As most of you probably do not know, my office in Washington is in the Watergate. So it is a special pleasure for me today to be in a room with a microphone I can see. Incidentally, I think that the legal defense fund can play an immediate and positive role in the Watergate Affair. You should apply for a grant from the LEAA to experiment with new sentencing procedures for the Watergate 500.
At least Jimmy Hoffa is right about one thing --- Watergate is probably going to do more than anything else ever has for prison reform. But maybe we should examen some alternatives other than prison: I propose that if any of the lawyers in the Watergate case are convicted, they should be paroled to the legal defense fund to work twelve billable hours a day exclusively for the poor and the disenfranchised. Bills to be paid by CREEP.
Time magazine published a full two pages of pictures of the officials who are implicated in Watergate. Not one of those officials was black. Not one of them was poor. Not one of them was under 30, not one had long hair. In fact, the whole list is un-Jewish, un-polish, un-Irish, almost un-Italian. In a word, it is un-American.
So there they are---the unyoung, the unblack, and the unpoor. I wonder if Mr. Nixon will ask that they be treated “without pity.”
I congratulate you on this occasion, which marks the 19th anniversary of the supreme court’s decision in Brown v. Board of Education. Since then, America has seen--and the defense fund has won a study succession of triumphs for human rights. Though you are small, understaffed, and underfunded, you can point to a record of incredibly hard work of an incredibly high calibre with magnificent results. You can justly claim a large share of the credit for the most significant legal advances in human rights of the last two decades.
But today those advances are in danger. Most dangerous of all, they are under direct attack from the White House. In the courts and before the Congress, and by executive fiat, this administration has tried to rivers the precious momentum toward equality which has been the greatest moral achievement of this nation in this century.
But it is not only individual rights or civil rights in general that are threatened in the wake of Watergate. In these shattering moments of revelation, we know that the legal system itself is under siege. Apparently some of the most notorious lawbreakers of our time are men who had the most solemn oath to keep and carry out the law. In the words of Senator Weicker, “They almost stole America.”
Watergate points in two directions, complementary but different. The first relates to the political process and freedom of the press. By now even the most faithful partisans of the president can see how cynically our electoral system has been manipulated--and how closely that effort has been tied to attempts to muzzle the press, to plant phony stories, and promote fraudulent polls -- to retaliate not only against the Washington Post, but against any part of the media which reports all the news that is fit to print or hear.
But Watergate points in another direction which we are only now beginning to discern. It has exposed a malignant growth. Joseph Kraft has called it a cancer in the legal system. And like cancer, this disease spread infection far and wide before the public fully realize its ravages. Watergate was only the warning sign.
Watergate has made us witness to a blatant misuse of prosecutorial power, a deceitful nonuse of investigatory power, and a flagrant abuse of regulatory power. Watergate should also make us aware that there has been an even larger effete to convert a government of principles into an instrument of partisan profit and ideological preference.
The plain truth is that while they conducted an illegal war in Indochina, the Nixon administration has waged a war on our system of law in America -- without even the cover of some Gulf of Tonkin resolution. While they have proclaimed peace with honor in the wrong war abroad, they have succumbed to defeat with dishonor in the war on poverty at home.
They have obstructed justice, and corrupted the Department of Justice. They have commanded the CIA, the FBI, and the State Department to do what Congress has forbidden. Almost from the day they took office, they have shown contempt for the rule of law in the life of the nation.
The Haynesworth and Carswell nominations were an assault on the stature and integrity of our highest court. We did not know then that these nominations had been preceded by an unprecedented direct approach to Chief Justice Warren and to Justice Brennan from a government official who hoped to reverse the court’s positions on wiretapping. Moreover, we know that time and experience have not given the administration any more of a sense of legal property. Just a few weeks ago, the President and his top domestic aide contacted the judge who was trying the Ellsberg case and dangled a job. And then last week, they selected an operative of the discredited committee to re-elect the president, to replace William Ruckleshous as the federal official who is supposed to protect the environment. Apparently, they have learned nothing from ITT, the Vasco case, the Ellsberg case, the Milk Deal, the Wheat Deal. They are still trying to make regulatory agencies dependent on them rather than independent of politics.
Such transgressions have a common purpose--to eliminate the basic rules that hold officials accountable before the law. The conditions for accountability are relatively simple: first, the law must define with clarity what is prohibited. Second, there must be established procedures to monitor what an official does, to make him responsible for his conduct. Third, there must be a forum where an official can be punished for breaking the law. And fourth, under our adversary system, there must be lawyers who are willing to bring the cases which can bring punishment to bear.
The Nixon Administration has systematically been eroding, undermining, or destroying each of those conditions. For example, their habit of trying to accomplish reorganizations administratively, their habit of changing regulations without publication in the federal register, of asserting blanket authority transfer, consolidate, or abolish programs--all these have the effect of blurring whatever specificity there has been in the law.
Revenue sharing, block grants, and government by contracts---together with the elimination of reporting requirements and the failure to collect critical data, make it more and more impossible to determine what actions in fact have been taken. At the same time, the executive branch has expand beyond all reason the scope of executive discretion and the concept of privilege, in an apparent attempt to achieve total immunity, perhaps even for criminal conduct.
Within the pit of justice, they have gutted the civil rights division, suborned the anti-trust division, and compromised the criminal division. They failed with their earlier efforts to cripple public interest organizations by withdrawing their tax exempt status. But not the administration had launched a sustained attack on the OEO legal services program, on the lawyers in the program, and even on the ability of the organized bar to shield the program from improper political pressures.
A new study of local legal service programs concludes that the central agency in Washington which is charged with administering legal services has instead disrupted them effectively. Even as the Nixon staff seeks to dismantle it, it has in turn sought to drive legal services into an early grave.
The most recent study reports: “Our information indicates that the program has been disrupted on a scale beyond anything that had been suspected. And the latest reports indicate that after a relative lull in April, destructive actions by Howard Phillips are again on the Upswing.” The same study notes that this has come at a time when the proponents of legal services are preoccupied with President Nixon’s proposal to set up an independent, presidentially-controlled corporation for such services.
The proposal was sent to Congress last week. Under its provision, any public interest law firm is placed on a new kind of attorney general’s list. Lawyers in such firms are to be stripped of civil rights and civil liberties--apparently because they might exercise them to defined the professional integrity of their work. They would be forbidden to engage in any political activity. Any organizing activity and any activity which might be constructed as advocacy to the legislative branch. And they would be subjected to investigations -- and perhaps persecution -- by special inquisitional boards selected by state governors.
This is nothing less than an attack on the judicial branch, because these lawyers are officers of the court, not minions of the White House. We need their independence and the independence of the judiciary now more than ever. Indeed the judicial branch has emerged once more--as it always has through history---as the last line of freedom’s defense against arbitrary or overarching power. It was Judge Sirica, ---not known as a radical liberal-- who sought to insure that the prosecution discharged its duties faithfully in the Watergate case. It was this one, lone judge who utilized his powers to independence James McCord to come forward with the first hard facts that finally breached the walls of secrecy.
Then it was Judge Jones, equally conservative, who issued the order restraining Mr. Phillips from demolishing the office of economic opportunity. And then it was Judge Gasch, also a permanent conservative, who last week halted the administration’s impoundment of six billion dollars for water pollution control. These decisions are all in the highest tradition of the judiciary. We must give such independence the widest scope.
For disinterested men of the law are the only power that stands between us and dishonest men how may gain power. This administration has given us nothing but men with special interests, partisan interests, and personal interests. So at least for now, the inspiration, the independence, and the initiative must come from outside the executive branch of government.
For years, the legal defense fund has defended the legal rights of black Americans. But you must go beyond that in these days. You must become literally a legal system -- a defense fund for the legal system itself -- fighting for the justice that protects all Americans.
First, I believe you should mount a major campaign to seek “injunctive relief and civil damages” where actions by officials operate to deprive people of their rights -- rights to legal services, rights to government benefit programs, rights to equality of treatment -- in short, all that vast body of rights which the defense fund has been so instrumental in establishing as the law of the land. In this connection, it seems to me that the provisions of 42 USC 1986-8 may have special bearing where federal officials are involved. This in turn will have to be coupled with a reach for new remedies when there are continuing patterns of illegality by federal, state or local officials.
Increasingly, we may have to petition the judiciary to place whole agencies into some form of public receivership. Today, as we all know, courts to reluctant to cut off funds in order to correct even persistent violations of the law. Fresh approaches to equitable relief alone can reassert effectively that government, too, must obey the rules. Second, it is now clear that you will have to play a greater role in defending the publicly-funded legal services program. Two thousand lawyers are in that program. They are your allies and they need your assistance. This may require arrangement.
We must prevent Phillips and his henchmen from achieving perhaps their most unworthy objective -- that those whose need is greatest will get the least legal protection. Finally, since it is clear that we no longer have -- and for over four years have not had -- an attorney general discharging even the minimal duties of that office -- the legal defense fund should establish a new network of volunteer “private attorneys general” across the country.
You should send a new call to lawyers of conscience and competence to join in that endeavor. The task is simple but fundamental -- to enforce the law, not just in the area of civil rights, nor just for the black population which needs help so desperately, but in every area where our people and our country face massive lawlessness by the executive branch, and massive default by the Justice department, the NAACP Legal Defense Fund is needed.
This would be a genuine private sector initiative achieving in justice that what it has done in medicine, education, health care, and business. It is not the best thing to do -- but it may be the only thing we can do in the present emergency. That is not an easy challenge. But justice is the greatest challenge of our time or anytime.
It is your mission, the mission you have chosen. Now you and all of us must muster the will and the ability to see it through. Sir Thomas Moore once wrote: “If the guardians of the law break down the trees of the law, where will we find sanctuary then? What is left but a Wasteland?” For the last thirty years, the legal defense fund has been building American justice. You have planted the trees of the law. Now, in the wasteland that is Watergate, you must plant again.
