was tried before Judge Nunzio, and my opposing counsel was Frank Carter, a highly respected public defender and good friend. Suddenly the rear courtroom door through which the judge and jurors entered, flew open and several US marshals barged into the courtroom. One of the marshals grabbed the judge, and quickly removed him from the courtroom and escorted him into chambers. The other marshal quickly escorted the jurors to a holding area. Frank Carter and I looked at each other with quizzical expressions, and asked the marshal what occurred. The marshal informed us that a group of armed invaders had taken over the District Building and another armed group had invaded B’nai B’rith headquarters in center city – and that’s all they knew. Needless to say, the

atmosphere in the courthouse was panic stricken. By early afternoon, we all realized that a group of heavily armed men had invaded the District Building and taken hostages in the City Council Chair’s office on the fifth floor. A larger group, very heavily armed, had entered the B’nai B’rith headquarters, taken almost a hundred hostages, to the eighth floor and barricaded themselves. Finally, two armed men entered the Islamic Center on Massachusetts Ave., NW and held two hostages. We then found out that this appeared to be a concerted effort led by Hamaas Abdul Khaalis to seek revenge for the murder of his family. It became clearer by the hour what was happening because the news reports were constant. MPD Chief Maurice Cullinane and Homicide Chief Joe O’Brien established telephone contact with Khaalis who was situated at B’nai B’rith. Khaalis demanded that the murderers of his family be turned over to him and if his demands were not met, he and his men would kill all the hostages at B’nai B’rith, the District Building and the Islamic Center. A WHUR reporter, Maurice Williams, standing outside the Council Chairman’s suite where the four Hanafi members held the twelve hostages during an exchange of gunfire, was killed by the Hanafi captors. Also, a special police officer stationed outside the Chairman’s suite suffered a heart attack during the siege and later died. Councilman Marion Barry, as he was been crossing the fifth floor hall from the stairway in the District Building to the council chambers, was shot in his chest, although, it turned out to be a surface wound.

The nation’s capital was in lock-down over the next thirty-six hours as negotiations with Khaalis began. That night, a few of us gathered over in the

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MPD Chief’s conference room to monitor developments. US Attorney Earl Silbert, Superior Court Criminal Chief Bob Shuker and Felony Chief John Evans, who were responsible for the prosecution of the murderers of Khaalis’s family, huddled with senior MPD officials. At some point, I accompanied several homicide detectives to B’nai B’rith, where we observed thru high-powered scopes from a hotel roof across the street, the defendants abusing the hostages barricaded on the eighth floor. The stairwells had been jammed with furniture to prevent the police from getting to the eighth floor. The defendants had carried to the eight floor 15,000 rounds of ammunition and an array of weapons that included automatic weapons, shotguns, pistols, bow and arrows, knives, throwing stars and a host of lesser, but not any less lethal, weapons. There was no way to rescue those folks – or the folks in the District Building – without a loss of life. From there, we went over to the District Building, scurried up the stairs to the fifth floor and quickly entered the Council Chamber located between the Mayor’s office at one end and the City Council Chairman’s office, at the other end, where the terrorists held the hostages. We entered Council Chambers and moved to a side entrance where we had a close-up view of the hostages tied up and sitting in chairs facing the police barricade squad with guns to their heads. The glass entrance panels had been shot out, and the police on barricade, guns trained on the terrorists, were 20 feet away. It was a very scary situation. For the next 36 hours, negotiations went on with Khaalis, law enforcement officials and the ambassadors from Egypt, Iran and Pakistan.

Were you involved in the negotiations? 27

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I was not involved in the negotiations. The senior police officials led the negotiations assisted by US Attorney Earl Silbert and the ambassadors. On the morning of March 10th, the day after the takeover, US Attorney Earl Silbert called Marty Linsky and me, assistant US Attorneys (and both Fordham Law grads I might add), to be prepared to handle the prosecution of the Hanafi terrorists that would follow, depending on the circumstances. Hopefully, no one would be killed. Like all of our colleagues, we were anxiously awaited a successful negotiation, which did occur later that night when Khaalis agreed to surrender. We prepared to assist the police by accompanying the hostages as they were transported from B’nai B’rith and the District Building to GW Hospital for medical checks and released to their families. We were on the bus with the B’nai B’rith hostages. We were greeted by a throng of reporters and cameras at the hospital, but the police cordoned off an area for the hostages to get from the bus into the emergency room. Marty Linksy and I met with the hostages on the buses, assured them that we would be in touch to set up interviews in preparation for the trial, but we stressed the importance of their physical and emotional health. We suggested that it would be best not to say anything to the press at this point, and then reconvened at MPD headquarters for a brief celebration and repast prepared by Iranian Ambassador Zahedi and his staff. Then we had to prepare for an emergency bond hearing before the Superior Court Chief Judge Green at 6:00am the next morning.

What were they demanding?

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Mr. Tuohey:

The demands included the following: the primary demand was the immediate release from prison of the five convicted murderers of Khaalis’s family and delivery to Khaalis so that he and his men could execute them. The secondary demand was for some undefined reparations to Khaalis and his family from the Jewish community. The third demand was the immediate cessation of a movie, Muhammed, Messenger of God, playing in Manhattan and Los Angeles. I think it was actually stopped for a few days. The key demand was for the surrender of the murderers to Khaalis. This was not going to happen of course.

The hostages were released and taken for medical assessment before discharge. Leaving GW, the place was jammed with press at you might imagine. The Government had agreed during the negotiations with Khaalis, that he alone would be permitted to be confined in his home pending trial with a twenty-four hour police presence. The other 11 defendants were held in pre-trial confinement. The decision was controversial, but it was part of the agreement for the release of the 100 hostages. It was unclear how long he was going to be able to stay. That all changed the week later after Khaalis made telephone threats and his bond was revoked.

Marty Linsky and I had to get busy preparing for the trial which was set 60 days later in mid-May. We spent the next two months assembling the evidence, marshalling the evidence, interviewing witnesses, and preparing for a lengthy trial in a secure courtroom. We spent 10-11 hours, seven days a week, working with a dedicated and highly professional team of MPD investigators, forensic experts and senior MPD officials, led by Homicide Chief Joe O’Brien.

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What were the charges?

Murder, kidnapping, conspiracy, and some lesser charges. The trial preparations consisted of interviews of several hundred witnesses. The selection of trial witnesses resulted from a thorough examination of the facts and assessment of the physical and emotional well-being of the trial witnesses, who were terrorized, and in some cases, injured. It was a very difficult and emotional situation for the victims. To its credit, B’nai B’rith brought together all the mental health support systems it could for those folks. It was amazing to watch how the B’nai B’rith system really did respond to their employees’ emotional trauma. Hostages from the District Building were traumatized as well. One of the witnesses, a law student intern, was shot in the back and paralyzed. Sadly, the same kind of emotional support was not available to those folks. In the end, we had a really courageous group of witnesses who testified in a very compelling manner. The second element of trial preparation involved forensics. We had MPD specialists do forensic tests on the weapons and ammunition, and we had to assemble physical evidence to present to the jury in a way that was secure in the courtroom. The mobile crime team mounted the weapons on secure platforms with bullet proof glass. Three platforms with the weapons mounted were presented to the jury in the well of the court – with marshals surrounding the defendants.

Thirdly, we had to prepare the wiretap evidence. As soon as the takeover occurred, it was clear that Khaalis – barricaded at B’nai B’rith with six of his men – was communicating by telephone with his cohorts at the District Building and at the Islamic Center. An application for a court ordered wiretap was approved, and

MPD was able to monitor the conversations between Khaalis and his men throughout the 36 hours. There were calls back and forth between B’nai B’rith and the District Building, and to a lesser extent, the Islamic Center. In order to charge the defendants in the other buildings with the murder at the District Building, we had to show sufficient evidence that Khaalis and his men knowingly participated in a conspiracy and joint conduct that would impute to Khaalis, together with the defendants in the District Building responsibility for the murder of Maurice Williams as well as other crimes committed there. We also included a conspiracy count in order to utilize the co-conspirator exception to the hearsay rule allowing statements of one conspirator to bind others. Wiretap evidence also requires certain legal procedures necessary for the admissibility of the wiretap evidence – foundation testimony, relevance testimony, chain of custody evidence and the like. In fact, when we put that evidence on the stand, it required we put seven or eight witnesses on the stand simultaneously to testify about these requirements. After a lengthy hearing before Judge Nunzio, in which we demonstrated the legal basis and practical efficiency of the simultaneous panel approach, the court permitted it, and it was sustained on appeal by the D.C. Court of Appeals. Eight witnesses on the stand at the same time – very dramatic testimony.

We planned these three elements of trial preparation 10-12 hours/day, seven days a week, for the two months. We got it all organized – with a great team, a tremendous group of police officers and staff, some of the best law enforcement professionals with whom I ever worked. Judge Nunzio, before whom I was trying

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the murder case on March 9th, was assigned to be the trial judge. He did a tremendous job. He was tough, but fair. Khaalis’s lawyer, former judge Harry Alexander, was provocative and outspoken in the courtroom, asking on several occasions to be referred to as “judge”, but Judge Nunzio made it very clear there was one judge in the courtroom and it was him.

What was the defense? Did Khaalis take the stand?

Yes he did. The defense was revenge, and he blamed the District of Columbia, together with a “Jewish Cabal” for some undefined failure to help his family. Harry Alexander and the other defense attorneys (all of whom were friends/colleagues) did a very professional job defending their clients, especially considering at the time, tense atmosphere due to the alleged threat of Khaalis ordering his men to attack the lawyers, including us. The trial began in May, 1977. I believe it was May 9.

We planned our strategy carefully. Except for some of the histrionics of Harry Alexander, encouraged by his client, Khaalis, the trial was an orderly, day-by-day, presentation of evidence. The defense attorneys were experienced and professional.

All 12 defendants were in the courtroom the whole time?

Yes, they sure were. I don’t remember any real hitches. Again, we had to carefully deal with the wiretap evidence. Most of the witnesses were very good, not intimidated seeing their captors right in front of them. They were courageous

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and testified. The trial was long. The days were long. The nights were long. We would enter and leave a highly secure courthouse with several checkpoints.

How many days?
The trial ended in August.
Was it continuous, daily? There were no breaks?

Very few. Memorial Day and Fourth of July. The jurors, 12 actual and 12 alternates were sequestered. We heard after the fact of interpersonal situations with jurors during the trial – divorce, marriage proposals, dating and the like. In a bizarre instance, one of the young women on the jury became infatuated with one of the defendants and she refused to deliberate. She was replaced.

Did you make the closing argument?

I gave the opening statement. Marty Linsky made the closing argument and the rebuttal. We split the witnesses in half. It was a terrific experience working together – Marty Linsky is a very good trial lawyer. The jury, sequestered during the trial, deliberated for about a day and a half, and found all 12 defendants guilty of multiple counts of kidnapping and assault with intent to kill, and Khaalis, the leader and his cohorts at the District Building guilty of murder. The defendants were sentenced to multiple life terms of imprisonment. Several of them, including Khaalis, died in prison.

Was there conviction on all charges? 33

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Khaalis guilty on all charges; his cohorts in the District Building guilty of murder and multiple charges of kidnapping and felony assault. His cohorts at B’nai B’rith guilty of multiple counts of kidnapping and felony assaults. Noteworthy event: two weeks before the end of the trial, the police arrested a sympathizer of the Hanafi Muslim group, in a bizarre, attempted to buy on Georgia Avenue (several blocks from my house) grenades and silencers to kill our families – Earl Silbert, Marty Linsky and me. US Marshals moved into our homes for the duration of the trial.

Oral History of Mark Tuohey Third Interview October 24, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the third session of the oral history of Mark Tuohey. Bill Marmon is the interviewer. The interview is taking place at Baker Hostetler, Mark’s law firm.

Mr. Marmon: Mark, how did you get from the US Attorneys Office to the Department of Justice?

Mr. Tuohey: After the Hanafi case and some clean-up details were completed, I was contacted by the Criminal Division of the Department of Justice, where several of my colleagues in the US Attorneys Office had transferred after completing their stint to join the Criminal Division as Special Counsel and try high profile cases. Ben Civiletti was the Assistant Attorney General in charge of the Criminal Division and he asked me to join the Criminal Division as Special Counsel to handle major organized crime and political corruption cases. I had met Ben in 1975 when I was Co-Chair of the Criminal Law Institute, an annual high-profile CLE program sponsored by the US Attorneys Office and the Public Defenders Service. In 1977, I served as Chair of the Young Lawyers Section of the Bar and I invited Ben to speak at my farewell dinner. Over the years, we developed a nice relationship. Ben asked me to join his team in the Criminal Division in September, 1977, and I enthusiastically agreed to continue my work as a federal prosecutor rather than pursue several private law firms that had approached me after the Hanafi trial.

I spent 18-20 months at the Department of Justice as Special Counsel working for both the Assistant Attorney General Criminal Division and the Chief of the

Organized Crime and Racketeering Section, Kurt Muellenberg, and his deputy Dave Margolis, both career prosecutors. During that 18 months, I was involved in a variety of very interesting matters. The first assignment was to lead the trial team in the prosecution of the Columbus Day bombing case in Rochester, New York. The Columbus Day 1970 bombing incident, involving the attempted bombing of the Federal Building, an African American church and an attempted bombing of a Rochester labor leader’s home. This case was unsolved for a number of years, although law enforcement believed that the local mafia crime syndicate was responsible. In 1977, the FBI turned one of the syndicate’s capos who fingered six key members of the Buffalo / Rochester crime family under Frank Valenti. As a result of the witnesses’ testimony, a multi-count indictment was returned charging the six defendants with attempted murder of Federal officers, bombing, arson and conspiracy. In fact, these defendants were already in state prison after convictions in a murder case involving an informant. As a matter of irony, during his earlier service as an FBI Special Agent in Rochester in the early 1960’s, my father investigated and arrested several of these defendants.

I agreed to lead the prosecution and work with the Buffalo Strike Force attorney in Rochester. The defendants’ names were familiar as organized crime figures. I knew several of the lawyers on the defense team, and the two deputy sheriffs involved in the investigation were high school friends. It was like old home week for me. The senior federal judge in Rochester, Harold Burke, an old friend of my grandfather, was in his late 80s, and we felt he could not handle a high profile mob case. We decided that I would go to see Chief Judge Curtin in Buffalo to

request a judge from the federal court in New York to try the case. I had met Judge Curtin, a former US Attorney in Buffalo when my father was an FBI agent in Rochester during the 1960’s. The judge agreed and arranged for Judge George Pratt from the US District Court in Brooklyn to try the case. The trial began in January, 1978. I had the assistance of several experienced FBI agents from the Rochester office, worked with an immunized witness, who, while credible, would be attacked as a rat on cross examinations. The trial lasted several weeks. At the end, the jury convicted several and acquitted several defendants, but it ended a long period of uncertainty in Rochester. The trial was a unique experience – my parents were in the courtroom much of the time, and these were criminals my father had investigated. Judge Pratt, who later went on the Second Circuit, presided in a very professional manner, and handled the defense histrionics with a deft, but firm hand. He set the sentencing for St. Patrick’s Day, March 17, an irony which did not go unnoticed by this Irish prosecutor! In a related manner, I also represented the Strike Force Chief in Buffalo, who had been accused of violating the cannons of ethics by the leader of organized crime in Buffalo and a member of the Bonanno crime family. I argued before the New York State Bar Grievance Committee in Buffalo and the complaint was found to be non- meritorious. I enjoyed spending this time in western New York, my home.

The next case was an unusual one. In 1978, Ben Civiletti was named Deputy Attorney General, and he and Kurt Muellenberg, the Chief of the Organized Crime Section, sent me to Florida to investigate a bizarre situation. The Organized Crime Strike Force in Miami had indicted the leader of the South

Florida mob, Anthony Accetturo and several cohorts, for extortion (and related offences) of the owner of the famous Fontainebleau Hotel in Miami Beach. I was sent to Miami because the assigned Strike Force lawyer, an experienced trial lawyer and former AUSA in New Jersey, had mismanaged the key immunized witness, who was supposed to be in the witness protection program – but had disappeared. William Stone was missing, and as it turned out, he was not under the supervision of the U.S. Marshal’s Service, but allowed by the Strike Force lawyer to be freelance. The Strike Force Attorney had persuaded the FBI to allow the Strike Force lawyer to handle the witness. The FBI thought Stone was living in San Diego, but the 65 year-old witness, who had been involved in criminal activity most of his life, was living in Hollywood, Florida with an 18 year-old woman. Suddenly, Stone went off the grid. I worked with an experienced FBI agent, Ben Grogan, to track down Stone. Grogan was later murdered in a parking lot in Miami by two armed robbers attempting to escape, who pinned the FBI agents in their car and shot them. Ben was a superior agent who found out from a source that Stone and his young girlfriend had fled to Hawaii where we found him.

At this point, I had been directed to remove the Strike Force attorney from the case and assume responsibility for the case. One of the key members of the Miami Strike Force, John Evans, who had been my boss in the felony trial unit in Washington, joined me as co-counsel. We prepared the case for trial. In the meantime, Ben Grogan and I had to go find our witness in Hawaii. We flew to Hawaii, and with the aid of the Honolulu FBI field office, we were able to track

down Stone in Honolulu. We debriefed him for a day or so, and then brought him back to Miami.

Mr. Marmon: How did you find him?

Mr. Tuohey: The FBI traced his movements to several of the islands and we followed his tracks when we learned that Stone returned to Honolulu, and was staying a particular hotel. We set up surveillance and when we saw him leaving the hotel, we confronted him. The FBI took him into custody. My recollection is the Bureau arranged for his girlfriend to return to Florida. We debriefed him and brought him back to Miami, where he was placed in the custody of the FBI. He was kept in a home confinement with the Bureau sitting on him until trial. We prepared to go to trial with Stone as our key witness against the defendants, who on the third day of the trial, the defendants elected to plead guilty and were sentenced to federal prison attempting to extort the owner of the Fontainebleau Hotel for a substantial sum of money, and when he refused to pay, the defendants assaulted his son, a medical student in Miami, and broke several fingers on both hands, and threatening more violence if his father refused to pay. The FBI conducted the investigation and contacted the Strike Force. The Strike Force Attorney who was responsible for failure to properly handle the immunized witness received departmental discipline.

The next assignment was to assist Chicago Strike Force Chief, Peter Vaira, in a major corruption investigation in Indianapolis. Vaira, who later became the US Attorney in Philadelphia, is an excellent lawyer and a great friend. (When he

became US Attorney, he asked me to be his first assistant, but I decided against a move to Philadelphia). The Chicago Strike Force had under investigation several state officials in Indiana and local officials in Indianapolis. I was assigned to assist in that matter and if need be, help try the case. I spent several days in Chicago, meeting with the Strike Force lawyers, and interviewing potential witnesses. In the mist of that, I got a call from Deputy Attorney General Civiletti’s deputy, Tim Baker, who asked me to return to D.C. to meet with him and Ben Civiletti to discuss joining the trial team for the prosecution of three senior FBI officials, Patrick Gray, Mark Felt and Edmund Miller. The case involved illegal FBI surveillance activities, and they were later convicted and pardoned. In that phone call with Baker, I said I would do whatever the Department directed, but they needed to be aware (because it would come out) that several of those officials worked closely with my father when he was with the FBI. The assignment did not trouble me, but they needed to know the background. It was decided that it could be a complicating factor, so I was not involved in that case. Ironically, after I talked to the Department of Justice, I called my father to alert him. He said, “Of course you are going to do your job. I am actually going to Buffalo tonight to give a speech about the investigation you are talking about. I will not mention that you may be the prosecutor.” It turned out that was the right decision.

After I returned to Washington, OCR Deputy Chief Dave Margolis asked me to go to Newark and conduct an investigation into the allegation that individuals in the United States Marshal’s Office in Newark had leaked information about

witnesses in the Witnesses Protection Program, particularly in connection with several pending organized crime cases in Brooklyn and Manhattan. I worked with an FBI agent and a New Jersey State Police Organized Crime Investigator, both of whom were top-notch. We spent the next month interviewing people in the US Marshal’s office and members of organized crime families, some of whom were in the witness protection program, including Sammy (the Bull) Gravano and Ralph (Baby Face) Pickering. In the end, we concluded that there was not credible evidence that the Marshal Service was leaking information. I had to present the findings to US District Judge, Herb Stern, the former US Attorney in Newark, presiding over the federal grand jury in Newark. It was a fascinating experience dealing with those personalities.

In those days at the Department, there were a number of excellent lawyers who were highly regarded in the Department and have been highly regarded in private practice over the years. Reid Weingarten, for example, one of the best trial lawyers in the country (Public Integrity); Phil Fox, who had been on the Watergate prosecution team and a former AUSA (Organized Crime), John Kotelly, who had been in the US Attorneys Office (Fraud), Bob Richter, who later became a Superior Court Judge (Public Integrity); and Eric Holder, who later became US Attorney General (Public Integrity). I add these names to the many excellent lawyers with whom I had the good fortune to work with in the US Attorneys Office. The experience was unmatched and sent me on a course to a wonderfully rewarding career.

The final case that I tried was Congressman, Daniel J. Flood (D. Pa). Congressman Flood had been under investigation by the Department for bribery / gratuities violation. This was in the same era as the Abscam investigations. Flood’s Administrative Assistant, Stephen Elko, was convicted in 1977 in federal court in Los Angeles for soliciting bribes from west coast vendors who approached Flood’s office for federal grants. He then agreed to cooperate with the DOJ against Flood, who was indicted in the spring of 1978. Dan Flood, the senior House Democrat from Pennsylvania, was also a member of the “College of Cardinals”, a euphemistic term for the Chairs of all the Appropriations Committees in the House – the most powerful group of congressmen in the House of Representatives. Flood hailed from Wilkes-Barre, Pennsylvania, and served as Chairman of the Appropriations Committee for HEW / Labor. This position, together with his senior position on the Appropriations Committee for Defense and Armed Forces made him a very powerful man. Stephen Elko, on Flood’s behalf, solicited bribes from a number of persons and entities who sought the Congressman’s assistance in one matter or another. The primary incident that drew attention was the devastating floods from Hurricane Agnes in 1972 that destroyed a lot of the Pennsylvania communities along the Susquehanna River. Dan Flood did a fine job of assisting people with needed funds and aid, but there was a cost, and the cost involved was cash payments to Flood and Elko. One of my colleagues at the Department, John Dowd, who was the Chief of Strike Force 18 in Washington, had worked the case and presented the evidence to the grand jury. Prior to the conclusion of the presentation, John had decided to accept an

offer to go into private practice, and he recommended to the Attorney General that I be assigned to try the case. My recollection is that he and I finished the presentation and presented the matter for a final vote on a multi-count indictment. Elko, after his 1977 conviction in federal court in Los Angeles, spent two years at Lompoc, a minimum-security prison near Los Angeles. When I took over and prepared to prosecute Congressman Flood in what would be a high-profile trial, I recruited Los Angeles AUSA David Hinden, who had prosecuted Elko, to work with me and to try the case together, to which he agreed. He was a very valuable part of the team. In addition, I asked a new attorney in the Criminal Division, Karen Tandy (who later served as the Director of DEA) to join the team and she served an important role.

In preparation for the trial, I spent several hours with Stephen Elko at Lompoc Federal Correctional Facility in California. Elko was very helpful in his testimony at the trial. He admitted that he was the facilitator for Congressman Flood in the scheme and both benefited. The cast of witnesses in the trial was a very interesting group of folks, including a well-known Jewish Rabbi in Brooklyn, Leib Pinter, who ran the summer milk program with funds supplied by Congressman Flood’s committee. Pinter paid bribes, plead guilty and did time. After Pinter testified at the trial on a Friday, the following day’s Washington Post had an op-ed piece by Mary McGrory that headlined “Friday, the Rabbi testified”, as a throw-back to Harry Kemelman novels. Pinter came across as a persuasive witness. After several weeks of trial, Congressman Flood’s lawyer Axel Keibomar, requested a brief continuance due to Flood’s ill health. The defense

raised an issue of his competence to continue the trial. Judge Oliver Gasch, a former US Attorney and highly respected judge, granted the continuance, and directed counsel to promptly advise the court of the Georgetown University Hospital medical team’s evaluation of Flood’s competency. As a precaution, we assembled a medical team from George Washington University Hospital to prepare our own evaluation during the two week break. There was a good deal of discussion back and forth between the medical teams. The judge then held a competency hearing based on the Georgetown’s team finding that he was no longer competent. Our team opined that Flood, despite his age and infirmities, was fully competent.

His lawyer, in an interesting and creative approach, put him on the stand after the Georgetown doctors testified. Flood’s lawyer intentionally asked him a series of convoluted and complicated questions which he struggled to answer. I decided to take a different approach since I was not sure I could have answered those questions. I asked the Congressman if he remembered my name. He looked at me and said, “Yes. Your first name is Mark. Your last name is T-O..” then turned to the judge and said, “I can’t pronounce or spell his last name, but I do know that he is Lace Irish,” tongue-in-cheek, I turned to Judge Gasch and said, “With that, I have no further questions.” I actually asked him a few other questions, and it was clear he could respond in a coherent way. I then put my medical team on from GW. The court concluded that Congressman Flood was competent to continue the trial.

In a bizarre turn of events, after final argument, the jury was 11-1 for conviction, but there was a hold-out juror who refused to even discuss with other jurors. He had at one time worked as a cook at Airlie House in Virginia, a facility supported by funds provided from Flood’s HEW Appropriations Committee. In addition, the Director of Airlie House was under investigation for paying gratuities to Flood and was later convicted. We suspected jury-tampering. While the FBI could never prove it, we believed this juror had been influenced. In any event, we were prepared to retry the case and Congressman Flood decided to plead guilty a couple of months later. I believe that was the last case I tried during those 18-20 months at Justice, but it was a full docket of interesting and high-profile cases and people.

I want to talk about my experience as the Principal Deputy Independent Counsel, in the Whitewater investigation. When Attorney General, Janet Reno, appointed Bob Fiske to become the Special Prosecutor, under her authority as Attorney General in late 1993 / early 1994, the Fiske team focused on four investigative areas in Washington: the death of Vince Foster, the White House Treasury contacts, the travel office issue, and the conduct of the Department of Justice during these matters; the Little Rock office focused on financial transactions in Arkansas. Fiske was in the process of a thorough and credible investigation when Congress finally decided to renew the Independent Counsel Statute that had expired. The renewal gave appointing and jurisdiction authority to a three-judge court comprised of a Chief Judge from the District of Columbia Circuit, then Judge David Sentelle, and two other Circuit judges, Judge Sneed (9th Circuit) and

Judge Butzner (4th Circuit). In June/July, Ken Starr was contacted by Judge Sentelle about his interest in becoming the Independent Counsel replacing Bob Fiske. I never agreed with the notion that Bob Fiske should be replaced. He was a magnificent United States Attorney in New York in the 1970’s (when I served under Earl Silbert in DC). Together with Tom Sullivan in Chicago, Fiske and Silbert were three of the great US Attorneys in the 1970s. It was announced early August, 1994 that Ken Starr would succeed Bob Fiske to investigate the Whitewater issues under the direction of the three-judge court. The 1994 ABA Annual Meeting during this time in New Orleans. As usual, because of the number of relationships and positions I had in ABA that year, I attended the meeting that weekend.

At the ABA Annual Meeting in New Orleans, I ran into Ken Starr and my old friend from DOJ days, Terry Adamson, who was advising Ken on the formation of his team, at the Hilton Hotel just as I arrived. Terry and I worked together during my time at DOJ, and we have been friends over the years. When I met with Ken and Terry at lunchtime on that Friday on the first weekend of August, I told Ken that I had some thoughts about lawyers he should consider. Ken and Terry said they wanted to discuss it further. I invited Ken to sit at the DC Bar table at the “Women of Distinction” lunch on that Sunday, and we could talk some more then. That Sunday morning, I was on a panel with Terry Adamson and others on the issue of Congressional Investigations. Terry suggested that I come up to his suite that night to discuss personnel. At lunch, Ken and I sat together at my table, but he had to leave early for a speech to the Federalist

Society. Since there were reporters waiting outside the main ballroom, I took Ken through the kitchen to get to a back elevator, and we talked on the way. I gave him some names to consider for his principal deputy to oversee the investigative efforts, since Ken did not have that experience. That night, I stopped by Terry Adamson’s suite and over drinks Terry informed me that the “committee” advisors who had flown into New Orleans on Saturday to discuss these matters with Ken decided to recommend me for the job. That was an interesting discussion with Terry that Sunday evening! I said I needed to talk about it with Ken (as well as my wife and my firm).

I left New Orleans the next day to join my family and a dear friend, Judge Matt Byrne, a former US Attorney and then Chief Judge of the District Court in Los Angeles (as was his father). Matt was widely admired for his work over many years and he had great practical and political judgement. We spent a week at his fishing camp in Jackson Hole, Wyoming. That first night, after everyone went to bed, Matt and I discussed the Starr offer for several hours. His advice and my thinking were on the same page. It was important for me to take the position – to assure the investigation was handled thoroughly with care.

When I returned to Washington, I met with Ken. We discussed the nature of my responsibilities and the investigation in general, and after further deliberation, I decided to accept, in view of my background and ability to help him work though this investigation. I stayed for the period of time I felt was necessary to complete the bulk of the investigation, and by the following August, 1995, I felt the fact finding was essentially completed. It was a very interesting year.

Mr. Marmon: Mr. Tuohey:

We first hired the Washington staff, and then additional staff in Little Rock to work with the Fiske staff that thankfully stayed on for a period of time. We had a civil and positive working experience working with White House Counsel during that year – Lloyd Cutler, followed by Judge Abner Mikva. We had similar working relationships with the Department of Justice under Janet Reno – Deputy AG Jamie Gorelick and Criminal Division AAG, Joanne Harris. Jamie, whom I had succeeded as D.C. Bar Presidents and have been close friends for many years. We had a strong working relationship throughout my time with the FBI under the Director Louis Freeh.

An immediate focus for me was the Vince Foster death. We examined the evidence Bob Fiske had collected and I felt Fiske had the right approach. As a former homicide prosecutor who examined cause of death issues, I tentatively agreed with the Fiske team findings, but I wanted our team to conduct additional witness interviews and forensic examinations to make the conclusion fool-proof – particularly with the growing number of loose-cannon conspiracy theorists.

What was the issue?

Was it suicide or something else? We brought in additional resources – a number of nationally renowned forensic folks, Brian Blackburn, medical examiner in Massachusetts with whom I worked in Washington in my AUSA cases, Henry Lee from New Haven, a well-known forensic scientist, and a number of technical experts from the FBI to examine the scene at Ft. Marcy Park. I also traveled to Hope, Arkansas with an FBI team to interview Vince Foster’s mother and sisters,

examine his background, and search his belongings. At the time I left in late August, 1995, I was convinced that Vince Foster suffered from severe depression. He was a proud man who could not deal with even minor failures and took his own life. Our team interviewed a number of Treasury and Justice officials, and by late summer, 1995, in my view, concluded the fact-finding in all the D.C. investigations.

I was involved in matters in Little Rock as well. With the able assistance of Professor Sam Dash, who we hired very early on to be our ethics officer, since the Justice Department for a short time was a subject of the investigation. Dash’s advice was important to our work and to our reputation.

In terms of hiring in the Washington office, the first two people we brought on board were Brett Kavanaugh, Justice Kennedy’s law clerk, and who was about to start at Kirkland & Ellis and Alex Azar, a Scalia clerk. They were both young lawyers, but very bright and capable. They played important roles. We hired Rod Rosenstein, who was working at the Public Integrity section of DOJ, and later served as the US Attorney in Baltimore; Hick Ewing, a former US Attorney in Memphis; Brad Lerman, head of Special Prosecutions in the Chicago US Attorneys Office; Amy St. Eve, an associate at Davis Polk recommended by Bob Fiske, and now a 7th Circuit Judge; Steve Colloton, a former AUSA in Iowa, now an 8th Circuit Judge. Bill Duffy who had worked at King and Spalding (now a Federal District Court Judge in Atlanta) together with Dennis McInerney and Julie O’Sullivan, former AUSAs in New York, gratefully stayed on for a period to assist in important ways.

Mr. Marmon: Mr. Tuohey:

What was Kavanaugh’s role?

Brett wrote important legal memoranda on critical issues. He was also involved in the Foster investigation where he learned investigative techniques and the skills of interviewing witnesses. He grew in the job in a very substantial way. I brought in a friend and colleague from the US Attorneys Office, John Bates, who ran the Civil Division, as principal deputy. He served as my deputy and succeeded me when I left. He also worked closely with Brett Kavanaugh. Brett and Alex Azar immersed themselves in a number of legal issues and were a very valuable part of the team. We conducted the interviews of Hilary Clinton and President Bill Clinton in April in the White House, but largely on the Foster death. I do not recall the Rose Law Firm issues that came up until the Seconerview in July, which I did not attend because I had announced my impending departure to join Vinson & Elkins, which had represented the Rose Law Firm.

After I left, I would have discussions with Ken or John Bates from time to time, but I had completed my work when I started with Vinson & Elkins in September, 1995.

What was your thought on the Whitewater investigation? Was there anything there?

Yes. There certainly was. I was involved in the review of the indictment of Jim Guy Tucker, the former governor of Arkansas, and the McDougals in the Madison National Bank transaction and the 855 Loan. We discussed the evidence and

Mr. Marmon:

Mr. Tuohey:

approved the indictment. We discussed what if any role the Clintons played. We had a long discussion in Little Rock, and, with Sam Dash’s counsel, we determined that the indictment had merit, and that the evidence did not support naming anyone beyond the three named defendants, who eventually were convicted.

Mr. Marmon: How as Ken Starr to work with?

Mr. Tuohey: Ken is a collaborative colleague, and a gentleman. He has great temperament.
He is very smart. He was not experienced in criminal investigations, but he was a good listener and took advice. I value that relationship. The whole Lewinsky issue was a difficult one because it was presented to the Attorney General and the Attorney General concluded that if it was going to proceed, it should proceed with the Starr team, rather than with a new Independent Counsel. I have mixed views about the whole Lewinsky matter, and the decision to testify about the final report, but I am supportive of the results of other parts of the investigation.

Oral History of Mark Tuohey Fourth Interview November 7, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the fourth session of the oral history of Mark Tuohey. Bill Marmon is the interviewer.

Mr. Marmon:

Mr. Tuohey:

We’re going to talk about your early law firm days before you joined Vinson & Elkins.

When I came out of the Department after the prosecution of Congressman Dan Flood, I interviewed with several firms. I came close to accepting the offer from Arent Fox to join their litigation group. At the last minute, I became aware that the largest law firm in Rochester, New York – Nixon, Hargrave, Devans & Doyle – whose reputation I knew well, had a Washington office. The Chairman of the firm called me to meet with Administrative Partner in Washington. I received an offer to join the DC office. At that time, I was considering an eventual return to Rochester and run for Congress, and the firm’s presence in Rochester would facilitate such a decision. I accepted the offer from Nixon Hargrave and started in late, 1979. The DC office was small with about a dozen lawyers, although that later changed when one of its major clients, Gannett, moved its headquarters to the Washington metropolitan area in 1982. I began to build a white-collar defense and investigations practice working with my former colleagues from the US Attorneys Office who were now in private practice. I began as Counsel with the understanding that I would become a Partner within a couple of years. I built my own practice at the firm and served some of the firm’s clients as well. I enjoyed the firm and its lawyers, and I spent time in Rochester every few months. After

several years, I decided that I would not pursue political office in New York, and decided to leave Nixon-then a small D.C. outpost – and look for a larger DC presence.

Several friends left their respective firms and opened a boutique and asked me to join. Although I eventually wanted a larger D.C. presence, I decided to join them for a short period while I decided what large firm was the right fit. That short period lasted several years, and a number of interesting matters were referred to me, which kept me busy – assisting in the representation of the Litton Industries Ingalls Shipbuilding Co. in federal court in Jackson, Mississippi in a case where DOJ alleged fraud by the shipyard in the reporting of cost overruns in the SSN 680 nuclear submarine construction, and the representation of the President of Community Savings and Loan / EPIC, a major Maryland Savings and Loan / Real Estate syndicator that failed because of the Maryland Savings and Loan collapse in 1985.

The first case, referred as the 680 Submarine case, involved the preparation of a trial defense to a questionable indictment filed in federal court in Alexandria, Virginia, dismissed by the trial judge, reversed and remanded by the Fourth Circuit, and then transferred the case to the federal district court in Jackson, Mississippi. After a three-month trial, the jury, on December 11, 1984, just before Christmas – returned a verdict for the company, a wonderful Christmas present! In the second major case, my client and four other officers of the Community Savings and Loan were sued by the State of Maryland with fraud and mismanagement, and later charged by the Baltimore US Attorneys Office with

fraud. This representation was a major and complex undertaking that involved preparing two six-month trials – a civil damage trial in the Circuit Court of Montgomery County, followed a year later by a criminal trial in federal court in Baltimore – over a period of three years. Fortunately, after an intense learning curve to understand the details and nuances of the packaging and sale of mortgages in the secondary securities market and the regulatory framework of the Federal Home Loan Bank Board System, we managed to avoid a fraud verdict in the civil suit, settling for a compensatory damage verdict, and, after a six-month federal criminal trial, Chief Judge Walter Black of the US District Court in Baltimore, found my client and the other defendants not guilty.

In early 1986, during the investigative phase of Maryland civil case, Bill Bittman, a well-known Washington trial lawyer and partner at Pierson Ball and Dowd, called and asked me to join him for dinner in New York City, where Bittman was in trial defending former Labor Secretary Ray Donovan (later acquitted by a Bronx jury). Bill urged me to consider joining the firm and building a white- collar practice. I decided this was the type of firm that fit my interests – substantial DC presence and depth. In 1990, the firm merged with the Reed Smith firm, which added more depth. I joined the firm in 1986, where I continued the representation of Clay McCuistion, Community Savings and Loan President, which involved a six-month civil jury trial in Rockville, Maryland in 1988 where the jury found our clients liable for mismanagement, but not liable for fraud, and the court assessed fines. At some point before the trial ended, the Baltimore US Attorney represented that his office would likely not charge our clients for

criminal violations if the civil jury did not find our clients liable for fraud. Notwithstanding the verdict, the Baltimore United States Attorney’s Office charged McCuistion, Community Savings and Loan, and two other bank officers with criminal fraud. The trial was set for October, 1991 before Chief Judge Black in Baltimore federal district court. We decided to waive a jury and present the case to a learned and street-smart judge, who we believed would listen to the evidence (as opposed to jurors who had experienced the inability of their fellow citizens to recover their savings). At the conclusion of the case, the judge deliberated in chambers for a brief period to draft his remarks, and announced his verdict – NOT GUILTY.

Ironically, the lead defendant, Tom Billman, fled the country before the criminal trial began. A few years after our trial concluded, he was arrested in Paris and extradited to the US. After his trial, he was convicted and sentenced to fifteen years, which he served. The entire experience was quite an expansive engagement, from working with Arnold & Porter to try to marshal the assets from the properties on which mortgages were held by the bank, to spending six to seven months in trial on the civil case and a year later, six months on the criminal case.

Between 1992 and 1995, I was again retained by Litton Industries to defend two separate Litton officials in connection with the “Ill Wind” procurement fraud cases brought by the US Attorneys Office in the Eastern District of Virginia (Alexandria). In both cases, my clients were acquitted of the major counts (bribery) and found guilty of a minor count (false statement). In addition, I

Mr. Marmon:

Mr. Tuohey:

defended on of the officials in a related civil fraud case in Alexandria federal court, and the court found for the Litton defendants.

In 1992, I was elected President-Elect of the District of Columbia Bar (DC Bar), and worked closely with my dear friend Jamie Gorelick during her term as President. In June 1993, I began my term as President of the DC Bar, a rewarding experience heading one of the nation’s largest and most important bars. During that two-year term, given the time-consuming responsibilities as Bar President, I spent less time in the office than my other years at the firm. In the summer of 1994, after my presidential year ended, I was starting back on a full docket when Ken Starr contacted me (as we had talked about), and I agreed to serve as the Principal Deputy Independent Counsel, which I did for one year. I did not have to resign from the firm, by this time renamed Reed Smith, but I spent much of my time at the Office of Independent Counsel.

Let’s talk about the years you served as President of the Bar and the columns you wrote. I read those and was particularly engaged by the one discussing the need for civility.

Civility in the profession became a very important and pervasive concern to practicing lawyers, especially trial lawyers, in the 90’s. With all the pressures surrounding dispute resolution in our system of jurisprudence, emotion and intemperance became pervasive. Leaders of the bar called more attention to civility, and more training for lawyers about the profession and its values. Trial judges reacted and became outspoken about the lack of civility in the courtroom.

It became a major issue. The DC Bar developed some approaches and training materials. There was a constant drum-beating among our members to deal with the civility-training and supervision of lawyers, especially at the large firms. Mandatory continuing legal education was another issue. The DC Bar established a distinguished panel, led by Dean Jack Friedenthal of George Washington University Law School and Marty Minsker, a partner at the Miller Cassidy firm, and an experienced group of practitioners and academics to study the issue and shape an approach to continuing legal education. We then presented the Court with a proposal for mandatory CLE. As it turned out, after a year and a half, the DC Court of Appeals decided that it would not act until the matter was submitted for referendum to the members of the DC Bar. By that time, my term ended and the next Board of the Governors decided not to pursue a referendum since the Board believed that it was unlikely to pass. We continued with voluntary CLE, but mandatory ethics training and that is the current practice, notwithstanding that 40 states now have mandatory CLE. We also focused that year on the relationship between court appointed lawyers and the administration of the courts in order to improve the working conditions, financial support and timeliness of payments to the court-appointed lawyers. We established a task force that looked carefully at this issue, and presented a thoughtful report to the Chief Judge of the Superior Court and the Chief Judge of the DC Court of Appeals, and changes were implemented as a result.

As every Bar President and Board of Governors has done, we promoted pro bono volunteer work and more comprehensive training for pro bono lawyers. We also

Mr. Marmon: Mr. Tuohey:

established a program where lawyers could volunteer in the elementary and high schools and work with kids to provide academic assistance, counseling and activities out of the classrooms, i.e., sports and arts. We established a pool of lawyers to volunteer at DC public schools. Finally, we hosted a series of conferences for Bar leaders in the region and in major cities to promote these projects. All in all, it was a very successful year. We also amended several sets of rules that affect how a mandatory bar operates.

That takes up to 1995.

I completed my tenure as the Principal Deputy Independent Counsel in August, 1995. In September, 1995, I started with Vinson & Elkins (“V&E”). My 16 years with Vinson & Elkins took on a much more national and international cast in a firm with offices and clients in Europe, Russia, the Middle East and Asia.

Let’s talk about why you switched.

V&E is a large international law firm that provided more opportunity, more resources, and a wider bandwidth for someone of my background – litigation, white-collar corporate criminal defense, corporate criminal investigations and congressional investigations. While I had a great experience at Pierson Ball / Reed Smith, V&E was a larger world, a bigger pond. When the firm approached me, I decided to accept the opportunity.

Tell about the start of your career at Vinson & Elkins.

Mr. Marmon:

Mr. Tuohey:

Vinson & Elkins was a large international law firm with its headquarters in Houston and a major practice in the oil and gas / energy world. I had the responsibility to build a white-collar investigation and trial practice at the firm. There was no infrastructure for such a practice at the time. To build the infrastructure required recruiting lawyers, both within and outside the firm, to the group. As we grew, we had to persuade the partners in the firm (and their clients) of the utility of using our white-collar capabilities to deal with those kind of problems, rather than referring those matters to other firms. Over sixteen years, we built a very strong presence in the white-collar practice world, including a team in our London and China offices. One of the clients served right away was Enron, the largest client of the firm. Until Enron’s collapse in 2000, our team was involved with matters domestically and internationally. We conducted internal investigations for Enron in the United States, United Kingdom, India, China, Russia and South America.

What do you mean by internal investigations?

Internal corporate investigations occur when a company is on notice that it may have a problem with internal misconduct such as corruption, bribery, gratuities, violations of securities law, procurement or environmental regulations, or other violations of federal or state law or company compliance policies. The company may learn from internal or external sources, including government regulators, law enforcement or third parties. The company then hires an outside law firm, such as V&E, to conduct an internal investigation and report its findings to the company for further action. In that situation, we would initially meet with company

Mr. Marmon: Mr. Tuohey:

officials, and if government authorities had initiated the matter, we would attempt to persuade the authorities to hold off while we conduct an investigation. We would disclose the results, to the extent we could under ethics rules and the attorney-client privilege, to resolve the matter. We conducted these investigations in a number of situations. In situations where the government was already investigating, we would conduct our own investigation. Internal corporate investigations has become a substantial practice area in large firms.

You report results to the management of the company?

Typically, the company’s Board of Directors set up an audit committee to be the responsible entity to whom outside counsel would report. It could include the general counsel as well. In a publicly traded company, it is often the audit committee so there is a record. We would conduct the investigation using internal resources of the company and the firm, and, as needed, outside forensic experts, to interview witnesses, review documents and report our findings. In these situations, the company itself or an individual, officer, director or employee of the company could be exposed to criminal prosecution. Representing the institution was one phase of this work. The other side of that coin involves representing individual senior officials or managers of the company while another firm represents the company. At Vinson & Elkins, we represented major companies, as well as individual officers and directors in these kinds of investigations and at trial.

Were you involved in the Enron bankruptcy? 60

Mr. Marmon:

Mr. Tuohey:

The firm was involved as one of the principal outside counsel to Enron. I was not involved in the Enron bankruptcy litigation, although I recommended one of my law school classmates, Dennis Cronin to represent the firm in the bankruptcy proceeding. In addition, I served on the V&E team that worked with our outside counsel, Williams & Connolly, in the SEC investigation.

What other cases did you handle?

I represented Frank Joklik who was the non-executive Chairman of the 2000 Salt Lake City Olympics. When the controversy broke in 1996 with the allegation that there were improper payments and gratuities to IOC members from around the world, I came in to represent Frank Joklik. Latham & Watkins represented the Salt Lake Olympic Committee (“SLOC”) as lead counsel, and some other operations officers had separate counsel. The matter took a while to resolve. Mr. Joklik was cleared of any wrongdoing, although he did step down at the request of the Board, which was influenced by the elders of the Mormon Church. For appearances sake, he stepped down, but everyone acknowledged there was no wrongdoing by Joklik. Any alleged wrongdoing would have occurred in the operations area. For the good of the Salt Lake Olympics, Frank stepped down and former Governor Mitt Romney took over. It ended well for Frank in the investigation – he had no knowledge of what was going on in the operations area. The allegation was that the operations folks, in trying to be responsive to the IOC members who would make inspection visits to Salt Lake and expect elaborate gifts – a practice that existed in the Olympic site for many years. Two members

Mr. Marmon: Mr. Tuohey:

of the operations group, the CEO and CFO were charged, but the federal judge later dismissed the case against them.

Another interesting matter I handled with several of my partners was the investigation of the Los Alamos National Laboratory in Los Alamos, New Mexico in 1996. I spent the summer of 1996 in Los Alamos conducting an investigation into the potential theft of highly classified confidential information. We represented the University of California, which was under contract with the Department of Energy to operate the lab. We reported to a Committee, which included the former Chief of Naval Operations, the former Deputy Director of the CIA, the Provost at the University of California Berkley, and a physicist from Yale, among others. We concluded our work over a period of six weeks and presented an oral and written report to the Board of Overseers.

That was confidential report, so you don’t want to talk about?

Because we were required to have top-secret clearance, I cannot discuss it further. I also needed a top-level security clearance (Q-Clearance) at V&E when I represented Nora Slatkin, the former Executive Director of the CIA under John Deutch, in conjunction with the allegations that Deutch took classified information off the premises. He later plead guilty to a misdemeanor. Nora was cleared of any involvement.

How’d you get involved with Ireland?

Mr. Marmon:

Mr. Tuohey:

I became involved with Ireland and Northern Ireland in the 1980’s during the Troubles. Initially, through my relationship with David Byrne, a barrister in Dublin, who later became Attorney General of Ireland in 1998. I attended meetings in New York, Dublin and Belfast with US, Ireland and Northern Ireland lawyers about legal proceedings in Belfast. The Supergrass Trials in Belfast during the Troubles were deemed unfair and lacking due process. “Supergrass” was a term used to describe the closed proceedings to prosecute the IRA members and other similar paramilitary organization members for murder and other related crimes. The trials were held before one judge with no rules of evidence, and verdicts based on hearsay and immunized testimony. Lawyers from the US, Ireland and Northern Ireland were involved in looking at approaches that could provide greater due process.

How did the US lawyers get involved?

There was much concern about the lack of due process, so bar associations and individual lawyers became involved, especially Irish lawyers. In 1986, the Litigation Section of the ABA, as part of ABA’s annual meeting that year in New York and London asked a few of us to set up a satellite CLE program after the London meeting with the bar in Ireland and the bar in Scotland. Irish barristers and American lawyers put on a program in Dublin and Edinburgh on the use of technology in litigation; Irish and Scottish barristers put on a program on the art of oral advocacy. Focusing on the strengths of the respective trial lawyers in Europe and the US, we put on a day and a half program. It also featured in Ireland, a couple of large events, a lunch and dinner, where you had most of the

Mr. Marmon: Mr. Tuohey:

Irish Bar and judges and 500 American lawyers and judges. And, the same thing in Edinburgh. I served as Chairman of the program. David Byrne was the Ireland Chairman. We also invited barristers from Northern Ireland to set up program in Belfast after Dublin. We met for two days in Belfast, and we really did get into the weeds on some of these issues involving the procedures for dealing with the terrorist trials. That informed me for a lot of other things that I later did in Ireland and Northern Ireland, particularly with the Patten Commission in 1998/99.

During the 1980’s and 1990’s, I spent time in Ireland on a regular basis. In 1998, Bertie Ahern was elected the Prime Minister, and he named my dear friend, David Byrne Attorney General. I helped advise the Attorney General on issues related to Ireland, in particular, the Irish tribunals, which were similar in concept to my Independent Counsel experience. I also advised on issues where I had experience in the states, including combatting drug trafficking and organized crime.

We established a group of US lawyers and judges including Chief Judge Thomas Hogan from the US District Court in Washington, Chief Judge Matt Byrne from the US District Court in Los Angeles, and the heads of the organized crime and narcotics sections at the Department of Justice. We met with the Irish Prime Minster and Attorney General to discuss issues that Ireland was beginning to confront, and how to deal with them.

In 1998, Prime Minister Ahern and Attorney General David Byrne asked me to assist in the work of the Patten Commission in Northern Ireland. I enthusiastically agreed. The Patten Commission was set up by the governments

Mr. Marmon: Mr. Tuohey:

of Ireland, Northern Ireland, and the UK to review and reform the police service in Northern Ireland, which was known historically as the Royal Ulster Constabulary (the “RUC”). The RUC had almost no Catholics and almost no women in a country that was 50% Catholic and 50% women. It was a three-year process of reform of policing, and bringing the department into modern policing standards. I was asked by the Prime Minister of Ireland and the Attorney General to serve as the liaison and advise of the Patten Commission’s work. The Vice Chairman of the Patten Commission, Morris Hayes, after I met with him, asked if I would serve as an advisor to the work of the Commission.

Patten Commission?

Christopher Patten was the former Governor General of Hong Kong and a member of Parliament. He did a very good job assembling a group of law enforcement professionals, lawyers and other social science experts, including law enforcement people from the United States to reform policing in Northern Ireland. It was a collegial group that did the work in a thorough and professional manner and in so doing, changed the face of police in Northern Ireland. I spent several visits and many hours over that year meeting with police officers, officials, citizens, and paramilitary members – in the Maze Prison and in their communities in East and West Belfast – to assess the landscape and make recommendations to the Commission.

When did you become an Irish citizen / get an Irish passport?

Mr. Marmon:

Mr. Tuohey:

Early 1990’s. I’d show you the passport, but I’d have to get it back, because it’s at the Secret Service. When I represented Tony Blinken, the Deputy National Security Advisor to the President, I had another security clearance process, and had to surrender my Irish passport during the investigation. It’s long overdue, and I have to retrieve my passport.

Do you remember when you got it?

I got the Irish passport in the early 90s.

Why were you entitled to get it?

My grandparents were born in Ireland. My sons do not qualify since it is limited to children and grandchildren of native born Irish.

Have you been following the current Brexit talks about Ireland?

I have. The beneficiary of those talks is going to be Ireland, as long as the UK does not close the border. The issue, if mishandled by the UK, may well affect the border between Northern Ireland and Europe. It has yet to be resolved.

The other major matter that began during my tenure at Vinson & Elkins, and took me all over the world, was representing the Chairman of a large international shipping company, International Oil Trading Company (“IOTC”), and its owner Harry Sargeant in a DOJ/DOD investigation. The company, under contract with the Department of Defense, delivered fuel and oil to the US troops in Iraq during the Gulf War. Mr. Sargeant’s company had been in shipping for a number of

Mr. Marmon: Mr. Tuohey: Mr. Marmon: Mr. Tuohey:

Mr. Marmon: Mr. Tuohey:

years. For this project, which was huge, he expanded the operations in order to receive the product at the Port of Aqaba in Jordan, store it, then transport over land to Iraq during a war with caravans of trucks, with plenty of security due to convoys being attacked at times when they entered Iraq. I represented him in an investigation of whether there was a violation of the FCPA. There was no merit to the claim and the company and Sargeant were cleared. I represented him for three to four few years. The matter involved travel to Jordan, Damascus, the Dominican Republic and London.

Was the Foreign Corrupt Practice Act a problem?

In the end, no. The investigation went on for a few years. That matter left with me when I retired from V&E. It was concluded when I was at Brown Rudnick.

The Chairman of Brown Rudnick approached me in 2010, somehow with the knowledge that I decided to retire from V&E. They offered me the opportunity to build a white-collar practice as I had at V&E. In June, 2015, I joined Brown Rudnick.

We did not get to Bob Ney.

Bob Ney was referred to me by a dear friend of mine, now deceased. Ney was a senior Republican congressman from Ohio and Chairman of the House Administration Committee, which gave him control over many congressional perks. He was under investigation in connection with the activities of Jack Abramoff, a lobbyist, who owned a restaurant on Pennsylvania Avenue that

Mr. Marmon: Mr. Tuohey:

entertained many members of congress. In particular, Bob was under investigation for a trip he took to Scotland in 2009 or 2010. At the end of the investigation, the Department of Justice informed me that they were going to charge Ney with failing to disclose to US customs monies in excess of $10,000 that he was bringing into the US. Ney had won $10,000 in a London casino and he asked his aide put some of the money in his suitcase so as to avoid having to disclose. He pled guilty. There was a silver-lining, because he was not charged with the conduct involving Abramoff, which I had to believe could be proved. Moreover, Bob had a serious dependence on alcohol, and the judge accepted our recommendation to direct the Bureau of Prisons to put him in an alcohol recovery program. He spent about a year there and he is sober today – he was helped.

Oral History of Mark Tuohey Fifth Interview November 14, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the fifth session of the oral history of Mark Tuohey. Bill Marmon is the interviewer. The interview is taking place at Baker Hostetler, Mark’s law firm.

Mr. Marmon:

Mr. Tuohey:

Today we are going to talk about Mark’s key role in bringing baseball back to Washington. Mark, how did this all begin?
It began when our Major League Baseball team, the Washington Senators, after three-quarters of a century in Washington, left the nation’s capital in 1971 – for the second time. In the early 1960s, the Washington Senators, then owned by Calvin Griffith (for which Griffith stadium was named), took the team to Minnesota where it still operates as the Twins. A few years later, Major League Baseball awarded a second franchise to Washington, under the ownership of Bob Short, who kept the team in Washington until 1971, when he persuaded the owners of Major League Baseball and Commissioner Bowie Kuhn to transfer the team to Dallas, Texas. Having lost two Major League Baseball franchises, Washingtonians realized it was unlikely that another MLB franchise would return. In 1971, the city and region were not as robust as today. The fan base was quite modest and the economics did not work for baseball. Bob Short’s lawyer, Ray Hutchison, who negotiated the move of the team to Dallas, was a Partner at Vinson & Elkins, a firm I joined in 1995. Ironically, 30 years later, as Ray Hutchison’s partner, I persuaded Major League Baseball to move the Montreal

Expos to Washington. The headline in the Houston Chronicle was, “Vinson & Elkins takes away and gives back”!
Between 1971 and the early 2000’s, there were a number of attempts by city officials to engage MLB to establish a major league franchise transfer to Washington. While there were several transfers affected during that period, including Tampa Bay, San Diego, Toronto and others, the Washington region was not considered suitable for another MLB team. At the same time, the Washington region was beginning to develop in very positive ways, in terms of industry and population growth, and potential fan interest in having another baseball team. In 2002, a group of interested business and professional folks came together and got MLB to agree to sit down and discuss the potential of having a team. The baseball owners were considering moving the Montreal Expos from Montreal. In 2002, the owner of the Montreal Expos, Jeffrey Loria, wanted to purchase the Boston Red Sox from the current owner, but MLB declined. Instead, MLB offered Loria the right to buy the Florida Marlins, when the Marlins’ owner, John Henry put together a triumvirate of folks to purchase the Red Sox. In that three- way transaction, the owners of MLB took over the Montreal Expos. 30 Major League owners now owned the Expos. The decision was a prelude to moving the Expos out of Montreal and moving the team to a new city and then selling the team to a new owner. In 2002 and early part of 2003, the Washington group had a series of meetings and discussions with the MLB Relocation Committee, chaired by Jerry Reinsdorf, the owner of the Chicago White Sox, together with Tom Hicks, owner of the Texas Rangers, Fred Wilpon, owner of the Mets, and

Wendy Selig (daughter of Commissioner Bud Selig), who replaced Selig as the owner of the Milwaukee Brewers, but the negotiations were unsuccessful and went nowhere. After several meetings, the communications with the Relocation Committee went radio silent.

Anthony Williams, who took over as Mayor in late 1990’s, after his successful tenure as the Chief Financial Officer of the D.C. Control Board, approached me in the fall of 2003 through his Chief of Staff, Greg McCarthy, to enlist my interest in taking over as Chair of the DC Sports and Entertainment Commission. The Commission had jurisdiction over RFK Stadium and the DC Armory, and was the entity that would engage in any future negotiations with MLB. Mayor Williams asked me to assume the position (which had to be approved by the Council) and initiate new negotiations with MLB. While there were many other responsibilities to perform as the Chairman of the DC Sports and Entertainment Commission, my primary focus was to engage the Relocation Committee of MLB, and develop a persuasive financial package to gain MLB support to relocate the Expos to Washington. I agreed to take over as Chair, and in December, 2003, after Council approved, I met with a number of advisors to review how the District could make a credible proposal to MLB. My own view was that we needed to take a fresh approach. There were several important criteria: 1) we needed to present a robust picture of the Metropolitan Washington region showing how much it had changed since 1971, when the Senators moved to Texas; 2) we had to develop a financing proposal without up-front support from MLB for the relocation, including new stadium construction; and 3) any proposal would include necessary renovations

needed for RFK for play during the interim period of construction of the new baseball stadium. I felt fresh eyes were needed for a financial proposal that would work. I regularly consulted with the District’s Chief Financial Officer, Dr. Natwar Gandhi and his team. Dr. Gandhi was a very studied guy with an experienced financial mind and, together with his Deputy, John Ross, had creative thoughts on our approach. I also engaged Goldman Sachs and several other financial consultants to address the $600-700,000,000 million dollar cost of a new stadium without putting it on the taxpayers of the District. We developed a plan to front the costs for building the new stadium, including the necessary costs for temporary renovations to RFK during the two to three-year construction period. The plan we developed involved the financing of the stadium through tax and tax- exempt bonds over a 30-year period with repayment of the bonds from several tranches. The plan did not involve a tax assessment of the general public like a general sales tax, or a specific industry, like a hotel tax. Different strategies were debated back and forth. The plan developed as follows: Several members of the Sports and Entertainment Commission, including Allen Law, our new Executive Director, John Ross from the Chief Financial Officer’s office, (also a statutory member of the Sports Commission), several financial advisors, and the Mayor, met with a number of community groups – the D.C. Chamber of Commerce, the Washington Region Board of Trade, and other interested groups-to discuss a proposed gross receipts tax on the business community, exempting small and thinly capitalized business (e.g. restaurants), as well as minority businesses, that would tax gross receipts of the city’s larger businesses, e.g. law firms, accounting

Mr. Marmon: Mr. Tuohey:

firms, consulting firms, manufacturing firms and the like. This tax would expire when the bonds were paid off; next, a baseball tax that would apply a small tax to items purchased at the ballparks – tickets, parking, food and beverage, and souvenirs; a healthy accelerated rent over the lease period (30 years) to be paid by the team; a tax imposed by the District on the federal government on real property that the federal government leased from the District. The carrying cost of the $650,000,000 bond issue was roughly $35,000,000/year. Our experts computed that under this configuration, it was more likely than not that the bonds would be paid off in less than 30 years. Today, ten years into the lease, the bonds are expected to be paid off in 17-18 years – 12 years sooner than expected. The financial plan we proposed was accepted by the Council after serious debate, and it was proved to be a win-win for the District and its citizens.

What was the interest on the bonds?
I don’t remember, but it’s been a success. In January, 2004, I sat down with Jerry Reinsdorf, the owner of the White Sox, in Phoenix (where he spent the winter at the White Sox spring training headquarters). An old friend of mine, Bill Schweitzer, then outside counsel to MLB, and close to many of the owners, recommended that I meet with Reinsdorf after I became Chair of DCSEC. Reinsdorf not only served as Relocation Committee Chair but had the ear of the Commissioner and was highly regarded by fellow MLB owners. Schweitzer called Reinsdorf and set up the meeting in Phoenix. We spent four to five hours on the back lawn of the Biltmore Hotel getting to know each other and initiating discussions on where we might go from here. At one point, I said, “Ok Jerry,

what’s it going to take? You know we have a very different city and region. It’s robust and comes with serious fan interest. We can have a very successful relationship with MLB.” His response was, “You have to prove that to us. You must understand we are not going to put any money up front. NONE.” I turned to Jerry Reinsdorf and said, “We don’t need your money…up front.” He looked at me and said, “Explain.” I told him we were planning to finance the stadium with bond financing, which would be repaid through a number of tranches, including rent. Money would come in from MLB in the back-end, not the front-end. Jerry looked at me and said, “Now you’re talking. You put your plan together and we’ll start discussing it.” Shortly thereafter, we had our first meeting with the Relocation Committee in Washington. The Mayor and I, with several additional folks on our team, began the discussions. We explained to the Relocation Committee what we intended to show, and how we intended to pay. The negotiations went on for eight or nine months. Our negotiating team commissioned the Glover Park Group to do an in-depth review of the economic base of the region and contrast it with 1971, as well as a wide range in-depth polling of fan interest on having a baseball team in the region. At the same time, our negotiating team was in constant discussions with the District’s CFO team and economic advisors from the private sector to fine-tune the numbers, as well as many meetings with community leaders and neighborhood groups to discuss the plans. There was a lot of give and take with baseball’s Relocation Team, but primarily with the Chair, Jerry Reinsdorf and the Foley & Lardner lawyers who represented MLB. (Foley & Lardner was a Milwaukee firm that represented and

advised Bud Selig over the years, and during his time as Commissioner, they provided ongoing advice.) In the early spring of 2004, we retained Covington & Burling’s Sports Law team to assist us in the drafting of the requisite documents that would be negotiated and signed by the District and MLB. The Covington lawyers had deep experience in these issues, and they did a first-rate job in preparing the requisite documents. By April, there was competition among a number of the cities for the Montreal Expos relocation, including Portland, Oregon; Monterey, Mexico; Norfolk, Virginia; Northern Virginia; New Orleans, Louisiana; and Las Vegas, Nevada. Las Vegas was an interesting competitor, because its proposal, heavily supported by the gaming industry, who would have the stadium built at no cost to MLB. The obvious issue – the specter of Pete Rose and gambling – colored any decision to go to Las Vegas (at least back in 2004). I believe our most serious competitor was Northern Virginia, largely because Peter Angelos, owner of the Orioles, believed he had an understanding with Commissioner Bud Selig to never put a team in Washington. Angelos had a fanciful notion that it was a territorial agreement, which was not accurate. Jerry Reinsdorf made it very clear to us though, that had Virginia officials agreed to have a stadium built across the river in the railroad yards near Old Town Alexandria, or in Arlington, (both of which would have been acceptable to Angelos), the Expos would have been relocated to Northern Virginia – as a Washington region team. Unfortunately for Northern Virginia, city officials in Arlington and Alexandria received no support from the state legislators in Richmond, and therefore were unable to come up with a proposal. Reinsdorf was

an experienced and tough negotiator, but as the negotiations progressed, it became apparent to Mayor Williams and our team that we demonstrated a real ability to support a team in Washington (the third franchise in MLB history), and had put a financial package together which could meet MLB’s criteria. During regular weekly negotiations in the spring and summer, 2004, we fine-tuned our proposal. While there was no final decision from MLB yet, we believed that we were moving toward an approval to move the team to Washington. It became clear that we were in the running with our proposal, and after MLB made its decision, it would have to be approved by the Council of the District of Columbia. We decided to discuss the various elements of the proposal with the community before presentation to the Council. In particular, we met with community groups throughout the District of Columbia, and particularly in the RFK neighborhoods. We discussed how the return of MLB would affect them, how the financial elements of our proposal would be considered, and discussed the various locations that were under consideration for the construction of a new stadium. Community groups had serious and understandable questions about the financial dimensions of our proposal and its effect on other city needs. In the discussions with the community groups, I explained that the District’s responsibilities to the community – in education needs, health care needs, social service needs and the like – would not be affected by the financial terms of our proposal for several reasons: bond financing involves investors who invest in projects like a stadium with the expectation that they will get a return on their investment. The point was that bond investors do not replace the city’s obligation to take care of its citizens

and their health, education and social service needs. That remains the responsibility of the District government, which will continue to fulfill those obligations. The bond financing had a different purpose. That being said, we emphasized that when the bonds are paid off, the revenues from other troughs – the gross receipts tax having expired at that point – would produce tens of millions of dollars for the benefit of the city. Another argument advanced by critics was that the entertainment venue revenues from people coming to the ballpark was just a recycling of monies in the District, and would not produce new revenues. We responded very assertively that in the tristate region, seventy percent of the attendees at the ballpark would be Virginia and Maryland consumers, who usually spend discretionary dollars in their own communities on a regular basis, but now, with a new ballpark in the District, a substantial amount of their discretionary revenues would be spent in the District, creating new money, not recycled money. Finally, we made it clear to a citizens’ group with whom we met that the extensive polling reflected a strong desire for a baseball stadium and the economic benefits it would bring to the city.
The final issue we had to consider with citizens’ groups was the new stadium location. There were several locations under consideration, including the potential of rebuilding RFK; a stadium build over the South East Freeway by L’Enfant Plaza down to the Potomac; on New York Avenue, east of North Capital Street; and of course, the location the Mayor and I chose – our first choice – the South East Waterfront at South Capitol Street. Ultimately, for reasons proved to be extraordinarily beneficial to the District, similar to the development of the

Verizon Center (the basketball and hockey arena on 7th and F Street) which created revitalization and redevelopment of that portion of NW Washington, we chose the Southeast Waterfront site. We believed the baseball stadium on that site would do the same, and it has, beyond our expectations! We knew we could use eminent domain law to acquire the land, if necessary. It was a light industrial area with very few homes and a couple of dance clubs. It had enormous potential to be a successful stadium with massive potential development (which has occurred) and easy access via vehicle and subway. The Navy Yard metro station would need expansion, and, thanks to the OMB Director, Josh Bolton, a great friend of the District government, a native Washingtonian, and a very enthusiastic baseball fan, we were able to come up with $30,000,000 to construct the metro improvements required. In August, 2004, we were at the stage where Jerry Reinsdorf was prepared to recommend to Commissioner Selig that the team be relocated to Washington. We made our case. Jerry Reinsdorf trusted us, we trusted him, and we were moving towards a successful result. We knew that the Northern Virginia Alexandria and Arlington sites were not on the table. At the last minute, the Virginia Baseball Group identified a site in Sterling, Virginia near Dulles Airport, and it came up with a substantial privately financed financial package that could advance that site. The Collins Group made Baltimore owner Peter Angelos aware of this, and Angelos advised Commissioner Selig that such a site was ok with him, and Selig should consider it as a Washington team based site. The Commissioner directed Reinsdorf to go out that evening and review the site to see if it was acceptable. Jerry Reinsdorf told me about the call, and

although skeptical and reluctant, he planned to view the site that day. I said to Reinsdorf that if the Sterling, VA site was going to be considered the site of a “Washington team” attracting Washington fans to games, he should leave the city at about the time that Washington fans would leave to go to a game. We planned to meet for later dinner that evening. What I believed would happen did happen. After Mr. Reinsdorf arrived at the site, he called the Commissioner and said it would not work. It was a time-consuming twenty-mile journey through rush hour traffic. Jerry met with the Commissioner that week and recommended Washington, D.C. as the relocation site. In late September, at the teleconference between the Commissioner, the Mayor, and our team, it was announced that Washington had been awarded the team. That is when the final phase of the project began. We now had to put together the final documentation, including the umbrella document – the Baseball Stadium Agreement – the RFK lease, and the new stadium lease. Those documents had been in discussion and draft for several months. The documents were signed by the Mayor and me, and then presented to the Council for approval. There was extensive debate in the Council over a period of several months. The Mayor and I, along with Jack Evans from the Council, believed we had the requisite number of votes, but, there was a lot of debate over certain financial provisions. At one point, very late at night, it appeared that the entire approval could come crashing down, but cooler minds prevailed. In late October, the Council approved the documents. At that point, we had to move forward with the initiation of improvements and renovations at RFK for the opening of baseball in 90-120 days hence. The improvements were

overseen by Allen Law, who put together a very well organized team led by Turner Construction. Against the clock that was ticking, we managed to get it done and baseball opened in Washington for the first time in 33 years on March 31, 2005!

We spent $30,000,000 renovating RFK to make it suitable for a two to three year period. In the end, it was like putting on Band-Aids, because the structure was so old. The “spaghetti” (plumbing and electricity), with certain modifications, was able to withstand the massive crowds that occurred in the first year. In the meantime, the planning went forward with the contractors and architects for the new stadium. We traveled to a number of cities with the planning team consisting of representatives of Clark Construction, Hunt Construction, the architects and D.C. representatives. We decided on a blend of several stadiums for various different concerns – San Diego’s Padres Stadium (stone), San Francisco Giants Stadium, Philadelphia Phillies Stadium and the Pittsburgh Pirates Stadium (design). In general, I would say the construction of the stadium went on without a hitch. In the middle of the 2006 season, the Commissioner chose the Lerner family as the new owners of the team. By that time, all of relevant and necessary documents and plans for the construction of the stadium were complete. The Lerners wanted to make some changes during the construction period. We agreed that certain changes could be made, but the Lerners would have to bear the cost. There was a dispute, but it was resolved. My term ended in 2006, at which time, the stadium was virtually complete.

Mr. Marmon: Mr. Tuohey:

The decision to defer selection of a new owner until all the principal agreements were documented and executed between MLB and the District was due to the wise insistence of Jerry Reinsdorf and Bud Selig, and it was deferred until 2006, when a substantial portion of the stadium construction was completed. Baseball did not want to see a situation where a new owner would come in and try to change terms of agreements and the like. Therefore, it was signed, sealed and delivered before he chose. There were three choices – a group by Fred Malek, the initial group in support of a baseball team, a group led by Jeff Smulyan, former owner of the Seattle Mariners, and the Lerner Group. In the end, the Commissioner chose the Lerner group for several reasons: The Lerner Group was very successful business, the process would involve one checkbook, not multiple checkbooks, and the Lerners were native Washingtonians with a long history in the city. The decision was made solely by the Commissioner and not a committee. The Lerners have developed into good owners.

What was the nature of the investment? $450,000,000, for a team that is now worth $1 Billion.

Oral History of Mark Tuohey Sixth Interview November 28, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the sixth session of the oral history of Mark Tuohey. Bill Marmon is the interviewer

Mr. Marmon: Mr. Tuohey:

We’re going to discuss some earlier cases.
In the 80’s, there was a prosecution emphasis in the Department of Justice on Government Defense Contract Procurement Fraud. Those investigations were conducted under the rubric “Ill Wind”. The Fraud Section at the Department of Justice, together with the US Attorneys Office in Alexandria, Eastern District of Virginia (also known as the “Rocket Docket” because cases were tried with great dispatch) conducted the investigation of several defense contractors, most of which were on the west coast, and included Northrup Grumman, Litton Industries and several other less known contractors. The investigations focused on a combination of alleged offenses including bribery and gratuities, false statements and the like, all of which were alleged to have been involved in the rewarding of contracts, and the conduct and reporting of contract developments by the defense contractors to the government. The first case I was involved in was the representation of George Kaub, a senior procurement official at Litton Industries in Los Angeles. Mr. Kaub, along with several other defendants from Litton, were charged with bribery and false statements. The case was tried before a jury in Alexandria in 1983. After a two-and-a-half-week trial, the jury acquitted Mr. Kaub of the serious counts of paying bribes and gratuities, and convicted him of

the lesser count of false statement, for which he was sentenced to a half-way house for six months.

Following that case, I represented another Litton government affairs official, Chris Murphy, who was also charged with a series of false statements in connection with a Litton contract with the Defense Department. That case was tried in 1984 in front of Judge Tim Ellis in the Eastern District of Virginia (a judge who is very much in the public eye in a critical sense – currently presiding over the trial of Paul Manafort in Virginia). Mr. Murphy was acquitted of a number of counts, but was convicted of one count of false statement. He received a sentence of six to eight months in a half-way house.

In 1985, Litton again called on me to be part of the trial team of an interesting and bizarre case involving the procurement activity surrounding the construction of 680 class nuclear submarine. The case involved a Litton subsidiary, Ingalls Shipyard, located in Pascagoula, Mississippi. The investigation was initiated by Admiral Rickover, the father of the modern day nuclear submarine program. His navy procurement team alleged that the Ingalls construction team mislead and lied to the government regarding the status of the procurement and the amount of money involved in the cost overruns. The case was indicted in the Eastern District of Virginia in 1984. Judge Albert Bryan, a senior judge in the Eastern District dismissed the case. It was appealed to the Fourth Circuit, which reversed Judge Bryan and remanded the case back to the Eastern District of Virginia.

Upon receipt of the case, Judge Bryan immediately transferred it to the federal

district court in Jackson, Mississippi. A trial team of lawyers from Washington, 83

DC and Jackson, Mississippi were assembled. It was an expansive defense effort involving lawyers, investigators, forensic experts, accounting experts, and the like. The government’s prosecution team was led by two Assistant US Attorneys from Alexandria, Virginia. In fact, the US Attorneys Office in Mississippi, which had not been involved in the investigation, recused itself from the prosecution of Ingalls, a major employer in Mississippi. It was my sense that the Jackson prosecutors believed the case was improperly charged. Judge William Barber, a new United States District Judge in Jackson, was assigned to the case. From the beginning, the Judge felt the government was overreaching and arrogant in its approach to the case. Early in the trial proceedings during the selection of the jury, the prosecutor’s opening statement suggested the case was important to the government and the Defense Department to protect the integrity of defense contracting. George Hewes, a prominent Jackson lawyer and lead counsel on the defense team, suggested in his opening statement that the case was also important to the citizens of Mississippi. The prosecutors vehemently objected. During a bench conference, the judge was somewhat mystified by the government’s vigorous objection. After the discussion at the bench, he directed the parties to have a seat. In a remarkable colloquy, Judge Barber explained to the jury that the court’s ruling on legal issues at the bench conference was conducted out of the presence of the jury, but when the court decided the issue, the court had an obligation to explain his ruling to the jury. The court explained Hewes, a man of great integrity, and one of Jackson, Mississippi’s most distinguished and trusted trial lawyers, was quite correct in suggesting to the jury that the case was also

important to the citizens of Mississippi since Litton was the largest employer in Mississippi. When the judge finished his discussion with the jury, he called counsel to the bench, looked the two prosecutors squarely in the eyes, and asked if they had any further objections they’d like to make. The case was tried for two and a half months. At the end, a few days before Christmas in 1985, the jury acquitted Ingalls. It was a sweet victory, and the trial was a great experience for me.

The fourth defense contracting case I tried was a civil case involving Linton Industries before Chief Judge Bryan in the Eastern District of Virginia. After a six to seven-day trial, the Judge rendered a verdict in Litton’s favor.

Over a three or four-year period in the mid-80s, I tried three jury trials and one non-jury trial in the Eastern District of Virginia. I came to believe that the “Rocket-Docket” used an appropriate process for the conduct of litigation in federal court. Over the years, it has made more and more sense to me as a litigator to have that kind of dispatch and reasonable acceleration to get through a trial docket. Chief Judge Bryan initiated the accelerated trial practice in Eastern Virginia, and is considered a model for district courts throughout the country. It is a method to accomplish speedy dispositions of criminal and civil cases in ways that benefit the administration of justice.

Together with the two six-month trials in Circuit Court of Maryland and the Federal Court in Baltimore involving Community Savings and Loan, and its president Clay McCuistion, which I previously described, the 80s were a busy

time for me in trying cases before judges and juries. Although I had learned to hone my in-court skills early on in my career in the US Attorneys Office, and later the Department of Justice, these experiences helped me to hone my defense skills.

Lessons learned would be several: 1) The importance of civility in dealing with opposing counsel and adverse witnesses; the civility in the conduct of trials and pre-trial preparation and discovery; and civility in resolving issues with opposing counsel. Today, in the second decade of the 21st century, we continue to see problems with civility between and among counsel. It diminishes the professionalism that is required in our work, and what the public expects from us. Those early years in private practice gave me a bird’s eye view of how civility is critical to the administration of justice and the resolution of disputes for which lawyers are responsible and accountable – that’s the most important lesson I learned in the 80s when I was beginning my experiences as a defense attorney; 2) the importance of careful preparation. It leads to the resolution of disputes pre- trial and the effective resolution by trial, by judge or jury. Preparation, preparation, preparation. Those are the two most important lessons I’ve learned and lived by in all these years of dealing with trials and dispute resolution; 3) precision, especially in a written product. Precision in writing was drilled into me by Judge John Terry, now a senior judge on the DC Court Appeals and former head of the Appellate section in the US Attorneys Office. He taught me how to write. Persuasive writing was not a skill thoroughly and properly covered in law school. Presentation matters to a court. Precision is important in articulating points to a jury or court you want to make and that go to the heart of your

Mr. Marmon: Mr. Tuohey:

position. Those three are the basic lessons I’ve honed and lived by. They have served me well.

Policing.

I grew up in a law enforcement family. I learned to have great respect for law enforcement. My father was an FBI Special Agent and later Commissioner of Public Safety in Rochester, NY. My first professional experience after law school was at the US Attorneys Office where I dealt with police and the FBI on a daily basis. While there are law enforcement officers who make bad decisions, and sometimes corrupt decisions, I have had positive experiences dealing with law enforcement personnel over many years, and I respect the critical role these men and women play in our daily lives.

In 1997, the Council of the District of Columbia Council, through the Co-Chairs of the Judiciary and Public Safety Committee, Jack Evans and Cathy Patterson, decided that a broad investigation into the management and operations of the Metropolitan Police Department was needed due to a series of incidents which raised questions of serious mismanagement. In the late 1960’s and early 1970’s, under the leadership of Chief Maurice Cullinane, the Metropolitan Police Department was one of the best urban police departments in the country. However, over the years, the department lost its way. There were several factors that contributed to this problem. By 1997, Larry Soulsby had become the Chief, and the department was in bad shape. Soulsby had no leadership abilities, and was personally and professionally a disaster – and his conduct dragged the

department down with him. There were a series of missteps over the previous ten to fifteen years that contributed to the decline as well – hiring, training, promotions and administration, to name a few. In 1997, the Council passed a resolution authorizing a wide-ranging investigation of MPD and provided for subpoena power of documents and individuals to testify. The Council appointed me Special Counsel to lead the investigation, and I brought several of my colleagues at Vinson & Elkins, including my “right-arm”, Bill Lawler to assist me. Bill Lawler had worked with me at Pierson Bell for several years prior to joining the US Attorneys Office. After an eight-year stint as an AUSA, Bill joined me at Vinson & Elkins, and we worked on many matters. He worked closely with me during this investigation. We put together a plan of action that included investigating a number of subjects and issues – recruiting, hiring, promotions, supervision, discipline (including operation of the internal affairs unit), training – both in the Academy and on the job and overall police administration. We examined the quality of the various units – homicide, sex squad, robbery squad, burglary squad, youth division, procurement and internal affairs. We utilized subpoena power to interview numerous civilian and law enforcement witnesses, many of whom testified during six public hearings on these issues. It was an exhaustive investigation. The report at the end of the investigation was comprehensive with two volumes of exhibits. It touched on every aspect of policing. We put together several former police commissioners from New York, Boston, San Diego, Chicago and Houston as an advisory team which provided tactical guidance during the investigation. As we approached the

end of the investigation, it was clear the District needed to find a new top-notch Chief. A group including several members of the business community who were involved with policing, Jack Evans from the Council, and myself as an advisor, interviewed Charles (Chuck) Ramsey, one of two Deputy Chiefs in Chicago. Ramsey was not chosen by Mayor Daley to succeed the then Chief in Chicago; instead, the other Deputy Chief was chosen (Mayor Daley told me years later he should have chosen Ramsey). Ramsey accepted the offer to become the Chief of Police in the District. His eight years running the Department transformed the Metropolitan Police Department into one of the nation’s leading police departments. Phase two of this amazing transformation began when Mayor Fenty decided to promote Cathy Lanier to become the successor to Chuck Ramsey. Phase 3 was the promotion of Peter Newsham to succeed Lanier. Lanier and Newsham had been advanced and trained in management skills by Chief Ramsey. The District has had a marvelous twenty productive 20 years of policing since Ramsey’s selection.

The Metropolitan Police Department review experience led to my being selected in 1997 by the Irish government to advise it on work of the Patten Commission in Northern Ireland. As part of the peace process ending 30 years of violence in Northern Ireland during the “Troubles”, the governments of the UK, Northern Ireland and Ireland appointed a commission led by Christopher Patten, a member of the UK government, (the Patten Commission) to examine and reform policing in Northern Ireland and to create a new police service, replacing the Royal Ulster Constabulary (RUC) with the police service of Northern Ireland (PSNI). I was

asked by the Vice Chair of the Patten Commission, Dr. Maurice Hayes, to serve as an advisor to the work of the Commission during 1998-1999. In that capacity, I interviewed a number of police officials, Catholic and Protestant, citizens and members of political parties, and as well, antagonists in violence-members of the IRA, UVF and the like. My findings were submitted to the Commission, and the experience was a critical component of my work as a lawyer.

During Chief Ramsey and Chief Lanier’s tenure, I served as an advisor to both on various aspects of policing. I was involved in the selection of Chief Newsham when I was serving as Chief Counsel of the Mayor, and served as an advisor to Newsham as well. I have had a close relationship with these three remarkable individuals who have led the city over the last twenty years and it was a privilege to assist in their work. The real beneficiaries of their work is the District of Columbia and her citizens.

I had the privilege to represent Chief Ramsey in connection with litigation filed in federal court over the arrests of demonstrators in 2003 in Pershing Park (in front of the Willard Hotel) during the World Bank meetings that year. There were a number of honest brokers and good-faith protestors who wanted to exhibit their first amendment rights in these demonstrations. However, a group of troublemakers from around the country made it very clear through communication over the internet that they intended to cause havoc during the World Bank meeting, disrupting traffic, blocking movement of people, and provoking violence against people and property, resulting in injury and damage. The Metropolitan Police prepared thoroughly for these demonstrations. However, it was clear that

serious measures, including arrests, were likely to occur because of the threatened harm to person and property. During the several-day World Bank meetings in May of 2003, there were a series of peaceful demonstrations where both the protestors and the police conducted themselves professionally, but the threatened trouble occurred. A group of demonstrators disregarded the police marching directives and caused injury to people and damage to property. They were cordoned off and funneled down 14th Street and 15th Street into Pershing Park, where they were arrested. Peter Newsham, then Deputy Chief was the site Commander at Pershing Park, and Chief Ramsey traveled throughout the demonstration activity sites. Chief Ramsey arrived at Pershing Park after a decision was made to make arrests. The controversy was whether a disbursal order had been given under regulations and legal precedent, and whether the disbursal order was necessary or not – a decision made by Deputy Chief Newsham. Several folks in that group who were not involved with the troublemakers, were also arrested. Litigation was filed. The Metropolitan Police Department was sued along with Deputy Chief Newsham and Chief Ramsey individually. I was selected to represent Chief Ramsey individually. The case was assigned to Judge Emmet Sullivan. Two classes of litigants were joined. Discovery took place over several years. Settlement was attempted, but rejected by the plaintiffs. Eventually, both cases settled, but it took twelve years. By the time the second case settled, I had left private practice to join the Mayor as Chief Counsel in 2015. A contributing factor to the long process was an allegation that the Department had intentionally destroyed evidence relating to what the police

Mr. Marmon: Mr. Tuohey:

department knew about the movements of the protestors, although the allegation was without merit and ultimately vindicated the police department. A Special Master (a Magistrate Judge) was appointed. There were two attempts at arbitration. In the end, it resolved itself.

What were the terms of settlement?
The terms focused on several policy changes by way of regulation instituted in the Metropolitan Police Department, additional training, and a sum of money paid to members of both classes. It was around $50,000 per an individual. One class had three to four individuals, the other had twenty people. All other cases settled out early. It was exhaustive and unnecessary expense of time to reach the resolution. The policies put in place eliminated loopholes and are responsible for conduct being changed.

Oral History of Mark Tuohey Seventh Interview December 5, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the seventh session of the oral history of Mark Tuohey. Bill Marmon is the interviewer.

Mr. Marmon:

Mr. Tuohey:

We’re going to talk about your work at the ABA – American Bar Association— and other Bar work.

Prior to serving as President 1993-94, I had several relationships with the Bar in the District of Columbia. In 1974, during my service as an Assistant US Attorney in DC, I was asked to get involved in the Young Lawyers Section of the Bar Association of the District of Columbia. The Bar Association of DC is the voluntary Bar, whereas the District of Columbia Bar is the mandatory bar. Back in the day, the Young Lawyers Section was a very active association for young lawyers in the District. Several my colleagues from the US Attorneys Office were involved in YLS leadership: Tom Queen, Chief of the Misdemeanor Trial Unit and Rick Cys, Deputy Chief the Misdemeanor Trial Unit, served as Chairs of the Young Lawyers Section. They, together with AUSA Paul Friedman, served on the YLS Executive Council. In those days, there were 3,000-4,000 members in the YLS. It was very active. Kathleen Sheekey, a close family friend over the last 40 years, was the Executive Director of the YLS in 1974. In 1975, I was asked to serve as the editor of the YLS newsletter, which was published quarterly.

We reported on the activities and events of the YLS. In my capacity as editor, I wrote editorials on several topics, including the death of Supreme Court Justice William Douglas, the role of US Attorney of Earl Silbert in the Watergate prosecution, the importance of civility in the profession, and the like. There were a number of fun social events each year, resulting in a number of new friendships and relationships. In addition, the YLS was involved in overseeing the Criminal Practice Institute, which was put on annually by lawyers at the US Attorneys Office and the DC Public Defender Service. This annual event contributed to the positive personal relationships between prosecutors and defense attorneys (which I’ve discussed) – it all began there. I was elected Chair of the YSL in 1977 and served as Chair from June 1977-June 1978. During that time, the YLS published editions of the Criminal Jury Instructions (used both in the US District Court and Superior Court) and Civil Jury Instructions. We also published the DC Practice Manual, a very useful compilation of pertinent regulations that related to the practice of law in several areas. The YLS was a major contributor to law practice in the District of Columbia during the 70’s. While it has continued to be a major contributor over the years, the YLS was a vital cog in the legal profession in the 1970’s.

In 1977, while I was Chair of the YLS, I also became involved in the Young Lawyers Division of the American Bar Association, a very robust organization of thousands of lawyers across the country between the ages of 26-36. I first became involved in the YLD as a Chair of the Continuing Legal Education Committee, which put together several national institutes during 1978-79. In addition, I was

Mr. Marmon:

elected and served for several years on the Executive Committee of the YLD. While I was a member of the YLD, I was chosen as the YLD Member of the Council of the ABA Section of Litigation. In 1980, I served as Secretary of the Litigation Section Council and on the Council of the Section from 1980-1990. In 1979, the ABA President appointed me to the ABA Committee on Continuing Legal Education, a committee that oversaw ABA’s CLE (Continuing Legal Education) programs. The committee consisted of 10 members of the bar from around the country. During 1979, the committee was chaired by Robert Emerson, a distinguished lawyer from Huntington, WV. Bob stepped down as Chair in 1980. On Bob’s recommendation, the ABA President appointed me as Chair of the Standing Committee on CLE, and I served in that capacity for five years until 1985. It was a worthwhile experience. The Standing Committee members included members of the private bar, several federal judges and law professors, including Justice Stephen Breyer when he was a professor at Harvard Law School and Counsel to Senator Edward Kennedy. All in all, it was an outstanding group of lawyers who advised the ABA staff and leadership on CLE programs. Several future ABA presidents served on the Standing Committee as well. The Standing Committee interacted with the American Law Institute and its CLE arm –the ALI/ABA Committee on Continuing Professional Education – I served on that committee for five years after the Standing Committee Chair period, ending a ten- year Chair period.

What did the Committee do?

Mr. Tuohey:

The ALI/ABA Committee is responsible for its own CLE program in cities throughout the US. Its headquarters is in Philadelphia on the campus of the University of Pennsylvania. The ALI/ABA had relationships with the Practicing Law Institute, the ABA Standing Committee and state bar CLE programs. During the 1980’s the ALI/ABA and ABA Standing Committee established a satellite network for the transmission of legal education programs. A joint committee was set up to oversee the satellite network, and I served for two years as the first Chair of that joint committee. The work of the joint committee was critical in establishing a comprehensive framework to provide CLE throughout the country, especially to small firms and solo practitioners, at a relatively reasonable cost.

My years with the ABA and ALI/ABA committees in continuing legal education were at the forefront of expanding continuing legal education to practitioners throughout the country. Over the years of serving in these capacities and the years after, I have participated as a panelist on legal education programs involving trial practice, congressional and corporate internal investigations, evidence, civil procedure and legal ethics.

After my experience with ABA and ALI/ABA CLE and the Litigation Section Council, I served on ad-hoc committees involved in special projects for the benefit of lawyers including small firm and solo practice issues, such as the provision of partial or issue-based representation (particularly for solo practitioners) and pro-bono legal representation.

From 2010-2013, I served as Chair of the ABA Standing Committee on Government Relations, a responsibility that oversaw the ABA’s relationship with state and federal government legislators. The ABA Standing Committee on Government Relations had multiple functions relating to federal government outreach. In particular, the Standing Committee oversaw the promotion and operation of ABA Day, an event which occurs annually in May, where ABA members from all 50 states spend two days in Washington meeting with their Congressional representatives and discussing areas of interest related to their state and other federal governmental issues important to ABA. Another role of the Standing Committee was to coordinate delegates from all 50 states to discuss issues of importance to the Bar and community as a whole – issues such as tax, insurance, specific legislative initiatives and of course, the most important – the provision of legal services to the poor, and to funnel those issues to the appropriate members of Congress who oversaw and participated in committee work related to those specific issues. The Standing Committee worked with experienced and knowledgeable staff in the ABA Washington office to promote the important relationships between the Bar and lawmakers.

On the matter of legislative initiatives, issues would emerge in the sections of the ABA and be transmitted to the House of Delegates for debate and decision. When the initiatives involved potential legislation, the House of Delegates would send these issues to the ABA legislative staff, which reviewed and fine-tuned the proposed legislative issues, present them to the Standing Committee for review, communicate with the appropriate legislative staff in the House and Senate, and

then begin the process to move those legislative efforts to congressional consideration and ultimately a vote. That describes the process of how the legal sausage was made. Specific legislative issues included a wide array of issues affecting the profession as well as the general public.

I have not served on the ABA Judicial Selection Commission. The Commission has representatives from all the eleven numbered Circuits and the Federal Circuit, Supreme Court and the 94 Federal Districts around the country. I have been interviewed by the ABA Commission innumerable times about specific judges, most recently, Justice Brett Kavanaugh, who worked for me in the Independent Counsel office.

However, in the selection of federal district trial judges, the US Attorney and the US Marshal, for the District of Columbia, I played a major role between 1992- 2000. In the early part of 1993, while serving as President Elect of District of Columbia Bar, together with Jamie Gorelick, who was then serving as President of the DC Bar, we developed a proposal for the new President, Bill Clinton, to permit the DC Bar to establish a Federal Judicial Selection Commission for District Court judgeships, the US Attorney and US Marshal (modeled on the commission established in New York by Senator Moynihan). The Commission consisted of lawyers and non-lawyers who would review the credentials of individuals to serve in these positions. The Commission would select finalists for each open position and forward those names to DC Delegate Eleanor Holmes Norton. Delegate Norton would then send the selected name to the White House for formal nomination by the President. Up to that point, the selection of federal

judges in the District was the product of the White House staff and President with no input from the DC senior political official. The only exception to this long- standing practice occurred during President Carter’s tenure, when Attorney General Griffin Bell established a nationwide advisory committee for all federal judicial nominations to the President. Our proposal localized the practice for the District of Columbia from the Commission to Congresswoman Norton to the White House. The White House Counsel at that time was Lloyd Cutler, and he agreed that the idea made sense. Initially, the White House wanted three names for each judgeship. We persuaded the White House to permit the senior democratic official, Congresswoman Norton, to make the final selection, and send only one name to the White House, like the practice in New York under Senator Moynihan. Ultimately, the White House agreed. Congresswoman Norton embraced the notion and decided the DC Bar would select eight lawyers for the Commission and Norton would select six lay persons. Congresswoman Norton selected Pauline Schneider, who succeeded me as the President of the DC Bar to serve as Chair. I was asked to serve on the Commission, which I did for the entire eight years of the Clinton administration. During that process, the Commission interviewed many candidates and selected finalists for 8-10 federal district court judgeships, two successive US Attorneys, including Eric Holder, who later became Attorney General, and several US Marshalls. We chose very capable lawyers who exhibited community engagement and sensitivity to the important issues and persons who would come before the court. Those judges included

Gladys Kessler, Paul Friedman, Jim Robertson, Ricky Roberts, Ellen Huvelle, Colleen Kollar-Kotelly, Emmitt Sullivan and Henry Kennedy.

The Federal Judicial Selection Commission was active during the Clinton and Obama presidential terms, but not active during Republican presidential terms including George Bush and Donald Trump. It is my hope that the Commission will remain active during future democratic presidential terms and possibly republican presidential terms. The local Judicial Selection Commission is similar to the statutory commission for the selection of DC Superior Court and DC Court of Appeals judgeships. In those cases, the nominations are sent to the White House for its selection among a group of nominees.

I will continue to serve in one capacity or another, as I am able, because an organized bar is a vital part of the profession and a vital contributor to the growth and development of individual lawyers, as well as the institution as a whole.

I have been involved with international bar associations, as well, including the Irish Bar, the Bar of England and Wales, and the International Bar Association. Over the years, I have been involved with the Irish Bar on a number of issues, including advising the Attorney General on the Irish tribunals, which are creations of the judiciary to investigate matters of governmental concern, not unlike the former independent counsel institution. I also consulted the Bar Council of Ireland in conjunction with certain legal issues. I also participated on several panels with the Bar of England and Wales on the issue of the divided professions – division of solicitors and barristers, and the advisability of creating the ability of

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clients to consult with both solicitors and barristers and the ability of barristers to practice in law firms. I am a member of the International Bar Association and have been involved in several committees over the years, including white-collar crime, ant-corruption and law and media.

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Oral History of Mark Tuohey Eighth Interview December 11, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the eighth session of the oral history of Mark Tuohey. Bill Marmon is the interviewer.

Mr. Marmon: Mr. Tuohey:

Civil Servant with the Mayor’s Office in Washington, DC
Prior to 2010, the Attorney General of the District of Columbia reported to the DC Mayor. The Attorney General oversaw all legal affairs of the District, including representation of the District in lawsuits filed by private parties and other entities and oversight of the Agency Counsel, who were designated as Assistant Attorneys General. The AG staff, including all Agency lawyers were subordinate to the Mayor in every respect. The Attorney General provided legal advice to the Mayor on all matters and was subordinate to the Mayor. In 2010, the Council of the District of Columbia enacted the Attorney General for the District of Columbia Clarification and Elected Term and Amendment Act of 2010. It amended the District of Columbia Home Rule Act to establish the Attorney General for the District of Columbia as an elected position, independent of the Mayor. In that capacity, the AG has the charge of the conduct of law business of the District and all suits instituted by and against the government.
The AG shall furnish legal opinions in writing to the Mayor and Council when requested to do so. After the enactment of the Independent Attorney General legislation, it became clear to the Council that it was necessary for the Mayor to have her own legal counsel to advise on legal issues, and to transfer control of agency counsel from the OAG to the client agencies, and ultimately to the Mayor,

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to whom agencies were subordinate. This legislation eliminated the OAG supervisory and coordinating role over those attorneys, and transferred the responsibility for supervision and coordination of the Agency Counsel to a new office – the Mayor’s Office of Legal Counsel (MOLC), which was created by the same law. The Mayor asked me to undertake the role as the first Director of the Mayor’s Office of Legal Counsel when her administration began in January, 2015. The stated purposes of the MOLC are: coordination of hiring, compensation, training and resolution of all personnel related issues for subordinated agency counsel; the provisions of legal and policy advice to the Mayor and executive branch agencies; resolution of inter-agency legal issues for the Mayor; oversight of the agencies in investigative matters before the executive branch of the government congress for the Council of the District of Columbia; and the supervision of outside counsel in matters when the OAG is recused from a matter. The defined duties of the MOLC are inclusive, rather than exclusive, and are read broadly to encompass certain duties and authorities traditionally employed by the OAG, but which are necessary to the execution of duties of the executive branch. Beyond these explicitly defined duties, on a regular basis, the MOLC is responsible for mediating disputes in questions of law arising between agency counsel, supervising agency counsel through the respective agency general counsel, providing legal advice on all sorts of matters to the Mayor and agencies, and working with the Office of Attorney General to provide legal sufficiency reviews for legislation. The office is headed by a Director appointed by the Mayor and serves at the pleasure of the Mayor. During my term as MOLC

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Mr. Marmon: Mr. Tuohey:

Director, the office consisted of a Deputy Director, Ron Ross (a superb attorney who has succeeded me as Director), three senior staff attorneys, two associate attorneys, a Chief of Staff and an office administrative assistant.
How did you get involved?

After the Mayor was elected in late November of 2014, I received a call to come over and meet with her on a particular matter. I knew the Mayor, as she was my councilmember years before she ran and was elected as Mayor. When I met with her in late November, she asked for my assistance with resolving an issue that had been decided by the Gray administration regarding land allocation for the yet to be constructed new soccer stadium across from the baseball stadium on South Capitol Street. The Mayor asked me to assist because I had overseen the land transfers and construction of the Nationals stadium in my capacity as Chair of the Sports and Entertainment Commission. The Mayor-Elect and Council Chair, Phil Mendelson, were both opposed to the land swap that the Gray administration had devised with the Akridge Development Company, in which Akridge would convey its land on 1st Street, SW (which was one of several partials needed for the soccer stadium) in exchange for the transfer of the Reeves Center property at 14th and U Street, NW (the uptown headquarters for DC government.) Bowser and Mendelson were opposed and wanted me to help resolve the issue with Akridge.

I agreed to assist. I met with Akridge Development Company’s leadership, who were very unhappy with the change in the agreement they made with Mayor Gray, although it had not been formally approved. Since the resolution required Council approval, and would require the approval of the new mayor, I explained to the

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Akridge leadership that the Mayor-Elect and Council Chair were not prepared to support it. Akridge did not agree to resolve it, and I conveyed to Akridge that if they did not agree to a substitute transaction, the city would exercise eminent domain and take title to the 1st Street property, which it later did. Akridge challenged the eminent domain, which involved the amount money the District would have to pay. (The Court valuation awarded Akridge an additional $10 Million in 2018). The transaction led to the overall development and use of that property, including negotiations with the owners of DC United to build the stadium, which was completed in 2018. After initial discussions and meetings with the Mayor and Akridge, the matter was set down for longer term negotiations, which occurred over the next two years.

The Mayor was preparing for her inauguration on January 1, 2015. Between Christmas and the Inauguration, I invited the Mayor to lunch to discuss ways in which the Bar could assist her administration. I told her I would be happy to assist the administration and bring lawyers to assist in whatever ways would be helpful to the Mayor. Since I had served as the President of the DC Bar, I had access to many lawyers throughout the city. The Mayor listened and said she had different plans. She wanted me to come into her administration as Chief Counsel and Director of the MOLC. I was not prepared to leave private practice at that point, but told her I would think about it. As the job description became clearer in my mind, and after discussions with several people, I decided to rethink my view. Overseeing the Agency Counsel and providing legal advice to the Mayor on a host of issues became more appealing and presented a challenge. The experience

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Mr. Marmon: Mr. Tuohey:

would involve legal advice and supervision over many issues – the environment, education, transportation, Metro, economic development, health, policing, homeland security, among others. The job required common sense and judgment, and I thought it would be interesting for a few years, so I accepted the position in late January, 2015.

Did you leave the firm formally?
I advised Brown Rudnick that I was prepared to accept the position, and I retired again. I was blessed with a great deputy, Ron Ross, who was an experienced senior partner at Troutman Sanders, and had been a good friend for years. We served on the Sports Commission together 2003-2006. We hired three very able and experienced lawyers. Later, we brought in two interns who were in their last year at GW, and stayed on as associates.
The Mayor offered me a very capable person, Tatiana Torres, to serve as our chief staff, and she helped us organize the office and get moving. One of the early and somewhat enduring issues that occurred throughout much of my three-and-a-half- year tenure was developing and cultivating the relationship with the Office of the Attorney General. Karl Racine, an old friend and a person I had supported, had been elected AG in 2015 as first independent Attorney General. Before Karl announced his intention to run, I had been approached by several lawyers and judges to run for AG, in view of my background. I considered the opportunity, but when I learned Karl Racine, twenty years younger, was interested, I declined to run and supported Karl. When I later decided to accept the Mayor’s offer, Karl and I sat down and discussed the relationships between the offices. The

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discussions between OAG and MOLC were ongoing over the next few years. We focused on areas of disagreement. Since OAG wanted to continue its relationship and oversight of Agency Counsel, I emphasized to Karl that his predecessor, Irvin Nathan, who was the last appointed AG, had initiated the move to create the MOLC to deal with the reality of subordination. The elected AG was no longer subordinate to the Mayor, but the agencies were. Therefore, the mechanism of MOLC had to be established. There were issues about jurisdiction of legal opinions – on that issue, I agreed with OAG. OAG had the clear responsibility for issuing legal opinions on any issue, the MOLC office did not. I disagreed with the Mayor and her senior advisors (I was one of the four reporting directly to her), and she ultimately agreed. That debate went on for a while. Overall, the relationship with Karl and his staff was very productive for me and MOLC, although it was a constant battle with some of the Mayor’s political advisors who felt Racine was a threat to the Mayor and potential competitor. I thought it was nonsense and still do.

The issues I dealt with were interesting and varied. One of the first issues was assisting in the conduct of the investigation of the Metro fire at the L’Enfant Plaza station in 2015 that took the life of an elderly DC resident, and the negligence of the Metro engineers. In that work, I determined that the EMS and fire department workers were absolutely professional and consistent with their responsibilities. It was a failure of proper maintenance (way too much maintenance was deferred over the years when Metro was not being well run as it is now) and the failure of communication mechanisms underground with fire and rescue above ground. I

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prepared witnesses for the National Transportation Safety Board hearings and helped oversee the resolution of that investigation from the District’s perspective. Related to that, was the long overdue decision to replace the then fire Chief and select a new one. I was involved in the interviews and recommendations of new fire chief candidates to the Mayor. Gregory Dean, the Fire Chief in Seattle, who was hired, and he has done a good job organizing fire and EMS infrastructure.
I was also involved in the investigation of the tragic death of a child in NW Washington, in which a housekeeper’s negligence in giving a child a grape causing the child to choke, and the failure of a fireman at the Warren Street firehouse to properly direct the engine to the correct address, resulted in the child not being reached in time and suffocating.
Finally, in connection with fire and EMS, Ron Ross and I spent three months successfully negotiating a labor agreement with the fire union over the issue of over-time pay, an issue that laid dormant for years. We were able to successfully resolve it by working with the outside counsel for the union and union leaders.
On the issue of policing, I had been involved in the private sector representing former Chief Ramsey in the Pershing Park litigation (which I previously discussed), and later serving as an informal advisor to Chief Ramsey and his successor, Cathy Lanier. When Lanier announced her retirement as Chief to become the Security Director of the National Football League, a new search process began to select a new chief. I was one of two to three people interviewing candidates and advising the Mayor on the process of selection. I strongly recommended that the Mayor appoint Peter Newsham as the next chief of police.

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It was the right selection notwithstanding allegations that surfaced about prior incidents with family issues. I investigated those incidents and concluded there was no factual basis, and that Newsham was a superb choice to become our next Chief. History has proved me right. During my time with the Mayor, I worked with Pete Newsham on many issues involving the police department.

A time-consuming matter Ron Ross and I handled together in 2016 was the procurement decisions conducted by the Department of General Services for the St. Elizabeth’s infrastructure improvements and construction management services for infrastructure work in connection with the DC United soccer stadium. These procurement issues came to the fore over the processes involved in selection of successful contractors. There were a series of objections, at least one formal protest and the engagement of various members of the Council by the unsuccessful contractors. In this process, the Director at Department of General Services resigned, several employees at DGS were disciplined and Councilmember Mary Cheh initiated an investigation involving testimony from several witnesses resulting in a dispute between her and the Mayor. Ron Ross and I handled the matter which lasted three to four months. We marshalled the evidence, prepared the witnesses, negotiated with Councilmember Mary Cheh and her staff, and the presented evidence. The matter ended with a report by Councilmember Cheh, which criticized the oversight of the Department of General Services and the discipline of employees. In my opinion, DGS and the City Administrator handled the matter properly. The employees should have been disciplined (they resigned). Councilmember Cheh’s report was at best,

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incomplete, and at worst, incorrect. The procurement decisions did not change. The scoring methodology utilized in those procurements have been amended and adjusted to eliminate any nuanced decision making and to ensure transparency. Again, in connection with the DGS investigation, I advised the Mayor on the review of Mayor’s orders. Before those orders are published, the OAG Office of Legal Counsel, having proper jurisdiction, reviews Mayor’s orders for legal sufficiency. Our office would get involved from time to time assisting in that process.

A major responsibility involved personnel matters. That included the ongoing training of agency lawyers by the MOLC, as well as coordination with the Office of the Attorney General’s training program. We ensured a comprehensive year- round training program of agency lawyers including monthly meetings with agency council and outside and internal speakers discussing a host of topics that

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Mr. Marmon: Mr. Tuohey:

would apply across the board. It was an important part of our work. For six months Ron Ross and I negotiated the new labor agreement with the city’s lawyers. It involved getting into the weeds on a host of issues.
How many lawyers were involved?

There were about 400 lawyers in the city – 200 in the Attorney General’s Office / 200 in the Agency. All were represented at the table. We successfully concluded the negotiation in late 2017 working in conjunction with the Office of Labor Relations and Collective Bargaining. On the other side of the table were five representatives from the Lawyers Union including all lawyers working for the government other than supervisors.

Other issues that took considerable time involving personnel included the Department of Insurance Securities and Banking and a number of lawyers that we recommended join that department; the selection of the General Counsel at a number of agencies during that time; the determination of the proper turf for recreation and athletic fields in the city’s public schools, an issue that took on several heated meetings with parents and supposed experts on the issue of carcinogens and other substance problems with those fields; the issue of proper attention by the Department of Corrections at the DC jail over temperature control – proper cooling in the summer and proper heating in the winter – that involved monthly meetings with judges of the US District Court, the Superior Court and all relevant agencies, several inspections and visits to the DC jail, and ultimately the replacement of the Director of the Department of Corrections; the resolution of a sticky, technical issue involving representatives of the CFO’s office dealing with

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pension and retirement benefits, which we were able to resolve after several months of meetings and having the CFO’s people take corrective actions; dealing with a number of issues at the Department of Health including the provision of medical and health related services to inmates at the DC jail; dealing with issues of supervision and control at the Department of Youth Rehabilitation Services; assisting in the selection of a new Director at the Department of Forensic Sciences and a realignment of the professional staff at DFS; and the coordination with the Office of Inspector General on investigations by OIG of executive branch individuals.
One of the most challenging issues occurred when the Mayor and City Administrator asked me to take over the negotiations for the resolution of the Pepco merger with Exelon. The resolution ultimately came before the Public Service Commission for approval, and we worked with the Office of the Attorney General, the Office of the People’s Counsel and several other organizations to support the merger resolution. The City Administrator directed the MOLC to conduct the direct negotiations with Pepco and Exelon. We assumed the responsibility and over a period of six to eight weeks, Ron Ross and I met with the representatives of Pepco and Exelon. Although we consulted with OAG, People’s Counsel and several other related organizations, we negotiated the terms of the merger agreement and helped in the drafting. Technically, the matter was under the jurisdiction of the Office of Attorney General by statute. After we completed our initial negotiations, OAG became involved in a very important way and helped negotiate with the People’s Counsel and tenants groups to reach a final

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resolution. After much debate and hearings at the Public Service Commission, it was approved.
During my forty months, I was involved in a lot of issues. One of the senior lawyers we hired, Sarah Jane Forman, was detailed to the Office of the State Superintendent of Education in the spring of 2015 to assist in the reorganization of OSSE. Ms. Forman was so important to the work that the Director of OSSE requested that she be named as the new General Counsel, where she still serves. Between and among the public schools, the charter schools and OSSE, we played an important and ongoing role in the resolution of several disputes: the determination of the allocation of public funds to DCPS and the charter schools; the relation between the governance of DCPS and charter schools through the public charter school board; the investigation of the death of a student at one of our public charter schools; and the relationship between OSSE and a new entity overseeing interscholastic athletics in the District of Columbia.

Finally, we were involved in the relationship between the federal government, particularly Congress and the District of Columbia, on matters where the Republican majority of the House of Representatives voiced objections to the District’s legislations in areas such as legalized marijuana, abortion rights and budget approvals for the DC government. In a number of these areas Congress threatened interference with the District’s proper decision making. In the end, the MOLC, on behalf of the District, challenged Congressional interference, and the District prevailed on most of the issues. In the area of budget, the District prevailed in the challenges to the Budget Autonomy Act, which allows the

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District to have its own budget approved by the White House with only a passive approval by the Congress. “Passive Approval” means that if within a very short and specific time period Congress does not vote disapproval, it’s deemed approved. The Mayor stood up for the District, and threats to interfere with Council action in the areas of legalized marijuana and reproductive rights have fallen short. In terms of the executive branch, there has been no real interference. Frankly, there wasn’t much contact over the 40 months of my tenure.

We were involved in virtually every major decision that had legal implications for the District. Numerous actions with regard to the agencies and their work, their personnel and their hiring and training. One of our senior lawyers, Melissa Tucker, took over the responsibility for FOIA appeals and she expertly handled all appeals of agency FOIA decisions. Greg Evans, another senior lawyer, has been involved in issues such as hand gun regulations and licensing established by Metropolitan Police Department and relationships with specific agencies such as the Office of Unified Communications and the Office of Chief Technology Officer.

We had a remarkable staff. Working together with Ron Ross, we established a strong MOLC for future administrations. In the spring of 2018, I decided we had accomplished our goal of solidifying a strong MOLC working relationship with agency counsel and OAG, and provided a solid framework for the future. I could now return to private practice. I left in April to join Baker Hostetler.

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Oral History of Mark Tuohey Ninth Interview December 16, 2018

This interview is being conducted on behalf of the Oral History Project of the District of Columbia Circuit. This is the ninth session of the oral history of Mark Tuohey. Bill Marmon is the interviewer. The interview is taking place at Baker Hostetler, Mark’s law firm.

Mr. Marmon: Mr. Tuohey:

Mark’s involvement with Fordham and family.
During my senior year of college, after deciding I wanted to attend law school, I applied to Fordham, Georgetown and Notre Dame – all good law schools, but with different cultures. I ultimately decided on Fordham, both because it was in New York City, and I received a full ride (tuition, room and board) as a resident advisor on the undergraduate campus during my first year, which began in September 1968. I had been in ROTC in college and was commissioned a Second Lieutenant in the Army upon graduation with a deferment for law school. This was during the heart and soul of the Vietnam conflict, but my active duty would begin after graduation. During my second year, I was informed by the Department of the Army that my deferment was conditional on the needs of the army (I found there were other students in New York at NYU and Columbia that had a similar situation), that the deferment was cancelled, and I had to report for duty at Fort Sill, Oklahoma at the completion of the spring, 1970 term.

What was Marty’s work?

Mr. Marmon:

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Mr. Tuohey:

During her first year in New York (after our wedding and during my second year of law school), she worked as a social worker in Westchester County. During our time at Ft. Sill, she did social work in Lawton, Oklahoma. When we returned to New York for my first year of law school, Marty worked in social services in Manhattan and Brooklyn dealing with families in difficult situations. When we moved to Washington, she received a Master’s in Social Work at Catholic University School of Social Work, and then spent forty-five years as a psychotherapist in private practice.

May, 1970 was a very contentious time, especially on campuses across the nation, because of the invasion of Cambodia. There were massive protests during the spring of 1970. Columbia, NYU and Fordham postponed/cancelled exams until later in June. I did not have that luxury because I had to report to Ft. Sill in May. Therefore, I took my exams in May. After my exams, we packed up and moved to Oklahoma. I spent nearly two years in Oklahoma working as an MP Officer at the Ft. Sill Stockade. I received orders for Vietnam May, 1971, but those orders were cancelled at the last moment because the President issued an Executive Order as part of the phase-down, which required the two-year officers leave at 22 months, rather than 24, and one could not be sent overseas for a 10-month stint. In 1972, I returned to the law school for what was my most rewarding year. I was highly motivated having been away for two years, and importantly, I would be deciding on my immediate future after graduation. I had some very good courses and was selected as an editor of the Urban Law Journal. That year included a lot of new faces because the class I started with had graduated, and I made many new

116

and lifelong friendships that year. We lived in Inwood, an Irish bastion on the upper west side of Manhattan. The area has changed dramatically over the years. At the time, it was a thriving Irish neighborhood where many judges, law enforcement officials and longtime New York Irish families lived. In the fall of that year, I received the offer to join the United States Attorney’s Office in Washington. We left New York and headed to Washington after graduation.

My relationship with Fordham has grown closer over the years. During the fall of 1973, I was very active in the growth of the Washington chapter of Fordham Law School Alumni Association (FLAA). Today, the chapter has 400-500 members and continues to grow every year. I assisted several deans of the Fordham Law School over the years, beginning with Dean Joseph McLaughlin, who was recommended by the New York senators to become a federal judge in New York (Brooklyn). There was a hold up at the White House because of a conservative legislator’s criticism over McLaughlin’s views as Chair of the New York State Law Revision Commission. The criticism was wholly without merit. I spoke with the then White House Counsel and a few other friends in Washington and the nomination was finalized. Joe McLaughlin went to the federal bench in the Eastern District and then to Second Circuit Court of Appeals. John Feerick, who later became the Dean of the law school, served as the President of Fordham Law School Alumni Association (FLAA) during this time, and I helped him on many matters related to Washington.

I was later chosen to be the President of FLAA in 2006/2007, as the first non-New Yorker to hold that position. I have remained close to the law school ever since.

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During the fall semester, 2018, I taught a course on state and local government law, and will alternate between teaching at Georgetown and Fordham over the next few years.
During the summer of 2005, the President of Fordham University, Father Joe McShane S.J., called and asked to meet in New York. At dinner, he stated that he and the University Trustees recommended that I join the Fordham Board of Trustees. I did, and served seven years.

I previously served in the 90s as a Trustee of Gonzaga College High School, where my three sons attended. In 1997, the Jesuit community in Washington (Gonzaga College High School, Georgetown Prep, Georgetown University) all joined forces to establish the Washington Jesuit Academy, a school for minority young men in the 6th, 7th and 8th grade who have academic prowess but lack economic resources to attend private school. The school has been a tremendous success since its formation in the late 90s. I was chosen as the first Chairman of the Board of Trustees of the Washington Jesuit Academy. The school creates an environment for young men from underprivileged families to have a high-quality education six days week, ten hours day, including three meals a day. Virtually, all the students to date have gone on to high quality high schools, colleges and universities over the last 20 years. It was a great privilege to serve on that Board. In 2000, I was asked to serve on the Board of Trustees of Catholic University, which I did for twelve years. It was an interesting experience. At my first meeting, there was a call from the lay members of the Board to ask the Chairman of the Board of Trustees, Cardinal Bernard Law of Boston, to resign due to his

118

Mr. Marmon: Mr. Tuohey:

handling of clergy sexual abuse – which he did within 2-3 months. That Board service was interesting because at least half of the Board were bishops and cardinals, with a certain amount of orthodoxy, and the lay trustees included several moderate to progressive thinkers. We had interesting debates on issues under several presidents of the university.

Finally, in 2015, a priest friend, now retired, and a very progressive Catholic thinker who spent much of his career at Archbishop Carroll High School, a co-ed institution in Northeast Washington serving the academic needs of minority students, asked me to join the Board of Trustees, and I agreed. I still serve on that Board today.
Were there any big issues while you were on the Board at Fordham?
For most of my service, the Chairman of the Board, John Tognino, a well- regarded former senior executive at Merrill Lynch, brought a lot of good management thinking to the Board. At the time, the President of the University was quite clear in his thinking that a Board of Trustees should advise the administration, but not manage the institution. However, we had several issues where the Board had to become decision makers. One of which was the appointment of a provost, a position up until that time was not a part of the administration. Some of the duties were handled by an academic vice president. We felt strongly the President needed a provost to manage the day-to-day economic affairs of the institution, and we insisted on it. Dr. Steven Friedman, who recently died, became the Provost and did a terrific job.

119

Mr. Marmon: Mr. Tuohey:

Notwithstanding the fact that Fordham has done wonderful work, and is a highly regarded institution in the most important city in the world, from time to time the Board would inject itself in management issues – more to assist than to control. One example was when I was Chair of the Athletics Committee of the Board – we decided to improve Fordham’s basketball program. The Committee recommended to the Board that Tom Pecora (who was head coach of Hofstra, but had worked with Jay Wright, the Villanova coach, and was highly regarded by multiple major college coaches around the country that we interviewed (Bobby Knight, Michael Krzyzewski, Jim Boeheim, Jay Wright)) would be good for the university. The Board approved our recommendation, but it did not sit well with the administration. Overall, Fordham has done a great job in its academic training and has produced wonderful graduates. I believe, however, that a Board of Trustees is more than a rubber stamp, and it has been helpful to the President in maintaining the stature and reputation of Fordham.

Talk about the course you taught.
The state and local government law course is a standard elective at the law school and taught by a distinguished professor, Nestor Davidson. Davidson went on sabbatical in the fall of 2018 and Nestor asked me to teach the course. I had taught one of his sessions in the spring of 2018, so he asked me to teach again. I used his syllabus, but adapted it to New York City and its relationship to the state, and the District of Columbia and its relationship to the federal government, and how the state and local government of New York and DC operate under their respective constitutions. The course focused on state government and how it

120

Mr. Marmon: Mr. Tuohey:

differs from the federal government in operating. I enjoyed teaching the course and I will teach again at Fordham, but look forward to teaching at Georgetown Law Center in the fall of 2019 or 2020.
Over the years, I have frequently lectured, teaching trial advocacy, ethics and selected white-collar litigation subjects at law schools and ABA seminars, as well as at the National Institute for Trial Advocacy. When I was at the USAO and in private practice, I taught trial advocacy at Georgetown Law School. I have been active teaching at law firms, law schools and related institutions throughout my career.

Family?
We will celebrate 50 years of marriage in June, 2019. Our eldest son, Brendan, was born in Washington in 1974, Sean in 1976, and Devin in 1979. Marty, after completing her Master’s in Social Work at Catholic University and an internship at the Washington Hospital Counseling Center, had a 45-year career as a psychotherapist in Washington. During the formative years of our three sons, including up through grammar school, Marty completed graduate school and developed a private practice. On a yearly basis, we had young women from Washington and Rochester assist in child care. The three boys attended parochial grammar schools, and then all went to Gonzaga College High School. In my view, Gonzaga provides the most significant and formative educational experience that a young man can have, because it blends strong academic programs, good athletic programs and a commitment to service and others as a part of the philosophy “men and women for others”. The Gonzaga experience

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was very formative for the three boys. They were all very good athletes. They all played varsity basketball and went on to play varsity basketball in division one college programs. Brendan played for Colgate and played in two NCAA tournaments. Sean went to Lehigh, and in his second year, he decided to transfer to Catholic University. Sean finished his education at Catholic where he played basketball and took them to two Division III NCAA tournaments. Devin went to Colgate as well, played basketball and had a great education. He then graduated from Fordham Law School in 2007. Devin initially accepted a position with a major New York firm, but decided in his last semester to go into real-estate, where he is now a partner in a DC/Philadelphia development firm.

After graduation from Colgate, Brendan accepted an offer to play professional basketball and coach in Ireland. He coached at Dublin City University and played with a small professional team. Sean had a similar opportunity after his graduation and went to Northern Ireland where he played for a small professional team and coached at Queens. Before Devin went to law school, he spent a year in Derry, Northern Ireland playing for a team.

Brendan was accepted to Fordham Law School. Upon his return from Ireland, he spent a year working at Shearman & Sterling, a major New York law firm, but decided in the end that law school was not what he wanted to do. He returned to Washington and spent a couple of years at Gonzaga College High School working in the administration before joining the conflict resolution program envisioned by his brother in Belfast in 1999.

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Mr. Marmon:

During Sean’s first year in Belfast, Northern Ireland, he addressed an issue that both his brother Brendan and he had discussed – namely using the idea of sports to initiate the development of relationships between cultures and conflict. They focused on using basketball to bring together young Catholic and Protestant boys and girls in Belfast. The notion was that, if you could learn to play together, you could learn to live together. That program, Peace Players, is now in its twentieth year. It has been a huge success in Belfast, where it began, and has since spread to other communities around Northern Ireland. Thousands of kids have been a part of the program. They then decided to take the program to Durban, South Africa, where it has grown tremendously over the years – blacks, whites and Indian young men and women have come together. In Israel, the program brings together young Palestinian and Israeli men and women. Peace Players is also in Cyprus, bringing together Turks and Greeks. The program has also had an impact on the conflict in Yemen using Muslim coaches to work with kids. It will shortly open in Croatia. At the same time, due to its success around the world, Nike is underwriting a domestic Peace Players program which is now in five cities, Baltimore, Detroit, Brooklyn, Oakland and New Orleans. Next year, they will be in Chicago and Los Angles – bringing kids together with police officers to create an environment of understanding and trust.
We are very proud of the boys over the years. They have wonderful supportive spouses, and we have eight special grandchildren.
How does it work?

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Mr. Tuohey:

Brendan serves as the President of Peace Players. Sean is now in Buffalo with his family, and his wife is a lawyer. Sean is working with kids through the Wilson Foundation (Ralph Wilson of the Buffalo Bills). He also co-owns a new restaurant with his father in law. Devin is in Philadelphia working in real-estate with his Washington partner. All three have been involved, but Brendan now runs it. The management is based in Washington, DC with a Board of Directors from around the country, many of whom are from the financial industry and have contributed a lot of financial resources. In each country, there is a paid director for that country and a local advisory board. The U.S. staff consists of 15-20 people in Washington, DC. There is staff in Northern Ireland, South Africa, Israel and in Cyprus who work under directors who report to Brendan. There are directors of the domestic programs in various cities. The Board of Directors meet on a regular basis and assist in the overall management. It’s a big operation now. How does the basketball game come about? How do they choose who plays?

In Northern Ireland, Protestant and Catholic kids play together on teams. In Northern Ireland, the program has added a relationship with rugby and Gaelic sports – hurling and football. The kids play together five days a week, as do the programs in South Africa, Israel and Cyprus.

Where do they play? How do they get the courts?
They started out using school courts. Now they use facilities in Northern Ireland, Israel, Cyprus and South Africa that have been donated. In Jerusalem, the Jerusalem Y had a major renovation and permits Peace Players to use it every day for four to five hours. The source of support over the years has been a

Mr. Marmon: Mr. Tuohey:

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combination of government funds through USAID, which has been very involved in Israel, South Africa and Cyprus, Foundation funds and private contributions.

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Oral History of Mark Tuohey Index

American Bar Association (ABA), 46, 93, 95-98, 121 Litigation Section, 63

See also American Law Institute (ALI) Abramoff, Jack, 67-68

Adamson, Terry, 46-47
Addis, Dave, 14, 19
Ahern, Bertie, 64
Akridge Development Company, 104 Alexander, Harry, 20, 32

American Law Institute (ALI), 95-96 Angelos, Peter, 75, 78
Arent Fox, 52
Arkansas, 51

Hope, 45, 49
Attorney General for the District of Columbia Clarification and Elected Term and Amendment

Act, 102 Azar, Alex, 49, 50

Baker Hostetler, 1, 35, 69, 114-15 Baker, Tim, 40
Barber, William, 84
Barry, Marion, 26

Baseball Stadium Agreement, 79
See also Major League Baseball

Bates, John, 50
Bazelon, David, 14, 22
Bell, Griffin, 99
Billman, Tom, 55
Bittman, Bill, 54
Black Entertainment Television Network (BET), 110 Black, Walter, 54-55
Blackburn, Brian, 48
Blinken, Tony, 66
B’nai B’rith, 25, 27-28, 30-31, 34
Bolton, Josh, 78
Bonanno crime family, 37
Bowser, Muriel, 104
Breyer, Stephen, 95
Brown Rudnick, 67, 106
Bryan, Albert, 83, 85
Burke, Harold, 36
Bush, George, 100
Butzner, John, 46

A-1

Byrne, David, 63, 64 Byrne, Matt, 47, 64

Calamari, John, 16
Carter, Frank, 25
Cheh, Mary, 109
Civiletti, Ben, 19, 35, 37, 40 civility, 56-57, 86, 94

Clark, Tom, 22
CLE (Continuing Legal Education), 57
Clinton, Bill, 50, 98
Clinton, Hilary, 50
Collins, Bill, 22
Colloton, Steve, 49
Columbus Day bombing case in Rochester, New York, 36 Community Savings and Loan, 53-54, 85
Community Savings and Loan / EPIC, 53
Costello, Jim (cousin), 14
Covington & Burling

Sports Law team, 75 Cronin, Dennis, 61

Cullinane, Maurice, 26, 87 Curtin, John, 37
Cutler, Lloyd, 48, 99
Cys, Rick, 93

Dash, Sam, 49, 51
Davidson, Nestor, 120
DC United, 105, 109
Dean, Gregory, 16, 57, 108, 117 Demerath, Jeff, 20
Deutch, John, 62
District of Columbia

Budget Autonomy Act, 113
Department of Corrections, 111
Department of Health, 112
Department of Youth Rehabilitation Services, 112 Home Rule, 102

See also Attorney General for the District of Columbia Clarification and Elected

Term and Amendment Act District of Columbia Bar, 18, 46, 56, 57, 98, 105 District of Columbia Metropolitan Police Departmen, 87, 89-92, 114

Donovan, Ray, 54 Douglas, William, 94 Dowd, John, 42 Doyle, John, 21 Duffy, Bill, 49

A-2

Dulles, Avery, 9

Elko, Stephen, 42-43 Ellis, Tim, 83 Emerson, Robert, 95 Enron, 59, 60, 61

SEC investigation, 61 Evans, Greg, 79, 114

Evans, Jack, 87, 89 Evans, John, 27, 38 Ewing, Hick, 49 Exelon, 112

FBI (Federal Bureau of Investigation), 1-3, 11, 18, 36- 41, 45, 48-49, 87 Federal Judicial Selection Commission, 98
Federal Youth Corrections Act (FYCA), 22
Feerick, John, 117

Feinstein, John (The Last Amateurs), 15 Felt, Mark, 40
Fenty, Adrian, 89
Fifth Street lawyers, 21

Fiske, Bob, 45-46, 48-49
Flood, 42, 43, 44, 45
Flood, Dan, 52
Flood, Daniel J., 42
Foley & Lardner, 74
Fordham, 7, 9, 11, 12, 15, 16, 18, 20, 28, 115, 116, 117, 118, 119, 120, 121, 122 Foreign Corrupt Practice Act, 67

Forman. Sara Jane, 113 Fort Sill, 12, 115
Foster, Vince, 45, 48, 49 Fox, Phil, 41

Freeh, Louis, 48
Friedenthal, Jack, 57
Friedman, Paul, 93, 100
Friedman, Steven, 119
Frost, Leslie (daughter of Robert Frost), 8 Ft. Sill, 12, 116

Gandhi, Natwar, 72
Gannett (media company), 52
Gasch, Oliver, 44
George Washington University Hospital, 44 George, Peter, 19

A-3

Ginsberg, Allen, 10
Gonzaga College High School, 118, 121, 122 Gorelick, Jamie, 48, 56, 98
Government Defense Contract Procurement Fraud, 82 Gravano, Sammy (the Bull), 41
Gray, Patrick, 40
Gray, Vincent, 118-19
Great Irish Famine, 2
Greene, Harold, 14
Griffith, Calvin, 69
Grogan, Ben, 38-39

Hanafi, 15, 25, 28, 34
Jabbar, Kareem Abdul 24

siege, 26

trial, 24, 35 Harnett, Andrea, 20

Harris, Joanne, 48
Hayes, Morris, 65
Heatherton, Judy, 18-19
Henry, John, 70
Hershey, Lewis, 10
Hewes, George, 84
Hicks, Tom, 70
Hinden, David, 43
Hogan, Frank, 13, 17
Hogan, Thomas, 64
Holder, Eric, 41, 99
Horrigan, Margaret (maternal grandmother), 1 Houston Chronicle, 70

Hutchison, Ray, 69 Huvelle. Ellen, 100

Ill Wind procurement fraud cases, 55, 82
Independent Counsel See Office of the Independent Counsel Ingalls See Litton Industries
International Oil Trading Company (IOTC), 66
Ireland, 1-4, 73-76, 89, 100, 114, 122-24, 139-40

peace process, 102
See also Northern Ireland, Patten Commission

Jabbar, Kareem Abdul, 24 Jackson, Mississippi, 47, 53, 83-84 Joklik, Frank, 61

A-4

Jones, Bill, 14

Katsoris, Gus, 16
Kaub, George, 82
Kavanaugh, Brett, 49-50, 98
Keenan, John, 13, 17
Keibomar, Axel, 44
Kellogg, Phil, 19
Kellogg, Williams, Lyons and Zuckerman, 19 Kemelman, Harry, 43
Kennedy, Henry, 14, 18-19, 100
Kern, John, 19
Khaalis, Hamaas Abdul, 15, 24, 26-29, 33-34

trial, 30-31 Jewish Cabal, 32

Kirkland & Ellis, 49 Kollar-Kotelly, Colleen, 100 Kotelly, John, 41
Kuhn, Bowie, 69

Lanier, Cathy, 89-90, 108
Larimer, David (Dave), 13, 17
Last Amateurs (Feinstein), 15
Law, Allen, 72, 80
Law, Bernard, 118
Lawler, Bill, 88
Lee, Henry, 48
Lerman, Brad, 49
Lerner Group, 80-81
Leventhal, Harold, 22
Lewinsky, Monica, 51
Linsky, Marty, 15, 24, 28-29, 33-34
Litton Industries Ingalls Shipbuilding Co., 61, 64, 95-97 Lompoc Federal Correctional Facility, 43
Loria, Jeffrey, 70
Los Alamos National Laboratory, 62
Lyons, Jim, 19

Madison National Bank, 51
Major League Baseball (MLB), 69-71, 73-76, 81

Relocation Committee, 70-74 Malek, Fred, 81

Margolis, Dave, 36, 41

A-5

Marks, Jonathon, 20
Maryland Savings and Loan collapse, 53
Mayor’s Office of Legal Counsel (MOLC), 103, 105, 107, 110, 112-14 McCarthy, Greg, 71
McCuistion, Clay, 54-55, 85
McGowan, Carl, 22
McGrory, Mary, 43
McInerney, Dennis, 49
McKinnon, George, 22
McLaughlin, Joseph, 117
McMullen, Jim, 22
McQuaid Jesuit High School, 4, 6-7, 13
Mendelson, Phil, 104
Metropolitan Police, 87-89, 91-92, 114
Mikva, Abner, 48
Miller Cassidy, 57
Miller, Edmund, 40
Minsker, Marty, 57
Montreal Expos relocation, 75

See also Major League Baseball Muellenberg, Kurt, 36, 37

Muhammed, Messenger of God (movie), 29 Muhammed, Wallace, 24
Mulligan, William Hughes, 16
Murphy, Chris, 83

Nathan, Irvin, 107
Nation of Islam, 24
National Transportation Safety Board, 108
Nebeker, Frank, 21
Newsham, Peter, 89-91, 108-9
Ney, Bob, 67-68
Nixon, Hargrave, Devans & Doyle (Nixon Peabody), 52-53 Northern Ireland, 64-66, 89, 90, 122-24

Belfast, 63, 122-23
Maze Prison, 65
See also Ireland, Peace Players

Northrup Grumman See Litton Industries Norton, Eleanor Holmes, 98-99
Nunzio, Nicholas, 25, 31-32

O’Brien, Joe, 26, 29
Office of the Independent Counsel, 51-52, 56, 65, 67, 74, 111

Statute renewal, 45 Organized Crime Strike Force

A-6

Buffalo, 36-39 Chicago, 40 Miami, 38 Washington, 42-43

Panetta, Bernie, 14, 18-19 Parker, Barrington, 23
Patten Commission, 64-65, 89 Patten, Christopher, 65, 89 Patterson, Cathy, 87

Peace Players, 123-24
See also Ireland, Northern Ireland

Pecora, Tom, 120
Pepco, 112
Pershing Park, 90-91, 108
Pickering, Ralph (Baby Face), 41 Pierson Ball / Reed Smith, 54, 58, 88 Pinter, Leib, 43

Pratt, George, 37 Queen, Tom, 93

Racine, Karl, 106-7
Ramsey, Charles (Chuck), 89-91, 108
Reed Smith, 56
Reilly, Gerard, 14
Reinsdorf, Jerry, 70, 73-75, 78-79, 81
Reno, Janet, 45, 48
RFK Stadium, 71-72, 76-77, 79-80
Richter, Bob, 41
Rickover, Hyman, 83
Rocket-Docket See United States District Court for the Eastern District of Virginia Robb, Roger, 22
Roberts, Ricky, 100
Robertson, Jim, 100
Robinson, Spottswood, 22
Rochester, New York, 1-2, 9, 36, 37, 87
Romney, Mitt, 61
Rose Law Firm, 50
Rose, Pete, 75
Rosenstein, Rod, 49
Ross, John, 72
Ross, Ron, 104, 106, 108-9, 111-12, 114
Royal Ulster Constabulary (RUC), 65

A-7

Rudd, Mark, 10

Salt Lake Olympics, 61 Sargeant, Harry, 66-67 Scheiniger, Mike, 24 Schlesinger, Arthur, 9 Schweitzer, Bill, 73 Selig, Bud, 71, 75, 78, 81 Sentelle, David, 46 Sheekey, Kathleen, 93 Short, Bob, 69

Shuker, Bob, 27
Silbert, Earl, 27-28, 34, 46, 94
Slatkin, Nora, 62
Slattery, Michael (maternal grandfather), 1 Slattery, Sister Jamesetta (aunt), 7 Smulyan, Jeff, 81
Sneed, Joseph, 46
Soulsby, Larry, 87
Spivack, Steve, 20
SSN 680 nuclear submarine, 53, 83
St. Bonaventure University, 1-2, 7-10
St. Eve, Amy, 49
Starr, Ken, 46-47, 50-51, 56
Stern, Herb, 41
Stone, William, 38, 39
Strike Force, 36, 38-40, 42
Sullivan, Emmet, 50, 91, 100
Sullivan, Tom, 46
Supergrass Trials, 63
Sweeney, Joe, 16

Tamm, Edward, 22
Tandy, Karen, 43
Terry, John, 21-22, 86
Titus, Harold, 13, 18, 19
Tognino, John, 119
Torres, Tatiana, 106
Trescott, Jacqueline, 8
Troutman Sanders, 106
Trump, Donald, 100
Tucker, Jim Guy, 51
Tucker, Melissa, 114
Tuohey Sr., Mark H. (paternal grandfather), 1

postman, 2

A-8

Rochester Heel Company, 1 Tuohey, Brendan (son), 15, 121,123,124

Shearman & Sterling, 122
Tuohey, Devin (son), 15-16, 121-22, 124
Tuohey, Elma Bornkessel (paternal grandmother), 1 Tuohey, Josephine Slattery (mother), 1
Tuohey, Mark H., Sr. (father)

Commissioner of Public Safety, 4, 19, 87
Director of Health, Safety and Security at Eastman Kodak, 4 FBI, 1-4, 11, 19, 36, 40, 87
Olean, New York at St. Bonaventure University, 1
World War II, 1

Tuohey, Mark – Personal
birth Rochester NY, 1-4, 7, 19
Catholic University Board of Trustees, 118
Chicago, 3
CYO and sports, 5
deferment for law school, 115
FBI background check, 18
Fordham University Law School, 11-12, 15-16, 28, 117, 122

Alumni Association (FLAA), 117 Board Athletics Committee Chair, 120 Board of Trustees, 118

Fort. Sill, Oklahoma
Stockade Military Police Officer, 12, 116

Gonzaga College High School Trustee, 118 Ireland, 1-4, 73-76, 89, 100, 114, 122-24, 139-40

Irish citizen, 3 Manhattan, 13-14, 17, 116-17

McQuaid Jesuit High School, 4
New Orleans, 2-3, 46-47, 123
Northen Ireland, 64-66, 89, 90, 122-24 ROTC, 9, 11- 12, 115

sports, 5
St. Andrew’s Seminary, 4

St. Bonaventure University, 7
Cultural Affairs Committee Chair, 8 Student Body President, 8

St. Monica’s Grammar School, 2, 3
Urban Law Journal, 13, 18, 116
Washington Jesuit Academy Board of Trustees Chair, 118

Tuohey, Mark – Professional American Bar Association

Committee on Continuing Legal Education, 94-95 Standing Committee on CLE Chair, 95
Standing Committee on Government Relations, 97

A-9

Young Lawyers Section Chair, 35, 94 Baker Hostetler, 114

Bar Council of Ireland, 100
Bar of England and Wales, 100
Brown Rudnick, 67
CLE, 35, 57, 63, 95, 96
Columbus Day bombing case in Rochester, New York, 36 Criminal Division Special Counsel, 35
Criminal Law Institute Co-Chair, 35
District of Columbia Bar Association

President, 56 District of Columbia

Chief Counsel, 90-91, 105

Department of Insurance Securities and Banking, 111 District of Columbia Public Defenders Service

strong relationship with, 23
District of Columbia Sports and Entertainment Commission Chair, 71, 104 Enron SEC investigation, 61
Federal Judicial Selection Commission, 98
Government Defense Contract Procurement Fraud, 82
Grand Jury section in Superior Court, 23
Ill Wind procurement fraud cases, 55
Internal corporate investigations, 59, 60
International Bar Association, 100, 101
International Oil Trading Company (“IOTC”), 66
Ireland and Northern Ireland, 63, 64
Irish Bar, 64, 100
Kellogg, Williams, Lyons and Zuckerman, 19
lessons as a defense attorney

careful preparation, 86
civility, 56
precision, especially in a written product, 86

Litton Industries Ingalls Shipbuilding Co., 53, 55, 61, 64, 95-97 Lompoc Federal Correctional Facility, 43
Los Alamos National Laboratory, 62
Major League Baseball

Baseball Stadium Agreement, 79
Mayor’s Office of Legal Counsel (MOLC), 103, 103, 107, 110, 112-14

Director, 105
National Institute for Trial Advocacy, 121 National Transportation Safety Board, 108 Organized Crime Strike Force

Buffalo, 36-39 Chicago, 40 Miami, 38 Washington, 42-43

A-10

Patten Commission, 64-65
See also Ireland, Northern Ireland

Pepco merger with Exelon, 112
Police Investigation Special Counsel, 88
pro bono volunteer work, 57
Principal Deputy Independent Counsel, 45, 56, 58 Royal Ulster Constabulary, 65
Salt Lake Olympics, 61
Special Trial Counsel DOJ Criminal Division, 19 SSN 680 nuclear submarine, 53, 83
Supergrass Trials, 63
teaching

Fordham state and local government law, 120

Georgtown Law School trial advocacy, 121 Urban Law Journal editor, 13, 18, 116
US Attorneys Office, 11, 14, 19

Assistant US Attorney, 93 Vinson & Elkins, 50

Whitewater investigation, 45
Witnesses Protection Program, 41
Young Lawyers Division of the American Bar Association (YLD), 94 Young Lawyers Section of the Bar Association (YLS), 93

newsletter editor, 93
Tuohey, Marty (wife), 6-7, 9, 12, 14, 18, 28, 115, 121

Catholic University Master’s in Social Work, 116 psychotherapist, 116
social work , 14, 116

Tuohey, Nancy (sister), 3 Tuohey, Sean (son), 121-24 Tuohey, Suzanne (sister), 3

United States Attorneys Office, Baltimore, 49, 53

Buffalo, 37
Chicago, 49
Eastern District of Virginia, 35-36, 82, 84
Memphis, 49
Newark, 41
Philadelphia, 40
Washington, 13-14, 17-19, 24, 35, 41, 50, 52, 88, 93-94, 98-99

United States Department of Justice (DOJ), 42, 46, 49, 53, 66 Fraud Section, 82

United States District Court for the Eastern District of Virginia, 55, 83 Rocket-Docket, 82, 85

United States v. Crowder, 22

A-11

United States v. Dorszynski, 22
United States Attorneys Office, 13-14, 17, 19, 24, 35, 41, 50, 52-53, 55, 82, 84, 86-88, 93

Valenti, Frank, 36
Vietnam War, 9-12, 115-16
Vinson & Elkins (V&E), 50, 52, 58, 59, 6-62, 66-67, 69, 88

Washington Post, 8, 43 Washington Senators, 69 Weingarten, Reid, 41 Whitewater investigation, 45, 50 Williams & Connolly, 61 Williams, Anthony, 71-72, 77-79 Williams, Ed, 19

Williams, Maurice, 26 murder, 31

Wilpon, Fred, 70 Wilson, Ralph, 124

Wilson Foundation, 124 World Bank, 90-91

Wright, J. Skelly, 22

Young Lawyers Division of the American Bar Association (YLD), 94-95 See also American Bar Association

Young Lawyers Section (YLS), 93-94 Criminal Practice Institute, 94
See also American Bar Association

Zuckerman, Roger, 19

A-12

Table of Cases and Statutes Cases

United States v. Crowder, 543 F.2d 312 (D.C. Cir. 1976), 22 United States v. Coefield, 476 F.2d 1152 (D.C. Cir. 1973), 22

Statutes

Foreign Corrupt Practices Act of 1977, 15 U.S.C. § 78dd-1, et seq., 137 Youth Corrections Act, 18 U.S.C. §§5005-5-26 (1964), 22

B-1

Mark H. Tuohey

1655 Kalmia Road NW, Washington, DC 20012 202.390.7267 (c) mtuohey@gmail.com

Baker Hostetler LLP
1050 Connecticut Avenue NW, Suite 1100, Washington, DC 20036 202.861.1654 (o) mtuohey@bakerlaw.com

Professional Background
Of Counsel – Baker Hostetler LLP: April 2018-Present

Provision of legal advice on broad array of civil and criminal compliance matters

Director – Mayor’s Office of Legal Counsel: January 2015-March 2018

Newly created position established by the Washington, D.C. City Council in 2014 for the purpose of providing legal and policy advice to the Mayor and oversight of the General Counsel for the 42 District of Columbia agencies, including Health and Human Services, Energy and the Environment, Public Safety, Education, Information Technology, Homeland Security, Banking and Securities, and Labor and Employment

Private Practice

Pierson Ball & Dowd/Reed Smith; Vinson & Elkins (Managing Partner DC office 2000-2005); Brown Rudnick
-Civil and white-collar criminal investigations and trials on behalf of corporate officers and directors in Federal and State courts throughout the United States

-Representation of clients in Congressional oversight investigations
-Provision of legal advice in civil and criminal regulatory compliance matters and internal investigations in the United States, Europe, Asia, the Middle East and China -Conducted arbitrations for legal disputes involving law firms and business entities

Public Sector Experience

-Assistant US Attorney for District of Columbia: 1973-1977
-Department of Justice Special Counsel to the Attorney General: 1978-1979 -Principal Deputy – Independent Counsel: August 1994-August 1995
-Special Counsel – Investigation of Metropolitan Police Department: 1997
-Advisor to the Patten Commission on Policing in Northern Ireland: 1998
-Special Counsel to the Attorney General of Ireland: 1998-2004
-Chairman – District of Columbia Sports and Entertainment Commission: 2003-2007

Honors & Appointments

-Adjunct Professor of Law – Fordham University Law School: 2018-
-Adjunct Professor of Law – Georgetown University Law Center: 1978-1984; 2019 – -Lecturer in Law – Trial Advocacy, Legal Ethics, Corporate Compliance, Congressional Oversight Investigations: 1977-Present
-Chair, Young Lawyers Section, Bar Association of the District of Columbia
-President – The District of Columbia Bar: 1993-1994

-Member, District of Columbia Federal Judicial Nominations Commission (1992-2000)
-Fellow – American College of Trial Lawyers
-Best Lawyers in America (Bet the Company Litigation and White Collar Crime): 1995-Present: International Who’s Who of Business Crime Lawyers; Top 100 Irish American Lawyers -World’s Leading Lawyers for Business Litigation
-Washingtonian of the Year: 2005; D.C. Lawyer of the Year: 2001
-President – Fordham Law School Alumni Association: 2008-2010; Fordham Medal: 2011

ABA Appointments

-Chair, ABA Standing Committee on Continuing Legal Education: 1980-1985; ALI-ABA Committee: 1980-1990; ABA Litigation Section Council Member: 1980-1990; ABA House of Delegates: 1993-2008
-Chair, ABA Standing Committee on Government Affairs: 2010-2014

-Chair, ABA Rule of Law Initiative, Middle East / North Africa: 2019-

Directorships

-Co-Chair – District of Columbia Police Foundation
-Director – Washington Nationals Youth Baseball Academy: 2013-2018 -Trustee – Fordham University: 2008-2015 (Vice-Chair)
-Trustee – Catholic University of America: 2005-2015
-Board of Directors – Gonzaga College High School: 1991-2000 -Chair, Board of Directors – Washington Jesuit Academy: 1998-2003 -Board of Directors – Archbishop Carroll High School: 2015-
-Board of Directors – Georgetown Visitation High School: 2019-

Bar Admission

-District of Columbia Bar -New York Bar -Supreme Court Bar

4840-6484-5205.2

WILLIAM F. MARMON (Bill) 5610 Wisconsin Ave. Apt. 602 Chevy Chase, MD 20815 wmarmon@gmail.com Cell—301 503 6103

EMPLOYMENT

European Institute—October 2009 to 2018—Washington, DC, Managing Editor
Wrote, edited, and commissioned articles for European Affairs Magazine, published by European Institute. www.EuropeanInstitute.org. 2019–Working to revive European Institute

at University of Maryland.

US-ASEAN Business Council – 2008 to September 2009—Washington DC
Vice President—Supervised legal, policy and administration of trade association of 100 US-affiliated businesses with operations in 10 ASEAN (Association of Southeast Asia Nations) countries. Led business delegations to Singapore, Manila, Jakarta, and represented Council at Lima (APEC). Organized fund raising events including dinner for 300 guests with US Secretary of

Commerce.

Verizon Business/MCI – 1984 to 2007—Details below

Verizon Business – 2004-2007—Singapore

General Counsel Asia

Manage legal/regulatory matters in 14 Asia-Pacific countries where Verizon operates with its own entities or with partners. Support sales, finance, engineering, HR activities in Asia. Provide legal support for expansion in China and India, including the creation of Verizon’s wholly foreign owned enterprise (WFOE) in China and joint venture in India. Serve as member of Senior Management Team in Asia-Pacific. Staff of 11 including 5 lawyers, plus outside counsel in key locations. Board of Governors AmCham Singapore. Chair of Government Affairs Committee.

MCI/WorldCom – 2000-2004 —Washington DC

Vice President International Alliances & Strategy

Manage MCI/WorldCom international alliances worldwide, including equity alliances in Mexico and Brazil and business alliance with Bell Canada. Identify and implement international expansion opportunities for MCI/WorldCom services; find international partner; negotiate contract; manage ongoing relationship. Handled contract negotiations for expansion in China, Russia, India, Poland, Egypt, and Israel.

MCI/WorldCom – 1984-2000—Washington DC

Vice President International Strategy, Vice President Communications, Director Law and Public Policy for MCI Consumer Division.

Various positions with MCI Communications and WorldCom (after WorldCom acquired MCI in 1998), including regulatory attorney; Chief Counsel for MCI Consumer Division; Director of MCI/Concert relationship; Vice-President MCI Strategy; BT/MCI Merger Transition team coordinator; Vice President Corporate Communications WorldCom; annual report writer; speechwriter for CEO’s of MCI and WorldCom.

Wilmer Cutler & Pickering – 1981-1984—Washington DC Associate Attorney, focusing on communications matters.

William Marmon

Page 2

Hon. Albert V. Bryan Jr., US District Court Judge, Eastern District of Virginia (Alexandria) – 1980-1981
Judicial Clerk

TIME Magazine – 1966-1977

Bureau Chief and Correspondent

Based in Jerusalem (bureau chief), Beirut, Saigon, Bangkok, United Nations, and domestic bureaus. Covered wars in South Asia and Middle East; wrote hundreds of stories, including covers.

U.S. Coast Guard Reserve – 1965-1966—Honorable discharge.
Thessaloniki – International High School – 1964-1965—Thessaloniki, Greece

Teacher of English, Latin, Journalism and Greek History. EDUCATION

University of Virginia Law School – JD 1980

Order of Coif (top 10 percent of class for three years), Editor, Virginia Journal of International Law, Raven Society (honorary). Adjunct professor of English in University of Virginia undergraduate English Department during Law School.

Princeton University – BA 1964

History (thesis “The Harlem Renaissance.”)

BAR ADMISSIONS AND LEGAL ACTIVITIES

Virginia, District of Columbia, Maryland, US Supreme Court—Mediation for DC Court of Appeals; Oral Histories for Historical Society of DC

PERSONAL

Born Richmond, Virginia. Married to Lucretia McCalmont, two daughters. Valedictorian of Class at Douglas Freeman High School. Eagle Scout. Interests—Windsurfing, squash, backpacking, chess, computers, running (Marine Corps Marathon).

Mark Tuohey Complete Oral History Package

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