Philip Heymann


Heymann was a top assistant to Watergate Special Prosecutor Archie Cox. He later served in the Justice Department during the Carter Administration and, in 1993, held the number two post at the Department under Janet Reno. He left Justice in 1994 and now teaches law at Harvard University. This interview was conducted in May 1998, before the expiration of the independent counsel statute on June 30, 1999.

THE BEGINNINGS OF ARCHIBALD COX'S INVESTIGATION

The whole idea of there being an outside prosecutor, someone apart from the regular Department of Justice, the ordinary justice system, was indelibly imprinted on this generation's consciousness by the Watergate scandal and the Watergate special prosecutors. You were right there for all of that. What was your involvement?

I had worked for Archie Cox when he was Solicitor General from 1960 to 1965. I had had him as a teacher. When Elliot Richardson called him, probably in May of '73, and asked him, he was the sixth choice. I have always told students, take something, even if you are the sixth choice, don't be offended by it. They asked him to be what was then called special prosecutor. I went in and saw Archie and said, "Gee, I would like to go down with you." I had been in the Justice Department, the State Department for nine years.... Jim Vorenberg, who was later Dean of Harvard Law School, and is a colleague of mine now, did the same thing....

The idea of there being an independent counsel, that is a discrete unit, a special prosecutor in Mr. Cox's case, that is charged with getting to the bottom of an allegation and following it through completely independent of all other forces - how true is that? Help me understand the dynamic of the Watergate inquiry.

For one thing, I don't think there had been one since the 20's when there was the Teapot Dome [Scandal]. So it was the first. Archie arrived as special prosecutor, in the center of a great deal of political turmoil. The Senate wanted to investigate the newspapers, Woodward, Bernstein, I think it was Seymour Hersh at the Times, pouring out stories. The press was everywhere, it was a major, major event and it was going to stay that way for close to a year or longer.

The dynamic was that Cox had to try to establish himself as a professional, as a prosecutor. Somebody who was outside the political dynamic. So what he did, he immediately challenged the Senate and said, in effect, "You have to stop your hearings. I don't want you to give immunity to anybody." They thought he was nuts, and knowing that this was going to be a losing case, he sent me up to argue it. It was lost very promptly. No judge was going to stop the Senate from holding its hearings. But he was making a point and that was that he was outside the political debate. He was challenging a Democratic Senate..., who would normally be his supporters. Today Republican Senators are expected to support Ken Starr. He was saying to them, "No, you are out of here. I am taking over." And we lost. And I am glad we lost. The reason I am glad we lost is because we needed the Senate to investigate. We needed the press to investigate. The tapes that finally unraveled the mysteries of Watergate for us all were found by the Senate Committee. I knew when I was arguing that case was that the worse thing that could happen was if we won. If we won, we would have been out there all alone, three of us, sitting out there, five of us. It is much better to have the Senate Committee trying to find the facts and the press trying to find the facts.

So you had all of this investigative force really acting separately but in kind of joint purpose. You had the press, you had you folks of the Special Prosecutor's office, you had the FBI, you had the investigators for the Senate Watergate Committee.... And they more or less, not literally, but figuratively fed into one another.

One fed into the other in the sense that we would pick up the information. But as I tell it to you, it seems to be very striking. What Cox was trying to do politically, and what he succeeded in doing..., was setting himself outside what was already a fierce partisan political debate.... He was saying, "I am separate from this. I am a prosecutor. I am a quasi-judicial official.... I don't want Democratic support. I am certainly not going to get Republican support; I am outside of it...."

Perhaps that was an immunization. Perhaps he did immunize himself, or perhaps it wasn't necessary. But in either case, one doesn't recollect there having been necessarily an overt public assault against his integrity, against his personal standing or against that of his staff.

It is a very good point. We had no illusions that the White House, President Nixon and people around him, were deeply suspicious of Cox and the operation. He had been sworn in in the Solicitor General's office. He had been Solicitor General since 1965, this was '73 and Ted Kennedy had been there and other Kennedy people. Cox had been a Kennedy person. I don't think that was a wise way to do it. We knew there were deep suspicions of the independent counsel in the White House. There should have been; they had a ton of secrets to hide. They shouldn't have liked this idea much. You are right. The overt attacks were very few and very muted. But what happened was if they thought he was going too far astray - and we ended up going very broadly - they would call up Elliot Richardson, who had been Cox's student, and they would sit down and talk it over. I am sure Elliot is capable of saying firmly, "It seems to me you are going too far." But [there were] very few press attacks that I can remember.

That is just fascinating. The comity of that process, compared to now, where for example, one can turn on any television set on any channel and find James Carville just railing and ranting against Kenneth Starr.

In this case James Carville declared public war, and it is war. It wasn't that. But Cox was very careful to put himself outside. Now, there was a cost to this. There was a great cost to this and that was, here he was, a professor trying to stay outside the political wars, and he was bound to look like a naive, dangerous impediment... to partisan attacks on Nixon. In other words, people who were Nixon haters, and there were a lot of them, had to feel that, "My God, what have we got between us and President Nixon? We have a Harvard Law School professor who has never been a prosecutor and who tried to stop the Democrats from holding their hearings." So the cost of it, in the short run, was to create widespread press and political suspicion that this man wasn't up to the war that had started. He was outside the war.

It seems one of the things that is inherent in a special prosecutor and independent counsel, as we now call them, is the tendency to make the task become a personal mission. This is, after all, your only job. The resources are for this one purpose. Was the Cox operation edging toward that? That sort of missionary zeal?

I think the honest answer is that you could detect some of that. I think you can detect some of that in any prosecutor's office. I think when you worry about an independent counsel, part of the problem is that prosecutors are expected to be and are told to be aggressive, dogged, very suspicious of whether they are getting the truth from the people they are investigating. It is not surprising that they think they are going to be lied to, and that evidence is going to be hidden, there is going to be an obstruction of justice. Every federal prosecutor expects that in every major white collar crime or public corruption or organized crime case.... You hire people who by disposition are aggressive, dogged, very suspicious that they are being tricked. And they feel that way because in fact, a prosecution is a matter that is going to destroy reputations and severely damage lives. It really is a very tough business. It is a little bit like saying you want prize fighters to not want to hit the other guy. Once you get hit about four times, you start hitting back. If you are the subject of an investigation and prosecution, you pretty well are fighting for your life. And so prosecutors on the other side know that that guy is fighting for his life, and they don't...trust in him much....

Having said, "Yes, there is something about the Watergate prosecutor's office that was like any other prosecutor's office," there was something that was different too, and that was Archie Cox. The fact that he wasn't a prosecutor, the fact that he had a very long and distinguished career, the fact that he was thought of as a very distinguished person, made a difference.... We hired the young prosecutors from the Southern District of New York, and from Detroit and from Los Angeles. They were the same people. They get the same aggressiveness. But they all sort of revered Cox and they saw him as a different person. They saw him as absolutely righteous. Not righteous like the God of the Old Testament, but absolutely determined to do the right thing. There was a distinct flavor of two different types of people working very well together. Very aggressive prosecutors who were prepared to respect immensely the figure that gave the political protection and established the legitimacy of the office. If Archie Cox had said, "No, we are not going to do this," they wouldn't say what prosecutors would otherwise normally say, "What is the matter with the boss? He's got no guts." Archie Cox could call it and they felt that he wanted them to call it in a fair way....


WATERGATE'S YOUNG LAWYERS

One of the interesting things about the Watergate episode, an extraordinary chapter in our history, was that it produced this whole generation of young people, lawyers, many of them who had direct involvement. Minor roles most of them at the time, some not so minor, who would come through this activist, generally reform-minded, and who, many of them, would some day take the reins of power themselves. Help me place some of these people in that moment. There was Hillary Clinton, obviously.

She was working for the House Judiciary Committee Staff that was looking at impeachment and eventually voted articles of impeachment. Bernie Nussbaum was her boss at that time. I think they were both working under John Doar, who is a very distinguished lawyer. Over on the Senate side, Sam Dash, who is now the ethical advisor to Ken Starr, was the chief counsel for Senator Ervin. Howard Baker became a famous person, later, a majority leader of the Senate, by being the minority representative on the Senate Special Staff. Terry Lenzner was there, who now runs a very good investigative firm and was subpoenaed by Ken Starr to find out what investigations they were doing. In the Watergate special prosecutor's office, Jim Neal was the most senior prosecutor. Jim Neal, who is maybe the most famous trial lawyer in the United States now. Second to him was Rick Ben-Veniste, who was the Democratic counsel at the Whitewater hearings, run by Senator D'Amato.... Senator Fred Thompson was the counsel for the minority in the Senate hearings.... Charles Ruff... is now White House counsel. He was in charge of election campaign financing crimes for the Watergate special prosecutor. He later became U.S. Attorney and corporation counsel for the District of Columbia, and lots of other things before being White House counsel.... I became head of the Criminal Division under Carter in the Justice Department because of this.


THE SATURDAY NIGHT MASSACRE

If Watergate was our generation's high national drama, the peak dramatic moment, if you will, is what we have come to know as the Saturday Night Massacre, the firing of your boss. Do you remember that day?

I remember it very well. I had worked over the summer. This all started in May '73. I worked for three months, let's say, for Cox, helping to set up the office, and then I went back to teach and he stayed of course, in September. As the early days of October came along and the Saturday Night Massacre was approaching, by then it had been learned that there were tapes of conversations, which would resolve a "he said, she said" dispute that otherwise couldn't have been resolved. John Dean said one thing, President Nixon..., Erlichman, Colson, all said something very different. The tapes had been discovered. Cox had subpoenaed the tapes. The Senate Committee had subpoenaed the tapes. The courts had said yes to Cox, had said no to the Senate Committee.... It was now in the Court of Appeals. The Court of Appeals said "Why don't you find a compromise?" They couldn't find a compromise. The Court of Appeals had ordered the delivery of the tapes. The tapes were going to be the unraveling of the Nixon presidency. They presently would show that what John Dean had said was true, and they would show many things, particularly a coverup of the break-in at Watergate.

I could see from where I was here, in Cambridge, as the days approached to the Saturday Night Massacre. I could see what was happening because the newspapers reported that the President had talked to Senator Ervin and Senator Baker and the newspapers were reporting - I am not sure it was true, I am sure it must have been coming out of the White House - that they had agreed that a substitute for the tapes would be adequate....

The tapes were discovered by the Senate Committee, by Senator Ervin's committee, and if we had succeeded in stopping them, which we never thought we would, but had to take that position, they wouldn't have been discovered. We wouldn't have had Watergate....

Disputed tapes. The White House doesn't want to give them up, you guys want them. The tapes that could once and for all settle who is telling the truth. Nixon and his men, John Dean the whistleblower. You asked the Court for them, the Court says yes. What happens next?

There is an effort at compromise. The compromise failed between the White House and Al Haig, basically, and Archie Cox. And then I could see from here everything falling into place for what seemed to me a brilliant political strategy. The President asked Senator John Stennis, a highly revered Senator, to review his transcripts, the President 's transcript of what the tapes said and certify that it was all substantially there.

Now, number one, Senator Stennis was immensely respected and honored, so you couldn't question that. Number two, the stories were that Senator Baker and Senator Ervin had both agreed. Now, Cox's effort had been to set himself up as the Law, as Justice, as politically untouchable and just proceed straight ahead. But here, an awful lot of credibility had been marshalled against him. If you had Stennis and Elliot Richardson - Elliot Richardson wasn't there, but who knew - and Senator Baker and Senator Ervin, who all say, "This is a way out of our national impasse." Who was Cox to say no?

It worried me a lot, and I could see it all going into place and I flew down to Washington. I knew Archie for a long time. I know him better than almost anybody knows him and I went and saw him, and I said, "Archie, it all depends on what Elliot is going to do. If Richardson stands by you, you are going to be all right. But if Richardson deserts you, you are not going to be able to pull this off, I don't think." Well, I think he had already talked to Richardson. I think he already knew what was happening. I asked him if he wanted any help. It was getting to the weekend and if he wanted any help in a press conference then scheduled for Saturday. He said no, he didn't want any help. He generally likes to work alone anyway, and he was fine. The President asked Richardson to order Cox to accept the compromise. Richardson relayed it, I believe, simply relaying the conversation. There is a famous quote that is supposed to have taken place right about then when Richardson says to Cox something like, "This is a little bit too much." He quoted something from the Iliad... [where] Achilles says, "If we were going to live forever, and life would be wonderful forever, it would make a great deal of difference if we went into battle and might get killed. But we are going to get old anyway." The quote meant that they were both in this together and they were in this battle together.

[A couple of things were] clear by noon on Saturday. One, that the White House would have loved Cox to resign, but he was too smart for that. And number two, that they were going to fire him. He had the news conference scheduled and I remember going over it with him. I think it was probably in the Press Building in Washington and I believe it is true that the Saturday football game in October for some reason was delayed or canceled, so there was an unusually large audience. Of course, there were millions of people from the press there. What he said is indelible in my mind. He said, and compare this to Carville and compare it to Ken Starr and everybody else. He said, "You know, I hate a fight. I don't like to fight. I said to my wife this morning, 'I don't like a fight, I don't want to fight, but I have to do what my duty as prosecutor requires me to do and that is, subpoena these tapes.' It isn't because I want to. I was brought up admiring the President and the Presidency. I don't know what my father would think of me if he saw this, but I have to do my duty." And that was the approach all the way through. Somebody said, "Might you not be fired?" He said, "Yes, the President can fire me. And if he fires me I am fired. It is not the most important thing to a nation." "If he fires you, can't he get someone else who won't seek the tapes?" And Cox said, "Yes, Andrew Jackson had to fire four Secretaries of the Treasuries, or whatever number, to kill the national bank, and eventually it will happen."

It was a stunning performance. It wasn't a performance, it was Cox and it was absolutely sincere and absolutely perfect for the occasion. In this wildly political crossfire of Democrats and Republicans hating each other and charges and countercharges, there was somebody standing there with a New England accent, sounding like Maine, saying, "I just have to do my job, and my job is to find the truth about charges that are criminal and I will just have to do it, and if I am fired, I am fired...."

And then I remember going back to the Watergate special prosecutor offices, and everybody was waiting for Cox to be fired and I guess we heard that Elliot Richardson had been asked to fire him and had resigned, and then General Haig had called Ruckelshaus, who was the deputy and when Ruckelshaus had said no, had quickly said "You are fired," before Ruckelshaus could resign. Eventually, I don't know this firsthand, but the story, which I am sure is true, is that the Solicitor General, Robert Bork, said that he would resign too, but he thought the President was right about this, and Richardson and Ruckelshaus said to him, "If you think the President is right, you shouldn't resign." And Bork said, "I will look like an apparatchik," and they said "No, your duty is to stay on if you think the President is right." Cox was fired. Because he was appointed by the Attorney General, he had to be fired by an Attorney General, not by the President.

I can't swear this true, but I remember it so vividly. We had a ticker machine in the office, picking up AP/UP, and all of sudden when he was fired it started to go. I think we can also pick up telegrams on it, and suddenly there was the sound, "clickety click, clickety click click click click," and you could hear what ended up being millions of messages starting to come. The country had been turned around on a press conference, on a sense of duty, on a sense of "I am not in it for the fight." Something that otherwise today would be partisan. Today all the Democrats would say it is wonderful or terrible. The Republicans would say it is wonderful or terrible. The country was turned around. The President of the Bar Association called up and offered his support, and you could see that the President had lost the country. He was alone. The Senators, Senator Ervin, Senator Baker, quickly said they were not in favor of the proposal that they had been quoted as being in favor of. Nobody was there....

It was the key moment. Within a week, then Acting Attorney General Bork - he was Acting Attorney General because he is number three and the other two had left - had pointed a successor, Leon Jaworski. Jaworski pursued the matter just as vigorously and without any unreasonable restraints and it just went on as if Cox had still been there.


LEGACY OF WATERGATE

It came to a well-known conclusion, the resignation and departure, for the moment anyway, from public life of the President of the United States, the first ever to resign. And it changed not only our history in that moment, but it changed Washington and it changed our institutions. Watergate concludes, the President resigns. Was there any lasting institutional affect on our justice system?

The whole rest of the 70's was shaped by those events.... We had, if you remember, the hearings on the CIA and the FBI which greatly changed those institutions, opening up what these institutions had done, including failed attempts at assassination - CIA, not FBI. In the Justice Department, President Ford appointed a very great attorney general, Attorney General Levi, who... did a number of things, including creating a Public Integrity section to handle public corruption cases and promulgating a set of guidelines restricting what the FBI could do and what investigative agencies could do. [And] of course President Carter was elected in large part as a reaction to Watergate.

It was a period of reform. I returned to the creation of an independent counsel, but when I became head of the Criminal Division under President Carter, Attorney General Bell said that nobody higher than the Head of the Criminal Division would really have anything to do with any prosecution in the United States. I was to be the final word. He never met me before. I was to be the final word; nobody from the White House could contact me. Nobody from Congress was to contact me on any case. If they wanted to contact someone, they should contact him or the Deputy Attorney General, and if they wanted to reverse me they would do it in writing and publicly.


PUBLIC INTEGRITY SECTION

As head of the Criminal Division, did the Public Integrity section report to you?

The Public Integrity Section reported to me.

And what was the Public Integrity Section? It was a creature of Watergate, wasn't it?

Yes, it was a creature of Watergate. It was a section that had, probably, 30 lawyers then. It would bring cases against... senators, congressmen, mayors, state legislators. This has always been a big business of the federal government, a very active business.

Where did it fit within the Justice Department in terms of status? Was it a good place to be, a hot place to be? The best and the brightest?

It was one of the very good places to be. In the criminal world, the world of Federal prosecutors, many people would prefer to be out in the field than in Washington, because it is hard to get cases in Washington. In Washington, though, there were two or three highly prestigious parts of the Criminal Division. Organized crime was one. White collar crime was another. Public Integrity would be still a third. Very prestigious, very good place to be....


FIRST INDEPENDENT COUNSEL LAW

What happened to the idea, the concept of the special prosecutor after Watergate?

It took a couple of years, I suppose, but in [1978], I believe, with the approval of the Carter Administration, a Democratic Congress... passed the first independent counsel law. It was intended to require the Attorney General to do what Elliot Richardson had done as a condition of confirmation....

There were a variety of versions considered. I testified on it and I remember Lloyd Cutler testifying on it before me, and Lloyd Cutler saying that the Carter administration had thought that they could develop sufficient credibility by putting someone who was totally unconnected to Carter, that was me, in charge of the Criminal Division. He thought that it would take an independent counsel. He said he thinks it takes something special. At that time there was widespread support for it.

Because it was perceived, was it not, that the role that Archibald Cox and later on Leon Jaworski had played in our national story had been rather heroic. That in fact the special prosecutor was a good thing, a necessary thing, when called upon, and that what the independent counsel act would do is basically institutionalize a special prosecutor.

That is correct. It would make sure that someone who wasn't connected with the President would decide whether there were crimes involving the highest government officials which deserved to be prosecuted. That was the point. The idea was that prior to Richardson and Cox, this hadn't been possible in the Nixon White House and from now on it was to be possible....

The statute said on a relatively very light trigger, simply on credible factual allegations, a process would start, and unless the Attorney General could certify within 90 to 120 days that there was no reason for any further investigation, that there was nothing there, it would have to go to an independent person like Cox, like Jaworski, to resolve what investigation was necessary and whether a prosecution should be brought against the President , the Vice President and [other covered individuals] - 75 people altogether.

In concept, a good impulse.

A very good impulse. What it gets you is, ideally, public credibility for the Justice System in a situation where you are otherwise going to have your Justice System under substantial attack by whatever party is out of power. It gets you credibility and it also gives you something of a guarantee that highest officials are in fact treated fairly. In concept, I think a very good idea....

More on the history of the independent counsel law.
RELATIONSHIP BETWEEN PRESIDENT AND ATTORNEY GENERAL

I am thinking of the utility of a relationship between a President and his Attorney General that might on the surface seem not such a good idea. For example, Bobby Kennedy, of course, was the President 's brother, and so on. When we came to Bill Clinton, he knew who he wanted for Secretary of State, he knew who he wanted for Commerce. He knew almost every cabinet position. But then when it came to Attorney General, he didn't have a golf partner, a brother, a cousin, a bowling buddy. He chose a series of relative strangers.... What difference does it make to the nature of that relationship and to the country, if the President has a relative stranger heading the Department of Justice?

I was in the Justice Department when Robert Kennedy was Attorney General. I was there when Griffin Bell was, when Ben Civiletti was, when Janet Reno was. People immediately think it is a very good idea to have an outsider as Attorney General and preferably an outsider with a substantial reputation to protect or to be concerned about. That does give you probably a somewhat greater guarantee [that] an actual case against the President, or someone the President cares about most, will be handled like any other case.... But it has a great cost in terms of the independence of the Attorney General on policy issues.

Robert Kennedy could say that the Justice Department was going to take this position on reapportionment. A major political issue. Griffin Bell could say the Justice Department will take this position on affirmative action.... Immense political issue. Those decisions, maybe not made alone, but highly influenced by the Attorney General, are the result of the fact that the Attorney General is an old and trusted associate and friend of the President. If the Attorney General hasn't that relationship with the President , on policy issues where there isn't the strong, clear, ethical command of independence..., the White House staff is likely to be much more powerful than when the Attorney General is a trusted associate of the President.... White House staffs are always powerful and they are always expansive and imperialistic. They get stopped dead in their tracks when they come up against a Robert Kennedy or a William French Smith, or an Ed Meese. Or a Griffin Bell. Someone else who is very close to the President. But it is much harder to stop them if you don't have a close association with the President.

A close associate, a trusted friend of the President who can pick up the phone and say, Mr. President , "No. "

I think it is as simple as this. He or she can say, "Mr. President , I would like to talk to you when you disagree with me. Please don't have your staffers call me up and tell me that you would like this or that or that the White House would like this or that." I think simply having to talk to the President , having the President tell the Attorney General, "Gee, I really think the direction we ought to be going is this on this policy question." If the President has to do it, it is going to be largely in the hands of the Attorney General. If the staff can do it, it won't.


ROLE OF WHITE HOUSE COUNSEL

Related to that, I would like to ask you if you have perceived a change vis a vis the Justice Department in the role, power and importance [of the White House counsel] and the degree to which it is relied upon by the President....

The White House counsel, I think, has grown immensely in importance and influence, though that may be a function of there being investigations of the President , to some extent. I don't know that any of the White House counsels under Clinton... have themselves pushed very hard on policy issues. There are other people who are responsible for crime or would worry about the economy and anti-trust. Not in the White House counsel's office. But the White House counsel has become a very powerful position....

What should we learn from that? What is its import?

I think the import is that the President is having much more need. You could imagine the Justice Department serving [that purpose], answering all the questions. You just create the same office, same number of people, put it in the Justice Department, have it report to the Attorney General, serving all the needs of the President. The problem is that some of the President 's needs are mixed political and policy and some of them are mixed political, personal and policy. For a while, there were some that were purely personal, but they ought to be kept out of that office, and now they are kept out of that office. We don't really like the Attorney General mixing that deeply into political concerns of the President. "Can I do this to raise money?" That ought to be done by someone separate. We don't want the Attorney General mixing in that. For that reason, we have a White House counsel's office and I guess the significance of its growth is that there must be many more questions that now come into that category....


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