Los Angeles Times Interview : Philip Heymann : A Veteran of Five Justice Departments Reflects on His Bosses

When Philip B. Heymann was sworn in as deputy attorney general last June in the Department of Justice, where he had served four previous attorneys general, he apologized “for looking so pleased,” and said he had accepted Atty. Gen. Janet Reno’s offer “with unseemly haste.”

The comments were vintage Heymann: A puckish manner combined with a deep reverence for the institution of federal justice. Heymann’s biography made him a textbook candidate for the second most powerful position at Justice: 12 years as a Harvard Law School professor and senior counsel to Common Cause; head of Justice’s criminal division during the Carter Administration; an associate Watergate special prosecutor during summers off from teaching at Harvard; four years in the solicitor general’s office through the Kennedy Administration and part of the Johnson Administration, and clerking for Supreme Court Justice John M. Harlan.

These impressive credentials contributed to the surprise at his resignation after only seven months as deputy--a decision both he and Reno explained was necessary because of differences in style and chemistry. And then Heymann spent his first day out of government condemning the largely Administration-backed crime bill as doomed to failure in combatting violence and far too costly.

In the fall, Heymann, 61, will be back at his tenured seat at Harvard, but first he goes to South Africa with Ann, his wife of 40 years. There he will work for Justice Richard Goldstone on a commission charged with holding down violence through South Africa’s election at the end of April. It’s not a new line of work. As director of Harvard’s Center for Criminal Justice, Heymann managed projects to improve the systems of countries seeking to create or preserve democratic institutions--helping Guatemala and Russia, among others.

Heymann’s son, Stephen, is deputy chief of the criminal division in the U.S. attorney’s office in Boston, and his daughter, Jody, is an assistant professor at Harvard Medical School.

Even in times of distress, like those following his resignation, Heymann can’t keep his sense of humor in check. Asked what he would have done differently, he said he would have rented a house in Washington, not bought.*

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Question: With regard to your scathing criticism of the Senate-passed crime bill, isn’t this a Democratic Party problem? The White House reelection advisers contend the President has to be tough on crime if he’s going to be a New Democrat.

Answer: Yes. Crime is one of the great political issues in most Western democracies. It generally breaks down along partisan lines. We’re seeing a time when it’s being handled in a nonpartisan way, with both parties competing to be as firm and tough on crime as they can be. I don’t have any objection to that, but you can’t be both the toughest and the smartest.

President Clinton said he wanted to be tough but smart. If you want to be decently smart and exercise some common sense, you can’t be tougher than anybody who’s competing for toughness. The toughest guy will say one strike, and you’re out. Or the toughest guy will say, build 10 times more prisons.

So the difficult trick is how to be smart as well as tough in a political environment that rewards toughness more than smartness. The reason for that is it takes a little while to explain why one thing’s smart and the other thing isn’t. It doesn’t take any time at all to explain why one thing’s tougher than the next.

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Q: With your service under four attor - neys general, you’re in a position to evaluate what works and what doesn’t. Would you compare their styles?

A: None of the attorneys general that I’m talking about would permit political considerations to enter into any prosecution or anything like that. I want to be very clear on that.

But Robert Kennedy was famous, at my time, for a meeting involving reapportionment when decisions were to be made as to the litigation of reapportionment. This would, obviously, have significant political effects on the Democratic Party. He refused to allow those to be considered, and insisted the discussion take place on a totally different plane--constitutional (law).

He also was--I was then in the solicitor general’s office--very respectful of the solicitor general. Until he could bring the solicitor general along, until they came to see reapportionment issues in the same way, he wouldn’t move. He would not insist on one-person one-vote until he and (Solicitor General Archibald) Cox could both see their way clear.

So what I have a picture of is an attorney general who was inspiring in the sense of breathing life into the Department of Justice. Somewhat self-effacing, tough, very tough on crime--especially organized crime. Also, of course--and I think this is important--very powerful with the President. He was very close to the President. It makes a difference.

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Q: Let’s move to Griffin Bell.

A: Bell was very concerned about espionage and intelligence matters--created new institutions in that area. Put in effect an order which left me, as head of the criminal division, almost absolutely independent of any control by the deputy or the attorney general--let alone anyone in the White House and the Congress. The rules that we now have put into effect for the Clinton Administration on contacts by the White House and the Congress were developed, in the first instance, I believe, under Griffin Bell.

He did something that went much further. He said that my decisions on prosecution or not prosecution could not be overruled by either him or the deputy without their giving a written explanation, and public if it was proper, of why they were overruling it. Very supportive of civil rights. Famously independent of the President, which requires the President to support that independence.

He respected the career service in a very real way. He protected the department against any desire that there might have been in the White House to interfere. I don’t think there’s ever been a White House that kept more of a distance from the Department of Justice than the Carter White House.

Ben Civiletti was very much in that tradition. What struck me most about him is that he was deputy--he had been head of the criminal division just before becoming deputy--and from the moment he became deputy, he kept his hands off the criminal division. He left it to me. I was brand new. He knew where every problem was--and yet he left it pretty much to me . . . .

Let me switch to the present Administration. This attorney general is much, much more of a speaking public figure than Bell or Civiletti--or almost any in between.

In a remarkable way, Janet Reno managed to change substantially the way people talk about violence by adding the prevention dimension. Never dropping the law-enforcement dimension, but adding prevention. It’s been hard for her to hold that position or to put that into effect as the crime issue has become bigger and bigger--and the competition between parties, and between everyone else, moves for tougher rather than smarter.

She has a different attitude toward the department than Griffin Bell’s--particularly toward career. Maybe she has a more traditional, somewhat skeptical kind of attitude.

Of the attorneys general, only Civiletti probably knew the federal system and the federal structures very well at the start. Maybe Robert Kennedy did from his Senate years. They’re still a little bit foreign to Atty. Gen. Reno.

Janet Reno comes in as, and in many ways continues to think like, the chief prosecutor of a major urban area. Obviously, noticeable, too, in an interesting way for the extent to which she cares about child development and believes in the importance of all the things that bring up children so they have a chance in life.

It’s hard to do those things and influence those things from the Justice Department. It’s extremely hard . . . . The big question is whether she and the people around her know that you need a very rich understanding of how federal institutions work to do this, and whether they have the capacity to generate programs that are effective out of visions that are inspiring.

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Q: You’ve said the communications between the White House and the Justice Department now are too informal.

A: Basically, it largely has been working through (Associate Atty. Gen.) Web Hubbell. I like Web. I think he’s very intelligent. I think he’s very well-connected in the White House--which he obviously is.

But it doesn’t work to run criminal matters through the associate who has no responsibility on the criminal side, or FBI matters, or other things. It’s like one team goes off the field and another team comes on the field in the middle of a play. A crime bill or the appointment of a DEA (Drug Enforcement Administration) administrator, or anything like that is a single course of events. The way we were doing it, when I would take it the long way down the field, and then when it came to making sure that the White House was agreed, it would shift into Web’s hands. So on the same issue . . . there’s no way that he could be nearly as familiar as I could be with it. And that shift was clumsy and harmful . . . .

The other thing is, there was not a structure in the White House on the issue of crime. If you asked me who do you talk to, who should I talk to on crime issues, there was no way of knowing the answer, other than Bruce Reed, who’s always there, but you didn’t know whether it was the chief of staff, the deputy chief of staff, David Gergen, (George) Stephanopoulos, the White House counsel, the deputy White House counsel. It could be any of those people. There was no structure created. We had no structure on our side for dealing with the White House; they had no structure on their side for dealing with us; and Web was the substitute in both places. That made it a very ineffective and often demoralizing way of working.

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Q: Aren’t problems that you described inevitable when you have a friend as close as Web Hubbell is to the President in the No. 3 spot?

A: No, it’s not inevitable. There was this wonderful story that Robert Kennedy told. He came to the goodby party for Archibald Cox, who had been solicitor general, and told the following story:

“I want to tell you what it was like to be the President’s brother. I had a red phone on my desk, and the phone would ring, and I’d pick it up and I’d say, ‘The attorney general speaking.’ And on the other end of the line I’d hear, ‘Bobby?’

“I’d say, ‘Yes, this is the attorney general, Mr. President.’ And he would say, ‘Bobby, I want to seize the steel mills and I have to know whether it’s legal.’ I would think for a minute and I would say, ‘Mr. President, you can do it.’ He would say, ‘Bobby, ask Archie.’ ”

What the story reflects is--and it was almost certainly apocryphal--Robert Kennedy describing that the President wanted professional advice. I’ve described Griffin Bell wanting career advice.

It’s inevitable that you continue to rely and value people you’ve known for a long time. But it’s not inevitable that you don’t come to also depend upon others.

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Q: You were an associate Watergate special prosecutor for some years. It looks as if the independent counsel now will be back on the books. What changes would you like to see?

A: There’s only one change that I’d like to see, and that’s almost more a matter of practice. It’s a terrible thing to be investigated. It really is. But what we get in exchange is we manage to get a government . . . that can go on and function even when there are accusations . . . .

One thing that could be done that I think would help immensely--and I don’t think it requires a change in the statute: Whenever something is referred to an independent counsel, the first thing an independent counsel ought to do is say if all the facts that were alleged were true, would I think this was a case for federal prosecution? Or do I think it’s too trivial, too unimportant, for federal prosecution?

If the independent counsel would do that in the first two weeks, it would help a lot . . . . *

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This attorney general is much, much more of a speaking public figure than Bell or Civiletti--or almost any in between.

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Janet Reno comes in as, and in many ways continues to think like, the chief prosecutor of a major urban area.

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There was not a structure in the White House on the issue of crime. If you asked me, who should I talk to on crime issues? There was no way of knowing.