5. Kangaroo Court
My LONG-DELAYED CIVIL SERVICE COMMISSION hearing over reinstatement finally got under way in May 1971. The Air Force, the office of the secretary of defense, and the Civil Service Commission had stalled and stonewalled on producing evidence and witnesses. We never did get what we needed for a fair trial. It was like one of those 1930s courtroom dramas in which a judge is in cahoots with the Bad Guys, a noble young lawyer battles the local Establishment, a booming witness turns up with important evidence but is barred from the courtroom by the judge, and a nervous plaintiff (or was I the defendant, as the government seemed to think?) begins to wonder if God is really on the side of the righteous. But this was happening in real life.
I was much blessed in having not one but several dedicated volunteer lawyers who believed firmly in the slightly-out-of-fashion principle of fighting for the truth. Most of the legal work was being done by John Bodner, Jr., and his partner John Bruce of Howrey and Simon, and by Bill Sollee of Ivins, Philips, and Barker. Ralph Temple, legal director of the Washington ACLU, also helped out when he could. They had no compensation to look forward to and plenty of trouble, yet they were more devoted to me and my cause than if I were a multimillionaire who could pay top fees. Quite a few times, the lawyers and their support people -- paralegals and secretaries -- literally stayed up all night to do research and prepare documents. I'll never cease to be amazed at their generosity and commitment.
I had a different kind of long-lasting amazement for the administrative law judge, or, to be exact, the civil service hearing examiner, Herman Staiman. My first impression of him came at the outset of my hearing when he made it clear that he would be the absolute master of what evidence went into the record; under these rules, if he denied us certain evidence, that evidence was forever lost to our cause. In addition he ruled that the hearing would take place in secret, behind locked doors, with only the principals, their lawyers, and himself present.
The latter ruling was meant to keep Clark Mollenhoff safely out -- not an easy thing to do. When the hearings opened, Clark demanded to be allowed to enter. From inside the hearing room we could hear the Boomer's stentorian outrage, gradually diminishing as he was led away by the guards.
Mollenhoff's chief intention was to see Robert Hampton, chairman of the Civil Service Commission, and to get an explanation of why such a blatantly unconstitutional hearing was taking place. What we didn't know at the time was that Hampton had had a quiet handshake with Air Force Secretary Robert Seamans.
After a few days it was clear what we were up against. Staiman placed the entire burden of proof on me and my lawyers and restricted discovery of evidence to essentially whatever the Air Force chose to present. He limited executive branch witnesses to those officials the Air Force certified as knowledgeable and denied us the power to subpoena witnesses or records. Finally he stated that we must prove malicious intent, or what was "in Seamans's mind" when he terminated me.
Staiman's behavior on the bench was unjudicial, to say the least. He gave hand and eye signals to the opposition's witnesses and made one outrageous ruling after another. My lawyers protested it all, and the protests went into the eventual court record, but that was no substitute for an open hearing that would allow the public and the press to see what was happening.
The corpulent, indolent Staiman, secure in his arbitrary arrogance, was justified in his attitude for all practical purposes; he represented the combined forces of the Air Force, the Department of Defense, the Civil Service Commission, the Justice Department, and the all- powerful Nixon White House. Isolated against this awesome array was a somewhat countrified, mostly unemployed engineer represented by volunteer lawyers. But these weren't your run-of-the-mill volunteers going through the motions to fulfill a quota of public-interest hours. My guys were out to win for me and for the principles at stake.
After putting up with this treatment for a few days, Bodner and Sollee filed an interlocutory appeal with the U.S. Federal District Court in the District of Columbia requesting that presiding judge William Bryant order the Civil Service Commission to respect my constitutional right to an open hearing. In my experience, the so-called Justice Department, charged with representing the United States in court, always excuses and defends official wrongdoers in cases like mine. True to the pattern, when the hearing before Judge Bryant opened, the Justice Department lawyer began by reading civil service and Justice Department regulations to justify their holding closed, star-chamber hearings.
Judge Bryant interrupted. "I'm not interested in all that gobbledygook," he said. "Just tell me how justice is done."
It was a new concept for the lawyer, one that seemed to baffle him. (More than one Justice Department lawyer has since explained to me that their job is not to see justice done but to enforce the law.) The government men had run up against a fair-minded judge and a team of tough lawyers.
Judge Bryant ruled that "this closed hearing is unconstitutional," noting that both the Sixth Amendment and Federal Rule of Civil Procedure 77(B) required an open court. As for the Air Force's plea that the closed session was necessary to protect my privacy, he said, "This consideration is obviously of no validity when it is the appellant-employee who wants the open hearing."
President Nixon and the Air Force appealed the decision to the Court of Appeals, which upheld Judge Bryant. They considered carrying it to the Supreme Court but in the end backed down.
My civil service hearing before Staiman was resumed on January 26, 1973. The first witness was General Joseph Cappucci of the Office of Special Investigations (OSI). His preposterous testimony was that four secret informers (T-1, T-2, T-3, and T-4) had more or less wandered in off the street with allegations about me that he had felt compelled to investigate.
He then had to admit under questioning that he had tampered with the file on me by retaining the derogatory (false) allegations while destroying other field reports that demonstrated their falsity. He admitted that even after he had determined that the charges against me were not true, he had kept on circulating the dirt file containing them. At this point Staiman shut down this line of inquiry. He would not let us call the secret information even after we had determined that T-1 was my former assistant, Whitey Driessnack. (A closer look at all this would obviously have been painful for the Pentagon and, as it later developed, the White House.)
When Secretary Seamans came to the witness stand, Bodner first asked him if he had had any discussions or meetings with anyone from the White House before he fired me.
Seamans refused to answer.
Staiman then put the question in a slightly different way: "Did you consult with anyone in the White House or on the White House staff before you made your decision to dismiss Mr. Fitzgerald?"
"In answer to that question," Seamans said, "let me say -- if I may go back, Mr. Staiman, that I did not."
Apparently realizing that he had lied under oath, Seamans then tried to waffle. All he could say for sure was that he had not discussed my firing with anyone in industry or Congress. Beyond that, he said, he wouldn't answer unless advised to do so by his counselor Secretary of Defense Elliot Richardson.
After a recess the government's lawyer, Colonel Claude Teagarden, came back and invoked the doctrine of executive privilege.
On the second day of his testimony, Seamans, emboldened by the success of his executive privilege stonewall, was using it every time a question threatened to produce something embarrassing or incriminating. At this point we got one of those lucky breaks without which few citizens can prevail against the federal government. I always tried to have a spectator or two present, even if there were no reporters. We found that the hearing examiner's conduct was vastly improved when a stranger was watching him. Clark Mollenhoff, who had come to hear Cappucci's testimony, had been called away on another assignment. So one of my neighbors, Phil Ryther, was sitting in.
Phil was a former high official in the Federal Aviation Administration (FAA). He had written some unwelcome warnings about unsafe practices by the charter airlines; the FAA, in consequence, had been in the process of railroading him out when his case came to Mollenhoff's attention. At about that time two fatal charter flight crashes occurred, as if to prove Phil's point; he was then able to negotiate early retirement. What he remembered particularly about Mollenhoff was his hatred for the royalist doctrine of executive privilege.
When he heard Seamans invoke executive privilege yet again, Phil left the hearing room, went to a pay phone, and called the Boomer. Luckily, Mollenhoff got the call just before he left for the presidential press conference described in Chapter 1.
At the White House Mollenhoff rose and boomed the question: had Nixon approved of Seamans's invocation of executive privilege? Or had Seamans simply used it on his own initiative? Nixon was taken by surprise -- the question hadn't been in the briefing book. (Years later we learned in discovery that Seamans and Colonel Teagarden had consulted on executive privilege with John Dean the day before. Dean wrote a memorandum for the president, but it didn't reach him until after the press conference.)
As I noted in Chapter 1, Nixon fudged on executive privilege by promising a "precise statement" in writing, but then blurted out the truth about his approval of my ouster.
Later in the Oval Office came the postmortem scene revealed by the tapes. Nixon was not exactly pleased with the unauthorized invocation of the sacred doctrine:
NIXON: Well, anyway, I backed it up --
NIXON: -- which I shouldn't.
EHRLlCHMAN: Yeah, well that's fine and we're --
NIXON: Seamans claimed it.
EHRLICHMAN: We're covering your tracks.
NIXON: I didn't want to have any indication of somebody down the line having used privilege, uh, without --
EHRLICHMAN: Okay, it's okay. We're coverin' his tracks. Uh, Seamans was wrong, he had no right to invoke it, but you backed him up and we can put it, we can put it together in such a way that everything's okay, and, uh, don't worry about it.
Nixon ruminated on this, and in a later conversation picked up on the theme again:
NIXON: But I had to back up the son of a bitch Seamans.
EHRLICHMAN: Here's what we've done. Just so you can get a feel of it. You know the procedure is if a cabinet officer wants to invoke executive privilege, he refers it to the attorney general --
EHRLICHMAN: -- and it eventually comes to you if it's, if it's meritorious. So I --
NIXON: I invoke.
EHRLlCHMAN: That's right and so what, what we're saying is, by the language Seamans used, he was beginning the process. Here it goes on. Meanwhile, he has referred this to the attorney general. The attorney general's going to look at this and make a decision as to whether he should answer the question or not. And you were aware of this fact and you acquiesced in the procedure being started. He made no final ruling.
That taken care of, all that remained was Nixon's embarrassing admission that he'd fire me. But there was always an easy way to solve such problems: have Ziegler go out and lie about it.
At the press conference the next day, February 1, Ziegler did just that: "We can find no record ... of the matter ever being brought to the president's attention.... (It) was a matter dealt with solely by the Air Force." Seamans echoed this fiction in a press conference he called a week after Nixon's.
John Bodner's next bold move in the civil service hearing was to request that President Nixon testify. Remember that this was before the crumbling of the Watergate cover-up; Nixon was at the height of his power. To call the most powerful man in the world to testify at a bureaucratic hearing into the firing of a middle-level functionary was lese majesty of an outrageous kind. It was as if some puny colonies in the New World had called George III to account for his actions in 1776. Even my friends thought Bodner was presumptuous. I thought he was magnificent.
In a written plea to Staiman, Bodner eloquently laid out the reasons for calling Nixon; if it was impossible for the president to appear himself, Bodner said, there was a Jeffersonian precedent for his testifying by deposition in a court case. Richard Nixon was served a copy of Bodner's letter, but he ignored it, as had the awed Staiman. Our requests to put on the stand all four T's (the secret informers), Melvin Laird, David Packard, OSI Training Director Michael Ross, and John Dean were also denied.
Aside from Nixon, the most controversial witness we requested was Clark Mollenhoff, who at this time was still struggling with conflicting loyalties. He had been a counselor to the president and he was not yet convinced that Nixon was a crook. He wanted to testify, but first he wanted to give Nixon a chance to remedy the injustice.
When Mollenhoff approached Ziegler with a request to talk with the president, nothing happened, so he wrote a long letter to Nixon on February 13. In it he said that what troubled him most was the testimony of General Cappucci, which revealed the secret informers, the destruction of exonerating material, and the circulation of the dirt file. Mollenhoff spoke of "an enormous wrong," a suspected "malicious conspiracy," and "an irreparable injury" to me.
According to evidence we later discovered in the White House tapes, Nixon, seemingly ready to make amends, conferred with Dean on February 28. Dean had met with Mollenhoff the night before to persuade him to turn over some of his documentation and a summary of the testimony he wanted to give. On February 28 Mollenhoff sent a three-page letter with attachments.
He had fallen into a clever trap quite worthy of John Dean and Richard Nixon: they immediately turned the letter and attachments over to the Air Force lawyers. To squelch Mollenhoff, White House lawyers Fred Fielding and Joe Adams, who were running interference for the malefactors, permitted the Air Force to draft a legal ban on testimony by Mollenhoff on the grounds of executive privilege.
Needless to say, the Boomer didn't buy it. Ignoring the legalistic obstacles, he simply appeared at my hearing and demanded to testify. The most restrained and dignified account of the scene appeared in the New York Times of March 22, 1973:
Mr. Mollenhoff was at the hearing room this morning in a noisy, animated and unscheduled appearance.
He called the proceedings a "kangaroo court" and said that he was ready to testify. "Every effort is being made to keep the facts from being put on the line," he said.
Mr. Staiman said that he was interrupting the hearing.
"If the truth is an interference, then I am interfering," Mr. Mollenhoff said.
"If you don't stop your interruptions, I'll have to ask you to leave the room," Mr. Staiman said.
Mr. Mollenhoff left a short time later.... "It is the most peculiar effort to extend executive privilege to someone who doesn't want it" (he said).
Actually, that is a pale and muted description of the raucous encounter between the big Boomer and the puffy Staiman. Everybody in the neighborhood of the hearing room became well informed about the wrath of a freeborn citizen with powerful lungs who was just trying to do his duty.
When Mollenhoff discovered that Dean and Nixon had passed on the material he had given them in confidence, while withholding it from me and my lawyers, he erupted again. He bundled up documents he had saved from his White House days, along with copies of his letters to Dean and Nixon, and sent them to me.
Righteous indignation was not his only motive, however. Beneath the public Boomer was a man with a warm and considerate nature, and his compelling reason came from there. In his cover letter to me, he said:
The tragic death of Kenneth Cook and the memory of his last visits to my office leave me with no alternative. I do not want to be in the position in your case of asking myself later if I might have done more to correct an injustice, and know the answer I would have to give myself if I remained silent.
I knew how Clark felt because I too had been strongly affected by Kenneth Cook's death. Cook had been an Air Force weapons analyst, a mathematician and physicist with a fine record for evaluations of advanced weapons systems. His downfall came when he made an accurate and damning study of plans for some useless and very expensive secret weapons that his Air Force superiors favored. Under pressure from them, he refused to alter his analysis. So against Ken Cook the military used the cruelest kind of KGB tactics: they declared him mentally incompetent. Two civilian psychiatrists who examined him contradicted the allegation, and even the Air Force's own top psychiatrist found him nothing more than a "perfectionist" who was "relatively inflexible" in defending his views. I had some personal knowledge of the idiotic proposals Cook had examined, and he would have had to be insane to approve them.
I had learned about the Cook case when I was a consultant to Congressman Jerry Waldie's civil service subcommittee. We were told that the Air Force was indeed permitted to declare someone mentally incompetent without getting a psychiatrist's opinion! All it took were statements by three people equal or superior in rank to the victim. Or the local military sawbones on his own could declare a government employee mentally incompetent. (After the Cook case and other outrages, the rules were changed: a psychiatrist had to make the finding.)
After he was fired, Kenneth Cook found it almost impossible to get a job. The ACLU gave him some legal help, but the legal bases for his mistreatment were unclear. Most judges supported the idea that there was no recourse beyond a review by the Civil Service Commission, that pliant creature of the executive branch.
Cook tried hard through legal and political means to get the decision reversed, but politicians and officials alike were indifferent or hostile. He did valuable volunteer work for public-interest groups and members of Congress, helping to debunk the antiballistic missile proposals.
Eventually his slim resources ran out. When he fell behind in paying his property taxes, his home in New Mexico was auctioned off, in spite of public outcry. The sale brought him a check for fifty-seven cents. I saw him the day that happened, and when he showed me the ridiculous check, that strong man broke down and cried. He was never the same afterward. He went through the motions of fighting his case, but despair and poverty began to crush him. He ate only one meal a day. Having no bus fare, he trudged miles between his rented room in Virginia and the congressional or executive branch offices he haunted.
Though I was only partly employed myself, I bought him lunch whenever I could. Clark Mollenhoff did even more. Cook stopped at Mollenhoff's downtown office frequently, and Clark would take time out to buy him a meal and drive him to his next destination.
One January day in 1973, sick, ragged, and weak, Kenneth dropped dead in a department store across the street from Mollenhoff's office. He was just fifty-nine. Aside from a few old clothes and books found in his room, his entire estate consisted of the seven dollars and thirty-two cents in his pocket.
From Ken Cook's sad story, I learned not to be obsessive about injustice. I would fight hard, but I wouldn't let the fight consume me. I learned to close "the case" off in a separate compartment of my mind. Above all, I learned that you can't fight long without friends and allies. And I had some of the best. My skillful lawyers, along with men such as Mollenhoff, Proxmire, and Dickinson, were beginning to turn the tide in my civil service case. And when we finally beat down the absurd attempt to apply executive privilege to him, the Boomer in full basso profundo at last came into Court.
On April 2, 1973, a long New York Times editorial described Mollenhoff's testimony. After noting that he "cut sharply through the double talk and obfuscation with which the White House and the Air Force spokesmen have muddied the case," the Times asked:
Do the military believe that the protection of official extravagance, inefficiency, and collusion with the contractors is vital to national security? If that is prevailing doctrine, then Congress and the American people might as well resign themselves to giving the Pentagon a blank check. ... It is particularly disconcerting that so many members of that cast have played important roles in a succession of alarming episodes -- from Watergate to I.T.T. to Fitzgerald. All these episodes have in common the arrogant use of executive power, the aggrandizement of special interests, and the deception of the American people.
In the April 4, 1973, issue of the Washington Post, columnist Nicholas von Hoffman had a colorful description of the Mollenhoff intervention:
The Big Boomer had fought his way to the witness stand and was letting fly: a good public servant is getting the axe because of the conspiracy in the Air Force ... the scoundrels in the Air Force are trying to frame Mr. Fitzgerald ... the brutality of the military bureaucracy.
Mollenhoff, he added, was a "loudly honest man," and the hearing "had the polite, slightly nasty decorum of an ecclesiastical trial's certainty of foregone conclusion, of a priori judgment." Von Hoffman continued his Inquisition metaphor:
Each time the Big Boomer would let go with another epithet, Colonel Teagarden, the Air Force's lawyer, would coil backward and, like a prosecutorial abbot, turn his head away and smile the corners of his mouth downward in sweet disdain. He and the government had tried to keep the heretical Mollenhoff from testifying, but he was there, bellowing reproofs at them, so they tried to make him out as a maniac with a crazy hair inside irritating his gut.
By this time the government's case had begun to wither. Air Force Assistant Secretary Spencer Schedler appeared on the stand with a severe loss of memory. He couldn't recall his conversations just prior to his testimony to Proxmire's committee. Under sharp examination by my lawyers, though, he was forced to admit that he had not told the truth before the committee. Like Seamans, he kept refusing to answer on the grounds of executive privilege. Forced into a corner by Bill Sollee, he had to concede that he had violated the federal criminal statute against corporations lending employees to political campaigns and continuing to pay them as if they were doing their regular jobs. (As I noted earlier, Schedler had worked on the 1968 Spiro Agnew campaign -- he was on the payroll of the Sinclair Oil Company at the time.)
From the day he became dictator Mussolini began paying back the men who paid him in 1920. He abolished the tax on inheritance, for example, because it was supposed to end big fortunes, and that of course meant loss of money for the rich, who had in a body gone over to Fascism after 1922. But Mussolini did not have the courage to abolish the political democratic system all at once, and he had many opposition parties which criticized and attacked him. His chief opponent was the Socialist deputy Matteotti.
The reason Matteotti had to die was because he committed the one unforgivable crime in a Fascist nation: he exposed the profits in Fascism.
There is no program, no policy, no ideology and certainly no philosophy back of Fascism, as there is back of almost every other form of government. It is nothing but a spoils system. We too in America have a spoils system, which is talked about every four years when a President is elected, and sometimes when a governor is elected, but this refers largely to a few jobs, a little graft, a considerable payoff for the boys in the back room of politics. It is also true that we in America have ruling families, men and corporations who put up most of the money for elections, and do not do so because one candidate has baby blue eyes and the other is beetle-browed. It is done for money, and the investors in politics are repaid. But Fascism is a system whereby a handful of ruling families get the entire nation.
It was Matteotti who discovered in 1924 that Mussolini, who had "marched" to Rome in a Pullman sleeper in 1922, was beginning to pay back the secret forces which had paid the money to put Fascism in power.
On May 27th, a few days before he was kidnapped and assassinated by Mussolini's gangsters and family friends, Matteotti denounced in the Italian parliament a law which would have given a monopoly in oil to the Sinclair firm -- the same corporation run by Harry Sinclair which was involved in the filthy muck of the Teapot Dome Scandal, and incidentally the same Harry Sinclair who told Dorothy Thompson that he and his associates put up most of the money to buy the Presidency of the United States every four years.
On June 10, 1924, when the entire front pages of the American press were given over to the Loeb-Leopold case in Chicago, Matteotti was killed by Mussolini's own orders, and not a line appeared in most newspapers. On the 16th Arnaldo, brother of the Duce, printed a warning in his Popolo d'ltalia against public clamor for an investigation of the murder, saying such a request was in reality a demand that Mussolini abdicate. But the London Daily Herald told the truth. Matteotti, having challenged the Sinclair oil deal, had prepared a documentary expose proving that Balbo, Grandi, Arnaldo, Mussolini himself and the biggest men in the Fascist government had been engaged in a tremendous graft and corruption deal in relation to the oil monopoly.
For all this the Undersecretary of Home Affairs, Finzi, was made the scapegoat; the evidence was plain that he was among the grafters, and as he was also one of the big financial profiteers of a Fascist law legalizing gambling, he resigned in an uproar. In apology the Roman press said that "thousands of jailbirds have joined the Fascist Party since the March on Rome," and that Finzi was not a good party member.
Finzi was a small shot. Matteotti was using the Sinclair oil graft scandal to hit at the big shots, and the Fascists were throwing Finzi to the mob to save the real profiteers of the system. Matteotti had prepared a documentation which showed that the big bankers, the great industrial baronies such as Ansaldo, the great landowners and the war profiteers who had made billions while Italy hungered, were to be given the wealth of Italy.
-- Facts and Fascism, by George Seldes
FIRMS WITH LINKS TO THE ORDER AT, OR NEAR, 120 BROADWAY IN 1917:
120 Broadway: Sinclair Gulf Corp.
-- America's Secret Establishment -- Introduction to the Order of Skull and Bones, by Antony C. Sutton
It may have been coincidence, but Schedler was gone from the Air Force a couple of months after his embarrassing testimony, and Seamans left a couple of weeks after that. Was the Air Force quicker to correct public relations mistakes than billion-dollar procurement bungles?
The government's case had turned into an evidential disaster. Seamans had invoked executive privilege fifty-four times, and his assistants had used it repeatedly. Factually and morally we had won, but after three and a half years of the Civil Service Commission's brand of legality, I had the sinking feeling that my effort to be reinstated was doomed. Every indication was that Examiner Staiman was under orders to let the Air Force off the hook.
I didn't realize how much the tide of events in the larger world was running in our favor that spring and summer. Richard Nixon's Watergate stonewall was beginning to collapse and, unbeknownst to us, John Dean was spilling his guts to the staff of Senator Ervin's committee.
The Watergate inquiry produced some small glimmers of light on my case. Dean told Ervin's committee in public testimony that Nixon had asked him to look into my case but that he had been fired before he had done much investigation. His assistant, David Wilson, however, had "a rather extensive file" on me. Senator Inouye wanted to call Wilson as a witness and to dig more deeply into the case, but Ervin overruled him. On June 29, 1973, Bodner requested that file.
Wilson, the file revealed, had tried to reconstruct the circumstances of my firing. There was plenty of documentary evidence that Seamans had consulted frequently with White House people (especially Bryce Harlow) about firing me. As for executive privilege, the Justice Department had told Wilson that Seamans had invoked it improperly, quite without authorization.
If there is any lesson from Watergate and from my case that the American people should remember, it is that executive privilege is usually the hideout of scoundrels. I think Nixon himself summed it up with remarkable clarity when he told Ehrlichman, "You should have the most god-awful gobbledygook answer prepared. Just put it out on executive privilege. Something that will allow us to do everything we want."
After Dean and Wilson left the White House in early 1973, Fred Fielding and Dudley Chapman picked up the Fitzgerald case. On July 9 Chapman delivered a report to Leonard Garment. The uncensored portion that we have gives a straightforward account of my Proxmire committee testimony, an admission of Nixon's hand in my firing, and the remarks about my "acerbic personality" quoted in Chapter 3.
The Chapman Report, as it was known, seems to have been widely circulated in the White House. It produced this reply to Garment from Pat Buchanan:
Fitzgerald has gone through enough, the CSC hearing is doing us no good whatsoever; there is a good measure of justice in Fitzgerald's complaint, and the president would be well served by a speedy and just, if not charitable, resolution of the matter. ...
Perhaps we should get together quietly with Fitzgerald and his attorney and find a resolution satisfactory to him -- and not damaging to the president's interests.
Nothing came of this, although the suggestion was taken up with Melvin Laird, as Buchanan requested. The wrongdoing had been proved over and over again, and it was clear to everybody who knew anything about the case that the administration was guilty. Why, then, did they persist?
I believe that the reasons went far beyond my individual case. I believe that the president himself might have made amends (or so Buchanan told one of my lawyers). But the major principle at stake was that of omerta. The military spending complex simply had to banish the man who broke silence, the maverick who couldn't be trusted to lie. Let him back in and there goes the neighborhood. If my ordeal demonstrated a second lesson to the country, that, I hope, would be it.
In the meantime, in another part of the forest, a different dark force, generally known as the Internal Revenue Service, was at work. On the Watergate stand John Dean revealed how the Nixon White House plotted to use the IRS Special Service Staff to "screw" Nixon's enemies. The infamous White House draft memorandum of August 16, 1971, "Dealing with Our Political Enemies," laid out the objectives:
This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration. Stated a bit more bluntly how we can use the available federal machinery to screw our political enemies.
It went on to say that the tough guys on the staff (Colson, Dent, Flannigan, and Buchanan) should select the victims. The favored agency to do the screwing was the IRS, but -- and this would have come as news to the National Taxpayers Union -- the Nixon hit men considered the IRS too fair and objective. The undated (probably summer 1971) "I.R.S. Talking Paper" describes it:
The I.R.S. is a monstrous bureaucracy, which is dominated and controlled by Democrats. The I.R.S. bureaucracy has been unresponsive and insensitive to both the White House and the Treasury in many areas.
In brief, the lack of key Republican bureaucrats at high levels precludes the initiation of policies which would be proper and politically advantageous. Practically every effort to proceed in sensitive areas has been met with resistance, delay, and the threat of derogatory exposure. New plans were laid:
(A) To accomplish: Make I.R.S. politically responsive. Democrat administrations have discreetly used I.R.S. most effectively. We have been unable.
(B) The Problem: Lack of guts and effort. The Republican appointees appear afraid and unwilling to do anything that could be politically helpful.
- We have been unable to crack down on the multitude of tax exempt foundations that feed left wing political causes.
- We have been unable to obtain information in the possession of I.R.S. regarding our political enemies.
- We have been unable to stimulate audits of persons who should be audited.
- We have been unsuccessful in placing RN supporters in the I.R.S. bureaucracy.
The agreed-on solution was to lay down the (illegal) law to IRS chief Johnnie Walters. From now on he was to cooperate with White House hatchetman Fred Malek to "make personnel changes to make I.R.S. responsive to President" and was to take on discreet political action and investigations himself.
Along with all the other good stuff he revealed about the exploitation of the IRS, Dean disclosed the "enemies list." But Dean never made clear (in public, at least) what was to be done to the enemies. It took a later and much lower-key investigation by the Congressional Joint Committee on Internal Revenue Taxation to smoke out the actual operation of the IRS hit squad, the Special Service Staff.
It may be that some of the well-known Establishment figures on the enemies list were set upon by this hit squad, but I saw no evidence of it in my glimpse of the operation. The squad did make an effort to nab me.
The first entry in the Special Service Staff dossier on me was a clipping, an October 10, 1971, column by Clark Mollenhoff asking why my Civil Service Commission hearing was still being held behind locked doors. From that point on the staff collected information on my legal adventures. Years later John Bodner, whose name appeared in most of the news stories about me, told me he had been audited nearly every year after he took my case.
When the IRS learned that one of my vehicles for opposing wasteful military spending was my chairmanship of the National Taxpayers Union, they sicced the FBI on the NTU. And they targeted NTU's executive director, Jim Davidson, and our adviser, Bob Kephart.
As for me, the Special Service Staff for quite some time made the mistake of targeting Edward Fitzgerald instead of Ernest. (I often wondered what the IRS and the FBI did to poor Ed. Perhaps they went after him for not reporting the royalties from his translation of The Rubaiyat of Omar Khayyam.)
I must admit that the Staff was bureaucratically neat. They divided the enemies to be screwed into separate groups. Since there didn't seem to be a "whistle blowers" file for me, I was lumped with the NTU, Davidson, and Kephart as "Affiliation: War Tax Resister." My dossier contained several government memorandums explaining what war tax resistance was and who practiced it: Quakers, pacifists, and a group that included Bradford Lyttle, Allen Ginsberg, Pete Seeger, and Kenneth Love. But we of the NTU were in an even more dangerous subsection of tax resisters -- all-tax resisters. As the file notes, the NTU "opposes all taxes, not just those for war."
The Staff was also watching my assistance to Representative Waldie, who was trying to squeeze some fat out of the federal employees' excessively high Blue Cross-Blue Shield Insurance premiums. Doubtless a subversive activity. An anonymous source denounced me as "a troublesome pinch penny." There was some truth to that.
But then came a most embarrassing entry in my file: "Current transcripts reflect taxpayer has filed and paid income tax for period 1971. Overpayment of $1,835.46 has been applied to the 1972 taxable period" (emphasis added). How could I pose as a dangerous radical with that on my record? Would my bolshie friends at NTU ever speak to me again if they knew? Thanks to my supercautious accountant (my wife, Nell) and my ultraconservative tax preparer, I was in the clear. The IRS hit squad persisted with repeated "desk audits," investigations, and close surveillance of my activities, but they lost heart about the time my civil service hearing was declared open. (After Nixon's overwhelming victory in November 1972, the White House dropped its attempts to block Judge Bryant's June ruling that my hearing should be open.) At that point the file peters out.
On August 1, 1973, the team of Nixon and the military irretrievably lost the phony civil service case against me. Again the Watergate investigation produced the evidence, and Senator Inouye brought it out. During Robert Haldeman's appearance on the stand, Inouye introduced the "let him bleed for awhile" memo from Colonel Butterfield to Haldeman. Though Haldeman's lawyer protested, Senator Ervin ruled the line of questioning relevant because it touched the issue of the loyalty owed by staffers to the president even when he and his associates were engaged in illegal activity. It was a key issue in the whole Watergate affair, especially after Butterfield's disclosure of the Oval Office taping system on July 16, 1973.
Haldeman waffled, stalled, and dissembled about White House involvement in my firing. He did not reveal what we later learned, that the Butterfield memo had been the result of a what-to-do-with-Fitzgerald meeting among top White House plotters in January 1970. But Haldeman also -- probably inadvertently -- did us a favor by suggesting clearly that Butterfield's attitude toward me sprang from his loyalty to the brotherhood of Air Force officers. It gave off a strong whiff of conspiracy.
After the disclosure of the Butterfield memo, civilians in the White House and the Pentagon began to show a desire to settle with me. The welter of staff memos we later acquired through legal discovery told the tale. It was suggested to Leonard Garment that the president let bygones be bygones. Peacemaker Mollenhoff met with Laird, now a special assistant to Nixon, and urged that I be reinstated. Laird seemed favorable; even Schlesinger, Laird's successor at Defense, weighed in for a resolution. His assistant, Marty Hoffman, called the White House and offered to help make peace. Apparently this brought a strong negative reaction from the diehards, and Hoffman next proposed that I be stowed away at the Department of Health, Education, and Welfare (HEW).
The civilians could propose, but increasingly the military were disposing. Al Haig, now a four-star general, had succeeded Haldeman and was fast becoming the real master of the White House staff. As students of the Nixon era will recall, Haig had been Kissinger's assistant at the beginning of the administration and had installed the illegal wiretaps for Kissinger; it's no surprise that he opposed any concession in my case.
One of Bill Sollee's sources was a secretary in the White House who was secretly sympathetic to us. Notes she gave Sollee showed that even Air Force General Counsel Jack Stempler leaned toward a settlement, sensing that he was about to lose the civil service decision. Even so, Stempler (who didn't know me at all) insisted that I was "unable to work with anyone." The White House civilian staff, now a rather different group from that of the Haldeman-Ehrlichman days of arrogance, wouldn't accept that. What scared them was the real possibility that Seamans's lies about my leaking classified documents could bring on a libel suit.
Our White House sources also told us that the staff feared a criminal action against Seamans because it was a crime to retaliate against an employee on the basis of his testimony before Congress or to obstruct a congressional committee. A White House summary memorandum commenting on my lawyers' closing CSC brief noted that the publicity surrounding my case could even hurt the administration's chances of getting what it wanted in the new defense budget. "It makes ... sense to enlist Fitzgerald's skills in correcting the things he criticizes to the extent that they exist."
That was a naive view. The civilians in the White House simply had no idea how gluttonous and fat the military beast was. The military, on the other hand, had a good idea of the scale of the stealing that was going on. At that point it seemed to be a standoff. Then, suddenly, everything began to change.
On September 19, 1973, I was working on a writing project in my office at home when Bill Sollee called and said, "You got your job back." The Civil Service Commission had ruled that I'd been improperly fired and must be restored to duty with back pay. Senator Proxmire's office phoned with his one-word reaction, "Hallelujah!"
I was euphoric. I had won what I considered the patriotic battle, and I had also won a very personal battle. The firing and the years of financial insecurity had been stressful ones for my family. Most of my time had been taken up with legal questions; my part-time earnings in 1973, for example, had been just $6,000. The oldest of my three children was just starting college. The promise of back pay and a steady income was a godsend. Too good to be true?
Of course. As soon as I saw Staiman's written decision, I had a great sinking feeling. He admitted that my firing had been illegal, but he attributed the firing to the Air Force's unhappiness about publicity surrounding my loss of tenure following my C-5A testimony. No witness had ever even suggested this cause and effect. It was a phony verdict meant to stave off the possibility of a criminal prosecution.
Although he restored my job, Staiman denied me everything else. The derogatory information would not be expunged from my file. I was awarded no damages, costs, or attorneys' fees for our enormous expenses in fighting United States government injustice.
Bodner argued powerfully against the decision, citing the testimony of General Cappucci, which -- against interest -- showed the falsity of the Air Force case. But the Civil Service Commission, having dared as much as it wanted to, left the rest up to the Air Force.
The details of my reinstatement were now split between the civilian secretariat of the Air Force and the military Air Staff, which controlled everything except the question of whether to appeal the CSC ruling. The new secretary of the Air Force, John McLucas, decided to stall on that question until the last minute. Finally, on October 3, the Air Force announced it would not appeal. The main burden of the rear-guard battle fell on the Air Staff, which had determined to oppose me at every point and to make me and my lawyers expend time and money on every niggling detail of my return to duty.
I was mortally tired of this unequal fight. I had come to view the opposition as incredibly powerful, corrupt, and dishonest. I could think of few eras in American history when one organization so dominated its province as to be above criticism and above the law. There was the period of the big city bosses -- Tammany and Boss Tweed in New York, for example -- and the time when the Capone gang made the Chicago area virtually a warlord's fiefdom. And there was the era when the robber barons controlled a large part of the American economy. But heretofore in our history we had always made the military answerable to civilian laws and direction.
I have laid out the many small details of my case to illustrate a new development in our history that most Americans are scarcely aware of. In other banana republics the military comes to power with a sudden coup and the installation of a junta. Here it is different. Power in America is not a matter of controlling the police forces and the media. America runs on money. And the military has quietly come to vast economic power by taking vast amounts of the federal income for itself.
I decided to try to enlist the support of Senator Harry Byrd, Jr., of Virginia. I had long been an admirer of the tightwad instincts of the Byrd dynasty, which had dominated Virginia politics since the New Deal days. They had kept the state debt-free up to the time I moved there. The elder Senator Byrd, Harry, Sr., had fought some good battles. He had exposed the government stockpiling of tons of feathers (yes, feathers), and he had pointed to its stockpiling of spruce lumber for the construction of aircraft when spruce had not been used in airplanes for forty years. Senator Harry Byrd, Jr., with some of the same tightwad ideas, had played a big part in defeating the subsidy for the supersonic transport.
When I called on him, Senator Byrd promised to help. This led to a meeting with Jack Marsh, an assistant secretary of defense, and then Marty Hoffman and Hugh Witt of Schlesinger's staff. Hoffman and Witt had put their heads together, and they had a terrific deal for me. I'd work in a part of the Pentagon where I'd be separated from my "enemies" in the Air Force. I'd be assigned to a Department of Defense commission to study the standardization of small hardware parts.
Did they mean nuts and bolts, I asked.
They stammered a bit and finally said, "Well, yes."
Hugh Witt became agitated. He said, "I know what you're going to do. You're going out to tell everybody that we tried to put you in deep freeze by assigning to you a commission to study nuts and bolts."
"Well," I said, "isn't that what you're doing?"
They began to argue that the commission would study more than nuts and bolts (screws and washers?) and that it was an important subject.
I agreed as to the importance, but I pointed out that professional organizations such as the American Society of Mechanical Engineers and others had already done the job.
In the end they asked with embarrassment that I not tell anyone about their proposal. Until this writing, I have kept their secret.
Meanwhile, with the Air Force stalling on appeal and the secretary of defense dithering, President Nixon expressed the "hope," in a September 19 memo from Garment via Nixon assistant Jerry Warren to Ziegler, that the Air Force would not fight the CSC decision. The hope? Nixon was commander in chief of the armed forces.
On October 17, 1973, I was summoned to the Pentagon for a most interesting interview with William Woodruff, the new assistant secretary of the Air Force for financial management. I had plenty of reason to be dubious about this man, who had been an assistant to Senator Richard Russell of Georgia at the time of my testimony on the C-5A -- which was assembled in Georgia by Russell's constituents. Woodruff was also an old crony of General Pete Crow -- they had worked together to minimize my C-5A testimony -- and Crow, now assistant vice chief of staff of the Air Force, was top bird in the Air Force military bureaucracy.
Despite our past differences, I planned to start off on a positive note with Bill Woodruff. I asked him what goals he aimed for in his new job. If they were good, I told him, I wanted to help achieve them.
"What do you mean?" he asked. "Goals?"
"What do you hope to achieve?"
He dithered for a minute. Finally he said that he wanted "three years of good service."
Translation from the bureaucratese: retirement with a higher pension at the end of three years. Government retirement pay is based on the three highest-paid years of one's career. He was now making more than he'd ever made as a staff assistant in Congress.
Another of his goals, it developed, was to deny me my old job. I was astonished. I pointed out that the CSC ruling required the Air Force to return me to that job "as though the adverse action had never taken place."
Woodruff began to lecture me sternly. "I cannot erase the stigma on you," he said. I was "under a cloud." There were "a lot of people who do not consider you a good employee." He added that he could make it possible for me to do a good job and "erase those clouds."
I had been under the misapprehension that I, at great expense of time, energy, money, and stomach lining, had won a decision.
He said that I would have to prove myself before I would be allowed to do anything with major weapons systems. "Surely you don't think I would let you look at the B-1 bomber?" he asked.
"Why not?" I said. "From what I hear, it's as fat as a goose."
Not exactly the most diplomatic thing to say. Woodruff noted that Pete Crow and the Air Force military comptroller, General Joe deLuca, would have to approve before I could go back to my old job. I'd also been demoted: I was now to report to Woodruff's deputy, Thomas Moran.
I decided to see whether I could work something out amicably with Moran. When I asked him what his goals were, Moran, a senior apparatchik overdue for retirement, said with refreshing honesty, "My goals are just to answer the mail."
I finally got an audience with the great man himself. Secretary McLucas seemed passive and completely detached. Almost dreamily, he let me know that he was "deferring to the staff," and if I didn't like it, I could appeal to the Civil Service Commission.
I didn't like it, and my lawyers did appeal, but we did not learn until later in legal discovery that the Air Force had already colluded with the Civil Service Commission to approve my assignment to a minimal job. Given what the Air Force had on CSC Chairman Hampton (Seamans had involved him in the secret plot against me back in 1969), only minimal pressure was needed.
The lesser job assignment put me in a dilemma. If I refused McLucas's order to report for duty in the make-work job, I could be fired for not following orders. If I accepted it, I had lost my long fight against wasteful spending. If I tried again in the CSC court, I would probably lose. I decided to accept a narrow foothold in the Pentagon and see what I could make of it.
On December 10, 1973, I reported to Woodruff's office, where he had gathered as witnesses eight or ten weenies from the military staff and the Air Force legal corps.
I had a little surprise for them. I had learned enough about the bureaucratic labyrinth to know that with the reduction-in-force pretense demolished, the action to fire me had to be cancelled retroactively. I told Woodruff and the assembled weenies that I was reporting for duty in my old job.
At first Woodruff was nonplussed, but the weenie lawyers came to his rescue. My old job no longer existed, they said. I had, indeed, been restored to it at 12:01 A.M. that very morning. However, at 12:02 I had been transferred to the new, lesser job. If I wanted to make an appeal, it would have to be about the 12:02 transfer. Of course they denied that the new job was a lesser one.
I imagined a scene that could take place only in the world's greatest bureaucracy: Air Force apparatchiks stealing in the dark of the night to the Pentagon. At exactly 12:01, "Rubber stamps ready, men!" Unheard-of speed in stamping and processing the documents that restored me to my old job. Then at 12:02, with an efficiency never seen in these parts before, processing the transfer papers.
Henry Durham described the end of his career at Lockheed thus:
When it became known that I might go outside with the problem, Mr. Paul Frech, the director of manufacturing, was sent to Chattanooga to see me. (Our) conversation was predictably short. The first thing he said was, "Do you know what happened to Ernie Fitzgerald, who went to Washington with some Lockheed problems?" When I said I didn't, Frech said, "He's now chief shit-house inspector for the Civil Service Commission and will never be able to get a good job as long as he lives" (Erwin Kroll, "The Education of Henry Durham," reprinted from The Progressive, 1972).