The Politics of Litigation v. The Litigation of Politics

THE OPEN MIND
Host: Richard D. Heffner
Guest: Leonard Garment, Esq.
Title: “The Politics of Litigation vs. The Litigation of Politics”
VTR: 5/6/89

I’m Richard Heffner, your host on THE OPEN MIND.

When the Watergate scandal was first threatening to bring Richard Nixon to his knees, and the beleaguered Chief Executive named his former law associate Leonard Garment as Special Counsel to the President of the United States to replace the dismissed John Dean, one newspaper described our guest today as “an anxiously brilliant iconoclastic liberal for whom variety has not been just the spice, but the absolute joy of life”. Still, variety like that one can usually do without. And, as a close friend said about Mr. Garment’s willingness to counsel Richard Nixon as things went from bad to worse: “that’s what I call supreme loyalty”.

Indeed, it may also have been his loyalty to the former President that led my guest most recently to write an absolutely fascinating New Yorker magazine “Annals of Law” piece about the famous Hill case that Mr. Nixon argued before the Supreme Court during his years in the political wilderness between his defeat for the Presidency by John F. Kennedy in 1960 and his ultimate victory in 1968 and reelection in 1972, the campaign fatally marred by Watergate.

Loyalty perhaps, because the article so compellingly positive about Nixon as the carefully, brilliantly prepared advocate is by a man described a generation ago as “the House Liberal” (the White House, that is), one who had played the role of “intellectual gadfly” in Nixon’s successful campaigns to get there.

But his New Yorker piece about the Time Incorporated vs. Hill Family privacy case also has to do with Leonard Garment’s lawyerly interest in the role today of the press in our nation’s public, political life.

Indeed, my guest now wants to be identified as “a Washington DC lawyer”. Yet he also calls his specialty “political litigation”, which he says by definition “means trying to present your case publicly”.

And that leads me to ask Mr. Garment if it doesn’t really make him a doctor, too, of sorts, a “spin doctor”, as they’re called these days, when even lawyers try their cases as much – maybe even more – before the court of public opinion, as before judge and jury. Spin doctor, Mr. Garment?

Garment: Much overused expression…

Heffner: But what about its meaning?

Garment: …Mr. Heffner. I mean…most of our life is involved in trying to explain what we’re doing and put, either an accurate or better face on events that have some ambiguity. And a lawyer is supposed to argue the best case for his client. So I really don’t flinch from the … the phrase spin doctor. If the compulsion to digest and spew out everything in little pieces requires people to refer to advocacy as spin=doctoring, so be it. It doesn’t mean anything to me.

Heffner: Are we getting to the point, though, as you have seemed to suggest in some of the more critical things you’ve said and written about politics today, getting to the point where so many cases are tried before the court of public opinion when they should be tried in court.

Garment: Well, there is a legitimate public role for almost all litigation, and there is the dominant role, of course, within the framework of the courtroom, and even to some extent the hearing forum, or the hearing room, if it’s a Congressional investigation. I think the question is whether it’s a courtroom or a legislative hearing room that the roles of the game should be followed and the basic rules of the game in America involve due process, fairness, the suspension of judgment till the facts are in, and to some extent I think … there are many in the press who violate those rules; there are many who don’t, there are many who are rather faithful to their obligations. But the competitive pressures of producing interesting news under the awful demands of the editors and the deadline frequently results in unfairness.

Heffner: What do you mean “the awful pressures”?

Garment: Well, they have to fill up…

Heffner: Worse now than ever before?

Garment: I think so. I mean it is like an addiction, the more one takes, the more one craves. And it becomes a very difficult matter to fill the newspapers and to fill the airwaves, be a lot of time for news broadcasting with coverage that will hold an audience, which is essentially what they have to do.

Heffner: But you seem to feel that the coverage is different now, in quality, than it was, let’s say, before Watergate.

Garment: Well, various things have happened. I mean there is a decline in the capacity of people to read serious things. There is a decline in the interest on the part of the large audience, to generalize a little bit excessively, to learn the necessary facts that enable people to make a judgment. There is a growth of suspicion, distrust about public people, public officials, and I think the media frequently has to liven the coverage to get attention, to say it very dramatically. For example, I have been representing a client who made his peace finally in the Iran –Contra investigations, Bud McFarlane, who became a very dear friend of mine, through these past couple of years. He pleaded to withholding information, a misdemeanor. He pleaded to four misdemeanors of withholding information from the Congress. It was negotiated very carefully with the independent counsel’s office, and his sentence, which was probation, a probationary period and a fine, was related to what he pled to. But it isn’t possible to get more than five percent of the press to say that’s what he pled to. Almost all of the news accounts say that he pled to lying. Now there are very real differences between withholding information and lying, and there’s a great difference between perjury and evasion of facts. Pressures that exist on public men who have all kinds of very confidential, classified information to withhold is part of the great tradition of American politics. Quite different from going before a properly authorized body, which has administered an oath and lying. But the press doesn’t make that distinction.

Heffner: In the piece that you wrote…just before we even get onto the Annals of Law piece…in Commentary in April, 1987, you wrote, “The Guns of Watergate”, and that is such a compelling piece because you, you go into what you call the “prosecutorial style”, very much like Richard Hofstadter’s comment some years ago about the “paranoid style”…

Garment: Yes.

Heffner: …in American history. I didn’t think you were quite as, I wouldn’t say, even-handed, but now you seem so calm and descriptive, you’re analytic. You’re saying “This is the way it is in American life”. When you wrote this piece I had a greater sense of despair, and maybe even anger.

Garment: Well, this is a cool medium, and I don’t want…

Heffner: You mean right here and now.

Garment: Right here and now, and I don’t want to be punching the air and declaiming…

Heffner: Be my guest, do so.

Garment: Well, I don’t…

Heffner: You feel strongly about this.

Garment: I do feel strongly about it and I felt strongly about the problems when I wrote the piece. Actually that was a lecture that was given at the University of Chicago, and then I was asked to adapt it for publication in Commentary. But I did and do feel strongly about the prosecutorial culture, the transformation of American public life from an engagement with large problems of public nature in which there is a presumption that someone who goes through all of the pain and suffering of standing for public office and ultimately winning, and giving up certain possibilities for gainful employment, will be giving an opportunity to work and serve rather than being a kind of presumed criminal, by reason of holding public office. And mindful of the comment that was made by a very respected figure, and I think it’s fair to say that this is George Shultz, recent Secretary of State, who said…I forget whether he said it to me or said it to several people, but I think it has since found its way into print, he said, “Going there (before the investigating committee) one has a sense of being a person on trial, charged with a capital crime”. He said, “It’s the most extraordinary sensation”. The dynamic there is created in substantial part by the demands of publicity, once more. The cameras are going, the sound bite is being sought, the competition of scores of committees, the pressures of hundreds of staff people, the desire to have something “Punchy” to say and do, and these people come before the investigating committees and every man is a prosecutor and every man is a judge, and every man sitting up there on the dais is a jury, and people are condemned before the evidence has been heard.

Heffner: You also make the point, use the word ambiguity, you like that word because…

Garment: Well, I don’t like that word. It’s a…but it is like “water” and “air”. It’s all around us.

Heffner: And you make the point that it’s hardly possible to remember with precision all the things that you’re going to be held accountable for, as you respond in a committee hearing.

Garment: Memory is one of the real black holes of the human condition. We remember, generally, what we want to remember, or we remember complex events in a way that suits our own personality, our own needs, our own sense of self-esteem. We remember events the way we hoped they had played out, and we remember our behavior as we hoped we had behaved. (Laughter) And sometimes there are nuances and differences, so I’m very distrustful about memory unless there’s documentation and surrounding documentation, and a very, very large opportunity afforded to a witness to bring himself back to the circumstances.

Heffner: Now, do you think your friends and associates, Meese, McFarlane, Judge Bork, John Tower, more recently, you think these people have all been done in by something that you trace through to the involvement of the media and the demands of the competitiveness of the…

Garment: Well, I wouldn’t want to sink. I think it would be excessive and unfair to put it on the media. I mean the media is the traditional bearer of ill-tidings, carries a message, carries a cultural message, also…it carries…it is shaped by its audience. News is what people want to read. It’s one of the great and conventional definitions. I think that there have been transformations in American style. There have been changes in American culture as a result of major events. Oh, arbitrarily starting with the period of the assassinations, the time of the killers, the death of Kennedy, the death of Martin Luther King, the death of Bobby Kennedy, the shooting of Governor Wallace, the various assassination attempts. I mean the beginnings of a real sense of the center really not holding, coming apart in the hands of the public. Then Vietnam, of course, like Exxon’s oil, spilled all over the beaches of the American culture and we’re still scrubbing away at it, and it affected so many of the nooks and crannies of our life. Watergate was a product, to some extent, of Vietnam, and what has happened since Watergate, the things that you’re questioning me about are a product of Watergate, Vietnam, the ‘60s…they all come together.

Heffner: Which leads me to a question, of course. We began…I called you when I read the piece in the New Yorker and when quite so many people spoke about that Annals of Law. What responsibility must President Nixon take for an exacerbation of this, not paranoid, but prosecutorial, culture that you refer to?

Garment: Well, I think it’s fair to say, and I’m quite sure that he would, he would concede the point: I think he’s written to that end, that Watergate, and his handling of the problems of Watergate, were a serious set of failures, and caused many serious deformations in public life, and he said he would never be able to come to peace with it. He would have to come to terms with it, and try to have the world and history ultimately look at the other parts of his presidency, much of which was, as you know, very constructive.

Heffner: Do you have to come to peace with being the “House Liberal” in that White House?

Garment: Oh, not at all. First of all, that whole business of being the “House Liberal”…

Heffner: Don’t like the designation?

Garment: I don’t…you know, it’s like “spin-doctor”. There it is. I defer to the audience, or the people who would like to sue these short-hand expressions. It doesn’t bother me. I don’t think it really conveys much.

Heffner: Were you a liberal in the White House?

Garment: I mean, you know, the great question in…and it must translate into every civilized language, “as compared to what”? And I think compared to others in the White House I was the…quote, “the White House Liberal”. I was…quote, “the White House Civil Rights Worker”…I was…quote “The White House Back Channel Contact on Matters Pertaining to Israel and the Middle East”. I think I had everything, including people with hay fever and the American Gypsy Movement, and a few other things.

Heffner: Indians, certainly.

Garment: Indians. Arts.

Heffner: Arts. Jazz…all of that.

Garment: My own short-hand description of what my job was in the first few years of the Nixon Administration was that I was in charge of Arts and Riots.

Heffner: You know, is it in the New Yorker piece where you say you told President Nixon, you told candidate Nixon that you, after all, when he asked you to work with him in the campaign, that you, after all, had voted for John Kennedy and Lyndon Johnson?

Garment: And worked, and threw a big fund-raising party at my house in Brooklyn Heights for Bobby Kennedy. Oh, he knew all of that.

Heffner: Then what happened?

Garment: Well, nothing really happened. I think he was interested in having access to a flesh and blood Democrat who he quickly sensed was not a terribly political person. I wasn’t at that point, after all, I was in a Wall Street law firm, I wasn’t active in politics. I was interested in Richard Nixon as a great figure out of history. It was a time of my own life, I guess the first of seventeen mid-life crises, when I was looking around for something more interesting than just trying the same cases, although they were very interesting cases, and I had fine relations with my colleagues in the law firm, and then along came Richard Nixon and that was a quantum step in the field of litigation because now I was invited to take part in what is, really, one of the most interesting forms of litigation, namely a Presidential campaign. I started at the top, and I saw, almost form the time I met him, in 1963, when he joined the firm, that this was a man who was not going to go quietly into the night of political anonymity, and practice law for major corporations, and deal with debentures and Board meetings, but that he was still alive, a lively, sentient, political creature. And that interested me.

Heffner: Your description of him in his preparation for, and in his participation in the case before the Supreme Court, the Hill case, the one that you write about, is so compelling, it’s a picture of Richard Nixon that’s not totally strange, but one that is, is quite interesting. Do you think that’s where you saw the President at his…at his best?

Garment: I saw it before that. Well, that was…

Heffner: At…

Garment: Yeah, that was…that was at his best. I saw other occasions when he was “at his best”, and they were very impressive occasions, and many of them were private occasions where his sense of humor, sense of irony, sense of a kind of a self-depreciating quality was evident, a very real demarcation between Nixon, the public man, and Nixon, the private man. Many people have commented on that. That’s true of most people that are public. Mask is very different from the complexity of our private persona. The job he did in that case was, it was awesome, and I think the reason why the article has been relatively well received by an audience that stretches from Tony Lewis at one…tony Lewis and Dick Cohn of the Washington Post, and two persons of the far Right is because, I think it’s because it gives a certain, there’s a sliver of history that’s revealed that hasn’t been revealed before. And it’s done in terms that are not really debatable. That is, the evidence is there of the piece of work he did in the middle of the case. If you want me to expand on that, or you, yourself, want to ask about the memorandum he wrote at midnight on the day of the argument before the Supreme Court, I mean there is real evidence, it’s not just my saying that Richard Nixon did such-and-such. I knew that that kind of piece would be just taken as…oh, you know, the work of a friend, an associate, who’s puffing the achievements of somebody that he worked with. The strength of the piece and the reason why I think it has… that it worked well is because it…the heart of it is drawn from objective material reflecting the work he did at that time, including the transcript of the argument before the Supreme Court.

Heffner: Wouldn’t you say it, it had to do, too , with the connection between the theme of the case and the rest of Richard Nixon’s life?

Garment: Well, there are…oh, there are about a dozen themes that are woven around each other, like a multiple helix over this twenty-five year period that’s covered by this article. The spine of the article, of course, is the case. The digressions into the preparation, and the trip to Florida, and Abe Fortas, and this and that and the other thing all necessary to keep the reader following.

Heffner: You’re going to make it into a book, I trust?

Garment: Well, I’ll see. I just…Friday I had the good news of locating the trial transcript, and that may help me to expand it, and I’ll see whether this…the accordion of the story will permit it expansion or whether if I pull it out to any sizeable length, it will just snap. I’ll figure that out in a few weeks.

Heffner: it does stretch to include this earlier part of our discussion about the prosecutorial style.

Garment: But, let me tell your audience, too, that they can order back copies of, of…

Heffner: (Laughter)

Garment: …of The New Yorker, they’ll be very happy to make them available.

Heffner: What’s the issue? What’s the date?

Garment: April 17, 1989.

Heffner: Okay, fine, that’s a fair, that’s a fair plug. Let me go back to the, to the question that has intrigued me, as I read about Leonard Garment. You don’t like the characterizations, the…

Garment: I don’t mind them.

Heffner: …the “House Liberal”…

Garment: Ah, it’s alright.

Heffner: Given your votes before your association with Richard Nixon, given your association, most recently, with a more conservative kind of…is that a fair characterization?

Garment: Well, again, I don’t mind, and if that were all there were to it, I still wouldn’t mind. But there are other people I’ve been associated with who are all over the landscape. I mean the major cases in which I’ve…where I represented Ed Meese in his first investigation and Charles Wick in something that was really quite, I thought, very unfair, and exaggerated, and Bud McFarlane in his recent ordeal. I mean these are public matters of a certain sort. The Bork matter is a separate matter. It’s long and complicated and we can get into that, if you want. But I’ve done other things. I’ve worked on Scharansky, I’ve worked on…to representing individuals who were very badly affected by a massacre in Egypt, worked on matters dealing with poverty problems. I‘m currently dealing with that. So I don’t…I rather resist this kind…

Heffner: Okay.

Garment: …you know, simple-witted categorization…

Heffner: All right.

Garment: …of me as being a “house” this or a “house” that.

Heffner: All right, I won’t…

Garment: “House” mayonnaise, why don’t we put it that way.

Heffner: I won’t be more simple-witted…we’ll pass over that.

Garment: I just think it’s waste of time, that’s all.

Heffner: Waste of time. But I’m interested in what would seem to be, at any rate, a political odyssey. Is there a…

Garment: No.

Heffner: No?

Garment: Oh, well I’ve gotten more Conservative, there’s no question about that.

Heffner: Okay, let’s talk about that.

Garment: I don’t think I knew anything when I was a youngster. I mean I knew what it was appropriate to know when I was thirteen or fourteen, and I was…the branch of young Socialist thought, I’d be hard put to explain what it was all about now, but it was very, you know, kind of very sectarian, socialist, anti—Communist group including some people who are quite famous now, and one of my best friends then, who now is the President of the National Academy of Sciences, Frank Press, was my closest friend. We used to…we were re-shaping the whole world when we were fourteen, fifteen.

Heffner: Was it Clemenceau who said that any man who hadn’t been a radical…

Garment: A Socialist before twenty-one had something wrong with him, and if he still was after twenty-one, he had something even worse wrong with him.

Heffner: You seem to be saying that.

Garment: Well, again, there’s a germ of truth in that. I don’t want to denigrate people who have strong convictions as Liberals, I mean I consider myself still to have a Liberal sensibility.

Heffner: You didn’t think…

Garment: I don’t think there’s anything wrong with that. I mean I think individual rights, and to deal with problems of poverty and to recognize the role of government in the alleviation of difficulties of different sections of our society, but in terms of a…of what works for a nation and what is a sovereign responsibility and what are the governing considerations, my views have changed considerably.

Heffner: You don’t think this prosecutorial style that you identify is a political Left of Right leaning phenomenon?

Garment: No.

Heffner: And I ask that with one minute left.

Garment: No, it’s gone very quickly.

Heffner: You don’t think it’s a political…

Garment: No, I think it’s much more organic than Left or Right. It’s …it is true…I mean the Left, so-called, has much more access to the vehicles of communication, media, television, news, writing…I mean the Left writes, the Right…

Heffner: What does the Right do?

Garment: Well, the right…they’re doing more writing, they should do more. I mean, Conservatives…my goodness, Alan Bloom, Hirsch, I mean people like that are making a very large impact with their capacity to think, write, and there’s a large audience out there in this country that’s saying, “Something has been going wrong”.

Heffner: So you don’t think the prosecutorial orientation is a political…

Garment: It has political aspects to it, but I don’t…

Heffner: Essentially.

Garment: It’s not manufactured in a cell in Washington that’s presided over by the American Left Wing.

Heffner: You are…there are so many, doggone many questions, that came up in reading about you and reading you, that I want to ask. We’ll have to get you back here. For instance, this question of your advice as to how to keep the money flowing for the Arts, and that was one of your jobs in the White House. Be practical, put…tie yourself as the tail to the kite of education, etc.

Garment: Yes.

Heffner: Come back, Leonard Garment.

Garment: I’d love to. It’s been very pleasant.

Heffner: Thanks so much.

Garment: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: the Rosalind P. Walter Foundation; the M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; the Edythe and Dean Dowling Foundation; The Lawrence A. Wien Foundation; the New York Times Company foundation; and, from the corporate community, Mutual of America.

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