All the world knows that the Attorney General-designate is the President-elect’s brother, and practically all the world has feelings of one sort or another on that aspect of the nomination. But such feelings do not in the end come to anything decisive. Nor does a widespread but rather generalized distrust of Robert F. Kennedy—which, it may be said in passing, was hardly alleviated by the reported remark of his father that Robert is a good hater. The difficulty with the nomination, having regard to the nature of the office of Attorney General, is that in his brief but highly visible professional career, Mr. Kennedy has demonstrated specific grounds of disqualification. This is not to raise a question of professional competence. Nor in the strict sense is this a charge of prior professional misconduct. Mr. Kennedy did not violate the letter of any law or canon of legal ethics. But the law and the canons of professional ethics prescribe the minimum standards only. More is required of the Attorney General of the United States, who is a keeper of the executive conscience.
Robert F. Kennedy was chief counsel for some three years to the Senate Select Committee on Improper Activities in the Labor or Management Field. This Committee, under the chairmanship of Sen. John L. McClellan of Arkansas, investigated labor union corruption, violence, “underworld infiltration” and the like. It brought to public notice some exceedingly disagreeable persons and situations, and its work led eventually to the enactment of a significant new statute, the Landrum-Griffin Act. Thus, the Committee was quite a success, as these committees go. Nevertheless, with Mr. Kennedy in the lead, it embarked also on a number of purely punitive expeditions. In doing so, it gravely abused its powers. We have, sadly, become accustomed to such abuses, and in this instance there was not much of an outcry. The voice of indignation was almost inaudible, having been rendered hoarse in the efforts to shout down McCarthyism—which is the same thing in wolf’s clothing. Moreover, for complex reasons touching the proper relationship between the judicial and legislative branches, these abuses are not illegal. There is no remedy in court against them. They are abuses nonetheless, and they subvert the integrity of the administration of justice. It is necessary to review at least two episodes, chosen pretty much at random out of dozens, in order to begin an assessment of Mr. Kennedy’s performance.
THE GLIMCO CASE. On April 24, 1958, announcing that he was investigating, among other things, “hoodlum penetration of certain labor unions,” chief counsel Kennedy brought to the stand one Joseph P. Glimco. (He referred to him as “Joey”—and why doesn’t some sociologist make a study of the different but always potent connotations that attach to the use of nicknames in varying contexts?) Glimco, who was accompanied by counsel and wasn’t saying a thing, was president of Local 777 of the Teamsters in Chicago, and Mr. Kennedy wanted all his business and personal records, and in fact got some or most.
On March 11, the Glimco hearings started in earnest. Mr. Kennedy called one of his staff investigators, and through him made public Glimco’s long record of arrests without significant convictions. Then Mr. Kennedy asked: “Would you give the committee the names of some of the people whom he counts as his associates and who have been seen in his company? You have examined the reports. He has been seen in their company, and it has been documented that he is an associate of these people?” There followed a goodly company fully equipped with such nicknames as “The Waiter,” “Little New York,” and “Cherry Nose.” Some were allowed to remain identified by their nicknames only. Others were further placed as “another member of the Chicago syndicate,” or “a close associate of Mr. Hoffa.” Mr. Kennedy’s investigator then related Glimco’s indictment in 1954 for extortion in the Chicago Fulton Street poultry market and his acquittal under suspicious circumstances: the witnesses who had testified against him before the grand jury recanted at the trial.
Next, through witnesses as well as documentary evidence offered and explained by his own investigators, Mr. Kennedy built up a record tending to show that Glimco had absolute dominion over his local; that he received kickbacks from its officers and otherwise milked its treasury; that he used his power to run a number of extortion rackets; and that, though a married man, he had an affair with his secretary, which he financed with union money. I say that the evidence “tended to show” all this. That is a judgment, and it means that a jury or another reader might or might not have seen it the same way. How it would have stood the test of cross-examination nobody can know.
On March 12, Glimco himself was recalled to the stand. Starting with the very first question, which dealt with his acquisition of American citizenship, he pleaded the Fifth Amendment: “I respectfully decline to answer because I honestly believe my answer might tend to incriminate me.” Ghief Counsel Kennedy then began putting to Glimco, question by question and in some considerable detail, what the record that I have referred to above tended to show. Climco pleaded the Fifth all along. Mr. Kennedy also put to Glimco, here and there, what was merely suspicion, surmise or opinion:
“Then when you were indicted . . . you used these kind of contacts [”The Waiter,” “Little New York”] in order to intimidate the witnesses and get them to change their story?”
“I respectfully decline. . ..”
“You got your citizenship and abused it; did you not?”
“I respectfully. . . .”
“Did you ever do anything to help the union membership, one thing?”
“You don’t care anything about yourself and these other people who are gangsters and hoodlums, do you?”
“And you defraud the union. . . .?
“Mr. Glimco: I respectfully decline to answer because I honestly believe my answer might tend to incriminate me.”
“Mr. Kennedy: I would agree with you.”
“The Chairman: I believe it would.”
“Mr. Kennedy: You haven’t got the guts to [answer], have you, Mr. Glimco?”
“I respectfully decline. . . .”
“The Chairman: Morally you are kind of yellow inside, are you not? That is the truth about it?”
“I respectfully. . ..”
A Perfectly Straight Face
THE BECK CASE. This was the younger Kennedy’s earliest triumph. By March 26, 1957, evidence had been collected tending to show that Dave Beck, president of the Teamsters’ Union, had misappropriated some $320,000 of union monies to his personal use. Now Beck was on the stand, and he was pleading the Fifth Amendment. Beck was a very big fish, and the Senators themselves, not excluding the late Joseph R. McCarthy in somewhat subdued form, each had their go at him. When Beck returned the next day, Ghief Counsel Kennedy put to him what the committee’s evidence tended to show. Beck kept pleading the Fifth Amendment formula, and Mr. Kennedy kept asking him whether he really felt that a truthful answer might incriminate him. Did Beck have enough guilty knowledge of the money in question, Mr. Kennedy pursued, to be justified in feeling that a truthful answer would incriminate him? A plea of the Fifth Amendment allows no room for denying this inference, All Beck was at liberty to say was that, yes, he felt an answer might incriminate him. “I feel the same way,” said Mr. Kennedy, underscoring the inference with all the power at his command. As the session dragged on. Chairman McGlellan interrupted to say that he had “conferred with chief counsel with respect to some other matters that this witness should be interrogated about. It is anticipated that we will get the same kind of response that we have been getting. But just so the public will know that there is more, and yet more, I am going to indulge this session a little longer so that counsel may ask some of these very pertinent questions and let the witness continue to take the Fifth Amendment.”
On May 2, Beck was indicted for income tax evasion., On May 8, he was recalled by the McClellan Committee. His new counsel, Edward Bennett Williams, asked that Beck’s appearance be deferred until after his trial. He pointed out that almost any question having to do with Beck’s financial affairs would be germane to the subject matter of the indictment, and that Beck would be put to the cruel choice of helping the government win its criminal case against him either by giving it a preview of his defense or by enabling it to draw unfavorable inferences from a repeated plea of the Fifth Amendment. Moreover, as a federal court had recently pointed out, by proceeding at this time with full publicity, the Committee would effectively preclude selection of an impartial jury for Beck’s trial; prospective jurors, after all, could scarcely escape hearing from one source or another what a bad man Beck was. If the Committee insisted on proceeding, Williams concluded, he would make the best of a very bad choice by advising Beck to take the Fifth.
The Committee, whose staff had counted up and made public the number of Beck’s previous pleas—117—insisted on proceeding. On May 16, it recalled Beck once more. Now chief counsel Kennedy’s staff had prepared and mimeographed a compilation entitled, “Some 52 ways in which Dave Beck misused his authority, position and trust as president of the Western Conference of Teamsters and subsequently as president of the International Brotherhood of Teamsters.” Beck was handed a copy, as was the press. Mr. Williams again requested that the hearing be deferred until after Beck’s trial. But, said Chairman McClellan—and so far as the record indicates, he was wearing his usual, perfectly straight face that day—here was all this derogatory information against Beck, and he ought to have an opportunity to deny or explain it. “I think the committee would be failing in proper courtesy, proper consideration of his rights if it did not extend him the opportunity.” In that event, said Mr. Williams, “I want most graciously to decline that courtesy.” To no avail. Down Beck’s throat went the courtesy, as he pleaded the Fifth Amendment (“I respectfully decline... I honestly believe. ...”) to the 52 counts of what was to all intents Chief Counsel Kennedy’s verdict against him.
The Power To Destroy
What if anything is wrong with these two cases, and what is their bearing on the qualifications of a nominee for the office of Attorney General of the United States?
To begin with it is obvious that Chief Counsel Kennedy and the committee had and exercised the power, in behalf of the Government of the United States, to destroy or gravely damage people, materially and otherwise. They could not put them in jail, but their “courtesy” could be a deadly weapon. In his book about his experiences (The Enemy Within), Mr. Kennedy says that when Dave Beck first took the stand, “I looked at him, and realized that here was a major public figure about to be utterly and completely destroyed before our eyes. . . .I knew. . . that he would have no choice but to plead the Fifth Amendment. . . . It was no contest now. He couldn’t or wouldn’t fight back.” Nor does Mr. Kennedy make light of this power. He remarks elsewhere on the damage that was done to lesser fry. And he candidly—indeed, ingenuously—lays bare the nature of the decision he made at one point not to call Joe Louis to the stand. It was a sort of pardon. “Joe Louis had been one of my heroes when I was a small boy. . . . He has made great contributions to this country. And he has been used . . . by a long list of people. . . . jimmy Hoffa simply joined that list.”
Mr. Kennedy’s exercise of the power to destroy or damage individuals was not subject to such safeguards as the right to cross-examination and the right to an impartial judge who is not at the same time also the prosecutor. This is a hard and hazardous and an aberrant thing in our society, but such is the law, and Mr. Kennedy was within it. However, the law of the matter is merely that Congress should have the means to inform itself and the general public of conditions that require remedial legislation, and to do it massively, dramatically and expeditiously, subject to very few, if any, judicially imposed restraints. The summary destruction of the individuals may sometimes be an unavoidable, and it is always a regrettable, by-product. But it is a by-product only, a necessary evil, to be tolerated, naturally, only when really necessary. The legislative purpose is the exigent thing, and it is left to the conscience and sense of justice of the investigators themselves to decide when the exigent purpose that they serve requires them to hurt an individual without affording him the customary rights and safeguards. The investigative power is abused, though there may be no remedy at law, when its justification is stood on its head, when the sole object becomes the destruction of this or that individual and everything else is by-product, when legislative needs and “courtesies” to the victim come into play only as cynical incantations.
Mr. Kennedy and the McClellan Committee often—though not always—held hearings for the sole purpose of accusing, judging and condemning people. What other purpose can be assigned to the relentless, vindictive battering of a Glimco or a Beck with evidence that was already in the record and to which neither was adding one iota? Mr. Kennedy, who is sensitive to this point, says in his book that, after all, a witness might sometime abandon the Fifth Amendment and start answering. No one who had listened to Glimco For two minutes at his first hearing could possibly believe that. And as to Beck, Senator McClellan, as he himself disclosed, quite early gave up any such hope. Besides, what is one to make of the way both the Senator and Mr. Kennedy took it upon themselves to denounce Glimco at the end? This was the language of a judge passing sentence, not of legislators looking for facts to guide them in their law-making.
Mr. Kennedy’s job was to inform Congress and the public. That was the purpose for which his power was lodged in him. Yet, having produced all the information he could get, and being able to entertain not the glimmer of a hope that he would obtain more from them, Mr. Kennedy undertook his further public hectoring and bullying of Beck and Glimco. In terms of the legitimate ends he was appointed to serve, this was totally useless. Mr. Kennedy’s purpose now was to condemn and to punish, to cleanse the labor movement single-handed—not pursuant to legislation, but prior to its enactment. He was not any longer laying the foundation for legislation to be enforced in court, but attempting to render it superfluous. This was abuse of power, and not the less so because only Mr. Kennedy himself and the committee were in a position to prevent it.
Then there is Mr. Kennedy’s and the committee’s attitude toward one of the few restraints that are judicially imposed on Congressional investigations—the Fifth Amendment’s guaranty against compulsory self-incrimination. Again Mr. Kennedy was within the law, but just barely. He used against Glimco a good deal of innuendo, based no doubt on what Mr. Kennedy sincerely believed to be true information, but not based on any fact that he vouchsafed to Glimco or to the public. Glimco had been arrested, but arrests are not convictions. And acquittals, however one may suspect they were achieved, are not convictions. Similarly, an association with Little New York Campagna (incidentally, deceased, whoever he may have been) and Cherry Nose Gioe is not much proof of anything. But if this is unprovable innuendo, why did not Glimco say so in his own defense?
Mr. Kennedy knew why not. Because as the law of the Fifth Amendment stands, a witness is not permitted to plead it selectively. If he answers some questions, he loses the Amendment’s protection in respect to all other connected ones and must answer them also. And if he wishes to exercise his judgment in the course of a hearing and decide that a given question is so remotely connected to other ones that he should answer it, he does so at his peril. Hence such exchanges as:
“When did you become an American citizen?”
“I respectfully decline. . . .”
“Will you tell us today where we may be able to locate your son, Dave Beck, Jr. . . .?”
“I decline to answer. ...”
Thus it is possible to give rise to an inference of guilt even where a man is wholly innocent, or even when the question itself, until it received the sinister Fifth Amendment gloss, was wholly innocuous.
Governments Can Be Wrong
Mr. Kennedy is sensitive to this point, also. This, he says in his book, “is where abuses creep in,” and he instances a glaring one, of the when-did-you-stop-beating-your-wife variety, committed by a Republican member of the committee. Sen. Carl T. Curtis of Nebraska. But Mr. Kennedy seems unaware that he himself did exactly the same thing to the wretched Glimco. Moreover, the ultimate source of this abuse is the notion that a plea of the Fifth Amendment is equivalent to an admission of guilt. (Of course, it isn’t, or at least not nearly always; we are talking about situations in which the law fairly forces the plea in innocent circumstances.) Yet no one since the late Joseph R. McGarthy has done more than Mr. Kennedy to foster the impression that the plea of self-incrimination is tantamount to a confession of guilt. It was customary for him to press a witness time and again to repeat that he honestly, yes, honestly believed that ah answer might incriminate him, yes, incriminate him, and then to buttress the inference of guilt by adding the words, well, I agree with you.
The sum of it all is that Mr. Kennedy appears to find congenial the role of prosecutor, judge and jury, all consolidated in his one efficient person. At any rate, we know that he played it lustily when no extrinsic restraint prevented. There is no warrant whatever for impugning his motives. No doubt he sought to serve the public interest as he saw it. The question is merely how truly he sees it. And the answer on the record is that he has tunnel vision; he sees the public interest in terms of ends with little appreciation of the significance of means. Mr. Kennedy, performing the thoroughly legitimate functions of a legislative investigation was able to convince himself that Beck and Glimco and Hoffa et al. were very bad men who should be destroyed. It was apparent to him that he was in a position to accomplish their destruction, and so he went ahead and tried. He rather thought that Joe Louis deserved a reprieve, and so he stayed his hand. It never gave him pause that his power had been confided to him for other purposes, and that the inner restraint of this realization was relied upon to preserve the integrity of the intricate and ancient process that our government owes those on whom it visits its punitive force.
The meaning of due process, of the adversary process of accusation and defense before judges disinterested in the immediate outcome, is that the government suffers itself to conceive it possible that it may be wrong. Mr. Kennedy’s assured righteousness is in vivid contrast. Speaking, in his book, of one of the failures to convict James Hoffa of a crime, Mr. Kennedy allows that as “a citizen or a lawyer” he accepts the finality of a jury acquittal. But here, as with Glimco and as elsewhere, “when I have personal knowledge of the case and fed strongly about the outcome,” he can always find a reason for the acquittal—weakness of the prosecution, or whatever—and he continues to insist on his outcome. Mr. Kennedy knows, and when he knows he is very sure that he knows. Society’s cumbersome and guarded ways for finding out don’t matter all that much. Thus Mr. Kennedy, again in his book as well as in his investigative work, knew all about the so-called Apalachin gangland convention. In The Enemy Within he wrote before the recent conspiracy conviction based on such “knowledge” was dismissed in court, but it is a safe surmise that Mr. Kennedy continues to know.
The Attorney General of the United States is the nation’s chief law officer. More than any other executive officer he is required to suffer himself not to “know” all the things Mr. Kennedy is certain of. More than any other executive officer, he is required to regard means as above ends, process above result. The Attorney General exercises the only civilian control over the FBI, whose vast files contain much unprocessed “knowledge.” He presides as a judge—very often as a court of last resort—over myriad deportation cases. He decides in uncontrolled discretion whom to prosecute and when, and that is a quasi-judicial function. On the record, Robert F. Kennedy is not fit for the office.