For most of its history, the Department of Justice has been, as federal agencies go, a relatively obscure place, not unlike a large, musty law firm. A Harry Daugherty in the Harding Administration, the issues of Communism and corruption in the 1950s, an occasional antitrust crusade or sensational tax case put it in the limelight from time to time, but that was about it. All of that changed dramatically in the 1960s. The difference had to do partly with the personal styles of the Attorneys General, beginning with Robert Kennedy, but far more fundamentally it grew out of the great national convulsions of the time. On the steps of the Justice Department (literally, sometimes) landed the issues of race, crime, war dissent and disobedience. As a result, it has become deeply involved in the most divisive, complex domestic issues of this period.
The importance of the Department’s role in these matters goes well beyond its fairly limited capacity to resolve them. The moral suasion exercised by important Justice officials, the tone that they set—backed up by their implicit power to make things uncomfortable for various segments of the populace—can be as important as any number of laws passed by Congress. More and more, the Justice Department has become a bully pulpit. When a Justic e official speaks, for instance, on the subject of police, he knows that his cues are taken quite seriously by the police, the chiefs of police, and the mayors.
In its enforcement of the laws, the Justice Department of necessity administers selective justice. It cannot file all of the possible federal civil rights, tax, antitrust, or criminal cases. A given suit, ordinarily, is brought not so much on the merits alone, as with an eye to the law to be established, or the mores affected by a given decision. Through the actions it takes, the Department can exercise enormous economic power, affect elections, and ruin individuals. It does not have to go to court in order to be effective; a man can be damaged seriously by what one former Justice Department official calls “the simple expedient” of ordering an investigation of his taxes. It can, witli no public review, order FBI investigations on anyone, for unknown purposes. (Why did the FBI bug Martin Luther King and play the tapes to selected newsmen?) It proceeds or declines to on the basis of the famously undigested reports from the FBI, which has a talent for spying conspiracies. “The first intelligence reports you get can scare you to death,” says a former Justice man. “You don’t know for a while to be skeptical. They knit it together as if it is all being done by phone from Cuba. The Department has an important voice in deciding the Administration’s position in a wide field of federal legislation, often well beyond its literal jurisdiction. Through its central role in the selection of federal judges, it can change the directions of the decisions of federal courts. Moreover, because of its wide-ranging power and its almost total lack of responsibility for administering programs, the Attorney General, as one law school professor puts it, “probably comes closer than anyone to having the option of being the personal gun of the President.”
The new team at Justice
During the transition, the new team at Justice, like their colleagues throughout the new Administration, struck a note of “continuity.” It is clear, however, that the new men at Justice intend to be very different from their predecessors. Ramsey Clark was the only Johnson Cabinet officer who became a campaign issue; John Mitchell, Nixon’s campaign manager, is now Attorney General. The Deputy Attorney General— a far more important post than the second-ranking one of most Departments—Richard Kleindienst, was also a key campaign figure in 1968; Barry Goldwater proudly remarked at Kleindienst’s confirmation hearing this winter that it was Kleinclienst who in 1964 “suggested to me that I make law and order my principal issue.”
The first point that struck Washington observers about the group that Mitchell and Kleinclienst recruited for the important jobs at Justice was that so many ot them came from a background of politics. Besides Mitchell (a former Nixon law partner and until 1968 only an observer of presidential campaigns) and Kleindienst (who ran for governor of Arizona in 1964, and was director of Field operations for Goldwater in 1964 and Nixon in 1968), three of the Assistant Attorneys General were unsuccessful candidates for statewide office, two of them in 1968. In the past eight years, though politied considerations were not absent, no such politicians were appointed to similar posts.
The fact that the new group lias come under criticism within the “legal fraternity” is not in itself all that serious. Some of the strongest tt itics of Kennedy’s appointment became his most devoted fans. Mitchell and Kleindienst evidenced surprise that the question of political appointees should even tome up. “Damn lew in the law schools have had practical experience,” said Mitchell. “I think it’s ridiculous to say that someone in ‘politics’ doesn’t have the competence.” Kleindienst remonstrated: “Ramsey (dark never practiced law a day in his life.” (Clark practiced with the firm of Clark, Reed & Clark in Dallas for ten years.)
The purpose of the laws
Richard McLaren (Yale College and Law School), fifty, the new fiead of the Antitrust Division, was a fairly well known antitrust lawyer in Chicago. There was some inevitable concern that his appointment represented the fox-in-the-chicken-coop syndrome that surfaces every once in a while in Nixon’s appointments. Nevertheless, McLaren seems determined to serve his new client, government, as well as he served his former one, business, it is said often, so often that it smells of a bromide, that Republicans are more vigorous in their antitrust enforcement than Democrats, in order to show that they are not the party of big business. Yet on the whole this has been true. McLaren, a relaxed, pleasant man, maintains that he will continue the tradition. “No one wants the nation to be dominated by the 200 largest corporations.”
Johnnie McKeiver Walters (Furman University, University of Michigan Law School), forty-nine, the new Assistant Attorney General for the Tax Division, is a tall, courtly, soft-spoken South Carolina Republican who swears that he is not there because Strom Thurmond put him there, and that appears to be the case. Walters once worked in the Internal Revenue Service and was engaged in a modest tax practice in Greenville, South Carolina, He was active in bar associations and county Republican politics, and knew John Mitchell through tax work with one of Mitchell s law partners.
The ideologs of the head of the Tax Division is not all that relevant; what matters is how the Division’s resources are deployed. Mitchell Rogovin, Walters’ predecessor, believes that the Division’s energies must remain fairly evenly divided among the various kinds of tax prosecutions. “Problems can arise,” Rogovin says, “if there is a particularly heavy emphasis on organized crime. The tax laws were made to raise revenue; if the Tax Division becomes a handmaiden to an organized crime drive, you subvert the purpose of the laws. Tax becomes an alter ego of the cops, and my view is that it wasn’t meant to be that, and that the public will react against that.” Yet this is the direction in which the Tax Division is going. Asked how it would be different under the new regime, Walters replied: “You’ll find a different philosophy. As you know, the President is committed to some program against crime. One of the tools that can be used is tlie Internal Revenue laws. In the last few years, those laws haven’t been used as extensively as they might fie against organized crime or other crime.” An aide to Walters put it plainly: “The IRS is going to look for more cases, and we’re going to tell them how to do it.”
The Civil Division of the Justice Department handles the government’s civil litigation having to do with frauds, patents, torts, and so on; it might defend the Federal Aviation Agency against suits arising out of an airline crash, or defend the level of duty on plywood, or sue to recover if the government were overcharged for nails. President Johnson gave the job to the son of an important political hacker, Edwin Weisl, Jr. John Mitchell gave it to William Ruckelshaus (Princeton, Harvard Law School), thirty-six, of a prominent Indianapolis family, a former chief counsel of the Indiana Attorney General’s office, majority leader of the Indiana House of Representatives, and a member of the group which helped deliver Indiana to Nixon. It was thus that he met Mitchell and Kleindienst. Subsequently, he was defeated by Democrat Birch Buyh in the 1968 Indiana senatorial race. He is an intelligent, fait h conservative young man who is pleased to be working in a Justice Department that ”is going to be less flamboyant and less spectacular in an effort to stir people up in fostering social change.”
The most thoroughly conservative member of the new team, William Rehnquist (Stanford University and Law School, Harvard M.A.), fortyfour, an old friend of Kleinclienst s from Phoenix, is in charge of the Office of Legal Counsel, an important post. The Office advises the Attorney General, and frequently the White House, on a wide number of matters involving the government’s legal and legislative policy. Personally Rehnquist, who has worked on both Kleindienst and Goldwater campaigns, and written speeches for Goldwater, is opposed to any extension of federal power or expenditure of federal money, covering the whole spectrum of political and social issues, including civil rights. But, he observes, “We’re obviously committed to full enforcement of the laws on the books.”
The highly sensitive responsibility for enforcement of civil rights laws and for playing a major role in determining government-wide policy on civil rights was given to Jerris Leonard, a young (thirty-eight) former majority leader of the Wisconsin State Senate. He was overwhelmed by the liberal Democratic incumbent, Gaylord Nelson, in the 1968 Wisconsin election for the U.S. Senate, while Nixon and the Republican gubernatorial candidate carried the state. Leonard, who had been an active Nixon supporter, had a meteoric and controversial career in the state legislature. He once called for an investigation of the University of Wisconsin’s newspaper, the Daily Cardinal, because its editor allegedly lived in a House with Communists; the university’s Young Republicans denounced him, the regents refused his request, and the governor sided with them. After the Madison Capital Times revealed lobbying activities on the part of the Wisconsin Associated General (iontractors which were later ruled illegal by the state attorney general, Leonard was one ol those who opposed a bill to deal more firmly with such practices. “ This bill would hurt the whole construction industry,” he told a Capital limes reporter, according to the paper, “I wish I could put. in a bill to hurt the Capital limes financially.”To back up the threat, he introduced legislation to impose heavy penalties for newspapers reporting “untruthfully” about lobbying. At the time, Leonard was chairman of the powerful State Building Commission. The man who reorganized the state commission to give Leonard unprecedented power, and who served as its bond counsel, was John Mitchell. According to the Capital Times— avowedly no friend of Leonard’s— it is estimated that through state work directed to him by Leonard, Mitchell earned legal fees of about $200,000.
Leonard was instrumental in pushing Wisconsin’s open-housing law, and in enacting a strong local open-housing ordinance in his own Milwaukee suburb. Upon coming to Washington, Leonard set out to make a good impression upon nervous civil rights advocates, and he largely succeeded. Still, everyone knows that the grand policy decisions will be made by higher authorities. Kleindienst and Mitchell talk about how they will be able to accomplish more than the last Administration through “negotiation,” and how they will not act “precipitously.” They insist that despite the hints to the contrary dropped by Mr. Nixon in Miami and during the campaign, the civil rights laws will he vigorously enforced. Kleindienst may have provided the best clue as to how they intend to enforce the laws and hold the South: “Unlike your militant black group,” he said, “that’s not the only issue the South is concerned about. The modern Republican Party in the South pays attention to a variety of issues—social programs, fiscal questions, internal security, foreign affairs.”
And there are ways of softening the blows to the South. One is by emphasizing, as this Administration does, one’s intent to “go North” with civil rights enforcement. Or, at Strom Thurmond’s request, the Pentagon overruled, without consultation. the Labor Department’s Office of Contract Compliance and awarded contiacts to three Southern textile mills that had been loumt in violation of lederal regulations barting racial discrimination in companies awarded government contracts. Such actions, whether so intended or not, are a signal to all federal contractors. Moreover, the new general counsel of the Pentagon, who occupies an office which can have an enormous impact on segregation around Southern militate bases, is a Thurmond man.
Cotmnispion of crimes
The three most important men in the Department are, of course, Mitchell. Kleindienst, and, because of the emphasis on crime, the Assistant Attorney General in charge of the Criminal Division, Will Wilson. Mitchell, 55, was the chief architect of the Nixon strategy of winning with the border states and the South, and writing off the cities and the blacks. Judgments on Mitchell’s management of the campaign depend upon whether the observer is impressed with Nixon’s victory, or amazed—in light of the Democrats chaos—that he almost blew it. But, notes a Mitchell aide, “Because of his position and because of his relationship with the President—I doubt if there is a major issue he is not involved in—when he delivers himself of an opinion, people do not cross him lightly.”
What troubles some here is that like many Wall Street lawyers of his generation, Mitchell has had minimal exposure to, or interest in, the country’s social problems. “Talking to John Mitchell about race,” says someone who has, “is a little like being at the Nineteenth Hole after a round of golf on a Saturday afternoon. It is that removed. He still talks about ‘the colored people.’ There is concern there, but not much understanding.”
Mitchell is invariably described as “cold,” “dour,”“unflappable,” and his long face and narrow eyes give him a prosecutorial look. He is not, however, utterly humorless, and a campaign associate says that he could be positively merry in the grimmest situations. He is a conservative, but conservatism in the law —connoting a deep respect for the Constitution, and an extra caution before acting—can mean something rathet different from conservatism in social and economic policy.
His first acts upon taking office, however, suggest that Mitchell s tenure at the Justice Department is going to be highly controversial. His proposals for controlling crime in the District of Columbia included a suggestion that lederal troops be used. That idea was quickly quashed at the White Mouse, but a proposal for preventive detention survived. Mitchell immediately ordered the use of wiretapping—an authority granted in the 1968 crime bill but which Lyndon Johnson and Ramses Clark refused to employ. (Johnson and Clark had strong ditlerences, and relations between them were deeply strained. But the rifts were over such things as the handling of demonstrators and ol Resurrection City, and reactions to Chicago—not wiretaj>ping.) Mitchell declared himself, contrary to Clark, as “not opposed to capital punishment.” Middle Justice Department, like President Nixon, waded into the problem of campus disorders, despite deep misgivings within the Administration that little could be accomplished except further divisiveness. The instrument to he used was a controversial section of the 1968 civil lights act, making it a federal crime to cross state lines with the intent to incite, encourage, or participate in a riot.
“The only interest of the Department of Justice is the commission of crimes, said Mitchell in an interview, when asked about his interest in campus disorders. “It’s the necessary intelligence that has to he obtained in order to keep track of these subversive groups that are involved. If there are subversive influences disrupting the academies, then the Department has to step in. It’s my own feeling, based on knowledge I have from different sources, that there are many wholesome kids who want to protest who are being led down the primrose path, and I think an important purpose would be served by cognizance on the part of students and universities of who’s doing what.”
Asked how he felt, the Department could help resolve racial problems, Mitchell, rather impatient with the question, replied, “After all, we re not the social agency. I think even-handed administration of the law is the most important thing we can do, Negotiation and conciliation will produce more in the long run than court action. Were going to do even more than has been done before. Asked, six [weeks alter taking office, what he had done to familiarize himself with the thinking of the black community, be replied. We have had a meeting with Clarence Mitchell. [Mitchell is the Washington representative of the NAACP.] It was limited to areas in this Department. Were not HEW or HUD.”
Wheat and chaff
At his first press conference, .Mitchell drew a distinction between “demonstrators" and “activists,” and spoke of distinguishing between them in order to prevent the latter from being granted permits to protest. Asked in an interview how he would make the distinction, Mitchell told me: “Let’s take a hypothetical case, if you had some bod) that led the militancy in Chicago and Washington, that’s a prettv good indication from their track record that they want to do the same thing. On the other hand, if it’s a genuine group that has had peaceful protest, that’s different.”What if both kinds were involved? “II you can sort out the wheat from the chaff,” he said, “the good cowboys are less likely to be induced into these activities by the militants.”
One of the most curious aspects of the new team at Justice is the close association of Mitchell and Kleinclienst. Kleindienst is as emotional and boisterous as Mitchell is cool and reserved. “Rabelaisian” is a term Justice attorneys have applied to the stocky Kleindienst, and he is, Robert Novak has written, “profane in two languages (Knglish and Navajo).”One hears stories of Kleindienst’s treatment of people which suggest both great harshness and great kindness. The now-famous charts in which Justice Department lawyers were told (in ten pages of instructions) to account for each twelve minutes of their time were Kleindienst’s doing. He has a good mind (Harvard College, Phi beta Kappa, and Harvard Law School), and a reputation as a good lawyer. Vet, as one acquaintance put it, “He has the capacity for making a very great mistake.”
The relationship between Mitchell and Kleindienst is the result of no shotgun wedding. Mitchell knew kleindienst well from the campaign, selected him as his Depute, and has given him more responsibility than any Depute Attorney General before him. In am event, the Deputy’s office is an important one: It is responsible for the management of the Department, for the appointment of personnel, tor the recommendations to the President of who should be appointed federal judges and U.S. Attorneys, for the handling of legislation.
Some of Kleindienst’s friends say that his manner causes him to be misunderstood, and that despite his Goldwater background, he is no “hard-core” conservative. “During the campaign,” says one of the campaign officials, “when some of the cool ones’ wanted to prevent Nixon from making one of his few gestures to the blacks, Kleindienst got so upset he almost quit.” Kleindienst’s energetic cultivation of the Negroes around the Department—dapping them on the back and calling them “baby"—provoked some skepticism; some thought that, as one Justice man put it, “He knows he has a clear shot at the Attorney General’s job, and he doesn’t want the blacks in this country to rise up and smite him.”
Kleindienst is in fact an interesting mix. “I’ve always described myself as a liberal in civil rights and a conservative in economics,” he said, “I grew up in a little town, Winslow, Arizona, that was predominantly Negro, Mexican, and Indian. I didn’t find out I was supposed to be superior until I got to Harvard. I come from a working family. We were poor during the Depression. I’ve been working on something or other since I was ten years old, I lived in an adobe house and had to get up at 4 A.M. to light the fire. Money was virtually nonexistent. But i didn’t feel deprived.”Nevertheless, Kleindienst believes that “if there are people who are actually hungry because they are poor, they should be led by money out of the federal treasury.” Period. “I am also disturbed by the entire denigration of Negroes, and that has to be made up for. People in the ghetto may be no worse off, but they have no hope, and they’re the ones I guess we have to take care of until they have a minimum standard of living, and that’s where it ends. Of cour>e I’m just the Deputy, Mite hell tells me once a day, he says, ‘Kleindienst, you don’t have am opinions, Kleindienst has a round, flat lace, and on this particular day was smarth dressed in a near-black suit, white shirt, and black and white tie. He talked easily and at length, chuckling often at his own jokes.
Suddenly, the affability stopped. “I’m also a very strong ami-Communist,” he said. “Part ot its derived from my Christian standards; part of it is derived from my concept of freedom. Let’s take wiretapping: any time YOU want to use electronic: surveillance on someone, you interfere with his absolute freedom. You don’t want to do it without very careful control. But when you say Communism suppresses freedom and YOU don’t want to protect yourself from that, you’re creating the very conditions in which you might lose your freedom.”
“Let’s take these students,” the Deputy continued, his voice rising. “I would encourage students to probe and seek, up to the time they would close down the institution which gives them freedom of expression. If you can show a concerted form of activity of a subversive nature where people similarly inclined spread throughout the country to fan this, then it becomes the role of the federal government to suppress that form of subversive activity.’ He brought up the SDS. ”If that or any group was organized on a national basis to subvert our society, then I think Congress should pass laws to suppress that activity. When you see an epidemic like this cropping up all over the country—the same kind of people saying the same kinds of things—you begin to get the picture that it is a national subversive activity.”
Kleindienst predicts the new Justice Department will he different in various ways, He would be tougher on demonstrators: “If people demonstrated in a manner to interfere with others, they should he rounded up and put in a detention camp. Ramsey Clark submitted seven names to the Subversive Activities Control Board just to keep it alive. [Actually, the move was forced by Everett McKinley Dirksen and his friend, Lyndon Johnson.] We’re not going to just keep it alive,” Kleindienst said, fairly shouting by now. We re going to give it momentum.
As if to put a punctuation mark to this promise, President Nixon surprised man) Washingtonians and alarmed many others by choosing as his lust S.A.C.B. appointee Otto F. Otepka, an anti-Conununist zealot of the Joseph McCarthy era who was dismissed bom his job by Dean Rusk’s State Department for giving classified loyalty-security files to the Senate Internal Security Subcommittee without permission. The President’s nomination was all the more surprising because the new Nixon Secretary of State, William Rogers, had refused to overturn Rusk and reinstate Otepka. The New York Times, recalling the reckless use to which raw security files were put by the McCarthyites of yore, had one word for the rise of Ot to Otepka from limbo to a job that reinstates him and, presumably, his principles, at a salary increase of $15,000 a year. The word was “revolting.”
“Draft-card burning, that’s a federal offense,” Kleindienst continued. “We’re going to prosecute it. We re tough prosecutors, as compared to social theorists. A law is a law. We’re going to look at a law and say, ‘Let’s go get it!’ ”
Kleindienst and Mitchell are proud to have secured Will Wilson as their chief prosecutor. The new head of the Criminal Division is a 56-year-old Fexan, wizened to such a degree that be appears much older, and so soft-spoken that it is difficult to keep in mind his reputation as a zealous, tough—vengeful, some say— crimehuster. As the district attorney of Dallas County, he shut down casinos and broke up gambling rac kets. As Attorney General of the State of Texas, he conducted raids on the gambling halls and red-light districts ol Galveston. In 1961, he ran, and lost, in a special election to fill the Senate seat ol Vice President Johnson, and the following year he ran, and lost, in the primary for governor. All that was as a Democrat. Along the way, particularly as a result of the gubernatorial race, in which Johnson friend John Contially returned from Washington to run, Wilson fell out with Lyndon Johnson. He is said to dislike the former President as much as any man does, which is, of course, quite a bit. When the Billie Sol Estes case came tip, Wilson took time out from the gubernatorial campaign to run his own investigation, pointing to connections between Lstes and Johnson. Then he became a Republican. (Several Democrats here are quite uneasy at the idea of a Johnson-hater in Wilson s particular position.) Wilson was suggested to Mitchell and Kleindienst for the job by Senator John Tower (Republican, Texas), and both thought he had fine credentials.
An early speech by Wilson urging hands-off control of the use of guns In police caused considerable controversy: mayors and even some chiefs of police feel that they need such controls in order to maintain community petite. In the District of Columbia alone, there were several near-riots as a result of the seventeen citizen deaths by police fire in a year and a half. Wilson, however, was not troubled l>\ the controversy. “I think it needs saying. I really think the police need support. Don’t you?”
As for the student unrest, “I think if you could get till of them in the penitentiary, you’d stop it. The ringleaders, I’m talking about. I don’t think the American public is going to tolerate the destruction of universities, or the turning them into schools for revolution, when they realize that’s what their intent is, rather than cold or hot lunches.”
Wilson has equally firm views about protesters in general: “In the area of balancing the right of dissent against public order, my heavy leaning would be on the side of public order. On the question of where does free speech move towards public disturbance, my answer would be ‘pretty soon.’ I wouldn’t be tolerant of public disturbances because they were done by people with a good cause. People who are thinking about planning something like this —a protest movement—if it comes within anything for me to do, they should keep the peace. I’d call something a riot sooner than maybe other people might. Don’t you think that’s the attitude generally of this Administration?”
—Elizabeth B. Drew