Washington Lawyer - September/October 2020 - 49

WORTH READING

How to Take on Corporate Wrongdoers
Review by Don Allen Resnikoff

It was an exciting journey that included an
investigation of Malcolm X's assassination and
a successful fight against organized crime. But
when asked by an interviewer which case had
the most impact on him, Stern said it was "the
bribery case in which we tried executives of
the Colonial Pipeline Company. It's where
I learned my craft and where I learned how
to investigate."

The defendants' attorneys were all more
experienced and prestigious than Stern and
Goldstein. Edward Bennett Williams was
perhaps the foremost trial lawyer of the day.
Former federal judge Simon Rifkind was
a partner at the prestigious firm Paul, Weiss,
Rifkind, Wharton & Garrison. Other attorneys
for the defendants included heads of three
of New Jersey's largest law firms.

The Colonial Pipeline case involved the bribery
of city officials by executives of a very powerful
organization. Colonial Pipeline was a consortium formed by great U.S. oil companies,
including Texaco, Gulf Oil, American Oil, Pure
Oil, Phillips Petroleum, the Cities Service, and
Continental Oil. The consortium built and
operated a pipeline for transport of gasoline
that ran from the Gulf Coast up to the
Northeast. The key allegation of the criminal
action was that Colonial Pipeline executives
paid $110,000 to Woodbridge, New Jersey, city
officials to facilitate access to land needed for
large gasoline storage tanks.

Stern recalls that because he was young and
unknown and had a very small support staff,
there was initially a touch of disdain in the
attitude and behavior of his lawyer adversaries.
They would sometimes lecture at Stern in
a condescending way when he requested
their cooperation. That disdain and condescension changed by the end of the trial.

When the Colonial Pipeline bribery case was
tried in 1968, I was a young assistant U.S.
attorney working in the same Newark, New
Jersey, building where the trial was held, and
I was able to occasionally visit and watch.

Skyhorse Publishing

In Diary of a DA, Stern reflects on his professional journey as a lawyer, from a novice in
the Manhattan district attorney's office to trial
lawyer at the Justice Department's Organized
Crime and Racketeering Section, to U.S.
attorney for the district of New Jersey and,
finally, federal judge.

The trial
involved some
high drama. It
took place in
an old 1930s
courthouse
located in a
shabby section
of Newark. The
prior summer,
riots had swept
the city's
streets for days.
Inside the old
courthouse,
a young Stern and his equally young associate,
Jonathan Goldstein, were representing the
United States as plaintiff, while four times as
many attorneys were representing the defendants, executives of the country's most
powerful corporations.

ecently I stumbled upon
Herbert J. Stern's 2012 memoir,
Diary of a DA, while searching
for information on the old Colonial
Pipeline case, which I have long
considered to be an exemplar of
how corporate criminality should
be dealt with.

Rifkind's use of enormous jury exhibits,
including maps and huge pieces of pipe crosssections, reflected his bold style in representing
the Colonial Pipeline consortium and its officers.
The image of the huge courtroom exhibits has
stayed in my mind after many years.
At one point, with the Colonial Pipeline president on the witness stand, Rifkin showed the
jury a mammoth map of the massive Colonial
Pipeline building project.

Rifkind's advocacy point, as Stern explains,
was that the Colonial Pipeline executives were
working for an important company, executing
a large and complex project of great importance to the nation, and that furtive behavior
and bribery were beneath the dignity of such
important men. More likely, Colonial Pipeline
counsel argued, the executives were hapless
victims of extortion by corrupt local officials.
Hadn't the company executives brought a lot
of the key evidence to the prosecutors?
Young Stern was able to overcome the legal
firepower of his more experienced adversaries,
largely because of the strength of facts that he
had played a big role in developing.
In his summation to the jury, Stern explained:
"Ladies and Gentlemen, there has been a suggestion made to you in the argument of
counsel that Colonial and its officers came
down and revealed this matter to the United
States . . . ." Stern then recounted the evidence
showing that the Colonial Pipeline executives
cooperated with the United States only after
they were confronted with strong evidence
indicating bribery.
Stern said to the jury: "Ladies and Gentlemen,
I submit to you that it is quite clear that these
men were hiding the [bribery] transaction, and
the reason they were hiding it was because
they knew what they were doing was criminal
in spite of the fact that they were men of
position, criminal in spite of the fact that they
were men of responsibility, criminal in spite
of the fact that they were, if you will, 'captains
of industry' who, if I understand [Rifkind's]
argument, should never be reached for by
a prosecutor."
The jury sided with Stern's arguments, for the
most part, and convicted the defendants on
most indictment counts.
I find drama in Stern's willingness to persist in
prosecuting captains of industry who felt too
important to be subject to criminal charges.
And although 1968 was a unique moment of
social tension and corruption in local government, the theme of hubris is timeless. Captains
of industry in the early 1900s often felt they

SEPTEMBER/OCTOBER 2020

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