Bernie’s apartment turned out to be a very pleasant, two-bedroom affair with a nice view over the city. He was waiting there with his wife, Toby, who I would later learn was one of nature’s great hostesses but who would be serving this afternoon as our wheelwoman. Also on hand was Deputy Attorney General Philip Heymann. Traditionally, FBI directors have reported to both the attorney general and her deputy—thus this get-together. I can’t say that Phil and I did much more than meet and greet, but I’d come across him once before, back in the Carter years, and I knew his reputation as a fine lawyer who understood the department and its intricate relationship with the FBI. Brief as our conversation was, I felt confident at the end that we could work well together.
After about an hour, Nussbaum announced that it was time to go see the president. Heymann took his leave, wished me good luck, and without missing a beat, Toby swung into her new duties. Bernie’s plan was simple enough. Toby would drive their car through the West Gate with Bernie in the front passenger seat and me in the back. As we were nearing the White House, I jokingly asked Bernie if I should hunker down on the floorboards. “Only if I yell ‘duck!’ he shouted back. That broke the tension I was beginning to feel, but as we stopped at the heavily reinforced steel gate, I was far from relaxed. I needn’t have worrried, though. The uniformed Secret Service officer immediately recognized the White House counsel and his wife, quickly opened the gate, and waved us in. I’d go through that gate over the next eight years so often that I came to know the names and faces of practically all the guards there, but this time I might as well have been chopped liver for all the attention I drew in the backseat.
Toby pulled up to the West Wing so expertly, with such savoir faire, that I told her she could work the New York City streets with me anytime. Then Bernie ushered me through the West Wing to the elevator that would take us up to the First Family’s private residence. Along the way, we said hello to George Stephanopoulos, a fellow New Yorker with whom I would come to feel a kinship even though our paths crossed only rarely.
“Do you think the president is going to ask who I voted for?” I said only half jokingly to Bernie as we waited for the elevator.
“We think we know who you voted for,” came the answer, “but the president wants to speak to you anyway.”
We were just filling the time with the usual back-and-forth banter, but Bernie’s passing comment would have a profound effect on my decision making.
Strange as it was getting to the moment, my meeting with the president was about as relaxed as such events can be. From the elevator on the second floor, it was only a short walk down an empty hallway to the library, where Bill Clinton and his chief of staff Mack McLarty were already in conversation. Bernie made the introductions. Then he and Mack stuck around just long enough to be polite before leaving me alone with the commander in chief. With Bill Clinton, there’s no need to break the ice. He’s as engaging and welcoming as anyone could be—a man who could not only sell air conditioners to Eskimos in the dead of winter but also convince them they were suffering from prickly heat rash.
Clinton had done his homework, too. Whoever wrote the briefing memo on me had done a first-rate job, and the president seemed to have absorbed every detail of it. My family, New York City, my few years on the bench, my longer stints with the U.S. Attorney’s Office and the Bureau: he had it all down, and he wasn’t just racing through some memorized list of talking points.
The president was interested in the organized crime cases I had worked on and wanted to know if the succession of major prosecutions under Rudy Giuliani had broken the decades-long power of the so-called five families. I explained that the cases had been done on a coordinated basis by prosecutors in New York and Italy, and because of that, they had been remarkably effective in undermining the leadership and operations of both our own Cosa Nostra and the Mafia in Sicily. He moved on from there to the string of highly publicized Wall Street cases that the office had undertaken during the late 1980s. Did I think that going after Michael Milken, Ivan Boesky, the Drexel Burnham Lambert Group, and others had had an equal deterrent effect within the corporate community? No, I told him, I thought any deterrent effect on business ethics was only temporary. Sadly, Enron, WorldCom, and too many other examples would prove me right a decade later.
The “library” is that in name only. It’s more a sitting room with three or four big armchairs, some shelves of books, end tables, and the like. The president was having one of his beloved Diet Cokes when I arrived. Soon a butler arrived, asked what I wanted, and was back in a flash with my iced tea. I was just settling into it when the president got more directly to the business at hand.
We’d finished a brief discussion of J. Edgar Hoover and his forty-eight-year tenure at the FBI when Clinton said that the current ten-year term for directors made a lot of sense to him. I was quick to agree. The whole idea behind the unique provision was to prevent another interminable reign while also providing some political insulation, since a director would necessarily have to begin and end his tenure under different presidents. Neither of us added that none of the three directors since Hoover had completed a full term. Only William Webster, the best FBI director in my view, had come close at nine years. Nor did we have any exchange about Judge Sessions’s departure in particular, but at least I felt that the president and I were singing in the same choir loft.
I was also impressed and heartened by the fact that Clinton asked so many questions about how the FBI operated and about the interplay between agents, the U.S. Attorney Offices, and state and local law enforcement authorities. As a former governor and state attorney general, he was quite familiar with the state and local side of the equation, but he seemed a little surprised when I told him that a fairly skeletal force of ten thousand FBI agents was responsible for enforcing hundreds upon hundreds of federal laws. That’s why expanded interplay is so important, I told him; there simply aren’t enough agents to do the job on their own.
Every case I worked on as an agent and as an assistant U.S. attorney had been a “task force” arrangement: men and women from many law enforcement agencies working together in a unified effort. That was the model I wanted to pursue, I said—one that would enhance cooperation between the Bureau and the nation’s 17,000-plus state and local police departments, which represent over 750,000 sworn officers. Because the FBI had an unfortunate history of limiting its interaction with the larger law enforcement community, we had a great opportunity to make an important change for the better.
The president seemed so receptive to that idea that I jumped our discussion to the larger and equally critical need to expand the FBI’s mission overseas. Most Americans don’t realize it, but the Bureau had been there before: When World War II broke out, the nation had no external security service except for the military branches that collected what was known as war-fighter intelligence. The FBI was thrown into the breach, charged with setting up a network of foreign-based agents who would collect information and conduct operations against German and other Axis targets. By 1945, the Bureau had dozens of its own agents working throughout South America, Europe, and the Middle East. After the surrenders in Europe and Japan, those agents were gradually recalled with most of the Bureau’s overseas offices shut down, only to have the cold war break out.
President Clinton knew all this, and he knew about the power struggle that ensued between J. Edgar Hoover and Allen Dulles for control over America’s war against international communism. That battle had been settled by the brokered peace of the National Security Act of 1946, which created the Central Intelligence Agency as America’s external security service while giving the FBI exclusive counterintelligence jurisdiction at home. All that was fine then, I told Clinton, but the global nature of crime and terrorism now required the FBI to reestablish itself internationally both to protect America and to bring democratic policing to countries where the rule of law was still tenuous. To me, this was an absolutely critical issue: Elliot Ness might have been able to
fight the bad guys from an office in Chicago, but today’s criminals were increasingly stateless and borderless. The fact that the president agreed so readily with me said volumes as far as I was concerned.
At one point he leaned back in his chair, yet another Diet Coke in hand, and asked me what I thought about Waco. At long last, I thought: the eight-hundred-pound gorilla is out of the closet. I paused for a few seconds, then said that the critical point about Waco was that David Koresh and his followers had murdered four Alcohol, Tobacco, and Firearms agents while in the performance of their duties and thus declared war against the United States. Everything afterward had to be weighed in the light of that single, controlling fact.
What would I have done, the president wanted to know? I started my answer by acknowledging the luxury of hindsight. No one was better at civilian crisis intervention than the FBI’s Hostage Rescue Team, which had been thrown into the middle of a very dangerous situation after the failed action by the ATF agents. As for the attorney general, she had struck me as a smart and decent person in our brief meeting; my assumption was that she basically had followed the advice of the FBI. All that said, I told the president, my decision would have been to wait. During the siege at Waco I had become convinced that Koresh and his principal followers hoped to engage the federal government in a biblical duel of Armageddon. Not only were they ready to perish in the process along with their wives and children, they actually looked forward to the moment.
Waco wasn’t a classic hostage situation, I contended. For the most part, the Branch Davidians inside the compound were willing adherents of a fanatical vision. Just as important, so long as the Texas standoff continued, nobody was getting hurt; nor was there any hard information, at least that I picked up on, that anyone was about to get hurt on either side. Public opinion can never be the final determinant in cases like this, I added, but until the FBI launched its armored assault, the public had clearly been on the government’s side. And public opinion can never be ignored altogether. Events such as Waco take place on a huge public stage. Mismanage the moment, and other potentially dangerous actors can be adversely affected by media images of what can seem an oppressive government. (None of us at that point had ever heard of Timothy McVeigh, but the Oklahoma City bombing was being born in Waco’s ashes.)
Why launch an attack on a fortified compound, I went on, unless circumstances had changed dramatically for the worse? Until then, I would have continued negotiating, erected a perimeter fence around the encampment, and waited for fatigue and boredom to come to our aid. David Koresh wasn’t capable of riding this stalemate out. His dementia was such that he would have either lit the fires himself or begun to kill his own followers to jump-start the final battle. That’s when the FBI could have responded to Koresh’s action by mounting the same attack it did. Yes, the ending might have been no different, no less tragic, but the difference, I told the president, was that the subsequent barrage of criticism against the FBI and Janet Reno—most of it unjustified—would have been muted, perhaps even nonexistent. The Bureau would have been acting to save lives because an insane leader left it no other choice. That’s the difference. When I had finished, the president looked at me and nodded his head in apparent agreement, and with that, another load of doubt lifted from my shoulders.
When Clinton asked me if I had ever visited the White House before, I saw a chance to address my final concern about the director’s job. No, I told him, not only had I never visited the First Family’s private quarters, I’d never been in any part of the executive mansion, but I had attended a ceremony in the Rose Garden. I went on to describe how, in 1991, just after my appointment to the federal bench, President Bush had given me an award there for prosecuting the mail bomber who murdered a federal judge in Alabama and an NAACP lawyer in Savannah. The president had also used the occasion to announce that he was nominating Bill Barr—then the acting attorney general—for the permanent post. The event wasn’t a big deal, and, of course, Bill Barr’s tenure was cut abruptly short by Bush’s loss in the general election, but I was watching Clinton’s reaction closely. Would he flinch at the mention of this obviously partisan occasion? When he didn’t, I assumed that at least tacitly we had agreed that the director’s job wasn’t about politics, and I was glad that I had raised the matter, even if obliquely.
I finished my part of the interview by posing two questions for which Clinton had the right answers. We had spent at least an hour together by then, and although we had exhausted the FBI as a topic of conversation, Clinton was in no hurry to pull the plug. It seemed odd to me that the president of the free world would have so little to do, but I had heard that Hillary and Chelsea were going to spend the night in Hawaii, on their way back from a trip to Asia. Maybe I was the evening entertainment!
As if in confirmation, Bill Clinton graciously offered to give me a tour of the residence. Room to room we went with the president providing the running commentary about former occupants, their favorite books and furnishings, and other arcane details you might expect to hear from some longtime White House docent. Outside on the Truman Balcony, the president pointed to an unrepaired bullet hole and launched into the story of how the British army had fired muskets at the White House during the War of 1812. Inside, he would lay a hand on my shoulder as he gave the history of a painting, a clock, some piece of ormolu. After maybe ninety minutes of this, I couldn’t resist asking whether he had known these details before becoming president or had learned them since moving in. Completely matter-of-factly, without a trace of embarrassment, he answered that he had been studying these things since he was very young. I realized at that moment that Hillary wasn’t the only Clinton who had expected him to be living here someday.
As we passed the kitchen, I asked the president if he happened to have on hand any of the various fast foods he was known to favor. The question wasn’t entirely academic. It was now nearly eight in the evening, and my stomach was starting to growl. Yes, the president assured me, fast food was easy to come by in the White House, but he didn’t offer me any. Fortunately, it was just about at that point that Bernie Nussbaum came to the rescue.
“Judge,” he called down to the hall to me, in his best New York City street accent, “what are ya doing? I’m down to one client, my last one, and you’re trying to steal him?”
I took that as my signal to say good-bye and thanked the president for his time and courtesy. Today, I told him, was my son Brendan’s seventh birthday. I couldn’t be there for the little family party, but I wanted to be waiting for him when he woke tomorrow morning.
Again without missing a beat, the president sat down at a desk, pulled out a piece of his stationery, and began to write. When he was finished, he handed the note to me, and said,“Please give this to him for me.”
“Dear Brendan,” he had written, “Happy Birthday from Bill Clinton.”
If I hadn’t thought so before, I knew at that moment that this was the best politician of his generation.
“What the hell were you talking about for all that time?” Bernie asked as he ushered me through the West Wing.
I gave him a quick synopsis. The president was impressive, I told him, on numerous fronts, so much so that I now felt persuaded I could serve as FBI director in this administration.
Bernie wanted to know what the tipping point had been. Had it been one of those long discussions about the fine points of policy for which Clinton had already become so famous? (After all, we’d spent hours together.) No, I told him, what really made the difference for me was a very brief exchange when the president asked me if I had any questions about the job. I had two, I answered. My wife and I had four young sons, and I considered it just as important that I serve them well as that I serve the FBI well. I was offended just about every time some government official justified his (or her) departure by saying he needed to spend more time with the family. To me, that cliché indicated that the person had probably done both jobs poorly, and I didn’t intend to find myself in a position
where I had to choose between the two. In response, the president said that he agreed completely and took pride in the fact that his administration was very family oriented. He encouraged people to spend time at home, he said, even when they had important official responsibilities.
“What’s the second thing you want to know?” he asked after a brief pause.
Unlike the first item, which came from the heart, I had spent a bit of time thinking this one out because it was essential for me at a more intellectual level.
“If I’m going to be director,” I said, “it’s critical that there’s no political interference with the Bureau’s work.” I looked the president directly in the eye as I spoke, just as he had been looking at me the entire time we were together. “The Bureau’s investigations must be conducted fairly and vigorously without any political pressure or impermissible attempts to influence how they come out. It’s also critical that I make all my own appointments without any interference of a political nature.” I firmly believe that absent an act of Congress, the FBI director should fiercely protect the Bureau’s independence and not permit anyone to interfere with his or her personnel appointments.
It wasn’t particularly articulate, but this was the bottom line with me. I’d hinted at it earlier in our discussions. Now I had said it outright, and the president responded in kind.
“This is exactly what I expect in my administration.”
Bernie assured me the president meant every word of it, and then, as if reading my mind, he addressed in particular the departure of the last director. Yes, from the outside, Judge Sessions’s departure could appear to have political overtones, Bernie acknowledged, but he and Clinton had tried in every way they could to get the judge to leave the director’s job voluntarily, even to the point of indicating he might return to the federal bench if he left on his own. Ultimately, Sessions had balked, which was why his removal was proving so messy, but that—and the media dust-up that followed—was the judge’s choice, not the administration’s. Bernie was going to be my immediate contact at the White House, and it was clear to me that he was a straight shooter through and through. On that matter at least, nothing in the years since has caused me to change my opinion one iota. I’ve always been thankful to Bernie for his trust in me and for his oft-repeated remark that he’s most proud of the two presidential appointments he worked on simultaneously: my own and that of Supreme Court Justice Ruth Bader Ginsberg.
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