January 30, 1975: Edward Levi pauses during testimony before the Senate Judiciary Committee. The committee was hearing Levi‘s qualifications to be attorney general. (Photo By The Denver Post via Getty Images)
By David Kurlander
Edward Levi’s name is everywhere these days. Amid calls for Attorney General Bill Barr to resign for politicizing the Department of Justice, Levi, AG from 1975-1977, has emerged as a powerful historical counter to Barr. Veteran journalist Al Hunt opened his Barr polemic in The Hill with an ode to Levi’s neutrality. George H.W. Bush’s Deputy AG Donald Ayer spent a good chunk of his resignation demand in The Atlantic praising Levi for his rebuilding of the post-Watergate DOJ. Even before the current Barr drama, the Trump administration’s corrosion of legal norms inspired ex-Deputy AG Rod Rosenstein to reference Levi in his April 2019 resignation letter.
Why was Edward Levi so important? What did he have to clean up? And what does his appointment teach us about the importance of prosecutorial independence?
On January 27, 1975—five and a half months after the resignation of President Richard Nixon—the Senate Judiciary Committee convened at the Dirksen Senate Office Building to discuss Levi’s nomination in advance of a full Senate confirmation vote. Levi, who would ultimately pass with flying colors, was a 63-year-old legal scholar who had until weeks earlier served as the beloved President of the University of Chicago. He appeared in a self-knotted bowtie, a wizened academic thrust into a political dumpster fire.
Levi, who hailed from a family of pioneering Reform rabbis, had been associated with the University of Chicago for 45 years, first as an undergraduate, then as a law student, then as a professor, then as a law school dean, then as provost, and finally as president. He juggled countless, often contradictory responsibilities with impressive independence—he oversaw the growth of the pro-free market Chicago School of Economics while continuing to support other academic approaches; as an antitrust expert, he advised the trust-busting FDR administration while later managing to write iconic articles about loosening restrictions; and he hit the cocktail party fundraising circuit for the strikingly modernist Eero Saarinen law school complex while still emanating discipline and seriousness.
Levi’s most famous balancing act came immediately following his inauguration as University of Chicago President in late 1968. During the procession following Levi’s swearing-in, Marxist professor Marlene Dixon joined student protestors in chanting “Work, study, get ahead, kill!” in front of the Chicago Hilton, where the reception dinner was to take place. Dixon’s contract wasn’t renewed, and hundreds of student protestors responded by occupying an administration building. As the days passed and frustrated faculty members scuffled with the occupiers, Levi’s colleagues encouraged him to deploy the Chicago Police Department to quash the uprising. Levi refused, and the students—unable to generate media coverage and widespread support—ultimately ended the sit-in after 16 days. Levi had avoided a violent showdown, the likes of which were underway at San Francisco State, Berkeley, and Harvard, by showing restraint. Levi expelled the most aggressive occupiers, but also expanded student centers and granted new rights to professors—a crisis manager if ever there was one.
Levi’s devotion to the University was so great that the Chicago Tribune’s Carl Larsen predicted near the beginning of his presidential tenure, “Today, it seems safe to forecast that Levi will never leave the University of Chicago as long as he is physically capable of directing its future.” Less than seven years later, however, Levi had been called away from the confines of Hyde Park to the hottest seat imaginable.
Much of the Levi confirmation hearing is familiar to 2020 ears—the Committee questioned Levi on issues of urban poverty, illegal immigration, white collar crime, and the limits of government surveillance. Other exchanges, like segregationist Senator Strom Thurmond’s attempts to convince Levi to deauthorize the Voting Rights Act, or an extended appearance by far-right Liberty Lobby representative E. Stanley Rittenhouse (who tried to tie Levi into a Rockefellerian conspiracy for “one world government”), are decidedly of their moment.
What makes the hearing remarkable, though, is the extent to which the Senators recognized the reforming role that Levi needed to play. Senator Adlai Stevenson III (D-MA), the son of the 1950s Democratic Party standard bearer, summed up the dire situation during his opening statement: “It is a sad fact that the Department of Justice was a principal victim of the Watergate era. In past years the Department’s carefully built reputation for evenhandedness and professionalism was abused by those who took it over. The office of Attorney General became, for a time, a headquarters for political dealing.”
The two most aggressive political dealers, Richard Kleindienst and John Mitchell, were in the midst of becoming the first two Attorney Generals to be convicted of Federal crimes.
Mitchell, the tough-talking law and order zealot who had been Nixon’s campaign manager in 1968, was a month away from being sentenced to a 2½-to 8-year prison sentence on federal conspiracy, obstruction, and fraud charges. The overlapping revelations of the Senate Watergate hearings, the Watergate Special Prosecution Force, and the steady stream of dishy memoirs by Nixon’s aides had outed Mitchell as the overseer of the Plumbers, G. Gordon Liddy’s “dirty tricks” unit that organized the famed break-in. Mitchell’s actions were cartoonish. He had admitted on national television that he had hosted meetings with Liddy, in the AG’s office no less, during which they discussed kidnapping and taking to Mexico anti-war protestors during the 1972 Republican National Convention in Miami. He had resigned as Attorney General to head CREEP (Campaign to Re-Elect the President), where he managed the slush fund used to buy the silence of the Watergate burglars. He had organized a CREEP kidnapping of his outspoken wife, Martha. In other words, the Senate could, to a certain degree, write off Mitchell as an aberration of the office.
Kleindienst’s misdeeds were more ambiguous and thus took a more central role during Levi’s confirmation. Kleindienst was Mitchell’s Deputy AG and succeeded him after Mitchell’s eyebrow-raising move to CREEP. He had served in the Arizona House of Representatives and as a member of arch-conservative Barry Goldwater’s famed “Arizona Mafia.” Washington Post columnist Nicholas von Hoffmann described Kleindienst as “a big man, and a gray and beefy one who smokes Marlboros.”
Kleindienst’s fall was set in motion by a telephone call he received from President Nixon on April 19, 1971—a call whose tone is staggeringly familiar to anyone who has even casually followed the Trump White House. Nixon was inquiring about three antitrust cases related to the telecommunications firm International Telephone & Telegraph, at the time the world’s largest conglomerate. ITT and its cult-of-personality CEO Harold Geneen had helped pioneer the fast-growing mergers and acquisitions market. In the late 1960s, they had controversially and quickly scooped up iconic companies like Sheraton Hotels and Avis Rent-a-Car.
In 1969, ITT was pursuing three major acquisitions: Hartford Fire Insurance Company (self-explanatory), the Canteen Corporation (vending machines), and the Grinnell Corporation (grooved piping). The moves caught the attention of Richard McLaren, Head of the DOJ’s Antitrust Division, who filed lawsuits he hoped would serve as “test cases” against the unbridled growth of such corporations. Mitchell had repped the conglomerate as a private attorney and recused himself, so Kleindienst was in charge of overseeing the litigation as it moved through the courts.
Nixon had a number of connections to ITT, particularly in San Diego, then a conservative stronghold in California and a rapidly expanding market for Sheraton. As the antitrust cases intensified, ITT lobbyists began floating veiled threats and offers to NIxon confidants. In other words, Nixon had ample reason to forestall ITT from suffering under his reign. His call to Kleindienst was a doozy:
PRESIDENT: McLaren’s ass is to be out within one hour. The ITT thing—stay the hell out of it. Is that clear? That’s an order. The order is to leave the goddamned thing alone.
PRESIDENT: I did not want McLaren to run around prosecuting people, raising hell about conglomerates, stirring things up at this point. Now, you keep him the hell out of that. Is that clear?
PRESIDENT: The problem is McLaren’s a nice little fellow who’s a good little antitrust lawyer out in Chicago. Now he comes in and all these bright little bastards that worked for the antitrust department for years and years and who hate business with a passion—any business—have taken him over.
Kleindienst did not follow Nixon’s order to fire McLaren. In fact, he wrote in his 1985 memoir that he was profoundly shaken by the call. “When President Nixon hung up, I was in a state of shock,” Kleindienst wrote. He even claimed he considered resigning. Instead, Kleindienst massaged a complicated series of compromises that led to a relatively quiet out-of-court settlement for ITT, rather than a headline-making Supreme Court case McLaren had been pushing.
Unanswered questions remained. Why had Nixon taken such an aggressive personal stance against the ITT cases? Why had McLaren suddenly agreed to settle? The media mostly reported the move as a successful check on corporate power. Nixon retreated and Kleindienst assumed the unsavory phone call would never be publicized. That’s not what happened…
NEXT WEEK, WE’LL LOOK BACK AT KLEINDIENST’S LIES, LEVI’S PROMISES, AND THE ALL-TOO-RELEVANT 1970s QUEST TO REFORM THE DEPARTMENT OF JUSTICE. STAY TUNED.