Senators Philip Hart (D-MI) and Teddy Kennedy (D-MA), two of the most vocal questioners in both the Kleindienst and Levi confirmation hearings, holding court in 1972. Photo credit: David Cupp, Denver Post.
By David Kurlander
Last week, we began exploring the legal turmoil that made Edward Levi’s 1975 nomination as Attorney General so impactful. We ended on a bit of a cliffhanger—a hidden, belligerent April 1971 phone call from President Nixon to Deputy AG Richard Kleindienst demanding that antitrust lawsuits against conglomerate International Telephone & Telegraph (ITT) be settled. Nixon got his wish, but the call to Kleindienst would reemerge with a vengeance…
In February 1972, when Richard Kleindienst was in the midst of his confirmation hearing to become Attorney General, syndicated columnist and Nixon enemy Jack Anderson published a leaked memo by an ITT lobbyist, Dita Beard.
Beard, a hard-edged operator in her mid-50s, claimed in a letter to ITT vice-president William Merriam that she had organized a quid pro quo with Kleindienst’s predecessor, John Mitchell, at Kentucky Governor Louie Nunn’s mansion following the 1971 Kentucky Derby. The deal had Mitchell organizing the settlement of the suits in exchange for ITT’s promise of $400,000 to help underwrite the 1972 Republican National Convention.
The veracity of the Beard memo and the truth behind the DOJ’s motivations in settling the ITT lawsuits remain fuzzy to this day. The scandal, an eerie foreshadow of Watergate, ballooned to include revelations of ITT’s involvement in Chilean anticommunism, the gaslighting and quasi-abduction of Beard, and the economic meltdown of San Diegan hotel construction (very Anchorman). ITT, while not remembered like Watergate, periodically crops up as a cautionary tale: In 2010, journalist Mark Feldstein detailed the affair in his Poisoning the Press: Richard Nixon, Jack Anderson, and the Rise of Washington’s Scandal Culture; In 2014, Brennan Center fellow Ciara Torres-Spelliscy invoked the supposed quid pro quo in a piece about reforming campaign finance laws; Last October, CNN analyst Sarah Isgur found echoes of ITT in Trump’s early handling of the Ukraine scandal.
Despite the flurry of revelations, Kleindienst managed to survive his confirmation, which became a surreal, 24-day-long (1,700-page-transcript) referendum on ITT. Jack Anderson and his enterprising assistant, Brit Hume (yes, bizarrely, that Brit Hume), continued finding dirt, discovering that Lazard partner Felix Rohatyn, a central architect of ITT’s mergers (and the soon-to-be iconic “savior of New York”), had met with Kleindienst several times before the settlement to defend the acquisitions.
Kleindienst used these new revelations almost to his advantage. He, Rohatyn, McLaren, and Mitchell all appeared before the Committee, fessing up to various under-the-radar communications between ITT and the White House. Each witness, however, presented the conversations as non-political, responsible discussions about the negative economic impact of McLaren’s lawsuits. They frequently cited a report by a White House fellow suggesting that divestiture from Hartford, the largest of ITT’s three maligned acquisitions, could have cost shareholders $1.2 billion and would have maybe even triggered a larger financial collapse. Perhaps the men had just been looking out for the economy…
Even as he positioned the ITT meetings as civic duty, Kleindienst knew he could not spin the Nixon call. Senators Birch Bayh (D-IN) and Teddy Kennedy (D-MA) both asked the nominee point-blank whether anyone in the White House had pressured him to drop the ITT lawsuits. Kleindienst responded: “In the discharge of my responsibilities as the acting attorney general in these cases, I was not interfered with by anybody at the White House. I was not importuned; I was not pressured; I was not directed.” In his memoir, Kleindienst recalled his sense of dread during the questioning: “I was deeply conscious of that fateful telephone call I had received from the President.” He rationalized his denial by arguing that nobody asked him directly about Nixon.
Upon confirmation, Kleindienst almost immediately became swept up in the Watergate scandal. He resigned in May 1973 due to his close association with Mitchell, whose crimes were increasingly obvious. He returned to private practice and agreed to speak with the Watergate Special Prosecutor Archibald Cox, to whom he confidentially revealed the profane Nixon call. Within a week, Kleindienst’s admission had leaked to the New York Times, triggering an avalanche of perjury accusations. Kleindienst ultimately avoided prison, but pled guilty in May 1974 to a misdemeanor for lying to the Senate—another stab in the heart of the Nixon administration months before its final collapse. Kleindienst sobbed openly before the U.S. District Court for the District of Columbia as Judge George L. Hart offered a poignant post-mortem on Kleindienst’s loyalty to Nixon: “While this was technically a violation of law, it is not the type of violation that reflects a mind bent on deception; rather, it reflects a heart that is too loyal and considerate of the feelings of others.”
Seven months later, this tragic image of Kleindienst’s misplaced fidelity loomed large over the Senators as they prepared to confirm Edward Levi. They probably weren’t worried that Levi would kidnap his own wife or orchestrate a series of political burglaries. Given the lessons of the preceding years, they likely assumed he would sprint in the other direction at the very mention of corporate favors to the White House. But they seemingly could imagine that he would cover for a President’s moment of impulsive partisanship, as Kleindienst had. The hearing, then, became a political exorcism—an attempt to assuage widespread fears that there was no way back to normalcy and independence for the DOJ.
Kennedy immediately invoked Kleindienst and the Nixon call during his round of questioning: “I am just wondering if you could tell us what your reaction would be if you get a call for some kind of action from the White House. What is going to be your response? Are you going to call each case on the basis of the legality of the situation, or are you going to try to look for justification in support of action taken by the White House? Are you going to call them as you see them, so to speak?”
“Well, I’m going to call them like I see them,” Levi responded. “I cannot imagine why anyone, including the President of the United States, would think of asking me to take this office, if I am confirmed, except for my independent judgment as to the legality, which includes frequently a judgment as the kinds of policies which are involved in the legality, and I would give my independent judgment.”
Kennedy used Levi’s doe-eyed response as an opportunity to remind the Committee more explicitly of what they were fighting: “Well, it is extraordinary that we even have to pursue this line of questioning, but this Committee, over the period of the last several years, has pressed this issue and not only to our disbelief, but also to the disbelief to the American people, we find that interference has in fact occurred, where Presidents have called and have urged either action or no action in particular matters.”
Michigan Senator Philip Hart, a Civil Rights crusader famously nicknamed “the Conscience of the Senate,” picked up Kennedy’s line of questioning by referencing a feature that columnist John Gunther had written about Levi: “A writer, in describing you, said that you had acquired the interesting trait of being able to probe without arousing antagonism. I think that is a great trait, but there are some situations where you cannot escape arousing antagonisms, and if you are going to be a standup Attorney General, that is certainly one of those places. If, as in the ITT affair, a President of the United States were to order you not to prosecute a case that you felt worthy of prosecution, at the risk of antagonizing him, how would you respond?”
Levi responded with a dry, self-effacing humor that would run through many of his speeches as Attorney General: “Well, I don’t think my response would be based in any way at all on whether I thought I was antagonizing him or not. I must say that John Gunther was very kind. I did not realize my career was bereft of antagonisms. I would not worry about that part of the problem.”
Hart, who would die the following year from melanoma and whose name now adorns the building opposite where the hearing took place, then took Kennedy’s questioning one step further, pressing Levi on whether he would publicly reveal a Nixon call-style experience: “Would you feel any obligation to tell the country that the President was seeking to abuse the power?
Levi’s reply both protected Ford, who was in a precarious position after his pardon of Nixon, while showcasing that he understood his responsibility—probing without antagonism, indeed: “Well, yes, if I thought there was an intention to abuse the power, of course I would say so, but of course I do hope and believe that it is quite theoretical.”
Hart’s last volley again positioned the confirmation hearings as a moment of philosophical reckoning for a country trying to shake the legal ghosts of Watergate. “Well, we all voice that hope, right across the board, that power shall never be abused hereafter, but humans are humans, and time passes and attitudes change, and we may be back where we started. That is the reason for, I think, the legitimate reason for keeping alive this part of the lesson of Watergate.”
Well, here we are.
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