The Negotiator

by George Mitchell

  U.S. ATTORNEY AND FEDERAL JUDGE

  After Jimmy Carter was elected president in 1976, Senator Muskie announced that he was forming a committee to advise him on appointments to federal offices in Maine, one of which was U.S. attorney. As the chief federal law enforcement officer in the state, the U.S. attorney is responsible for the prosecution of all violations of law on federal property (e.g., federal offices, military bases, American Indian reservations) and all violations of federal statutes anywhere in Maine (e.g., bank robbery, drug smuggling, crimes involving interstate commerce). In the later years of my private practice and in my service as assistant district attorney, I had become involved in litigation representing a diverse group of parties in both civil and criminal trials. As U.S. attorney I could continue and expand on that interest, while also engaging in public service. I submitted my application to the committee and was one of three persons they recommended to Muskie. He in turn recommended me to the president, whose nomination of me moved quickly through the Senate. In 1977 I became the U.S. attorney. It meant a cut in pay, but that was more than offset by the enormous satisfaction of public service. I assembled an excellent staff and spent most of the next two and a half years trying a wide range of cases in court. The only U.S. District Court judge in Maine was Edward Gignoux, a distinguished Portland lawyer and an outstanding judge. I appeared before him regularly and interacted with him often. Although unaware that I would soon join him on the bench, I watched and learned how a great judge conducted himself.

  Every trial lawyer I know loves to tell and listen to war stories. Over the years in which I was engaged in the private practice of law, and then as U.S. Attorney, I heard and enjoyed many such stories, some true, some exaggerated, some obviously not true. One of them I like especially and hope it’s true because it illustrates common sense in rural Maine. The defendant had moved to Maine from a large city. He was charged with knowingly failing to file federal income tax returns for two years. The defendant and his attorney offered several possible alternative explanations. One was based on the fact that he lived on a farm on which he kept many animals. On his front porch was a small stand on which he placed his outgoing mail and the rural carrier left the incoming mail. It was possible, he suggested, that the goats chewed up his returns; it was well known that goats will eat just about anything. After the closing arguments were made and the judge read his instructions, the jury retired to deliberate. A few hours later they returned a verdict of guilty.

  The next day, the court employee whose responsibility was to care for the jurors during their service asked the Assistant U.S. Attorney who tried the case, “Would you like to know what happened?” He explained that “the door to the jury room kinda didn’t close tight, so I kinda heard some of what they said.” He then told this story.

  “Well, you know, the jury foreman is a farmer; he’s got animals too. He doesn’t talk much but he’s got a good way about him, and the other jurors liked him. After they went over the judge’s instructions and the evidence, the foreman asked each of them to give an opinion. It was wide open and they had a long discussion. Then one of them said to him, ‘You asked us for our opinions, but you haven’t said a word. I’d like to know what you think.’ There was some quiet, then he says, ‘Well, the thing I can’t figure out is how them goats knew it was April 15 two years in a row.’ So they voted, then he says to them, ‘Okay let’s go tell the judge, then we can go home to supper.’ You know, it’s interesting, in all that time he only said three things: What do you think? Then about the goats. Then let’s go home to supper.”

  In the transition from the private practice of law to the Office of the U.S. Attorney, and then federal judge, I had to make adjustments in my personal relationships with other lawyers. It is one thing to try a civil case against a friend; I had done that often. It was more complex and difficult in criminal cases, especially after I became a judge. But difficulty often is accompanied by humor.

  My friend Marshall Stern specialized in criminal law. That led to some awkward moments. Short, a little overweight, occasionally flamboyant, Marshall was, like his father, an outstanding trial lawyer. A good and fast talker, he too had a perpetual twinkle in his eye and a quip on his tongue. To Marshall no one and no subject were above humor; he had a joke, usually an insulting one, to fit every occasion and deflate every ego. When we were together I was one of his favorite targets.

  One of the many cases in which we clashed involved a shipload of illegal drugs that was intercepted by federal agents just off the Maine coast. Thirty-two persons were arrested and charged with crimes. As required by federal law they were promptly brought before an independent magistrate who would determine whether they would be held in jail or released on bail pending trial. The hearing began late in the evening in the federal courthouse in Portland. I represented the government. Marshall represented the defendants. I began by asking the magistrate to set bail at $50,000 cash per defendant. I pointed out that the defendants had been caught red-handed by federal agents (they claimed they were going fishing, but none had any fishing gear); that all were from out of state (most were from Brooklyn, New York); and several had extensive criminal records. The risk of flight was high, I argued, so the bail should be high.

  Marshall began his response by correctly pointing out that the defendants had not been convicted of any crime. Unless and until they were, which he assured the magistrate would not happen, it was unjust and un-American to deprive them of their liberty. But, perhaps recognizing that the facts were such that release without bail was unlikely, he focused on the amount of bail that should be required. He ridiculed my request, and me, as harsh and punitive, even outrageous. Then, with rising emotion and intensity, he said, “Your Honor, these are just a bunch of poor boys from Brooklyn who came to Maine to go fishing. They’re all from poor families. Just this evening I called their homes. I talked with their fathers and mothers, their aunts and uncles, I even talked with some of their neighbors. The absolute most they can raise for bail is five thousand dollars per defendant. Not one cent more. If you set bail at one cent more than that you’re condemning to prison thirty-two people who are innocent and haven’t been convicted of anything.” After hours of further wrangling the magistrate set bail at $15,000 per defendant. It was long after midnight when we left the courthouse, with Marshall complaining, even though the magistrate had split the difference in his favor. But just a few hours later, as the sun rose and the office of the clerk of the court opened, a shabbily dressed man appeared with a green garbage bag filled with $480,000 in cash. “I guess you missed a couple of aunts and uncles,” I laughingly told Marshall when we spoke later that day. “But,” I said, “you did put on an unforgettable performance.” Ultimately, in the face of overwhelming evidence of their guilt, the defendants pleaded guilty.

  In 1978 Congress enacted and the president signed legislation creating several new judgeships to meet the growing demands on the federal courts. In its more than 150 years of history Maine had had only eleven federal district court judges, one at a time. Now there was to be a twelfth, and the court would have two judges. I accepted the reality that if appointed I would be finished with electoral politics. A federal judgeship would be a tremendous honor and opportunity. Because of the importance of the position Muskie formed another independent committee. I submitted my application. My experience as U.S. attorney gave me a decisive advantage and I was again one of those recommended. Once again Muskie recommended me to the president. My nomination sailed through the Senate and in November 1979 I was sworn into office. I was forty-six years old and felt that I had reached the pinnacle of my career. It was a wonderfully exciting and challenging task. Every day brought new questions, new issues, new opportunities to learn. And occasional humor.

  I presided at the federal court in Bangor, which served the northern part of Maine. The caseload there was lighter than in Portland; there was no full-time magistrate, so I handled a wide range of assignments. On the court calendar one wintry d
ay was a bail hearing for a young man from South Carolina, charged with the interstate transportation of stolen goods and represented by none other than Marshall Stern. I brought the courtroom to order and called on the assistant U.S. attorney who was prosecuting the case. I had hired him a few years earlier; he was from Bangor and he and Marshall had known each other all their lives. The prosecutor laid out the basics of the case and, citing the substantial evidence of guilt, the fact that the defendant had a criminal record, and was from another state, argued that the risk of flight was high enough to justify cash bail of $15,000. When Marshall began his response it seemed vaguely familiar. Then he stopped pacing, turned toward me, and said earnestly, “Your Honor, this is just a poor boy from South Carolina who came to Maine to go fishing. He’s from a poor family. Just this morning I called his home. I talked with his father and mother, his aunt and uncle, I even talked with some of his neighbors. The absolute most that he can raise for bail is five thousand dollars. Not one cent more. If you set bail at one cent more than that you’re condemning to prison a man who is innocent and hasn’t been convicted of anything.” The prosecutor saw no need to respond, so I set bail at $10,000 cash, adjourned the hearing, and returned to my chamber. As I walked past her I said to my secretary, “In about two minutes Marshall’s going to come steaming in here, asking to see me. Call the assistant U.S. attorney and ask him to come over. As soon as they’re both here, send them in.”

  The prosecutor was smiling and Marshall was scowling as they entered. “How can you do this?” he shouted. “He doesn’t have any money. You’ve put an innocent man in jail. How can you live with yourself?”

  “Calm down,” I said. “Marshall, do you remember that big, late-night arraignment in Portland a year ago? I told you that you’d made an unforgettable statement. Well, it was unforgettable. I recalled it, word for word, as you spoke today.”

  He paused, thought a moment, then replied, “Jesus, I forgot about that.”

  We all burst out laughing.

  “Listen,” I said, “you’re practicing law in a state where there are only two federal judges. You’ve got to vary your routine.”

  He acknowledged the point, then again pressed the case for his client. I turned to the prosecutor. “He’s got the money,” he said to Marshall. “You’ve just got to figure out how to get him to put it up.”

  “That’s it,” I said. “Go talk with him and then get back to me.”

  Late that afternoon my secretary informed me that Marshall and the prosecutor were back. Marshall was uncharacteristically subdued, so I knew what he was going to say before he said it. “You won’t believe it. He had more than ten grand in cash.”

  “What do you mean we won’t believe it?” the prosecutor asked with a laugh. “I told you so.” The defendant ultimately pleaded guilty.

  Fifteen years later the man with whom I shared so much laughter was dead, killed in a horrific automobile accident. His beloved son, Jason, an outstanding student and athlete, had taken a year off after his first year at law school. With friends he traveled around the world and made his first trip to Israel. There Jason discovered his heritage and, indulging his recently developed talent for photography, took hundreds of pictures. On his arrival back in Bangor he excitedly telephoned his father, eager to see him and to show him his photographs. Marshall was about to leave his office to drive to a town about fifty miles away to file some legal papers in a local court, just prior to a deadline. They decided that Jason would accompany Marshall on the drive. On their return to Bangor, when they were just a few miles from their home, their car was struck head-on by a pickup truck that had crossed into their lane. Marshall was killed instantly and Jason was severely injured. Also killed were the driver of the other vehicle, a recent high school graduate who was a volunteer social service worker, and his passenger, an eleven-year-old boy who was being driven to his new foster home.

  Just a few years earlier I had delivered the eulogy at Ed Stern’s funeral. Now, with a very heavy heart, I found myself delivering the eulogy for his son, Marshall, one of my closest friends. As best I could I tried to celebrate Marshall’s life by describing some of the great moments we had enjoyed together. Before and after the service Marshall’s many friends swapped stories about his antics and jokes, describing how he had lit up their lives. Marshall’s lovely wife, Donna, had suffered terribly. But for her the worst was yet to come.

  Five years later, wracked by guilt over his being the only survivor of that crash, Jason committed suicide on Mount Desert Island, just a few hundred yards from the place where my home now stands. It is impossible to adequately describe the sadness and sense of loss that enveloped Jason’s funeral as I delivered yet another eulogy. There was no humor, no sense of a life lived fully. To the contrary, we all had a profound sense of the loss of a life that was full of promise cut short. A shining star had been snuffed out suddenly and far too early.

  Within the space of ten years I had publicly mourned the loss of three generations of men from one family, all of whom I had known intimately and one of whom was like a brother to me. I remember, as though it were yesterday, sitting with Donna just before Jason’s funeral service, trying unsuccessfully to find the words to convey my feelings and those of so many others. In the end I just hugged her, admiring her strength and fortitude.

  During our summers in Maine I occasionally see Marshall’s brother, Deane. Like his father and brother, Deane has a lively personality and a great sense of humor. In addition to the pleasure of his company, our visits keep alive for me the memory of my friend Marshall.

  When I left Berlin I feared that I would never again find work as interesting and stimulating. I felt the same way when I was U.S. attorney. I was wrong both times. For me, being a federal district court judge, especially in Maine, was as good as it gets in life. I especially enjoyed those occasions when I presided over naturalization ceremonies. A group of people who had come from all over the world and who had gone through all of the required procedures gathered before me in a federal courtroom in Maine. There I administered to them the oath of allegiance to the United States, and by the power vested in me under our Constitution and law, I made them Americans. These ceremonies were always very emotional for me because my mother was an immigrant, my father the orphan son of immigrants. I made it a point to speak personally with each new American, individually or in their family group. I asked them how and why they came. I asked about their hopes and dreams, about their fears. Their answers were inspiring. Most of us are Americans by an accident of birth. Most of them are Americans by an act of free will, often at great risk to themselves and their families. Although their answers were as different as their countries of origin, there were common themes, best summarized by a young Asian man who told me in slow and halting English, “I came because here in America everybody has a chance.”

  Think about the fact that a young man who’d been an American for just a few minutes, who could barely speak English, was able to sum up the meaning of America in a single sentence.

  The Senate Years

  APPOINTMENT TO THE SENATE

  April 29, 1980, was a routine day at the federal court house. I was at my desk, absorbed in a legal brief. Suddenly, without knocking, my secretary rushed into my office. Just as I looked up she shouted, “Muskie’s going to be secretary of state. He’s leaving the Senate.” I was startled, as were most Mainers. Well into his fourth term, Muskie had recovered from his loss in the presidential campaign of 1972 to win reelection in 1976 and regain his influence in the Senate. The later years of Jimmy Carter’s presidency were dominated by the Iranian hostage crisis. Over the objections of his secretary of state, Cyrus Vance, the president had ordered a military rescue mission, which failed. In protest, and for other reasons, Vance resigned. It was easy to understand why President Carter would want Muskie to replace Vance. It was more difficult to understand why Muskie would accept, since the election, in which Carter faced a difficult contest, was just six months away.
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  In the few days between the announcement of Muskie’s departure and the appointment of his successor, the subject dominated the news in Maine. The decision was to be made by the governor, Joe Brennan. He had recovered from his primary election loss in 1974 to win both the nomination and the general election in 1978. There was a great deal of speculation about the many potential candidates. Two men led the list of prospects: Ken Curtis had served two terms as governor, then as chairman of the Democratic National Committee and as ambassador to Canada; Bill Hathaway had served in the House of Representatives and then one term in the U.S. Senate. Ken and I were especially close. I was chairman of the Maine Democratic Party when he was elected governor in 1966, and I was actively involved in his campaign and helped draft his inaugural address. Four years later I was involved in his campaign for reelection; Jim Erwin was the Republican candidate, and it was an extremely tight race, which had to be decided in a recount, for which I was one of the lawyers who represented Curtis.

  There were several other qualified candidates to fill the vacancy left by Muskie. My name was rarely mentioned. Just six months earlier I had been appointed to the federal court, a lifetime position. Everyone, including me, assumed that I would serve in that position for the rest of my working life. By early May, just a few days after Muskie’s announcement, word seeped from the governor’s office that he was nearing a decision, and the expectation grew that he would make an announcement early the following week.

  That weekend I was at my home in South Portland when the phone rang. “George, it’s Shep Lee.”

  Ed Muskie had broken the Republican dominance in Maine, but he hadn’t done it alone. A small group of young men and women had worked with him to organize and execute what was a political upheaval. Frank Coffin, then the chairman of the Maine Democratic Party, was Muskie’s principal accomplice. He went on to serve in the U.S. House of Representatives, as director of the U.S. Agency for International Development, and as chief justice of the U.S. Court of Appeals for the First Circuit. One of Coffin’s close friends was Shepard Lee, a political activist and brilliant businessman who built what became the largest automobile dealership in Maine. Much later in life Shep achieved the rare distinction of serving simultaneously as a director of the National Association of Automobile Dealers and of the American Civil Liberties Union. I met him shortly after I joined Muskie’s staff in 1962. We became and remained good friends until his death in 2011.