One way of achieving historical recognition is to provide one’s name to a landmark Supreme Court case. Think of “Roe v. Wade.” Roe was a legal fiction but Wade was Henry Wade, District Attorney of Dallas County, now forever memorialized in American history -- even if he was on the losing side. That kind of celebrity once seemed in my grasp.
It all began on May Day 1970 during committee hearings in the U.S. House of Representatives on the issue of American POWs. The witness was H. Ross Perot, eccentric billionaire businessman, and later Presidential candidate. He fervently had taken up the cause of the Americans soldiers and airmen being held captive in North Vietnam. During testimony before the National Security Policy subcommittee, Perot made a series of suggestions for Congressional action. He concluded:
MR. PEROT:....In the [Capitol] Rotunda I urge you to place replicas of the bamboo stockades, the cells our men live in in Hanoi, a tree with a man chained to it,; and a replica of a 20-foot hole in the ground with a man in it.
As you go about your daily affairs, you can never forget the absolutely awesome price these men are paying for all of us. As high school children, college students and older people come to Washington, they also will be reminded.
Perot went on to propose that he would provide the manpower, the money, “whatever it takes to construct the replicas.” The Chairman, Rep. Clement Zablocki, then suggested that while the Rotunda might be out of bounds, the underground space below the rotunda might be suitable. Perot jumped at the idea and suggested that he work through the subcommittee staff -- at the time only me. Zablocki agreed.
In short order the billionaire’s minions had constructed all of the captivity devices he had suggested in the proffered space inside the U.S. Capitol. Called the “Crypt” the low-ceilinged area recently was pictured in the assault on the Capitol. A bamboo cage, popularly known as a “tiger cage,” was the centerpiece of Perot’s POW exhibit, displaying a ragged and anguished GI mannequin within. The display sent a powerful, seemingly pro-war message that soon had the American Civil Liberties Union (ACLU) asking the Architect of the Capitol for equal anti-war space. When he refused, the ACLU sued. The next thing I knew, a process server was at my office with a subpoena. It required me to testify and bring documents.
“Don’t accept the subpoena on congressional property,” I was advised, for the reason that it would violate legislative branch immunities. The process server and I left the Rayburn Building and onto the grounds. But that was also congressional property as was most of Capitol Hill. An exception was Independence Avenue. As we stepped into the street to transfer the document, I was very nearly hit by a Yellow Cab.
Bearing the subpoena, The committee staff director and I hurried over to the House Parliamentarian. He was the legendary Lou Deschler, a man before whom even seasoned congressmen might tremble. Referred to as “Judge,” by those who dared, he was known as a “tough old bird” who would not talk to staff and would hardly talk to Members below committee chairman.
Deschler read the subpoena carefully and sighed. A number of similar subpoenas had been received recently and each time the House had voted immunity for the staff member involved. The process was time consuming. The Parliamentarian decided to try something new and different in my case: Go naked of protection, testify only from “personal knowledge,” and forget about taking any documents. I gulped.
My attitude brightened considerably, however, after conferring with my Justice Department appointed attorney. He pointed out that although congressmen had immunity from judicial summons regarding their legislative duties as part of the Constitutional separation of powers, the same immunity never been established in law for staff aides. If I failed to meet the terms of the subpoena, the ACLU might well sue and it could ultimately fall to the Supreme Court to settle the issue. Sugar plums of high court drama danced in my head. “The ACLU vs. Sullivan” might be cited in legal cases of high moment for generations to come.
On this high, I marched to a deposition at a posh downtown DC law office. My answers were designed to provoke a lawsuit (hey, I had a government-paid attorney). The ACLU lawyer asked: “What do you do in your work?”
I replied: “I read and I write.”
“Well hell,” said the lawyer, “I read and I write on my job.”
“Then,” I said with a broad smile, “you could work where I do.”
"You are a smart ass,” he replied.
My deposition went down hill from there. But I left with $20 in my pocket as a witness and a story about intentionally sassing the ACLU. My Justice Department lawyer thought we were almost surely headed for further legal action as a result of my stonewalling. I was delighted and assured him that he would get in the Constitutional law books too as we waited for the ACLU to file suit in Federal District Court. Suddenly the Architect of the Capitol, under pressure from the Democratic leadership, blinked. He agreed to dismantle and cart away Perot’s display in return for the ACLU dropping the suit. Within a week the “causus belli” was gone. Thereupon a chance for immortality vanished.
Two years later, in Gravel vs. the United States, the issue of staff immunity was decided by the Supreme Court. It affirmed that this Congressional privilege was shared by staffers when engaged in activities related to the legislative function. In this case the individual, a professor at Boston University, had been on Alaska Senator Mike Gravel’s staff for one day as the lawmaker read the Pentagon Papers into the Congressional Record. The staffer’s cause was espoused by both Democratic and Republican senators and, ironically, by the ACLU. I appreciated the outcome but cried a little inside that Leonard Rodberg, not Jack Sullivan, would go down in Constitutional history.
A postscript: Perot later indicated that he felt manipulated by the White House in some of his activities of behalf of POWs in Vietnam. He concluded that President Richard Nixon and Henry Kissinger had approached him about taking up the cause as a way of making it appear that something was being done for POWs when nothing was. I have no doubt of Perot’s sincerity but his activities clearly contributed to a larger Nixon Administration campaign to blunt antiwar sentiment.
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