Washington Lawyer

Legends in the Law: Mortimer M. Caplin

(Appeared in Bar Report, June/July 1995)

Mortimer M. Caplin, noted educator and lawyer, is the founding partner of the law firm of Caplin & Drysdale. A 1940 graduate of the University of Virginia Law School, where he was editor-in-chief of the Virginia Law Review, Caplin earned his doctorate from New York University while practicing law in New York City. He returned to the University of Virginia Law School as a professor in 1950, and served as U.S. Commissioner of Internal Revenue under presidents Kennedy and Johnson. He also was a D.C. Bar delegate to the American Bar Association House of Delegates from 1980-1992.

Bar Report: What made you decide that you wanted to be a lawyer?
Mortimer M. Caplin: My father encouraged it. He was a teacher, but I felt that he’d always wanted to be a lawyer. He was active in some of the local political clubs in New York City, and he’d take me along to some of those meetings where it was all but assumed that I’d be a lawyer. I can remember the grown men telling me as a young boy that I’d be a judge some day.

Also, I grew up during the Depression, and that had a tremendous impact upon me. On the streets you’d see people selling apples, shining shoes, standing in bread lines. People with extended educations were driving taxis and doing all sorts of menial labor. The hardship people faced was tangible, it was real not something you’d read about in the newspaper. You’d see it with your own eyes everywhere you went. Of course, Franklin Roosevelt used the law as a great vehicle in helping to solve some of those Depression era problems. I wanted to be a part of that. I wasn’t quite sure how, but I was motivated by social as well as personal concerns.

BR: You graduated from the University of Virginia Law School in 1940. Was that a difficult time to begin a career?
MMC: Needless to say, for a young man of my age it was an uncertain time. I was trying to get my legal career started right at the outbreak of America’s involvement in World War II. I clerked for U.S. Circuit Judge Armistead Dobie in 1940-41. Then I joined the firm of Cohen, Cole, Weiss & Wharton in New York, but I’d already made an application to enlist in the Navy as an ensign and was waiting for my commission to come through.

BR: So you served in the Navy during the war?
MMC: Yes, I was assigned to Naval Intelligence and went through basic training and various advanced intelligence schools. We had a huge Navy yard in Portsmouth, Virginia, with lots of construction going on and damaged vessels coming in for repair. There were a number of foreign born workers in the shipyard, and after the attack on Pearl Harbor there was some concern about the potential for sabotage. There were also rumors of enemy submarines lurking offshore. I was assigned to do investigative work to ensure the security of the shipyard. It was an interesting, challenging job, but shore duty in the United States was not what I had envisioned. I can’t say that I had a great desire to rush into hand-to-hand combat, but I was getting a little itchy. I had this lurking sense of wanting to become more actively involved in the war.

BR: So what did you do?
MMC: I volunteered for shipboard duty overseas. I assumed any new assignment would be related to my intelligence training, but when my orders came through I discovered that I had volunteered to join a Navy beach battalion as a beachmaster. I reported to Camp Bradford, Virginia, in my white uniform, and I’d never seen a sadder sight in my life. Everybody was in green dungarees. Many of the men had participated in the landings in Italy, where U.S. troops had taken great casualties. So there was a rather depressed feeling.

BR: Did you experience any combat yourself?
MMC: Yes, my Navy beach battalion was part of the initial landing force on Omaha Beach during the Normandy invasion. We went through a great deal of training prior to the invasion both here in the United States and in England. Then on the night of June 3rd my unit was sent to a marshaling area near Portland-Weymouth. That night the briefers called us in and laid out maps and models showing us what the beach and surrounding area looked like. The invasion landing was supposed to take place on June 5th, but because of the weather it was held up a day. We spent a full night on our transport boats, and a lot of people got sick because of the rough seas.

BR: Was that a nervous, anxious time?
MMC: Yes, it was. Everybody was waiting. But once we got going on the 6th of June there was almost a holiday spirit. I’ll never forget crossing the channel—that was an extraordinary sight! We had this massive flotilla, hundreds upon hundreds of ships steaming for France, and all the ships had these big barrage balloons up in the air on cables to keep the German planes from swooping in too low. It wasn’t until I started climbing down the cargo net of the LST that I got nervous. I could hear the gunfire and the shellfire and the planes overhead, and I was very much aware of the fact that this was a very real thing.

Omaha Beach was an awful mess. There were dead and mangled bodies everywhere—bodies floating in the water, bodies in the act of crawling over little stone fences, bodies sprawling in the sand. It was like a wax museum. There was a lot of incoming shellfire and the fresh troops were rushing forward. It was a frantic, chaotic time. As beachmaster, my job was to take command of the beach, take care of beach casualties, and get the ship-to-shore communications set up. We were responsible for removing shoreline obstacles, repairing damaged boats, and moving the traffic across the beach—bringing in the tanks and the ammunition and the vehicles, moving heavy weapons forward to the front line.

My unit stayed on Omaha Beach for about a month until shortly after Cherbourg fell. At one point a big storm blew in and we couldn’t get any supplies ashore. The fighting was still very intense and the soldiers were coming down to the beach begging for ammunition. They were literally crying, "We’re running short. We need ammunition. We’re dying up there." I was dealing with one emergency after another, and it was a very poignant period in my life. A time of enormous sacrifice. In a combat setting you somehow you manage to do what needs to be done, but there’s an awful lot going on inside you that you’re not facing as you do it. Mrs. Caplin and I went back to Europe a couple of summers ago and we visited some of the places I’d been during the war. I was surprised by how emotional that was—all of the memories came flooding back.

BR: After the war was over, did you return to New York?
MMC: Actually, I stayed in England for another year as a legal officer. I enjoyed that year, but I was anxious to get back home to my wife. After my tour of duty was over, I came back to New York and rejoined the firm I’d been with when I enlisted in the Navy. By this time the name of the firm had changed to Paul, Weiss, Wharton & Garrison—and then later to Paul, Weiss, Rifkind, Wharton & Garrison.

BR: Did you take a leave of absence to get your doctorate?
MMC: No, I practiced law during the day and went to school at night. It was an exhausting schedule, but I have a wonderful wife who was very supportive. I was working hard and enjoying what I was doing. Then I received a call from my alma mater, the University of Virginia law school. They invited me to teach, but I hesitated for a year before making the big decision. In 1950 I decided to sign on as a professor, and I actually completed my dissertation and received my J.S.D. after I began teaching.

BR: Did you enjoy the students?
MMC: Oh, yes, immensely! I loved teaching law. I loved to watch the students develop and grow. Each year brought a new group, so you were always working on a blank slate.

BR: How was it that you got to know John Kennedy?
MMC: That came about in May of 1959. John Kennedy was a United States senator then, and he was gearing up for his 1960 presidential campaign—although he was still regarded as something of a darkhorse. His two brothers, Robert and Teddy, had both been students of mine at the law school. In fact, Teddy and roommate John Tunney were competing in the finals of the moot court competition that year, and Senator Kennedy had been invited to give the Law Day address. He agreed to do so, and I’ll never forget the former governor, John Battle, introduced him to this huge crowd as "the next president of the United States." That elicited an enormous gasp—all these southern Baptists and Protestants being told that this young Catholic senator was going to be their next president.

He gave an eloquent address, and I met him at a small party that night. Jackie was there with him, and I was introduced to them. He was very charming. I’d recently testified before the House Ways and Means Committee and he made a point of mentioning that. It was a very pleasant evening.

BR: Were you involved in his 1960 presidential campaign?
MMC: No, I wasn’t. The next contact I had with him was after the election. Within a matter of days Ted Sorensen called and invited me to sit on a task force the president-elect wanted to form to help develop tax policy. There were five of us on that task force, and we worked very hard and prepared a policy paper and tax recommendations that we delivered to him in early January of 1961. That meeting left a vivid impression on me because I could see a noticeable change in his physical appearance. The hardship of the campaign, and the demands made upon him both physically and mentally, had obviously stretched him. He looked and acted like a president—tanned, handsome, and slim, with so much vitality. He paced up and down as we were talking, smoking these small black cigars. He was just like a finely bred horse—an absolutely beautiful animal.

BR: Was that when he asked you to join his administration?
MMC: The newspapers had been speculating that some of the members of this tax task force would end up in the administration. During that meeting President-elect Kennedy said that I’d be hearing from him soon. A short while later I received a phone call asking me if I’d be interested in becoming commissioner of the Internal Revenue Service. Obviously, I was very interested, and accepted the offer.

BR: Of course, John Kennedy appointed his brother Robert attorney general, and Robert Kennedy launched an all-out war on organized crime. Was the IRS involved in that?
MMC: Yes. That was something I discussed with Robert Kennedy before I went to Washington. The question was, what was the proper use of the IRS in these Department of Justice efforts? I gave this considerable thought, and came to the conclusion that as long as there were significant tax implications involved it was all right for the IRS to participate. So I told Robert Kennedy that I would be pleased to cooperate, but that we wanted to maintain our own jurisdiction. We were not just going to assign our people to the Department of Justice and let them run off willy nilly on wild goose chases. I wanted to maintain supervisory control. And Bobby Kennedy respected that.

BR: In conducting investigations of Mafia figures, were you primarily interested in prosecutions based on unreported revenue?
MMC: Yes. We found that people who were engaged in organized crime frequently failed to report their income in full. Since we were calling upon the citizens of the United States to pay their taxes, we felt it was only proper that the criminal underground be held accountable, too. We kept pretty good statistics and found that our dollar returns on crime figures stacked up very well when compared to our civil investigations.

BR: Were you at all worried about the potential for abuse?
MMC: Yes. That was a major concern. The IRS had gone through the Truman scandals in the early fifties, and I wanted to make sure that didn’t happen again. I was very mindful of the fact that the role of the IRS was to collect revenue for the United States and we conducted our investigations accordingly.

This concern, by the way, wasn’t limited to criminal investigations. I was also concerned about the potential for political abuse. Very early in my tenure, I received a telephone call from a key person on Kennedy’s White House staff. He told me that the president wanted me to make a change in personnel, and gave me the name of a person up in Boston that he wanted removed. That was both surprising and disturbing because I was determined to run the IRS on a nonpolitical basis. I wanted a meritocracy. The person in question had been accused of harassing some prominent Democrats and bringing criminal charges against them. I looked into it and discovered that this man was just doing his job. He was in charge of the inspection service, and in Boston you can’t help but run into Democrats. So I was determined not to comply with this request that he be fired. I had discussed it with my wife, and we agreed that if I was ordered to follow through I’d resign.

A report was written up that exonerated this chap, and I sent the report over to the president. The next time I saw President Kennedy he took me aside and said, "I read your report and I agree with you 100 percent. Keep doing exactly what you’re doing."

BR: So he countermanded his own order?
MMC: He hadn’t given the order. That was the one thing I learned from this little episode. A lot of people on the White House staff like to speak in the name of the president. They’ll tell you, "The president wants such and such done." But when the president really wants you to do something, you know it. That incident delivered a message to the White House staff and it never happened again. If the president’s name is being used ordering action that makes you uneasy, the best solution is to reply, "I’ll bring that up with the president the next time I talk with him." That is a failsafe response guaranteed to cut through all the nonsense.

BR: Can you recall what you were doing when you first heard the news that President Kennedy had been assassinated?
MMC: We were getting ready to have a staff meeting when the assistant commissioner of inspection, Mike Acree, rushed in and told me that the president had been shot. This was before there had been any bulletins on the news. So it wasn’t confirmed. I remember sitting there absolutely stunned—not knowing what to think, but hoping it wasn’t true. Then, of course, the news reports started coming in, and everything stopped.

I spoke to President Johnson the next day. The casket had been brought into the White House, and I remember it was a dreary, rainy morning. Johnson looked terrible—haggard and tired. He saw me and reached out his broad hands and put them on my shoulders. Lyndon Johnson was a big man, very tall, very imposing. So when he clamped his hands down on your shoulders, you felt it. And he spoke with a thick Texas accent. "I need you, Mortimer," he said. "I need you in the government. I want you to stand with me."
I felt great empathy for President Johnson. He had suffered tremendous neglect during his years as vice president. The White House staff had little regard for him, and I’d always had the sense that he was a sad person, that the vice presidency was an unhappy interlude in his life. Then all of a sudden he went from the administration outcast to the chief executive in the blink of an eye. He was thrust into the presidency under extraordinarily difficult circumstances.

BR: So you agreed to stay on?
MMC: I agreed to stay for a while. Johnson was always cordial. In early 1964 when I had all of the IRS district directors and regional commissioners to Washington for a meeting, President Johnson invited all of us over to the White House. The thing that sticks out in my mind from that encounter was how obsessed he was with Vietnam. This was before the bombing of North Vietnam had begun and before he had sent in large numbers of U.S. combat troops—but it was obviously looming large in his mind in those early months of his presidency. Here he was surrounded by a group from the IRS, and he spent the whole time talking not about taxes or monetary matters, but about Vietnam. Talking, talking, talking nonstop about Vietnam.

BR: Was it tough to go back to work after the assassination?
MMC: The bloom was off the rose. The job sort of carries you along and you keep doing it, but it was never the same.

BR: In looking back on the Kennedy years a lot of revelations have come to light. There have been stories about all sorts of unsavory behavior, including the U.S. government’s involvement in attempts to assassinate foreign leaders and stories about JFK’s infidelities and character flaws. How does that make you feel?
MMC: Well, some of those revelations are very surprising. But beneath it all, I feel that John Kennedy was a very good president and that his overall performance overshadows any pockmarks. The one thing that needs emphasis is the leadership role he performed. Today it has become fashionable to run against government and to say that government is the problem. But Kennedy believed in government. He believed the country could be called upon to do great things. He was an extraordinary motivator, and there was a spirit that he instilled in the country that is missing today. Kennedy had tremendous respect for the civil service. He wanted government service to offer a proud, meaningful career. He believed that the work the government was called upon to perform was important, and he communicated that to us in a way that made us feel proud to be a part of the government and proud of our association with him. Indeed, to this day, he is only president who ever visited the IRS and talked to its top leaders in this manner. When the historical ledger is balanced, I think the positives far outweigh the negatives.

BR: Can you tell us about the founding of Caplin & Drysdale?
MMC: I left the IRS in July of 1964. By then I’d seen the practice of law from a variety of different perspectives—as a private practitioner, as a law professor, and as a government administrator. I was familiar with large law firms, and when I left the government I received some very attractive offers. I weighed those offers and gave them serious consideration, but I also felt a desire to do my own thing. I’d identified a group of young lawyers that I thought were outstanding candidates to bring together to start a firm. Doug Drysdale had been with me in Charlottesville, and ultimately Caplin & Drysdale was formed.

BR: At the time you were first branching out, did you have the sense that you were building a firm that would become one of the premier tax firms in the country?
MMC: Yes, that was our goal from the beginning. We wanted to be better than any other tax firm around. We recruited lawyers who were capable of performing at the highest possible level. In the competitive corporate environment, lawyers and law firms are always searching for clients. But getting the great client or the great case is only part of the battle, once you get that client you have to provide quality service. I wanted excellence of service to be the hallmark of our firm. I wanted to run a lean shop that would cut through all the fat. And that’s a tradition that we’ve carried forward to this very day.

BR: How so?
MMC: The way law is practiced today, there can be a lot of waste built into the process. You can have an army of associates and paralegals running around attacking a problem and generating all sorts of billable hours. We don’t do that here. We don’t man our cases with three or four associates working under a supervisory partner. Every partner is a working partner who is intimately involved at every stage of the process. We feel the quality of the job demands direct, hands-on involvement from our partners.

BR: Did you find private practice to be as challenging as government service?
MMC: The transition was difficult. As commissioner of the IRS I got used to running an operation where we had 75,000 employees, and where I was thinking globally. The decisions were national in scope, and the crises that came up were measured in billions of dollars. To shift that focus to the needs of an individual client was difficult. Instead of making multibillion dollar decisions, I was sitting in my office drafting opinion letters, requests for rulings, and cert petitions.

BR: Was it challenging to build a quality firm from the ground up?
MMC: Well, we’d hired these five very fine young attorneys, and I felt the need to get out and build up our practice. I was the partner who was responsible for bringing in business. But I didn’t mind that. In fact, I enjoyed forging those client relationships. But it’s hard to pinpoint how or where to do it. There’s no targeted method that I know of. Much of it simply occurs by accident. My years of public service had given me wide acquaintances in many spheres, yet I found that the most unexpected sources led me to things that I never anticipated.

BR: Do you have any cases or accomplishments you’re most proud of?
MMC: I think the thing that I’m most proud of is the culture of the firm that we’ve managed to maintain. When we founded Caplin & Drysdale our idea was to bring together well-rounded lawyers who would be of service to the community and the bar, as well as to the firm. We didn’t want to be driven by the almighty demands of the billable hour. We wanted a firm that would offer a different way of life. As a professor, I can’t help but get excited when we have a partner who wants to teach, and at present we do have partners who are teaching part-time at Harvard, the University of Virginia, Georgetown, and George Washington. Some of our former lawyers have even become deans of leading law schools. The firm encourages that kind of intellectual involvement in the law. There’s a great feeling of camaraderie, sharing, and respect. In 30 years we’ve only had 14 partners leave the firm—and in each case there were particular personal circumstances and the partings were always amicable. I think that says something regarding the way we feel about each other. I’m proud of that.

BR: Did you continue your relationship with Robert Kennedy after you left the government?
MMC: Yes, we kept in frequent touch with each other. It was always a warm relationship. I spent a little time campaigning with him in New York when he ran for the Senate in 1966, and then I traveled on the west coast when he was campaigning for the Democratic presidential nomination in 1968. I was an elected D.C. delegate to the Chicago convention pledged to support him. The last time I saw Bobby was right before the California primary. We were staying in the same hotel in Los Angeles. I went in to see him in the morning, and he was marching up and down in his bathrobe, asking for ideas about what he should do in regard to a problem that had just come up in Watts. He was heading out on a whistle-stop train trip up the San Joaquin Valley, and I was heading to New York to open a campaign office for him on Long Island because the New York primary followed California. I had a speech all ready for delivery—but, tragically, he was assassinated on the night he won the California primary.

That was another traumatic moment. Had he lived, I’m confident he would’ve gone on to win the Democratic nomination in Chicago, and that he would have defeated Richard Nixon in the general election. But that never happened. Instead, I ended up as an honorary pallbearer at another Kennedy funeral.

BR: Earlier you mentioned that during your term as commissioner of the IRS you were concerned about the potential for political abuse.
MMC: Yes.

BR: The Nixon administration got into trouble because it did not adhere to the same standard. Did that surprise you?
MMC: I found the Nixon episode to be startling. Nixon put heavy pressure on his IRS commissioners and had two of them resign because of it.

BR: Did either of them ever call upon you?
MMC: No, but I was on the notorious "enemies list," and we had a mysterious break-in at my home. Nothing of value was taken, but they got into my files and went through my papers. We came home in the midst of the burglary and these people went running out the back of the house. There were papers scattered about and a leather binder had been ripped open. To this day, I have no idea what they were looking for.

BR: Were you at all suspicious that it was the White House looking into your private files?
MMC: Not then, no. Later on, after the Watergate revelations that was the obvious conclusion. I remember there was a story in the Washington Post about a series of these mysterious break-ins all over Washington. Then, with the appearance of my name on the enemies list, it was fairly easy to put two and two together.

BR: I guess it’s been 50 years now since you graduated from law school.
MMC: Fifty-four years!

BR: Do you have any reflections on how the legal profession has changed over that period of time?
MMC: I’d say the most obvious thing is that in the ’40s and ’50s there was a standard of loyalty and professional civility that prevailed. When you joined a law firm you had the sense that you belonged to a band of brothers, that people cared about you as an individual and that people cared about your family. That spirit is missing in the contemporary environment. The profession, in many cases, has become too businesslike, too cut-throat, too cold. The traditional professional courtesy with which I was brought up is no longer prevalent.

As a professor, I always thought it was important to keep in mind the role that the law has played in the development of democracy. That was one of the things I tried to impart to my students. The law has a very rich historical tradition. Remember, Thomas Jefferson was a good lawyer before he became a politician. Jefferson never lost sight of the law’s function in the creation and maintenance of a civil society. In his mind, the law existed to serve the society. Unfortunately, I think that in our own time we’ve lost sight of some of Jefferson’s enduring democratic values.