Owen Fiss Discusses the House Committee on the Judiciary Impeachent Inquiry, Part 1
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Owen Fiss Discusses the House Committee on the Judiciary Impeachent Inquiry, Part 1

November 18, 2019

bjbj Naftali: Hi, I m Tim Naftali. I m director
of the Richard Nixon, Presidential Library and Museum, in Yorba Linda, California. It
s September 27, 2011, and I have the honor and privilege to be interviewing Professor
Owen Fiss, for the Nixon Video Oral History Program. Professor Fiss, thank you for doing
this. Fiss: Thank you. Naftali: Just so, we can give our viewers, and future researchers,
some biographical information about you. Could you tell us a bit please about your work as
a clerk for both Judge Marshall, and Justice Brennan? Fiss: I graduated law school in 1964.
I then went to work with Thurgood Marshall, who was a judge on the Second Circuit at that
time, and clerked with him from I guess the summer or September 1964, until July 1965.
Then I went on in 1965, to clerk for Justice Brennan, on the Supreme Court. As I ended
my clerkship, with Judge Marshall, Justice Marshall, as he s known now, he received an
invitation to become Solicitor General of the United States, an invitation by President
Johnson. Like many of Johnson s invitations it was one he could not, Marshal, could not
refuse. I was his last clerk on the Second Circuit. We both went to Washington at the
same time, and maintained a close relationship. At that time, the Court of Appeals judges
had only one law clerk, and I was it, which was a great honor, but it made it extremely
difficult to get any work done, since Marshall loved to tell stories for most of the day.
I usually wound up working at night just to keep up with the work. He had long been a
hero of mine and it was incredibly exciting to work for him and to get to know him. I
would say that the experience clerking for Justice Brennan was another dream come true.
As you know, Brennan was essentially the architect of most of the important Supreme Court decisions
during the Warren Court era. Not Brown itself, but once you got on, of course he was not
on the Court, but once he did get on the Court, he was always viewed by Chief Justice Warren,
as his lieutenant, or most trusted member of the Court. Marshall served from 1965 until
1967, as Solicitor General of the United States, and then moved to the Supreme Court. They,
Marshal and Brennan, became very close to one another. Not just in terms of formal doctrine,
or how they came out on issues, but I think there was sort of a deep personal relationship
between the two. I found myself, sort of, very much caught up with both of them. They
were two very important figures in my life. In the spring of 1966, as I was ending my
clerkship with Brennan, I began to think of what the next step was. I had interviewed
at some law schools, with the eye of going into teaching, but I also interviewed with
John Doar, and became his Special Assistant in the early Fall, maybe late August before
Labor Day, in 1966. And as a Special Assistant, I spent most of my time, with John. We traveled
together, we appeared in court together, I had some of my own cases, but most of it was
developing my relationship with John Doar, either when he presented a case, or had to
decide some issue. John left the, he was then Assistant Attorney General of the Civil Rights
Division, and he decided to leave shortly after the Neshoba trial and actually left
the division at the end of December 1967, or in January 1968. Naftali: One question,
the Neshoba trail is that the Mississippi burning? Fiss: Yes. Naftali: Okay, could you
tell us, it s such an important case, in particular for people who study the Civil Rights era,
could you tell us a little bit, you worked on that case obviously, with, did you? Fiss:
I did not work on it much, because, actually, if you recall the events, the killing, was
in June of 1964, so by the time that I got to the division, in September 1965, the prosecution
was already staffed and the people were chosen who would work on it, and I was not one. It
was tremendously important for Doar s career in life and for the nation, but it was something
that I did not work on. Most of the things that I worked on had to do with matters that
came into the office starting in September 1965: the opening of the desegregated schools,
implementation of the Voting Rights Act in 1965. Cases involving the cut-off of funds
to recalcitrant school districts. The first employment cases that were filed were filed
during that period, employment discrimination cases. I also had the responsibility for one
of John s most difficult cases, and that s the case involving the desegregation of the
Houston Independent School District, that became our case. That if you recall, this
is all during the Lyndon Johnson presidency, and most of our documents on the defendants
were served to the school board, which of course, happened to be located in the Lyndon
Baines Johnson Building, in Houston, Texas. It was a very, very, difficult and touchy
case. After John left, I pretty much decide to leave also. The new Assistant Attorney
General was a person named Steve Pollack, and I admired him greatly, and liked him.
I don t know it was just such an intense personal relationship with John, it just seemed difficult
to continue. I was not about to become a career government lawyer. I thought my usefulness
in the division was mainly being an independent soul, and not caught up with the bureaucratic
politics. That it would be just a very important for the department, and important for myself
to move on. Now, you must remember also, just before I go on for the period after that that
Thurgood Marshall was the Solicitor General at the very same moment that I was working
with the division. Indeed, one day, John and I were going up to the Attorney General s
office, to make a presentation, about some employment discrimination cases. His office
was near, my office was near his and in-between our two offices, was the Solicitor General
s private office. John thought we were running a little late so he wanted to go the fifth
floor, on the Solicitor General s private elevator, and I said, Okay, let s go. We pushed
the button, the elevator came up, the door opened, and Thurgood Marshall was standing
in the elevator, and he in his jovial but somewhat mocking, he said, Okay, come on in,
knowing that we were trespassing on this elevator. So the three of us, each one of us is quite
tall, was standing in the elevator, and the elevator moved, maybe about 15 feet, and then
became stuck. This is on a Saturday morning and we, the three of us, looked up and there
was a sign there saying, No more than two persons in the elevator, and we were stuck
there. We missed the meeting with the Attorney General, and we had to have the fire department
gets us out of the elevator, so that was not the best. Anyway, I had a very, close relationship
with Thurgood Marshall while he was Solicitor General, and John Doar. There were cases that
we handled like: Walker v. the City of Birmingham, which had to do with a contempt proceeding
brought against Dr. King, for marching against temporary restraining order in Birmingham,
in April 1963, which involved the Solicitor General Office. So there was a pretty, close
working relationships. In 1968, after John left, I decided to begin my academic career,
and I look up a position at the University of Chicago. I stayed at Chicago for 6 years,
until I would say, the summer of 1974. Naftali: Let me ask you before we go on, I just wanted
to ask whether what cases, interesting cases, you worked on with Justice Brennan, in the
year you clerked for him. Fiss: At that time, the Justices had only two law clerks, now
they have four. Once again, it was a pretty, intimate relationship, and it also meant that
all manner of cases, almost every case came before me as well as my co-clerk. Remember
the clerkship is taking place in 1965, fall of 1965 all the way to the spring of 1966.
One line of cases had to do with the Voting Rights Act of 1965, which was passed in the
spring of 1965, following the Selma march. And so one group of cases I worked on with
Justice Brennan, were the cases that were arising under the Voting Rights Act of 1965,
cases like South Carolina v. Katzenbach, examining the constitutionality of the statute. Probably
the most significant case of that term, under the Voting Rights Act, was a case, and it
s called: Katzenbach v. Morgan. A case involving the power of Congress to enact measures to
further, though not restrict, the power of Congress to implement the 14th Amendment,
and implicitly implement the 15th and 13th Amendment as well. Katzenbach v. Morgan was
an important affirmation of Congressional power to act as a coordinate branch of government
to enhance the egalitarian of the law in court. In recent years, that s become under attack
by the Rehnquist Court, and I presume, it will be continued by Roberts Court. That was
a basic building block of that era, and indeed turned out to be the foundation of the Civil
Rights Act of 1968, and then subsequently, the Voting Rights Act of 1982, and then the
Civil Rights Act of 1991. Another group of cases that were important were the school
desegregation cases, although this was 1965, most of the previous decade was testing the
validity of Brown on its face. The metaphor that we used was sort of like cracking the
ice to get there were about two, when I joined the division, in 1965, there were about 2,000
school districts in the South that operated in open defiance of Brown v. the Board of
Education. But as we got closer to that date, on the Supreme Court, we began to deal with
the understanding of what desegregation is, or what Brown would require, not just the
paper compliance, but the performance of the school district. I worked for reasons I ll
explain in a moment, I worked with Justice Brennan, on a lot of those cases. I think
they were given to me, as opposed to my co-clerk, maybe, because I clerked for Thurgood Marshall
before. But also in my third year of law school, I wrote a paper everyone was required to write
a big paper, and I wrote a paper, too big, but a paper on Northern school desegregation:
what would be the implication for the North once Brown got out of dealing with the duel
school system of the South. In January, of 1965, while I was clerking for Marshall, that
paper was published in the Harvard Law Review. And so by the time I clerked for Brennan,
I was just a little kid, but I guess I was seen as someone who had a lot of expertise
on school desegregation then. Naftali: When did you because later this would be significant?
Did you look at the difference between de facto and de jure, segregation and how to
deal with the? Fiss: Yes, at that time the distinction between de facto and de jure was
not as it is now. At that time, there were very, few case. No Supreme Court cases but
they were beginning to sort of conceptualize it in terms of this distinction and my view
as to sort of whittle away at the distinction. On the theory that the government is responsible
for the foreseeable consequences of its action and in fact, there wasn t, there are differences
between so-called de facto and de jure, but not a difference that is captured by the word
de jure, de facto. I think both cases the government is responsible for the segregated
pattern. But that s what the subject that was essentially the subject. Now, when I clerked
for Brennan, the cases that we dealt with were Southern cases from the 8th Circuit and
4th Circuit, not so much the 5th Circuit. But the Supreme Court began to articulate
what it meant to desegregate a school. Those early cases were the stepping-stones for very,
famous case in 1969, or 68; maybe, I m sorry, 68 while I was still at the Division, called
Green v. New Kent County, where the Supreme Court began to give some substantive content
to the duty to desegregate. Also this may account for why I didn t deal with this case
in the Department of Justice, the Neshoba case. This was also the term in which, the
Supreme Court decide important cases on state action. A case called, United States v. Guest;
the United States v. Price and the question is to what extent do state officials have
to be involved in a crime, before the Federal Government can take jurisdiction over the
matter. Guest went far in explaining what that involvement could be, and the United
States v. Price, which involved the Neshoba prosecution, also entailed that question,
because although there were sheriff s, deputy sheriff s, involved in the group, that were
charged with killing the civil rights workers, there were also lots of private non-state
officials, and the Supreme Court held that the involvement of the deputy sheriff was
sufficient, but the private individuals as part of that conspiracy could also be prosecuted.
Naftali: You go into academia you make the choice. You re at the University of Chicago,
when do you go to Yale? Fiss: That s an interesting story. I m at the University of Chicago, stating
in 1968. In the fall of 1974, I m sorry 1973, I taught at Stanford Law School, in California,
and then returned to Chicago to teach the balance of that year. I left Chicago in that
end of the year and as my mother put it, anyone has to be crazy to go from Palo Alto to Chicago
in January. And during that whole spring I was toying with the idea of either going to
Stanford, staying there permanently, remaining at Chicago, which I liked enormously, or going
on to Yale, and sometime in that spring I decided to go to Yale and joined Yale Law
School faculty in July 1974. Now, the interesting thing is that in January, very early in January,
as I was still in Palo Alto, I received a telephone call from John Doar. John Doar had
just become the Chief Council for the Impeachment Inquiry of the House of Representative. John
and I speak about a lot of things and did before, but this was a telephone call about
the Impeachment Inquiry, in which he asked for my advice about developing the staff,
but also invited me to help them out. So from January 1974 to August, middle of August of
1974, I was teaching in Chicago up until June, trying to make my life s decision of where
I d wind up and at the same time, flying back and forth from Chicago to Washington to consult
with John on the Impeachment Inquiry. Then in the summer, the academic summer begins
like June 1st, as I was packing up my house, my three children, my wife, and looking for
a house in New Haven, and as I was moving I we didn t have a house, eventually we found
a house, but it wasn t ready, and we had to stay at a friend s house. But during that
summer, and as I was changing, moving from Chicago to New haven, I was also commuting
down to Washington to continue in my capacity as a consultant for John. It was a very hectic
extraordinary time, just the move, but then to have the consultation it was an extraordinary
grueling time. As you probably know, John works very hard. Works 7 days a week, as expected,
at least of me, that I ll be working at least as hard he is, and I would go down and sometimes
stay awake, without sleep, for 2-3 days before I returned to New Haven, or Chicago, and I
would just come in and out on that basis. Naftali: When he called you, what did he want
you to do? Fiss: Well I think he wanted to get my advice about young staff members, and
people that he he was building a staff at that very moment. I mentioned some people.
He had very high standards of who I mean he knew a lot of people I knew, and was not anxious
to take a lot of them. He was meticulous in hiring people who had not publicly taken positions
one way or the other on the issue. One of my friends at that time, and a person I admired
greatly had, and John was very inclined to hire, on the basis of, his talent and capacities,
but it turned out that he had signed some petition that addressed the issue of whether
the President should be impeached. Knowing John from the division, he conceived of this
task very similar term, as he conceived the running of the division. As you know, John
is Republican. He served under Ramsey Clark, and Nicholas Katzenbach, and worked during
the Kennedy years and also during the Republican ear, but John s, John was not political. He
believed in the law and he believed in the neutrality, and objectivity of the law, and
he ran the division to convey that impression of fairness and impartiality. When he spoke,
the Courts listened in a way that they would not listen to the lead council for the NAACP,
or private council. He felt you know outside the Department of Justice, there s a written:
the United States wins when justice is done, and I think that was John s abiding goal.
Always to figure out what was just, apart from politics, and he was very determined
to build a staff that would be impartial and capable of gaining the confidence, not just
of the Democrats, but also the Republicans on the House Judiciary Committee. Naftali:
Did he convey to you when he spoke to you a bit of surprise that Chairman Rodino had
asked him to take this job? Fiss: No, no, he s a modest person, but no. Indeed, it was
a perfect choice, brilliant choice. Brilliant choice. Naftali: Did he need some help in
looking at the precedence the previous examples of, well, the one previous example of presidential
impeachment, and the other impeachment cases involving judges, and one justice, did he
ask you to look at those and see what, whether there were any useful precedence for them
to consider? Fiss: That really wasn t my role. John had a very large staff and he had a number
of people looking up the precedence, looking up the history, but he had to sign off on
everything. It wasn t enough that he had a 28-year-old lawyer doing a memo on the grounds
of impeachment, he had plenty of people doing those memos. He had to sign off on the ultimate,
well, the first big project was something on the grounds of impeachment. The Constitution
says, The President can be impeached for high crimes and misdemeanors. And the question
that he had to confront was what does high crimes and misdemeanors consist of? Specifically,
does it require that the President violate some criminal statute, or was there some improprieties,
though not criminal, where appropriate grounds for impeachment? He had plenty of staff researching
that question and they all submitted the drafts and memos to him. But John worked; he didn
t take one person s word for it. I mean he never relied on any one. He had to make the
judgment himself. My task with the grounds of impeachment was to get all these memos
together, and to put them into a document that John would be prepared to sign. So I
worked almost like a law clerk to John Doar, of saying, These are the positions that are
outlined on it. This makes sense, this doesn t make sense. The people he had working for
him were wonderfully talented and some went on to write a books, like John Labovitz, who
you ll probably interview. But my job was to come in, when all their work was done and
for 5 days, 3 days, a week, analysis the whole thing and tell John this is what he should
do, and this is what he should sign off. I was like the last, I think everyone, everything
went to John, no one reported to me, but I was the last step before John, and that was
replicated also in an area that didn one of the grounds for impeachment is sort of almost
legal question. But when it came time to write the factual presentation, the information,
I got the reports from everyone, and I basically, was John s law clerk again, saying, This is
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