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Cliffhanging; how the consummate counsel came to need a lawyer.

In the drawing rooms of Georgetown, the conversations now take a particularly predictable path. How sad, how terribly sad, the hostesses say, almost in unison, as their guests nod and cluck. After such a distinguished career, how could Clark Clifford get himself into such dreadful trouble? After all, until this year, Clifford was the personification of the shrewd Washington insider, the last of the wise men, confidante of Democratic presidents, blah, blah, blah.

It's mostly true, actually, as his long-awaited memoirs suggest. Clifford played at least a walk-on role in almost everything that was compelling about Washington from the late forties to the end of the seventies. During the Truman administration, when more momentous events occurred in a month's time than might now take place in five or 10 years, he was central, as he was during the debate over Vietnam. There are some genuine historical insights in this book, some fascinating accounts of how government really works. But these days, Clifford's role in Washington history isn't half as interesting as his role on a single bank board. Now the search is on for some answers to the Clark Clifford riddle.

For Clifford (who spoke into a tape recorder) and Richard Holbrooke, a former assistant secretary of state under Jimmy Carter (who wrote the book and gets almost a co-byline), the timing is horrendous. But the coincidence of the scandal and the memoir may help provide some clues to Clifford's motives-and to why it took the rest of us so long to be suspicious of them.

For those who missed "60 Minutes" and the rest of the coverage (The New York Times has been especially skimpy with the details), Clifford's troubles involve the Bank of Credit and Commerce International (BCCI), a sleazy Arab-owned bank that has been accused of laundering drug money, among myriad smelly practices. In the early eighties, BCCI couldn't get regulatory approval to operate in the United States, so the owners secretly bought First American Bank and installed Clifford and one of his law partners, Robert Altman, as chairman and president, granting them loans to buy hugely lucrative stock. Clifford now claims that he presided over First American for nearly a decade without knowing that it was really controlled by BCCI. Nobody, of course, believes this. Reduced to admitting he played either the crook or the fool, Clifford is opting for the latter.

He recently hired a criminal lawyer; an indictment has to be considered at least a fair possibility. In the book, Clifford mentions his bank activities in only one sentence. But understanding that the scandal could not go completely unaddressed, Random House recently sent out a hastily added footnote. In it, Clifford writes of the pain the episode is causing him and puts a predictable and wholly inadequate gloss of innocence over it. Midway through the addition, though, lies an inadvertent sign of just how difficult this matter has become. In describing the terms under which he became chairman of First American in 1982, Clifford writes: "On the absolute assurance that the investors would not interfere with First American operations, I accepted. . . ." Curiously, in the typescript draft of the chapter sent to reviewers, the word "absolute" is crossed out. The lawyers, obviously, are already very much on the case.

Washington isn't as interested in the details of BCCI as in the riddle. Was Clifford's age an answer? Perhaps he was a victim of octogenarian forgetfulness. The younger Clifford would never have stood for such shenanigans, say the rationalizers. As for the money, well, he couldn't have done it for that, right? The man was already a multimillionaire.

Unfortunately for Clifford, the age excuse won't wash. As longtime readers of The Washington Monthly know, this is not the first time Clifford has played the fool. If he'd only known the truth about BCCI, he says now, he would have done the right thing. But precedent is against him. The last time he stared down a scam, he ignored universally recognized professional ethics and did nothing.

In 1970, Clifford, still in his prime, served on the board of the National Bank of Washington, then controlled by the United Mine Workers (UMW). At the time, the UMW was run by Tony Boyle, who was widely suspected and eventually convicted of arranging the murder of Jock Yablonski, his predecessor as president of the union. The Monthly revealed that the miners' pension fund was deposited in the bank in a noninterest-bearing account, meaning that the money benefited not the black-lung victims but the bank executives and union bosses. After the story appeared, Clifford called the editor of this magazine to say he was shocked, shocked to hear of it. As he should have been: As a lawyer, unless he was incompetent, he had to know perfectly well the trustees' fiduciary responsibility to the miners-to ensure that their pension fund was invested to their maximum benefit. But even though he knew all the facts and could no longer maintain the innocence he has persistently claimed in the BCCI scandal, he didn't fulfill that responsibility: He declined to blow the whistle, quietly leaving the the board a year or so later.

So much for age. The problem with the money argument is that it's used any time someone rich gets into trouble. (The amount of money Michael Milken was convicted over, for instance, was trivial compared to his net worth.) Clifford might have pooh-poohed the money motive to Mike Wallace-he took the banking assignment as a challenge, he says but, in truth, money is always part of the challenge. What begins as a practical need becomes a psychological necessity. Clifford writes that he left a position of tremendous power in the Truman administration in 1950 in part because his savings from his years practicing law in St. Louis were depleted. He doesn't cite any figures, but he probably calculated that he just needed to sock away a couple of hundred thousand, recharge his batteries, and return to public service. He writes that by 1961, when he headed the Kennedy transition team, he had made the decision that to help staff the administration and then take a cabinet job would be improper. What he doesn't mention is that, if he took a cabinet job, he would have had to miss out on becoming a multimillionaire. By the seventies, Clifford no doubt had friends worth tens of millions. Why shouldn't he be worth that too?

It wasn't that Clifford was greedier than everyone else, but that he helped make it respectable-even desirable-to profit from the access game. He recounts President Kennedy's joke at an Alfalfa Club banquet in 1961. "You can't do anything for me [in terms of an appointment]," the new president quotes Clifford as saying. "But if you insist, the only thing I would ask is to have the name of my law firm printed on the back of the one-dollar bill." That Kennedy would tell a joke like this suggests how new the whole game was. It seems so natural now, but only in the postwar era did law firms like Arnold & Porter (Abe Fortas's firm) and Clifford & Warnke begin trading on their good names and government experience for big profit in the Washington legal world. It's true that the rise of the Washington law firm was also a response to the increasing complexity of government, but the real money was still (though the lawyers would die before admitting it) in the door-opening: in the client's ability to say, "I've got Clark Clifford on this one."

Admittedly, practicing law is a lot more boring than advising presidents, but it's remarkable how little space in this huge book is devoted to Clifford's main occupation. After all, Clifford spent only six years working full-time for the government (five as a counsel to Harry Truman and one year, 1968, as Lyndon Johnson's secretary of defense). Otherwise, although he contributed occasional advice to presidents on critical issues and personnel choices, he spent the vast bulk of his time in Washington as a lawyer. Except for descriptions of Clifford representing Senator John Kennedy in threatening suit against ABC for questioning Kennedy's authorship of Profiles in Courage (among other matters) and defending Bert Lance in 1977, Clifford's law practice is almost invisible.

Loopholier than thou

But the few mentions of his practice do hold some clues to the Clifford riddle. For instance, shortly after starting his practice in 1950, he received two phone calls. The first was from Phillips Petroleum, which became a big client. The second was from Howard Hughes, whom he never met but represented in Washington for years. To Hughes, Clifford recited a little speech that he says he gave so many times over the next 40 years that his associates could repeat it by heart:

I look forward to our association. But before we proceed, there is one point I must make clear. I do not consider that this firm will have any influence of any kind here in Washington. I cannot, and I will not, represent any client before the president or before any of his staff. If you want influence, you should consider going elsewhere. What we can offer you is an extensive knowledge of how to deal with the government on your problems. We will be able to give you advice on how best to present your position to the appropriate departments and agencies of the government.

This sounds nice, but except for refraining from directly lobbying the president of the United States-which is pointless and embarrassing-it bears no relationship to the way Clark Clifford or any other Washington powerbroker really operates. The client speech is worse than a convenient fiction that both parties recognize as such. It is a distillation of everything that is phony about power in the capital in the second half of the 20th century. The denial of any influence of any kind here in Washington" is Orwellian in its boldness. To his credit, Clifford at least has some sense of shame about influence-peddling. He realizes-just by giving that speech-that what he does for a living is not entirely honorable, which is more than can be said for most of today's practitioners. No doubt he tried to insulate himself from the grubby details of such peddling by letting his partners and subordinates act in his name as much as possible-the name, of course, wedging the door open in the first place. Still, Clifford's implicit admission of shame does not justify how he spent the bulk of his career.

Perhaps sensing that, Clifford makes a stab at further justification. He writes several times that he sees himself primarily as an advocate; that, accordingly, he turned down a few chances to be on the Supreme Court. In describing the importance of advocacy, Clifford recounts the philosophy of his friend, the late Edward Bennett Williams:

Every defendant has the right-and his lawyer an obligation-to test the law to the limits to get the best possible outcome from the courts. That was what made the law work. To the lawyer, there was no such thing as a loophole; if the law was flawed, the legislative branch could change it-but unless and until they did, it was the law and applied equally to all. Ed respected, even loved, the law. It was, he and I both believed, what kept us a civilized nation.

This is clue number two. To the lawyer, there was no such thing as a loophole. What Clifford seems to be saying is that lawyers have the right-no, the obligation-to skirt the line of the law as closely as they can. They are not supposed to admit-even to themselves-that they are doing so; that would be admitting that they were exploiting a "loophole" rather than acting appropriately. This is about as clear a statement of the fundamental amorality of the Washington law practice as one is likely to find. It's almost as if Clifford were saying that lawyers have a duty to do whatever they can get away with.

It would be so much easier if Clifford were fundamentally a bad guy and wrong on the great issues of the day. But he was right-on civil rights under Truman, on Joe McCarthy, and on Vietnam, both in 1965, when he and George Ball were the only insiders arguing against escalation, and in 1968, when he was a dovish defense secretary. (He was relatively hawkish in between.)

Many of his stories from that period are memorable and evocative (if relentlessly self-promoting): playing poker with Truman and Winston Churchill en route to Fulton, Missouri, for Churchill's famous

"Iron Curtain" speech (all the Truman poker tales, including one in which Chief Justice Fred Vinson calls the president a son of a bitch, are delightful); battling George Marshall, who vigorously opposed U.S. recognition of the new state of Israel in 1948; laughing with Truman following the astonishing 1948 upset because certain "supporters" claimed their preelection endorsement letters had been lost in the mail. Clifford also discloses the peculiar story of how a newly elected JFK sent him to talk Kennedy's father out of insisting that Bobby be named attorney general. ("I'm going to see to it that Bobby gets the same chance we gave Jack," Joseph Kennedy told Clifford in settling the matter.) Clifford explains how Johnson's famous hatred of Bobby extended past RFK's death, when LBJ refused to have the government pay for a permanent grave site.

The good stuff about Clifford is precisely the problem. His public service and tremendous charm made his approach to practicing law not just acceptable, but enviable-a model for generations of young lawyers flocking to Washington. In that sense, the staining of this Washington legend, however traumatic for himself and his family and friends, is actually healthy for everyone else. By stripping Clark Clifford's approach of its respectability, the BCCI scandal may help us see influence-peddling-and Washington's celebration of it-for what it really is.
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Author:Alter, Jonathan
Publication:Washington Monthly
Date:Jun 1, 1991
Words:2320
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