Washington Lawyer

Legends in the Law: Robert S. Bennett

(Appeared in Bar Report, October/November 1995) 

Robert S. Bennett is currently a partner with Skadden, Arps, Slate, Meagher & Flom. A 1964 graduate of the Georgetown Law Center, Bennett served as assistant U.S. attorney for the District of Columbia (1967-1970) before venturing into private practice, where he established himself as one of the nation's preeminent trial attorneys. In addition to an impressive list of corporate clients, Bennett serves as President Clinton's personal attorney, and he recently represented former Secretary of Defense Caspar Weinberger in the Iran-Contra matter. 

Bar Report: What made you decide that you wanted to be a lawyer? 
Robert S. Bennett: Actually, when I went off to Georgetown as an undergraduate I was thinking more about medical school. My mother worked as a medical secretary and two of my uncles were doctors. There was a lot of family pressure on me to become a doctor. I enrolled in some pre-med courses, but it was not a happy match. I didn't enjoy the physical sciences. I am sure that it's a blessing for the human race that I never became a doctor.

When I was a student I'd go down to the federal courthouse to watch criminal trials. I'd just wander in and sit down. I was drawn to the action—the intellectual combat and the human drama—that took place in the courtroom. Somewhere along the line, the bug bit me. I probably sat through 50 trials during my undergraduate years. This was a pretty good sign that law and not medicine was my calling. After all, I wasn't going to hospitals to watch operations. 

BR: When you went to law school did you have a vision of the type of lawyer you wanted to be? 
RSB: Absolutely. I enrolled in law school with the intention of becoming a trial lawyer. 

BR: In 1967, after clerking for U.S. District Judge Howard F. Corcoran, you joined the U.S. attorney's office as a federal prosecutor in the District. Was that a dream job for you? 
RSB: Yes, it was the greatest job in the whole world. I loved being a federal prosecutor. My three-and-a-half years at the U.S. attorney's office were among the best years of my life. 

BR: Why is that? 
RSB: I was working with some of the greatest people and best lawyers I've ever met. They are still my best friends.

In law school you spend a lot of time reading and analyzing cases. It's challenging and interesting, but it's largely an academic pursuit. When you go to work as an assistant U.S. attorney the abstractions disappear. The cases and the people are real. Every time you're handed a case file there's a human story in that file—there's a victim, a family of the victim, and a person standing trial who is accused of a crime. 

BR: Do you still have vivid memories of some of the cases that prosecuted? 
RSB: I can remember those cases like they happened yesterday. I could spend hours sitting here telling you war stories from those days. 

BR: Can you recall your first murder case? 
RSB: One of the first murder cases I handled involved a young victim by the name of Schriber. The facts were as follows: he and his girlfriend had left the Biograph theater at the edge of Georgetown when they saw a fellow on the sidewalk who acted as if he needed medical help. They crossed the street and offered to assist him to his apartment. Once they got in the hallway the young man straightened up and pulled out a gun. His writhing in pain on the sidewalk was just a sham. He was trying to lure these innocent good samaritans into the building so he could rob them. In the process of robbing Schriber he shot and killed him.

The press dubbed it "The Good Samaritan Murder." I was given the case, and felt I had to do a good job on it. I remember reading the facts and thinking, "Yes, Schriber was the good samaritan." Here he was extending his hand to help someone he believed to be in distress, and the person he was trying to help turned around and murdered him.

I felt Schriber had to have his day in court. I very much wanted a conviction in that case. In my closing argument I picked up the Bible and turned to read the passage about the "Good Samaritan." Defense counsel objected. The judge sustained the objection, telling me I could quote the passage if I remembered it, but that I couldn't read scripture in front of the jury. Well, you can be sure that if there was one passage in the Bible that I knew by heart, it was that passage. So with great flourish I closed the book and said, "Your honor, I know this document pretty well." I quoted the passage and continued my closing argument. Much to my satisfaction, the jury came back with a conviction. 

BR: Does a job where you're dealing with violent crime on a daily basis change you in any way? 
RSB: You learn a lot. At night, I used to ride with the police, just so I could see what was going on. For me that was a post-graduate education in the psychology of human emotions—a frightening education. I quickly came to understand that life is not a Norman Rockwell painting. I'd never before experienced first-hand the meanness with which one human being can treat another. I was coming face-to-face with people who would commit rapes and murders with absolutely no concern for their victims.

I had a reputation as a tough prosecutor and I was proud of that reputation, but I also came to feel great empathy for people who reside in the crime-ridden areas of the city who are struggling to live honorable, decent, law-abiding lives. I'll never forget this one little old lady the police brought in on a weapons charge. She'd been arrested for the possession of a sawed-off shotgun. She was living in a public housing project where there were a lot of drug addicts roaming through the building at night. Drug dealers were selling narcotics and addicts were breaking into apartments to steal things so that they could buy their drugs. Every night before this lady went to bed, she took out her sawed-off shotgun and put it on the nightstand for her protection. That was part of her nightly ritual—the same way some people brush their teeth and let the dog out before they go to bed. Even though this lady was clearly in technical violation of the law, I didn't charge her. That was one case it seemed wrong to prosecute. I couldn't help but think of my grandmother, who was the same age but was living in a safe, comfortable home. 

BR: What did you glean from experiences like that? 
RSB: I think I came away with a better understanding of people. Those experiences gave me a broader lens through which to view both the good and the bad that people are capable of. It was an immersion in "the real world" that law school could just not prepare me for. 

BR: Why did you leave the U.S. attorney's office? 
RSB: I left because it was time to leave. I'd been in that job for almost four years and I'd tried lots of cases. I wanted new challenges.

Also, I was engaged to be married and I wanted to raise a family. So some of the financial opportunities available in private sector were appealing. 

BR: How did you end up at Hogan & Hartson? 
RSB: I went out on the market and interviewed with a number of firms, and I decided that Hogan & Hartson would be a good fit. 

BR: What kind of practice did you have there? 
RSB: Mostly civil litigation. 

BR: Did you enjoy it? 
RSB: Yes, but not like I enjoyed the criminal cases. I was troubled by the abuses of the discovery process that are common in civil litigation. Whenever money is involved, it seems to draw out the worst in people—every little thing becomes an occasion for a fight. Although I enjoy a good civil case, there are things about the civil practice area that trouble me. 

BR: A lot of attorneys are unhappy with the practice of law. Do you think that is due in part to the abuse of discovery and a general lack of civility in civil litigation? 
RSB: Yes, I think so. I have no doubt that if I were doing only civil cases I wouldn't be as happy practicing law as I am. As it is, I love being a lawyer. I wouldn't want to do anything else. 

BR: How did you manage to break free of the civil litigation treadmill? 
RSB: I joined Hogan & Hartson in the early '70s when white collar criminal cases were just beginning to take off. That had a real attraction for me. So I honed in on the white collar area, never knowing that it would explode into the growth industry that it has become. 

BR: Was your desire to pursue white collar cases the reason you left Hogan & Hartson to start your own firm? 
RSB: It was a factor. I did not get a partnership at Hogan & Hartson in the year I expected it. I was told that the following year might well be different, but I was both disappointed and impatient. That caused me to sit back and ask myself what it was that I wanted to do. For a variety of reasons, it was apparent that Hogan & Hartson at that time did not want to get heavily involved in white collar work. So I decided to cut out on my own. I joined with a few other friends and we formed our own firm which eventually became Dunnells, Duvall, Bennett & Porter. 

BR: Wasn't there a lot of risk involved in giving up the security of a major firm to try and build your own practice? 
RSB: Yes, sure. There was some risk. Ellen was pregnant at the time and we didn't have any money to speak of. I remember sitting down with her and working out a budget assuming that I would be making substantially less than I was making at Hogan & Hartson. But you know how it is when you're young—if there's a mountain standing in your path, you don't focus on the obstacles you just climb it.

In all candor, I should probably tell you that if I'd known then what I know now about how big firms get and keep business I might not have had the guts to climb that mountain. That was one instance where my ignorance was a blessing. Instead of feeling anxious or intimidated, I was looking forward to the challenge of building my own practice. 

BR: How does one go out and build a practice from scratch? How does a young lawyer attract the major clients? 
RSB: I don't know. The only sure way is "old lawyers die." There's no formula or tried-and-true method that I'm aware of. This is a people business. Clients make visceral, gut-level decisions about the lawyers they hire. If they find themselves in trouble or under fire, they ask themselves, "Who do I want down here in the fox hole next to me?" That's the essence of the decision they have to make. A young lawyer should plant seeds wherever he or she goes. Good seeds. Many will grow into productive fruit. 

BR: How did you get started? 
RSB: For me, there were two major matters that were instrumental in building my career. The first was a high profile case that involved the indictment of the president of a defense contractor. It was a case that received a lot of publicity. We went to trial and he was acquitted. So that gave me a boost. Then shortly after that other major defense contractors retained me. One matter led to another. 

BR: Are you suggesting an element of luck is involved? 
RSB: Luck always plays a part. If you get what you deserve in life you are lucky. But you have to make your luck. You have to take advantage of the breaks that come your way. Good luck, good health, a good marriage or personal relationship—all of that is important. 

BR: A good marriage is important to a successful career?
RSB: For me it has been the key.

BR: How so? 
RSB: I think that if you lead a full and happy life and experience all life's colors it will make you a much better lawyer. In the last analysis the most important thing you can give to a client is wisdom. Good judgment, common sense, and wisdom are all derived from living a full life. My wife Ellen and I have been married for 26 years now, and we have three wonderful daughters—Catie, Peggy, and Sarah. I feel blessed by the wisdom they have given me. They are my life. The law is second. 

BR: Do you ever take professional problems home and discuss them with your wife? 
RSB: Sure I do. Ellen is not a lawyer, but she is one of the most intelligent people I've ever met. I solicit her views about many things, and invariably I find that she's right on target—especially about people. 

BR: Was making the transition from a prosecutor to a defense attorney difficult? 
RSB: No, it was easy. What attracted me to being a prosecutor was not the desire to put people in jail. The advocacy was the challenge, and that challenge exists on the defense side as well. 

BR: Have you ever felt any moral ambiguity as a consequence of what some of your clients are alleged to have done? 
RSB: I've never felt any moral ambiguity at all. A criminal defense lawyer must be a fearless, zealous advocate. Now that doesn't mean you can be an assassin and do anything in pursuit of an acquittal—you can't put on perjured testimony, and you can't raise a defense for which there is no factual basis. You are still an officer of the court. So you need to strike a balance. While you must be a zealous advocate you must also be an honorable officer of the court who is a participant in the pursuit of justice. 

BR: When someone walks in the door and is the subject of a pending criminal indictment, I would think that would be an emotional, traumatic time. Does a defense attorney need to remain cool and analytical and ignore all of the emotion? 
RSB: Oh, no! Dealing with a client's emotions is often the most important part. An indictment is not just words on a piece of paper. You're talking about a human being. When an executive of a company gets into trouble, he's usually someone who is used to being in control, then all of a sudden the control disappears. He's facing the worst, most traumatic situation of his life. It's as if he's hanging on to the end of a rocket that is taking him places he's never been before. Families are impacted, employees are impacted, the press can get involved in ways that do great damage to one's reputation. Everything is scrambled up and disrupted. As an attorney you have to deal with all of that. You have to put your arms around the client and say, "Come here, let's sit down and work these problems out together."

In the case I mentioned earlier that involved the defense contractor, my client was indicted along with a former navy admiral. The government alleged that he had promised a lucrative consulting contract to the admiral in return for a sole source contract. When he came to me he was nervous and worried about going to prison. I listened to him explain what had happened, and when he finished I said that I'd be happy to represent him, that his case presented some interesting issues of fact and law. Well, he put his arm around me and said, "Bob, I'm glad you think this is an interesting case, but I want you to know that I don't view my upcoming indictment, the trial to follow, and the possibility of imprisonment as an educational experience."

His point, of course, was that to someone in trouble, the law is not about legal theory or morality—it's about freedom, reputation, financial survival.

Now, in dealing with those problems, I think it's important to emphasize that knowledge of the law is not enough. The real expertise resides in understanding the process. If someone is indicted on a mail fraud charge, you don't go out and hire the lawyer that knows the most about mail fraud. That's the easy part. Anyone can pick up the books and read the cases and come to an understanding of what the law is. What's important is having an understanding of the process, and the participants in the process—the prosecutors, the judge, the jury, the press. The process is run by people. All of the basic decisions are made by people: Will your client be indicted? Can you get the prosecutor to decline the case? Can you negotiate a plea? If you go to trial, will the client be found innocent or guilty?Understanding the people who make those decisions is essential. You need to know how to get the people making the decisions to come to your side of the table. You need to know what motivates them, what worries them, and what factors they consider to be most important as they make their decisions. 

BR: In recent cases your clients have included Clark Clifford and Caspar Weinberger. When a major political player like that is indicted, does dealing with the press form an important component of your responsibility as an attorney? 
RSB: Absolutely. When you represent a Clark Clifford or a Caspar Weinberger the issue is not whether you're going to deal with the press, but how. It's naive to think that "no comment" works in this day and age. Prosecutors, or their agents, talk to the press. You're going to have leaks from the government;you're going to have leaks from an independent counsel;you're going to have leaks from congressional investigations. When I was a prosecutor that just wasn't done. We didn't leak sensitive information to the press. But in today's environment you're in a position where you have to respond, where you have to get your side of the story out. 

BR: Do you have any tips for how an attorney should go about doing that? 
RSB: The most important rule is that you have to be honest in dealing with the press. The biggest mistake you can make is to be dishonest or deceitful. If you do that, they'll come after you with a vengeance, and your client will suffer. As an attorney, your credibility is your most important asset. I've stopped stories and have gotten things out of stories that would have been harmful to a client because the reporter I was talking to trusted me. I've had situations where a reporter came to me with what he thought was a well-sourced story and when we went eyeball-to-eyeball and I said "That is simply not true", the reporter didn't go with the story because he knew he could trust me to play it straight.

I think it's important to emphasize in talking about the press that you're not just trying to protect the reputation of your client. Good press or bad press can affect prosecutorial decisions. The cases involving independent counsels and congressional investigations aren't like a bank robbery or a murder where there's a clear-cut violation of the law that is heinous and reprehensible. These cases often tend to be in the gray zone. Prosecutors read the papers and watch the news just like everyone else. If the press is supportive of your position, it might help you convince the prosecutor not to bring the case because the prosecutor concludes a declination will be acceptable to the public. Whereas if the press is out to hang your client it's easier for the prosecutor to say, "Okay, let's bring it to the jury and let the jury decide." 

BR: So you're saying that press coverage is part of the legal process? 
RSB: Yes, the press is an integral part of the legal process. 

BR: Can you give an example of a case where press coverage had a significant impact on the outcome? 
RSB: Sure. The investigation of Caspar Weinberger illustrates the point. I think there was a gut-level feeling on the part of a lot of reporters that it was wrong to prosecute Cap Weinberger. He'd been on the right side of the Iran-contra issue, and there was a sense that maybe this was an overzealous prosecution. Then when the second indictment was handed down just days prior to the presidential election, the circumstances and the wording of the indictment were such that it was reasonable to conclude that the indictment was politically motivated. I thought that second indictment was a very cheap shot, but I also recognized that it presented me with great opportunities. I'd been arguing for a long time that a presidential pardon was appropriate, but people who politely listened to me before now became supporters. They were saying, "Hey, what is going on here? Maybe Bennett was right all along." The fact that the press was reporting on the abuses that were taking place created a political environment that made it a lot easier for President Bush to issue the pardon. I'm convinced that he wanted to issue the pardon because it was the right thing to do. But my point is that the publicity surrounding the way the Iran-contra investigation was carried out by the independent counsel created an environment that was helpful. A lot of people were convinced that the pardon was the right thing to do. We were able to capitalize on that. 

BR: You've mentioned independent counsels a couple of times in passing, and I get the sense that you're not particularly fond of them. Has the independent counsel statute outlived its usefulness? 
RSB: Yes. I think we've created a monster. The system is bad. It's ironic that the major argument for the independent counsel statute was to remove the investigations from the Justice Department so that they would appear to be impartial. But the appointment of independent counsels appears to have become a political and highly partisan undertaking. The justification for the statute has been undercut by the practice. The process has become more political.

Years ago, politicians stayed away from trying to use the criminal process to score political points. But that changed with Watergate, where we witnessed the marriage of politics and criminal law. That has stayed with us. Today the way you go for the jugular is to have your opponent accused of ethical misconduct and criminal wrongdoing, and that often times starts an investigation.

And it's not just confined to the special prosecutors. When I was representing Clark Clifford he was under investigation by several law enforcement entities. The motivating force behind much of these inquiries was less a search for truth and more partisan politics. The House and Senate committees that got involved saw an opportunity to pin the tail on the donkey. Meanwhile, all of those overlapping investigations were tremendously burdensome for my client. 

BR: At present, you're representing President Clinton in the Paula Jones matter. Is it fun to be the president's personal attorney? 
RSB: Yes, it's a great honor, but also a kick. I'm a middle class kid from Brooklyn. So when the President of the United States hired me to represent him, I couldn't help but say to myself, "Hey, this is a pretty good client." On top of that, I like President Clinton very much. He is a fine, decent, compassionate man. I'm honored to represent him. 

BR: In filing the law suit, Paula Jones made some sexual harassment allegations that were expressed in vivid detail. Does the filing of such a law suit say something about the political temper of our times? 
RSB: Yes, I think the titillating and false accusations are a sign of the times. Nothing is sacred anymore. When I was a kid there were still a few carnivals that had live freak shows. There was a great public outcry, and our sensibilities were such that we got rid of those freak shows. But today, nothing is off limits. It goes back to what we were discussing earlier—the interweaving of politics and criminal allegations. You can say anything you want to about a public figure, and if you put it in a law suit it's guaranteed to get a lot of attention. I think a free press is absolutely crucial to the country, but at the same time, I think it's unfortunate that the line between honest press coverage and cheap entertainment has blurred. The "respectable" press puts aside their principles very quickly. The respectable papers will cover stories that originally appeared in the tabloids for fear of losing readers. Their excuse is that since someone else published it, it's now okay for them to do so. In our contemporary environment, the press panders to the lowest common denominator. That's unfortunate, and over a period of time it does great damage to our democratic process. 

BR: Do you feel that the real stakes in the Paula Jones case have nothing to do with the sexual harassment law suit that was filed? 
RSB: Yes, of course. The law suit was not brought until long after Bill Clinton had become President of the United States. The allegations were first made public at a partisan political gathering. The political motive is obvious. 

BR: Does President Clinton share those sentiments? 
RSB: I don't feel it would be appropriate for me to describe what my client, the President, is thinking or feeling. I can only reiterate what I said before: he's a very honorable, very decent man. 

BR: In 1990 you decided to leave the firm you helped found to join Skadden, Arps, Slate, Meagher & Flom. What prompted that move?
RSB: It was not something I was seeking. But when the opportunity came along, I explored it. I was very impressed with the people here at Skadden, and I saw new challenges, new mountains to climb. 

BR: What sort of challenges? 
RSB: Exposure to areas of the law—particularly in financial corporate matter that were a specialty of this great firm. I'm approaching the age where you'd think I'd be slowing down and seeking fewer challenges. But that hasn't happened yet. I'm still intrigued by the practice of law--still curious, still learning. I still get excited going to work in the morning. There is always a new mountain.