Washington Lawyer

Legends in the Law: Elliot L. Richardson

Elliot L. Richardson is currently a partner with the law firm of Milbank, Tweed, Hadley & McCloy. A 1947 graduate of Harvard Law School, he has served as U.S. attorney for Massachusetts, attorney general for Massachusetts, secretary of health, education and welfare, secretary of defense, attorney general of the United States, secretary of commerce, and ambassador to Great Britain.

Bar Report: Upon graduation from Harvard you entered the Army in 1942 and fought in World War II. Where were you stationed?
Elliot Richardson: I was with the 12th Regimental Combat Team of the 4th Infantry Division and participated in the D-Day landing. We were on the line facing the Germans from D-Day through VE-Day for all but a total of about 20 days. My regimental combat team had a 300 percent casualty rate—three times more casualties for the combat team as a whole than its normal strength. We took such a pasting between the landing at Normandy and the Allied Breakthrough that we were selected to be the first American unit to go into Paris.

BR: You were awarded the Bronze Star for heroic service. What brought that about?
ER: I was a litter-bearer platoon leader. The job of my litter squads was to get to the wounded at the earliest possible moment. As I said, we were engaged in very heavy fighting from D-Day on. More than once I went through our own lines and ran into Germans because I didn’t know where the lines were. As a litter-bearer I wore a red cross on my helmet and a red cross arm band, and my jeep was painted with red crosses. But that didn’t keep me from getting fired at. Our only job was to get to the wounded and then get them to a point where they could get medical care. I was awarded the Bronze Star for a full week of that kind of activity when we were under very heavy fire.

BR: Do you think your experience in the war had a significant influence on your later career?
ER: Yes. Those were the most intense experiences of my life. I suppose the most powerful attitude it burned into me was a disposition to take one thing at a time and push aside fear. I thought I was going to be killed. The casualties were so heavy, it was just a given. I learned to take each day, each mission, as it came. That’s an attitude I’ve carried into my professional life. I take each case, each job, as it comes. I think the war must have had quite a bit to do with that.

The other thing I came away with was a sense of our common humanity as individuals. During those many months of combat, I felt a very strong sense of the equal dignity and value of all my fellow soldiers. That too has stayed with me.

BR: In 1947-48 you clerked for Learned Hand. What was he like?
ER: Learned Hand was the closest thing to a great man that I have ever encountered. He was a great raconteur and had a sardonic view of the world. He immediately disarmed whatever uneasiness one might have had in dealing with this towering figure in the law by being down-to-earth, friendly, and funny.

Perhaps the most significant single thing I gained from him was an awareness of the provisionality of concepts and principles and the impossibility of applying them intelligently without a clear grasp of the factual situation you were dealing with. Learned Hand was the only judge in his day who never asked for anything in writing from his law clerk. I sat at a table in his big office, which was lined with law books, and in front of me were the briefs and records of each case that had been heard that month. I had to be ready to respond to anything that he might ask about some evidentiary point in the record or some holding in a case cited in one of the briefs. There was nothing I could do but try to get a grip on the core facts and case law, and then, depending on how much time was available, try to enlarge my knowledge while getting a jump on the next case. That experience of learning how to get straight to the core of a problem proved to be of immense value later when I had a long succession of responsibilities in large, complex government departments.

BR: You also clerked for Justice Felix Frankfurter at the Supreme Court. How did that compare with working for Judge Hand?
ER: Although they were great friends, Frankfurter and Hand could not have been more different. Learned Hand immersed himself in his work and had very little activity outside the law. It was almost the other way around with Frankfurter. He had lots of visitors and he was reading all the time—books on philosophy, books on policy, books on comparative literature.

I can’t now remember what brought it up, but one day Frankfurter said to me, "Elliot, I don’t think you ought to develop career goals. I’ve known quite a few men who did this, and then they did everything in their power to fulfill this ambition. They were constantly calculating how to take advantage of some opportunity or connection that would move them along toward their goal. Yet, most of them awaken in their fifties to the realization that they are never going to achieve their great ambition. On top of that disappointment, they realize that they undercut the satisfaction of what they were doing by trying to use it for the sake of something else." I thought that was very insightful advice, and I took it to heart. Each job, each case, carries its own reward, and beyond that there are no worthwhile rewards. The reward is in doing the job well, in doing the best you can, and in the belief that it was useful.

BR: After your clerkships, you decided to go into private practice?
ER: Yes. I went to work for Ropes & Gray in my hometown of Boston. It seemed to me that I ought to at least be sure that I had practiced enough law so that I could feel that I was a real lawyer.

BR: Was that a rewarding experience?
ER: Yes, it was good fun. I worked mostly in disputed situations: litigation, proxy fights, strike suits. I think my experience as an associate at Ropes & Gray was very different from that of an associate in a major law firm today.

BR: How so?
ER: As associates we were totally unaware of the financial concerns of the firm. Young lawyers weren’t expected to have any role in helping develop business. We never saw any bills or time charges. We had the feeling that the firm was a place for people who loved the law and enjoyed trying to solve problems for their clients. It was a place where practicing law was a calling. As associates we knew there was nothing we could do to promote our chances for partnership by showing off, cultivating favor, kissing up, or kowtowing. We were judged solely on the basis of the work we did. We took it for granted that the process was fair and objective and couldn’t be manipulated.

BR: How did your association with Richard Nixon begin?
ER: When I left Ropes & Gray in 1953, I went to work for Senator Leverett Saltonstall. He was the majority whip for two years at the beginning of the Eisenhower administration and also chaired the Senate Armed Services Committee. Nixon was vice president, and that was when I first encountered him. In 1956 Governor Herter agreed to give the nomination speech at the convention which nominated Nixon for a second term, and I drafted that speech and took it down to Nixon so that he could look it over. Then, from 1957 through 1959, I was assistant secretary of HEW and would often attend meetings in the Cabinet Room with the legislative leadership. Those meetings were almost always attended by Nixon. There were also periods of several months when I was acting secretary. So I saw a fair amount of him during the Eisenhower years.

BR: As you got to know him in the ’50s, did you like him?
ER: Yes, I did like him. In working at HEW I found he was our most resourceful ally within the Eisenhower administration. After his nomination in 1960, I was part of the informal "kitchen cabinet" he called upon for advice. But I was then U.S. attorney for Massachusetts and had to sever that connection when I learned I was under the Hatch Act.

BR: Were you at all involved in the 1960 election in which John Kennedy defeated Richard Nixon?
ER: No. I followed the election as an interested citizen, and I supported Nixon, but I had no role.

BR: Did you maintain contact with Nixon during the intervening years?
ER: A little bit, but not much. In 1965 I invited him to Massachusetts as a guest speaker to help retire my campaign debt from my run for lieutenant governor. He came to Boston and gave a nice speech. Then in 1968 I was the state attorney general. I was giving every ounce of capacity I had to that job and was not called in to the presidential campaign. After Nixon won the 1968 election, I was surprised to be offered the job of deputy secretary of HEW. I turned that down because I felt that work I was doing for the state of Massachusetts was important. Shortly thereafter William Rogers, who was the secretary of state designate, asked me to become his under secretary of state. I had known Rogers when I was U.S. attorney and he was deputy attorney general at the end of the Eisenhower administration. I tried to convince him that he needed somebody with a stronger background in foreign policy. But he said that I could learn what I needed to know and that I was the person he wanted. Well, I couldn’t resist the temptation and took the job.

BR: When you went to the State Department in January of 1969, the preceding twelve months had witnessed the Tet offensive, the assassinations of Martin Luther King and Robert Kennedy, and the antiwar riots at the Chicago convention. Was that an intimidating or frightening time to be in government?
ER: No, no. It’s interesting that you should even think to ask that question. The human capacity to adapt is enormous. Besides, I was used to taking things as they come.

In 1950, when I was working for Ropes & Gray, I ran for the lowest elective office that exists in New England—town meeting member. Later on I was made secretary of the committee that dealt with structure of the town government and the question of whether or not we ought to have a town manager. The one thing I learned is that you can have problems in a local community that are as difficult as any human being is capable of dealing with. You don’t gain capacity proportionate to the scale of the responsibility you hold. You do the best you can. If you do that, and believe that you are doing the job as well or better than someone else might do it, then you move ahead and continue to do the best you can.

BR: Did you feel you were making headway in those years?
ER: Yes. There aren’t very many people who have focused on Nixon’s role in domestic policy. In 1970 I was made secretary of HEW, so domestic policy became my major preoccupation. Now that we’re in the midst of the so-called Republican revolution, I’m amused to see that there’s nothing being discussed in regard to welfare reform that wasn’t anticipated in the welfare reform program we put forward in the Nixon administration. We also pushed for health care reform that included universal access to health insurance. At HEW I was preaching about the need to downsize government. I was advocating the simplification of federal programs through greater reliance on block grants. In listening to the debate today, the irony is not that people are reinventing the wheel—they don’t even get that far. People are constantly readdressing the need to reinvent the wheel.

BR: How was it you became secretary of defense?
ER: At the end of Nixon’s first term every cabinet secretary was given to understand that they shouldn’t count on continuing into the second term. The president summoned each of us up to Camp David to tell us what he had in mind for us. On the helicopter ride up to Camp David, I had no idea what Nixon had in store for me. At the outset of our meeting, I urged him to leave me at HEW because I felt the work I was doing was important. But Nixon said no. He told me that he wanted me to move over to the Pentagon and become secretary of defense. That was an offer I couldn’t refuse—but if he’d asked me to become attorney general I would have said no. Then damned if four months into the second term Nixon didn’t call me back up to Camp David and tell me that he wanted me to take over as attorney general.

BR: That was due to the departure of Attorney General Richard Kleindienst, who resigned on the same day as John Ehrlichman and Robert Haldeman because of the Senate investigation into Watergate. When you arrived at Justice was Watergate a major headache for you?
ER: Soon after I took over as attorney general we got a concurrent problem—the investigation of Vice President Spiro Agnew. For me, negotiating his nolo contender plea and subsequent resignation was much more difficult than Watergate. I had virtually nothing to do with Watergate except to propose that Archibald Cox be appointed as the special prosecutor. To tell you the truth, I didn’t know much about Watergate. I was not responsible for investigating it, and I didn’t have time to read about it.

BR: Did you have any dealings with Cox as his investigation progressed?
ER: I acted as something of an intermediary between the White House and Cox. The White House was constantly complaining about the special prosecutor, and the special prosecutor was constantly complaining about the White House. I came to think of myself as what Brandeis called "the lawyer for the situation." I didn’t have a client, I just mediated those disputes as best as I could.

BR: Of course, the issue that led to the infamous "Saturday Night Massacre" concerned whether Nixon would turn over some tapes that Cox had subpoenaed.
ER: That’s right. After it was revealed that Nixon had been secretly taping his Oval Office conversations, Cox subpoenaed eight tapes. Rather than just hand over the tapes, the White House proposed a compromise wherein they would provide transcripts of the tapes under subpoena with the idea that Senator Stennis would listen to the tapes and certify the transcript. In addition, Nixon was claiming executive privilege and he wanted Cox to renounce any claim to additional tapes. I supported the idea of the verified transcripts. I had total confidence in Senator Stennis, and I was convinced that he would do an honest job. But I could not support the restriction on Cox’s right to obtain additional tapes. On the morning of October 20, 1973, Cox held his famous press conference in which he rejected Nixon’s conditions. As soon as the press conference was over the phone in my office rang. It was Al Haig, Nixon’s chief of staff, calling to pass along Nixon’s order that I fire Cox. All I said in reply was, "Al, I need to see the President. When can I do it?" Haig said, "Three o’clock." And that’s all there was to that conversation. Haig knew what I was going to do.

BR: So you went over to see Nixon?
ER: Right. I met with him in the Oval Office. He knew I was going to resign rather than fire Cox, and he tried to talk me out of it. He painted a dire picture of the international crisis precipitated by the Yom Kippur War, the nuclear alert he had invoked the night before, and the possibility that Brezhnev would think that he has lost control of his administration. All of that was very disturbing. He urged me to delay my resignation until after this crisis had abated. I told him I couldn’t do that. "I’m sorry," the President said, "that you insist on putting your personal commitments ahead of the public interest." Well, I could feel the blood rush to my head. In as even a voice as I could muster, I said, "Mr. President, I can only say that I believe my resignation is in the public interest."

BR: Did Nixon have any sense of how damaging your resignation was going to be to him?
ER: I don’t know what he foresaw, but I certainly didn’t anticipate the force of the public reaction.

BR: What did you do after you left the Oval Office?
ER: I went home. There were a couple of reporters around. But I can’t remember much beyond that. At some point I went out to get the mail. I only know that because there was a picture in the newspaper of me walking to the mailbox with the dog.

BR: Was it difficult to resign?
ER: No. It was a clear-cut decision. During my Senate confirmation hearings I had pledged that Cox would retain full independence, and had said that he would only be fired for extraordinary impropriety. There was nothing in his conduct of the Watergate investigation that constituted impropriety of any sort.

BR: Do you feel that moment has marked you ever since?
ER: Oh, sure. I’m the only American I know of who is principally remembered for what he didn’t do—I didn’t fire Archibald Cox. Nor did the deputy attorney general, William Ruckelshaus. I must say I was amazed by the force of the public reaction. When I wrote about it in my book The Creative Balance, I said: "A government of laws was on the verge of becoming a government of one man. It was then that the firestorm broke. The American people showed with unmistakable force that they would not tolerate a further abuse of power." The president capitulated, and the White House attorneys complied with the subpoena and turned over the tapes to Judge Sirica. At his press conference Cox said, "Ours shall continue as a government of laws and not of men. It is now for Congress to decide and ultimately the American people." Well, Cox was right, but I think it’s important to remember that it was the American people first and only then the Congress who decided that ours will continue as a government of laws and not of men.

BR: Why didn’t Nixon burn the tapes?
ER: I have an interesting theory on that. Back in 1969 at about the time Nixon took office, Robert Blake’s biography of Disraeli was published. Daniel Patrick Moynihan was the resident intellectual within the administration, and he suggested to Nixon that he might find some useful insights in this biography. Not long afterward, Nixon began to suggest to visitors that they might find it worthwhile to look at Blake’s biography if they wanted to get a sense of his purposes and strategy. Well, I read it, and I thought it was good. But Disraeli was such an exotic character that one remains mystified as to how he managed to achieve his successes. I remember thinking when I put the book down, "Well, there it is—but the essence of the man still eludes me." Nixon must have had the same feeling. He must have thought, "My biographers are going to have an asset that Disraeli’s biographers didn’t have. My biographers are going to have the tapes!" So when the obvious and natural thing to do was destroy the tapes, he couldn’t bring himself to do it. Too much history was reposed there. The insights into his thinking—the factors he took into consideration in shaping strategy—that would give his biographers the material they needed to explain how Nixon achieved what he achieved were in those tapes.

BR: So he just couldn’t let go?
ER: He couldn’t let go. I might add that after I was appointed Ambassador to Great Britain by President Ford I had a chance to meet with the author, Sir Robert Blake, at a dinner. I couldn’t resist saying, "Did you know, Sir Robert, that you are probably responsible for the resignation of the only American president in history to do so?" He looked at me as if I must be pulling his leg. I recited for him the story I just told you, and he was obviously shaken. Then when I saw him a few years later at an event at the Library of Congress I think he had become rather tickled by the idea.

BR: In reflecting on your many years of government service, to what do you attribute your success?
ER: Anyone who knows anything about me will tell you that I’ve always had an outstanding group of people working with me. I think it’s important to recognize a person’s strengths and limitations and to know how to build on their strengths and get around their limitations. Back when I was in the Army I had two guys in my platoon who were what we called screw-ups. They were constantly creating trouble. I could’ve cracked down and disciplined them. Instead, I chose to promote them. I decided the reason they were causing so much trouble was because they had natural leadership qualities that did not have an outlet. So I made them squad leaders. That turned out to be a wise decision. They both distinguished themselves. They won Silver Stars for bravery and heroism.

BR: Can you bring us up to date on what you’re doing now?
ER: I’m a retired partner here at Milbank Tweed. My main involvement in a legal matter nowadays is with the Inslaw case, which I’ve been working on for over ten years now. In addition to that, I participate on the boards of a variety of nonprofit organizations. But the thing that takes more of my time than anything else is I’m writing a book. I’m not sure what I want to call it yet, but one title I might use is The Cynics Are Always Wrong. I dislike cynicism because it passes itself off as being realistic when in fact it is as far off the true center of reality as naive idealism. What I’m trying to do in the book is write about rather large topics in short, limited spaces. But I find it to be slow and difficult. The pressure to get on with the writing crowds every single cubic inch of time and space. It squeezes everything else. My correspondence has fallen behind. I fail to do things I said I would do. I cut out everything that I possibly can.

BR: Well, we’re certainly grateful that you took the time to talk to us.
ER: Not at all. I’ve enjoyed it.