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Washington Lawyer

A Conversation With Joseph diGenova

From Washington Lawyer, February 2013

By Kathryn Alfisi

Joseph diGenova’s notable legal career in the District of Columbia has taken him from Capitol Hill to the U.S. Attorney’s Office for the District of Columbia to private practice, while his visible media presence has made him known far outside the Beltway. For the past seven years, diGenova and his wife, Victoria Toensing, have headed diGenova & Toensing, LLP where diGenova handles white collar criminal defense cases and represents individuals and organizations in congressional investigations.

For four years diGenova served as U.S. attorney for the District, during which time he supervised federal criminal and civil matters involving international drug smuggling, public corruption, espionage, insider trading, tax fraud, extradition, the Racketeer Influenced and Corrupt Organizations Act, export control, and international terrorism. He worked on the case involving Israeli spy Jonathan Pollard and the TWA Flight 847 hijacking case, and conducted a corruption probe in the D.C. government that led to the conviction of two deputy mayors.

In 1997 diGenova was named special counsel to investigate the International Brotherhood of Teamsters, and, as a result, he now sits on the Independent Review Board that oversees the Teamsters.

In addition, diGenova has experience on Capitol Hill. He was chief counsel and staff director of the Senate Rules Committee and counsel to the Senate Judiciary, Governmental Affairs, and Select Intelligence committees. He also served as administrative assistant and legislative director to U.S. Senator Charles Mathias.

Washington Lawyer recently talked with diGenova about his varied career, his wife and law partner, and his prominent media presence.

Where were you born?
I was born in Wilmington, Delaware, on February 22, 1945.

What was your childhood like? Were there any lawyers in your family, or did you have any interest in the law when you were young?
My childhood was pretty spectacular. My father was an opera singer and I was raised around what I call “circus” people; the people in American operatic theater are quite remarkable. Our family lived music, art, and literature; it was wonderful.

There were some politically active judges and lawyers who were friends of the family, but I had no interest in the law early on in life. I became interested in politics when I was around 10 or 12 years old, and I got a subscription to The New York Times as a birthday present when I was about 14. Politics was something that just interested me. I was fascinated by the political process.

For high school, I went to a private boys’ school called Salesianum, run by the Oblates of St. Francis de Sales, that was pretty strict. We took Latin and Greek, studied the classics, and had philosophy and cosmology classes. When you’re at a place like that, you tend to develop rather eclectic tastes. At a place where learning is so important, you don’t feel like you’re limited. I developed a great interest in the American political system through the study of the classics and American history and government.

The Kennedy election also was a great driver of my interest in politics, and as a Catholic, it seemed very important to me that there was a Catholic running for president. My family was friends with some priests from our parish who were very politically astute, and while some really wanted a Catholic to be president, others didn’t because they were afraid that Catholics would be blamed for everything under the sun.

When did you decide to go to law school?
In high school I knew I wanted to study political science, but when I went to college, it became readily apparent that you couldn’t do anything with a political science degree except teach, which I wasn’t interested in at the time. I decided that the best way to make use of my political science knowledge was to get a law degree. I didn’t have any desire to be a trial attorney or a government official; I just thought that since I didn’t want to teach, a law degree would be a good next step for improving myself and giving me some options.

I went to Georgetown [University Law Center] and enjoyed it immensely. I could have gone to the University of Pennsylvania or Fordham University, but I wanted to be at the seat of government in Washington, D.C. At the time, Georgetown Law was located on Fifth and E streets, in what was a ramshackle old building. It was at the height of the Vietnam War, and during my senior year, all classes were eventually canceled because of the invasion of Cambodia. Every day there seemed to be a riot in the city, which could make it difficult to conduct business, but I loved being there at that time. I really loved being here at the center of power and politics.

Did you know what you wanted to do with your law degree once you graduated?
No, I actually didn’t know. After I graduated, I did a clerkship with Judge George R. Gallagher of the D.C. Court of Appeals. He was an amazing mentor for me, and my clerkship may have been the single most important legal experience of my life in terms of getting me to understand more of what the law could do and what it was about. Also, he was such a fabulous judge, so distinguished and honorable, and that had a profound influence on me.

After the clerkship, I decided I needed some time to figure out what I should do next, so I went to Cincinnati and worked on this political/legal project at the University of Cincinnati for a year. Then I decided that I needed to get some litigation experience, so I went back to Washington and spoke with Judge Gallagher, who called a friend at the U.S. Justice Department and got me an interview with the U.S. Attorney at the time, Harold Titus. In those days, they didn’t have hiring committees; you got references and then went before the U.S. attorneys for an interview, and the next day you found out if you were hired. I was hired as an assistant U.S. attorney and had the time of my life.

What did you like about the experience?
It was exciting. In those days, you would learn how to try cases by being thrown into D.C. Superior Court. It was the best possible training to learn litigation and to learn about how to put a case together and about judges and juries. It was a fantastic experience. I was there for about three and a half years before I got a chance to work up on the Hill for Senators John Tower and Howard Baker on the “Church Committee,” which was investigating the alleged misdeeds of the American intelligence community. [The Select Committee to Study Governmental Operations With Respect to Intelligence Activities was informally known as the Church Committee after its chair, Sen. Frank Church.] That proved to be a wonderful decision on my part because I got to meet some great lawyers and a number of U.S. senators, including Charles Mathias of Maryland, whom I ended up working for.

How did you get to work on the Church Committee?
I was playing in a softball game on the Mall and the guy playing second base was named Mike Madigan, a great lawyer, and although we had never met before, he had heard of me from some of the guys in his office when he was asking for people who might want to go work on an investigation of the intelligence community. I slid into second base and he tagged me, and while we were standing there he asked if I would come to the Hill to be on this committee. I said I would think about it. Later, I went and and talked to him about the committee, and I was offered a job as counsel to one of the senators.

I knew with every bone in my body that this was the right thing to do. Every day was more interesting than the next; it was a changing experience for me because I got to see the inside of a Senate committee and everything that goes along with it—the good, the bad, and the ugly. I got to see how a committee functions and how personalities are so important in what happens.

As a result of the committee job, I was asked to work for Attorney General Edward Levi, who, at that point, had been appointed [by the Ford administration] to lead a committee to deal with the disclosures about FBI domestic spying operations. Then I got a call from someone who I had worked with on the Church Committee and who was then Senator Mathias’ chief of staff asking me if I wanted to work for the senator. I went and talked to them and I got an opportunity to be counsel to the Senate D.C. Committee.

This proved to be another phenomenal experience because Senator Mathias was an elegant, thoughtful, and brilliant senator. I got a chance to be on the Judiciary Committee, to do work on the Foreign Relations Committee, and, of course, the D.C. Committee overseeing what was going on in the District. Eventually, I came to be Senator Mathias’ chief of staff and run his campaign, which he won. In 1981 the Republicans took over the Senate, and Senator Mathias became chair of the Rules Committee; I became staff director and chief counsel. I learned a lot, had a great time, and made some friends who I have to this day.

You seemed to always be ready when a new opportunity presented itself. Weren’t you ever nervous or hesitant?
I’ve been very lucky and had some great opportunities. As for being nervous, once you’ve tried cases, pretty much anything else is child’s play. Besides, I’ve always had a keen interest in politics, so everything I’ve done has seemed kind of natural to me.

I was never interested in making a lot of money. I could have practiced law with my wife and son at a big firm and made a lot more money, but that wasn’t interesting to me because you can’t do the same things as when you have your own firm. Big firms don’t want their lawyers to represent the kind of people that we represent from time to time, and we’ve had some wonderful experiences representing people from inside and outside the country.

Speaking of your wife, Victoria Toensing, where did you meet her?
I met her at the 1980 Republican National Convention in Detroit. My boss, Senator Mathias, was chair of the Maryland delegation to the convention, and we were among the few members of Congress interested in keeping the Equal Rights Amendment (ERA) in the Republican platform. The senator and I went to an ERA march, and at this square in downtown Detroit, there was this beautiful woman in a Susan B. Anthony outfit selling pins that had elephants on them and read “ERA-GOP.” I asked her how much they were, and she said they cost $3 a piece. And then I asked her how many she had, and she said she had 30, and then I said, “I’ll take them all.” And when I paid for them, I also got her name and phone number. Unbeknownst to me at the time, she came to Washington regularly because she was an assistant U.S. attorney in Detroit and used to teach at what was then called the Attorney General’s Advocacy Institute in Washington, D.C., where they taught people to try cases. She was one of the premier drug-case prosecutors in the country, so she lectured about that. We got married in June 1981, about a year after we met.

When we got married, she moved here and went to work for Barry Goldwater. Goldwater had become chair of the Senate Select Committee on Intelligence and had hired Fred Thompson, who was a good friend of mine, as counsel. One day, Thompson called me and asked if I knew anybody who could conduct an investigation, and I told him I had just the person for him, my wife. He interviewed her for about 15 minutes and hired her; she was then working up on the Hill at the same time I was. Then I was asked by U.S. Attorney [for the District of Columbia] Stan Harris to be his principal assistant U.S. attorney, while at the same time my wife was asked to be deputy assistant attorney general in the Criminal Division at the Department of Justice, so we also wound up working at the department at the same time.

How did you feel about returning to the U.S. Attorney’s Office?
It felt natural to be back. Many of the senior people in the office were people who had been there when I was there years before, so it was more like a homecoming. I think it made people at the office comfortable to have someone working with them who they knew and who understood the office. I was principal assistant for about a year before Stan became a federal judge, and I was nominated by President Reagan to be U.S. attorney. It was a phenomenal experience and I’ll always be grateful to President Reagan for giving me the opportunity.

You dealt with corruption quite a bit while you were U.S. Attorney for the District of Columbia.
It was hard to miss; it was everywhere in the District at the time, but it had been pretty much neglected. It was an area where the FBI just didn’t want to get involved; we were able to convince the bureau that it was important. The city was a mess at that point. Corruption was rampant in every department—there was contract fraud and everything else you could think of. Congress didn’t want to deal with it because the politics of it was very ugly.

We just sat there and waited for things to happen, which didn’t take long. These special units we created to deal with political corruption proved to be very effective. Everything was just there, just needing to be investigated, and eventually people in government who were appalled by what they were seeing started coming forward and cooperating. Nothing is perfect, but I think we were able to have a good effect over the long haul; it certainly woke people up. Eventually, Congress began to focus more on the District; it set up a financial control board because the fiscal management of the city was a nightmare. Congress also began to conduct its oversight mechanism more readily, which was very important.

Those corruption investigations included a look at then–D.C. Mayor Marion Barry.
My office had the first investigation of him and a local drug dealer. There were no charges filed, but we convicted several of his deputy mayors of fraud and other things. When I left the office, he thought everything was going to be okay, so he dropped his guard and, of course, subsequently he was arrested at the Vista International Hotel. The truth is that we had set in motion a whole series of investigations that continued after I left the office. Barry didn’t understand that law enforcement is a continuum, and that there are a lot of people who care about corruption. But ultimately it didn’t hurt him as he got reelected as mayor and was elected to the D.C. Council.

Another case your office worked on involved Israeli spy Jonathan Pollard.
I think that was the most interesting case I ever worked on as U.S. attorney. I got a call one afternoon from John Martin, who was head of the internal security section at the Department of Justice. He told me that there was about to be an arrest at the Israeli embassy of an American civilian government worker who they suspected had been spying for Israel. He said this thing was going to move pretty quickly, so we put a team together that afternoon. Pollard was arrested and became a fascinating bit of American history; it was the first time since the [Julius and Ethel] Rosenberg case that there had been a major focus on spying by an American citizen.

It proved to be a complex, interesting case. We went to Israel twice. The first time we arrived, Thomas Pickering, who was the U.S. ambassador to Israel at that time, said to us, “I want to be very clear about my feelings. The Israelis don’t want you here, and neither do I.” Notwithstanding his unfriendly reception to a group of American officials, we did our job and did what we needed to get done, and eventually convicted Pollard and his wife. Later, we found out about a broader spying conspiracy that led to the indictment of a very famous Israeli Air Force colonel.

Also, while I was U.S. attorney, terrorism cases were located in the District, which is what happened with the TWA Flight 847 hijacking and murder of passenger and U.S. Navy diver Robert Dean Stethem. The eventual pursuit of Stethem’s murderer, Mohammed Ali Hammadi, crossed continents and ended up with an accidental arrest of him in Frankfort, Germany. My office had set in motion a series of things that would be done if he were arrested. A bunch of us went from New York to Frankfurt to conduct a lineup for the people who had been on the TWA flight, including Uli Derickson, the famous flight attendant who was so brave and saved the lives of many people on that plane through her negotiating skills.

For the lineup, the Germans went to the American airbase and got people who were the same size as Hammadi and made them up to all look like him, and then lined them all up in an interesting way. Numbers one through six would be marched out, and then their numbers would be mixed up and the same men would march out again. Then their numbers would be changed yet again, and each man would come out individually. This went on for about two hours. We had, I believe, 12 witnesses who we had flown to Germany, and every single one of them identified Hammadi even though they were in the lineup room at different times. When I asked the witnesses afterward what was it that helped to identify him, they all said, “His eyes.” He had these piercing black eyes that were so penetrating you felt like they were going through your body. The witnesses said those were eyes they would never forget.

Pollard was fascinating because of the legal and political problems with Israel and the huge damage he caused, but the Hammadi case was a fascinating adventure in international law enforcement, and it was exhilarating to watch these Americans willingly participate in an amazing effort to bring to justice someone who was a horrific murderer. To me, that was a great moment. It was also a triumph of the terrorism efforts the Justice Department had put it place.

Why did you decide to leave the U.S. Attorney’s Office?
I could have stayed longer, but I already had spent a lot of time in government and I wanted to do something else. Also, I wanted some more freedom, which you don’t have in government. I went to work for a modest-size firm here in Washington called Bishop, Cook, Purcell & Reynolds, and they were just wonderful people. I did litigation, and eventually picked up some lobbying clients. Then the firm merged with Winston & Strawn LLP out of Chicago. I was representing a cable association and another partner from Chicago was representing a rival cable association, and the firm wanted me to drop my client. I said the business of law is getting clients, not giving them up. It was a fairly hefty retainer and a pretty big-time client, so I just decided I wasn’t going to do it.

I spent the next three months trying to decide what to do while I was set up in a temporary law firm made for those of us not going with the merger. Then in 1991 or 1992, my wife and I joined the D.C. office of the Los Angeles firm Manatt, Phelps & Phillips, LLP. While I was working there, I got a call from Judge David Sentelle, who, at that time, wasn’t yet chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, but was the chief judge of the independent counsel panel that was set up to look at the Clinton passport case. He asked if I would like to take the assignment of independent counsel, and I told him I would. Soon I had an interview with Judge Sentelle and the other two judges on the panel. They were deadly serious about the significance of what was about to occur. One judge said to me that he had looked at my record and I seemed to be a fairly substantial person who has dealt with complex cases and politically sensitive cases, but he wondered if I’d be able to bring charges in a case like this that involved a sitting president [George H. W. Bush]. I told him I would, and then another judge asked me whether I would be able to not bring charges, and I told him I absolutely would, which is what wound up happening.

What is your view of independent counsels?
I became very concerned about the Independent Counsel Statute after I watched what had been done after the Iran–Contra Affair, which I thought was just outrageous. The concept of an independent counsel is a bad thing. It’s like what Justice [Antonin] Scalia said in Morrison v. Olson, which is that nothing good is going to come from giving a lawyer a case, an unlimited budget, and a single target. And nothing good did come from it. There were a series of independent counsels for the dumbest things that would have been thrown out of most U.S. attorneys’ offices in a New York minute once they got a look at the merits. The only reason these counsels existed was because the triggering mechanism in the statute was so low. They were costly to the government and to the citizens who became ensnared in them. All those people on Capitol Hill who were so excited about independent counsels when Republican presidents were being victimized by them had second thoughts when they saw Bill Clinton being ensnared. It was a very healthy thing for them to see how bad this law was.

The point of the statute was to “take politically sensitive material out of the Justice Department,” but my point of view has always been that if the Justice Department couldn’t do this job, then we were in a lot of trouble. Also, the idea of an independent counsel was to investigate a president for some constitutional offense, yet in reality these were peanut cases for every member of the cabinet and subcabinet. There were hundreds of people who were covered by this statute. When you go back and look at the structure of this statute, you have to ask yourself what were they thinking up on Capitol Hill, and the answer is they weren’t. People forget that this was Jimmy Carter’s idea as part of the Ethics in Government Act of 1978 that was a reaction to Watergate. It was bad public policy, it ruined a lot of peoples’ lives, it cost people inordinate sums of money, and it served no useful public purpose other than to wreak havoc for sitting presidents.

How did you get involved with the Teamsters union?
We left Manatt Phelps at the end of 1995 and started our firm in January of 1996, and I think my wife and I got involved in the Teamsters investigation right after that. Speaker of the House Newt Gingrich called to tell me that the House was going to have a serious investigation into the Teamsters, and he asked if Victoria and I would lead the investigation for a member named Pete Hoekstra, who was a congressman from Michigan. When we went and sat down with Pete, it was quite obvious that he did not want to be speaking with us and that he had been made to do so by the Speaker Gingrich. The first thing he said was, “Why should I hire you?” It was a rather inauspicious beginning, but then he started asking questions and we started chatting. We spent a couple of days talking to him about what a real investigation looked like and that it could get very ugly and very partisan.

It proved to be about a year’s worth of investigation that was very fruitful. By the end, the Teamsters president was thrown out of the union, there were a number of investigations and indictments, and the Teamsters was put on a course that it has stayed on. I was asked by new Teamsters president James P. Hoffa to be the union’s representative on the Independent Review Board, which under a consent decree oversees the union. I’m still on the board, along with Benjamin Civiletti, who served as attorney general under President Carter, and former FBI and Central Intelligence Agency director William Webster. This is another one of those little things that happen when you’re involved in the process and people get to know you, trust you, and have some faith in your ability.

Why did you and your wife start your own firm?
We took a look at what we had been doing, what we were bringing in, and the overhead of what law firms required, and while what we were being paid was generous, we agreed we could do better. We also wanted to have more control over our lives and take clients we couldn’t otherwise take. So we started our own firm and we’ve never looked back. We were lucky in that we already had a bunch of regular clients when we started our firm. It was a success right away, and it proved to be a very wise decision for us because we didn’t realize how limiting being at a big law firm could be. Once we were out from under that, we could do whatever we wanted and it made life more interesting and fun.

You and your wife have had quite a media presence over the years. Have you ever worried that your television appearances might hurt your credibility?
We never looked at it that way, but we’ve just enjoyed being involved in the fray. What’s fascinating is that lawyers would ask us what our other law partners thought about our television appearances because at their firms, those in charge wanted their people to be invisible. Our view was that in addition to being lawyers, we were public policy people and we’re involved in politics. We decided this was part of the practice of law, and we enjoyed it. Also, during the O. J. Simpson murder trial we saw a lot of people on television who were just legally inaccurate and it made us mad.

We have never had a press person or a public relations person, but we were always invited to be on shows. Often people would contact us after reading something we’d written and ask us to come on television and talk about a particular issue, and we always accepted. Also, with the O.J. Simpson case, we were on TV every day and every night and that created a lot of exposure. It was around this time that big law firms started hiring public relations firms to get their people on television. It certainly was a source of business for us. If you’re good on television and you say intelligent things, you distinguish yourself, and that’s a good thing. It’s also a good thing for the American people to know that there are some lawyers who are not dishonest and who are good lawyers.

What’s next for you? Do you have any plans to retire from the practice of law?
I have no intention of retiring. My wife and I enjoy the practice of law and, again, when you have this kind of control over your career, you don’t have to have things on full throttle all the time. We travel a lot, for example. We just got back from southwestern France where our daughter, Amy Toensing, who is a great photographer, was given an international award for the study of the Aborigines in Australia.

Reach D.C. Bar staff writer Kathryn Alfisi at [email protected].

Periodically Washington Lawyer features a conversation with a senior member of the District of Columbia Bar reflecting on his or her career as a lawyer. The “Legends in the Law” are selected by the District of Columbia Bar’s Publications Committee on the basis of their prominence in their profession and their individual impact on the law and the legal profession in the District of Columbia. For past interviews, visit www.dcbar.org/legends.