DURING MY FOUR YEARS of exile from the Pentagon, I had spent a good deal of time trudging along First Street on Capitol Hill, a route that took me past the Supreme Court building. I seldom passed without reading the words "Equal Justice under Law," carved on the portico above the beautiful Greek columns. I was forty-three when the Air Force fired me, but I was still naive enough to believe in those words. Someday, I thought, my case would work its way through all the contrived delays and obfuscations we'd met in the lower courts and be heard in the pure air of the temple of justice behind the Greek columns.
My only experience with the federal courts had been in appearances before Judge Bryant, whose well-reasoned opinions I did not always agree with but always respected. At that time I didn't completely accept the cynical ideas of my friend and part-time employer, Congressman Jerry Waldie, who used to point out that a lawyer's success was judged by the size of his fees, that the legal processes were dominated by the rich and powerful who could pay big fees, and that most legislators and all federal judges are lawyers. Ergo ... I had good reason not to agree because, although neither rich nor powerful, I had some of the best attorneys I knew of representing my case at no small expense of time and money to themselves.
After quite a bit of experience with the federal courts, I learned that the American people have no legal advocate to represent them at the federal level. The Roman Republic provided tribunes; the Scandinavian system of justice has its ombudsman; most of our states have attorneys general elected by (and removable by) the people. But the United States attorney general is the top lawyer -- not for the people but for the president who appoints him. And he has a large and powerful department prepared to battle any opponents the administration might have.
After I returned to the Pentagon in 1974, my lawyers filed two big lawsuits on my behalf, along with several minor ones. The first maintained that the Pentagon had arbitrarily demoted me on my return. The second was a personal damage suit for $3.5 million against those who had conspired in my illegal firing and the refusal to make me "whole again" afterward.
Named in that complaint were Melvin Laird, Robert Seamans, General Duward L. "Pete" Crow, Air Force Chief of Staff John P. McConnell, Colonel Hans "Whitey" Driessnack, General Joseph Cappucci, Spencer Schedler, Colonel James Pewitt, and Alexander Butterfield.
United States District Judge Gerhard Gesell was not sympathetic. In his 1977 ruling he declared that by waiting until 1974 to file suit, I had "slept on my rights" and the statute of limitations had run out. We countered by saying that during that time I had been pursuing legal remedies through the quasijudicial civil service process and interlocutory appeals to the federal courts.
We argued that vital evidence had been concealed. Judge Gesell denied us discovery on the grounds that we were engaged in a "mere fishing expedition." Although we had learned about Whitey Driessnack's role in my firing less than a year before filing suit, Judge Gesell let him off the hook with the others, saying, "It would be anomalous and unjust to allow (Fitzgerald) to begin an action against lesser fry merely because their identity and participation were earlier unknown." He ended up by granting the Justice Department's motion for dismissal of the suit.
The U.S. Court of Appeals overturned the dismissal as it pertained to the White House staff but upheld it in reference to the Pentagon people. We were left with Alexander Butterfield and persons unknown. The prospect of making the legal discovery process work was a daunting one. Far from standing aside to smile as the sins of the Republican past were brought to view, Carter's administration, with Griffin Bell as attorney general, leaped to Butterfield's defense. Justice Department lawyers represented him, and as we gradually discovered the names of the other conspirators, including Richard Nixon, the same legal aid was furnished them. (Nixon finally dumped his Justice attorneys when their incompetence became a danger to him.)
To obtain the information we needed, we had to search the Nixon papers, which were then in the National Archives, so we got subpoenas for this purpose. We assumed that the archivists were professionals, who in answer to a court order would do a professional job of finding the documents we requested. Not so. We ran head-on into the chief lawyer for the archivist, Steven Garfinkel, who proved to be a master stonewaller, evader, and escape artist. The man would haunt me for years.
Garfinkel took his legal advice from Justice Department lawyer Rebecca Ross -- who was counsel for Butterfield, the defendant! He managed to frustrate the legal discovery process all the way until September 1979, when he was still being deposed and still stonewalling. This was simply one minor example of the official obstructionism that Carter's people seemed to have learned from the Nixonian masters of the art.
Take the case of the crafty Colonel Jack C. Dixon, chief of the Air Force military judge advocate general's litigation division. On March 8, 1974 (before judge Gesell dismissed the suit), he wrote a legal memorandum that included a number of affidavits from our proposed Air Force defendants. When we eventually had a chance to compare the original affidavits with the published versions, we found that the government lawyers had tidied up the truth to make their case stronger.
Judge Gesell's role was a dubious one at times. We tried to have Pete Crow reintroduced as a defendant, partly because his two affidavits had been especially contradictory and partly because he'd had a strong hand in denying my bid for reinstatement in my original job. We wanted to look at his documents. But Gesell, through his law clerk, secretly got in touch with the opposition's justice Department lawyers to ask if Crow had indeed failed to produce some pertinent documents. Now, this is known in law as ex parte, or one-sided, communication, and it is highly improper.
The Justice Department lawyers said the general had told all, which Crow affirmed, of course, and Gesell granted a summary judgment dismissing Crow from the case. John Bodner reacted by charging Crow with perjury and asking the judge to recuse (disqualify) himself from the case. Of course, Gesell ignored the request.
One of the affidavit rewrites did cause a stir in Congress and led to some investigation. It was that of then-Colonel Whitey Driessnack (aka Secret Informant T-1), who was being nominated for promotion to brigadier general. Senator Proxmire thought Driessnack's questionable role in my case ought to be looked into. His request went from senator to senator -- to Hughes to Chairman John Stennis of the Armed Services Committee, and finally to Senator Howard Cannon, a major general in the Air Force Reserve. Cannon simply asked Driessnack if all these unpleasant allegations were true.
Driessnack delivered another affidavit along the lines of the doctored one the government lawyers had purveyed in the court proceedings. In it he said, "Beyond my role as an O.S.I. interviewee, I played no part in the Fitzgerald investigation. I had no knowledge of any events in this connection beyond my own interview." These statements were not true, as his original affidavit later showed.
At the time we didn't know that Driessnack's original, presumably candid, affidavit said:
I was aware that two other sources, not defendants in this action, were also interviewed by the OSI. They were John Badin and Eugene Kirschbaum, the men I had named during my OSI interview as the persons most knowledgeable about the PTC-AFFC contract. In fact, about a month after my own interview, John Badin came to me and told me that an OSI agent named Sullivan was waiting to interview him.... He said that Sullivan had indicated that I had given his name as a possible source in an inquiry into the PTC-AFFC contract. He asked me what this was about and asked me whether I knew Sullivan and could confirm that he was from OSI. I drove Badin over to the OSI office, briefly relating the story of my own interview as we went, and, once there, I introduced Sullivan to Badin, thereby identifying Sullivan as the man who had interviewed me, and left.
(The PTC-AFFC contract refers to an early attempt by the Air Force OSI to frame me by falsely alleging that I'd been involved in the letting of an Air Force contract to Performance Technology Corporation, a firm I had once headed.)
Driessnack's false public statements seriously obstructed our efforts to learn the truth about the scurrilous OSI frame-up attempt. Even after we established that Driessnack was secret informer T-1 for the OSI, we still did not know who the other secret informers were, or what they had said. Had we been given access to the original Driessnack affidavit, we would have known that Eugene Kirschbaum and John Badin were two of the secret informers. We would have learned early on that Badin and Kirschbaum had completely contradicted Driessnack and others regarding any possibility of my having a conflict of interest concerning PTC.
The Senate confirmed Driessnack and gave him his brigadier general's star, and in due course he got his second star, becoming a major general. But the case of Informant T-1 lingered on through two more investigations.
Complicated as all this was, the further history of Fitzgerald v. The Conspiracy is even more tangled and confused. It is a history of missing evidence, cover-ups, conflicts of interest, and plain old-fashioned lying. A good characterization is found in Senator Proxmire's speech (Congressional Record, April 8, 1974): "I can only conclude on the basis of the record in the Fitzgerald case that the Justice Department has, wittingly or unwittingly, become a party to a coverup of criminal behavior on a rather massive scale."
In another corner of Washington, Driessnack came under scrutiny as an outgrowth of an investigation of criminal conspiracy and corruption in the C-5A affair. In early April 1978, Special Agent Robert Golden of the FBI asked me to meet with him about this. I agreed reluctantly. Golden and his immediate FBI superiors wanted to pursue this investigation. I tried to dissuade him, pointing out that high government officials were involved and that Justice was defending some of the people who had made conflicting statements or had covered up material facts. To make the point, I showed him the two Driessnack affidavits (by this time, we had a copy of the original), but I said I did not wish to bring a charge. I felt that the investigation was doomed to go nowhere.
Golden was not a man to give up easily. Several weeks later he called me and proposed that I file a complaint against Driessnack in order to keep the FBI's investigation alive. No, I replied. Whitey Driessnack was, in Judge Gesell's words, one of "the lesser fry."
But the FBI men had their own agenda. On May 23, 1978, Golden's boss, the special agent in charge of the Washington Field Office (WFO), sent a letterhead memorandum to FBI Director William Webster on the subject: "Hans H. Driessnack, Major General, United States Air Force, PERJURY." The key paragraphs were:
It is the opinion of the WFO that by DRIESSNACK altering his unsigned affidavit into its present form of 4/18/74, and the fact that both DRIESSNACK and CROW'S affidavits appear to be similar, it does give the appearance that DRIESSNACK discussed these matters with General CROW prior to submitting the final form of his affidavit dated 4/18/74. If this is the case, WFO feels that DRIESSNACK perjured himself.
Special Agent Golden discussed this with Assistant U.S. Attorney DONALD E. CAMPBELL, Major Crimes, Washington, D.C., and he advised the facts warrant that a preliminary investigation be instituted at this time.
Golden proceeded with energy and apparently gathered additional compelling evidence; on June 9, Director Webster telexed the WFO authorizing it to conduct the investigation on the authority of the U.S. attorney's office. Just three days later Jimmy Carter nominated Whitey Driessnack for promotion to lieutenant general. Strange things began to happen thereafter.
The strangest of them are probably lost to history because of the destruction of documents, but thanks to my former colleague Pete Stockton, I learned most of the facts that follow. Pete was then working for Representative John Dingell and later, in 1980 and 1981, for chairmen Dennis DeConcini and Orrin Hatch of the Senate Judiciary Subcommittee. At the time these two senators were the only members of Congress interested in investigating what had happened to me.
The first curious event, which Stockton learned about from a June 15 telex from the WFO to FBI headquarters, was that the FBI sent a copy of the May 23 letterhead memorandum to the military judge advocate general of the Air Force. This, Stockton commented, was like a lawyer sending his initial thoughts and preliminary notes to the opposition's lawyer.
The next day the FBI interviewed Driessnack, who explained that government lawyers had altered his original affidavit but failed to explain why he'd then signed the doctored version. He added that the issue was moot because Gesell had dismissed the case in December -- a misstatement that was to have consequences later on. He denied that he had initiated the derogatory OSI file on me.
On the same day, June 16, the FBI interviewed General Cappucci, who muddled things even more by contradicting his previous testimony about the origin of the Air Force moves against me. This time he said Whitey Driessnack had come up with the PTC conflict-of-interest charge against me, and that had inspired the chief of staff, General McConnell, to initiate the investigation. (Cappucci's testimony before the Civil Service Commission is described in Chapter 5.) This blew away the whole rickety false structure the Air Force had presented to the commission hearings.
Suddenly, but perhaps not surprisingly (considering the gross conflicts of interest), the U.S. attorney for Washington, D.C., Earl Silbert, called from California and ordered a halt to the FBI investigation until he returned. Silbert was on record in numerous court documents as opposing me and defending, among others, Driessnack and Cappuccio (Watergate Trivia Quiz buffs will also recognize him as the prosecutor who wanted to put the burglars in jail and let the matter go at that -- getting to the bottom of the case but making sure he didn't get to the top.)
On June 19, Silbert's assistant, Donald Campbell, closed out the FBI investigation and declined, on the basis of Judge Gesell's earlier ruling, to prosecute Driessnack or anyone else. Pete Stockton relayed a quote from Golden to the effect that Campbell and the bureau were "under tremendous political pressure to close the investigation." One of Golden's superiors had told him, "You can't prosecute a general." As for the flimsy excuse that Gesell had dismissed my suit naming Pete Crow, Stockton pointed out that Driessnack had not been a party to the suit at that time, nor had the credibility of his affidavit been questioned in the dismissed suit.
Stockton interviewed Driessnack on June 20 and, though nothing new developed, there was one interesting threat. Driessnack was accompanied by the Air Force general counsel, Peter B. Hamilton, who had held a position in the DoD under Melvin Laird; he had helped defend Laird against my suit. Hamilton warned Stockton not "to reopen old wounds" because "there is evidence of conflict of interest on Fitzgerald's part." Again the attack by allegation and vague innuendo -- never substantiated but often repeated. When I tried to clear my name, I always felt as if I were trying to shovel smoke.
The FBI may have been shut up, but it hadn't given up. Stockton and Federal Times reporter Sheila Hershow reported that some people at the Bureau were willing to do a comprehensive investigation of the wrongdoing surrounding my case if the administration would agree. There was no sign of that, however, until Jack Anderson's syndicated column put a firecracker under the Justice Department on June 26. The result was that Donald Campbell suddenly discovered the Air Force OSI reports that Anderson mentioned, became aware of additional witnesses to the affidavit rigging and other shenanigans (three attorneys who had played a part in my lawsuits), and reopened the investigation.
On June 30 Campbell and FBI Special Agent John D. Stapleton interviewed erstwhile opposition lawyers Bruce Clark, a former captain in the Air Force judge advocate general's department, and John Kelson, formerly of the Justice Department's main office in Washington. Clark admitted that there were discrepancies between the first and final Crow and Driessnack affidavits and that the problem of the possible conflicts had been "cured" in the final drafts. Kelson also said that Justice had been so concerned about preserving secrecy about my accusers - T-1 through T-4 -- that "any information relative to their identity ... would have been deleted from any affidavit submitted in this matter." Stockton later commented on Stapleton's report to the FBI: "Clark and the other lawyers were the linchpins in the cover-up of the government conspiracy against Fitzgerald."
Did these rather strong indications of legal impropriety worry the Carter administration? Not at all. After Campbell interviewed Whitey Driessnack again, his report on the talk mysteriously disappeared from Justice Department files. The department was anxious to give the whole affair last rites, but the journalists kept breathing life into it.
Little by little the suppressed facts were coming out. Sheila Hershow's July 3 Federal Times article laid out some of the more striking ones. It cast a lot more doubt on Driessnack's testimony, which was contradicted by five people: civilian official Eugene Kirschbaum (Informant T-21, General Crow, General Cappucci, OSI agent Vincent Sullivan, and Driessnack's own assistant, Lieutenant Colonel John Badin (Informant T-3). But the most important conflict was that although Driessnack had known perfectly well about Informants T-2 and T-3, he had sworn under oath, "I had no knowledge of any events in this connection beyond my interview."
Whitey Driessnack was no more or no less guilty than several of the others, but because he was being promoted to lieutenant general, he became the focus of attention. On July 5, Senator Proxmire requested that Justice investigate "perjury or other criminal violations by Driessnack or others."
Apparently Senator Stennis also asked for a report, and on July 7 U.S. Attorney Silbert replied, beginning his letter with a falsehood: "In April of this year, a complaint was made by a Mr. A. Ernest Fitzgerald to the FBI that General Driessnack had perjured himself in the affidavit of April 18, 1974, submitted in the civil service matter of A. Ernest Fitzgerald v. Robert C. Seamans, Jr. et al."
I had never made such a charge. I was not then concerned with Whitey's statements to the court, which I had reason to think were prejudiced, but with his statements to the Senate. Perjury is a very hard thing to prove, whereas false statements in general, obstruction of justice, and conspiracy to perform illegal acts are easier to substantiate.
While asserting that what Driessnack said in his public affidavit was not intended "to mislead or make a false statement," Silbert did corroborate the history of the affidavit: that its first innocent draft had been passed to the Justice Department, and thereafter the government lawyers "cured" it. Silbert, of course, found no evidence of wrongdoing. And that explanation was good enough for Stennis.
But not good enough for senators Proxmire and Patrick Leahy. Proxmire asked for a delay in the confirmation of Driessnack's promotion, and Leahy threatened a debate and a roll-call vote. Leahy also wrote Stennis to say that he thought people who took reprisals against whistle blowers shouldn't be rewarded by promotion. Proxmire's letter to Justice was referred to the Public Integrity Section (PIS) of the Justice Department.
Then the old legerdemain worked again. On the basis of Silbert's letter to Stennis, Campbell closed the investigation on July 11. On July 19 Lee Redick of the PIS drafted a letter informing Proxmire of this. Interestingly, the PIS had made no attempt to conduct an independent investigation (as Stockton's later inquiries proved) but had simply accepted Silbert's vanishing trick. No questioning of those involved, no look at possible conflicts of interest, not even a review of Silbert's file. Assistant Attorney General Philip Heymann notified Proxmire in a letter that paralleled Silbert's to Stennis. That was an example of the Department of Justice under Griffin Bell.
Senator Proxmire put all his correspondence and documents into the Congressional Record; Senator Leahy now focused his efforts on trying to get me a more suitable job.
In all this close-out activity, one new note crept in. Heymann's superficial dismissal of the matter produced a falsification we had never seen flatly stated in writing. He said, "(General) Tuebner raised the conflict of interest charge against Fitzgerald." How many times does a lie have to be disproved before the Department of Justice will give up on it? The "conflict of interest charge" had to do with the Air Force contract with PTC, my former company. As I wrote in a report to the people who had helped me, Eugene Kirschbaum had several times stated that he alone was responsible for that contract and that I had nothing to do with it. Legal discovery had produced a handwritten note from Driessnack to Captain Bruce Clark saying, "I think you will discover that I was my own worst enemy -- I evidently drafted the Secretarial approval for this contract myself in Feb. 1967." I also noted that the Justice Department nowhere acknowledged that Cappucci's intensive, nationwide investigation had cleared me of all charges. But the department could neither forget a lie nor remember the truth when it came to my case.
By August 22, 1978, my senatorial supporters had accepted the close-out. Senator Leahy made a kind of valedictory Senate floor speech saying that the administration had at last agreed to "find an appropriate position for Fitzgerald ... a challenging job which will call for his special talents for protecting against the wasteful expenditure of tax dollars." He went on to say, "Those responsible for the reprisals will not be forgotten and ... they will have to contend with one angry ... U.S. Senator if they or anyone else takes similar action in the future." Leahy said he would make a trade -- he'd vote to confirm Driessnack's promotion if the Pentagon would give me a responsible job.
***
One more striking example of Justice misbehavior was yet to come. When Pete Stockton ended his consultantship with senators DeConcini and Hatch and went back to work for Congressman Dingell, Jim Phillips and Barbara Newman of Hatch's staff took over. They produced a good deal of damning evidence against the government lawyers and their clients, but the most crucial was a flagrant case of tampering.
This involved paragraph seven of the May 23 FBI memorandum about Driessnack, which said, "If this is the case, WFO feels DRIESSNACK perjured himself." The copy of the memorandum I'd obtained carried that crucial paragraph. In the photocopy that Director Webster sent to Senator Hatch, it had been scissored out, the pieces stuck back together, and the falsified document copied. (The two versions of this memorandum are reproduced in Appendix B.) In the next paragraph a blacked-out name -- revealed as Golden's in the complete copy -- had beside it the notation of the FBI censor, "b7c." (The indecipherable handwriting was that of Pete Stockton.)
This was a clear violation of Title 18, Section 2071, of the United States Criminal Code, which forbids alteration or mutilation of official records, but it seems to have raised no eyebrows.
As for Special Agent Golden, he gave me some interesting background on his part of the case (which I relayed in an August 24 report to the Senate). He said he'd been under extreme pressure from Justice officials not to proceed with the case, which was considered a "hot potato." It was revived temporarily only because of the Jack Anderson piece and pressure from Stockton.
In a later conversation with me and Indy Badhwar (who was then working for Jack Anderson), Golden gave a more detailed account of the rough handling he'd undergone. His superiors were particularly anxious to prevent him from testifying before Senator Hatch's committee even if he were subpoenaed. (Remember, these were not the bad old days of Richard Nixon and Watergate stonewalling, these were the forthright new days of Jimmy Carter.)
Golden told us he'd been really "worked over" by "Shaheen's outfit." Mike Shaheen was a high Justice Department official who had jurisdiction over the Public Integrity Section, among others. Trying to cast Golden as a scapegoat, "they went after me," he said. "Everybody from the U.S. attorney to the special agent in charge of the Washington Field Office." Donald Campbell and Carl Rauh were the henchmen, and Jack Keeney, of the Justice Department's Criminal Division, and Tom Henderson, head of PIS, were "calling the shots."
***
In the meantime my new lawyers at Hogan and Hartson, principally Peter Raven-Hansen and Kurt von Kann, were energetically pursuing the concealed evidence bearing on my damage suit. At last my persistent lawyers had obtained through discovery the Nixon White House tapes quoted in Chapter 1. Judge Gesell sealed them, but he did allow us to add Nixon and Bryce Harlow to the list of defendants on September 8. With Nixon as the target, the suit now had a better chance of making progress. Judge Gesell, who was clearly displeased at the prospect of trying a gaggle of Pentagon bureaucrats, seemed to relish the thought of bringing Nixon into his court before a jury of twelve good and true.
During this time we were also trying to get the White House to live up to its promise to Senator Leahy to put me in a more significant and useful Pentagon job. Ron Tammen, Dan Grady, and David Julyan, all Senate staffers, along with Anne Zill and other FCG members, kept the heat on. They needed to. The Carter White House had a hard time remembering such promises. Peter Raven-Hansen, Barrett Prettyman, and I finally met with Arnie Miller, the White House personnel chief, on March 20, 1979. Miller said he was treating my case as if it were a civil rights or discrimination case and he'd offer me "the next available job" on a take-it-or-leave-it basis.
As a result I was first sent over to the National Transportation Safety Board; when nothing came of that, I was told to call my old friend Susan King, then head of the Consumer Product Safety Commission. Susan was incredulous that anyone with my cost-cutting background should be sent to her. "Our whole budget is about $20 million a year," she said. "You spend more than that on the coffee spilled every morning at the Pentagon." As for technical problems, she said that the pressing issue at the moment was insecurely fastened button eyes on teddy bears, which children might chew off and choke on.
I told the White House that I did not belittle the problems of loose teddy-bear eyes, but I had no expertise in the matter. And besides, Susan had no need for me at CPSC.
Nothing more was heard from the White House until Richard Nixon, of all people, raised the issue of getting me a job. In his deposition to my lawyers, Nixon shrewdly avoided criticizing me, noted his own "attempts" to give me a federal job, and offered "to intercede privately -- on a very private basis, off-the-record basis, with President Carter, and -- so that his people can assess Mr. Fitzgerald's qualifications and perhaps find him a position which would be even better and more responsible than he had before."
Just what the White House didn't want. By the time I learned about Nixon's remarks, it was 1980; Carter's people were frantically wooing the military spenders and wanted no association with cost cutters. Once the Republicans nominated Reagan, the spenders had no more to fear. (It was a bit like the scene when the rich Roman Didius Julianus went to the Praetorian Guard camp and outbid his rival Sulpicianus in an auction for the imperial throne.)
In August 1979 I was put through eight long days of deposition by Nixon's lawyers and, thanks to excellent preparation by my lawyers, I could not be tripped up. The defendants in my suit now numbered three -- Nixon, Harlow, and Butterfield -- and Nixon was deposed twice, once in October and again in February 1980.
When the Oval Office tape recordings with Nixon's own voice were produced in 1978, his lawyers tried a wonderfully Nixonian trick. They said he hadn't been talking about me but about Gordon Rule, the Navy's chief critic of procurement. Nixon was clearly a little uneasy about this ploy. He probably realized that retaliation against two government employees was not an appealing tale to put before a District of Columbia jury. And he surely realized that the context plainly fixed me as the subject of his remarks. The second Oval Office tape we discovered ruled out Rule. On it Nixon said "Bryce (Harlow) was all for canning him, wasn't he?" But Harlow hadn't been in the White House in 1970-1973, when Gordon Rule had been most noisy in trying to keep the Navy honest. And Rule was never fired, simply transferred out of harm's way.
In the February deposition Nixon abandoned any pretense of mistaken identity. The questioning went this way:
VON KANN: And the next point that you made, that he complained about cost overruns, that's about Fitzgerald.
NIXON: That's correct.
VON KANN: And "cutting up superiors" is about Fitzgerald?
NIXON: That's correct.
VON KANN: And "not taking orders" is about Fitzgerald?
NIXON: That's correct.
Such admissions, along with the thought of having to face a D.C. jury, began to produce hints at a settlement from Nixon's lawyers.
At this point I ought to have been in the driver's seat, but I wasn't. The ACLU, which had been supporting my case since 1974, cooled off considerably, and only the intervention of my faithful supporter Ralph Temple kept our lawsuit from breaking down.
It so happened that at that time the ACLU was backing another suit against Nixon -- and Henry Kissinger. Morton Halperin had sued them for bugging his telephones while he was working for Kissinger in the Nixon White House in the early 1970s. He had already won, in U.S. District Court, a judgment of five dollars: one dollar for himself, one for his wife, and one for each of his children. As the spring wore on, there was a lot of speculation as to whether the Supreme Court would take the Halperin case and, if so, what that would do to my case. Nixon, having appointed four of the nine justices, had a good chance of winning Halperin's suit against him and perhaps even getting himself declared immune from damages in private lawsuits. If that happened, my case against Nixon was lost.
Judge Gesell set a trial date of June 4, 1980, for my lawsuit against Nixon and his co-conspirators. I began to hint broadly that Halperin and the ACLU would be most considerate to forgo their five-dollar suit so that we could proceed to trial in the District of Columbia Federal Court. My case seemed so strong on every count that even the Nixon appointees on the Supreme Court would have to rule in my favor when it finally went to them.
Along with that, Nixon and the others named faced a very real threat. At a pretrial conference Judge Gesell said that if the jury awarded me $10 million in punitive damages against Butterfield, one of the "smaller fry," he would not set it aside. After this statement, settlement negotiations began in earnest.
As usual, I was in a predicament. On one hand my lawyers -- Raven-Hansen, Prettyman, and von Kann -- were eager to go to trial. But the attitude of the national office of the ACLU to my case fell somewhere between indifference and hostility. After twelve years of this fight I was exhausted, and my family had surely felt the strain. I couldn't afford the financial and psychic costs of the trial and the inevitable, endless appeals. We decided to settle.
Nixon was willing, but the Carter people at Justice were still vindictive toward me. In order to bleed me and my supporters a little more, they refused to settle on behalf of Harlow and Butterfield. Accordingly my lawyers reached an "agreement to specify damages" with Nixon. That meant Nixon would make an immediate payment of $100,000, then a second payment of $42,000, and finally $28,000 when the case actually came to trial. The sums were subject to adjustment if the Justice Department decided to settle. It wasn't a good compromise, but it was the best we could do.
On June 20, 1980, the Supreme Court agreed to hear the Halperin case, and Judge Gesell suspended our proceedings pending the outcome of Kissinger v. Halperin, which would decide the issue of absolute immunity. Nixon's attorneys and mine notified the court that the size of the payments to me would depend on the disposition of the Halperin case and the outcome of my District Court case. In another development the Justice Department requested that the Supreme Court hear my case against Butterfield and Harlow; my lawyers opposed this in a brief to the court.
On June 22, 1981, the Supreme Court handed down its verdict in the Halperin case by punting on the second down. Justice Rehnquist had recused himself on the grounds that he had been a Justice Department official at the time of the wiretapping. His action meant that the Halperin case could proceed in the lower courts, and mine would go to the Supreme Court. The department then moved to delay Halperin's case until mine was settled.
This put the shoe on the other foot. Halperin had stood in my way and now I was standing in his. As a result I was under tremendous pressure by the ACLU and others to drop my lawsuit so that Halperin could proceed. I was told that it was my patriotic duty to drop it.
By this time my circumstances had worsened. My legal team was breaking up, with Peter Raven-Hansen going to teach law at George Washington University and Kurt von Kann moving to Los Angeles. Ralph Temple had left the local ACLU, which was threatening not to pay my future expenses, an estimated $192,000. I offered to withdraw but only if Mort Halperin really intended to take Nixon to trial.
"If, on the other hand," I said, "Halperin and the national ACLU simply want me out of the way so that they can apply pressure on Nixon for a financial settlement, I want my past out-of-pocket expenses reimbursed out of their settlement monies." With that statement, everyone got very emotional. I had apparently revealed the secret agenda of the ACLU and Halperinm Sally Determan, an ACLU supporter and the "public interest" partner at Hogan and Hartson, had a temper fit when she heard of my remark and withdrew the firm from my case.
So for the moment, I was, figuratively, sitting alone on the steps of the Supreme Court beneath "Equal Justice under Law" with a ton and a half of legal records and no lawyer.
Barrett Prettyman and Peter Raven-Hansen came to my rescue, Barrett by recruiting John Noland, a senior partner in Steptoe and Johnson, and Peter by preparing a superb summary of the enormous mass of paper the case had generated and by reviewing our brief.
Then came the great shock. The Halperin faction of the ACLU joined Nixon's side in my case! Halperin's ACLU lawyer, Mark H. Lynch, along with Nader lawyers Alan D. Morrison and John Cary Sims, filed a motion to intervene in the Supreme Court case Richard Nixon v. A. Ernest Fitzgerald, stating they would make arguments "adverse to Fitzgerald's interests," that "the Halperins agree with Nixon" that the Appellate Court should have heard my case before trial, and that that court might find "that absolute immunity (for Nixon) is appropriate to Fitzgerald."
Here was the voice of liberalism speaking loud and clear, but with a forked tongue. According to their view, bugging Halperin's telephone was a stark violation of constitutional rights, but firing me for trying to save funds belonging to the United States and for using my First Amendment rights didn't count.
The new legal coalition of Richard Nixon, Halperin, the American Civil Liberties Union, and Ralph Nader might seem hilarious to outsiders, but it was painful for me. They alleged that my case presented "a far more attenuated Constitutional claim and one for which absolute rather than qualified immunity might be appropriate."
Then they offered the court a precedent for deciding against me. According to Bush v. Lucas (647 F.2d 573, 5th Cir., 1981), they said, civil service employees "who are fired in alleged retaliation for exercise of their First Amendment rights have no cause for action under First Amendment." Further, they told the Supreme Court that lower courts had held that "criticism of public employees of their superiors is not protected by the First Amendment."
It was a work worthy of Joseph McCarthy and Richard Nixon in their finest days, and the Nader and ACLU lawyers, having previously been involved in my case, knew it was untrue. John Noland, by patient argument, was finally able to counter this accumulation of fraud, but the damage had been done.
Rehnquist and his friends on the court must have smiled to see the liberals going on record against free speech. And Rehnquist, who as Richard Nixon's assistant attorney general had denounced whistle blowers, did not recuse himself this time.
And what had happened to the friends and supporters of free speech and whistle blowing? The only senator who dared put his name to a friend-of-the-court brief was Orrin Hatch. The only members of the House who would agree to be counted on my side were John Dingell, Robert Dornan, Barney Frank, Albert Gore, Jr., Toby Moffett, and Patricia Schroeder.
Predictably, we lost against Nixon and the American Civil Liberties Union. The only consolation was an excellent dissenting opinion by Justice Byron White.
Although the Supreme Court did rule that we could pursue the case against Harlow and Butterfield, the decision in favor of Nixon set a baneful precedent for Bill Bush's case. Bush, a brilliant and prophetic NASA engineer, had predicted that NASA's misguided policies would lead to some great disaster (as they did in the 1986 Challenger tragedy). When his case came up on appeal, the court took the advice of the Nader-ACLU lawyers and voted 9-0 against him. The court ruled that unless Congress made specific provisions to the contrary, the only way government employees could lodge a legal complaint against their bureaucratic or political superiors was through a Civil Service review. And I knew what that system of justice was like.
Jimmy Carter's civil service "reform" and Bush inspired a whole new set of repressive rules which, taken together, reduced a government employee's workplace rights to something equivalent to those of a slave in the ante-bellum South or of an Indian in the nineteenth century. Slaves had certain rights on paper; their only problem was that they couldn't go to court to have them upheld. Without a remedy, rights are meaningless.
My fortunes revived when John Bodner won a resounding victory in my job dispute. On March 31, 1982, Judge William Bryant, after rapping the Civil Service Commission's knuckles for failing to recognize that I hadn't been restored to equivalent status, ruled that the Air Force must do just that within thirty days. He also noted the Air Force's "improper withholding of documents" showing that the midnight farce I described at the end of Chapter 5 had been planned.
Bodner and I negotiated a settlement that included my return to areas of responsibility I'd had fourteen years previously, direct access to needed information, and authorization to travel to examine Air Force facilities and contractors all over the country. I was also guaranteed necessary authority.
The Air Force paid John Bodner $200,000 for part of my legal expenses. John wanted to give away the whole sum and pay the ACLU nothing, but I and others persuaded him to give the ACLU $60,000. I was promptly rewarded by more hostility from the ACLU. Leslie Harris, the local ACLU's new director, was against participating in my case against Harlow and Butterfield. As a result I had to settle for a modest amount in order to get on with my job.
Fourteen years of enormous legal effort and expense had more or less fizzled out. I felt particularly bad for the lawyers who had tried so valiantly to help me. And I felt morally bruised from all the dishonesty and hypocrisy I'd run up against.
I did have a moment of pleasure when I found out that some of the Air Force civilian lawyers who'd worked against me had been disgusted at Secretary Seamans's concealment of important evidence. (As he admitted in his deposition of September 18, 1979, he'd sent the most incriminating evidence against himself and Harold Brown to his brother at Peabody and Arnold in Boston, where it was stowed away in a safe-deposit box.) Because of that, the lawyers had wanted to suggest that I could keep Seamans as a defendant in the case. It didn't happen that way, but I was uplifted a little to see a refreshing spark of fair play in the dismal night of the federal legal system.