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Washington Lawyer

Legal Spectator: Congressional Hearings, Pardons, and Fall Guys

From Washington Lawyer, April 2001

By Jacob A. Stein

spectatorWhen I was much younger and much wiser than I am now, I occasionally found myself at a strategy meeting among older lawyers. These older lawyers were cautious in expressing their views concerning the correct strategy to solve the client’s problems. Their comments were hedged about with reservations and contingencies, the need for more facts, and a fear of burning bridges.

Although I knew it was best to say little in such elevated company, I could not keep my mouth shut. I spoke up and announced what must be done to protect our client. Then one of the group said, "It’s a good idea, and you should go with it." Notice the change in the pronoun from we to you. Being young and enthusiastic, I did not notice that switch.

The person who has the self-evident solution to a complicated problem must ask, why am I the only brilliant person in the room? Why hasn’t somebody else, not me, claimed credit for this perfect solution?

The answer is that a complicated problem is a game of Pick Up Sticks. One stick cannot be moved without producing a new arrangement of the sticks, requiring a new strategy for extracting the next stick.

On reflection, my idea on such occasions was not so good after all. In fact it was a bad idea. In addition, it would bring embarrassment to the person connected with it. With the passage of time came the realization that I had been backed into the role of the fall guy.

Now when I am in a conference room and a young and energetic lawyer speaks up with the perfect solution, I have the common decency to tell him that the idea has already been considered and rejected. Rejected because there may be subtle ethical issues involved. Rejected because the judge in the case would not look favorably upon such an approach. Rejected because it may bring on problems much greater than the ones we now confront.

Watergate used up a whole cadre of young, ambitious lawyers who offered the perfect solution to the president’s problems. These young, ambitious lawyers discovered that their leader had withheld information from them, and furthermore they closed their eyes to the dangers involved. They were the fall guys. Even an experienced person, such as John N. Mitchell, the former attorney general and Nixon campaign manager, was made a fall guy.

Wouldn’t it be interesting if we had a transcript of an Oval Office conversation when President Nixon was setting up his fall guys. As a matter of fact, we have such a transcript.

On May 8, 1973, at 12:43 p.m., a friend of President Nixon’s, Donald Kendall, enters the Oval Office and explains how Nixon can make his closest associates, H. R. Haldeman and John Ehrlichman, the fall guys.

Kendall says to Nixon: "The only thing people believe is a leak." Therefore Nixon must create a leak. He must write a memorandum to Alexander Haig and, says Kendall, in the memorandum "blister Haldeman and Ehrlichman, and this, I know, it is a tough thing for you to do." Nixon had publicly defended Haldeman and Ehrlichman, and people admired him for that. But now Nixon must think of himself.

Kendall: You give me the memorandum. I will guarantee that Jack Anderson will print it. . . . in other words you go through all the problems that you’ve had the last few months and what it meant to you to do it with Haldeman and Ehrlichman, and then you have to blister them and say that they let you down by not keeping you informed, and that you don’t want something like this happen without being informed of all the details because this attacks the integrity of the office. . . .

Nixon: I think it’s a very good idea. I’ll write something-

     How many fall guys did you count? I count two, maybe three.

As we watch the current pardon hearings, we shall see some good and honorable people discover that they had been converted into fall guys.

There was a song of yesteryear that puts it all in rhyme. The great Bert Williams talked and sang the words that follow, in the Ziegfeld Follies of 1919. The accompanying music to the song is slow and mournful, with reliance on oboe solos in the minor chords.

Now the circus played our town one day
And three Bengal tigers got away.
The manager in charge came up to me and
My friend, here’s your opportunity.
Somebody’s got to go and get them cats-
Because the tiger man is sick in bed,
    so he said.
The man who catches them alive
A real hero he’s going to be.

I said yes sir. A wonderful chance for
    somebody, I do agree
A wonderful opportunity for somebody else,
    not me.

Cubes with ebony dots
Often lead to cemetery lots.
For instance last night brought on a fight
Which finished up with fists and shots.
I was the furtherest from the door.
The others all got there before.
A body on the floor lay dead.
And through the transom someone said-
Somebody’s got to stay behind-
Somebody must remain-
So when the officers arrive-
That somebody will explain
Why our dear brother here ain’t alive.

Yes, it’s a wonderful chance for somebody,
    I do agree
Yes, a wonderful opportunity for somebody
    else, not me.

     So the next time you see a wonderful opportunity to be a hero, just hum to yourself, "Yes, a wonderful opportunity for somebody-somebody else, not me."

Jacob A. Stein may be reached by e-mail at [email protected].