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More on the Draft Cases and Black PanthersHicke
Okay, so back to your stint as U.S. attorney. We talked about the draft cases. Do you think you've finished that?
We went through this long cycle with the demonstrations and with the college professors running up— I said to one of them one day, "If you really wanted to show how much you're with them, why don't you volunteer?" He looked at me as if I weren't standing there. He said, "Will you go with me?" I said, "I'll tell you what, if you'll volunteer, I'll go with you."
You felt you were pretty safe in saying that?
I was pretty safe in that, yes. We also had—I haven't talked to you about the Black Panthers.
That's right. I wanted to ask you about that.
They constituted an organization whose rhetoric was more than I could deal with, but I maintained a speaking relationship with a number of the top people. I think they got to the place where they really believed that while I had my own reservations about their movement, I was not going to go off half-cocked on anything. As a matter of fact, the last thing that happened with the Panthers, as I remember, as far as I was concerned, was when Charlotte's father died in St. Paul. He was a surgeon in St. Paul. She and I had just come back from the Caribbean. We'd been home maybe two days and her father died of a heart attack. He had survived cancer that had cost him the loss of an eye and so he could no longer do surgery. But he was still at his medical office every day. It came as a great surprise to us, but he died and so we went to St. Paul.
I think it was the day after the funeral there was a rally out in Golden Gate Park here. One of the Panthers got up and said, "To hell with that guy [Richard] Nixon. We'll kill that son of a bitch." That was rhetoric, but it was a great mistake. One of my assistants called me and told me what had been said. I said, "Are you quoting what he said, or what the newspaper said he said?" He said, "KQED has a tape of it." I said, "Borrow the tape if you can, or subpoena it if you have to, and we'll see what it was."
The studio didn't want to turn it over to us. They thought there was some principle involved in not doing it. I said, "In that respect, you're like everybody else. You have a tape. It's part of your business to make tapes. I'm not asking you to do anything with it, except we want a copy of it. We'll take it one
― 103 ―way or the other." They said they would bring it to the grand jury. I said, "Why don't you just make a copy of it?" I've forgotten what their reasoning was now. It made some difference whether they brought it to the grand jury or whether they gave it to me and I brought it. I didn't care one way or the other, as long as I got the tape.
They did come with the tape and we played that for the grand jury. The tape wasn't quite as articulate as I would like for it to have been, but there it was. I talked to the Department of Justice about it. I said, "This is some extant expletives that we have from this guy. It is not to be taken seriously, if you ask me. This is Nixon we're talking about. This man is the president of the United States, and I realize that you can't just pass it off like he's talking about some casual bystander. But the reason I wanted the tape was so we would know exactly what he said, and that's exactly what we'll do." They said, "We've decided back here that we're going to handle this." I said, "Okay." The attorney general can always handle any case he wants to handle. They're all his.
They sent out a special team—Mutt and Jeff. One was kind of short and the other was kind of tall. They said they were going to make a Smith Act case out of this. This was supposed to be only a part of the subject of their investigation. The Smith Act has to do with subversives, and it was very controversial. It always had been. In all the years I had been in the office, I had never had anybody suggest that I do a Smith Act prosecution. It had been done a great deal in the McCarthy years, in the fifties. See, Nixon was president, you understand. I was the holdover in the U.S. Attorney's Office. They had all kinds of antics. They were going to bring in witnesses from—I'll tell you what they were doing.
If you remember, Hubert Humphrey ran for president in 1968. The Democratic National Convention was in Chicago that year, and there was a mob scene. Among others who came to Chicago, just for the purpose of raising hell, were members of the Black Panthers. They all sort of converged upon the place of assembly, and remember, they disrupted it pretty much. Among them were the Chicago Seven that they talked about. Abbey Rosenberg, I think, was one of them, and some of the Black Panthers. In his early months, Nixon had induced the Congress to pass what is called the Travel Act. The Travel Act made it an offense for persons to travel in interstate commerce for the purpose of doing violence.
To travel across state lines....
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That's what they mean by interstate commerce. This was very much like the Smith Act, because if a guy crossed the state line you could always question the purpose. I suppose it was true of the Panthers and those guys. In any event, they were going to bring people in from Chicago and other places to prove that the Black Panthers were a subversive organization. So they brought what was called a Smith Act indictment and that included the Travel Act.
They had some real strange things they wanted to do. They wanted to bring people up to the grand jury who were completely masked, so that the grand jurors would not see who they were, would not know who they were, except for what they said, but their identities were to be concealed. I said, "I've been around a lot of grand juries, I've returned lots of indictments, but I've never known of any suggestion that the grand jury is to be trusted to return an indictment but not permitted to see who the witnesses are. If you don't trust the grand jury, don't bring it, or send it to some state where they'll do it. But as far as I'm concerned, you're not going to send somebody up here with masked faces or behind a screen for the grand jury."
Who were they thinking of sending? Can you explain why they wanted to do this?
People who they wanted to protect their anonymity, and they were afraid that the grand jury might leak the names out or something like that. That's the only thing I can say about it. I said to them, "I wash my hands of this. I'll have no part of this. The attorney general has the authority to litigate as he sees fit, but he doesn't have the authority to litigate through me. I won't sign an indictment, and I will not participate in the grand jury." They said, "Okay." So they sent their own people out, and I didn't sign the indictment. It was signed by [Richard] Kleindienst and I've forgotten who else now. Incidentally, that indictment came to a bad end. Charlie Gary defended the defendants in that case. Did you ever know about Charlie Gary?
Charlie Gary—actually his name would have been Charlie Garibedian—was Armenian, and he came from down in the Fresno area originally, where the Armenians were not well regarded and were often the victims of discrimination. He was a mighty tough lawyer. I had tried cases against Charlie Gary when I was in the District Attorney's office. I beat him at every one I ever tried with him. But I'm the only lawyer in town that can ever say that, I think. [Laughter] But we were good friends. We became good friends on that account. I respected him. I'm talking about maybe four cases altogether. Charlie and I were friends. He
― 105 ―could trust me and he didn't lie to me, so it was a good relationship. I'd known him a long time. He represented the top people in the Black Panthers, and all kinds of things were said about him and them. But Charlie didn't confide in me what were secrets of his clients, so I didn't have any problem with them.
Incidentally, that indictment was returned before I resigned. I was still there. There was a blank place for the signature. An indictment of consequence would be signed either by the attorney general or the deputy attorney general. It would be signed by the assistant attorney general in charge of the division that brought it. It might be the Criminal Division, it might be the head of Security Division back there too, and it might be something else. And then there was a place for the United States Attorney to sign next, and that wasn't filled in. They didn't have any name typed underneath it, so nobody had to do it. About that time, I resigned, and I think my resignation was such that the indictment came sufficiently after my physical departure that it didn't seem unnatural that I didn't sign it. I never spoke to anybody about it. I saw a copy of it only because there was some question that was raised about it, and I had to see the indictment. It had been returned already. It was no longer secret. But I had to see the indictment in order to be able to answer the question, because it had to do with what was an irregularity in the returning of the indictment, and people assumed that I knew something about that, and I didn't. One of the judges thought I knew something about it, and he asked me about it, and he showed me the indictment. I explained to him that I hadn't signed the indictment. I pretty much knew what it was going to contain, but I hadn't seen the final product. I said, "But since you've shown it to me and you have a legitimate reason for showing it to me, I'm fine. I don't want to memorize it."
Anyhow, they returned the indictment. They had a motion to dismiss, and—something I didn't know at the time—they had, under the statute permitted wiretaps, which didn't exist when I was there; all of these things became effective in a kind of a crime package the Nixon people put in—anyhow, they had tapped a number of telephones, and they had gotten statements from various people that were incriminating.
This is the telephones of the Black Panthers that they were tapping?
Yes. Gary demanded that the tapes be turned over to him. They didn't want to do it.
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The first attacks upon the indictments were that it didn't show on the face that the attorney general had specifically authorized these interceptions. That was probably in my last days in office. They made a motion, and the judge said, "Well, that's a pretty ministerial thing." But he said, "I suppose the one person we could ask would be Mr. Poole, and he could ask the attorney general if he is authorized, because there's some confusion about it." The people who had presented the indictment had gone back east, and I don't know why. They weren't available though. So they sent for me, and they told me what they wanted. I said, "I'll go down and call them."
And that was one of the few times I ever talked to John Mitchell. I told him that they wanted to know about this, and I said I didn't have much information on it, but they wanted to know if you authorized it. They have agreed, if I could come back and represent to the court that I talked with you and say whether you have authorized it. He said, "I certainly did." I said, "Thank you," and I went back and I reported that conversation to the court. The defense people accepted it.
There was nothing further. But I had never seen nor heard of the tape. A motion to dismiss before the trial came out of the office then, but I was in the court because I had some business there. I was in the courtroom. It was Judge [William] Gray, who is now dead. He was from Southern California, and he was a visiting judge at the time. Judge Gray was presiding. The statute provided that where there was a matter that related to domestic security, the attorney general could do it this way. He could authorize a wiretap. The first challenge was whether the wiretap had been authorized. That got by the book. The attorney general said he had, and they accepted that. Charlie Gary said, "Mr. Poole says that's what happened, that's what happened." And so I thanked him.
Later on, Gary brought a motion to dismiss, because he said that this could not be a matter that reasonably could be called involving the safety of the United States. They had a long argument about that, and the trial judge said, "Let me think about it overnight." He said he would come back the next morning. The next morning he came back. I was on my own time then, so I wasn't there. He came back and he ruled that this was a matter of domestic violence. It did not involve the security of the United States, and therefore they had to turn it over. My successor was a fellow named Jim Browning, no relation [to James Browning, former chief judge of the Court of Appeals, Ninth Circuit]. Jim said that he would have to consult with the Department of Justice, because he wasn't presently authorized to turn over copies of the tapes to the defense. The judge said, "I'm going to give you
― 107 ―until tomorrow morning." The next morning Jim came up and told Judge Gray that he consulted with his superiors, they adhered to their position that this was a threat to internal security of the United States, and they would not surrender the tapes. He said, "This case is dismissed." [Laughs] It was, and the Department of Justice elected not to appeal. So they spent all of these hours and days—all the energy, all that went to naught.