Name a prominent politician who ran into trouble with the law during the 1970s and you can bet that the man who prosecuted him for the federal government is now getting rich as a Washington white-collar criminal defense lawyer.
Begin with Watergate. Two of the three original Watergate prosecutors (Earl J. Silbert and Seymour Glanzer) are pillars of the small, select fraternity of Washington attorneys who devote at least half their time to white-collar crriminal defense. Former Watergate special prosecutors Richard Ben-Veniste and Henry S. Ruth are also members of the brotherhood.
Throw in the 1977 conviction of Maryland governor Marvin Mandel. All three government lawyers who handled this case (Barnet D. Skolnik, Ronald S. Liebman and Daniel J. Hurson) now have largely criminal defense practices. Skolnik and Liebman were also two of three government prosecutors responsible for removing Spiro Agnew from office.
How about Abscam? The government lawyer (John Kotelly) who prosecuted Rep. John Jenrette and the deputy assistant attorney general (Irvin Nathan) who coordinated the Abscan cases are now with leading Washington firms and plan to handle white-cllar defense work.
To the non-lawyer, there are few higher moral callings in our society than that of the dedicated federal prosecutor determined to bring corrupt politicians to the bar of justice.
The careers of Richard Nixon, Spiro Agnew, John Mitchell, Marvin Mandel and the seven members of Congress nabbed in Abscam all illustrate that in a free society no man is above the law.
This is why the ease with which these government lawyers have settled into private practice here is so disquieting. Almost all the more than 20 ex-prosecutors interviewed for this article say that they would have no moral problems in defending the sorts of public officials they once prosecuted. m
We have grown accustomed to seeing government lawyers go from writing Energy Department regulations to advising oil companies on how to get around these same legal strictures.
But prosecutors are pictured differently. They go into court representing the moral outrage of the people of the United States at political and corporate dishonesty. Watching ex-prosecutors change their strips is almost akin to seeing a doctor go from prescribing penicillin to rooting for the germs.
Medical analogies can be carried only so far. The right of the accused to a good lawyer is an essential part of a free society. But nothing in the Bill of Rights mandates that defense lawyers should make four times as much money as government prosecutors.
That's why the following illustrations of the plasticity of the legal mind are so disturbing to a non-lawyer:
The first case in private practice for Ron Liebman, one of the Agnew and Mandel prosecutors, involved representing an unnamed client who had been subpoenaed by a grand jury in Baltimore. As part of his defense maneuvers, Liebman filed a series of motions claming that the grand jury subpoenas were improperly drafted.
There was only one problem. While he was in the U.S. Attorney's office in Baltimore, Liebman helped draft the standard language for grand jury subpoenas. Liebman admitted that he had some "mixed feelings" in arguing that the language of the subpoenas was faulty. "I always thought that the subpoens were well-written until I looked at them from the perspective of a defense lawyer," he said.
Liebman won the battle, but lost the war. His motion to quash the subpoenas and Liebman's client was forced to testify before the grand jury.
Before Seymour Glanzer became one of the original Watergate prosecutors, he acquired a sterling reputation battling business scams and frauds in the U.S. Attorney's office here.
In 1974, Glanzer joined the firm of Dickstein, Shapiro & Morin. One of his first cases there was the successful defense of one of the individuals indicted in a famous oil-stock swindle, the Home-Stake Production Co. case. "I didn't have a deep dark night of the soul," Glanzer said in his raspy New York accent. His justification was that when he was in the government, "we would never have brought a case like that . . . I would not have prosecuted the man I later represented."
Since then, Glanzer's clients have included Frank Fitzsimmons, the late Teamster leader, and Michael Townley, the man who placed the fatal bomb in the car of former Chilean ambassador Orando Letelier. Asked about his representation of Townley, who pleaded guilty and cooperated with the government, about all Glanzer would say for quotations was "a lawyer's job is to handle hot potatoes and some potatoes are hotter than others."
Mandel prosecutor Dan Hurson was part of the defense team in the mail fraud and extortion trial of Joseph M. Margiotta, a Long Island Republican party official. The case ended, for the moment, with a hung jury in late April. But Hurson said that because of that experience "my views of political patronage have mellowed a bit."
In the Margiota case, the government used the same broad theory of what constitutes mail fraud that helped convict Mandel. As a defense lawyer for Margiotta, Hurson said, "I argued ad nauseam that the mail fraud statute was overstated," he said.Hurson didn't see this flip-flop as as sign of hypocrisy. "The lawyers for the defense in the Mandel trial were very good lawyers," he explained.
Trial experience. That's what makes the experience of working in a U.S. Attorney's office so marketable. Edward Bennett Williams, the noted criminal defense lawyer, who was never a prosecutor, said, "People in U.S. Attorney's offices get a tremendous volume of litigation experience. When they come out, this makes them attractive to law firms."
Traditionally former prosecutors used their courtroom skills representing corporations in civil trials. In New York, the U.S. Attorney's office in Manhattan ran what amounted to an apprentice program for Ivy League lawyers en route to partnerships in Wall Street firms.
In the past, some of the most controversial lawyers were ex-prosecutors. New York attorney Roy M. Cohn was a federal prosecutor in the late 1940s before he joined forces with Sen. Joseph McCarthy. Washington lawyer William O. Bittman, who was named as an unidicated coconspirator in the Watergate coverup trial for his role in ferrying large sums of cash to E. Howard Hunt, first made his reputation as the prosecutor who sent Senate aide Robert G. (Bobby) Baker to jail.
These days, however, both here and in New York, there is a new emphasis on white-collar criminal defense work. There is a simple economic explanation for this shift: we're getting a better class of criminal defendants and they can afford to pay premium prices for defense lawyers.
In the years since Robert Kennedy became attorney general, the government has waged a continuing war against corrupt politicians and corporate executives accused of criminal offenses ranging from overseas bribery to complex violations of securities law.
This torrent of cases has brought new respectability to white-collar criminal defense lawyers, especially big-name former prosecutors.
Defense lawyer William Hundley put it this way: "If you're a prosecutor for a long time and you go into private practice, that's your draw, if you know what I mean. If you go to someone like myself . . . or Barnet Skolnik, they figure you've got an edge because you're an ex-prosecutor. They figure that you'll help keep them out of jail."
Hundley, one of the many white-collar defense lawyers who earned his spurs in the Kennedy Justice Department, continued, "If [Attorney General] William French Smith is really serious about concentrating on street crime, we'll all be in trouble. We all want to represent white-collar types. I can't make a living representing murderers and rapists. I've got six kids."
Listening to most criminal defense lawyers talk, you'd get the impression that federal prosecutors are paid about as well as Washington summer interns. In truth, although a fledgling assistant U.S. attorney starts out at $18,500, most federal prosecutors make between $30,000 and $50,000 a year -- not enough to shop on Rodeo Drive perhaps, but clearly a decent income.
But private practice can yield enough for the house in Potomac, the Porsche, the gold Cartier watch, the Paris vacation and tuition at St. Albans or Madeira for the kids.
Most criminal lawyers mentioned in this article have incomes will into six figures. Hundley, for example, is said to bill in the neighborhood of $200,000 to $250,000 a year. But no one would talk candidly on the subject of income. When asked how much he is making, Skolnik, who shares an office with Hundley but has a entirely separate practice, said, "None of your bloody business."
Skolnik, whose record in cleaning up the Augean stable of Maryland politics was worthy of Hercules, acknowledged that money was one reason he left the government. "I have six kids," he said. "One makes a satisfactory living as a prosecutor. One cannot sneeze at the $43,000 a year that I was making when I left. But if you have six kids and some of them are getting awfully close to college age . . ." His voice trailed off.
College tuition for the kids has always ranked up there in the hierarchy of life's excuses along with "The check is in the mail" and "I didn't know it was loaded." No one would use the uncharitable phrase "selling out" to describe the transformation of relentless prosecutors into zealous defense lawyers. But criminal lawyer Nathan Lewin, another of the Kennedy alumni, employed gentler language to describe the same phenomenon.
Lewin talked about the "unfortunate" economics of criminal law. The standard lawyer's pattern, he said, is "a progression from law clerk to government service to the private world where he makes his fortune renting out his services at the going rate."
The transformation may be inevitable, but if you listen carefully, you can detect a sense of wistfulness as ex-prosecutors talk about their years in the federal government.
John Kotelly, 42, who worked on the Koreagate prosecutions, calls the 11 years he spent in the U.S. Attorney's office here "the happiest of my life. It's rare to have a job where year-in and year-out you are excited to go to work."
Early this year Kotelly, decided to join Dickstein, Shapiro as a partner.
With more than a half-dozen ex-prosecutors on their letterhead, Dickstein, Shapiro is a prime example of the trend among "white shoe" civil firms also to be able to handle the criminal problems of their corporate clients.
Kotelly is one of many assistant U.S. attorneys who when they hit 35 or 40 feel a generational imperative to leave for private practice.
"I was getting more and more into administration," Kotelly said, "and I worried that I wouldn't be able to try many more cases. Ten years down the road, I didn't want to be sitting around the U.S. Attorney's office telling young prosecutors what it used to be like trying cases as I sat in a big stuffed chair and supervised."
There is also a suggestion that the moral clarity of a prosecutor's work dims with age and maturity. By the time of the second Mandel trial, Skolnik said, "I had become increasingly uncomfortable with my role as society's avenger."
Put simply, Skolnik said, "I was basically ruining people's lives. It was the inevitable consequence of my job." He acknowledged the deterrent value of the prosecution of corrupt politicians. But, Skolnik said, "What got to me was that a lot of the people whose lives I was ruining were innocent. They were the wives, the children and the employes of people I prosecuted."
It was old-timers' day for former prosecutors as the defense team took its place in federal court in Alexandria about six months ago. The criminal case, arising out of the General Services Administration scandals, accused Computer Sciences Corporation, a large California firm, and seven executives of defrauding the government.
Among the more than 20 defense attorneys sharing in the booty of this complex multi-defendent case were eight ex-prosecutors including Lewin, Skolnik, Hurson, as well as Barry W. Levine and David R. Addis, who are now with Dickstein, Shapiro.
Thanks to a skillful defense, the case never got beyond pretrial motions. The judge dismissed all 57 counts of the indictment on technical grounds.
One of the key legal issues in the case, largely developed by Levine and Addis, gives the flavor of the kind of innovative defense that former prosecutors can bring to a case.
In a criminal trial, the defense has to go through a complicated set of maneuvers to get to see the grand jury transcripts that led to the indictment. In this case, not only did the defense get to examine the transcripts, but they discovered that five unauthorized people had been admitted to the grand jury room.
Armed with this information, Levine and Addis developed the legal argument that the secrecy of the grand jury had been violated.Earlier Addis had successfully used the same defense in an insurance fraud trial in Baltimore. Other than the Baltimore case, there wasn't much legal precedent to buttress this argument. No wonder Levine called this approach "creative" and "unusual."
But it worked. In early March, the judge dismissed the remaining 14 counts of the indictment because the sanctity of the grand jury process had been breeched. The federal government is still considering an appeal, but already, according to Lewin, the defense has cost more than $500,000. No wonder the judge was overheard saying in jest as he was leaving the courtroom, "This case could have done for the legal profession what the Chicago fire did for the building industry."
Although it wasn't a problem in the Computer Sciences case, occasionally when ex-prosecutors go into court they forget which side they're on. At one point in the Margiotta trial, for example, defense lawyer Hurson said, "The government intorduces Exhibit No. 6."
But even when ex-prosecutors have changed costumes with the speed of a Las Vegas chorus girl, no one admits to being afflicted by self-doubt.
It was Halloween 1979 when Henry F. Schuelke III, who had unsuccessfully prosecuted local official Joseph Yeldell and developer Dominic Antonelli, cleaned out his desk in the U.S. Attorney's office here for the last time. Two days later he was in Atlanta working on the eventually successful defense of Bert Lance, Carter's first director of the Office of Management and Budget.
Asked about the transition, Schuelke said, "I didn't feel anything at all. It wasn't an issue for me . . . I guess the fact that I believed that it was a case that I would not have brought as a prosecutor was a big help. It wasn't that I was playing mouthpiece for someone I didn't believe in."f
When he lft the government after 14 years last summer, former interim U.S. Attorney Carl S. Rauh took an equally quick plunge into the cold water of criminal defense work. Just a week into private practice, Rauh was asked to handle a political corruption case outside of Washington.
What made the transition easier was Rauh's belief that there "was very serious prosecutorial misconduct in the case."
Self-justifications like these are common when former prosecutors talk about their new-found love for criminal defense work. Former U.S. Attorney Earl Silbert was unique when he admitted, "I don't think there's any question that it's not the public service like being a prosecutor."
When asked about white-collar defense work, most of the other fraternity brothers gave stock answers that fit into four categories. These defenses tell us as much about the peculiar morality of the law as they do about the Washington lawyers who have switched side with such apparent ease.
The Three Stooges Defense: Listening to ex-prosecutors talk, you get the impression that Moe, Larry and Curly have taken over U.S. Attorney's offices since they left government.
Take Seymour Glanzer, for example. When he was a federal prosecutor here, Glanzer said, "We spent a lot of time invoking proper standards of prosecutorial discretion." But now in private practice Glanzer is constantly confronted with cases that are "a mish-mash of legal theories to justify a criminal conspiracy."
The Lizzie Borden Defense: Defense lawyers are fond of pointing out that white-collar crimes are different from ax murders. "In white-collar criminal law," said Nathan Lewin, "there is no black or white. Guilt is going too far in the shades of gray." Even when all the facts are known, lawyers can spend months wrangling over whether the actions add up to a crime.
Asked about one of his more controversial criminal clients, New York nursing home operator Rabbi Bernard Bergman, Lewin gave the classic lawyers' answer: "I don't think Bergman was less savory than most defendants in white-collar cases. You're dealing with perceptions here, varying shades of gray."
The Will Rogers Defense: Sometimes you get the feeling that a white-collar defense lawyer never met a client he didn't like. Repeatedly they talk about the joys of getting to know a client and his family.
For example, in the Margiotta case, Hurson said, "I was very concerned about this guy. I was worried what would happen to him if he were guilty."
When you are a defense lawyer, Richard Ben-Veniste explained, "The client isn't abstract like the United States, but a living, breathing person with a wife and family who depends on you. It's like someone going into the hospital for major surgery and you being the surgeon."
The Jules Feiffer Defense: In his play, The Little Murders, feiffer satirized a trendy Greenwich Village minister who would justify any form of immoral conduct by saying, "It's all part of the life process."
Criminal lawyers take comfort in a similar doctrine. It's called the adversary system -- the notion that the truth will emerge when a dedicated prosecution meets a spirited defense in a court of law.
No matter what arguments and strategies you have to develop on behalf of an obviously guilty client, it's all part of the adversary process. It is a wonderously flexible doctrine since some lawyers argue that a defense attorney can even knowingly watch his client lie on the witness stand, just s long as he doesn't encourage perjury by asking leading questions.
What we are left with is the moral stance of ex-prosecutor Thomas C. Green, who has represented political figures like Tim Kraft. "If I sat in judgment on each of my clients and the bottom line was whether I would do what they're accused of, I wouldn't have too many clients," Green said.
One lament that former prosecutors have about their new calling is that they don't get enough courtroom work. Skilnik, Hurson, Liebman and Schuelke all left the government in 1978 and 1979. Since then, the four of them have been involved in a total of six jury trials.
Instead, a large portion of their time is spent trying to keep their cleints from being indicted. "The best cases are the ones the ones that nobody hears about except for the grateful cleint and the frustrated prosecutor," said Skolnik.
Each former prosecutor has his own metaphor to describe combat in the courtroom. To Ben-Veniste, it's a bullring. To Skolnik, it's a minefield. To Green, it's "knocking heads."
But what all these ex-prosecutors have in common is that they are gamesmen, thrilled by the adrenaline rush of matching wits in the courtroom.
"Very few things in life come down to as dramatic a conclusion as a criminal trial," said Hurson. "It's a real moment of high drama. In part, that's why a lot of us are in this game. Being involved in a trial is sustenance for us. It doesn't matter which side you're on."
Like soldiers of fortune, good defense lawyers maintain a sense of detachment from the cause whose banners they hold aloft in combat.That's why many former prosecutors were puzzled by questions about any moral qualms they may have had about white-collar defense work.
"If trial lawyers tell you the truth," Schuelke said, "the rewards are pretty much the same on either side. If you happen to appear in behalf of a client in whom you believe, that's icing on the cake. But the fundamental satisfactions come from succeeding. Being all by yourself, relying on your wits in a competitive contest situation and winning."
It was about eight o'clock on a Wednesday evening and Schuelke was alone in the plush L Street law office that he shares with his two partners, both former assistant U.S. attorneys.
Asked to explain the type of cases that he would be reluctant to take in private practice, Schuelke gave a revealing answer.
"I have a pretty savvy 8-year-old son, Hal," he said. "When I was a prosecutor his notion of what I did was that I put the bad guys in jail. It got a little difficult for him when he finally perceived that I was now on the other side.
"These days, I have this sort of rule of thumb on taking cases. Can I explain why I'm in this case to my son, Hal, in a fashion that will float?"
The former prosecutor paused and apparently decided he didn't want to sound too pious.
"I won't say that I won't take the case because I can't explain it to Hal," he added. "But the question is always rattling around in my head."
The phone rang. Schuelke didn't answer by saying, "Trouble is my business," but perhaps he could have.
Judging from Schuelke's responses, the caller was a potential client worried that there was a federal arrest warrant out against him.
Schuelke mostly listened the quintessential lonely lawyer standing by the window looking out over a rainy city at night. At one point he said, "You've got some serious problems." The call ended as the ex-prosecutor and potential client agreed to meet in Schuelke's office in an hour.
After he put the phone down, Schuelke wouldn't say much about his mystery caller. But he did volunteer this: "Hal may say no on this one. I don't know if I'll take the case, but the guy on the phone is always fun to talk to."
Despite the number of former prosecutors representing white-collar criminal defendents, it would be a mistake to assume that the scales of justice are tilted against the government. As one former prosecutor, fond of basketball analogies, put it: the government goes before a judge and jury with a six-point, home-court advantage.
The prosecution controls the timing of a jury trial, sometimes taking a year to develop a big case. Under the federal speedy trial act, the other side has just 60 days to prepare its defense. The government also has a near-monopoly on information in a major trial thanks to investigative agencies like the FBI and the full text of the grand jury proceedings.
Moreover, most federal judges tend to give government prosecutors the benefit of every doubt. As William Hundley said, "Most federal judges on a Richter scale are, at least, seven for the goverment. We call them house judges."
No wonder even the most accomplished defense lawyers lose more cases than they win. Often they are more than satisfied if they can get their clients off with probation or a conviction for a lesser offense.
This, however, does not eliminate the problems in a white-collar criminal justice system where the younger and most self-righteous lawyers tend to be assistant U.S. attorneys.
Federal prosecutors have one enormous power: the right to decide who should be indicted in a criminal case. This is the murky area that lawyers call prosecutorial discretion. Defense lawyer Nathan Lewin posed the problem in these terms: "Young lawyers become prosecutors before they see the other side. When someone becomes a prosecutor at a stage of life when he sees everything in black and white, he can go too far with the best of intentions."
Good prosecutors often have courtroom skills that equal the best defense lawyers. But they often lack a complex view of human nature. Barnet Skolnik illustrated this point as he discussed his own career in the U.S. Attorney's office in Maryland. Skolnik recalled that when he was 30, "I thought that fighting crime and corruption was transcendent. I loved the abstractions. . . The abstractions were everything. The individual people were just pawns in the struggle." Now that he is 40, Skolnik finds "defending people in trouble is fulfilling work" and the abstractions have lost their allure.
There is something wrong with a system that induces a Skolnik to quit the government at just the point in his life where his moral vision has matured and softened with age. These skills are in short supply in U.S. Attorney's offices, but, like so many of his colleagues, Skolnik has chosen to spend the next 30 years of his professional life growing prosperous as a white-collr defense attorney.
This transformation isn't immoral or hypocritical, just sad, like watching Joe DiMaggio do commercials for Mr. Coffee on television.