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Rights on trial: the odyssey of a people's lawyer.

In February 1972 Arthur Kinoy argued a case before the U.S. Supreme Court, successfully challenging the U.S. president's reliance on inherent national security authority to wiretap American citizens without a warrant. His opponent was Robert Mardian, a Justice Department deputy and eventual Watergate defendant. Kinoy's argument implied, with remarkable prescience, that the government's inherent authority theory could be applied to Democrats as well as to radicals. Mardian rejected the assertion, urging the administration's good faith. Only weeks earlier, then Attorney General John Mitchell and Republican associates had selected the Democratic National Committee as a target for covert surveillance.

Coupled with this account, Kinoy's recently issued autobiography, Rights on Trial: The Odyssey of a People's Lawyer, puts forward a startling theory about the origins of Watergate. Kinoy's view is that the Nixon agents who placed the original Watergate bugging devices intended to rely on the inherent authority claim then pending before the Supreme Court. Kinoy suggests, however, that in June 1972 Nixon's forces received last-minute, secret word of the forthcoming Supreme Court defeat and then acted quickly to head off exposure. On the night of June 17, two days before release of the court's decree, the Watergate burglars were apprehended while removing (not implanting) the bugging devices previously installed. The Nixon coverup followed.

Kinoy's lively new book chronicles legal confrontations that assumed importance, as in the wiretapping case, because they reflected underlying social and political conflicts that gripped the nation. For this reason alone, non-lawyers as well as members of the legal profession will be absorbed by his experiences spanning three decades in the labor, civil rights, and antiwar movements.

Kinoy was born to a Jewish immigrant family and grew up in Brooklyn. His parents were teachers. While attending Havard in the late 1930s, Kinoy was active in radical student organizations.

Following wartime service, he entered Columbia Law School. Among his classmates was Roy Cohn, a future adversary when Cohn served as chief aide to Senator Joe McCarthy.

Shortly after law school, Kinoy joined the legal staff of the United Electrical Workers (EU), a major union already under attack for itsk leftist leanings and the involvement of some Communist Party (CP) organizers. In the early 1950s, Kinoy founded a small private law firm with other union lawyers, but continued working for UE on retainer. Private prctice also permitted him to participate in two major legal struggles of that period. One was preparation for the first Smith Act trial against the CP's leadership; the other was the last phase of the Rosenberg case, on the eve of their execution for alleged atomic spying.

In 1963, after a three-year bout with meningitis, Kinoy resumed work at an around-the-clock pace for the burgeoning civil-rights movement. With others, particularly members of the National Lawyers Guild (NLG) and his new law partner, William Kunstler, he developed novel theories for invoking federal jurisdiction to protect civil rights organizers against unconstitutional state action. This led to one of the most famous of his several Supreme Court victories. (Dombrowski v. Pfister, 1965, 380 U.S. 479)

Kinoy was also a legal strategist for the Mississippi Freedom Democratic Party (MFDP) in its attack on the disenfranchisement of blacks and on delegate selection at the 1964 Democratic convention in Atlantic City. The next year, the MFDP challenged without success, the election credentials of five white Mississippi congressmen.

Through the end of the 1960s and into the 1970s, while teaching at Rutgers Law School and despite intervening heart problems, Kinoy continued his intense political involvement. He represented witnesses before the House Committee on Un-American Activities (HUAC) (Stamler v. Willis, 7th Cir., 1969, 415 F.2d 1365), handled Adam Clayton Powell's disqualification appeal (Powell v. McCormick, 1969, 395 U.S. 486), served as lead appellate counsel in the Chicago Seven conspiracy case (Dellinger v. U.S. 7th Cir., 1972, 472 F.2d 340), and, as noted above, challenged President Nixon's authority to wiretap American citizens without a warrant. (U.S. Dist. Ct., 1972, 407 U.S. 297)

Since the early 1970s, Kinoy's attention largely has shifted to building a political party, of board racial and social composition, independent of either the Republicans or Democrats. Although his direct legal advocacy has declined, he still teaches at Rutgers and also serves as a senior counsel at the Center for Constitutional Rights in New York.

The personality profile that emerges from this book reveals a complex and driven man: tireless, combative, eternally optimistic, as well as a skilled legal technician and creative thinker devoted to basic democratic rights. Kinoy observes the importance of working with (and learning from) conservative corporate counsel on cases involving elementary civil liberties. But while so doing, Kinoy remains skeptical of work with liberals, believing that their stake in the system can prevent the principled breaking-away that is the hallmark of the radical. In this regard, he cites his encounters with such leading leberals as Jerome Frank (denying a stay to the Rosenbergs) and Joseph Rauh (urging compromise upon the MFDP and the exclusion of NLG assistance). These cases demonstrate both the causes of his latent distrust and the interests that have motivated his life's work.

Kinoy's story is presented in chronological, anecdotal fashion. However, woven through the engaging, often tense, accounts are his operating premises as a people's lawyer. His major premise is that the lawyer's task is to aid the ongoing struggle through an understanding of people's needs and desired solutions, without primary concern for winning or losing. Instead, for Kinoy, the real test is the impact of legal work on organization morale and momentum, especially in times of acute defensiveness and disarray.

For example, in the early 1950s, UE tried to take the initiative against government suppression. In one case, the union sued to expunge an unauthorized federal grand jury presentment that had issued when an indictment could not be justified. Later, the Dombrowski action was designed to reverse the accusatory roles, shifting the label "subversive" from the defendants in the voting-rights movement to the government officials whose actions undermined fundamental constitutional rights.

Aiding the struggle also can mean adapting legal strategies to organizing potential. After the MFDP's setback at Atlantic City, the legal team unearthed a federal statute providing open-ended investigatory procedures for attacking the eventual congressional elections. This statutory procedure allowed subpoenas and depositions directed against the Mississippi establishment, as well as the mass taking of affidavits to show black voter disenfranchisement. Hundreds came to Washington hearings and the floor debate to give life to the testimony that had been gathered.

A second premise implicit in Kinoy's descriptions is that a people's lawyer must be ready to use new legal approaches and to resurrect older doctrines seemingly lost to the ages. Crucial legal strategies during the civil-rights movement gave fresh meaning to post-Civil War reconstruction laws originally intended to protect newly freed slaves. These legal approaches included federal injunctions to restrain local conspiracies, and motions to remove state court criminal proceedings to federal court in cases where a fair trial could not be obtained at the state level.

Kinoy rejects the notion that innovative legal actions, without great likelihood of initial success, are unethical. In his view, the courts themselves are an arena for First Amendment expression seeking the redress of popular grievances. He also rejects categorical attachment to legal doctrines, such as exhuastion of administrative remedies, even if progressives had a large hand in shaping them.

A third premise is that people's lawyers need new forms of collective organization that can shape common solutions to common problems. During the 1950s the UE developed a network of lawyers to share pleadings in their constant with the National Labor Relations Board and with raiding unions that sought UE decertifications. Then in the 1960s the NLG created the Committee to Assist Southern Lawyers, bringing to bear nationwide skill and experience.

As a final premise, based on his own and others' experiences, Kinoy warns that lawyers must themselves be prepared to face attacks. At a HUAC hearing in the mid-1960s, as Kinoy tried to restate an objection, he was grabbed by three marshals and, in a choke hold, removed from the hearing room. His contempt citation was ultimately reversed. (Kinoy v. Dist. of Columbia, D.C. Cir., 1968, 400 F.2d 761) In a more astounding episode, Kinoy was subpoenaed to a federal grand jury at the time he was finishing a 547-page appeal brief in the Chicago Seven conspiracy case. (In Re Kinoy, S.D.N.Y. 1970, 326 F.Supp, 400) The supposed purpose of the subpoena--to learn the whereabouts of his collegeage daughter--was plainly pretextual and the subpoena was eventually dropped.

While the book is engrossing as well as politically stimulating, it does have modest drawbacks. One problem is that the author's persuasiveness is diminished because some of his judgments deserve fuller elaboration. For example, Kinoy criticizes the legal defense strategy in the first Smith Act trial, claiming that it fell into the government's trap of trial-by-quotation from revolutionary Marxist texts, and that the defense team did not rely primarily on its First Amendment right to compete in the marketplace of ideas--whatever the ideas might be. Kinoy also criticizes the progressive movement for failing to mobilize a mass defense against the Rosenbergs' prosecution for stealing atomic secrets. Kinoy believes that leftists were fearful of being tainted by the espionage case and for that reason held back until it was too late. Unfortunately, for each of these cases, the reader will have to turn elsewhere for deeper discussion of the pros and cons.

A second weakness is related to a conclusion that lawyers are not simply technicians, but should be "independent and equal members of the movement, participating in the formulation of policy and then aiding in its implementation." (p. 262) Granted, a lawyer has political entitlements and should not be confined to a type of professional ghetto. However, given the special argumentation skills of lawyers and their privileged access to legal forums, Kinoy pays scant attention to the significant danger zone that can exist when someone is both political participant and legal advisor.

Another shortcoming is that Kinoy inadequately discusses the economic and emotional problems of people's lawyers. He cites no instance where the lack of finances constrained time or tactics, and he barely examines the economic exigencies of private practice. And although he makes occasional reference to personal, familial, and collegial stress, aggravated by long hours, extensive traveling, and the historical patterns of male chauvinism, he offers little guidance about these limitations. Yet we know that after 30 years, he still emerged politically committed as well as sensitive to the needs of his comrades.

Overall, despite these drawbacks, Kinoy's book is an important contribution to analyses of American protest. It is exciting and informative, and is enhanced by the author's recollection of personal feelings. These qualities lend a vivid touch to his accounts. For these reasons, Kinoy's story should be an inspiration to politically inclined students and young lawyers. It will also function as a refreshing memoir, often provocative, for those who lived through the same or similar struggles, especially the often-brutalized civil rights movement int he 1960s, a subject of recent history about which relatively little has been written. Even those who do not share some degree of political affinity with Kinoy's views should find his dramatic accounts and his faith in the human spirit reward enough for reading this book.
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Author:Winograd, Barry
Publication:Monthly Review
Article Type:Book Review
Date:Mar 1, 1984
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