Washington Lawyer - January/February 2020 - 56

L AST WORD

LEGAL SPECTATOR
By Jake Stein

EDITORS' NOTE: To honor the memory
of Jacob Stein, Washington Lawyer
is reprinting some of Stein's "Legal
Spectator" columns, which appeared
on this page for nearly 25 years.

CONGRESSIONAL HEARINGS,
PARDONS, AND FALL GUYS

hen I was much younger and much wiser
than I am now, I occasionally found myself
at a strategy meeting among older lawyers.
These older lawyers were cautious in expressing their
views concerning the correct strategy to solve the
client's problems. Their comments were hedged
about with reservations and contingencies, the
need for more facts, and a fear of burning bridges.

were the fall guys. Even an experienced person
such as John N. Mitchell, the former attorney
general and Nixon campaign manager, was
made a fall guy.

Although I knew it was best to say little in such
elevated company, I could not keep my mouth
shut. I spoke up and announced what must be
done to protect our client. Then one attorney in
the group said, "It's a good idea, and you should
go with it." Notice the change in the pronoun from
"we" to "you." Being young and enthusiastic, I did
not notice that switch.

On May 8, 1973, at 12:43 p.m., a friend of President
Nixon's, Donald Kendall, enters the Oval Office
and explains how Nixon can make his closest associates, H. R. Haldeman and John Ehrlichman, the
fall guys.

The person who has the self-evident solution to
a complicated problem must ask, why am I the
only brilliant person in the room? Why hasn't
somebody else, not me, claimed credit for this
perfect solution?
On reflection, my idea on such occasions was
not so good after all. In fact, it was a bad idea. In
addition, it would bring embarrassment to the
person connected with it. With the passage of
time came the realization that I had been backed
into the role of the fall guy.
Now when I am in a conference room and a young
and energetic lawyer speaks up with the perfect
solution, I have the common decency to tell him
that the idea has already been considered and
rejected. Rejected because there may be subtle
ethical issues involved. Rejected because the
judge in the case would not look favorably upon
such an approach. Rejected because it may bring
on problems much greater than the ones we now
confront.
Watergate used up a whole cadre of young, ambitious lawyers who offered the perfect solution to
the president's problems. These young, ambitious
lawyers discovered that their leader had withheld
information from them, and furthermore they
closed their eyes to the dangers involved. They
56 WASHINGTON LAWYER

Wouldn't it be interesting if we had a transcript of
an Oval Office conversation when President Nixon
was setting up his fall guys? As a matter of fact, we
have such a transcript.

Kendall says to Nixon: "The only thing people
believe is a leak." Therefore, Nixon must create a
leak. He must write a memorandum to Alexander
Haig and, says Kendall, in the memorandum
"blister Haldeman and Ehrlichman, and this,
I know, it is a tough thing for you to do." Nixon
had publicly defended Haldeman and Ehrlichman,
and people admired him for that. But now Nixon
must think of himself.
Kendall: You give me the memorandum. I will
guarantee that Jack Anderson will print it. . . . in
other words you go through all the problems
that you've had the last few months and what
it meant to you to do it with Haldeman and
Ehrlichman, and then you have to blister them
and say that they let you down by not keeping
you informed, and that you don't want something like this to happen without being
informed of all the details because this attacks
the integrity of the office. . . .
Nixon: I think it's a very good idea. I'll write
something -
How many fall guys did you count? I count two,
maybe three.
As we watch the current pardon hearings, we shall
see some good and honorable people discover
that they had been converted into fall guys.
There was a song of yesteryear that puts it all in
rhyme. The great Bert Williams talked and sang the

JANUARY/FEBRUARY 2020

words that follow in the Ziegfeld Follies of 1919.
The accompanying music to the song is slow
and mournful, with reliance on oboe solos in
the minor chords.
Now the circus played our town one day
And three Bengal tigers got away.
The manager in charge came up to me and
said -
My friend, here's your opportunity.
Somebody's got to go and get them cats
Because the tiger man is sick in bed,
so he said.
The man who catches them alive
A real hero he's going to be.
I said yes sir. A wonderful chance for
somebody, I do agree
A wonderful opportunity for somebody else,
not me.
Cubes with ebony dots
Often lead to cemetery lots.
For instance last night brought on a fight
Which finished up with fists and shots.
I was the furtherest from the door.
The others all got there before.
A body on the floor lay dead.
And through the transom someone said
Somebody's got to stay behind
Somebody must remain
So when the officers arrive
That somebody will explain
Why our dear brother here ain't alive.
Yes, it's a wonderful chance for somebody,
I do agree
Yes, a wonderful opportunity for somebody
else, not me.
So the next time you see a wonderful opportunity
to be a hero, just hum to yourself, "Yes, a wonderful opportunity for somebody - somebody
else, not me."

This column first appeared in the December 2006
issue of Washington Lawyer.

Washington Lawyer - January/February 2020

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