Tom Kauper served at the Department of Justice during the Presidency of Gerald R. Ford and Richard Nixon. He served as Assistant Attorney General in the Office of Legal Counsel and then as Assistant Attorney General in charge of the Antitrust Division. Kauper is a professor at the University of Michigan Law School. He is a Trustee of the Gerald R. Ford Presidential Foundation.
Tom Kauper was interviewed for the Gerald R. Ford Oral History Project on May 12, 2010 by Richard Norton Smith.
Smith: How did your paths cross with that of Gerald Ford?
Kauper: Almost by indirection. I actually was appointed in the Justice Department by Richard Nixon.
Smith: At what stage of the Nixon administration?
Kauper: Well, I was in the Nixon administration twice. The first time it was not a presidential appointment, I was one rank below that in the office of Legal Counsel at Justice. So I was there, really, at almost the beginning – 1969. And in the office of Legal Counsel I was giving legal advice to the White House, which meant I was dealing with people like Haldeman and Erlichman.
Smith: Let me ask you, is there something we don’t know about John Mitchell that we should know?
Kauper: I don’t know what you know. My impression, he was a very smart, very able guy, who had, I thought, a very good sense of the role of the Attorney General. Actually I had more dealings with people in the White House than I did with Mitchell, but he had a very good notion of what he was supposed to do vis-a vie the Justice Department. He knew he was the buffer between the department and the White House, and he was really quite good at that. Now, he did play a political role that is part of what got him in trouble.
But I always found him very supportive, always up to date on things. I had one wonderful episode with him when we were asked to give an opinion on a piece of legislation that was pending, that would have allowed the changes in a number of what we thought were statutory rules, by a process that did not involve the President. It would simply go into effect if the Congress didn’t act, and there was no role for the President. And so we had put out an opinion this was clearly unconstitutional. And I got summoned to Mitchell’s office. He said, “Hey, I just had a call from the Chief Justice and who was this whipper-snapper who was claiming his bill was unconstitutional?” And Mitchell heard me out. He hadn’t seen the thing before it went out and he picked up the phone and called Chief Justice Berger while I was sitting there and said, “Warren, your bill is unconstitutional. We’re not going to support this.” So in that sense, he had done his homework, he knew what it was about. He was a pretty good administrator.
Smith: This was also the time, obviously, when Nixon was trying to remake the Court.
Kauper: Oh, yes.
Smith: And you had the Haynesworth and the Carswell episodes.
Kauper: Yes, I worked on the first one of those.
Smith: And it’s interesting how history does tend to sort things out. My sense is that in retrospect a consensus has formed that Haynesworth was probably badly treated, and that he would have been a perfectly adequate, if not distinguished, member of the Court.
Kauper: I believe that’s true.
Smith: Whereas Carswell was…
Kauper: Carswell would have been a disaster. In fact, I told my boss – the assistant attorney general happened to be Bill Rehnquist – that I wouldn’t work on the Carswell appointment. I just thought that was – it was almost like it was spite.
Smith: Carrying the southern strategy to the extreme.
Kauper: And he just didn’t have the credentials, he didn’t have the temperament and it would have been a very bad appointment, I think.
Smith: Would Mildred Lily or Hershel Friday have been any more distinguished?
Kauper: Probably not. But I remember when I left the office of Legal Counsel – I was there two years; I was on leave from the law school here – and I went in to see Rehnquist and said I was going back to Michigan, as I had told him I probably would do after two years. I said I don’t want to be involved with the people I know at the White House during the upcoming election. So, in some ways, I left for the right reason. But I also sent a memo to the White House saying if you were looking for somebody to put on the Court, you ought to think about Bill Rehnquist.
Smith: Did you really?
Smith: Did you discuss that with him?
Kauper: No. No, I didn’t.
Smith: What was it that made you see in him a potential court appointment?
Kauper: He was a quite remarkable character. He could be quite partisan sometimes, but not in that role. And he was working with a staff of lawyers, probably at that time about twenty lawyers. I would say 80% of them were Democrats. They absolutely adored working for him. He heard everybody out. He never bypassed anybody’s opinion. He was just a warm kind of personality, and I think you saw that when he went on the Supreme Court, and his ability to work with other people with very different views. It didn’t surprise me at all.
Smith: You may have already just answered my question; you made reference to the people you knew at the White House, at least expediting your decision to come back to Michigan. Were you surprised by what eventually transpired?
Kauper: No. I’ll tell you a story about that. I actually was back in Washington by the time of the election. My appointment as the assistant attorney general in the anti-trust division actually became effective in July of that year. So I was actually there for the election and I had come down ahead of time to work a little bit with the fellow who was going out of the office before my appointment actually became effective. I had to come back to Ann Arbor for my sister’s wedding. It was on June 17, 1972. And I got up the next morning and the local paper had a little story about that long that there had been a break in at the Watergate complex. And my wife has never forgotten, I turned around and said, “There’s going to be a lot more to that than might be apparent.”
Smith: It’s interesting – you’re reaction, I remember talking to Pat Buchanan. I said, “Do you remember where you were when you read…?” And he said, “Oh, I didn’t read about it; I heard about it. And then I got a call,” and he said, “My first reaction was, that’s got to be our guys.” Because he said we were routinely getting material from inside the Muskie campaign.
Kauper: Just having been around those people – and it’s not that they weren’t smart – but it was a very different experience for me and I just wasn’t quite sure where they were going.
Smith: I assume we’re talking about more than Haldeman and Erlichman – the Colsons and the Magruders and those folks?
Kauper: I worked with them, too. I worked with one younger fellow who got swept up in the whole thing, ended up going to prison – Egil Krogh, who was a really good guy. It was really unfortunate.
Smith: Do you have a theory? Are there things we don’t know about Watergate?
Kauper: I don’t know that there are any of the facts of Watergate that we don’t know.
Smith: For example, who ordered the break in?
Kauper: Well, I don’t have any very good sense of that. I don’t think we ever will know that.
Smith: You think it might have been something Mitchell took to the grave with him?
Kauper: It’s possible.
Smith: There is a theory that Haldeman played a vital role in knowing instinctively when to take seriously Nixon’s rants or off the wall comments, or directives to ‘get’ someone. And a Colson or a Magruder, someone lacking that knowledge, sophistication or just eager to curry favor, might have passed along something.
Kauper: That’s certainly possible, but I was not at a level where I was going to have any clear notion of it. All I know is what everyone else knows from that point on. But, by the time the whole thing really started to break, I was back at the Justice Department.
Smith: Was Saxbe then attorney general?
Kauper: Oh, I went through an amazing array of attorneys general.
Smith: Oh, because Richardson…
Kauper: I started with Mitchell, then Kleindienst, then Richardson, Bob Bork as the acting attorney general, William Saxbe and…
Smith: The Saturday Night Massacre?
Kauper: Oh, I sure was.
Smith: What was the atmosphere around the place?
Kauper: Well, I don’t even know the words to describe it. It was an evening I will never forget. We were at home, there was a local television station ran a program called Agronsky and Company, and we were expecting some company for a quiet evening. We had been trying to get together for some time; they were coming at 7:30. The show was on at 7:00, and somebody just walked right out across the camera and handed Agronsky a note and he read off the note that the attorney general had been fired, that the deputy attorney general had either been fired or resigned soon enough to not be fired, and that Bob Bork had fired the special prosecutor. And it began a very long evening, to say the least. I came out of that evening really as – I didn’t have the title, but I was trying to run the deputy attorney general’s office as well as the anti-trust division.
Smith: Thirty five years later there is still debate over exactly what Richardson’s role was and what the White House thought it had in terms of an understanding with Richardson.
Kauper: Elliott Richardson was a consummate politician. I’ve never known how much he actually knew in advance of what happened that Saturday night, but knowing him, it would have been clear that he was going to come out clean. He was going to act so that he came out clean. Bob Bork never forgave him. Bork thought that he had been set up, that he had not been kept informed of anything that was going on. When he got the word initially, he was writing a letter to a high school student about some values in the Constitution, and suddenly this order comes. So I was on the phone with him probably within twenty minutes after it happened. And then the evening went on.
Smith: And there was never any question about Ruckelshaus also simultaneously resigning, which left Bork to do the dirty work?
Kauper: Yeah, he was left in charge of something he had not been privy to at all; that had been going on with the special prosecutor, and made the decision to go ahead and fire him. I think what would have happened in the Justice Department had he not, would have just been dreadful. There was no established order of succession among the assistant attorneys general. So if Bork had said no, they would have started down the list. There was one who would have probably done it with a certain degree of glee, but I’m not sure the White House knew that. And they could have wiped out the whole group of assistant attorneys general, too. All but one, if Bork had said no, all but one would have also said no.
Smith: Take it for whatever it’s worth, but my sense is that Al Haig went to his grave believing that he was double crossed; that he thought he had an understanding with Richardson and, for whatever reason, it blew up.
Kauper: It would not surprise me at all. So it was an interesting evening. I gave a speech that next Friday at an anti-trust institute in Boston. I had called the entire top career staff of the division in for a meeting on Sunday morning after the Saturday Night Massacre, because they clearly wanted to know what I was going to do, and made it abundantly clear that if I resigned, they would all do the same. And I finally decided no, I wasn’t going to do that, but I used the speech, part of it, to be very critical of the White House. I think it was the old Washington Star ran a column saying the President must be really weak because he didn’t do anything to this guy who went up to Boston and was very critical. And as you know, he was very weak at that point.
Smith: Indeed, you could argue his selection of Gerald Ford testified to his weakness. We talked with Jerry Jones, who at that point was reorganizing the personnel office for Haldeman. This would be the spring of ’73, and he [Jones] gets a call one day from Haldeman wanting to know how many staffers worked for the vice president. He does some mental math and says about fifty. And he [Haldeman] said, “Okay, I want undated signed letters of resignation from all of them.” Which raises two intriguing theories; one is that it’s a hangover of the post-’72 Nixon wanting everyone’s resignation; but the second, more intriguing is that they knew well in advance of the Wall Street Journal story, that appeared in August – that Agnew could have some problems. Is it logical to assume that the White House would be aware of an investigation going on in Maryland?
Kauper: I think so. I think they would have known. I don’t know for sure, but I think the odds are they would have known.
Smith: Do you think Richardson did the right thing on the Agnew resignation? I assume he was point man for the notion that resignation was sufficient punishment.
Kauper: Yeah, I think he probably did. I always get very uncomfortable with any notion you’re going to prosecute people at that level. I think it does not do the country any good in the long run.
Smith: Was there a point in all of this where, at least internally, people began to think the unthinkable – that the President might be next?
Kauper: Yeah, sure. I don’t know that I can put a time on it, specifically, but there was a real sense of inevitability that began to develop – that this just couldn’t go on.
Smith: Presumably the tapes were a significant contributing factor to that?
Kauper: They were. Sure.
Smith: Were you surprised when their existence was revealed?
Kauper: Not entirely, no. It almost seemed to me like something you’d expect. I don’t know that you’d expect everything to be taped, but the notion of taping, it didn’t come as a big surprise.
Smith: What about the argument, which is kind of ironic in a number of ways, the argument that politically what hurt Nixon was less the fact that he taped, than the language that people heard on the tapes?
Kauper: I think that’s true. I think the language really hurt, and it revealed a Nixon that I think people hadn’t been particularly aware of. I think those of us who were around were aware of some of it, but not to the degree it showed on the tapes. I was in and out of the White House a lot when I was in the office of Legal Counsel, and some of the staff would pass some of that on.
Kauper: Although, as you know, Nixon didn’t see a lot of the staff very often. It was a very tight White House, almost uncomfortably so. In fact, I’ll take the word almost out of it. We’d send something over, a legal opinion over, and we never knew in what form it finally got up the ladder. Everything would get shorter and shorter and shorter. It never was very clear who he was talking to about things – and some of them were problematic, so you’d expect he’d be talking to somebody.
Smith: I only heard President Ford speak disparagingly of two people, and the worst thing he could say was, “He’s a bad man.” That’s the ultimate epithet that he could come up with. One was Gordon Liddy.
Kauper: Now selling gold.
Smith: And the other was John Dean.
Kauper: Yeah. I think I would not disagree with either of those. John was a very competent lawyer, but you remember the title of his book, which was Blind Ambition. He at least characterized himself well. There was a lot of bad feeling about Dean. Liddy I never had much to do with. But I can imagine Ford’s reaction.
Smith: I don’t know whether it was naiveté, but there were times where you sort of wondered, for someone who had been around Washington for twenty-five years, he was genuinely shocked that Nixon lied to him.
Kauper: Oh, I’m sure that’s true. Yeah.
Smith: And he was equally shocked by the language on the tapes. And the third thing almost more viscerally than the first two – he was deeply offended that Nixon would send his own daughter out to, in effect, perpetuate the lie.
Kauper: Yeah. Well, there was so much that went on that was so strange during that whole time. You asked me when we began this, you said, “When did I first encounter Ford?” I didn’t really know Ford in Michigan at all. He just got sort of stuck with me. I was heading the anti-trust division, he didn’t come in and just sweep things clean. So essentially, I was a holdover.
Smith: That raises a larger question. Rumsfeld urged him to clean house early. To be ruthless. And it does raise a question of whether you can be too nice as president. On the other hand, I think it’s fair to say he didn’t want to tar the vast majority of Nixon appointees who were innocent. Two, he valued continuity, just from a practical standpoint. Plus there were a lot of very competent people in the Nixon administration. But he resisted the political advice to symbolically start over.
Kauper: He also had the history that Nixon had sort of tried to clean house. Nixon demanded resignations right after his second election that went way down the departments. I had to call for the resignation of a lot of people that were not protected by civil service, who were GS16, 17, 18.
Smith: And what did that do for morale?
Kauper: It was terrible, obviously. And I finally said, “You know, if we hold out, if I don’t get those resignations, it’s really going to come down on the division across the board.” And I believed that. We had a new deputy attorney general who would have carried it out without any difficulty. So they all complied and one of the great things that Kleindienst did, the night that he was fired, he sent back each of those resignations with a personal note. And Kleindienst was an interesting guy. He’s been kind of vilified over time. I thought in many ways he was the best attorney general I served under. He got the short end of the stick in a number of ways. But that was a very typical act.
Smith: What was the charge? What was the allegation against Kleindienst?
Kauper: Well, it went back to the AT&T cases. It was very interesting. The belief was that he was going to be charged with perjury before Congress because he had indicated that there had been no contact between the White House and the Justice Department about the settlement of those cases. Whereas in fact, there was, at least as far as I know, there was. He actually was charged, as I recall, with contempt of Congress. He called me the night he pleaded guilty to that charge, and I said to him, I said, “Dick, you can’t plead guilty to that charge. You’re not guilty of contempt of Congress.” That was a statute I’d spent some time with when I was a Supreme Court law clerk, because of a couple cases we’d had. I said, “You are pleading to a false charge.” And he said, “I have to. If I am charged with perjury, and if they were to get a conviction, I’d lose my license and that would be a felony. I can’t do that.” The violation of the contempt of Congress statue, and I still even remember the number, it’s 2USC1992, as a misdemeanor. So he felt he was just in a terrible box, but what he was actually charged with went back to the AT&T settlements – anti-trust cases.
Smith: Just to get it on the record, you said you clerked at the Court; who did you clerk for?
Kauper: Potter Stewart.
Smith: Did you enjoy the experience?
Kauper: Oh, that was a great experience. I clerked with him for two years. He staggered his clerks, so he brought one new in each two years, and that was a great, great experience. He was a wonderful guy to work for. Sometimes he wrote a little too well. He had a great knack for hiding an issue just by turning a phrase. I know he always worried that one of his phrases was going to end up on his tombstone. The line which said, “He couldn’t define pornography, but knew it when he saw it.” But he did that. He had that ability to sometimes cover things up a little bit.
Smith: Use the vernacular.
Kauper: He was a terrific writer. He didn’t ask his clerks to do drafts of anything. Everything he wrote, he wrote himself. He was just a very personable guy to work for and also an extremely good judge. So that was a good experience, too.
Smith: So Ford becomes president. Where are you on the morning of August 9th?
Kauper: You know, I don’t even remember that. I was in the office, but I don’t remember anything particular about it.
Smith: One of the things that we’ve been told, gets to this larger issue of meshing disparate cultures. After the swearing in there was a receiving line and then a reception in the State Dining Room. And several people who were there have observed you could watch the Nixon people peel away – which under the circumstances is understandable. But it raises the question of how successful or otherwise was this meshing of a holdover culture, with the Ford people from the Hill, with some additional people from outside?
Kauper: Well, the anti-trust division was kind of immune from the whole meshing process. After the AT&T case the White House was terrified to admit that they even knew who headed the anti-trust division. I mean, I can remember that long atrium in the Kennedy Center. We were there for a concert shortly after I came down to head the anti-trust division, and that long corridor – it was during intermission – and here was Peter Flanagan coming down from the other way. Now, I had done a lot of work with Flanagan and this, of course, was still during the Nixon time. He just turned his head and he wouldn’t even look at me. I mean, they were scared to death, I think, of any thought of a contact with the anti-trust division. So, I hadn’t had much to do in that time with the White House at all. So the meshing problem wasn’t terribly acute.
Smith: What’s your estimate of Bill Saxbe as an attorney general?
Smith: He sounds like a bit of a character.
Kauper: He was a bit of a character, there’s no question about that. And he was given to very quick decision making. I’m not sure why that’s so. I’m not sure whether it was just a short attention span, or what it was. But I had several things with him where decisions were made very quickly, and perhaps not always correctly. I knew that he basically sent us out to do our thing, and he backed us up. He was the attorney general when we filed the case to break up AT&T, which was a day to remember because it was Saxbe who just stunned us that day. We were not planning to file the case that day. He forced our hand.
Smith: Is Nixon still in the White House?
Kauper: No, Ford is in the White House. And I’ve never been altogether clear what Ford knew about that case in advance. I asked the archivist here to get me any documents from that day about the case. And as it happened Phil Areda was one of the counsels to the President. Phil Areda was an anti-trust professor at Harvard. I’d know him for years.
Smith: And he fell afoul of Nelson Rockefeller?
Kauper: Yes. But we found in the archives out here a couple of memos from Phil to the President which would indicate to me that Ford knew absolutely nothing and that Saxbe had not briefed the White House at all. I am quite confident that Elliott Richardson had briefed Nixon, but that was one of those pieces of information I think that just died. So we had this, what I’m sure was a bit of a shock, here comes this lawsuit to break up the nation’s telephone company. And Saxbe – I don’t know what he was thinking that day – I haven’t been able to sort it out. I had set up a meeting with AT&T’s counsel for them to present their views to Saxbe, and I’d sent a note up to him. Saxbe had the whole fact memo we had done and the complaint, which were ready to go. But it was normal in a situation like that that the counsel for the company would ask to meet with the attorney general before any final decision was made. And so I set it up. I sent him a memo saying they are coming in, this is just to hear them out. And he walked into the big conference room in the attorney general’s office and said, “Gentlemen, I want you to know we are going to file suit to break up AT&T.” And I mean he had just given away the biggest piece of insider information probably ever given out. And moreover, it was clear he’d made up his mind before he ever even heard them. It was a very embarrassing moment for me because I had told them he would hear them out. We had to immediately deal with the SEC, trading was suspended of AT&T stock.
Smith: Now, was this very early in the Ford presidency?
Kauper: This was in November of ’74.
Kauper: I thought to myself at the beginning, boy, how could he have done something that dumb? What was going through his mind? And then the more I thought about it, I thought, boy, he is one shrewd customer. He knew that the President was in Kyoto; not reachable; he was getting on a commercial flight – the attorney general was getting on a commercial flight – to go somewhere, I don’t remember where. He was not reachable. And now the wheels were in motion. And I, to this day, think maybe he thought he could avoid any interference by just directing us to go ahead.
Smith: It’s a pretty breathtaking assumption.
Kauper: Well, I don’t know. I may have read that all wrong.
Smith: But what made him feel so strongly that this was necessary?
Kauper: I learned much later a bit more about his background when he was the attorney general in Ohio. And he had built a kind of aversion, I think, to the telephone company.
Kauper: I don’t know that for sure, but there are hints of that from time to time. He may have just thought it was the right thing to do – to back up the anti-trust division. I just don’t know. But the case got filed that afternoon. It was off and running.
Smith: What kind of contacts did you have [with the White House], either personal or in policy terms during the Ford administration?
Kauper: We didn’t have much contact coming out of the Nixon administration. There was a group called the Economic Policy Board, which met almost every morning over in the Roosevelt Room.
Smith: With Bill Seidman.
Kauper: Bill Seidman. Simon usually presided over the meetings. We were by that time beginning to be into the whole deregulation movement. And our office was playing a good sized role in that.
Smith: By the way, I’ve been told from someone in the process, the President didn’t like the term deregulation. Regulatory reform?
Smith: Which is actually smart.
Kauper: The Nixon people would talk about deregulation sometimes. But the airline thing was really just getting underway. And so because we were involved in that, I would be invited over to those meetings once in a while, because the administration as a whole was trying to get a position fixed. And in Nixon’s day, you’d go over there and you’d sit in the anteroom of the Roosevelt Room, and when you’re item was on the agenda, you would be summoned in. I believe it was within one week after Ford became president, that if you had something, if it was an Economic Policy Board group – I’m not sure it had the same name, but it continued – and the environment was 180 degrees different. You’d go over, you were entitled to speak on anything that was on the agenda, and you were in there for the whole meeting. It was just a 180 degree flip. And it was the difference between being closed and open. And to me it was the most obvious manifestation of that.
Smith: Did the President sit in on any of these?
Smith: I remember talking with Bill on a number of occasions. One sensed that there were two camps; there was Greenspan and Simon and the purists, quasi-libertarians. It really came to the fore in the New York City aid crisis. And then you had Seidman and the Vice President as the pragmatists or moderates or whatever you want to call them.
Kauper: I think that’s probably a fair statement. And you kind of sensed that there were quite different philosophies when you were in a meeting like that.
Smith: But regulatory reform seems to have been universally embraced.
Kauper: Yes, and I think there might have been some difference in how you went about it. But I think there was a commitment, certainly in the Ford administration, to going ahead with the airline stuff, in particular.
Smith: And what prompted the movement at that time?
Kauper: I don’t even know that I can answer that. In the Nixon years there was this very strong sentiment that business was just over regulated. And at some point they began to focus on not just removing day to day regulation, but of doing things something more basic than that. The airline thing had been coming along for some time because the airlines kept up this series of agreements, with the approval of the Civil Aeronautics Board, on fares and capacity and so on. And it was very easy to criticize that. So I’m not surprised that became almost the starting point. But I’m not sure of the point at which it actually crystallized. I had the feeling when Ford came in that that commitment was made. That was nothing that we were re-examining. We just went on ahead.
Smith: I’ve often thought about it, even talked about it a little bit in the eulogy – the popular notion is to see the Ford presidency as a coda to the Nixon years. Whereas, I think in many ways, it’s actually a break. It foreshadows more than it recapitulates. And the classic example is deregulation.
Kauper: Oh, yeah. I agree with that. I think treating it as a coda to the Nixon administration is both inaccurate and unfair to Ford. I never sensed it that way.
Smith: Were there discussions in the hallways or around the water coolers or whatever, before the pardon, about the possibility?
Kauper: Yes. I think that possibility really surfaced for conversation within the Justice Department probably the day after Ford was sworn in. That was always a possibility. And I think the department lawyers were like everybody else, they were divided. There certainly were some who really wanted a full-scale prosecution. Others who I think thought that would be very unwise. It probably mirrors the public at large. But, yes, those were common discussions. What was going to happen next? What was going to happen to Nixon?
Smith: We talked to Mel Laird. It will come as no surprise, Mel Laird loves Ford, but nevertheless, resents the fact that he didn’t wait and do what Laird envisioned him doing. Laird thought he could bring a bipartisan delegation from the Hill to petition the President to pardon Nixon. The problem that I have with that scenario is, under the intense political climate of that time, it’s hard to imagine how any trial balloon could have risen above the trees without being shot down. You can war game it all sorts of ways, but it’s difficult to see, if you’re going to do the pardon, it’s difficult to see how you “prepare” the country under that environment.
Kauper: I can’t imagine that. I just can’t imagine that. Ford so clearly, to me, did the right thing. It was his decision. He wasn’t urged by people to do it. He took responsibility for it, and certainly in terms of his long run legacy, he’s come out very well for it.
Smith: What was the reaction in the department?
Kauper: Well, there were certainly some that I think viewed it as a kind of intrusion into the prosecutorial process. I’m trying to think exactly when the pardon occurred.
Smith: September 8th.
Kauper: See, I was out of the department by then. I knew what was going on at the department, I hadn’t lost my contacts, but I’d come back here to Michigan at the beginning of September. So the pardon actually, technically took place after I had left. But I know that there were some, because I’ve talked to a number of people about it; people who saw it just as another political intrusion into the prosecutorial process. Lawyers are very sensitive to that. So there were going to be some who would see it that way. But I think the majority of people that I’ve talked to, admittedly most of them are not people from the criminal division, but I think most of them felt that it was handled well.
Smith: You came back here in September. Did you have any later involvement?
Kauper: No. I discovered, as many people do, when you’re out, you’re out. And contacts tend to dry up after a while. Now, I was in and out of the department a fair amount, just because I was working at some anti-trust matters as a consultant from time to time. And I still know a lot of the people down there.
Smith: I guess you never worked for him, but would you agree that Ed Levi…
Kauper: Oh, I did work for Ed Levi.
Smith: You did?
Kauper: Oh, yeah. I have a wonderful story about Ed Levi.
Smith: Tell us about Ed Levi.
Kauper: I first met Ed Levi when I was a senior in college and I think at that point he was the dean of the law school at Chicago. At the last moment – and it must have been April or May of my senior year – I learned about a scholarship that was available to go to law school and it was available to people who went to a “Chicagoland” law school. It was from the money of Colonel McCormick and he had created this foundation, named the Kirkland Foundation, in honor of his personal lawyer. And so I applied for it and I went over for an interview. I walked in and there were, I think, three people, and Ed Levi was one of them doing the interview. And he had my transcript. I had gotten a B in English I at the university. It was the only B I got in four years. And Ed looked at me and he said, “Can you explain to me why you got a B in that course?”
That was back eons ago. He’s named attorney general and now I have to go up for my first meeting with him. I walked into his office and he said, “You never did tell me why you got that B.” Ed was a wonderful guy. He was clearly the smartest of all the AGs I dealt with. And the only times he got me sort of in trouble with some of the staff was, he couldn’t quite let go sometimes of being a law professor, and the result was that once in a while staff wasn’t sure which position they were supposed to take because he would just argue. He’d always take the opposite view. But I really enjoyed working with him.
Smith: There are those who say that there was a downside, that there was a brittleness – not condescension – that would be rude – but a kind of brilliance that went beyond not tolerating fools.
Kauper: Well, he didn’t tolerate fools, that’s for sure. Maybe because I came out of a law professor’s background, too, I didn’t find him the least bit difficult to deal with. I know there were other staff who did, and who did what they thought they had been told to do, only just to be raked over the coals for not doing the right thing. But I’m not sure that’s a bad thing. I thought he was very effective. Unlike a lot of law professors I know, he was quite capable of making decisions. He didn’t hesitate.
Smith: And it was presumably part of his mandate, to de-politicize the department, restore its credibility.
Kauper: And he was always well-prepared. There is a close relationship between the division and the attorney general’s office on a lot of matters. And he was always well-prepared. It didn’t take him very long to be well-prepared, I mean, he was very quick. And he really was a very warm, friendly person. To really appreciate that you had to see him with Kate, his wife. And it was like watching this couple who just played off of each other. And you could spend a whole evening in stitches; they were really very funny people.
Smith: I’ve often thought the Levi appointment is the Ford administration in microcosm. Because it is an unlikely choice, a very distinguished choice, but it also tells you something about Ford’s comfort level with people who were more obviously, or in a more articulate way, brilliant. Beyond the big egos, he had the Kissingers and all those folks, around whom he was perfectly comfortable. In fact, he was very proud of that appointment.
Kauper: Well, he should have been. It was a wonderful appointment.
Smith: And presumably Levi played some role in the John Paul Stevens selection.
Kauper: I assume so. That was in a part of the division that I wasn’t in anymore.
Smith: I assume around town there must have been chatter about why is Bill Douglas still hanging on?
Kauper: There was that chatter when I was a law clerk. That was a long time before that. Because he was really much more absorbed in writing his nature books than he was in the work of the Court. Which is not surprising. When you think about it, yeah, he was appointed in the late ‘30s, as I recall. I was there in 1961 and ’62. By that time you would have thought about an awful lot of problems that were maybe not directly involved in a given case, but tangential to it. So I think when somebody is around that long, they really already have a fixed view on a lot of issues that technically the Court hasn’t decided yet. But he was very quick, a very smart man and things came very fast to him. His law clerks used to rush in to get into the office on Saturday morning, because if he was assigned an opinion on Friday, he would have written it and sent it to the printer by Saturday.
Smith: He was not the most personable of men.
Kauper: No. Clearly not.
Smith: Now later on I assume you had a lot of contact through the Foundation with President Ford.
Kauper: Yeah, he would always wait until the end of the dinner when the speech was over, and I don’t how many times he would come up to me right at the very end, when most people had left. So yeah, I had contact with him. I think I only had contact with him formally, other than a couple of social things at the White House. While he was President, only once.
Kauper: He had signaled a veto on a bill that I had testified in support of, or I testified in support of part of. We had sort of negotiated a deal with Phil Hart that we would support two or three provisions in this one hundred page bill. I testified supporting carrying out that deal. And then Ford signaled a veto. So I got summoned to the White House and we went on for a very long time. It was a long bill. I think we originally had a half hour scheduled and that was extended and then it was extended again. And I just left in awe. I mean, he knew that bill inside out and upside down. I was flabbergasted. But it also said something about Ed Levi because – I don’t remember everybody who was in the room – but I know Levi was there because I went over it with him and Dick Cheney was there and I don’t remember who else might have been there. And we got all the way to the end and Ed Levi hadn’t said a word. So Ford turns to Levi and he says, “Well, Ed, what do you think?” And Levi looks at me and he says, “I don’t agree with a single thing he said.” But he said, “Mr. President, you politically cannot afford to veto this bill.” And as we were going out, I went out behind Ford and then Levi was behind me and Cheney was behind Levi and I heard Cheney lean over to Levi and said, “Ed, you sure have got a hell of a way of supporting your people.”
Smith: Was this discussion almost a debate over the merits of the bill?
Kauper: Yeah, well, I wouldn’t call it a debate. It was just an extended conversation about what the bill was about, whether it was good, bad, or otherwise. In fact, he ranged over into a couple of subjects that weren’t even going to remain part of the bill. And that’s what really surprised me; that he’d gotten into that much of it. And it was a very difficult bill for him to deal with, because this was the Phil Hart memorial bill. Everybody knew Hart was dying of cancer. This was his bill, this was the great anti-trust improvements act that had everything in it but the kitchen sink. And we’d gotten it down to three things; and it was one of the three that somebody had gotten Ford’s ear and that was the issue. But we talked about all the rest of it, too.
Smith: Last thing. How do you think he should be remembered?
Kauper: I find that very hard to put in words. I was always very struck by a colleague of mine a couple of years ago whose father died. A bunch of us had sent him notes and things. He sent around an email and all he said about his father was he was a good and honest man. And I thought, you know, that sort of says it all, doesn’t it? And I think of Ford that way. I never questioned his integrity; he was smarter than people gave him credit for, a lot smarter than people gave him credit for. And serving in that administration as a holdover, the difference was just so dramatic. It got to be fun. It was not in the Nixon years. You knew from the time I took over in the anti-trust division that this trouble was coming and this sense of everybody’s got the wagons around in a circle. And that just disappeared.