Washington Lawyer

Legends in the Law: Samuel Dash

(Appeared in Bar Report, August/September 1998) 

Samuel Dash is widely known for his role as chief counsel to the Senate Watergate Committee, but his career has taken him around the world, including Northern Ireland and South Africa. He is a professor of law and director of the Institute of Criminal Law and Procedure at Georgetown University Law Center. He has been a federal prosecutor in the criminal division of the U.S. Department of Justice as well as the district attorney of Philadelphia, Pennsylvania. 

Bar Report: Tell me a little about growing up in Philadelphia. 
Samuel Dash: We were dirt poor. I had a job from the time I was seven. Our biggest fight at home was how to divide a Tastycake package of three cupcakes into six parts.

In junior high I was president of the Student Government Association and in high school president of the Interscholastic Student Government Association of all the high schools in the area. I went to Central High School which is the oldest public high school in the country. I was a very serious young man, very committed to saving the world.

I loved to write poetry. In high school English we were supposed to write a paper on Shakespeare, and I decided to write a Shakespearean play. I wrote a five-act tragedy in Elizabethan iambic pentameter. For months I was walking around speaking that way so I could write the play in the "natural" language. It was about Alexander the Great. My teacher accused me of plagiarism until I proved to him neither Shakespeare nor anyone else had written a play about Alexander the Great. On my 70th birthday my wife, Sara, and our two daughters and son-in-law surprised me by putting on a production of it, which was the first time I ever saw or heard the spoken play. 

BR: What happened after high school? 
SD: I started at Temple University but then World War II broke out. As soon as I turned 18, I enlisted in the Army Air Corps and became an aviation cadet. Ultimately, I served as a bombardier navigator on B-24s in Italy.

When I returned to the United States in 1945, I took a brief vacation in Atlantic City. I was on the boardwalk with a friend when I saw a family with a very pretty young lady. My friend, Howard, reminded me that she was Sara Goldhirsh, who had been in the school play with us in junior high school. We followed the family to see where they lived and the next morning we sat on the beach in front of their house and I "accidentally" bumped into her in the ocean. I married Sara in 1946, when I was a junior in college. 

BR: Were you thinking of pursuing a law career at that time? 
SD: I always wanted to be a lawyer, but first I had to finish at Temple, where I was studying political science and history. As someone with no money, I thought I would be a teacher and go to law school at night, but Sara nixed that. She said I ought to go to the best law school in the country, which was Harvard.

I was first in my class at Temple, but when I applied to Harvard the law school hadn't had any experience with Temple graduates. To prove myself, Harvard wanted me to take the graduate record exam, but the time to take it had passed and I would have lost a year of law school. So I researched some of the leading graduates of Temple, who were judges and congressman, to give Harvard background on Temple. I was finally accepted and achieved honors. 

BR: While at Harvard, didn't you create a group of voluntary student defenders? 
SD: Yes. I've always been driven by the concept of equal justice under the law, but only the rich can pay great sums of money for legal assistance and that puts them at an advantage over the poor. If law serves justice, it ought to serve all people equally. In the Boston area there was a voluntary defender who was supported by charity funds. The attorney had so few staff and such poor office resources that he could hardly defend anyone. So, with permission of the dean, a classmate and I got together a group of students and set up what we called the "Harvard Voluntary Defenders." We put our services at the disposal of the voluntary defender in Boston. We would research cases and interview witnesses so that the voluntary defender could actually represent people. There was a strong feeling of mission and in 1999 the Harvard Voluntary Student Defenders will celebrate the 50th anniversary of its founding. 

BR: What was your first job after graduating from Harvard? 
SD: I was a teaching associate at Northwestern University. Everybody tells graduating law students to get a job in a big law firm, but I realized that wasn't my main interest. My main interest was criminal law. An offer came to me from Northwestern to serve as a teaching associate with the additional job of working with the Chicago Crime Commission to investigate corruption in the city. While teaching, I also worked undercover in the lower courts by saying I was a young law teacher wanting experience in criminal law. The judges were happy to assist me but what I learned was how corrupt the lower courts were. Judges were accepting money right in the courtroom. I wrote a report called "Cracks in the Foundation of Criminal Justice." I was going to give it to the Chicago Crime Commission but they didn't want to expose the corruption and embarrass the courts publicly. So I sent it to the Illinois Law Journal, which published it, leaving out names. The Chicago Tribune wrote a ho-hum editorial on my report saying, "What else is new?" The report has since been used as a basic study of what goes wrong in lower courts when there is political corruption. 

BR: You turned down a teaching position at Harvard to pursue a career with the U.S. Department of Justice. What was that experience like? 
SD: I was in the appellate section of the criminal division and I worked on some of the leading cases that were coming through the federal courts. That was during the McCarthy period and there were a lot of cases involving the Communist party. One of those cases assigned to me involved a conviction for perjury in New York and the appeals court reversed the case. The presiding judge was Judge Learned Hand, one of the greats. When I was a student, Learned Hand was God. As I read his opinion I was nodding and agreeing with him, even though his decision, reversing the perjury conviction, went against the government. At the Justice Department I argued that the government was wrong;we should admit our error and should not seek Supreme Court review. Everyone around me was saying, "McCarthy will come after you. You'll be called a Communist." My feeling was, "That's what the law is. We have to have some integrity." Everyone was scared for me, but when I sent my report to the solicitor general he agreed. He sent back a memo saying there would not be a petition for review by the Supreme Court. I thought, "That's justice." Despite the hostile atmosphere McCarthy had created, we were able to do the right thing. 

BR: In an environment like that how do you really stick to your guns? 
SD: You have no choice, if you have principles and believe strongly in them. One of the things I realized early in my career is that you do what you believe, in knowing that if you don't, you will never like yourself. When you compromise out of fear or ambition, it eats inside you. I try to teach that to my students. 

BR: Why did you leave the Justice Department? 
SD: While I was at Justice there were great political changes in Philadelphia. The Republicans had been in office for something like 69 years and the Democrats had ousted them. Richardson Dilworth was running for district attorney and Joe Clark, who later became senator, was running for mayor. I got a call from Dilworth after the election, and because I didn't know him, I thought it was a crank call. But it really was Dilworth on the line. Even though I was only 27, he offered me the job of chief of the appeals division. That made me number three on the DA's staff, but I had not yet been admitted to the Pennsylvania bar. Back then, before you could be admitted you had to serve an internship. For six months you had to carry the briefcase of a lawyer in town who's supposed to be teaching you professionalism—the practice has since been found unconstitutional. Anyway, I had to serve that six months and Dilworth became my preceptor, as well as my mentor. It was the first time the chief of appeals in the district attorney's office was an intern.

When Clark was elected senator, Dilworth decided to run for mayor. I was selected, by mostly Republican judges, to serve as district attorney for the remainder of the term. I think I was the youngest DA of a major city. One of the most newsworthy cases I worked on was in 1955. It was like a Romeo and Juliet case. The beautiful daughter of a wealthy family eloped with a motorcycle police officer. She was pregnant when she called her mother, who ordered her home. Shortly afterwards, she was reported as having suffered a mysterious death. Our investigation, however, supported by the legendary medical examiner I imported from New York, proved the daughter had been given a crude and abrasive abortion, which caused her death. Ultimately, we got a plea of guilty from the abortionists and a plea of nolo contendere from the mother. It was almost like Watergate for me, in a sense, because of the momentum, the many hours investigating and the extensive press coverage. It gave me some experience dealing with the press. 

BR: How did you handle the pressure? 
SD: As a young DA I had to step back a bit and define my role. I had to ask myself, "Who am I as district attorney with tremendous powers of discretion?" I had two roles: one was that my staff and I had to do the job with integrity and with excellence in our investigations, and the second, we had to be accountable to the public. 

BR: I understand that you were the first to investigate wiretapping in the country? 
SD: Yes. When I was in private practice the Fund for the Republic gave me a grant in 1957 to study the practice and technology of electronic surveillance nationwide. I took a leave of absence and spent two years investigating every phase of the problem. I published my findings in a book, The Eavesdroppers, which contributed to Congress' and the Supreme Court's changing the law on electronic surveillance to better protect privacy. 

BR: How did you end up at Georgetown Law Center? 
SD: When I left the DA's office, and while I was practicing as a trial lawyer, I was a consultant for the Ford Foundation on legal issues and legal aid. I was asked to research law schools and find a project where the Foundation could best contribute financially. I suggested giving money to a law school willing to set up an empirical research institute that would give students some real life experience in the law instead of simply studying court opinions. The Foundation liked the idea and gave the first grant to Georgetown. Dean Paul Dean offered me a full professorship plus the directorship of the new Institute of Criminal Law and Procedure if I would come to Georgetown University Law Center. The institute came out with some of the most exciting studies looking at the criminal justice system. 

BR: How does it feel to look back and see the progress of things you started? 
SD: Looking back and tracing these things certainly makes you feel good, but what it's taught me is that when you believe in what you're doing and use your imagination and initiative, you can make a difference. 

BR: Does it come from having that drive within you? 
SD: It's a drive and a perception. I tell my students, unless you have a perception of who you are as a lawyer, you will never be at ease in dealing with legal matters, clients, or courts. But if you know who you are and why you're there, all you need is the expertise and the information. Many attorneys look to TV lawyers as role models. As a matter of fact, when I was president of the National Association of Criminal Defense Lawyers, which I founded in 1958, we had as a speaker at a conference, Raymond Burr, who played Perry Mason. He took his role as a criminal defense lawyer so seriously he actually started giving tips to all the experienced defense lawyers there on how to try a case. At the end they all asked him questions on how to deal with different situations. He was an actor! 

BR: As a member of the International League for Human Rights you visited Northern Ireland in 1972 after the "Bloody Sunday" incident. What was your involvement there? 
SD: British paratroopers had killed thirteen young men and wounded thirteen, all unarmed civilians. The civil rights groups from Britain and Ireland wanted the International League to form an international tribunal to investigate what happened. I was on of three lawyers asked to go to Northern Ireland. The Lord Chief Justice of England, Lord Widgery, conducted a hearing and unfortunately came down with an opinion in which he defended the soldiers. He said they had reason to believe they had to shoot in self defense. From my own investigation I learned that nobody in the crowd had a gun. Some stones were thrown and the soldiers claimed they thought the stones were bombs with smoking wicks, but certainly there could be no lighted wick with smoke coming from stones. It was clear Lord Widgery was under pressure to side with the British military, and when his report came out it was a shock to Northern Ireland. I ordered a transcript of the full testimony and got hundreds of eyewitness statements. Because I had all the evidence, the International League asked me to write a report. I wrote Justice Denied: A Challenge to Lord Widgery's Report on Bloody Sunday. After it's release in Britain, the British Broadcasting Company called me from London and the reporter wanted to ask me questions about my Bloody Sunday Report. "Is it true that you teach at Georgetown, a Jesuit school?" he asked. I said, "Yes, I do." He said, "Being a Catholic, can we give you any credibility at all?" I said, "I'm Jewish and Georgetown had nothing to do with my going to Northern Ireland." He didn't have another question and said simply, "Well thank you." And that was it. But Widgery's report has festered all this time and now, 26 years later, based in part on my findings, the British prime minister has set the Widgery finding aside and reopened the case with hearings scheduled for next year. 

BR: How did you become chief counsel of the Watergate Committee? 
SD: Sara and I had been on a human rights mission to the Soviet Union and when we got back in September of 1972 we were looking, for the first time, at headlines about Watergate. That November, Senator Sam Ervin called me and asked if I would help form the rules of his new committee. He asked if I had any suggestions for chief counsel, so I gave him some names. In late December or early January, I was home with a cold and got a call from Ervin. He said, "We need a chief counsel. I've got hundreds of judges and lawyers applying for the job, and some of them are willing to do it for nothing. You know what you get for nothing. Nothing. I don't know the motive of these people, so I'm not going to appoint anyone who is asking for the job. I'm going to find my own man. I checked you out and the full committee has approved my offering you the job of chief counsel." I was stunned. I said, "I'm flattered, but the spring semester has just begun at Georgetown. I can't leave my students." He asked me to reconsider. I discussed this with the dean, who told me not to worry about my classes, that he would find a substitute professor for me.

From past experience, I knew that being chief counsel of a committee of politicians was treacherous unless I had certain guarantees. One, I wanted to hire my own staff;two, I needed the financial resources to carry out the investigation;and three, I didn't want anyone to stop me. I said, "If I'm moving forward I don't want the committee to interfere." Ervin said, "You wouldn't be good for us if you didn't insist on these conditions." He put it in writing. I was in his office and he gave me the letter and said, "If I ever go back on this you come and throw it in my face."

He never did. Senator Ervin was a rock. I believe I put together a remarkable staff. I had 100 very dedicated people working with me. We were the first congressional committee to use modern technology. The Library of Congress offered me their whole computer system. All the information we got, whether testimony or a news story, we put it into the computer bank. We had all the facts on computer. It's amazing the kind of information we got that allowed us to do wizardry in cross examination. When I was questioning former attorney general John Mitchell about an incident, he said he couldn't recall. Within two minutes I had a printout of a newspaper article that reminded him of the event. We looked like geniuses because we could produce evidence so fast. 

BR: Before you got started on the investigation, how did you feel? 
SD: I was going to take on a new adventure, and I had to figure out the role of a chief counsel to an investigating committee. What does he do? What is his function? I realized that my principle role was as a reporter to the people of the United States. After you get all the facts and you yourself understand the harm that was done, how do you communicate that harm to the public? I wanted to have hearings every day on television and that's what we did.

The senate committee appointed me in February of 1973, my staff was hired by March, the first hearings opened in May, and we never stopped. We were doing investigations in the evenings. I was getting to my office around 5 or 6 a.m., getting home around midnight and getting about two hours of sleep, then going back. The American people were glued to their televisions. The telegrams and letters that came in were amazing. Inferences from John Dean's testimony led us to the White House tapes which was the most sensational find in the investigation. When special prosecutor Archibald Cox was fired by Richard Nixon, the public saw it in context of the hearings. This was not an uninformed public;they knew why Cox was fired—to stop him from exposing Nixon. This was the "Saturday Night Massacre." An uproar followed. Millions of people wrote to the White House and Congress. It was that public pressure that gave the House Judiciary Committee the courage to impeach. They would never have done it without the outrage of their constituents. 

BR: Were you as shocked and outraged as the general public? 
SD: Oh yes, shocked and saddened. When I was negotiating with John Dean's lawyers, I was surprised to discover that Dean and his lawyers were afraid for him to come to my senate office because there were certain Republicans who were leaking information to the president. Dean's lawyers said that if it became known that Dean was talking to us they feared he would be killed. I got permission from Senator Ervin to meet secretly at Dean's home in Alexandria, Virginia at midnight with his lawyer to hear what he had to say to determine whether I would recommend immunity for him. So I uncovered the story of Watergate and part of the story unfortunately, I thought, was that the President was very much involved in the cover up. I remember driving back from Alexandria at two o'clock in the morning almost weeping because I realized that we would be exposing the President of the United States as a criminal. It was a tremendous burden.

Ervin felt the same way. He said publicly that he thought the Civil War was the greatest tragedy of the United States but at least it had some redeeming features. He now believed Watergate was the most tragic event because there were no redeeming features. Watergate was unique because it allowed the public to play its democratic role in expressing its outrage at the presidency. And as a result, for the first time in history a president resigned.

With all the publicity, newspapers were asking if I was going to run for the Senate and I said, "No, even though I had been offered the opportunity, I'm a professor of law and I'm looking forward to returning to my classes." I've always wanted to be my own person and stand by the things I believe in and I thought I might lose that independence if I ran for political office. I can say, though, that when I was getting two to three hours of sleep for close to two years, the adrenalin was moving, but when I came back to the quiet of the law school it was tough returning to a normal life. That's when I started to write Chief Counsel

BR: After Watergate, you were instrumental in creating the independent counsel statute. 
SD: I talked to Senator Ervin and the committee, and we came up with the idea of a special prosecutor who could not be fired by the president. He or she would be appointed by the court on the application of the attorney general. It became part of the Watergate reform legislation that was enacted in 1978. The law had a sunset clause so that it would have to be reauthorized every five years. I testify every time it comes before Congress. There's been much attention and a lot of misinformation about the statute, and I constantly try to remind Congress and the public of why we need the independent counsel statute. 

BR: So, you still think it is a good thing? 
SD: I do. It doesn't always work well, but we can't go back to the time when the Justice Department was investigating the president or other high executive officials. As an alternative, the attorney general could appoint a regulatory special prosecutor under her. But that prosecutor, if competent, would be just as aggressive and thorough as an independent counsel. 

BR: In 1994, you were retained as ethics counsel to Independent Counsel Kenneth Starr. How did that come about? 
SD: Judge Starr invited me to Little Rock to give a lecture to his staff on the role of the independent counsel. I gave a two-hour lecture on not only the legal part but also the conceptual part. The independent counsel and the staff are in a very powerful position with the limelight on them. The public perception of justice is seen from how they behave and therefore they not only have to be fair but have to be seen as fair. After the lecture Starr asked me if I would be willing to serve as an outside consultant on these issues, and I accepted. I have no operational responsibilities. I have no vested stake in the investigation, which permits me to be objective. What I do is advise on the legal and ethical requirements of the investigation. 

BR: You've been criticized as being Starr's spokesperson, with critics saying that you were hired to make him look good. What's your response to that? 
SD: People who know me would say that is not Sam Dash. I would never put myself into a position where I was being used. Did Ken Starr hope that would be my role and give him some protection? That may be true, but he is a man of great experience—a federal judge, solicitor general—why would he put a monkey on his back? He had to know that he wasn't getting a guy who would try to protect him. I disagree with him and argue with him when I feel it is necessary. The criticism of me came about a year or two ago when there was a lot of criticism of Starr that it was a conflict of interest for him to be independent counsel and still in private practice. I decided as a teacher, not as a consultant to Ken Starr, to try to educate the press as to what the issues were. I allowed myself to be interviewed by magazines and newspapers so that I could differentiate between unethical conduct and ethical conduct that might involve poor judgment. What I said was that he was not doing anything ethically wrong by keeping his private practice. In fact, Congress intended the legislation to work that way. Congress first considered making it a full-time job, but then thought they would not get any experienced lawyers to fill the role because none of them would leave their law firms. I said there could be questions about his representing some clients who were hostile to the president. My own judgment was that to avoid unfavorable appearances, he shouldn't represent those clients. But it is legal and ethical for him to do so. He has to make those decisions. I'm advising on ethics and what he's doing now is legally and ethically correct. There are a lot of people who want to bash Starr, but my comments insulated him from some of that and those critics turned their fire on me, saying I had foolishly allowed myself to be his spokesman. 

BR: Tell me about your experience as the first American to meet and interview Nelson Mandela in 1985 while he was in prison. 
SD: I was invited to speak at a conference at a university in South Africa where I said that never in the history of the world had the proper philosophy of punishment included punishing somebody because of the color of his or her skin. The minister of justice invited me to meet with him in Cape Town. As a result of our meeting, the minister offered to obtain cabinet approval for me to meet and interview Mandela. The cabinet did approve and Mandela agreed to my visit.

The commissioner of corrections took me into the warden's office and called for Mandela. He was not dressed in the blue prison uniform, but in his own khaki suit. As soon as he came into the office, it just lit up. He has such energy. He said, "I know the warden has to be here with us but don't worry. He's a good guy. You can say anything you like in front of him." Mandela didn't talk about South Africa right away. He began by telling me his concerns about nuclear warfare and what's good for the world. He sounded even then like a head of state. I asked him if he thought there should be a violent revolution to bring the majority population into power in South Africa, and he said, "No, that would be the worst thing for my people. We would lose against the awesome firepower of the military. Many of my people would die. I want to negotiate peace with the white leadership. I want a democracy that includes them. It is not my ambition to marry a white woman or to swim in a white pool. It is my ambition to live in a free country where I am equal with everybody else." Chills ran through me.

For recreation he had a garden on the roof. Large barrels were filled with soil, and he was growing lettuce and tomatoes.

After our two-and-one-half-hour meeting, I met again with the minister of justice, who had never talked to Mandela, nor had any other member of the government. I was very blunt with him. I said, "The worst thing you can do is keep Mandela in prison. He's the only person in all of South Africa who can represent the black community. He's a positive and constructive person." After that the minister started to meet with Mandela, and he also persuaded President Botha to meet with him. The New York Times magazine asked me to write an article on my visit when they learned I was the first American permitted to interview Mandela. This article permitted me to give Mandela's voice to the world. I have been told by South African representatives that my article and briefings of visiting South African officials on Mandela helped in the decision to ultimately release Mandela from prison.

I'm not an international lawyer but I've been involved in the international human rights missions because of my basic concept of justice. As a tenured professor, my position gives me an independent platform to get involved, be critical, be objective and not worry about hurting clients or shareholders. As long as I'm not plagiarizing or doing something wrong I have the freedom to speak my mind on my beliefs. 

BR: You have been teaching at Georgetown since 1965. What changes have you seen in the students over the years? 
SD: The first-year students are wonderful to teach because they're fired up and want to make a difference and be constructive. During the Vietnam war, our students were politically active. They were out demonstrating and the law faculty would represent them when they got arrested. Those kids had the courage to stand up for their beliefs. Other generations are still very bright and have the same sense of mission. But when there are job security issues, the students are concerned about livelihood. They are less involved in volunteer activities and take bread and butter courses. It's gone up and down over the years. Recently though, Georgetown has changed tremendously. We have activities dealing with justice in the community that includes educating the homeless, representing people in the streets, and raising money for various affairs. Our present students are socially-oriented and very diverse. 

BR: What do you want students to learn most from your classes? 
SD: To understand their role as lawyers. To be proud of a profession that throughout history has had courageous leaders who stand for unpopular causes. But more important, to enjoy what they do because they'll do it better and won't resent having to go to the office. And above all, be honest and just with themselves and have integrity. Learn to say no in situations where saying no can be difficult, where it could mean getting fired. Say no anyway, because it could lead you to greater opportunities.