James Flug Oral History (12/18/2007)

This is the third interview with Jim Flug, on December 18, 2007. The first question I want to start with is a broad overview: What value do you bring for [Edward M.] Kennedy? What can you do for him that other people aren't able to do?

Is that a present-tense question or a past-tense question?

Both—past and present.

When I came up in '67, I had no political experience. I had no experience dealing with the press. I had had very close-in, protected jobs where I was a staff assistant, not a line person. I had no line experience, but in those days, I think the expectations were less and the practices were different. Most people who came to the Hill had some experience after graduate school, if they had gone to graduate school, but not as much as they do today, and not as much as you're expected to today.

In a sense, I was molded in that job, in terms of my own expectations of myself, and his expectations of me. For that very first project, I had no frame of reference. I had observed at the Justice Department, and participated, to some extent, in some exciting activities, but never with a major responsibility, with one exception, so I'm not sure what the answer to that question was in 1967. [laughter]

The one exception was when I was in the Tax Division, working for Lou Oberdorfer, and Bobby Kennedy was the Attorney General. In those days, Bobby just utilized all of his Assistant Attorneys General for whatever the needs were, regardless of what their assignments were. I may have mentioned, in the Tax Division, I did some tax. I actually argued cases and had some formal responsibilities, but what I spent most of the first several months of that job on was problems of the New York poverty program.

Lou Oberdorfer was put in charge of fixing the New York poverty program, which the New York Daily News was accusing of all sorts of terrible things. We actually went up there with a group of very high-level government officials from all the departments whose money was in the poverty program. This was when OEO [Office of Economic Opportunity] was brand-new, maybe not even statutorily solid yet, but it was using money from all over the government: from the Labor Department, from what was then Health, Education, and Welfare [HEW], from the Justice Department, and from OEO, whatever there was of it.

A group of us went up there with Lou Oberdorfer, at a very high level: assistant secretaries, the controller of HEW, I think. Lou was an Assistant Attorney General, so that was in '64, because [Robert] Kennedy's Senatorial campaign was going on in New York. Obviously, one of the things on the agenda was to resolve it before the election. Here I was, a 26-year-old, thrown in with all of these very senior government people, and in the middle of it, Lou Oberdorfer's mother died, I think, and he disappeared. Because the Justice Department was in charge, everybody looked to me to lead the rest of it. I was in pretty good shape by the time that happened, but all of a sudden I found myself cast in a totally unprecedented role for me.

That gave me a little exposure to getting sudden responsibility and sudden standing in the course of that. Throughout my life, I had been in young people's leadership positions at school, at camp, so I did have that in my background, where I was expected to take the initiative and take the role of decision making. It was not in a staff position. It was in leading something, whether it was an activity at school, leading half the camp in the color war. In those days, color war was very big. In fact, I sometimes think—We'd joke about color war being the guiding spirit of my approach to things, because at the color war, everything stops at camp and you focus totally on winning this contest. In those days, it was three or four days long, and half the camp played against the other half. That was the limited experience I had.

I didn't know what the envelope was, so I was always thinking outside the envelope. I didn't have much experience with the envelope, but once I started in on a challenge/battle/fight, I went all-out on it, and it was a 24-hour-a-day thing. I was single, at least when I started, and it became all-encompassing. That very first experience with One Man, One Vote was that type of operation, where it was just all-out until it was over.

That, plus a very good education, and the experience I did have as a clerk in the Tax Division in the Attorney General's Office—I had a tremendous familiarity with everything at the Justice Department. That was unique and very helpful in the Judiciary Committee work, because I saw virtually all the paper—with a couple of exceptions, like antitrust, which another person handled—that went to the Attorney General. I came to know all of the people in the Justice Department very well, and to this day a lot of them are good friends. Some of them were also people that both Bobby, who selected them, and his brother knew well, and they had become family friends, so I was able to move easily in the government.

I was used to dealing with top government officials, even though when I got up there I was 28. It didn't faze me to deal with the top-level people in the department. I was dealing with the White House when I was in the Justice Department, so I knew the White House Counsel. I had been to one or maybe two meetings with the President. That was a little different.

I had that kind of experience behind me, but I think it was mostly this spirit of getting into a fight and winning it that had been a large part of my young life, and I carried that through.

Of course, when I came back in 2003, it was a very different story. I was very experienced. I had been following government and politics for 40 years, I had had 30 years to think about my prior experience, and I had done many things in and around government, in my law practice and in my activities running nonprofits, and of course in his [Kennedy's] campaign. I had a much better knowledge of the dynamics of the political scene, the Congress, and the relationship between the Congress and the executive branch than I had the first time around. But I had learned that pretty quickly the first time around, and we ended up constantly in battles between the executive branch and the legislative branch, in the first run, especially during the Nixon administration. I learned that, really, on the job.

Why did he turn to you at that point, rather than some other previous Judiciary Committee staffer to come back? What was it about you that he needed at that point?

We had had a very good relationship over the years. The memories of the things we had done together in the '60s and '70s grew over time, and the stories got better and better. [laughter] There are some stories he likes to tell over and over. I love to hear them, because each time, he tells them slightly differently. Some of the stories come out of [George Harrold] Carswell. To this day, he retells the story of the 56 boxes that I told you about. He has another term for it and is much more colorful: "an entire storehouse" or something. He loved to tell those stories whenever we were together.

We kept in touch over the years, at the usual Kennedy family events, and I mean "family" in the larger sense: annual Christmas parties. But he also got to know some of my kids. I used to play tennis with him from time to time, and one of my daughters, who is a good tennis player, played with us occasionally. He knew Carla [Flug] very well, because we had been dating during the early years of my work for him. We got married in the middle of it, and he came to the wedding. That was very sweet.

We had a very good personal relationship over those 30 years. He'd call on me for advice from time to time, or usually had a staff member call and ask for advice on one thing or another. Then, in the '80 campaign, I was finishing up with my activity at Energy Action, as an energy expert, and I had strong feelings that if [Jimmy] Carter were the candidate the Democrats would lose, so I urged him to run. I went to him, I think in April of 1979, and urged him to run. I told him if he weren't going to run, I was going to go out and try to find somebody else who could win, because I didn't think Carter could win. That cemented the relationship. I was one of the few people who stayed from almost the very beginning of that campaign to the very end of that campaign.

The way it happened—In 2003, I hadn't lost touch with him. We were in contact sometimes once a month, sometimes several times a year. When I turned 60, in 1999, my children were almost all out of the house by then. I had decided that I had been in practice for almost 20 years, and that if the chance came to go back into public service, I would try to do that.

In 2001, after 9/11—It was more than a year before the 9/11 Commission got organized. It went through a detour when [Henry] Kissinger was going to be the chairman and then that was reversed and they started all over again. It was well into 2002 when they finally got organized. I thought that would be a great place to work, so I went to him [Kennedy] and said, "Do you think you could help me find a place on the 9/11 Commission staff?" He said, "Yes. Send your resume and I'll send it over." He had my resume on his desk, probably in the winter of 2002-03, and sometime in January or February of 2003, his then chief counsel announced that she was leaving. She had been there a number of years, a very good woman who ran the subcommittee, and he literally had my resume on his desk or on his mind, because he was sending it over to the Commission.

As I recall it, this time Carey Parker called. Now, Carey and I had kept touch over the years. I had not hired, but I was the one who found, Carey in 1969, and had had the conversations with him, trying to persuade him to come, so Carey called me. Over the years, Carey and I had joked—He would joke, "We need you to come back" for this, that, or the other thing, but this time he called in all seriousness and said, "Our chief counsel is leaving, and the Senator wonders whether you'd like to do it again." I talked to either Carey or the Senator about what was going on, what they had in mind.

I may have talked to Carey first, and then the Senator. He just said, "It's going to take us a long time to find somebody if we start all over again. You've done this before, and we may have a very busy time coming up." It was in the period between the war resolution and the start of the Iraq War, and they were already head-to-head with the administration over judicial appointments, the circuit court appointments. It was very much like the '60s, with Vietnam and the Nixon administration, and the judicial appointments, with one big, big exception, which was that the Democrats were in the minority. He said, "Would you like to come back?" I said, "Give me 24 hours to think it over." I came home, talked to Carla, and it wasn't a hard decision to make. Of course, if he wanted me back I was going to do it. That's how it happened.

If I recall, though, there were some press reports at the time that said, in effect, "Uh-oh, look out. We're in for trouble. Kennedy's bringing back Jim Flug to deal with these appointments."

I think those reports came a year into my arrival back. Neither I nor anyone else could know that there would be two vacancies. It's always possible. Judges were a big part of what was going on, because of the standoff of the lower-court judge.

The lower-court nomination was at a standoff.

I think the [Miguel] Estrada fight was going on as I arrived. I don't remember that we particularly had the Supreme Court in mind. Obviously, it was always a possibility, and that's what I was probably best known for, publicly, at the time, but those articles came much later in the process. The biggest one was one by Robert Novak, I think when the Supreme Court vacancies had already occurred, but maybe just before they occurred.

There were reasons why the right wing was interested in me, the most vivid of which was that one of their key people, the Republican staffer who had looked at the Democratic e-mails on the Judiciary Committee computer, knew that I was responsible for a serious investigation of that. I suspect he stimulated some of the right-wing attacks on me. There was a fundraising letter that named me—and then that was picked up in the Robert Novak thing—but in the world we live in that was all great, even though, normally, to have even your name appear in print was verboten. In this case, everybody thought that was funny, being attacked by Robert Novak, even the Senator. It was all high fives. There were no negatives to that.

Ironically, Novak had been somebody that I knew quite well 25, 30 years earlier, when [Rowland] Evans and Novak had a radio program. When I was in the energy business, they used to have me on quite often, whenever they were having a debate on energy subjects, so the first time Novak called me, I took the call, until I found out he was wanting to write about me. [laughter] Then I stopped answering the phone, and he made that a big thing. We just sent him my bio or something. I don't recall that that was very explicit.

We all knew that it was a possibility, and judges were a bone of contention, and we knew that if there were a Supreme Court nomination, there would be a fight, so I'm sure it came up on a list of things that would be expected, but that wasn't why he brought me back. He brought me back because he had a sudden vacancy, and he didn't want to spend—It was in the middle of a time that was very hot, and the kinds of things that were hot were the kinds of things I was familiar with, like the circuit court nominations. It just happened to be, once again, that I was in the right place, in the right position, at the right time, and it was very smooth. We talked in early February, and I came on, on March 1.

How was it different from when you first came, in the late '60s, before there was the massive staff buildup and all his committee—

One of the biggest differences was that there were huge numbers of staff. The way it is now, you can't fit—Somewhere I probably still have it. You could fit all the members of the staff in those days on one side of an 8½″ x 11″ page, in regular type. Now, we all carried around a card in the recent tour, with everybody's name, office number, home number, cell number, fax number. To fit that on the card, it took both sides of two cards, in minuscule print. You could not read it, or somebody my age could not read it, [laughter] without holding it at arm's length, and then the type was still too small. One of my great accomplishments—I had two or three great accomplishments while I was there—was to get them to print that card with the hole that held it on your lanyard on the bottom instead of on the top, so that when you held the lanyard out, it was right side up instead of upside down. [laughter]

The other great accomplishments had to do with food. I told the story at my farewell. It's very hard to get an agreement in the Senate on anything nowadays, but I got two things done while I was there, both involving food. One was the adoption of a bipartisan rule, that one hour after the Judiciary Committee got a quorum the staff could eat the bagels that they had put out to attract Senators to the hearing.

A very important step. [laughter]

The second was—I was on a health kick when I got there and would have a fruit salad every day. Under the fruit salad, they had something that I didn't like at all, something green and bushy, but inedible as far as I was concerned. I got them to change that from kale to lettuce, so now the fruit salads in the Senate have lettuce under them instead of kale.

Very important.

Those were big accomplishments, because you could get very little done. The reason you could get very little done, of course, was that we were in the minority. Apart from the size, age, and quality of the staff, which is incredible—A lot of the people who were there when I got there had been there with him a long time. Carey, of course, had been there since 1969, when I first came on with him. Michael Myers, who now runs the Health Committee, had been there for many years and actually started on the Judiciary Committee on the Immigration Subcommittee.

Did he have it after Jerry Tinker? He may have.

Yes, but there may have been one person between them. Melody Miller, who had been hired after Bobby was killed, in 1968, and had come over to our office—she had been Bobby's receptionist and became our receptionist—was still there. It was just an excellent staff. The man who was the health person had been there for many years. It was just a tremendous, first-rate staff, with specialists in every area. Whereas Dave Burke ran the foreign policy area for the Senator in the '60s and '70s, even though that was not his field—his field was economics—and did a wonderful job, now Sharon Waxman ran it. I don't even know what her background is, but she just did a terrific job. The series of speeches that he gave in 2002-03 on the war will eventually be published as a book, when the war is over. He warned, in very specific terms, what was going on.

The staff was larger, probably better trained, more specialized—a wonderful group of people—and it operated extremely smoothly, because organizing that size operation was very tough, but every day that bag went to him. It was waiting for him when he got in the car, whatever time he left. There was a presumed time for the bag to leave, and it was always earlier than the actual time, because it required a lot of work to get the bag in order, usually by a younger person whose job it was to organize that bag. It was one of the most important jobs in the office, because he was getting memoranda from 50 or 60 people, and that doesn't include his other correspondence, several times a week. That bag would go home stuffed every night. He could hardly carry it, and he would get through it every night. That didn't change.

Was the bag in use when you were first there?

It wasn't as routinized. There was a bag, but the day wasn't built around the bag the way it is now. It was very informal, "What time is he leaving today, 5:00?" You would have something ready for the bag at 5:00, and if you didn't, you would run it out to the house or fax it to the house. Nowadays, Lord forbid you fax something to the house, because that throws the whole system off. It's not in the bag keeper's system. You now had to have permission to fax something to the house, and that still happens. Stuff still gets dropped out at the house after the bag, especially in the middle of something like a Supreme Court nomination. That was one big difference internal to the office.

Externally, the two biggest differences were, one, he was now, instead of five years into his Senate career, he was more than 40 years into his Senate career. He celebrated his 40th anniversary in the fall of '02, so he was now a senior member in the Senate instead of a junior member of the Senate. That was a big difference, but I suppose the biggest impact on the work was that we were in the minority rather than the majority, but it was more than that. It was that "majority" and "minority" had totally different meanings.

The majority, in 1967, consisted of something like 55 or 60 Democrats, but they were a majority only on the day that the Senate was organized. That is, you voted for the leadership, but other than that, they didn't exist. We discussed this a little bit before, because there were still many Democrats who were Democrats in name and theoretical philosophy only, but were voting most of the time with the Republicans. Similarly, there were Republicans elected from states with large liberal populations who were Republicans in name only, and voted like Democrats, liberal Democrats.

There's almost nobody in the Senate like that now. When you look at the [Clement] Haynsworth and Carswell votes, you see that very starkly, because the people who voted for the Democrats, who voted for Haynsworth and Carswell, were by and large the southern Democrats. I don't think there was a single northern Democrat who voted for them. The issues were, to some extent, North/South issues, old issues, racial issues, and the people who voted against Haynsworth and Carswell included a large number of Republicans. I want to guess 20, including members of the Republican leadership. I once counted a Haynsworth vote. Five people who were considered Republican leaders voted against Haynsworth. That's part of my reason, to this day, for believing that it was not an unfair vote or anything else, when you get five members of the Republican leadership to vote with you.

That's how it was in the old days, and it meant that there was no such thing as a partisan vote. No important vote was on party lines, never, ever, ever, because the Southerners were voting with the Republicans, and the liberal Republicans were voting with the Democrats.

The Judiciary Committee had that phenomenon too, which was very important to the dynamics of that committee. [James] Eastland was the chairman and one of the unreconstructed Southerners, followed by [Samuel] Ervin and [John] McClellan. I think those are the only ones. But for each of those three, you had a liberal Republican: [Hugh] Scott, who ended up as the Republican leader; [Jacob] Javits, at least at the beginning; [Hiram] Fong of Hawaii, to name only three. Then there were others who were not on the Judiciary Committee. No vote on the committee or on the floor was a party-line vote.

Of course, today that is inconceivable. The three most liberal Republicans, perhaps, are the two Maine Senators and [Arlen] Specter, who never vote against the party line, unless their vote isn't needed. Almost never are they the swing votes. Even though the Senate is much more closely divided, today there is incredible party discipline, at least on the Republican side. There isn't the same kind of discipline on the Democratic side. We can't run a three-car funeral.

Those are the biggest external differences: that we're in the minority and that being in the minority means always being in the minority, because there was never a time when the moderate Republicans—I suppose there was one time, and this is one of the things I wondered about when I got up there. I asked, "Are there any moderate Republicans?" People would count on two hands: the two Maine Senators and Specter, and one or two others who were potentially moderate on one issue or another. Over the course of the next couple of years, you saw five who, on a single vote or on a single issue, might do something surprising or different. Sometimes it was [John] McCain; sometimes it was [Charles] Grassley; sometimes it was [George] Voinovich; and sometimes it was the head of the Foreign Relations Committee.

[Richard] Lugar.

There were ten or eleven, potentially, who might do something different, but they almost never did; if they did, it was more often at a committee hearing, rather than on a vote.

The one time that wasn't so was on something I spent a lot of time on, what came to be called "the nuclear option," which the Senator took the lead on. That was the question of the Republican effort to eliminate the filibuster, mostly for purposes of judicial nominations, but you couldn't do it for that without weakening it for all purposes.

There's a long history to that, which isn't so relevant here, although the Senator was involved with it over the years that it was front and center, in the mid-'60s and eventually being resolved in 1975. Of course, the filibuster was used for terrible purposes during the early years, to stop civil rights legislation. That was overcome in '64, with the passage of the '64 Civil Rights Act, largely because Everett Dirksen, the Republican leader, had decided that the time had come for civil rights legislation. He allowed cloture to be invoked and the filibuster to be stopped on the civil rights legislation.

It was still a problem and remained a problem into the '70s, until after I left. I think '75 was the year they finally reduced the number of votes needed to stop a filibuster, from two-thirds of those present and voting to an absolute 60 in the Senate. There's a long history to what happened in '75, also. Senator [Robert] Byrd was very involved in a compromise, ultimately, on that solution. Senator Kennedy was very involved in that as it went along, had a great stake in it, but other people, like [Walter] Mondale and some of the others, took the nominal leadership on it.

When I first arrived in March of 2003, the issue of the filibuster had already been raised. There had been the standoff on Estrada and some of the other circuit court nominations. The history of that was that when [William J.] Clinton was President, the Republicans had stopped something like 60 judicial nominations, either by never holding a hearing or by bottling them up in committee or by not bringing them up on the floor. There had been a very solid precedent, on the Republican side, of using all the tactics available in the Senate to stop judicial nominations. Of course, they stopped some very good nominations, including the woman who later became dean of the Harvard Law School, for example. She was stopped for a D.C. circuit nomination.

What the Democrats did when [George W.] Bush took over was—It wasn't just tit for tat. It was using the mechanisms of the Senate the way they had always been used, and the way the Republicans had used them. I think the Republicans had used them excessively, and I think the Democrats used them judiciously, but that's just one person's opinion. There had been, by the time I got there, seven or eight blockings of circuit court nominations, culminating in Estrada in early 2003. That had led to talk, mostly by Trent Lott, of changing the rules and eliminating filibusters of judicial nominations.

About the time that I came to the Senate, or in preparation for coming back to the Senate, I had read Master of the Senate, the third volume in the biography that Robert Caro was doing of Lyndon Johnson. That book started with 100 pages of the history of the entire Senate and the importance of the role of the Senate in the separation of powers and the balance of powers in the government. It was the best 100 pages I've ever read. I had always been a fan of his. I had read his book on Robert Moses many years before, and thought that ought to be required reading in every high school in the country. I always call it by the wrong name. It's not the master builder, it's The Power Broker.

Master builder also sounded right, though.

I had read that, and when I came up to the Senate, I read the first 100 pages—I hope I read more than that, but I definitely read the first 100 pages—of Master of the Senate. It turned out, I had a vague recollection in mind, that I had met Bob Caro through my sister. I called my sister and said, "Why is the name Bob Caro so familiar?" She said, "Because I used to play tennis with his wife, and we would meet there, from time to time, at family events." I said, "Is it all right if I call him?" She said, "Absolutely. I haven't seen them for a long time, but they're lovely people and you should get to know them." I called him and had a long talk with him about what was going on in the Senate. He was just beautiful on the subject of the role of the Senate, just talking over the phone.

I asked him, "Would you like to come down and talk to a group of Senators, because what you have said in these first 100 pages is what the discussion is going to be about over the next several months and years." He said, "I'd love to." Senator Kennedy, who I think had met him before, invited all of the Democrats, and may have invited some Republicans too—I have in mind that he invited some Republicans—to a coffee with Bob Caro. We held it in the Secretary of the Senate's office, a beautiful office, atop the entrance to the Senate. I had never been in there before.

Bob came first thing in the morning after a breakfast over at the Library of Congress, where the Librarian of Congress had a few members of the Senate and House in to talk to Bob. In this beautiful, ornate room on the second floor of the Senate, we had, for two or three hours, a revolving group of Senators and staff. There was a base group of staff from 15 or 20, maybe even 25, Senate offices, who were there for most of the time, including some of the new Senators. Then there was a revolving group of Senators, because you can't keep Senators for more than half an hour, although Senator Kennedy was there most of the time. Senator Kennedy introduced Bob, and he talked about what's in the first 100 pages of the book. It was very moving; the people who were there were just riveted, and they still talk about it.

His message was, "These powers you have are not yours. You hold them in trust, a trust given to you by the Founders, in trust for the people of the United States." It was magnificent. We had two or three new Democratic Senators who came in at that time. It was early 2003, so those who were elected in 2002—One I remember, who came himself, and three of his staff members came, was Mark Pryor. It was a stunning, stunning performance.

Shortly after that, in May of 2003, the Rules Committee was holding a hearing. Trent Lott was then head of the Rules Committee, and he had a piece of legislation that was going to do away with the filibuster. It was clothed in procedure, and it took six or seven steps before you finally got a majority vote, no matter what, but it meant there would be no more filibusters. It was written, I think, to be limited to judicial nominations, which, of course, made no constitutional sense at all. That's where the Senate was supposed to have the strongest powers. The Founders thought a lot about the Senate's role, and wanted the Senate to have a maximum role. Whatever the Senate's procedures were, that's the way the Senate was going to decide on advice and consent, so the argument for having no filibuster only on judicial appointments made no sense.

The Senator testified, and tried to get Bob Caro to testify, too. Bob couldn't testify, but said, "I'll write a letter if you like." Caro wrote a beautiful letter to the committee, and the Senator testified. We did a lot of research for that and went back through the whole history, and he made a very comprehensive statement. Senator [Christopher] Dodd, who was the ranking Democrat on the committee, made an excellent statement. Maybe one or two other Senators testified, but Senator Kennedy was the leading Democrat testifying at that hearing. The issue was joined at that hearing, and then the discussions went on for two years, until May of 2005.

The way we got to this subject was that we were talking about whether there was ever a time when Republicans broke ranks in the past five years. That was the one time. Seven Republicans were willing to tell the leadership, and say publicly, that they would not vote with the White House and the leadership position, on the condition that seven Democrats signed the same memorandum of understanding, and the memorandum of understanding was that none of the signers of that document would filibuster, except in extraordinary circumstances. "Extraordinary circumstances" wasn't defined; in fact, it was made clear in the memorandum of understanding that each person was to be his or her own judge of what extraordinary circumstances were.

But it set up a bipartisan group that said—

It was a bipartisan group that said, "We will allow three of these stopped circuit court judges to pass. We will not filibuster these three, and we will not filibuster in the future, except in extraordinary circumstances."

The seven Republicans agreed not to vote for what was called the "nuclear option," a parliamentary mechanism to avoid various rules that require more than a majority vote. For example, to stop debate on a rules change, even though for everything else it now only required 60 votes to stop a filibuster of legislation or a nomination discussion, that compromise that Senator Byrd had fostered, in 1965, left the vote at two-thirds required to stop debate on a rules change. You couldn't change the filibuster rule, Rule 22, unless you got a two-thirds vote, but they were going to use a parliamentary device to try to get a vote—a very complicated parliamentary device that they claimed the Democrats had used in 1975—to reduce the two-thirds requirement to 60.

But because of the compromise that Senator Byrd had fostered, after it appeared that it was going to happen anyway, they never had used the device in 1975. Our position, and the strictly legal position, was that there was no precedent for using this device, because although the liberal Democrats had tried to use it in 1975, it had been unraveled and was never accomplished; instead, there was a consensual negotiation and a settlement.

Lott became less of a figure, and then it became [William H.] Frist's project, so the question was, If we had let it go to a vote, would the Republicans have supported what had been Lott and now was Frist in breaking the rules of the Senate to change the rules of the Senate? That's how we characterized it; they, of course, claimed that they were using the rules the way they were allowed to be used.

It was, and still is, my belief that there were enough Senators who understood the Caro position—Most Senators by now had read the first 100 pages of Master of the Senate, and probably at that time many of them had read Caro's letter to the committee—and they understood the point, and had talked to the old-timers. I think the combination of the moderate Republicans and the old-timers would have beaten the nuclear option anyway. Nobody to this day really knows what the vote would have been, if the nuclear option had gone to a vote.

There was disagreement among the Democrats as to whether to let it go to a vote or not. I happened to be one—From my history, I thought this was too important a vote, that people who were elected to the Senate would understand that they could not let this happen, that they were giving away the power of the Senate. That was Caro's final plea to the Senators who were at that meeting in 2003. He cited the way the War Powers Act had been given away, and said, "If you give up these powers, you will never get them back, and you will be not fulfilling the trust that the Founders placed in you 200 years ago."

Did he use the issue of the line-item veto as one of those?

No, I don't think so.

Because that's the other major one.

Frist never could count on even the 51 votes he needed, and they thought they might have to bring the Vice President in to break a tie, which would have created another problem: Could you have a member of the executive branch breaking a tie on something that contentious between the two branches? How could a member of the executive branch break the tie? Of course, we know later that [Richard] Cheney claimed he was not a member of the executive branch, [laughter] but a member of the legislative branch, which he took back after 24 hours, but that was one of the strange things in the last five years. That was a major, major issue, where enough Republicans were willing to go on the record.

There are all sorts of stories about how some of the Republicans who signed on were just signing on because they wanted to be on the inside of it and be able to control what was happening and so on. It was a group of seven, not all moderates. A couple of people in the group, and I could probably write them down if I had to, didn't fit, but most of them were the moderates, who I had identified for myself when I got there. I had wondered, and had said to people, "Why aren't these moderates banding together, because they could run the Senate, and in effect run the government, if they could just get their act together?" They never did get their act together, except on this one thing, where I honestly believe the reason they were allowed to do it was that they knew they would lose if it went to a vote. That was the other biggest difference between 2003 and—

Did you see any change in Kennedy, in terms of—This issue in particular speaks very much to his feelings about the Senate as an institution. Did you see a change in him, from those early years, where he hadn't been a member of the Senate all that long, and had Presidential ambitions, to the time when you came back?

I didn't know it at the time, or I didn't know it as well at the time as I do now, but he really spent a lot of time with the senior members of the Senate, he and Lyndon Johnson. Johnson was gone already when he got there, but he developed a friendship with Lyndon Johnson, and may have gone to Lyndon Johnson for advice. I'm sure the books are full of that—I don't remember what Adam [Clymer] says or what Seymour Hersh says about that relationship right from the start, who he went to for advice, but I remember that he went to the older members of the Senate, and I assume to Lyndon Johnson as well, to get advice on how he should conduct himself as a Senator.

The one I knew was Eastland, because he used to spend a lot of time with Eastland. Now, Eastland was not a great philosopher, nor did he speak in terms of the Senate's role as a trust to protect individual liberties. He saw it in the old-fashioned terms of the ability of especially the smaller states to have their own say in the government. Still, it was the power of a minority to stop something if they really felt strongly about it. He may have gotten some of that from them.

He was very close to Mike Mansfield during the '60s and '70s. I'm sure that Mike Mansfield was an institutionalist, that Mike Mansfield would have been in total sympathy with Bob Caro. He believed in the Senate. Mansfield was the leader the whole time I was there, so I don't know what happened before or after that. Of course, Senator Byrd spoke frequently in those terms, although he went through a transition of his own.

In the Supreme Court nominations in the '70s, the issue was presented. We had all sorts of separation of powers issues, and balance of powers issues, in the '60s and '70s, mostly in the '70s, with [Richard] Nixon, and he was very strong on them then. We had all sorts of executive privilege issues in the [Richard] Kleindienst and Watergate period, and we had the Supreme Court nominations, where the same arguments were made: the President should have his choice; he's the President. That was clearly not what the Founders had decided, although I don't remember, in Haynsworth and Carswell, going as deeply into the history, and going back and reading the Federalist Papers.

One of the first things I did when I got up there was read the entire Federalist Papers, at least all the sections that possibly applied to balance of powers and judicial nominations, and executive nominations too, because that became an issue. We spent a fair amount of time, and some might say an inordinate amount of time, on recess appointments.

Still an issue.

Still an issue, along with the fight on the nuclear option, and on the Supreme Court Justices.

The recess appointment was an issue that I spent a lot of time on, because before the vote on the nuclear option, which allowed the confirmation of Bill Pryor to the eleventh circuit—He was one of the three judges approved as part of the—They purposely picked the three worst nominees to be the ones who were accepted. We never should have gone along with that. That was the one problem. That happened kind of below the radar, and they were picked before we ever got a chance to weigh in on it. Pryor was one of them, but he had been appointed as a recess appointment, over [George] Washington's Birthday in 2004, so—Now, this is going to take us off into a different subject, but it's one that I wanted to get to sooner or later.

The Senator came to me and said, "This is awful that Bush is appointing this guy to the eleventh circuit. This is the Deep South; it's Florida, Alabama, and Georgia. It's the heart of the old South. It's the area that the most famous and some of the historic members of the fifth circuit came from, during the civil rights era, when they were very courageous. Here we have somebody who has a terrible record, shouldn't be on any court, let alone this court, and the President is appointing him in a recess appointment over the Washington's Birthday break. That's not right, I want to sue."

Oh, wow.

He said, "I sued when Nixon tried that with the pocket veto." It was in 1974, Kennedy v. Sampson. He remembered it in great detail. He said, "I argued that myself. I did it alone. There was no other Senator on the case with me. I was able to sue, and I was able to get a decision out of the Court. That decision has stuck, and now the President can't pocket veto over a short recess."

I researched it, and it didn't take long to find out that the law had changed quite a bit since the 1970s. I discovered that there would be a huge fight over standing, over whether a single Senator had the ability to sue on something like this. Even though Kennedy got past that in Kennedy v. Sampson in 1974, the law had changed enough that there would be a huge threshold battle over his standing, because there had been so many efforts—both on the Vietnam War and on some environmental cases—by individual Senators and Congressmen to sue that had gone badly in the courts. They were distinguishable from this.

This is a very peculiar Senatorial power, and the Senator would, as a holder of that power, sue to protest a violation, an unconstitutional violation, of that power. I thought we had a pretty good chance of winning on standing, but he would never get to argue anything; he'd never get to the merits. A recess appointment was only for the rest of that year, plus the following year, because the way the Constitution is written, it's until the end of the next session of the Congress. It was done at the beginning of that session of Congress, and would have gone over to the next, so it was a year and eleven months. I thought we could never get past that standing issue in a year and eleven months—we just wouldn't get an answer—but he really wanted to do it.

Would he have had to sue in the U.S. district court?

Yes.

In D.C.?

Yes.

There have been a number of cases dismissed, with multiple Senators, I think.

Right.

Two or even three, in recent years.

There was one with 20, over the Vietnam War; 20 members of Congress sued for failure to get the proper authority from Congress. Those cases were all decided on lack of standing; that's how the courts got rid of them.

How did he get Kennedy v. Sampson through?

It was like the recess appointment. The pocket veto was such a direct affront to every member of Congress that the Court decided there was enough of an interest in an individual Senator to be the one to carry the case, even though there was no official Senate resolution.

Did he have you work on that?

On that one? That one was either very late in my career, when I was working on Kleindienst and Watergate—

You were otherwise engaged.

It may even have been just after I left. I can't remember the date. In any event, Carey was the one who handled that, and did a beautiful job on it. But that's what the Senator had in mind. He remembered it vividly. He said, "I want to do that again." I came back and said, "You can't do that. You'll be in court forever on the procedural issues, and you'll never get to the substance of the issue in time to make any difference. It will be moot by the time you get past the threshold issue, because the guy will be out of office." It's interesting to contemplate, what the courts would have said, where the recess appointment was replaced by a permanent appointment.

A permanent appointment, yes.

There probably would have been a strong argument, but it was moot again. A court that wanted to take it could have taken it, but it's not a case the courts really want to take, especially since it might have reached the Court after [John] Roberts and [Samuel] Alito got on it.

I consulted with a bunch of constitutional and litigation experts, and we decided—I have to say here, I had to bring the outsiders yelling and screaming into this. I said, "Look, the Senator really wants to do something here. He wants to do it personally, and we have to figure out a way to do it." We went through a couple of alternatives that didn't seem good. Finally we agreed that he could go in amicus in some case in the eleventh circuit, where Judge Pryor was on the case, and argue that he was not validly sitting as a judge, and therefore that the case was invalid. You could come in from left field and just do it, but to me, that didn't make sense, because he wanted to do something immediately.

I did something that, here again, is a call to war that nobody else would have done. I consulted with some judges, to make sure it wasn't going to outrage a judge. He wrote a letter to each of the judges, and I think there were 12 of them, on the eleventh circuit. The letter said: "Dear Judge, I want to inform you of a situation that you have before you, which is that one of your colleagues is unconstitutionally sitting. Here are three cases that say that in those circumstances (a) any decision that's rendered by that panel is void, and (b) that the court has an obligation, on its own initiative"—sua sponte is the legal term—"to look at that and decide it, whether a party raises it or not, because it infects the whole case." That letter went to each judge.

We got a very polite answer from the chief judge: "Thank you for your letter. We're glad you're interested in the activities of the eleventh circuit. Sincerely yours." One or two of the other judges gave more substantive answers, but the purpose of it, and the result of it, was that everybody in the eleventh circuit knew about the issue.

There was a wire service story, or some story, that got into the southern papers. The result was that all the lawyers in the eleventh circuit were aware of the issue, were aware of Senator Kennedy's interest in the issue, and were aware of the essence of the arguments, because the letter was a mini brief.

For how to appeal a decision that doesn't go your way?

No. The point was, to get it into a case quickly, they had to bring it up right away. We did, because of the letter, hear from some lawyers from the eleventh circuit who had cases pending.

In fact, we looked down the argument docket and found a case, an en banc case, where all the judges were sitting, including Pryor. It was very late in the case, because it was about to be argued. We filed a motion to appear as amicus in that case, and a request for him to argue that issue, on the basis that the court had a requirement to deal with it anyway, whether a party raised it or not, and that an amicus could raise it. That one they turned down on the basis that it was too late, that we had waited too long, because you have to file an amicus brief within a certain time, and it was past that time. Of course, the whole basis for our request was that this was an emergency, because they were about to have a case argued before an invalid judge, but they didn't want to deal with the case, at least not until they had to, so they turned down our motion to appear as amicus.

Then we found another case, where the briefing was still in process, so it was not too late to file a timely motion to appear as amicus. The appellant had already filed a motion to disqualify Judge Pryor because of something he had done while he was state attorney general. There was, already, a motion asking him not to sit, but it was just before the deadline for that case. The lawyer was very happy to add that as a reason why Judge Pryor shouldn't sit, so he added it to his motion. He adopted, by reference, our amicus brief, which hadn't been filed yet. It said, "For the reasons stated in the about-to-be-filed amicus brief of Senator Kennedy, he also ought to be disqualified," so we filed a timely motion to appear as amicus, with a brief. That brief was accepted, and the issue was in the case. There was a third case, too, where the lawyer decided, on his own, to raise the issue; he had a good Washington pro bono lawyer helping him, so they took off from our letter and wrote a brief in that case.

Now, the members of the court had seen it once in our letter; once in our first amicus brief, which was to the whole court, because it was en banc; once in this third case; and then once in the fourth case. Some of the judges had seen this four times now, so the case with our timely motion was about to be argued. Of course, we requested the opportunity to argue. The court decided not to have oral argument, and to deal with it on the briefs, but they wrote a decision.

A majority of the court opposed us on procedural grounds, on substantive grounds, and ruled against the motion to disqualify Judge Pryor. Two of the judges, however, dissented and wrote two different opinions about why the court should have either ruled on it and ruled the other way, or certified the issue to the Supreme Court and not ruled on it itself, because they were ruling on one of their own colleagues. We were pretty happy with that, because the eleventh circuit is the most conservative circuit in the country. To get two good opinions, and to get the court, en banc, to make a decision—

We got two members of the court to dissent from the decision. This was not an issue where you would ever get a disagreement among the circuits, because it was never going to come up in any other circuit. That's what the Supreme Court usually looks for, a disagreement among the circuits. We did have some other circuit court opinions that we thought were contrary to it and, eventually, two or three cert. [writ of certiorari] petitions, but this eleventh circuit decision gave us a disagreement, at least within the eleventh circuit. That was good, because judges were disagreeing on this. That party and two other parties filed Supreme Court petitions based on this issue and based on this decision. The Supreme Court had these three cases pending for a long time, over the winter of 2004.

The Supreme Court had it on its docket for months, and the experts couldn't figure out what was going on. They kept scheduling it for a decision, and there was no decision as to whether to accept the petition for cert. If they had accepted the petition for cert., that would have been terrific, and the Senator might have gotten a chance to argue for a few minutes. It's very rare that an amicus gets to argue, but given the fact that he was the impetus for the issue, he might have gotten to argue. It wouldn't have happened for a long time, though, because even if they accepted the cert., and unless they accelerated the case immensely, it wouldn't have been heard for a long time. It might have become moot before the Supreme Court heard it. They eventually denied cert. However, Justice [John Paul] Stevens wrote a separate opinion, explaining his vote to deny cert.

He denied it too?

Yes. Well, you never know.

I understand that.

He explained why it was OK to deny cert. in this case, and gave four or five reasons having to do with the peculiarities of the case. But he said at the end of it: "But let the White House not think that this denial of cert. is a ruling on the merits, because this is a serious constitutional issue here. One of the reasons for denying cert. is that this has never arisen before at our level. If it happens again, we might have a different disposition." Someday we'll find out what that all meant, but the point was, he shot across the bow of the White House, and they have not made a judicial recess appointment during an intrasession recess.

Right. I understand.

We did not raise the issue of intersession recesses between the first and second session of the same Congress.

Which is when most of the appointments are made.

Yes, but then you only have 11 months or a year.

Right.

It's a little bit tougher constitutional case, although there's a good argument for recess appointments not applying to judicial nominations anyway, even though they have, over time, been used.

As all of this was taking place, with in essence an assault on the powers of the Senate, with the nuclear option and all the negotiations on that, you were dealing with recess appointments made at a relatively unusual time. They usually, as you say, are the intersession, not the intrasession—

He did make one intersession appointment, the guy down in Mississippi, [Charles] Pickering, so we didn't object to that one. He was an equally bad appointment, but because it was an intersession appointment, it was a weaker case and we didn't object very—

How much do you think the potential for change in the Supreme Court, which was also occurring during this roughly two-year period—What effect do you think that was having on this? Do you think the Supreme Court was holding off, recognizing that there were going to be some vacancies?

I had not thought of that aspect of it, but obviously one of the reasons we were doing it was because of the Supreme Court. It's hard to imagine what would have happened if there had been a recess appointment to the Supreme Court. I don't know how you would start that case, and I don't know how you would finish it, but the finish would have to be that only eight Justices would be qualified, so you might have a 4-4 split. I'll have to write a law review article on that someday.

This raises some very interesting questions about Kennedy's understanding of the law—that there are many issues that may not rise to the level of what the public understands is going on in the Judiciary, such as the big brouhaha over the gang of 14 and the nuclear option—but also Kennedy's pursuing these other routes, which are designed to be protecting the integrity of the law and the integrity of the Senate as an institution. These don't rise to the same level of public knowledge.

Right. And there were other things going on at the same time: the 2004 election. We saw the Civil Rights Division abdicating its responsibility for ensuring that everybody got a chance to vote; and the Justice Department, instead of spending its time on the voting rights of people, was trying to spend its time on what they called "voting fraud," registering people who shouldn't be registered, which in most cases meant minority and poor people. The Republicans went on a fraud kick, to the exclusion of the assurance of the right to vote, so at the same time all this was going on in 2004, the Senator was writing letters to the Attorney General, saying, You didn't do this; you did do this; this is bad; this ought to be done. There were all sorts of issues going on during 2004. At one point, we called in the head of the voting section of the Civil Rights Division, the people from the Criminal Division, and some other people, and had a meeting with them, to tell them we were watching them, and that they'd better get their act together.

The Attorney General would write letters saying, We care about this, but the fact was that they were misusing the resources of the department. Ultimately, they were out there supporting state lawsuits, as in Ohio, that were preserving or protecting things that the Ohio authorities were doing, that were designed to exclude people from voting, and they were not enforcing against. There was one guy who was out trying to muck up the registration process. He was in Nevada, he was in Pennsylvania, and he should have been thrown in prison. They never did anything about him.

At the same time, there were Republican shenanigans, I think left over from the 2002 election in New Hampshire, that were supposed to be prosecuted in 2004 and the Justice Department stopped the prosecution. It was a civil case by the New Hampshire Democratic Party against the New Hampshire Republican Party. The Justice Department went in and stopped the civil case, just before the election, on the basis that it would interfere with its criminal investigation. They were doing one partisan thing after another, so we were trying to keep up with that.

We were trying to make the Attorney General and the people down the line know that we were watching them very carefully, but you couldn't keep up with it. There was so much of that going on. We know now that the Justice Department was a partisan operation. We knew it then, but just the small group of us, with all these other things going on, couldn't keep up with it, and because we were in the minority, we had no leverage to do anything about it. We couldn't hold a hearing.

[BREAK]

We're now resuming the interview with Jim Flug on December 18th. Tell me about the Alito and Roberts nominations.

We had gone through the nuclear option, which ended May 20, 2005. Almost immediately thereafter, Sandra Day O'Connor announced that she was retiring, and Roberts was named very quickly. Now, we had been prepared for that. We had spent some time reviewing potential nominees to the Supreme Court. We had a whole book of biographies and commentaries on various people.

Frankly, as I recall it, the one we thought we would have the most trouble with was John Roberts. He was so smart and so well connected in Washington. As far as we knew at that time, he had a very short record on the D.C. circuit, and we had no idea of his political provenance. We thought he would be probably the hardest to beat of all the people that might be named; yet we knew, just from the short record he had on the court, and from the positions he had held, that if he were nominated, it would be because they believed—and the right wing believed, because we knew that that was what was driving the White House—that he would be one of their people on the Court. Sure enough, he was the one nominated.

Now, Alito was on the original list that you were assuming might have been in the mix at that point too?

He probably was. He didn't stand out, but he probably was on the list.

But Roberts was the one that you were most concerned about?

Yes.

[BREAK]

As soon as the vacancy was announced—I'm sure we had gone through the usual statements of hope that there would be a good deal of advice, as well as consent, but the first time around with Roberts there wasn't much time, because it went pretty quickly between the time the vacancy was announced and the announcement of the nomination.

He was nominated in September as Chief Justice.

No, that's the second—

I know. He'd been nominated in July as Associate Justice.

Right. The vacancy was right at the end of the term, in June.

Right.

So there wasn't a whole lot of time. They went through a very casual pretense of accepting recommendations from the Senate, especially from the Judiciary Committee, but it was more the second time than the first that they went through a less casual process. There were some speeches and some effort to talk about the need for the Senate's advice to be considered seriously, but not much happened, and the one we had figured they would be smartest to nominate, they nominated, so we didn't have a great deal of confidence in our ability to do anything about it, right from the start. On the other hand, the more we found out about Roberts—As it turned out, the Presidential papers, mostly the [Gerald R.] Ford Presidential papers, had a lot of Roberts material in it, so we found out a lot about Roberts that we didn't know. It established that he had been part of the orthodox—

[BREAK]

Where was I?

Roberts.

Oh, yes. The stuff started coming out from the Ford [Presidential] Library [and Museum]. It was already public, because various people had asked for those particular groups of papers.

You didn't have any problem getting them?

No. Those were delivered quickly, because they were already public.

The more we found out about him, the more we realized that we had an orthodox—I don't like to use the word "conservative," because I think it's a misnomer, but an orthodox—follower of Ed [Edwin] Meese, who had this position for a reason and was considered politically reliable by Meese-ians, and that he needed to be considered in that light, notwithstanding the fact that he was a very brilliant guy, and that he had a lot of friends who were Democrats. In fact—and I feel OK about discussing this, because he's gone public with it and because this isn't going to be released for a long period of time, as I understand it—one example, although I'm sure it's one among many, the Senator knows very well: Barrett Prettyman, a local lawyer who was a Supreme Court advocate and the son of a very prominent judge, for whom the courthouse is named. He's a nice guy and somebody I knew pretty well over the years.

Barrett Prettyman was one of John Roberts's best friends. I guess they had been at the same law firm together. Barrett spoke very highly of him, but Barrett was not going to get publicly involved in endorsing him, because he had so many friends on the other side, but Roberts had done an incredible job of building friendships with people on the other side. It seemed like, and I joke all the time, that he must have had a serious weight problem during the time he was in practice, because he seemed to have lunch at least once a month with every Democrat in town, especially the Kennedy Democrats like Barrett. I figured he would need to have at least three lunches a day to be able to have that many lunches with the Democrats.

It's all on the record of the Senate. The Senator gave his speeches, explained his position, and laid it all out. The votes weren't there and the stomach wasn't there for a prolonged fight. People who wished that he would be independent and wished that, because he was so smart, he wouldn't be an ideological judge have already learned that that's not likely to be the case. He, in a smoother way than, say, [William] Rehnquist or [Antonin] Scalia or [Clarence] Thomas, is following an orthodox, ideological position on the Court.

Do you think that, aside from the fact that he made plenty of friends, some of the reasons his confirmation went so easily is that there was some hope, because he had made so many friends across the aisle and he was personable and he was so bright, that he would in fact be more moderate on the Court than he has—

Some people hoped that. [laughter] I didn't have much of an illusion that that would be the case.

Did Kennedy?

No. It was clear that he was picked for a reason. These guys don't fool around. Their constituency is the right wing, as we saw quickly thereafter. They were calling the shots. They were not going to agree to anybody that they were not confident—

[BREAK]

There were some that maybe harbored an illusion that Roberts might be more moderate, but Kennedy never held that?

I don't think so, and he was pretty outspoken in his press releases at the time of the nomination. I don't think he took a position real early on Roberts, so he may have expressed the hope that the hearings would show that Roberts could be a non-ideological nominee, but by the time of his opening statement at the hearing, he had taken a strong position, but that would all be in the record.

I should mention that, because the nomination was made in July, and the hearings began in September, that killed the entire summer for the entire staff. That was typical of the way things ran. I don't think I got away that summer, except for two days and one night in Hyannis Port, and this was typical of the way he does things. I don't think we had time for a whole lot of intra-staff discussion, because it was the summer and he was away a lot of the time, but we did have two days of sessions in Hyannis. He always likes to have outside input at a time like this, and we wanted to have Larry Tribe, but as I recall, Larry Tribe was ill at the time, had just had an operation or was about to have an operation.

At another time when Larry had been unavailable, pretty soon after I came on in 2003, I had asked Larry for a recommendation of somebody that he trusted, that he thought was an outstanding constitutional lawyer. He had recommended David Barron, and we had developed a relationship with David Barron between that time and 2005, so when Larry couldn't come down to Hyannis, he recommended, again, David Barron. David came down and met with us in Hyannis. I think it was Charlotte Burrows and David and me. His son Teddy [Edward M. Kennedy, Jr.] was there, with his wife at that time too.

We spent two days, virtually around the clock, going through all of the issues, one by one. We had prepared briefing papers on all of the issues. We went through them and tried to prioritize them, tried to refine his statements and his questions over that period, and we would rework stuff. Oh, and of course Mrs. Kennedy, Vicki [Reggie] Kennedy, was there as well, and she was an active participant in the discussions. That was, I think, my summer vacation for 2005.

I did get to take one swim during a break. The Senator swam every day, so we went out and swam together on the beach for a brief break, and that was a lot of fun. Here's one small vignette, which is typical. I was headed out to the beach and had my cell phone with me. He was behind me, so I called one of my daughters, who was up in Boston, and told her I was in Hyannis. She had been to Hyannis with me before and had seen the house, but I told her I was in Hyannis and I wasn't going to get up to see her, but I was headed for a swim with the Senator. Just then, the Senator came along, overtook me on the beach, and said, "Who are you talking to?" I said, "Susie" [Flug]. He got on the phone with Susie, said hello, and told her what we were doing. That's just typical of the way that he always felt. He understood that we had families too. [laughter] She remembers that call.

Anyway, we prepared for that hearing in Hyannis, and then we went back. The hearings started right after Labor Day, and were over very quickly. The Senator made his statement and asked his questions; they were mostly in substantive areas. Roberts was a very good witness. He avoided answering any of the questions in any way that would get him in any trouble, without appearing to be evasive, while in fact being quite evasive and not committing to anything other than being fair and independent. He used the baseball umpire analogy over and over again. It was a bravura performance.

The only one like it I can remember is when Steve Breyer had his confirmation hearing, except that—First, Steve knew most of the committee very well, because he had served on it, but he also was willing to get into more substance than Roberts was. Someday, when I'm older and grayer, I'll go through the Roberts hearing and the Breyer hearing and write a law review article comparing them, because I think there are interesting comparisons. I thought Steve's performance was one of the best performances at any hearing I've ever seen, because it was both responsive and responsible. Roberts was much less responsive, but also responsible in terms of giving the aura of judiciousness and perhaps even independence.

Did you have the sense that this was innate to him, or had he been exceedingly well briefed and well prepared?

No. He had clearly been thinking about this for a long, long time. It's totally alien to my experience. I know all the brightest people of my generation, including Steve Breyer. I don't think Steve Breyer had it in his mind, when he was at the Justice Department, that he was someday going to be a Supreme Court Justice. I've never asked him that question, but I doubt it. I think John Roberts had it in his mind, when he was at the Justice Department, that someday he was going to be a Supreme Court Justice. I forget whether it's Roberts or Alito who, in their high school yearbook, has a picture that says, "A future Supreme Court Justice."

Maybe even in high school these people had it in mind. By then, there was a track for people who were surrounding Ed Meese in the '80s, and who went on to be the Justice Department Assistant Attorneys General and the White House Counsels, and eventually got on various courts. Ed Meese wrote a volume, which nobody caught at the time, laying out all of this, the need to have a farm team and to raise people who were going to be future judges and justices, who would have his view of the Constitution. That didn't surface until many, many years later. A professor at Indiana named Dawn Johnson uncovered or re-uncovered these Meese volumes, two of them, from the late '80s, that laid all this out in writing. Roberts was clearly one of those.

If you compare his performance in his hearings, and go back and look at Carswell and Haynsworth and Rehnquist, where, I would presume, you had less of this long-term mentality of going to become a Supreme Court Justice and, therefore, learned to answer questions the right way. How would you compare how those three answered questions? Was there a change in how Supreme Court nominees came before the Judiciary Committee?

Haynsworth and Carswell did not have the intellect and the legal sophistication that Roberts had. Certainly not Carswell. There wasn't that much philosophical or theoretical discussion with Haynsworth or Carswell for that matter, because the confirmations quickly came to three subjects, one being civil rights, one being labor issues. I'm sure there was discussion on civil liberties issues and criminal justice issues in Haynsworth and Carswell, but I don't think a whole lot of discussion. I looked very carefully at those transcripts for a long time, on the role of judges and independence from the administration and that sort of thing. Both of those quickly focused in on particular issues: the ethical issues, the labor issues, and the civil rights issues in Haynsworth; mostly the civil rights and competence issues in Carswell and Roberts.

Rehnquist I don't remember as well. What stands out with Rehnquist was that he had such a political background. The charges, which were not totally formulated in Rehnquist's first nomination, of interference in the voting in Arizona and his [Barry] Goldwater connections, I don't remember the details of that, but it was not as serious a fight as Haynsworth and Carswell. There wasn't the perception, at the time of the Rehnquist nomination, that his single nomination was going to change the Court hugely. The balance on the Court at the time was such that—I forget who Rehnquist replaced, but it may have been a more conservative Justice, so there may not have been a feeling of such a shift as there was with Roberts.

Now before Roberts's hearings, over the summer, his nomination switched from Justice to Chief Justice. By the time the hearings came, he was being heard for Chief Justice, so there was also a sense that he was now replacing Rehnquist, and that therefore there was less of an ideological shift, from Rehnquist to Roberts, than there would have been from O'Connor to Roberts.

But it was understood that there were two vacancies and that there was a second nomination coming.

Right. But that nomination—

It didn't come until after Roberts was confirmed, though.

That's right, because of course there was the whole Harriet Miers exercise. I don't remember the exact chronology, but this all came very quickly.

Roberts was confirmed at the end of September. Miers was nominated in October, Alito at the end of October.

Right. They were trying to get Roberts in place for the new term in October of 2005, which they succeeded in doing. O'Connor was still serving, because she resigned as of the qualification of her successor. She was still serving, and by then had been deified.

The switch from O'Connor to Alito was even more of a switch than O'Connor, as originally conceived of, would have been to Roberts. But by the time Roberts had his hearing, it wasn't a switch from O'Connor to Roberts, it was Rehnquist to Roberts, so there was less of a sense that his presence on the Court was going to cause a massive shift. That took some of the pressure off that nomination. As soon as Roberts went through—By the way, Roberts maintained his personality and his likeability all through the process. I think all the Senators who met him enjoyed the process.

When Senator Kennedy met him, and this has been published, he had found—actually Carey had found—that Roberts's family, or Roberts's wife's family, came from a place in Ireland that was ten miles from where Kennedy's family came from in Ireland. They found a map that showed the two old homesteads, and Kennedy presented that to Roberts when he met with him before the hearing. It was all very friendly.

I did not sit in on the meeting with Roberts. I met him afterward; we had a very short chat, and it was enough so that during the hearing—One of my daughters was in town, I forget why, and she had come to the hearing. I was walking with her after the hearing, and we either crossed paths with Roberts or overtook him in the hallway as he was talking to some people. He saw me, greeted me, and said, "Who's this?" I introduced my daughter to him, and he asked what she was doing. She was then clerking for a circuit court judge whom he knew, so they had a little chat. Every time I have run into him in the hall since then, he's always been very pleasant. He's just a nice guy. He doesn't hold grudges, obviously. That was Roberts.

Where was Kennedy when Miers's name came up?

After Roberts, somebody up in the White House came to the conclusion that they ought to do more in the way of getting input from the Senate, at least go through the motions. Andy Card called around, I think personally, to each member of the Judiciary Committee, or at least each Democratic member of the Judiciary Committee, and said, "I'd like to have your suggestions for nominee for the next seat." Andy Card and the Senator know each other, from Massachusetts I guess, and talk to each other from time to time, so it was taken as a somewhat serious request, although again, nobody had any illusions. We all came to the conclusion that if we named anybody on the list of likely nominees that we had made up, if we picked the best choice on that list, from our point of view, that it would be the kiss of death, so most of the Democrats made up lists that were very respectable. Have I adverted to this before?

No.

It's come up in the course of the [Michael B.] Mukasey hearings, because Senator [Charles E.] Schumer, for example, put Mukasey on the Supreme Court list. There was no way they were going to appoint Mukasey. He was, I think, 63 at the time. They were not going to appoint a 63-year-old. They wanted to appoint a 40-year-old, if they could, to have that person stay on forever and ever, so their grandchildren could have the benefit of a right-wing Court. Those are the kinds of people that they put on their lists.

I forget what Senator Kennedy's whole list was, but, for example, two of the people on his list were David Frohnmayer, now the president of the University of Oregon, who is a legitimate Republican. He was the Republican attorney general of Oregon. He had run for Governor of Oregon as a Republican and lost, and then became president of the University of Oregon. His negatives were (a) that he had gone to Harvard, and (b) that he was a pretty liberal Republican, in the Javits tradition, and a very bright, very nice guy.

I had worked very closely with him when I was in private practice, representing states, because Oregon was the leader of the states that weren't represented by outside counsel. I worked very closely with him and his aides on a huge project involving oil overcharge refunds, so David Frohnmayer was on our list. It's obvious that this was my suggestion. The Senator did not know him, but on paper he was terrific. He was also probably in his sixties, so he wasn't a realistic probability, and he also would not have gotten by the right-wing screen, but that was one person we put on our list.

The other person we put on our list was the chief justice of the Vermont Supreme Court. He had been the Republican attorney general of Vermont. He had been the chairman of Vermonters for Bush I [George H. W. Bush]. He had been appointed to the Supreme Court as a Republican, I think by a Republican Governor, although Vermont had a couple of Democratic Governors during that period too, but he was a real Republican. His only problem was that he had been the author of the Vermont gay marriage opinion. [laughter] That was the kind of list most Democrats put in, because we knew that if we had put anybody on the list of potential nominees from the list we had developed, there would have been no hope for them. In fact, what happened was that Harriet Miers was named.

Was that a surprise?

We had known about her and had had some good vibes about her, mostly because—and this is peculiar to those of us who care about these things, including Senator Kennedy and me—she had been very good on legal services issues in Texas, as head of the Texas Bar and as a private practitioner, and as had Justice Powell and other conservative members of the Bar. Somehow, if a person has spent their time caring about legal services for poor people, you think there's some shred of hope there, or more than that. In Justice Powell's case, it was something that he had been dedicated to as a young lawyer and stayed with all the way to the time he became president of the American Bar Association.

She didn't have quite as much notoriety—that's the wrong word—in the field as he had. It hadn't been a big emphasis of hers, but in discussions that had gone on, of legal services problems over the time I had been up on the Hill, in the 2000s, people had always said, "Maybe we ought to try to go to Harriet Miers, and see whether she can be helpful on that." It had to do mostly with appointments of the Legal Services Corporation, which is a federal corporation that provides some of the funding for the legal services programs.

We had some reason to have some hopes about her, but she hadn't surfaced at all before she became [White House] Counsel, and we didn't see much evidence of what she was after she became Counsel. I started doing calls on her when her name first came up, even before she was nominated, but once she was nominated, we did a full Court due diligence on her in Texas, and what came back was not so bad. People were very surprised that she would be named. People were not sure that she was the most qualified person in the country to be a member of the Supreme Court, but she had been a very responsible member of the Texas Bar, and she was bright, intelligent, and pleasant.

The one serious bad mark on her resume was the support she was getting from this state judge who was some sort of extreme religionist, and was going around touting her. It was doing her more harm than good, except with the right wing. After she was nominated, he was trying to convince the right wing that she was one of them. I think she had been a member of his church, but anyway, he was willing to vouch for her. No one was quite sure what the nature of that relationship was, but they were very close. From our point of view, he was a negative, but from what the White House was worried about, he was a positive, and nothing he said was enough to persuade us that she was hopeless. What was more interesting was that the people we knew in Texas—friends of the Senator, friends of mine—were not averse to having her on the Court, even though they were quite surprised that she would be named.

In Kennedy's eyes, was she therefore qualified?

Remember, in his lifetime, the Chief Justice when he came to Washington was Earl Warren. Earl Warren was not a particularly spectacular lawyer. He was Attorney General and a Governor, he was a politician, and he had turned out to be a magnificent Chief Justice. He had supported Abe Fortas, who was a good lawyer, but whose main claim to the position was his relationship with Lyndon Johnson. He had been a very good Justice. [Hugo] Black had been a Senator. I don't think he thought there was some magical requirement for service on the Supreme Court.

This is an important point. He recognized that many people have come to the Supreme Court from a variety of backgrounds; therefore, the question of qualifications was not merely legal credentials, a la what you saw with John Roberts.

Or to take Haynsworth, for example. Haynsworth had the qualifications. He had been a circuit court judge for a long time. I forget what he had been before then, probably a leading member of the South Carolina Bar, but he [Kennedy] didn't feel that he [Haynsworth] had the qualifications in the sense that he wasn't sensitive to the issues of the day. He wasn't sensitive to the needs of the day, so that is something that has been, over the years, as important to him as the academic and the professional resume qualifications. I don't think we ever reached the point where we had to reach a conclusion on Harriet Miers.

But he had an open mind about it.

I don't think he ever said anything negative about her, and I don't think he had reached a conclusion by the time her nomination was withdrawn. I had written him several memos, relating what I was getting from my calls to Texas, and maybe even recommending that he call some of those people himself, to hear it directly from them. He and I both had an open mind on her; of course, the more the right wing attacked her, the more open our minds got, [laughter] because it was "the dog that didn't bark." They didn't attack Roberts that way. They didn't attack Alito that way.

Right.

The fact that they were attacking her indicated, unless it was all a gigantic act, that they had not signed off on her, that they were not sure about her. They may have gotten the same things about her that we were getting, that she was a fairly reasonable, responsible person. They were not sure of her. They wanted somebody they could be sure of.

Why did Bush nominate her?

I think he prizes loyalty, as we've seen. He wanted a woman to replace Sandra Day O'Connor. He liked her, he thought she was a good lawyer, and she was the right age. I think she must have been in her fifties.

Late fifties I think.

He, in a different way, put his stamp on the Court and maybe even—I don't know. I'm psychoanalyzing it from afar. Maybe he even had a feeling that he didn't have to kowtow to the right wing on that one. They had gotten one that they obviously were very happy with, who was going to be Chief Justice, and that he could have one of his own, somebody he knew. Of course, he didn't know Roberts from Adam. He didn't know Alito from Adam. He saw Lyndon Johnson did it with Fortas.

Do you think everybody was unprepared for the storm that her nomination created?

It certainly wasn't surprising to me, having spoken to the people in Texas and heard reasonable people talk reasonably about her, that the right wing would be really upset about her.

Did you anticipate that she would end up being withdrawn, though?

I can't really remember. If I try to re-create, I probably would have thought that Bush was not strong enough to resist that. I don't have a high opinion of his independence, or his ability to resist the right wing. He's surrounded by them and owes so much to them, and they have been driving his judicial nominations from day one, so no, I don't think I was surprised by it. I was chagrinned by it. I had some hopes that he might—There was something intriguing about the Miers nomination, just because it was very personal to him and might possibly be better than we could get any other way. I think many people on the Hill thought that she might be the best we could get.

So she went down; up came Alito. What was the initial response by Kennedy to Alito?

Now we're in the late fall of 2005. Alito was on the list of potential people. Again, we knew a little bit about him and knew his opinions. His opinions were uniformly bad on contested issues, and we didn't know too much about his secret life, his non-judicial life, but it came out pretty quickly.

Interestingly enough, when we and others had researched him before the fact, an issue about his ethical problems had come up even then, because it had reached a newspaper in Philadelphia, I think it was. A LexisNexis search on him found an article about this strange case, where he had been excoriated by a widow who claimed that he had a conflict of interest in a case involving Vanguard, so that was on the radar. It wasn't very high on the radar, but it was in the original memo on Alito even before he was nominated. His cases were bad and there was nothing particularly to recommend him. We thought he was in the category of somebody who would have to be opposed if he were nominated. Then again, as with Roberts, once he was nominated and the papers started coming in, it got worse and worse and worse.

By the time of the hearings, which were in January—and once again, the preparation for the hearings was all during the winter holiday—in 2005, so the staff all missed another holiday season. [laughter] We were meeting all that time. We could see that it was going to be a bigger fight, and we had many meetings at the house during the Christmas season. He must not have gone away very much during that Christmas, because we were at the house quite a bit. Again, we brought in a number of outsiders, this time more ex-staffers. There were a couple of meetings in which we had probably five ex-staffers, either present or on the phone, especially toward the end. As we got closer and closer to the end, the meetings got larger and larger, because we had people from off the Judiciary staff. There was a sense that this was going to be a serious battle, and that everybody wanted to be part of it. Can we take a pause?

[BREAK]

We're down into the hearings on Alito.

Again, with Alito, everything he [Kennedy] did is public, starting with—I forget what he said after he met with Alito, but even by the time he met with him, the die was cast. We had the documents by then, the most important document being the resume he gave when he wanted to work for the Meese Justice Department.

He laid out all the ways in which, even by then, he was a conservative, starting with his teenage infatuation with Goldwater. Then came his Princeton activities, which he cites on that resume—which I believe was in 1985—and the events had happened in 1973 or '75. He had them fresh in his mind in 1985, but somehow he forgot them after that, and they don't appear on his resumes after that. Of course, he had two very important resumes within a short period after that original. In '87 he was named U.S. Attorney, then in '90 he was named to the court. It's something like that. Whatever year it was that he was named to the third circuit, two years before that he was named U.S. Attorney, and two years before that was the resume to get the position at the Justice Department, from which he was named U.S. Attorney.

He had a blatantly clear record that he was one of those people who was on the track. He knew that his bread was buttered on the ideological, reactionary side. In his own words, it was Goldwater; it was the conservative group at Princeton, the anti-women, anti-black, anti-everything group at Princeton; and not only had he done those things when he was younger, but at the time he was applying for the most responsible position he had before he was named U.S. Attorney, he was bragging about those things. There is no way he could not have remembered those things when, a few years later, he was named as U.S. Attorney and needed the approval of the two New Jersey Senators, one of whom was Bill Bradley, and the other of whom was [Frank] Lautenberg.

I didn't mention, when we talked about the liberals, Clifford Case, who would have been out there with Javits and those people.

Once these papers came in—And most of the papers we got came in quickly. The Roberts nomination had been a good trial run, because the Judiciary Committee staff really learned how to get organized for a huge document dump. Both of those dumps were pretty large, but Alito's was larger than Roberts's. They had a team all ready to go through those and to filter them out, and we worked very closely with them.

We got a lot of paper on his history, and that one application to the Justice Department said it all: this guy was way out there. They knew he was way out there; that's the course he chose. If you just looked at his list of speeches—He spoke to the Federalist Society practically from the day it was founded. Even in his most recent speeches, he was giving speeches that were parroting the right-wing line. There was no doubt that the Senator was going to oppose him, and he came out against him before the hearings. The hearings opened on January 9, 2006.

The [Alberto] Gonzales hearings were around then too. By the way, we should just keep in mind Gonzales—I don't think we talked about the Gonzales Attorney General nomination—and the [William J.] Haynes [II] nomination. Those were two good examples of where the Senator's positions and presentations at the hearings made a big difference. We can footnote those and if we have time someday, come back to them.

Did you harbor any illusions that you would be able to stop the Alito nomination? Did you think you could?

I still think we could have, and I'll jump from the beginning to the end here. The beginning was an op-ed that appeared the Saturday before the hearings started in January 2006, in the Washington Post. That op-ed laid out all the reasons Alito was not a suitable candidate, including Princeton and Vanguard, but starting with his ideological and philosophical record and ending with the two particular things: the Princeton group and the Vanguard situation. That was all laid out even before the hearings started, and there was no doubt as to where he was.

On the ideological stuff and the case stuff, which he laid out in his opening statement, we had everything we needed before the hearing. On the Vanguard situation, that they were not so forthcoming with, and we were still investigating that as the hearing was opening, and stuff was still coming in. It was like pulling teeth, because we would send a letter to Specter, and then we would get something a couple of days later. We would then see something new and send a letter to the Court, and would get something a couple of days later. This was going on all during December. The last piece we needed we got virtually as the hearings opened.

We could prove, almost without a doubt, what we had suspected from the start, based on what Alito had said in his private interviews with the Senator and with other members. The issue had come up before then. As I say, it was out in the newspapers even before the nomination. Although Alito, in 1990, when he went on the third circuit—

The Senator and others had asked him about the Vanguard situation, and how he could have sat on a case involving a company in which he had virtually all of his savings invested and kept on investing in them, and he kept coming up with different arguments. The first arguments were like "The dog ate my homework." They were practical, "I didn't notice," or this or that.

The second level of arguments were technical arguments, cooked up by supposed ethical experts after the fact, which were absolutely wrong, demonstratively wrong, but they had more experts than we had. We had one expert on our side; they had three experts on their side, but our expert was right and their experts were wrong. He clearly violated the rules, and he had promised the committee, this very committee, when he was nominated to the third circuit, that he would recuse himself on all cases involving Vanguard, or presumably get rid of his Vanguard holdings.

He didn't get rid of his Vanguard holdings; he didn't recuse himself. What we found out, the last weeks before the hearing, was that he had never even put Vanguard on his recusal list. He had never done anything to follow through on his 1990 promise.

The reason it took us so long was that in a list the Court did for us, of his recusals, there was a Vanguard recusal sometime during the '90s, so it looked like it had been on his list at one point and somehow had gotten off the list, which didn't make any sense. Only in the last weeks did we discover that the early case that he had recused himself on, or had been disqualified on by the clerk, was a case involving a different Vanguard company, not related to these Vanguard companies. The reason he had gotten off that case was either some relative of his or somebody else, who he had put on his disqualification list, was in that case as a lawyer. He disqualified himself on that case not because it was a Vanguard case, but because this lawyer was in the case. That was what had stopped us from saying that he had never put Vanguard on his list, and then we started getting some of his recusal lists from those early days and Vanguard was never on it.

Why do I say he could have been beaten and should have been beaten? I take some responsibility for it. I thought I did a pretty good job of taking both the Princeton thing and the Vanguard thing to their limits. In fact, we were criticized for taking both of them too far. You'll recall the scene where the Senator got into a yelling match with Specter over the Princeton documents, and then that afternoon, Mrs. [Martha-Ann] Alito cried.

There's a much longer, detailed story in there, which I don't think is relevant to this, but the fact is, there are many people who think the crying scene was cooked up. It doesn't matter to this story, except that the term used that made her cry—which was Lindsey Graham, a Republican from South Carolina, asking him if he was a "closet bigot"—is a term, of course, that no Democrat had used, but that Brit [Alexander Britton] Hume [Sr.] had used on Fox that morning, in commenting on what had happened between Kennedy and Specter. Either both Brit Hume and Lindsey Graham were reading from the same talking points, or Lindsey Graham had been listening to Brit Hume in the morning and had picked up on that, or someone in the White House had picked up.

This does become relevant, because Brit Hume and Chris Wallace, and another commentator for Fox, after the Senator had his argument with Specter, all came to the conclusion that Kennedy had successfully made the Princeton issue an issue in the case. Their theory was that until Kennedy had his argument with Specter, which was going to be on every newscast that night, nobody was paying any attention, and the vagaries of modern media being what they are, unless somebody overtook it with some other picture, people were going to have to pay attention to the Princeton thing no matter what happened. Well, of course, the crying scene topped the Kennedy/Specter scene, and helped defuse the Princeton thing.

The fact is that if you go back and look at the op-ed piece that was in the Post just before the Alito hearings, you'll see a current quote from Bill Bradley, the then Senator from New Jersey, talking about the confirmations of Alito as U.S. Attorney and as third circuit judge. Bradley is quoted in that op-ed as saying that if he had known—

The Princeton thing was about a rabid group at Princeton that didn't want any women and didn't want any minorities, and wanted things to be the old way they always were at Princeton, with all-men eating clubs and that sort of thing. Bill Bradley had become a figure. Every Princeton graduate of that era knew all about that. It had been in the papers and was in all the Princeton papers. I never found anybody who went to Princeton within ten years of that who didn't know about that.

One of the reasons it became public was that Bill Bradley, who was then a basketball star for the [New York] Knicks, got involved. He had preliminarily agreed to be on an advisory committee for this group, this rabid group, but once he got on the advisory committee and realized what it was, he had gotten off and had written a public letter explaining why he got off. So every Princeton graduate knew about the group, about the fact that Bill Bradley had gotten off the group, and why Bill Bradley got off the group. Nobody forgot that, nobody who was a Princeton guy. The only person in the world who forgot that was Alito, and he only forgot after he had put it on his resume to get a job at the Justice Department.

I talked to the Senator about that before the hearing and said, "If we can get Bill Bradley to indicate that this would have been important to him if he had known about it at the time Alito was nominated as U.S. Attorney, and then again a couple of years later as third circuit judge, we may have something. Do you want to call Bill Bradley or do you want me to call Bill Bradley?" He said, "Well, you call him first."

It took me weeks to get hold of him. He was working at a Wall Street firm. I know Bill Bradley. He was a good friend of one of my cousins up in New Jersey, who was a supporter of his, and I had a fairly good casual personal relationship with him. I thought I wouldn't have any trouble getting through to him, because ordinarily when you call and you say you're calling from Senator Kennedy's office, you get an answer right away. It took me a couple of weeks to get him on the phone; he was traveling. I finally got him on the phone and asked him about it. I said, "Would it have made a difference to you, if you had known at the time that he was nominated for U.S. Attorney and third circuit judge, that he had been a member of this Princeton group?" He said, "Yes, it certainly would. I certainly would have wanted to know more about that." We discussed it for a while.

The drafting of this op-ed piece went through many iterations. The Senator changed a lot. It had to be shortened a lot, but the quote from Bradley stayed in. I had thought I had taken good notes and that I was using it in context, but something in my inner nature made me call Bill Bradley back, just to tell him exactly the quote we were using: (a) so he wouldn't be surprised, and (b) in hopes that he would be willing to elaborate on it when it came out. When I read him the quote, he thought I had one word wrong, and he changed the one word that weakened it slightly. It didn't make a difference; it was still a useful quote, and the quote that's in there is useful, but it wasn't as good.

[BREAK]

But it was still pretty good. Bradley had been asked previously about this by some reporters, and hadn't really been forthcoming, so I got more out of him than the reporters did. It wasn't perfect, but it was useful. I really thought that if Bradley had been willing to come forward and be more aggressive on it, that he could make a big difference. I had some intermediaries who were talking to him, who were trying to get him, and he just wasn't willing to do any more than he had done. What he had done was good and helpful, but he wasn't willing to take an active role, understandably, because he's in a different role now, working for a big Wall Street firm. That's one way that Alito could have been beaten. I haven't talked to Bill since then, and I'm not sure he realizes that he could have played such a big role, but that's one possibility. Again, this is something I would not want out in the public domain until both he and I are gone, so I'm going to read the agreement very carefully when it comes.

The other thing was Vanguard. As we've discussed, nobody thinks this guy [Alito] is consciously unethical and nobody would like to think that he's a liar, but his answers—in person and in his questionnaires and at the hearing, about Vanguard—were just bizarre, and they were inconsistent with each other. The Senator laid all this out in his statement, but the bottom line, the assumption to all these answers, was that he had been trying to stay out of Vanguard cases, but that somehow a computer glitch or the clerk's office or the system in the clerk's office screwed up and allowed him to sit on this case by accident. Vanguard was the name of the case. We went through and circled every time the name Vanguard appeared in the papers that he had to read, unless he didn't read the papers. It's in his opinion. The name Vanguard is in his opinion. Vanguard was still the company where all his savings were; he was getting reports from them every month.

The explanations made no sense at all, but they were all based on an assumption that he had been trying to stay out of Vanguard cases, that he had met his promise to the committee, but that some force or accident had caused him not to do it. That remains a mystery, because he never did put Vanguard on his recusal list, that is, the cases he told the clerk to keep him out of, without even sending them to him. If he had put it on the list, he never would have had that case.

It all came to a head on the last day of the hearings, when the public witnesses were testifying, and the American Bar Association testified. The Senator questioned them, told them about the new developments, and laid it out for them. They said, "Well, we interviewed the judge and we asked him about this. He said he couldn't understand." They were saying the same kind of crap that he had given the Senators in their personal interviews: "Everybody says he's the most ethical guy in the world." "We couldn't find any proof that he has done anything wrong, and the experts disagree and"—They basically took his word for it and he apologized, sort of. He said, "Well, I'm sorry if there was an error and, of course, I will recuse myself, in the future, from all Vanguard cases." That's what he said in 1990. The Senator asked, "Are you willing to look at the new information?" They said yes.

Had they given him a "highly qualified" rating?

Yes.

So they agreed that they would look at the information and maybe, potentially, change their rating of him?

Yes. Again, this is something that has to be marked unusable, at least for some period of time. I don't know what would release it, because the Senator wrote them a letter, laying out in very specific terms the new information, and saying, You cannot maintain your position in the light of this information. But, just to show you I'm not just—He didn't say this, but the implication was, This isn't some effort to provide new public grist for the mill; this is an effort to get you to change your mind. Therefore, this correspondence won't be released unless we both agree to it. They sent a letter back saying, We've made up our mind.

Those letters have never been released. I assume they're in his archive. We probably made a mistake suggesting that we wouldn't release the letter unless they agreed, but it seemed that it was more important, at that time, to impress upon them the fact that we had confidence in the substance of what we were doing, rather than just releasing the letter and then having them say that it was just a political thing, and treat it as a political thing.

So there were valid ethical issues raised in the course of the Alito hearings. There were even more clear indications of what the philosophical orientation was going to be for Alito as a judge. Why then, did you end up with a vote of 58-42?

Well, we were in the minority. I think there were no Republican votes against him. At that time, what was the count in the Senate?

It was pretty close, maybe 52? A number of Democrats voted for him.

Yes, but we didn't have very many to lose. We were in the minority. I think it was 55-45 in 2006, before the election.

It might have been that wide.

I'm sorry; we left something very important out.

Theoretically, we only needed 40 votes, if we could get people to vote against cloture. The question was, Were we going to have a cloture vote? The thinking was, until fairly late in the game, that either we could try to win it on the merits, because it would be hard to get a cloture vote—I guess we were then facing the nuclear option. We knew we had seven people, enough to defeat a cloture vote. We only needed 40, and we had 45, but if seven Democrats didn't vote for cloture, we wouldn't have the 40.

We knew it was a tough situation on a cloture vote and that there were real doubts about a cloture vote. If I'm not confusing it with Roberts—I'm 99 percent sure this was Alito—there was not much sympathy for a filibuster, because we were not sure that we could get some of the nuclear option signers, the Democrats, to go for cloture. That only changed when John Kerry—Why did we care about Kerry in 2006? As I recall it, we were having a meeting over the weekend, before the vote, so it must have been—when was the vote?

The 24th, he came out of committee. January 31 was the vote.

Shortly before that, we had a big meeting over the weekend, with all the groups that were against Alito. John Kerry called in on a long-distance call from Switzerland. He was over in Davos for the economic meeting. John Kerry said, "We need to have a cloture vote." The groups went along with that and the Senator went along with that, so there was a cloture vote. I forget what the cloture vote was, then there was a vote on final passage. We did all right on final passage. What was the final vote?

Fifty-eight-forty-two. You're right; it was 55-45, and then you lost three.

We lost three, so it was very close. It was very close, if all the people who voted against him would have voted for cloture. Theoretically, there were enough votes in the final vote to stop cloture, but some of those people who voted no on the final vote would not have voted for cloture, given where things were at that time.

Right.

When you look at who those people were, it's my belief that if either the Bradley thing had worked out or the ABA thing had worked out, we would have gotten enough votes on cloture. Either of those things would have been "extraordinary circumstances," because they go to credibility.

In both of those things, his position was incredible, inherently incredible. It's in-credible that he didn't remember the Princeton group at the time he was being named U.S. Attorney, and he had Bill Bradley. It was on his Court nomination, which was only two or three or four years after he wrote about the Princeton group in his application. Then he was sitting with Bill Bradley introducing him to the Judiciary Committee, and vouching for him based on a recommendation from the judge Alito had clerked for in the third circuit after law school. Bradley knew that judge, and that judge had given Bradley an OK on Alito, so Bradley had come up and said, "If he's all right with this judge, he's all right with me," not knowing of the Princeton thing.

Apparently nobody else at that time added two and two together and told Bill Bradley about the Princeton thing. Well no, people didn't know about the Princeton thing then, because that had been something that only appeared, as far as we know, in the—

The early resume.

The argument that Kennedy and Specter were having was over boxes of materials that were at the Library of Congress, in an archive that had been deposited by a conservative publisher, whose name I'll think of in a minute, and who had been one of the sponsors of this Princeton group.

We had asked the Congressional Research Service to get that material from the Library of Congress, and the Library wouldn't give it to them without knowing who was asking for it. The Congressional Research Service doesn't work that way. They won't tell who's asking, but this guy insisted he needed to know who was asking for it before he would release it. Kennedy wrote Specter and asked him to make a committee request for it. Specter had sent back word, "No." That's what the argument was about at the hearing. Specter denied Kennedy had ever asked and Kennedy said, "I have an e-mail right here from your staff saying no." Specter said, "Why didn't you ask me? You saw me in the swimming pool at the gym. Why didn't you ask me?" He said, "We had done it through channels." That's what they were arguing about.

We got to see that box of materials. In fact, a reporter for the New York Times had been permitted to go through those materials, but that had been very early in the case. I didn't know this reporter. I had met him and he was a good reporter and a responsible reporter, and I'm sure he had done a thorough job. In fact, when we eventually did get the papers that night, at 2:00 in the morning, I had a bunch of interns go through it. I'm sure he did a much better job, the New York Times reporter, than my interns did, but they couldn't find anything. I went through some of it personally, and I couldn't find anything, but it goes back to your point.

You don't take a chance on that. Did I have to trust that the New York Times reporter would have seen everything I might have seen? No; that's not the way I work. If there's a box of materials that might be outcome dispositive, I'm going to make sure I look at as much of it as possible. I did go through it, in the time I had, between 2:00 in the morning and 9:00 in the morning, but I also had a bunch of interns I had trained and who knew what they were looking for. They looked through it too, and gave me what they found.

We found some interesting stuff, but nothing that was a smoking gun, whereas in the Vanguard case, we had done a very thorough job. I had one intern who was terrific; and the original lawyer for the widow in the Vanguard case, who was a law professor, a volunteer at Northeastern University, got it right the first time. His opinion was exactly right on why Alito should have recused himself from the case and anticipated the arguments that the experts made, the wrong experts, and agreed with the argument our expert had made. He was an expert himself, and we had had help from him.

It was a very frustrating thing. As thorough as I thought we had been, I wish that—There were a lot of "should have, could have, would haves" in there. I probably should have insisted that—After I spoke to Bradley and the Senator spoke to Bradley, and the Senator urged Bradley to do it—I don't think it would have made a difference, but I should have done that. I should have been less delicate with the ABA. I should leaned much harder on the ABA, but that could have backfired. I probably made the right decision in both instances at the time, but in retrospect, since it didn't work, I wish I had done more.

How much was abortion an issue, the potential for overturning Roe v. Wade, an issue for both the Roberts nomination and Alito?

They both avoided that question.

But is that the subtext for a lot of the—

No. That's more symptomatic of two things: one, a general insensitivity on the whole range of issues, because usually with that go other types of problems. I can't sort out between Alito and Roberts off the top of my mind, but there was a whole list of cases that each of them were bad on, and they go along with abortion.

It's interfering with or not protecting the rights of an individual, so on the merits, it's like my view of Haynsworth: This is not the person to whom you want to entrust your liberties and your rights—and everybody else's. Also, more visibly and probably more relevantly here, it was symptomatic of the ideological commitment of these people to an agenda of the right wing. They weren't going to talk about it, because it would just get them in trouble. I don't think either one of them said a thing, except about things that led you off in the other direction. I think Roberts was asked by Specter whether Roe v. Wade was now stare decisis, not only because of Roe v. Wade, but because of the case that followed Roe v. Wade. I think he said "super-duper" stare decisis. Roberts agreed to that, but it doesn't matter what he said in the hearing.

I don't want to downplay the non-Vanguard and the non-Princeton parts of it, because the Senator made a decision, notwithstanding the op-ed, that he was going to focus in on the substantive areas, so a lot of his statements and a lot of his questions are about the substantive areas, the bad cases. We had a term of art that he used all the time, that in all these cases, Roberts and to a greater extent Alito, were on the wrong side, on the side against the side of the people who needed the Court's help. What was the term he used?

That was his focus, but as with Haynsworth and Carswell, there was no difference. You couldn't, especially in the minority, win on that basis. We needed those last three votes, as it turns out. Well, something like lying to the committee; something like making up an excuse on Vanguard; something like the fact that he never would have been U.S. Attorney, that he never would have been on the Court, if he had been honest with Bill Bradley; having him sit next to Bill Bradley, knowing that he [Bradley] would have opposed him if he knew what was on his resume. It wasn't Bill Bradley's fault, but he [Alito] knew. He was sitting there. He knew that he was defrauding Bill Bradley.

What's Kennedy's view of Roberts and Alito, now that they've been on the Court for a while, and some decisions have come out?

He's written a couple of statements, and made a couple of statements, that indicate he feels vindicated by his position. I don't think he's said a whole lot about it, but it's come up from time to time.

[BREAK]

Let's go back and cover the 1980 election. At that point, you were no longer on the staff.

I had been, since the fall of 1975, director and counsel of Energy Action, which was an energy consumer group during the energy crisis of the '70s. I had had the most wonderful job in the world. I didn't have to spend a whole lot of time raising money; the money was all raised by a group of liberal Democrats in California, called the "Malibu Mafia," led by Paul Newman. My fundraising job was once a year—I had to keep the other people who were contributing informed on a week-to-week basis, and meet with them and go to fundraisers, but mainly I had to go out once a year to whatever movie Paul Newman was making that year. I'd visit him on site, tell him what we'd been doing, and he would sign a large check.

That's the easiest fundraising around. [laughter]

The first year, I went up to the Bronx, where he was doing some police film, Fort Apache, the Bronx. The second year it was to a hockey rink in Pennsylvania, where he was doing Slap Shot. The third year, I think it was to Montreal, where he was doing one of the worst movies he ever made.

Was that Buffalo Bill, the Robert Altman film?

No. It was about the world freezing over. They were making it up in Canada, at the site of the World's Fair, where they have this very modernistic apartment development by Moshe Safdie, the Israeli architect. It was Quintet. It was in the middle of winter, and they had hosed down all the buildings so they would freeze over, and I think there was a fog and it was all wet. I don't remember that one as well. I don't think I spent very much time up there, but the other two were fun. Then once it was in Atlanta, at the automobile racetrack in Georgia. I don't think he was making a movie there; I think he was just down at the races. He drove me around the track in his racecar. Somewhere I have a picture of that.

I had a wonderful job, but it was getting—Except for the first Senate job, I had never held a job for that long, and I was getting ready to do something new anyway.

The energy crisis was ebbing somewhat by 1979, and I was very concerned, because I had had very close contact with the Carter administration. I was unhappy with the Carter administration, its energy policies. That was fun, also, because the people who were working for Carter were contemporaries of mine and I got to know them. The President was running a very open administration, and we were in seeing the President once a month. The President knew me by name. He didn't like me, but he knew me. We were a thorn in their side because they kept doing things that we didn't like, but that wasn't why.

In general, I came to the conclusion that Carter would lose if he became the Democratic candidate in 1980, and I went to the Senator, in April of 1979, and told him that. I didn't urge him to run, but I asked him whether he thought he might run, and he hadn't made up his mind yet. I said, "If you're sure you're not going to run, then I'm going to go find another candidate." He said, "Well I'm not sure I'm not going to run, so keep your options open." Then in June or July he called and said it was probably going to be a go, so start gearing up. I was hoping to come over in early September.

I was on a very good health plan at Energy Action, didn't know whether the campaign was going to have a health plan or not, and Carla was pregnant. She was due in October, but she delivered in August, so I needed to stay on that health plan until the baby got home from the hospital and we were sure the baby was all right. The baby is now a strapping 28-year-old, working at Simmons College. She was born two pounds, three and a half ounces, and in those days, that was a challenge. We were in the neonatology ward for a long time, and Carla had two other kids at home, so she couldn't be running back and forth all the time. Fortunately, at Energy Action I was the boss and the office was near the hospital. I used to make the runs with breast milk down to the hospital. It was a crazy time, so I couldn't leave Energy Action until all that was over. She probably came home in late September; as soon as she came home and I was sure she was in good shape, I went full time onto the campaign.

I was still a little preoccupied and wasn't focused very well on the campaign, and the campaign wasn't really very well focused. I came on just after the Roger Mudd interview, which has become notorious. When I first came on, I came on as a utility infielder in the executive office, just handling issues and problems as they arose, or things that nobody knew what to do with. I was a jack-of-all-trades—some of it was on election law; some on Chappaquiddick, because somebody put out a new book on Chappaquiddick as soon as he announced; some of it was on energy, which I knew something about—but most of it was just putting out fires. There was really no campaign director then, at least not in the headquarters. I think Steve Smith was theoretically the campaign director, but maybe Paul Kirk was the campaign director. It was a mess.

Then I went to Iowa, because there were complaints that the Carter people were doing dirty tricks on us in Iowa. Because I was a dirty tricks expert from Watergate, I went out to investigate. I spent several days in Iowa. Our campaign director in Iowa was the then and now attorney general, Tom Miller. I got Tom's guidance as to where to go, and got some names of the various cities around the state. I did five or six cities in three or four days, by car, and tried to follow through on all the stories of dirty tricks and see what I could develop. I had gotten maybe 20 stories, of which ten were good. I couldn't prove them. It was all somewhat evanescent, but it was enough to do something with.

Now that I think of it, it's reminding me of the eleventh circuit. [laughter] We didn't have enough to go to court with; we didn't have enough just to blast them with. Like the eleventh circuit, Tom and I sat down and said, "What can we do with it?" I said, "I have this list of things," and I wrote them out, just as a list of reported violations of "nice guy-ship." I drafted a letter for Tom to send to the head of the Carter campaign that said, "We hate to raise this, but we've been receiving reports of improper activities by people on the Carter campaign's behalf. We don't know if they've actually occurred or not, but we're sure you can find out. If they have been occurring, we request you to stop forthwith." We sent that on, I believe, the Friday night before the caucuses, so it wasn't completely ridiculous that they would stop doing that the last three or four days of the caucuses.

I forget how we delivered it—we might have just mailed it to them—but they got it on Saturday. They didn't know what to do with it, because they probably assumed we would release it on Saturday and it would be in the Sunday papers for the Monday caucuses, so they issued a response to it, denying everything.

They issued this publicly?

Yes, and released it, and the press said, "What are you talking about?" They said, "This is in response to the letter we got from Senator Kennedy's campaign."

"What letter?" [laughter]

They came to us and we said, "That was a private letter; we didn't release it." They finally had to release a copy of our letter, so the news was in our letter, not in their letter. In the Sunday Des Moines Register, the front-page article headline was something like "Kennedy accuses Carter of dirty tricks," with the subhead "Carter campaign denies." The whole story, because we refused to say anything, was just the list of ten allegations. That was my first contribution to the campaign. I must have gotten somebody's permission to do it, but there was nobody to ask. Tom had signed on it and he was in charge, and for reasons that I won't go back to—I had had a go-around with President [John F.] Kennedy in May of 1960, in West Virginia, where he had emphasized to me that local people run local campaigns—in the back of my mind I thought if Tom Miller was OK—he was a very senior person, he was in charge, and he signed the letter—it had to be all right. That was my first contribution.

The next was more difficult and more indicative. By the way, I don't think we did that well in the Iowa caucuses; I don't remember. The next thing I was assigned to was the state of Maryland. This was now January. The Maryland primary was in May, and nothing had been done in Maryland. I had to start from zero, with zero budget. Somebody had donated—or maybe it had already been rented—a storefront in Baltimore. I had no paid staff. I had to find volunteers to run the office. I had a couple of good people who were Kennedy supporters who knew Baltimore well, and a couple of people on the city council. Maybe Kweisi Mfume was on the city council then and maybe he supported us, but I can't remember.

All of the public officials, even the ones who were old Jack Kennedy people, had been long since gotten by Carter, so I went around the state meeting them—the older Irish, Italian Democrats, some of the other people around the state—and we put together a list of people who were supporting us. It wasn't very impressive, because all the elected officials were supporting Carter or had announced for Carter. I got that put together as best I could, and found somebody to run the headquarters.

About that time the campaign ran out of money completely and was laying off people. I must have been on some sort of minor stipend as I went through, and I must have had health insurance; Carla wasn't working then. At some point, they started knocking people off the campaign roster. Eventually, the two people who had been the press secretaries—one in the headquarters, who had been Kennedy's press secretary; and one a former press secretary in my time, Dick Drayne, who had been out on the road—were both laid off, and I was made headquarters press secretary. There was still somebody on the plane who was press secretary. I was stuck in the headquarters, and the staff on the plane had been reduced to a bare minimum, so it was very hard to find out what was going on out on the road.

A typical thing would be that Kennedy would go into Philadelphia, let's say, because the Pennsylvania primary was late. He would ride in from the airport to whatever his first event was, with the chief political correspondent or the columnist for the Philadelphia Enquirer. He would give him his message of that day, but that guy might not write until two days later, because he was a weekly columnist or something. The reporter would call the headquarters two days later and say, "I had this nice interview with Kennedy two days ago, but I'm writing today and I need to freshen it up. What's been going on?" After two or three of those calls—Melody [Miller] was then running the actual press office on a day-to-day basis—I'd say to Melody, "We have to find out what's going on."

From the headquarters Melody was arranging "beepers"—which is what they were called then, the interviews that you had to put a beep on—with every station in every primary state that was coming up. New Jersey was one of them. She had a list of radio stations in New Jersey. She'd call up and say, "Do you want to do an interview with Senator Kennedy's press secretary?" They would say, "Yes, we'll do it at 3:00 this afternoon." They would call at 3:00 and I'd do five minutes on the air with them. In between, I'd have to take care of the Philadelphia issues, and I had to know what was going on out on the road.

Melody and I developed a system where—We had a good relationship with the scheduling office, and the scheduling was all done from the headquarters, so that we could keep up with. We found out exactly where he was going to be when. The schedulers were very thorough, and had the numbers at the place he was going to be. If he was being interviewed on TV locally, we knew the TV station, knew what the event was, and would call up just before the event. If he was doing something at a radio or TV station, we'd call right to the station. If it was a big event in a town, where a radio or TV station might be covering it live or at least feeding it into their studio for recording, we would call up and listen to the events from Washington.

We knew exactly what he was doing. We knew more than the people on the plane did, because they were out getting lunch or getting ready for the next event. We were keeping up, minute by minute, with what was going on, on the road, so when the guy from Philadelphia called, I could say, "Senator Kennedy just said, in Los Angeles"—or "He was asked that question just a little while ago in New York, and here's what he said." They could freshen up the stories; that's what we spent a month or two doing.

Then I started doing the big media too, the Washington media. I did a couple of the shows. I did a McNeil/Lehrer NewsHour one night; the question by that time was "How can Kennedy possibly win this thing, because Carter has all the delegates?" We had a theory about how there would be a test mode on the rules. If the test mode on the rules went our way, we would then be able to change the rules, so that there would be a different allocation of delegates and somehow we could—The delegates would be free of their commitments, because they would see that they needed to nominate Kennedy instead of Carter. I did that on one of the big shows—I have the impression that it was on CBS, because you remember the CBS guy on the radio, who used to do those little poems?

Yes.

He then did the Sunday show, or maybe he's the guy doing the Sunday show now.

Is that Charles Kuralt or is that Charles Osgood?

It's Charles Osgood, and he used to do a little poetic thing. Somewhere I have the text of it. I had appeared either on Lehrer or on the CBS Evening News, explaining this theory about how we were still going to be able to win at the convention. Osgood did a poem, "There's some guy named Flug." [laughter] "He has this interesting theory about how Kennedy is going to win." It was all in poetry. It was in keeping with my history with the Senator, so nobody—By then things—I was the last one who still had any hope that things might happen. Of course I never stopped. I stayed on all the way through to the end. By then, there was no payroll.

My last job was to set up the press operation at the Madison Square Garden in New York, at the 1980 convention, and I had zero budget for that. I had to set up a press operation with zero budget. I had a room in the basement of Madison Square Garden, and I had a room in the headquarters hotel, but no budget for phones, or for anything.

I went to the New York Telephone Company and asked, "What can I get for free?" They said, "What?" I said, "What can I get for free?" They said, "You can't get anything for free." I said, "What about pay phones?" They said, "Pay phones?" I said, "Well, how do you work pay phones?" They said, "They're self-supporting. We'll install them and then we'll keep all the money that comes in." I said, "OK. Give me 40 pay phones in the basement of Madison Square Garden, and give me 40 pay phones in the hotel. We'll just work it with pay phones." They said, "All right, if that's what you want." I gave the number of each pay phone to a different reporter, so that the reporter could always get through to the headquarters. The reporters we cared about, we gave them an assigned—

And you knew who was on which phone.

Yes. We assigned a pay phone to each of them, so they could get through. For outgoing calls, I went to the networks and asked, "Are you having your own phone system in Madison Square Garden?" They said yes. I said, "Would you like to install an extension in our press headquarters, so that you can get through on a direct line?" They said sure. Well, we could also call out on those lines. [laughter] We ran the press operation with several dozen pay phones and three network lines.

After a while, the rules theory was getting old and I couldn't go with that anymore. But the speech was the denouement. It was beautiful. I was out on the floor when he gave the speech. There was one little vignette, this day in history. In fact, I just saw a picture of that.

[BREAK]

We had this pressroom in the basement, with just the pay phones and the three network phones. There was no table, there was no desk. I don't know what we were sitting on. It was very hot; there was no air-conditioning down there, and it was the middle of the summer. My mother lived in New York, so I was staying with my mother. I would come over each day, dressed for whatever the most dressy thing of the day would be, which generally meant that I would wear a suit when I came over, but it was so hot down there that I couldn't wear the suit down there; I'd sweat through it and it would be a mess by the time I needed it. The first day I didn't bring any shorts with me, because I didn't realize how hot it was going to be. [hands a photograph to Heininger] That's something Melody did. I was wearing a trash bag instead of shorts, because I didn't have any shorts.

This photograph says, "Proof that the rumor is true. Jim Flug did really wear a plastic garbage bag in the Kennedy trailer at the 1980 Democratic National Convention." [laughter]

The only person I can remember who came for an interview that day was Bob Novak. Bob came to the door and said, "Can I see Jim Flug?" I did know him pretty well in those days, so I was interviewed wearing the trash bag.

That was the end of the campaign. I guess that—Susie was just a year old at the time—we took a summer vacation. I can't remember where, and then I started thinking about what I was going to do next. I went into private practice finally, after avoiding it for 17 years.

What was Larry Horowitz doing during the campaign?

He was out on the road a lot. He was staying close to the Senator. I think he was on the plane. Larry and Dick Drayne and probably [Robert M.] Shrum were out on the plane, and then there was a whirlwind of other people who made cameo appearances. It was very disorganized, and it was a mess.

When you think about his other election campaigns, his Senate election campaigns—and much has been written about how this was not a highly organized campaign—why do you think that was the case? Did he want to win, or did he have some feelings of ambiguity about it?

The conventional wisdom is that he had feelings of ambiguity about it. I never asked him. I've never discussed it with him. I don't think he would have done it if he weren't totally persuaded that it was a worthwhile exercise. He certainly knew what it was going to entail. It was with some personal risk. He lived through '63 and '68, and there were many people like me who were hoping—Well, no. As I say, I was careful not to push. I put it to him, when I went to him in '79, as a question, not a push. Obviously, if anybody were going to do it, I hoped he would do it, but I didn't feel that anybody from the outside could push him, because it had to be a totally personal decision. I hope everybody around him felt the same way: that nobody would have pushed him into it who really cared about him.

I assume that he had made up his own mind, and that he had decided it was something he either wanted to do or needed to do. Maybe he decided he just needed to try, just to get it out of his system. Maybe he felt that that's what his father would have wanted or his brothers would have wanted. I don't know. I've never examined it, and I wouldn't pay much attention to anything I read about it. I'm sure you'll ask him that question. I hope I live long enough to read the answer. [laughter]

Was there anything specific that might have caused him to do it? Some things have been written: that it was the inability to get Carter to enact national health insurance that pushed him over the edge. "He won't do it, and this needs to be done." Generally, one doesn't challenge a sitting President.

I'm sure there were people in a wide range of areas who had the same feeling I had. I was looking at my leg of the elephant, which was energy, and it was a disaster. I'm sure other people, looking at health and I don't know what else, had the same feeling, so he may have felt he had a responsibility to do it, because things were going so poorly. You can't imagine what it was like, the inflation and the unemployment—it was Carter's own word, "malaise"—the malaise that was prevalent.

He may have been getting the same kind of reaction, the same kind of description of what things were like, as well as his own sense of what things were like for the country, and that the country needed somebody other than Carter. I don't remember who the other possibilities were that year. Nobody jumps to mind.

No.

But nobody else was going to challenge Carter. He was the only one who could challenge Carter. I don't think anybody else ran in any of the primaries.

[BREAK]

This is a resumption of the interview with Jim Flug, on December 18. Let's talk about Watergate.

OK. We're going to do a very compressed version of it, and then if you need more, we can do more later. Have we talked about Kleindienst much?

Not much. You just mentioned him earlier.

All right. I have to preface Watergate with Kleindienst, because Kleindienst was really the practice run for Watergate.

That's the lead-in.

Kleindienst was the Deputy Attorney General. He had been a Goldwater-type Arizona Republican, and had become Deputy Attorney General under John Mitchell when Nixon first came in, in '69. I don't think he had much trouble in his Deputy Attorney General nomination, but when John Mitchell left the department to go run the Committee to Reelect the President, in early '72, Nixon nominated Kleindienst to be Attorney General. He had a hearing in early 1972, in January or February, and he was voted out of committee. I'm not sure whether there were any votes against him. It didn't seem worth it, even though he was part of the Goldwater operation in Arizona.

However, the day after he was reported out of committee, Jack Anderson published a column containing a memorandum from the ITT [International Telephone and Telegraph] lobbyist in Washington to her boss, bragging about the fact that they had carried out their plan to trade $400,000 for the Republican Convention in San Diego in 1972, in return for a settlement of the antitrust cases by the Justice Department against ITT. This came out the day after the committee voted and it was reported to the floor.

Richard Kleindienst, who was somewhat of an outgoing type, demanded that the hearings be reopened, so that he could defend himself and rebut this allegation. Senator Eastland said, "OK. If you want to reopen the hearings, we'll reopen the hearings." We then proceeded to have 22 days of hearings on the allegations in this memo. Even then, 22 days was a long time. Today it would be unimaginable: 22 days on an Attorney General nomination, 22 days of hearings over a period of months.

To try to compress it, every time we asked a question, we either got an avoidance or an admission of something that opened up five new questions. Each day the hearing went on, we had five new areas of investigation. Eventually, we had testimony from everybody involved in these antitrust cases, and everybody at ITT, and a standoff with the Justice Department and the White House on whether we could get White House assistants executive privilege and whether we could get documents.

We eventually got most of the documents we wanted—including the actual settlement memos in the Justice Department, with the advice of the Assistant Attorneys General and the Solicitor General—things that the White House today would cringe just at the idea of giving over. We got all that stuff, and we got the Solicitor General, who was the former dean of the Harvard Law School, Erwin Griswold, as a witness, and of course Kleindienst as a witness. They cooked up a story that said they had settled the cases because of economic analyses of the impact of this on the economy and foreign relations and every other thing in the world, and that they had had a study done by an outside expert. It turns out the "outside expert" was a friend of somebody in the White House. Everywhere we turned, there were large things crawling out from under the rocks.

Most of all, we wanted to interview Dita Beard, the one who had written the memo. They claimed she had some medical problem and was under the care of a doctor in Virginia. We had an investigator—Because Eastland was in charge of the full committee, he wasn't going to use any of his resources to do the investigating. Basically, our subcommittee, Administrative Practice and Procedure, did the investigating. We had a great investigator, an old Kennedy investigator who had worked for Bobby Kennedy when he was in the Senate, named Carmine Bellino, a former FBI [Federal Bureau of Investigation] accountant, I think. I don't think he was a lawyer. It took Carmine about an hour and a half to find out that this doctor, who was protecting Dita Beard, was under investigation for Medicare fraud by HEW and the Justice Department. He was not somebody that they didn't have a lot of control over. [laughter]

We called him and he said, "Oh yes, she is very sick," and "Yes, I am under investigation." We tried to get her again and found out that she had been taken to a hospital for a heart attack, to an osteopathic hospital in Denver. By this time, we had a little bit of momentum and we said, "All right, we'll go see her at the osteopathic hospital in Denver."

Eastland appointed a subcommittee to go out to the hospital in Denver—that's all on the record—but the bottom line, for these purposes, is that Senator Kennedy was on the subcommittee, along with Phil Hart and a couple of other people. I think there were five people on the subcommittee.

We went out there. They let us into her hospital room and we gathered around the bed. The osteopath, who was her heart specialist, [laughter] was standing at the bedside with an EKG [electrocardiograph machine], and we started questioning her. Everybody was being very polite and very careful. Nobody was asking any tough questions. Finally, one of the Republicans, Senator [Edward] Gurney of Florida, said, "All right, enough beating around the bush. Do you know Richard Kleindienst?" All of a sudden the needle on the EKG goes off the charts, and the doctor said, "I think we'd better take a break," and they kicked us out of the room. We had lunch, and Phil Hart, who is the nicest guy in the world, said, "Ted, I am not going back in that hospital room, no matter what. I don't want to be responsible for this woman's death. We can go around it."

The Senator loves to tell the story of that hearing, because he claims that Senator Eastland's counsel came over to him during lunch and said, "Senator, Jim took the medical records from the hospital room. Could you tell him to give them back?" [laughter] The truth is that there was a book on the window ledge or something that I saw as I went out, so I thought I'd look at that—it was a medical book—during lunch, to see what the doctor was reading. It was a book on heart attacks for dummies or something. That was the book he came to gather was the medical records, but his story is much better. They never did continue the hearing; they never got her final testimony, but that was the kind of thing we could do in those days. It turned out, eventually, that Howard Hunt, one of the Watergate burglars, had been sent out there to check on her. This is the point of connection with Watergate.

The same crew involved in Watergate had been involved in defending the administration on the Kleindienst thing. Howard Hunt went out to the hospital to talk to her and talk to her doctor before we did. Supposedly he wore, for some reason, a red wig, so nobody would recognize him.

It turned out that that doctor—I think we only found this out after we went out there—was not just under investigation by HEW, but was about to be indicted. In fact, the U.S. Attorney had already told him he was about to be indicted, and maybe even had told him that he'd better do the right thing with Dita Beard. It was a can of snakes, and we kept getting closer and closer and closer. We never got the smoking gun, but we wrote a report that included a chart, which was about four and a half feet long, that folded out of this green Senate hearing book. It just had three columns in it: what happened on the ITT case, what happened in San Diego, and what happened on everything else. It put all the timeframe on it. You read it and you knew that something stank.

Eventually, the hearings ended and we wrote our report. Most of the Democrats voted against Kleindienst; most of the Republicans voted for him; and he was confirmed.

A few years later, when the Watergate tapes came out, one of them is a wonderful tape of Richard Nixon calling Richard Kleindienst and saying, "Dick, I want you to take care of those ITT cases." And Kleindienst says, "What do you mean, Mr. President?" "I want you to resolve the ITT cases." "What do you mean, Mr. President?" "I want you to shut down the ITT cases." "Well, you don't understand; there are all these economic reasons why we want to fight conglomerates, and our wonderful head of the Antitrust Division has been fighting conglomerates. This is the biggest conglomerate and we need to go ahead with these cases." "Dick, you don't understand. I am ordering you to drop the ITT cases." He lied about it on the stand, and was eventually the subject of a criminal case for misleading Congress, and pleaded nolo contendere and got a slap on the wrist. But that was what happened in the six months leading up to Watergate.

Kleindienst was confirmed around June 1, maybe even a little after June 1, of 1972, and the Watergate break-in occurred on June 18, 1972. We know now that there were all sorts of connections.

As I've said to you off the record, John Dean now, in his book, and in personal conversations with me, claims that the whole Watergate break-in was the result of the Kleindienst hearings. He says Nixon was so outraged at the hearings that we held on Kleindienst in the first half of 1972—which involved a payment by the Republicans to bind ITT to the Republicans, in connection with their convention—that he was sure that the Democrats must have accepted similar kinds of money for their convention, and that they needed to go out and find out about the Democrats' money.

There are several places in the Nixon tapes, which Dean pointed out in a law school debate that he did, a forum on Watergate 20 years later or something. He went through the tapes and showed where Nixon repeatedly pushed all his assistants to find out about the Democrats' money. Dean maintains, and there's good support for it, that that was the purpose of the Watergate break-in, to counteract the results of the Kleindienst investigation.

Nixon's assumption was that if the Republicans had done this, ergo the Democrats must have done this too.

It was a little stronger than that. Nixon had some source of his own, or some reason to believe that there was information out there, that the Democrats had accepted similar gifts for their convention. There was no allegation that there was anything like a fix, because the Democrats weren't in control, but Dean cites, in five or six different places in the Nixon transcripts, where Nixon was saying, "Have you checked on the Democratic money yet?" Dean says that that was why they eventually did this break-in.

The break-in was June 18. We heard about it the next day. It happened on a Friday night. I think it didn't get into Saturday's papers, but got into Sunday's papers. On Monday, we started thinking about who was going to investigate. We talked to the Senator and said we could do it in Administrative Practice, because we had the—

Well, the first indications were that there were White House connections, almost in the first-day story, because a notebook they found on one of the burglars had a bunch of White House numbers in it. One of the people, Hunt, the Washington Post quickly located at the White House, in an office that answered, "Howard Hunt's office," although I think he may have given a false name the first time. Within a couple of days, it was well known that this was a White House operation, and that they had been attempting to bug the Democratic headquarters.

Wiretapping, historically, had been of interest to our subcommittee. Ed Long, the Senator's predecessor as chairman, had focused on wiretapping, and we had spent a lot of time pressuring the Justice Department on wiretapping. We haven't talked about that too much, but we demanded from them, every year, a report on the number of warrantless wiretaps they had issued under the guise of national security, within the terms of the 1968 act, which allowed them to do a limited amount of it, for limited purposes, and they were supposed to report. We would demand that report every year, and they would take a year to do the report. We had done a lot of pressuring of the administration on wiretapping, especially warrantless wiretapping. "Wiretapping," in general terms, includes the kind of bugging that was going on in the Watergate.

It probably didn't happen that day, but soon we discussed whether our subcommittee should investigate. There had been an attempt to investigate over on the House side, from the chairman of the House Banking Committee. The House Banking Committee got interested because it had traced some of the money the burglars were carrying, somehow, through Florida, to a bank, to some friends of the President's, mainly Bebe [Charles Gregory] Rebozo. They were in a bank investigation, so the Banking Committee was going to do it. The chairman of the Banking Committee, [John W.] Wright Patman, tried to get his committee to support him and give him subpoena power

The first thing the White House did was to get up a major campaign to defeat Wright Patman initialing subpoenas on the money flow on Watergate, and they won that vote. They beat Wright Patman on his own committee. The way they did it was that they had Gerald Ford go out and talk to both Republicans and Democrats on the committee, and lobby against subpoena power for Wright Patman. They owed Gerald Ford a big one, because Wright Patman was unable to get subpoena power.

We were keeping the Senator informed of this. At that point, we said to him, "Somebody on our side has to do it. We have to get subpoena power and we have to do it." We thought we could get enough votes on the Judiciary Committee. He said Ervin should do it, because he had the Constitutional Rights Subcommittee, and they had the technical jurisdiction over wiretapping. He sent a letter to Ervin and said, "You need to do this because Wright Patman can't get subpoena power. There's no investigation going on now, except the Justice Department itself, and we don't trust the Justice Department." Sam Ervin wrote him a letter back, which I hope has survived the archival process, saying, "I can't. I'm too busy. I'm doing another investigation. You go ahead and do it in Administrative Practice and Procedure."

With that approval, we then went to the full committee and got a resolution authorizing an investigation and the issuance of subpoenas by the Administrative Practice and Procedure Subcommittee. It took all summer to do that, so that was in September or October. Do you have the dates?

About October.

We either had an actual vote, or a letter signed by enough members of the committee. We had begun investigating anyway, but we didn't have subpoenas. We got subpoena power in October, and started issuing subpoenas. The Senator did not want to interfere. It's very much like what's going on now with Mukasey. The Senator did not want to interfere with the criminal investigation that was going on in the U.S. Attorney's Office of the District of Columbia, so I spoke to the U.S. Attorney and we agreed that we would stay away from what they were doing, which was the actual break-in. We would look at other things, especially what was then already becoming obvious as a major related part of it, the dirty tricks operation in the White House.

We started issuing subpoenas on the dirty tricks operation. We were looking at the people who were already discovered to have been involved in the dirty tricks, including a guy named Donald Segretti, a young man who had been hired by somebody in the White House, directly, to go out and do dirty tricks. He had been funded by money coming from the bank accounts of Herbert Kalmbach, the President's personal lawyer.

We issued subpoenas for records and for testimony. I interviewed Segretti and all of Segretti's henchmen. He had a network of people he would use in various places to do the dirty tricks. They were not very cooperative, and they had obviously been told to clam up, but I did interview them and I got a little bit. We were able to see from the records what the network was, where they were, and what they were spending.

I finally was given authority to serve a subpoena on Kalmbach himself, and I spoke to his partner, who was his lawyer, [Frank] DeMarco. I said I was going to come out, and I wanted to interview him, and that I wanted to serve a subpoena for his testimony and get his records. They said they would cooperate, but by the time I got there, they had changed their mind, or the White House had changed their mind. I went to his office and served the subpoena on him, and he said he didn't want to be interviewed, that he would show up for the hearing. This was in November or December. The subpoena was returnable either late December or early January. That was as far as we could get. By the end of the year, we had a good idea of what was going on, but until we called people into a hearing, we couldn't go further.

By that time, it was clear that this thing wasn't going to go away. Mike Mansfield, before the end of the year, had issued a warning to everybody in the White House and executive branch not to destroy any materials. Then Mansfield told Kennedy that he was going to try to get Sam Ervin to do the investigation, and Kennedy agreed. This had been Kennedy's position from the start, that Kennedy couldn't be the one to do the authoritative investigation. Kennedy, who had already asked Ervin once to do it and understood, said, "Absolutely, I'll be totally supportive."

The Ervin Committee was formulated around February. In the meanwhile, we knew we were going to stop, so we put together a report of everything we had found so far, which is the one [fold-out chart] we couldn't find. We filed it in January of '73, summarizing what we had found, and with some colorful prose as to how terrible we thought it was and why it needed comprehensive investigation. That was issued around January 20, 1973, which would have been about the time of Nixon's second inauguration. [laughter]

Yes.

Which reminds me—All during the summer and fall of '72, the [George] McGovern people were going crazy, because they wanted, and needed very badly, for the Watergate stuff to come out sooner rather than later, during the '72 campaign. But my directions from the Senator, and I agreed 100 percent, were that while we were doing this, we had to do it absolutely straight, so we had no leaks of our stuff. We were getting a lot of stuff from the press, but nothing was going back. If you read [Robert] Woodward and [Carl] Bernstein, where they describe our investigation, they say they tried to get stuff out of Kennedy, but they couldn't get a thing out of him. We played it very straight—much to the chagrin of Frank Mankiewicz, who was running the McGovern campaign—and then we wrapped it up in January, issued our report, and turned over all our stuff to the Watergate Committee.

A footnote: March of '73. The Watergate Committee. The resolution is being debated on the floor of the Senate, and John Dean and Richard Nixon are sitting in the White House. John Dean says, "You know, this whole Ervin operation is really a front for Ted Kennedy." Nixon says, "Really? How do you know?" Dean says, "Well, I pulled out the Congressional Record from yesterday, and when the Ervin Committee resolution was on the floor of the Senate"—in those days you needed unanimous consent for each staffer who went on the floor of the Senate—"there was only one staff member on the floor during the discussion of the Ervin resolution."

There had been a major White House effort, just like with the Wright Patman committee, to get a resolution that would virtually ensure that nothing would happen in the Ervin Committee, including an even number of Democrats and Republicans and other things like that. I forget what the specifics were, but there were several contested issues, several attempts to amend the resolution, to weaken it. I was out on the floor the whole time and kibitzing with the Senators.

Dean says to Nixon, "The only Senator who had anybody on the floor that day was Kennedy. He had his guy Flug on the floor. This whole thing is a Kennedy operation." That was sort of the highlight. [laughter] I didn't know that at the time, but in retrospect, that was really the culmination.

We also know that Kleindienst was scared out of his mind about what was going to happen. He kept calling the White House and said, "Everything I do is lawyer/client, isn't it?" "Yes." "I'm not part of what's going on here, right?" "Right." They kept reassuring him that he was not going to be in trouble about the time we were serving his subpoena and after we had served him his subpoena. He got less and less cooperative with the White House as time went on. I'm just now finding out some of the things I didn't know. I still want to have a longer conversation with John Dean. The last conversation I had with him was how the Kleindienst thing affected Watergate itself, as possibly the reason for the break-in, but I want to find out more about what our investigation did. I have a feeling, just from these two incidents, the Kalmbach stuff and this Dean/Nixon conversation, that they were very conscious of what we were doing, as they always were, and that it may have helped things unravel.

Did you or Kennedy have any role in the drafting of the Watergate resolution?

The Watergate? The Ervin Committee?

Yes, the Ervin Committee.

Oh, yes.

Is that why you were on the floor?

Oh, yes. That was part of the job. If we were going to turn it over to them, we wanted to make sure that they were doing the right thing, so we followed it very closely. I knew Sam Dash; I knew Terry Lenzner. I sat down with each of them and unloaded on them. There's a whole other chapter of this—which really takes a separate day if we haven't gone through it already—which is the appointment of Elliot Richardson as the special prosecutor.

We haven't gone through that.

We'd have to have a separate day on that. He was right in the middle of that. If not for Senator Kennedy, there would not have been an Archibald Cox.

Right.

And there would not have been the Saturday Night Massacre. We haven't gone through any of that? We have to go through that.

It's a key piece.

Yes, and it resonates with some of what's happened in the past five years, because when Jim Comey, the person who appointed [Patrick] Fitzgerald to investigate [Valerie] Plame and the Plame situation, was nominated as Deputy Attorney General, Senator Kennedy read to him, both privately and publicly, the history of the Richardson/Cox situation: "You have to do what Elliot Richardson did. You have to appoint a special prosecutor, and you have to give him the same powers that Archibald Cox had." It's all there on the record of the Comey hearing, but it was even more vivid in person.

If you had to summarize what Kennedy's contribution was to the whole Watergate process, what would you say?

I'm not sure yet, because I'm only learning more as the tapes come out and everything else, but it's pretty clear, from what we know now, that the White House was very conscious of what he was doing, that they were worried about it. Remember, some of the things that came out during the Watergate investigations were that they were tailing Kennedy and spying on him. We had some evidence that the committee might have been bugged during the Kleindienst thing; there's some pretty clear evidence. I had the general counsel of the CIA [Central Intelligence Agency] up in my office, swearing to God that they had not tapped our telephones when we were pretty sure they had. There was nothing we could do about it, and the Senator was a good friend of the then head of the CIA.

It wasn't [Richard] Helms at that point, was it?

I think it was. The Senator, I think, called Helms personally and said, "We think you're wiretapping us." He sent over his general counsel and I sat down with him, and he swore they weren't. Oh, and we did one other thing. It may be in Adam's book. The whole thrust of this, and we had learned this somewhere along the way, was that even if you don't have them nailed, if you think you're on to something good, make sure they know that you're sticking with it. Make sure that they know you're after them, and that they know that everything they're going to do may become grist for the mill. That's why Kleindienst called, after he was subpoenaed, and Dean's stuff.

There was one little thing we did, and Dean has told me they certainly knew a lot about it. One of the first things that happened was that the Justice Department asked the FBI to go in and test the bugs in the Democratic National Committee headquarters. We were saying, "The Justice Department and the FBI are testing the bugs in the Watergate? That's the fox right inside the chicken coop."

I called the Senator and said, "We have to have our own ability to know what they're doing on this thing, whether this is for real or not." He said, "What are you going to do?" I said, "Well, if it's all right with you, I'll call the chairman of the FCC [Federal Communications Commission]. I happen to know they have a truck that has all sorts of antennas on it, and it can pick up anything." I don't know how I knew that. He said, "Who's the chairman of the FCC?" I said, "Dean Burch."

Well, Dean Burch was one of Kleindienst's best friends and Rehnquist's best friends, and was one of the "Goldwater Mafia" from out in Arizona. I called Dean Burch—and you know that if you call, you call him "from Kennedy's office." I was probably calling as chief counsel of the Administrative Practice and Procedure Subcommittee. I got Dean Burch on the phone and said, "The subcommittee would like the assistance of the FCC on something." He said, "Sure, anything you want. What is it?" I said, "We need some technical assistance on something." He gave me his chief engineer or something and I said, "OK, we want that truck parked outside the Watergate on such and such a day, [laughter] and we want to be in telephone contact with the truck."

They had no cell phones then. I must have had a two-way radio or something. We wanted to be in contact with the truck or the truck to be in contact with our office; we wanted them to know that we were watching their test of the bugs. I don't know what the engineer in the truck was doing; I don't know what I was doing, but we had our own ability to listen to the tests of the bugs as the FBI and the Justice Department were doing them, and I'm sure that went right up the chain. Everything went right up the chain to the White House, so they knew we were following this thing like a hawk.

That's typical. That was what was wonderful about him; nothing seemed too far out. He was young enough and I was young enough—let's see, he was 40; I was 33—we still had that glint in our eyes when we did these things. "Call Dean Burch? Sure, go ahead try it." You can see, I didn't enjoy this job very much.

Present at the creation.

Just to finish up on Watergate, when Archie Cox was eventually appointed, he appointed Jim Vorenberg as one of his deputies. Jim had been one of my professors at Harvard Law School. Either I called Jim or Jim called me, and he knew that we had done a preliminary investigation. He asked, "Do you have anything that you want us to know?" I said, "Yes. I want to dump everything we have on you." I had already done it with the Ervin Committee. Do you have the dates of Archie Cox?

May.

Of '73?

Yes.

And the Ervin Committee was earlier than that, February or March.

The AdPrac reports were released in January of '73. The select committee was established in February of '73.

So that Nixon tape must be February 15th of '73.

Then at the end of April, [H. R.] Haldeman, [John] Ehrlichman, and Kleindienst resigned, and John Dean was fired.

And when was Cox?

That was when Elliot Richardson was nominated to replace Kleindienst.

Oh, right.

And then Cox was appointed special prosecutor in May.

I went up to Cambridge, in late May or early June, to see Jim Vorenberg. Somebody else was with him, maybe Phil Heymann, who was also a professor at Harvard Law School. This is all a Harvard conspiracy, not a Kennedy conspiracy. I had told the Senator that they wanted to be briefed and he said sure, so I flew up to Boston and we met all day at Jim Vorenberg's house.

I had brought with me this big chart, on chart paper, that I had hand drawn, with all the ties we had discovered and all the ties we suspected, and all the other things that I suspected and that might be. I walked Jim and Phil, probably, through this at great length and I left the chart with them.

I forget whether Adam wrote about it. Adam spent a lot of time trying to find that chart, and could not find it. Jim's wife is still living in the house that Jim lived in, and I've asked her whether she thinks it could be there, and she doesn't think so. It's not in the Cox archives. The person who knew about it and who wrote about it was Jim Doyle, who was Archie's press person, and who had been a reporter for the Boston Globe, whom I knew pretty well. He heard about it from Jim and Phil, presumably, and either had seen the chart, because he describes it in his book very vividly, or had been told about it by them. Jim Doyle says that Jim Vorenberg said that almost everything on that chart ultimately proved out, that even though some of it was speculation, it was pretty good speculation.

Were they walking in cold, or did they have a sense of what was already going on when they came in to work for Cox?

The Post and the Times had both had many stories by then. This was May of '73, so the big stories—

There had been a year of stories already.

Yes, in late '72, early '73.

What was Cox's relationship with Kennedy?

Very close. The short version of Richardson/Cox/Kennedy is that Kennedy went to Elliot Richardson and said, "You're not getting confirmed unless you appoint a good special counsel, and give him a proper mandate." Richardson said, "Oh, I'll do that." Kennedy said, "No, you don't understand. We want to know who it's going to be and we want to see the mandate before you're confirmed." Richardson said, "I will be the Attorney General and it will be up to me to decide these things." And Kennedy said, "No, you won't be the Attorney General unless you do these things and commit to them before you're voted on, because the White House is going to lean on you to no end, and order you to do things, unless you have promised not to do them or promised to do them in writing, in public, under oath, at our hearings. This is to all be settled before our hearings."

Elliot just went crazy and tried to invite some people to do it. Two of the people I think he invited to be the special counsel were Warren Christopher, who later became Deputy Attorney General, but was then a lawyer; and a judge from New York named Ace Tyler, Harold Tyler, who happens to be a good friend of Mukasey's.

I think Tyler was a Democrat and called Kennedy and said, "Elliot wants to offer me the job. Should I take it?" And Kennedy said, "Has he shown you the authority he wants to offer you?" Tyler said, "No, but I can ask him for it." He said, "You ask to see it and see whether you think it's all right." He got it and sent it to us or we asked Elliot for it, but anyway, we had the version that Elliot was offering these people. We told him it was not satisfactory, and the Senator advised both Tyler and Christopher to turn down the position unless they got more authority, because eventually, they would run afoul of the White House and would get canned, or be ordered to do something they didn't want to do.

The first two or three people turned it down; I think there was a third. Finally, Elliot said, "What about Archie?" The Senator said, "Sure, as long he gets the full thing." They actually negotiated the terms of Archie's mandate, the three of them. There was a lot of back and forth, and Elliot was still not happy about having his prerogatives and his responsibility taken away from him. What finally solved it was that they left the power to fire the special prosecutor in the hands of the Attorney General, but he could only be fired for cause, and the cause had to be "extraordinary improprieties." It reminds me of—what was the nuclear option?

"Extraordinary circumstances."

This was "extraordinary improprieties," and that's what was written in the thing. One of the biographies of Elliot Richardson, I think, recognizes that this saved Elliot. Senator Kennedy said to Elliot Richardson, "I'm doing this for you, because when Nixon comes to you and orders you to fire Archie, which will happen sooner or later, you need to be able to say that you cannot do that." They wrote in "extraordinary improprieties," and, given Richardson's credibility, we knew he would not fire him unless he found extraordinary improprieties. Ultimately, he was ordered to fire him, in October of—'74?

No, that year.

Seventy-three? It was the Saturday Night Massacre.

It was '73, so it was only a few months later. It came very quickly.

Was it that quick?

It was that quick. The pressure came that fast.

From June to October. Jesus.

Remember, everything was unfolding extremely fast.

Of course. The Ervin hearings were going on in the summer of '73, and probably the discovery of the tapes was in August of '73. Right. Archie went after the tapes and that's when Nixon ordered Richardson to fire Cox. Richardson was able to say to the President, "There are no extraordinary improprieties here. I can't do it," so Nixon fired Richardson. Then [William] Ruckelshaus was the Deputy, and he did the same thing. Then it was [Robert] Bork.

Kennedy actually anticipated exactly what turned out to happen. Richardson didn't see it?

He saw it, but Richardson didn't understand the dynamics of Nixon and of Washington. As experienced as he was, he just didn't understand that he would be under so much pressure, that unless he had something in writing, which was a standard for his firing Cox, that he would be left with an impossible situation.

He wasn't out of the same mold as the people who normally surrounded Nixon.

Oh, of course not, no. He was a Massachusetts patrician, Harvard three times over. He was the cream of the Yankees and a lovely, wonderful guy, but Kennedy understood that this thing was life or death.

Did Kennedy see him as being naive about this?

It wasn't that he was naive. He just had faith in his own ability to say no to the President.

Just to cite another example, there's a terrible story of a career lawyer in the Criminal Division, a wonderful, wonderful guy named Henry Peterson, who had been first assistant when Bobby Kennedy was there. Bobby loved him. We all loved him. Henry was left holding the bag, and ended up briefing the President on what was going on in the criminal investigation. To this day, Henry's friends, one of whom still works at the department, will defend what Henry did, that he had no choice. He was ordered by his President to do these things.

In that sense, you can argue that, in fact, Kennedy was doing this to protect Richardson. Had Richardson not had that in writing, do you think he would have had the ability to say no, or would he have fired Cox?

Nixon could always have fired Richardson.

Which he did.

Which he did. But in terms of the public's perception, and in terms of a confrontation that the public would know about—and that that would make it unsurvivable for Nixon—you could see how, if Nixon has to order you to do something that you have agreed not to do, and that the Senate has told you to agree not to do, that if Nixon does that, he's going to do himself in.

In many ways, it salvaged Richardson's reputation too.

I would like to think that even if that weren't in the mandate, he wouldn't have done it.

Obviously, Kennedy didn't think that that was going to be enough, that it was going to be necessary to put it in writing, to give him the cover to be able to legitimately say no.

You really have to go back and look at the chronology of these things, because these discussions went on at Kennedy's house. Richardson and Kennedy met, I think, or Richardson and Cox, met the night before the hearing. These negotiations were going on right up to the time of the hearing.

Were you privy to them?

That's a good question. I was privy to a lot of them. I remember sitting in at the meeting. I remember the calls from Tyler and Christopher—if I have those names right. I'm pretty sure it was both of them, and I think there was a third—going through and marking up the mandates, and going through, with the Senator, what was wrong with those mandates. I remember going through the draft mandate for Cox, and working together to get that in shape, and the "extraordinary improprieties" in that agreement. What I can't remember are the meetings at the house. I have a feeling I was at those meetings. I left in July, but this was still May, so I must have been at those meetings, unless I was out of town for some reason.

When you look back on your service on the Judiciary Committee, do you have a sense that you really were kept completely in the loop on everything Kennedy was doing? Was there much that he did on these matters that either you weren't present at or you weren't told about?

I haven't discovered anything significant, unless I wasn't present at that meeting at the house with Elliot or Archie, just before the hearing. It's entirely possible. I was running back and forth to the house all the time in those days. My car knew that route by heart. It's possible—especially if that occurred the night before the hearing—that I was back at the office preparing questions for the next day, when one of those meetings happened. The whole period is such a jumble that I don't have any independent recollection, so unless there are notes of those meetings that say who was there—

I have your notes of your interview with Clymer, which is quite a bit earlier than now, that I can go back and look at again and see what you told Clymer at that time, because my recollection is that you were there for all of it.

I think I was. It's inconceivable that I wasn't.

On the other hand, you could have been driving back and forth between the Senate and McLean.

It was a longer trip than to his house now, especially at rush hour. I can't imagine not having been there, because I know I was at meetings with Cox and Richardson. Richardson's assistant, J. T. Smith, who I think wrote the biography of Richardson, has confirmed my recollections of those meetings, whether it's in the book or not. I've spoken to him at some point in the last 30 years. Again, the only reason I wouldn't have been is if I was in the office finishing up whatever we were preparing for the next day. Remember, these were the days when revising a set of questions was a big job.

It meant retyping.

A big job. It meant totally retyping it. The typists we had were not very good. They were lovely young women, but they were not good typists. Carla was once my secretary, and she was the last good typist I had. Every secretary I had up on the Hill could not type very well, let alone take dictation.

I don't even think there were the IBM [International Business Machines] Selectric typewriters then, either.

They were just beginning, because we did have a ball with large type on it to do speech text.

Not the one that had the white strip behind the ribbon, so that you could do the corrections. Those were later.

They were just coming on, or maybe not. Maybe I'm thinking of a later incarnation, and maybe even the speech type was later, when I was testifying at things. We were still sitting there with a mimeograph machine that you cranked by hand, and you had ink all over you at the end of the day. If you made a change in that, you had to go to the plastic stencil and paint over it, and then retype over the paint, and you never got it exactly in the right place, so a corrected mimeograph speech was a joke. The logistics of getting prepared for a hearing were much tougher in those days. There was no such thing as going to the house, as we probably did on Alito and Roberts, sitting there with a laptop, and then sending whatever you did on the laptop right to the office.

Right.

It was a different world. So yes, I don't know anything to do with these particular things. In those days, I think I even used to sit in on the courtesy visits, to the extent they were courtesy visits. Part of that is that I knew Rehnquist. Maybe we didn't do courtesy visits. I can't think of anything in that period that I wouldn't have been a party to, other than conversations at the White House, but he rarely went to the White House on my stuff. The White House was earlier, under Johnson. I don't think he ever went to the White House under Nixon. I went to the White House a couple of times under Nixon, but probably for things that all of the Judiciary counsels were invited to.

We have one little last thing to cover, and that's the '94 election. Do you want to go over it now? It's really just a month. What we're left with is really just that.

[BREAK]

A random footnote from the '80 campaign, relevant to the conversation we had about how all of these events have been lost to the younger generation. This was 1980, and we were driving to the airport. The volunteer turned on the radio and there was some current politician saying something. I said, "Gee, that sounds like it was taken right from John F. Kennedy's inauguration speech." The volunteer said, "I'm sorry Mr. Flug, I'm not familiar with that. I wasn't born yet." So it passes very quickly. [laughter]

It does.

What are we going to talk about?

Ninety-four.

Three things in '94. One, I was in private practice at a small firm. I was a name partner of the firm then, called Lobel, Novins, Lamont & Flug. The campaign had hired me to do some legal work on the campaign, including opposition research. I had hired Terry Lenzner to do some investigations and research and stuff.

We were pretty relaxed about the campaign at the beginning, and I must have taken a vacation sometime in the spring of '94. It might have been even June of 1994, so we were still pretty relaxed then. I was driving my kids through Rocky Mountain National Park, and phoned in to my office at the law firm. There was a message to call Senator Kennedy's office or to call the campaign office. It must have been Ranny [Cooper]—Whoever was his chief of staff got on the phone and said, "You have a small problem." I said, "What's that?" She said, "Let me read you, from the front page, the lead story of the Boston Globe today." The headline was something like "Kennedy spies on [W. Mitt] Romney."

The story was that an investigator had come into the London office of Romney's roommate and asked if he could ask him some questions about Romney. He asked why and the investigator said, "He's an applicant for a job." The guy said, "Excuse me," went in another room, and called Romney. Romney said, "The only job I'm an applicant for is election to the Senate. Find out who this guy is and who sent him." The guy went back and elicited the fact that this guy was an investigator for the Lenzner operation, and that Lenzner was working for the campaign. Then the Globe started looking at the payments, to see how much Lenzner had been paid, and they didn't see anything, because all the payments had come from me, and were included then. I was being paid a retainer and expenses by the campaign, so it was in the records, in my payments, but it wasn't in separately. All of that was laid out on the front page of the Globe, and I was standing at a pay phone in Rocky Mountain National Park, listening to this.

Then, during the summer, things started going somewhat sour, and somehow a silent alarm bell went out—I don't know what the signal was—that the campaign needed help and those of us who could—My firm broke up that summer, so I may have been in an interim situation or something; I forget exactly what was going on. In any event, I didn't have any pressing cases or anything that I needed to be taking care of, so I just decamped and went up to Boston. I stayed with my college roommate, who lived a short ride from the headquarters. I just showed up at the headquarters every morning. I continued to do some of the opposition research that I had been doing. There were some other people locally that I worked with, then I just troubleshot as I looked around the headquarters and saw things that were going on that gave me pause. The campaign was in somewhat of a turmoil then. I think Ranny was just coming on.

She didn't come on until about October.

Yes. Michael [Kennedy] was still running things. I don't know when I got out there. I may have gotten up there in September. I would show up every day and do what I thought needed doing. One of the things I was really upset about was that when I got there, he had no security. I pushed Barbara Souliotis and I pushed Vicki. I went to Vicki and said, "He has to have security," and she agreed, so Barbara got the state police to do all the driving; he traveled in a state police car. Then Dave came back, so in the car were Barbara and Dave and the state policeman. There were four people in the car all the time.

And Ranny Cooper was back at headquarters.

And Ranny was at headquarters. Each day, I just did whatever I could. I'd just keep my eyes open, and by then, I had a pretty good eye for what needed doing.

Did you work closely with Ranny at that point?

Not particularly. I was doing my own things, and Ranny had a lot on her mind, so I didn't want to be any bother to her. If I saw something that needed doing, I did it. If it involved something major or any money or something, I did talk to her.

When did the Ampad information on Romney surface?

While I was there. This is the company—

That laid off the workers—

Yes, that didn't have the health plan. That didn't come from Terry.

It didn't?

I don't think so. That came from the union out there.

I think you're right.

It didn't come through me, but I was there when it came through. We were working on other things. We were working on the other companies that Romney had been involved with, and the questions of whether they were producing stuff offshore. The last thing we were investigating—We ran out of time, but I'm sure it will come up again this year if he's the nominee—were the deals he had with the ESOPs, the Employment Stock Ownership Plans, to buy out his companies, because he was a person who thought that the free market was king and that the government shouldn't interfere in this sort of stuff. It turned out that many of his deals were financed, at least in part, by the government, because he was taking advantage of these ESOP provisions, and maybe taking advantage in a way that was not quite appropriate in terms of what you were supposed to be doing with an ESOP. He was using the ESOP to buy himself out. That's the kind of thing I was working on.

I did try to go to as many events as I could, especially before the security came on. Even after the state police came on, he didn't always have good security. I remember one day there was an event in a hotel dining room or ballroom, and they took him out through the kitchen. There was no security in the kitchen, and I went berserk.

How conscious was he of security, of the need for security?

He wasn't. He didn't care.

Really?

Yes. I think Vicki probably had to lean on him to get him to do the state police thing.

Do you think it's because he didn't think lightning was going to strike three times, or the only way he could protect himself was to not think it was going to happen?

Well, it wasn't the same thing: It wasn't a Presidential election; it wasn't a national election.

We did have some nuts. I handled a few of the nut cases. We had one guy that we weren't quite sure of, who used to hang around the headquarters. I think I worked on him.

Somehow I got involved with ice cream, too, when there was some need for morale boosters. I got one of the local ice cream purveyors to deliver ice cream once a week at the headquarters, for the staff. Everybody who had the time and the ability just showed up. There were people like me all over the headquarters, just popping up and doing whatever they could do.

Did you play any role in helping to make Ampad an issue?

It came right out of wherever it came from and was plugged right into the speech-writing operation. There wasn't much more of an investigation to do on it. Whoever brought it to us—I think the unions brought us the chapter and verse, so I don't remember that. I do remember driving somewhere during that summer.

Honey? [calling to his wife, Carla] Do you remember, during '94, when we had the kids with us and we were driving through lower Massachusetts and Rhode Island, and we stopped at that picture frame factory? Why did we have the kids with us and where were we going?

Mrs. Carla Flug: We were coming back from Maine, I think, somewhere up there.

I guess I had taken a week off and gone up to Maine.

Mrs. Flug: Yes. That's the only reason we went.

On our way back, we were in southern Massachusetts or Rhode Island, and we passed one of these factories, or we took a little detour to go to one of Romney's factories, and I just parked the car in the parking lot. The kids were there; they were stunned. [laughter] I walked into the factory, walked around, took all the literature out of the reception area, looked at the pictures on the wall. I tried to see who was coming in, who was going out, whether the machines were actually working or it was just a front. I picked up some minor piece of information there, but that's what we were doing.

Most of it was research in the form that's filed under ERISA [Employee Retirement Income Security Act], or it may have been the ESOP filings. We were studying those forms and analyzing the ESOP agreements and that sort of thing, so it was mostly paperwork research, except for this one excursion to this plant in Rhode Island. As I recall it, that business about no health insurance came in from outside. I don't know who brought it in. I guess it was whoever was doing the labor liaison.

You could see the thing turning around. When I got there, not only was the campaign a mess, but the press wasn't that good, his mood wasn't that good, and in a period of three or four weeks, you could see it turning around. He felt good when Dave was there and Barbara's terrific. I guess Barbara was traveling with him the whole time. She's the most senior person on his staff and he feels very comfortable with her, so his trips were more comfortable. I don't know who was with him before Dave was; I can't remember.

Someone young and inexperienced, apparently.

Probably.

Which is not comfortable either.

Yes.

If I recall, the Senate was in quite late, so he wasn't able to get up there until quite late.

Yes. It was not in good shape. Fortunately, it all turned out all right.

Is there anything else you want to add?

I'm sure there will be a hundred things.

I'm sure there will.