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Philip Heymann, legal scholar and aide to Watergate special prosecutor Archibald Cox, dies at 89

Philip B. Heymann, chief assistant to Watergate special prosecutor Archibald Cox, talks with journalists outside U.S. District Court in Washington in June 1973. (Harvey Georges/AP)
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Philip B. Heymann, a legal scholar who was a chief assistant to Watergate special prosecutor Archibald Cox, later leading the Justice Department’s criminal division and serving briefly as the top deputy to Attorney General Janet Reno during a career that established him as an authority on presidential powers and civil liberties, died Nov. 30 at his home in Los Angeles. He was 89.

The cause was complications from a stroke, said his daughter Jody Heymann, a distinguished professor at the University of California at Los Angeles and an authority on health and social policy.

Mr. Heymann (pronounced Hyman) had long taught at Harvard Law School, his alma mater and professional home during those periods when he was not engaged in government service at the Justice or State departments.

“An academician who has the hands-on experience of prosecution and administration,” a reporter for the Boston Globe once wrote, he was “well-respected both in academia and the workaday world of prosecutors” and thus belonged to “a singular group of major, national players in criminal justice who combine two attributes often considered to be in conflict in the field.”

Mr. Heymann first joined the Justice Department in 1961 as an aide to Cox, his former law professor, who was then serving under President John F. Kennedy as solicitor general, the representative of the U.S. government before the Supreme Court. Mr. Heymann remained in the job until Cox’s departure in 1965.

“Phil was learning from Cox all along how you were a public servant of the highest order, almost in a way that doesn’t exist anymore in our country,” Ken Gormley, author of the biography “Archibald Cox: Conscience of a Nation,” said in an interview.

In May 1973, Cox, who was also Mr. Heymann’s colleague on the Harvard Law faculty, was appointed special prosecutor to investigate the scandal stemming from the bungled burglary of Democratic National Committee headquarters at the Watergate complex in 1972. The break-in, its coverup and other political misdeeds would ensnare top members of President Richard M. Nixon’s political circle and ultimately led to Nixon’s resignation in 1974.

Years later, Mr. Heymann told the PBS program “Frontline” that when he learned of Cox’s appointment, he promptly paid a visit to “Archie” and told him, “Gee, I would like to go down with you.”

Mr. Heymann was among the first aides Cox hired to help establish the office of special prosecutor, a task they pursued amid intense scrutiny. “Yellow stickers on the phones warn against the hazards of bugging,” read an account published in The Washington Post at the time. “Hallway posters emblazoned with a bundle of dynamite wired to a clock and a telephone read like leftovers from World War II: ‘LOOSE TALK IS EXPLOSIVE . . . ANYTIME.’ ”

Mr. Heymann appeared during the summer of 1973 in court proceedings before U.S. District Court Judge John J. Sirica, who presided over the Watergate cases, before returning to Harvard at the start of the new academic year. But he soon found himself back in Washington to support Cox during a confrontation with the Nixon administration that culminated in Cox’s firing on Oct. 20, 1973, in what became known as the Saturday Night Massacre.

The Saturday Night Massacre, effectively a constitutional crisis, was precipitated by Cox’s decision to subpoena tape recordings of incriminating White House conversations. When Nixon ordered his removal, Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus resigned rather than carry out the order ultimately executed by Solicitor General Robert H. Bork.

Cox was succeeded as special prosecutor by Leon Jaworski, who retained Mr. Heymann as an assistant. Mr. Heymann’s portfolio included the investigation of Nixon’s “Plumbers’ Unit,” that, among other actions, broke into the office of the psychiatrist of Daniel Ellsberg, who had leaked to the news media the secret history of the Vietnam War known as the Pentagon Papers.

In a demonstration of his commitment to civil liberties, Mr. Heymann challenged the defense’s position that the break-in could have been justified by national security concerns. John D. Ehrlichman, once Nixon’s chief domestic adviser, was among the defendants convicted in connection with the Ellsberg break-in.

The Watergate affair had an abiding effect on governance, one that Mr. Heymann felt personally when he served as head of the Justice Department’s criminal division from 1978 to 1981.

Attorney General Griffin Bell “said that nobody higher than the head of the criminal division would really have anything to do with any prosecution in the United States,” Mr. Heymann told Frontline. “I was to be the final word; nobody from the White House could contact me. Nobody from Congress was to contact me on any case.”

Mr. Heymann’s appointment gave him oversight of high-profile investigations including the Abscam corruption probe that led to the conviction of six members of the U.S. House of Representatives and one U.S. senator. He defended the methods used in the investigation, which involved FBI agents posing as aides to an Arab sheikh and seeking to buy influence among lawmakers.

The Justice Department was not “in the business of testing morality,” he remarked, while also observing that law enforcement and citizens were entitled “to expect an official to turn down what is plainly a bribe.”

Mr. Heymann’s final Justice Department post was as deputy attorney general under Reno, who was selected by President Bill Clinton as the country’s first female attorney general. Mr. Heymann stayed in the No. 2 post less than a year, resigning in early 1994 over what he and Reno said were their stylistic differences. The Post described the two officials as “the all-business, no-nonsense Reno and the professorial Heymann.”

He soon emerged as a critic of some administration policies, publicly opposing the “three strikes” measure instituting life sentences for three-time violent offenders. Mr. Heymann also testified before the Senate committee investigating the Whitewater matter, a sprawling investigation of conduct by the Clintons, that he disagreed vehemently with the manner in which the White House had probed the suicide of deputy White House counsel Vincent W. Foster Jr. in 1993.

Mr. Heymann later quipped to the Los Angeles Times that if he could change any aspect of his brief final stint at the Justice Department, he would have rented a home in Washington instead of purchasing one.

Philip Benjamin Heymann was born in Pittsburgh on Oct. 30, 1932. His father sold insurance, and his mother was a homemaker and civic activist.

Mr. Heymann received a bachelor’s degree in philosophy from Yale University in 1954, then studied at the Sorbonne in Paris as a Fulbright scholar and served in the Air Force before receiving a law degree from Harvard in 1960. He then was a clerk to U.S. Supreme Court Justice John Marshall Harlan II.

After leaving the solicitor general’s office, Mr. Heymann joined the State Department, where he oversaw the bureau of security and consular affairs. He later was an executive assistant to undersecretary of state Nicholas deB. Katzenbach.

Outside his government work, Mr. Heymann participated in efforts to improve criminal justice around the world, including in Latin America, Russia and South Africa. He wrote extensively on civil liberties in the age of terrorism and retired from Harvard Law in 2017 after almost 50 years on the faculty.

Mr. Heymann allowed for limited and carefully considered domestic intelligence-gathering but argued against overreacting to terrorist threats by drastically paring back individual rights. “For a great democratic nation,” Mr. Heymann wrote in his book “Terrorism and America” (1998), “what is needed is a strategy, not unbridled anger.”

In 1954, he married Ann Ross. In addition to his wife and daughter, both of Los Angeles, survivors include a son, Stephen Heymann, a former federal prosecutor, of Menlo Park, Calif.; four grandchildren; and two great-grandsons.

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