Washington Lawyer

Legends in the Law: Lloyd N. Cutler

(Appeared in Bar Report, October/November 1997) 

Lloyd N. Cutler is a founding member of the Washington, D.C. law firm of Wilmer, Cutler & Pickering. A 1939 graduate of the Yale Law School, he has served as White House Counsel to President Carter and President Clinton. He is married to Polly Kraft, and is the father of four grown children, three of whom are lawyers. 

Bar Report: Can you tell us a little bit about your personal background? 
Lloyd Cutler: I was born in New York City. My parents were second generation Jews from central Europe. When my paternal grandfather arrived at Ellis Island he was advised to change his name from Koslow to Cutler. So we've been Cutlers ever since. 

My father was a trial lawyer in New York, where he was a law partner of Fiorello LaGuardia. I can remember going to his office when I was ten, eleven years old. Sometimes Fiorello would be there and he was just marvelous. He always had wonderful stories about Congress, about local politics, about all sorts of things. 

BR: Was it assumed that you would follow in your father's footsteps and enter the legal profession? 
LC: My original ambition was to be a trolleycar motorman. I held to that until I was five or six years old. After that, I suppose being a lawyer was what I wanted to do. I went to Yale as an undergraduate, then to Yale Law School. And I loved law school. 

BR: What was it that you liked about it? 
LC: The first year of law school is one of the most stimulating intellectual challenges that you can have. Unlike college, law school is taught as an exercise in intellectual analysis. I had a great torts professor, Harry Schulman, who spent the whole year teaching one case. Everything he wanted to develop he could get out of that single case, Ives v. South Buffalo Railway Company. I can't remember the names of some people I met a week ago, but I can remember that case. 

BR: You mention the first year as being a great challenge. Was that true for the subsequent two years as well? 
LC: No, after the first year it tails off. Even though I was the editor-in-chief of the law journal, I didn't work all that hard. I spent a lot of time going to double features and playing poker. 

BR: Did you have a vision of the type of law you wanted to practice? 
LC: I never had any thought of practicing anywhere other than New York, because that's where I was born and raised. If not for the war, I'd probably be a Wall Street lawyer today. But when I graduated in 1939, it was a time of great political ferment. Hitler was making the moves in Europe that brought on World War II, and in the United States people were lining up as interventionists or isolationists. I didn't want to become a career civil servant, but public service was very important to me. I wanted to do something that would help make a difference. 

BR: What did you do upon graduation? 
LC: I was a law clerk to Judge Charles Clark for one year, then I went to work for the Cravath firm in New York. 

BR: Can you remember what you were doing when you heard the news that Pearl Harbor had been attacked? 
LC: Everybody remembers that day. It was a Sunday, and my wife and I were chaperoning a former law school classmate of mine and his girlfriend. Chaperoning was something you did in those days. We were weekending in Mount Kisco. Of course, we were shocked when we heard the news. The first thing I did was get on the telephone to friends who had already gone to Washington to see if I could catch on. This was a war that people itched to get into. The cause was a cause you cared about. Even those who were relatively unmoved by Hitler reacted immediately to the Japanese attack on Pearl Harbor. 

BR: Did you get a job in Washington? 
LC: Yes, I ended up in the Lend-Lease Administration working with Oscar Cox, who was its general counsel, as well as assistant solicitor general in the Justice Department. One Sunday afternoon in 1942 he called me on the telephone and said, "Can you come down to the Justice Department right away?" That was the day that J. Edgar Hoover announced the arrest of eight Nazi saboteurs who had arrived by submarine. Hoover pretended that they had been apprehended through great detective work by the FBI, and that federal agents were practically standing on the beach waiting for them. But the truth was that two of the Nazis had volunteered for this sabotage mission to get off of the Russian front. On the way over they decided that they would go straight to Washington and turn themselves in, which is what they did. There was a trial in front of a military commission, and I was brought in as the most junior lawyer on the government's side. 

That was an interesting experience. Francis Biddle, the attorney general, prosecuted these Nazi saboteurs himself, and a North Carolina trial lawyer by the name of Kenneth Royall, who was then a colonel in the Judge Advocate General Corps, was appointed to defend them. The commission hearing the case was made up of seven major generals. On the first day Biddle put on the first witness, and when he asked a question Kenneth Royall stood up and objected. He was absolutely right to do so. It was a perfectly good objection. The president of the court banged his gavel and said, "The court will rise." The generals on the commission all went out for about forty-five minutes—about the time it takes to smoke a good cigar—then came back, and the court said, "Objection overruled." So the question was answered. Then Biddle asked a second question, and Royall had another perfectly good objection. The same thing happened. The court rose, took another forty-five minute break, came back, and overruled the objection. Well, Kenneth Royall got the message. He never made another objection. If he had, we would have spent the rest of our lives there. 

BR: Were the saboteurs convicted? 
LC: Yes, they all got death sentences except for the two who turned themselves in. Those two were sentenced to life in prison. I believe one of them is still alive today. His sentence was commuted about ten years ago. But the case became a Supreme Court case. Although the executive order that created the military commission denied these eight defendants access to the civil courts, the filed a writ of habeas corpus and went through the process of litigating in district court, the court of appeals, and the Supreme Court.

BR: And the original convictions were upheld? 
LC: Yes. 

BR: Did you remain with the Lend-Lease Administration for the duration of the war? 
LC: No, I spent about nine months with the Lend-Lease Administration, then I enlisted in the Army combat engineers. Shortly thereafter, I was pulled into military intelligence, and I spent the remainder of the war working as a code breaker and intelligence analyst.

BR: Once the war was over, did you consider going back to New York? 
LC: Yes, after I'd completed my military service, I thought about going back to Cravath. Prior to my departure from the firm, I'd been working with the head of the firm, named Robert Swaine, on two major railroad reorganizations. Mr. Swaine totally disapproved of my leaving. He told me, "The railroads are just as important to the war effort as the Lend-Lease Administration. You don't know anything about Lend-Lease, but you were trained on these railroad matters. If you go down to Washington, I'll have to train somebody else, and that's very inefficient." Well, I left anyway, and in my place Mr. Swaine took on a good friend of mine at the firm by the name of John Connor. He wanted to go to Washington too, and shortly after I got down there I called him up and told him that the government needed a lawyer for the Office of Scientific Research and Development, which was Vannevar Bush's group that developed the Manhattan Project and the proximity fuse. So John Connor followed me to Washington, and Swaine was left high and dry a second time. After the war, Swaine told Connor that he was not welcome at Cravath. He said, "We're not going to take all of you fellows back who went in to civilian jobs. Our first loyalty is to those who were drafted into the military or enlisted in officer training school." 

Well, I could see the writing on the wall. Since I'd been the first to jump ship on Mr. Swainee, I didn't think I had much chance. So I joined Oscar Cox and two other attorneys who had been on the Lend-Lease legal staff and we formed our own four-person law firm here in Washington. Seventeen years later we merged with John Pickering's firm to form Wilmer, Cutler & Pickering. 

BR: Were you upset by the Cravath policy? 
LC: Not really. I didn't actively seek to return. Cravath is still a role model for our firm and we work closely together. 

BR: What sort of cases were you handling in your new firm? 
LC: Well, the cases haven't changed very much over the years. Thanks to the aforementioned John Connor, we became the pharmaceutical industry's counsel on the "Kefauver legislation," which dealt with the "me-too" drugs and the length of patent protection a company could have for a pharmaceutical product. John Pickering was working on the Bethlehem Steel case, where President Truman seized the steel mills, and we worked with him on that. We were also part of the IBM defense team in the original government antitrust case, which was based on the theory that IBM had an entrenched position within the industry that made it impossible for other companies to break in and compete. Eventually, the Justice Department dropped the antitrust case against IBM. But look at what has happened in the computer industry since then. Needless to say, it's an intensely competitive industry. 

BR: When you teamed up with John Pickering, did you do so with the intent of building a firm that would be one of those most prominent in the nation?
LC: No, we weren't quite that ambitious. The reason we did the merger was because we were interested in growth. In my original firm there were some who were resistant to too much growth. There was also a sharing the wealth issue that had developed over time. The attorneys we brought into the merger all wanted growth. It wasn't until we reached sixty attorneys that someone suggested that maybe we were getting too big. But nobody says that now. 

BR: How did you become involved with Jimmy Carter? 
LC: In the early '70s I was a member of the Trilateral Commission formed in response to the so-called "Nixon shock" that came about when we devalued the dollar and imposed extra tariffs on the Japanese. The idea was to develop an American-European-Japanese dialogue among private businessmen and former government officials. Jimmy Carter was a member of that commission. In our meetings we were seated alphabetically, and because both of our names began with a "C" we sat close to each other. That was how I got to know him. 

BR: Did you have the sense that you dealing with a future president of the United States? 
LC: No. When I met him he had completed his term as governor of Georgia and was just beginning his campaign for president. I liked Jimmy Carter personally, but I didn't think he had much of a chance. The odds-on favorite back then was Scoop Jackson. But as it turned out, Jackson was a terrible campaigner. Carter was able to build the early momentum that allowed him to take off. 

BR: Eventually, President Carter asked you to become his White House counsel. How did the come about? 
LC: Early in 1979, on a part time basis, I was helping the administration to prepare to present the SALT II treaty to the Senate for ratification. In August after Congress adjourned, but before the hearings had started, I was vacationing in France when the White House operators tracked me down on a barge on a French canal. I was told President Carter wanted me to come back to Washington as soon as possible. That was the year he was talking about "malaise" and making changes in his administration. As part of that shake-up, he wanted me to become White House counsel. 

BR: Was that an exciting job? 
LC: Oh, yes! In those days it was a much better job than it is today because it was a policy-making job. I didn't have to spend all my time defending the president and his team from personal attacks. Although we had to deal with the handling of the Billy Carter relationship with Libya, I spent most of my time working on SALT II, on issues arising from the Soviet invasion of Afghanistan, the seizure of our hostages in Iran, and all sorts of domestic issues. I thought it was the best job a lawyer could possibly have.

BR: The Iranian hostage crisis was very traumatic for the entire country. What was it like inside the White House during those 14 months? 
LC: At the beginning, we thought we were going to get the hostages back pretty quickly. Everyone agreed that a military solution was not the best solution. There had been an earlier attack on the embassy in February of that year in which our diplomats and embassy personnel had been seized. At that time, the post-shah government, which was headed by Prime Minister Mehdi Bazarghan, intervened to help get them released. We thought the same thing would happen this time. But Ayatollah Khomeini had returned from his exile in Paris, and after a few days, he endorsed the action of the militant students holding the hostages. At that point, we went to work on adopting the executive orders that froze all of the Iranian assets in American banks here and in Europe. Ultimately, that turned out to be the key to the negotiations that freed the hostages. 

BR: Prior to that, there was the failed rescue mission in April of 1980. Did you know about the rescue mission in advance? 
LC: Yes. I was called in two or three days before it happened to advise on whether or not the mission would trigger the War Powers Resolution. I was told, "You can't talk to anyone about this. You can't even talk to the attorney general." So I went over to the law library in the Executive Office Building and looked up what law there was myself. I concluded that because this was a rescue mission it did not require prior consultation with Congress. The mission would have been compromised if the element of surprise was lost. Nobody on the Hill ever challenged their interpretation. 

BR: Did you have any concerns about the mission's potential for success? 
LC: Yes, I had serious reservations, and I almost quit my job over it. Cyrus Vance, who was then the secretary of state, had advised the president against the mission and that he felt he had to resign. I agreed with Cy. But he urged me not to resign. Vance urged me to stay. 

BR: Why were you opposed to the mission? 
LC: I didn't think it would work. It just seemed to me that there was too much that could go wrong: you had to the fly the helicopters into the staging area at Desert One, get the helicopters to a mountain outside Tehran, drive trucks into Tehran without being noticed, then storm the embassy and take the guards by surprise—and then, after all of that, you had to get everybody out via Turkey, which I thought was going to be the hardest part.

BR: Did you express your reservations to President Carter prior to the launching of the mission? 
LC: Yes. 

BR: What did he say? 
LC: I don't want to get into the details of a private conversation I had with the president. The Pentagon people had concluded that they had a 60 to 70 percent chance for success, and it was on the basis of that assessment that President Carter made the decision to proceed. 

BR: I assume you were heavily involved in the subsequent negotiations? 
LC: Yes, I was. We were actually on our way to a resolution that we thought would get the hostages out before the November 1980 election in which Carter was running against Ronald Reagan. I think if we had been able to get them out, Carter would have won because he was leading in the August polls. 

BR: During that time did you feel that the fate of the Carter presidency was riding on your shoulders and that the outcome of the negotiations would be definitive? 
LC: It's a little strong to say that it was riding on my shoulders, or anyone else except the president. But certainly we felt it was riding on the fate of the hostages. The negotiations blew up when Iraq attacked Iran. The war distracted the Iranians, and the public frustration was too much for President Carter to overcome. We had lots of other troubles then too—11 percent inflation, 22 percent interest rates, and Ronald Reagan was talking about the "misery index." 

BR: Of course, the negotiations continued right up to the time of the inauguration. Were those final hours a gut-wrenching time?
LC: Very much so. You may recall that the Iranians would never negotiate directly with us. Everything had to go through the Algerians, which is why Warren Christopher, who was deputy secretary of state, went over to Algiers. The Iranians were asking us to do all sorts of things—some of which were unconstitutional, some of which would have been unprincipled. In the White House counsel's office we had to advise on all of that. And we had the problem of dealing with the banks that held the frozen Iranian assets. Eventually, we worked out a way of releasing the assets in exchange for the release of the hostages. But due to Iranian ineptitude, President Carter had to leave the White House with the Reagans on the morning of the inauguration not knowing if the hostages were out—or if they were going to get out. I stayed behind with the NSA people listening to the traffic in and out of Iran. Reagan was sworn in at 1:30, and it was only at the final hour that we got the word that the planes carrying the hostages had lifted off the runway in Tehran.

BR: That must have been a dramatic moment. 
LC: Yes, it was. But the most moving event of all was flying over to Weisbaden to meet the hostages when they arrived in Germany. President Reagan gave President Carter the use of Air Force One so that he could personally greet the hostages. That was a very emotional meeting. Some of the embassy hostages felt very strongly that Carter had made a terrible mistake in launching the rescue mission—and they told him so. President Carter explained why he had done it, and because he was so candid himself I think he won them over. 

BR: Would any other president have had the extraordinary patience necessary to bring the hostages home alive? 
LC: I don't know. It's hard to imagine what Reagan would have done. If we had reacted with military force and bombed Tehran it might have made people feel better, and we might have won the election, but the hostages would probably have been killed. 

BR: After working at the White House in a time of crisis, was it difficult to go back into private practice? 
LC: Not really, no. I wanted to get back because there was a new phase in the IBM case that I wanted to work on. This time the case had become a major issue with the competition unit of the European Commission. The fact that I had something I was actively looking forward to getting involved in helped make the transition easy. I know that President Carter was deeply disappointed at losing the election, and I shared that disappointment. But one of the great glories of our country is that when you make those transitions, everybody peacefully accepts the outcome. And in those days, nobody got prosecuted either. 

BR: One of the most contentious issues to arise during the Reagan administration involved the nomination of Robert Bork to the Supreme Court. Even though you've always labored as a loyal Democrat, you were supportive of the Bork nomination and you testified on his behalf. Why was that? 
LC: Fairness. I thought he was well qualified. He's a man of intellect, substance, and guts. For a Ronald Reagan appointment, I thought Bork was acceptable. I thought he was about the best we could expect from a conservative like President Reagan. I was also worried that if Democrats started sabotaging Reagan appointments by making ideological attacks, they would pay for it in the long run. The Republicans would retaliate. 

BR: Have they? 
LC: You certainly see a big slow down in the Senate confirmation hearings, and the Republican reaction has been to make ideological attacks on Clinton appointments—not just for judgeships, but across the board. 

BR: When you went back to the White House to serve in the Clinton White House, the administration was under siege as a result of the Whitewater investigation. Was it difficult to work under that kind of a cloud? 
LC: I didn't want to go back. I was asked to take the job of White House counsel and stay for a minimum of one year. I made a counter-offer that I believed the president could not accept, which was to say that the longest I could stay would be for six months. To my surprise, President Clinton did accept. 

BR: Why didn't you want to go back? 
LC: It's an incredibly tense job. As a lawyer, you're generally accustomed to learning everything you can about a particular matter before you start making decisions. But you don't have time to do that in the White House. You're constantly making decisions on the basis of imperfect information and sharply conflicting views. You're calling a lot of hunch shots. When I come in to work here at the law firm, I generally have a list of things I want to do and a schedule to work from. But in the White House you can't work from a schedule. By ten o'clock in the morning something has happened that you've got to respond to. And there's a news cycle that you've got to be sensitive to. If you don't have your position ready by four o'clock the correspondents will be standing on the White House lawn for the evening news broadcasts saying: "The White House is in disarray. They don't know what to do. They're not speaking." So it's rough. It's a very difficult environment to work in. 

BR: Do you think President Clinton has been treated unfairly? 
LC: Yes, President Clinton has been treated unfairly. Most presidents are treated unfairly. What's unusual in Clinton's case is that most of the criticisms have concentrated on things that happened before he became president. Whitewater, the Paula Jones sexual harassment law suit—things that are unrelated to his presidency. Moreover, most of the allegations are not true. Even so, they're still very embarrassing. Very personal. This talk of Paula Jones being able to identify a distinguishing mark on the president—how would you like to explain that to your seventeen-year-old daughter?

BR: Is part of the problem the independent counsel statute? Is it a bad law that has resulted in political prosecutions? 
LC: I was one of the early supporters of the independent counsel statute, and I still think we need one. But I also think the law is in need of reform. Right now, the threshold to trigger the appointment of an independent counsel is much too low. The Justice Department has no investigative powers to subpoena documents or depose witnesses. The attorney general should have at least that much authority in the conduct of a preliminary investigation. Additionally, we need to limit the amount of time a special prosecutor has to conduct an inquiry. Perhaps they should be held to one year, unless the attorney general can be persuaded there are compelling reasons for prolonging an investigation. We also need to alter the method of appointment. The law was originally intended to remove partisan politics from the equation. But the decision to dump Robert Fiske and replace him with Kenneth Starr as Whitewater independent counsel has had exactly the opposite effect. I've proposed a method whereby the president would appoint a standing panel of ten experienced, nonpolitical prosecutors who would be confirmed by the Senate. If the need for an independent counsel arose, this panel could pick one. 

BR: You've said that you think most of the allegations leveled at President Clinton are untrue. Do you think Kenneth Starr has been overzealous in the conduct of the Whitewater investigation? 
LC: I never criticized Kenneth Starr publicly, and I don't want to do so now. 

BR: As you look back on your career, do you have an accomplishment that you are most proud of? 
LC: I'm proud of Wilmer, Cutler & Pickering. We've always run this firm on a share the wealth basis. I think our ratio of partners to associates is probably much closer to one- or one-and-a-half-to-one any than is the case for New York or Washington firm of comparable size. When an associate comes up for partner, it's important to measure that person on his or her merits, rather than on some sort of cut-throat, bottom-line basis. Some firms will say, "We're going to take three partners this year, and that's it." But we don't do that at Wilmer, Cutler & Pickering. To do so would be unfair to some good young lawyers who have been loyal to us. It's important to make room for able younger people. You don't want to have the old folks like me hanging on forever.