Washington Lawyer

Legends in the Law

From Washington Lawyer, January 2001

fieldingFred F. Fielding is currently a named partner at the firm of Wiley, Rein & Fielding. A 1964 graduate of the University of Virginia School of Law, he served as associate counsel and deputy counsel under President Nixon and as counsel to President Reagan.

The Washington Lawyer: What were your early years like?
I was born in Philadelphia, but I moved to the country when I was six years old, and I grew up on a farm in Bucks County, Pennsylvania. My father died when I was 11, but otherwise I had a typical American childhood: going to public schools, playing football, fishing, and working on neighboring farms after school and in the summers. Later I went to Gettysburg College and then to University of Virginia School of Law, both on scholarships.

Didn’t you spend some time in the Army?
Yes. I went straight through college and law school and then practiced law for a year with Morgan, Lewis & Bockius in Philadelphia before being called to active duty in 1965. For two years I was assigned to the Office of Security at the National Security Agency and was a captain at the time of my discharge. I then returned to Philadelphia and to Morgan, Lewis.

Did you like working for a big firm?
It was very challenging. Morgan, Lewis is a very large firm now, but it was not quite as big then. It was exciting for an associate in those days, because you got good and varied assignments and terrific training.

In 1970 you came down to Washington to work in the White House as an assistant to John Dean, who later became known for his role in the coverup of the Watergate matter and for testifying against the Nixon administration. What led you to apply to work in President Nixon’s counsel’s office with John Dean?
"Apply" is not quite the right word. It was known in Washington circles that the White House was looking for an attorney to work with Dean as his chief deputy. The large D.C. law firms all had candidates. The partners at Morgan, Lewis did not think that they had a suitable candidate in their Washington office, so they recommended me from Philadelphia. I came down for an interview and got the job. In hindsight, I was probably perfect because John Dean was a "Washington" lawyer, and I had no Washington experience. I was a litigator, but I was not a threat to him in political circles.

Much was made during the Watergate hearings about how young Dean was to be counsel to the president. Weren’t you two almost the same age?
Dean is one year older than I am. I was 31 when I started in the White House, and he was 32.

Dean described what the two of you did as building the "law firm in the White House." Was that a good description?
It was. We tried to get as many clients as we could and handle as many different problems as we could. We were willing to act as attorneys for anybody who worked for the White House. We even counseled staff people on divorce issues and 10 Filipino stewards on their immigration status. We also broke new ground. It sounds odd to say this now, but at that time there was no clearance process for presidential appointees who needed Senate confirmation. We devised questionnaires and set up a system, which is the system now in place with some evolution.

The Committee to Re-Elect the President authorized the break-in of the Watergate apartments where the Democratic party had offices-an action that ultimately led to the resignation of President Nixon. Did Dean consider you for the position of general counsel to the Committee to Re-Elect the President?
I learned afterward in Dean’s testimony that the committee had asked him to give me up to be its general counsel. But Dean declined, saying that he needed me to run his office.

The position went to G. Gordon Liddy, who is currently famous as a right-wing talk show host, and who had a notoriously cavalier attitude toward the law. Have you ever considered the might-have-beens?
I have considered a lot of might-have-beens in that whole situation.

Were you the person who told Dean about the Watergate break-in?
Yes, I told him of the news accounts that the break-in had occurred when he called me from the Philippines. I did not know what it portended, but he said he was coming right back and seemed very concerned. In hindsight, I guess he was!

Afterward you two went through Howard Hunt’s safe, the contents of which became infamous because of all the details of "dirty tricks" operations contained there. Were you surprised at the things you found in there?
I sure was. At that point we were trying to find out as much as we could about Mr. Hunt. I did not even know who Howard Hunt was, but we discovered that he had a safe in the White House basement. We went through the safe to see what was in there. There were a lot of things, including a gun.

Is it correct that Dean briefly considered throwing some of the things from the safe into the river?
No, the story about deep-sixing things in the river came later. Some of the evidence from the safe was later destroyed by Dean, although I did not know that until he testified. My responsibility was to turn everything that was in the safe over to the FBI. The deep-sixing idea came up in a meeting that Dean had with John Ehrlichman, and Ehrlichman suggested that Dean deep-six the stuff from Howard Hunt’s safe. Dean came back and told me what Ehrlichman had suggested, and I said, "That’s crazy! You can’t do that! It’s protected evidence." It was not done. I had already called the FBI and made preparations to turn everything over to them. This drama between Dean and Ehrlichman took place while I was trying to give the contents to the FBI.

Did you have a sense of what Dean was thinking when he began the coverup?
You asked the question earlier about might-have-beens. One regret I have is that I did not learn more about what was happening very early, so that I could have tried to stop people from engaging in illegal activities. The term Watergate is confusing because there were so many different activities going on that are subsumed under that one term. The problem that initially got everyone into trouble, however, was the internal intelligence operation. In retrospect, it should have been stopped. It is difficult to know, however, whether I would have had the ability to convince anyone to end it.

Weren’t the pressures on Dean pretty intense?
Dean should never have even entertained the deep-sixing idea, but instead he listened to Ehrlichman and considered it. Perhaps he immediately planned to talk to me about it and then figured he would be able to go back to Ehrlichman and say, "We can’t do this because now Fielding knows." But look, you did not have to be well versed in politics to know that some stupid things were going on. It is the counsel’s job to stop them, and instead the coverup was created.

Is it true that Dean would sometimes use your house when he was being staked out by the press?
My town house in Old Town, Alexandria, was at the corner of Queen and Union Street across the street from Founders Park. Dean had the corner town house right behind my house at Quay and Union. There were wooden fences and an alley between us. When the press was staking Dean out, the whole Founders Park would be full of press, sitting around, smoking, throwing footballs around. The thing that amazed me was the reporters could never figure out how John got in and out of his house. They never caught on that he would come to my house and walk through.

Didn’t Dean at one point write you notes because he thought his house was bugged?
Dean had just come from seeing his lawyer. That was the first time that I found out that he had consulted a lawyer. He wanted to tell me what he thought was going on, but he was writing it down as if my house was bugged. He acted like everything was bugged.

Did you think paranoia was running away with him, or was it frightening?
It was frightening because it was the first time I had gotten a sense of how serious the problem was. It became clear from his notes that he felt the president himself was involved.

Are you still friendly with Dean?
He still calls me on the phone from time to time.

John Dean was fired and later ended up spending some time in prison for his role in Watergate. What happened to you after he left the White House?
After Dean was fired, I was in charge of running the day-to-day operations of his office, while the new counsels, Len Garment and later Fred Buzhardt, dealt exclusively with the defense of the president. I resigned in January of 1974 and returned to Morgan, Lewis in its Washington office, where I built a litigation section for the firm.

How did you become counsel to President Reagan?
At the time that President Reagan took office, a new Ethics in Government Act had just passed. His personnel people hired me to advise him on how to abide by the law. I established myself as a conflicts clearance counsel in the transition team. I was not planning on going back into government. The clearance process that I oversaw was very successful, because everybody but one of the cabinet members and most of the heads of the regulatory agencies were confirmed by January 21, right after the president was sworn in. I was wondering who the president planned to choose as his counsel, because vetting that person would have been a natural job for my office. Then the president called me and asked if I would be his counsel.

Were there any lessons that you took from seeing Dean’s career unravel to your job as counsel to the president?
I learned a lot from living through and surviving Watergate. It certainly made me a better lawyer and a more effective counsel to the president. I was not afraid to tell people no. I was not concerned about any potential political fallout when I had to stop any problems that I saw coming.

What were some of the general differences between the two administrations?
It is difficult for me to make comparisons, because I was a deputy counsel in a beleaguered White House for most of the time under Nixon as opposed to being counsel to the president under a very successful presidency with Reagan. I will point out that the whole White House was different under President Reagan. Information flowed freely in the Reagan White House. On the other hand, it is easy to overlook how good most of Nixon’s staff was. The majority of Nixon’s staff people were solid and high-minded, and have made significant contributions to the public since then.

Did you have a feel for the contrasts between the two men in terms of how they perceived the presidency?
They were different. Ronald Reagan had a few, specific things that he wanted to accomplish. He was not hung up on details, which gives rise to people saying he was detached. Reagan knew what he wanted done, but he was not afraid to delegate. The Nixon management style was more rigid.

There was also a greater attempt to use the cabinet in the Reagan administration. Historically every president has had difficulty utilizing his cabinet. Ironically, in Nixon’s second term he had plans for a supercabinet with four division heads for foreign affairs, domestic affairs, etc., and then other cabinet members would report to the supercabinet member. It would have been a genuine reorganization of the executive branch.

Finally, Ronald Reagan had a keen sense of his role and how his actions might affect his successors by way of precedents.

You were in the Situation Room after President Reagan had been shot while Vice President Bush was on the plane back to Washington. What was the mood in the White House that day?
In hindsight, everything went surprisingly well. The people who were there, the cabinet members, were basically strangers to each other. It was March 30, and January 21 had been Inauguration Day.

There was, of course, the famous exchange between Al Haig and Cap Weinberger regarding succession and command authority. Haig was secretary of state and Weinberger was defense secretary. At that time, we did not know how incapacitated the president might end up being, and authority had not been turned over to the vice president. Remember, this was still the period when the cold war was on and when there were many tensions in the Middle East, so there was concern about who had command of the armed forces. After Haig tried to assert that he had authority over Weinberger and said to him, "You had better learn your Constitution," Haig turned to me for affirmation. I had to say, "No, you’re not right."

Haig also ran out of the Situation Room and interrupted a press conference and said, "I’m in charge here." His motives in doing what he did were good. He thought the press secretary was not calming the press corps and the public. So Haig ran out of the Situation Room to the Press Room. He smoked two packs of cigarettes a day and had just had open heart surgery the year before. He arrived out of breath and appeared agitated. The image ended up not being what he wanted to project at all. Unfortunately, the way it came off has followed him for the rest of his life.

A lot of people think that after a while President Reagan-
Was losing it?

Well, that after the beginning of the second term when the people who had been close to him, such as Jim Baker, Michael Deaver, and Ed Meese, stopped being his closest advisors, he lost his way. Did you have that sense?
No, I really didn’t. I was the last of the original assistants to leave. I left after five and a half years, but I never noticed any diminution of his ability to deal with issues, and during that time I had to meet with him frequently on a variety of intricate matters. While it was true the old guard was gone, most had not left government, and in any event, they were still available for him to call upon.

The biggest crisis of the Reagan presidency concerned the Iran-contra matter. The public learned that the Iranians purchased arms from the United States. The hope was that Iranians would persuade the terrorists in Lebanon to release the Americans being held hostage. Later it turned out that some of the money from the Iranian weapon sales was used to finance the contra rebels in Nicaragua. Isn’t it true that during the Iran-contra matter, President Reagan has said that he knew about the arms-for-hostages negotiations?
I would have to go back and look at the record on that because I had left the administration by that time. I think that, after the fact, he realized he had made an error. He knew that the Iranians were receiving some arms, but he did not realize the quid pro quo.

People have described him as being almost obsessed with the hostages in Lebanon. Did you get that sense?
He was incensed and outraged when the CIA station chief in Lebanon was murdered, and his heart was broken when the bombing at the Marine barracks in Beirut killed 260 Marines. He understood, however, that these things happen. I never had a sense that he would completely abrogate his constitutional responsibilities because of the hostages. It is hard for people outside the White House to understand the constant daily problems and issues that come up that require the president’s attention, but he can not let himself get too personally involved.

I remember one time we had a domestic hostage situation, where some abortion clinic owners were being held hostage by a group. The group announced that they were going to kill the owners unless the president went on television to talk to them. I went and saw the president first thing in the morning. The attorney general came over as well. After he left, the chief of staff and I spent more time with the president. The political solution was obvious. The president could not give in to the demands of the hostage takers. Yet he knew that there was a chance that the clinic owners would be killed. It was in his power to do something. He knew what he ultimately had to do, but you needed to walk him through it.

Why did you leave the White House early in 1986?
My finances were getting tight, and I had already been there much longer than I had anticipated. When the president had asked me to take the job, I told him I was not prepared for a long period of government service and I could not commit for four years. He said, "Let’s not worry about you committing to four years." The irony is that I stayed longer than four years.

I had planned on leaving at the end of the first term, but instead of telling the president directly, I told Jim Baker, who was then the president’s chief of staff, that I was going to talk to the president after Christmas. Baker said, "You’re too late. I’m leaving," and he told me about the switch that he and Don Regan had worked out in which Baker would take over as Treasury secretary and Regan would become chief of staff. Baker said I could not leave until things were under control. I agreed that I would wait until the president had appointed my successor. That did not occur for another year and one half.

Do you miss the White House?
Well, I didn’t have to keep time records and send bills. It was a terrific experience that was professionally and personally rewarding. I would urge anyone who has the opportunity to serve a president to do so. It can be the worst experience of your life, but it can also be wonderful. The variety of assignments was as exciting as anything you will encounter professionally. It also has been gratifying to watch the careers of the people who I hired onto my staff and to see how well they have done.

Do you feel that way about both administrations?
The Nixon years were trying. They honed my judgment for everything I did later on. The experience also illustrated for me the importance of training young lawyers properly.

After you left the Reagan White House, and the Iran-contra matter broke, were you surprised at how quickly the word impeachment started to be bandied about?
It became evident to me that there was a very serious political element at work. I know that the term impeachment was bandied about. I do not believe, however, that the word was used with the ferocity it was more recently or that it was in the Nixon years. There has been a whole sea change in politics in the last 30 or 40 years. There has been a breakdown in comity. It makes relationships especially difficult if you have opposite parties on each end of Pennsylvania Avenue. We have three branches of government, but powers are shared rather than exclusive. Given this reality, governance requires comity.

How do you think our times compare to when you entered government in terms of partisanship?
The last eight years have created a lot of deep-seated hostility. People take political decisions very personally, and today there is a constant, ongoing attack, with one side or the other being maligned.

Why did you decide not to return to Morgan, Lewis after leaving the White House?
When I came out of government the second time, I decided that, while Morgan, Lewis was a terrific firm with wonderful lawyers, I wanted to try something different. I did not want to work for such a large and structured firm. I was pleased to add my name to Wiley, Rein & Fielding, then a small firm. Of course, now we have 207 lawyers, so it is not that small a firm anymore.

How did you come to represent former Supreme Court Chief Justice Warren Burger?
Soon after I returned to private practice, the chief justice called me one day. It was a Saturday, and I was filthy from doing yard work. I said, "Let me clean up." He said, "No, no, come right over." When I got there, he beat around the bush before telling me why he called so urgently. He told me he was thinking of resigning, but he wanted me to represent his interests with the president. He really wanted to be named the head of the Bicentennial of the Constitution Commission, but understood that the president could not make any deals for his resignation. When people found out that he had an intermediary, they assumed that he was negotiating for who the next chief justice would be, but there was no truth to that.

Since you left the White House, you also worked as an arbitrator in a dispute between the United States and the United Kingdom. Is that true?
That was a terrific experience. Really a professional highlight of my life.

That involved an issue at Heathrow involving landing fees. Is that correct?
Yes. Two close allies had an acrimonious dispute. The U.S. alleged that the U.K. had violated an air rights treaty. It was a very complicated case. We ultimately found that the U.K. had violated the treaty. There were three arbitrators: a neutral representative, a U.K. representative, and a U.S. representative.

Was your role to be the objective arbitrator, or did you work for the U.S. side?
I viewed my role as making sure that the U.S. arguments were fully considered in our deliberations. I think you can tell by the decision that my British counterpart came to see our point of view. It was a unanimous decision except for one minor issue. It was an exciting role for an attorney, because you also got to play judge-and in The Hague!

What have you been working on lately?
Part of my time in the past five years has been consumed by my assignment as a member of the ABA Standing Committee on the Federal Judiciary. My practice and clientele are very eclectic and interesting. I have some arbitration cases. I do a significant amount of white-collar and crisis management work, and I do a lot of strategic counseling, negotiating, and large-scale problem solving.

For example, after the savings and loan bailout, the thrift agencies decided that an accounting firm should pay for their lack of oversight. I represented Ernst & Young. It took seven and a half months to negotiate a settlement with the government. I decided that instead of litigating or settling several small blazes, we and the government should try to extinguish the whole fire. I negotiated a global settlement with the federal government for $400 million. The next day I told the client, "There’s good news and bad news. The good news is that Washington Post says you deserve to pay every penny of that $400 million. The bad news is that New York Times headline is "$400 million bargain for Ernst & Young." That kind of stuff is great fun, although the demands can eat you alive and tear your schedule to shreds.

Has the legal profession changed significantly over the course of your career?
I am certain that any attorney you interviewed over 50 years of age would tell you the same thing. There has been a breakdown in the traditional relationships between attorneys and their firms and between clients and their attorneys. For young attorneys this new situation can not help but lead to a different attitude about wanting to work in a firm and about wanting to practice law all one’s life. I have tried to avoid becoming stale by practicing law all my life, but in both law firms and in government. I have had a terrific experience doing that. For this reason I encourage younger people to take a break and go into government service. I think it is important for them to understand what is truly important. Practicing law is not entirely about making money. There are professional rewards that are more important than financial ones.

Do you ever have any thoughts of retirement?
Not yet. I guess the simple answer is that I’ll retire when it is no longer exciting, no longer challenging, and no longer any fun.

Periodically The 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.