Washington Lawyer

Legends in the Law: Benjamin R. Civiletti

(Appeared in Bar Report, December/January 1999)

Benjamin Richard Civiletti was born in Peekskill, New York on July 17, 1935. With thoughts of becoming a doctor, he headed to Johns Hopkins University where he quickly realized a career in medicine was not for him. He received a bachelor’s degree in psychology then attended the University of Maryland Law School where he obtained his juris doctorate in 1961. Civiletti served as the U.S. attorney general in the Carter administration from 1979 to 1981, and he has spent 30 years with Venable, Baetjer & Howard, adding his name to the firm’s Washington office in 1981. He is married to Gaile Lundgren Civiletti and has three children.

Bar Report: How did you come to be an assistant U.S. attorney in Baltimore one year after graduating from law school?
Ben Civiletti: I was a law clerk for W. Calvin Chestnut, a U.S. District court judge for Maryland. He was an older judge who tried mostly jury cases and I was able to sit in on a number of trials. I picked up techniques in questioning, presenting arguments, and jury instruction—all the basic elements of a trial. When Joe Tydings became the U.S. attorney in Maryland, because of my experience I was chosen to become an assistant U.S. attorney in that office.

BR: What was that experience like?
BRC: It was terrific. Many people say working in the U.S. attorney’s office is the best job in the world, and in many instances it is. You’re going after the bad guys. It was a very exciting time because we were part of a new administration with Robert Kennedy as the attorney general. Civil rights was a big issue and white collar crime was coming into its own. I had the chance to work on some big cases. One involved the savings and loans scandals in Maryland in the early sixties. It was the successful prosecution of D. Spencer Grow, a Utah savings and loan operator, Orin Mensik, a Chicago savings and loan operator, and A. Gordon Boone, who was the speaker of the house in the Maryland State legislature at that time. The three of them had defrauded thousands of depositors of fly-by-night savings and loans insured by a phony insurance company. The savings and loans represented themselves as chartered long ago but, in truth, were newly coined. They would take real estate properties through three or four transactions to quadruple the alleged value of the property and record false profits on the books. It was a real mess. Sometimes small things can make a case great. In this case, we found a temporary secretary who had worked for the perpetrators. The documents for many of these transactions were peculiarly dated. Normally after a proper insurance application is submitted an investigation is done to determine whether insurance should be granted. This usually takes six months or longer, but when we found the secretary she said she worked on one Sunday and had prepared all the documents, the application, the audit report, the financials including the certificate of insurance, on the same day. With that we knew we had a lock. We successfully prosecuted all three.

BR: Did your experience in the U.S. attorney’s office influence your career choices?
BRC: It certainly confirmed the value of public service to me. The work was very satisfying. I think both the clerkship and the U.S. Attorney’s office experiences showed me the best values of the profession and nurtured the seeds of public service. It made me realize the law is a great profession with enormous opportunities for serving both individual clients and the public interest. I’ve been fortunate enough in private practice to head commissions, do investigations, and serve the public in many ways. Such activities provide a balance between working for an individual client or a corporate firm and working for the greater community. Early on in private practice I worked on the Mayor’s Commission to Investigate Baltimore City Jails that produced major improvements in the jail system. I also worked with the Maryland State Legislature’s Task Force on Crime, which resulted in a number of legislative steps in the criminal arena. I also investigated a judge for misusing his official position to influence the rezoning of land in one of the rural counties. As a result of our investigation he resigned.

I was able to push ahead on projects such as those because my experience proved to me that lawyers can make a big difference, regardless of "city hall," with perseverance, courage, and getting the facts straight.

BR: Why did you decide to go into private practice with Venable, Baetjer & Howard instead of continuing in the U.S. Attorney’s office?
BRC: When I left the U.S. Attorney’s office I was married with three children and thought I had learned most of what I could learn there. I also wanted to earn a better living. I stayed at Venable for 13 years and became head of the litigation department where I tried all types of cases, mostly civil commercial litigation, but sometimes criminal defense cases. I always had a sprinkling of plaintiffs’ work. It was challenging and kept me alert as to how to defend and prosecute cases.

BR: How did you feel about becoming assistant attorney general of the Criminal Division of the Justice Department in March 1977 for the Carter administration?
BRC: I was a little ambivalent because I was reasonably successful in the law firm, and I had one child entering high school, one in grammar school, and my oldest was preparing to enter college in a year. I had not followed the Department of Justice closely since 1965, although I was certainly interested in public service. I was encouraged by the Carter administration and Attorney General Griffin Bell’s attitude toward the administration of justice, especially after the negative impact of Watergate. So from that perspective I was very enthusiastic. But on the other hand, leaving a lucrative private practice, coming to Washington with children in their formative years, and having a lack of experience at the Justice Department made me feel somewhat uncertain. When I voiced these concerns to Griffin Bell he said, "Let me worry about whether or not you know enough about the Department of Justice. As to finances, you can always make more money when you leave the government. And you’ll be there when your children need you whether you’re in government or private practice." He said, "There’s an overwhelming reason to join the Department of Justice—you will serve your country." Griffin Bell is very persuasive. I thought about it then called him back to say I was willing to serve.

BR: Did you have trouble making the transition back to government service?
BRC: Yes because I was inexperienced in dealing with Congress, the news media, and the bureaucracy. There is less bureaucracy in the Justice Department than other governmental agencies, but one still has to adapt to customs and traditions. I had a little difficulty because in private practice you make decisions rather quickly. You try to be as efficient as possible. You usually have one client per matter. But in the government you are required to consult with other departments, divisions, and agencies. I was a little rambunctious for the first six months or so. Jack Keeney, a long-time deputy assistant attorney general in the Criminal Division, and Mark Richard, now a deputy assistant attorney general of that division, came to me after a couple of months and said some people were starting to call me "Uncivil-Civiletti." It didn’t particularly bother me but I did learn the desirability of what I called "spiritual meetings," where we all got together and moved in step toward a common objective.

BR: What do you remember about your first meeting with President Carter?
BRC: The first meeting was at the White House with a group of other third level appointees from around the government. I was wide-eyed going into the White House and seeing all the history: the cabinet room, the famous paintings, and so forth. We shook hands and I spoke to him for a few minutes. It was a get-to-know-you kind of meeting and a chance for the president to ask us to do our very best to serve the public. I left the meeting very excited and enthusiastic about all the wonders we were going to achieve in the Carter administration.

In a group of about 100 people, the president was very commanding and inspiring. In a much larger group of around 500 to 1,000 people he didn’t quite have the same effect. His presence was somehow diminished. He was quite hypnotic in small groups. President Carter is a religious and a spiritual man and that was communicated well in a smaller group. On television his spirituality didn’t communicate as well. People who had the pleasure of meeting him close up or speaking in a small setting found him to be compelling, strong, determined, and inspiring. I think the wider public, although finding him to be a good man and a hard worker, didn’t view him as quite as strong or inspiring. Something got lost in the medium that carried his message. It was unfortunate.

BR: How did your relationship with him develop?
BRC: I never had a close relationship with President Carter. I never knew him before I came into the Department of Justice. I was not an insider, and President Carter was not intensely interested in Department of Justice issues until some of the crises of the administration’s last two years. There were extremely good people throughout the department, and he had utmost confidence in Griffin Bell to run things. As I progressed I got to know the president a little better and we had a good relationship, but it was not a close one.

BR: Why do you think President Carter chose you to succeed Attorney General Bell?
BRC:I believe I was chosen based on Bell’s recommendation, which in turn was based on my work as assistant attorney general and deputy attorney general.

BR: Were you surprised when members of the Hispanic community disapproved of your nomination to be attorney general in 1979? And why did they oppose you?
BRC: Yes. When I was deputy attorney general there were a number of noteworthy cases in Texas that involved allegations of police brutality against Hispanics. Civil rights activists in the Hispanic community sought to have the Civil Rights Division charge the police officers for violating the victims’ civil rights under federal law. The division’s policy at the time was to investigate allegations, but if it was determined that there had been a fair trial the Justice Department would not seek a federal indictment based on the Civil Rights Act. If the investigation found an inadequate local prosecution and that an injustice had been done, then we would step in and bring a second case. In two or three highly incendiary cases of terrible alleged abuse our internal investigations concluded that there had been a fair trial nonetheless, and the Civil Rights Division recommended against issuing federal charges. Representatives and organizations within the Hispanic community asked me to reverse those decisions. After reviewing the files I refused. There were other cases less celebrated where we did investigate and did prosecute under federal law, but the few cases that made news headlines were not reprosecuted federally. 

And so when I was up for attorney general those cases were used against me by members of the Hispanic community to say I was insensitive to the abuse of Hispanics and unwilling to hear their grievances. I was upset that I was being labeled as prejudiced, but I was not about to roll over and say that I would prosecute any case that came along just so I could obtain approval from the Senate to be attorney general. At the time, Justice Stephen Breyer was committee chief counsel for Senator Ted Kennedy who was chair of the Senate Judiciary Committee. Justice Breyer acted as a mediator between me and representatives of the Hispanic community. After much negotiation and discussion, I appointed two Hispanic assistants and established a Hispanic council that would meet with me semiannually to discuss important issues in their community such as immigration, brutality, employment discrimination, and migrant workers. I would look into their concerns and try to make improvements or resolve problems. I enjoyed those sessions and got to know something about the great diversity in the Hispanic community. The two special assistants proved to be outstanding.

BR: What was the atmosphere like in the Carter administration when Iranian militants overran the U.S. embassy in Tehran and took American diplomats hostage?
BRC: It was a terrible atmosphere not only because the hostage crisis lasted so long but each day or week that went by with no solution or resolution, the United States and the administration looked weaker and weaker. In addition to the diplomatic efforts the United States was making, the White House staff was continually interested in taking action domestically as retaliation for holding our citizens hostage and possible leverage. There were somewhere near 60,000 Iranian students in the United States, mostly on educational visas. The White House made inquiries regarding actions that could be taken against these Iranian students. The students had legal rights and could not simply be locked up or denied those rights just because they were Iranians. They had rights to public assembly, for example, and some of the students did parade with banners that were pro-Khomeni. It was a very tough time because generally I had to advise the White House that no stringent steps or measures could be taken against these students. What we did do was investigate them individually to make sure they were here legally. We interviewed about 40,000 students, and those in violation of the law had their visas revoked and faced deportation. Lawsuits were brought against us by organizations on behalf of some of the students saying the investigations were illegal. However the actions of the government were upheld.

BR: What was it like standing before the International Court of Justice at the Hague asking the court for its help in releasing the hostages?
BRC: That was more symbolic than substantive. Roberts Owen, who was legal counsel for the State Department, had developed the case and conducted the major argument before the World Court. I was there more to emphasize the overwhelming importance of the case to the United States and our desire to try to secure justice by the rule of law. I made the opening argument, but all of the fine detailed legal work was done by Mr. Owen and his staff. Going to the Hague was great fun. I went on short notice and had to bone up fast on the applicable international law. The Hague is a wonderful place and the palace courtroom was packed. I remember I went there the day before the argument to get comfortable with the podium. It went up and down, tilted all ways, and had a dozen buttons. When I was making the argument I started to feel a little hoarse but in doing my run through the day before I ignored the water pitcher. It was to the left side of the podium. I’m right-handed. So one of my best achievements was to get a sip of water or two without spilling it everywhere while continuing the argument without interruption. 

Shortly after the presentations the international court called on Iran to free the hostages and return the embassy to American control.

BR: Tell me about the Hamilton Jordan case, in which President Carter’s top aide was accused of cocaine use in 1978.
BRC: That was an awful case. I had to determine whether or not there was any credible evidence that a federal crime had been committed and whether there was a need for further investigation. Counsel for Steve Rubell, one of the owners of the New York nightclub Studio 54, had said he had sensitive information about a high government official. The nightclub owners were under investigation for tax evasion, and Rubell’s lawyer said that if we did not prosecute then Rubell would not disclose the information. We told them to go to hell, but I had to investigate the allegation under the Independent Counsel Statute. I immediately began a 90-day investigation and had FBI agents interrogate everyone involved. We found that the people who said they had such information were bums. The witness who allegedly saw and had a tape recording of Hamilton had a criminal record for narcotics violations. I was able to determine there was no credible evidence of a federal crime. But there were alleged witnesses who had not been interviewed or who claimed they had other evidence, so we had to seek a special prosecutor under the law. Fortunately Arthur Christie was appointed by the court. He did a quick and quiet investigation and no prosecution ever resulted. But it certainly was unfortunate for all involved, particularly Mr. Jordan. The club owners by the way were prosecuted successfully for income tax evasion and went to jail.

BR: How did you feel about the media attention you received during the investigation of President Carter’s brother, Billy Carter?
BRC: I think that any time a relative of the president is involved in a questionable situation it makes headlines and becomes a big deal. The foreign agents registration question was made to be a much bigger deal than it should have been simply because Billy was the president’s brother. You may recall, it was a case where Billy Carter had not registered as a foreign agent for his connection with Libya. I told President Carter that there was an investigation of his brother and that he should register. Much later, at a press conference dealing with disposition of the matter that had been handled entirely by the assistant attorney general of the Criminal Division and the deputy attorney general, I was asked whether I had talked to the president. I said, "No." It was a bad mistake not answering simply, "Yes, but not about the disposition." That wrong answer created a firestorm for several months. In the end it all came out fine, but my life was in a turmoil for a while. You know, the ironic fact is that I never met Billy Carter nor even ever spoke to him.

BR: What do you think was the most important thing you were able to accomplish as attorney general?
BRC: In terms of something that is most lasting, I would say establishing the Principles of Federal Prosecution, which set standard policies for prosecutors across the country. It was an idea developed because of my concern about the disparity of prosecutorial practices taking place in federal litigation. It’s one thing to have differences among different states that have their own state laws, but it’s quite another thing for the U.S. government to have large discrepancies across the country in the application of federal law. I thought it was highly desirable to have consistency and uniformity, and to eliminate as much of the disparity as possible. It was also important that the defense bar and the public know the rules that the Department of Justice and the U.S. attorney are to follow.

There were other projects that were important. I was very pleased with establishing the rudiments of the criminal unit of the Environmental Law Section. That was not my brainchild but that of Jim Moorman who was the assistant attorney general of the Lands and Natural Resources Division, now the Environmental Division.

Then there was the Graymail Statute that was developed by Phil Heymann, assistant attorney general of the Criminal Division and enacted by Congress. It furthered the ability to prosecute national security cases, spy cases, without revealing national security information. Also there were the Stanford Daily guidelines that directed when search warrants and grand jury subpoenas could be issued under careful circumstances, particularly when the subject dealt with privileges, whether they were reporter-source, attorney-client, physician-patient, or other privileges.

Every administration has important cases and investigations, and we had our share from "Koreagate" to "Abscam," but what was most satisfying to me in my years at the Justice Department were the improvements, statutes, and reforms we adopted that have since had a significant impact on the administration of justice and the well-being of American citizens over the last 20 years and I expect into the future.

BR: When Carter lost his bid for reelection, why did you return to Venable, Baetjer & Howard?
BRC: I almost went with a very fine California firm that already had half-a-dozen nationwide offices. I went to sleep one night with plans to call the firm the next morning to accept their offer. But then I got up and called H. Vernon Eney, my mentor at Venable, and said I was coming back. When I called the managing partner at the California firm he asked me why I was returning to Venable. I said, "The best way I can describe it is heart over head." That was an inadequate way of saying that I knew the people at Venable. I admired them and grew up in the law with them. They were my "legal" family.

BR: You mentioned Mr. Eney was your mentor. What did you learn from him?
BRC: I’ve been the beneficiary of so much mentoring from Judge Chesnut, Joe Tydings, H. Vernon Eney, Frank Murnaghan, and Griffin B. Bell. I had absolutely marvelous mentors and I learned different things from each one. From Judge Chestnut it was precision. From Tydings, vision. From Eney it was breadth of analysis and capabilities: to spread your abilities across a wider spectrum than you would otherwise think possible. I have never been able to achieve the level of energy and effort that Eney had, but I certainly worked better and harder because of him. Murnaghan taught me perseverance and courage. He was absolutely fearless and he was a great delegator. Bell was a great decision-maker. He had excellent judgment and a sense of humor which goes a long way to help solve problems. Bell has great courage too. I picked up a little bit of these characteristics from each of them, but I wish more had rubbed off.

I now enjoy the reverse role where I’m able to help younger lawyers with their careers, and watch their progress, especially in litigation. We have developed outstanding litigators in this firm and I am proud of the role I’ve played here. As a mentor I try to echo those things I learned from my own mentors.

BR: What do you savor most about your life outside of your family and your career?
BRC: In terms of enjoyment it’s probably gardening and golf. In terms of satisfaction and pride it’s public service, whether it was working on the Len Bias investigation at the University of Maryland, being the American Bar Association representative to the United Nations, heading a commission on the international criminal court, or something more local like forming the Maryland Legal Services Corporation or serving as chair of the Maryland Governor’s Commission on Welfare Policy. I’m now on the board of the Legal Aid Society of Maryland, which is a beneficiary of Maryland Legal Services Corporation and the leading provider of services to the poor. I thoroughly enjoy serving on corporate boards, such as Bethlehem Steel, MBNA, and Wackenhut, which is a different kind of challenge that benefits individuals and the public.