by Bryce Zabel
The Kennedys were forced to let LBJ on the ticket in 1960. The details were tightly held by the brothers and Johnson and to this day are not clear. Historians now believe Johnson’s Georgetown neighbor, J. Edgar Hoover, had provided him damning evidence about JFK’s extramarital affairs, and that Johnson had used the information straight-out, Texas-style to get the number two spot he coveted.
Both John and Robert Kennedy made mental notes to avoid being in such a position again where they could be attacked with the weapon they had given an enemy. It had been impossible to keep that pledge entirely. The mere existence of J. Edgar Hoover in their lives assured that. Now, however, that dynamic would work in their favor. LBJ had given them what they needed to get rid of him.
The black eye of Dallas alone could probably not have toppled LBJ, but the VP’s choice of friends put him on shaky ground indeed.
Johnson’s close associate, Texas financier Billie Sol Estes, had just been tried and convicted of fraud against the U.S. government for a scandal that threatened to engulf the Vice President. The con man had been sentenced to twenty-four years in jail after enduring a corruption trial that followed a congressional investigation into his contacts with the federal government. More than eighty FBI agents had been assigned to look into the business dealings of Estes.
What they’d found so far was fraud against the United States government on the scale of $172 million in today’s dollars. There was also a mysterious suicide that looked like murder, and a trail of generous support for powerful Democrats including, most particularly, Lyndon Baines Johnson. Now, with his fate swinging in the wind, Estes was said to be teasing grand jury testimony that would implicate Johnson not only in a direct cash-for-services bribery scandal but also, incredibly, in the murder of the dogged Henry Marshall who had been investigating the Billie Sol Estes case for the Agricultural Adjustment Agency starting in 1960. The next year, Marshall was found dead on his farm, shot five times by his own rifle. Although the death was ruled a suicide, there were many who were skeptical that it took Marshall five self-inflicted shotgun shells to kill himself in his car.
Feeling confident that even Lyndon Johnson would know when he was beat, President Kennedy already had a short list of replacements in mind. There was Missouri Senator Stuart Symington, the man he’d originally wanted on the ticket before LBJ’s power play. There was also Florida Senator George Smathers, a man JFK enjoyed socially and who had the discretion to attend parties with dubious guest lists and say nothing to anyone later. And, if Johnson’s southern roots were considered necessary to prevail in 1964, there was also Governor Terry Sanford of North Carolina, who unlike Smathers, would be completely untainted by presidential skirt-chasing.
The only decision of the moment, however, was who would tell LBJ that the clock had run out on his prospects. All agreed it shouldn’t be the President, who must be kept out of the fray. Bobby would enjoy the job the most, seeing LBJ suffer after all the headaches Johnson had caused the Kennedys. But the President said Teddy should do it. “He’s got to get some experience at this someday,” is how he phrased it.
So it became the task of the youngest of the Kennedy brothers to tell Lyndon Johnson face-to-face that he was being dropped from the 1964 Democratic presidential ticket. The new senator from Massachusetts started the job by focusing on his talking points, only to be cut off by Johnson. “Your brother sent you to tell me I’m off the damn ticket,” said LBJ nailing it, “because he wants me to understand I don’t rate the President, I don’t even rate the attorney general. What I rate is some turd-blossom named Junior.”
Johnson stood toe-to-toe with Teddy, his face just an inch from the other man’s, and put an arm on his shoulder so he could not escape. “Now I don’t dislike you, Teddy, I know it’s hard for you, growin’ up with a couple of brothers like you got, but what makes you think that I should even entertain this proposition you’ve come to make?”
Teddy said it wasn’t a negotiation, that the President could certainly decide who his running mate should be. And there were the various financial scandals that made LBJ’s tenure untenable.
Johnson pursed his lip and glared at this “junior” senator. If he surrendered to the Kennedys now, Johnson thought, he faced a dismal future. He would be remembered only as the first Vice President sentenced to the penitentiary for tax fraud, extortion, illegal campaign funding, bribery, influence peddling and, if investigators were working under the thumb of Bobby Kennedy, just possibly his own involvement in a number of murders in his home state.
His heart had leaped when he heard the shots in Dealey Plaza. Had they connected with their target as intended, he would be the President now, and all these charges would have melted away in the interest of continuity and national security. Now, despite his hatred of the vice presidency, his only choice was to hold onto the office and force the Kennedys to see it was in their best interests to save him.
“You can throw all the ten-dollar words you want at me,” said Johnson, “but I’ve done nothing wrong but help my country, and no Senate committee or picture magazine is ever gonna say otherwise. You’ll see.”
Seeing that Johnson was not taking no for an answer and panicking at the large Texan’s physical proximity, Teddy said he would run Johnson’s position past the attorney general. Johnson blocked his escape from the office and handed him a telephone, calling out to his assistant for an outside line. Once Teddy had explained the situation to his brother, Johnson grabbed the phone from him and said, “Mr. Attorney General, whatever happened to being innocent until proven guilty?”
Robert Kennedy replied that such a concept applied to the legal system but not to politics. The Democratic party simply could not afford to have LBJ’s situation flare up in the middle of a presidential campaign.
“The Democrat party loves me, Bobby, always has. What you mean to say is that you and your brother need a reason to say to me what you’ve wanted to say since 1960.” As he said this to Robert Kennedy, Johnson winked at the youngest Kennedy brother as if they were now a couple of kids having fun with the neighbor who was hard of hearing. After hearing RFK’s response, LBJ said, “That won’t be a problem. You tell the President how much I look forward to our campaign.”
Hanging up the phone, LBJ turned to Teddy, “It’s all worked out.” What the attorney general had told him was that he had two months to straighten things out and, if LBJ’s financial dealings had reached public scandal proportions, he would be expected to resign. What Johnson said to Teddy, however, was, “You don’t threaten to put the fucking Vice President of the United States behind bars. It’s goddamn disrespectful. This will bite your big brother in the ass if he doesn’t wise up.”
To his enduring credit, Teddy did not run for cover. He stared right back at the Vice President and said, “It is a very serious matter to threaten the President of the United States, particularly given the recent attempt on his life that has yet to be resolved. You wouldn’t be threatening the President now, would you, Mr. Vice President?”
Johnson smiled, knowing the point had been made. “No, I am not,” he said. “I support the President of the United States as any proud American does during this time of trouble for our nation.”
The State of Texas vs. Lee Harvey Oswald
It seemed to many that it had taken forever to get to the business of prosecuting Lee Harvey Oswald. In reality, it had taken only five months, and the miracle was that they could navigate the cacophony of accusations, insinuations and demonstrations with any sanity at all. History now seems clear; things did not go well.
In retrospect, perhaps the first sign that it would be a troubled trial was the resignation of Oswald attorney William Kunstler, who left with an uncommonly terse statement: “I’m making this change in the service of my client.” He was replaced by San Francisco trial attorney F. Lee Bailey. Media wags immediately took to calling the lawyer and his client “the two Lees.”
“Every American deserves a fair trial,” said Bailey when h
e first announced his presence on the case. “My client is a man accused of a crime that he did not commit, and on that one level, it is just that simple. The men who tried to murder our president are still at large.”
Bailey had distinguished himself in the mid-’50s case of Sam Sheppard (which TV's The Fugitive was based on). With Kunstler’s near-daily diatribes, the American Bar Association had begun a whisper campaign among its members and the press designed to undermine him. The ABA leadership had come to believe that the verdict in the Oswald trial would never be embraced by the people if his defense was seen as showboating and self-serving. Bailey also had a flair and a style, but he was clearly the more buttoned-down type, and his demeanor simply shouted competence.
The question that hung over the trial was always the same: Would Lee Harvey Oswald take the stand in his own defense?
“Next question,” said F. Lee Bailey.
Opening Arguments
The circus-like atmosphere on the streets of Dallas, Texas was unsettling and inappropriate, yet no one seemed able to resist it. It was like the Scopes trial in sheer, high-wattage sensationalism, but it was being televised with an intensity that had only been seen before during the McCarthy hearings of the early ’50s. If the Warren Commission wanted to stay behind closed doors, it was almost as if nature had created its polar opposite force in Texas. Every network featured “live” coverage, and the pre-trial hullaballoo led the evening news on all three networks with amazing regularity.
The trial was set to begin April 20, 1964 but was delayed, based on a prosecution request, to Monday, May 18.
After a two-week jury selection process, the trial began with both prosecutor Henry Wade and defense attorney F. Lee Bailey given an entire day to lay out their opening arguments. While each seemed to have marshaled an incredible assortment of facts, testimony and theories, the basic brief each man brought to their arguments was clear.
The prosecution intended to prove only that Lee Harvey Oswald was the shooter in the Texas School Book Depository. Witnesses would place Oswald as the man in that sixth floor “sniper’s nest” who shot at the Kennedy motorcade with a Mannlicher-Carcano rifle. The jury would be presented with evidence that would convince them beyond a reasonable doubt that Oswald murdered Connally, Hill and Tippit, and attempted to murder President Kennedy.
The defense meant to obscure Oswald’s role by raising grave doubts about the lone-actor theory and disputing testimony that placed him at the Texas School Book Depository. Moreover, Oswald was only a puppet, ultimately manipulated by a shadowy, wide-reaching conspiracy to appear guilty when he was, in fact, a victim himself. By the end of the trial, the jury would see so many holes in the lone-gunman theory that they would have honest and reasonable doubt and would have to acquit on all charges.
In the opening days, when the prosecution presented its case, Henry Wade used his down-home Texas demeanor to hammer witnesses over and over in ways that portrayed Oswald’s involvement as just another crime that needs sorting out before the guilty man is sent away. The victims of gunfire were famous, but it did not change the nature of the crime. “Murder is still murder,” said Wade, and he said this mantra seven times in this opening statement so no one could mistake his belief.
The evidence favored Oswald acting alone, argued Wade, but so long as he pulled a trigger in an act of premeditated assassination, he was guilty as charged. Wade believed the conspiracy charges were a big smokescreen and, in any event, could be addressed at a later date in another venue.
Bailey saw the entire trial as a Kafkaesque masquerade of conspiracy, mirrors within mirrors, secrets and lies. And in the center of this madness, said Bailey, was Lee Harvey Oswald, the puppet who was being danced against his will. Kunstler had always used the word “patsy” to describe his client, because it was the word Oswald himself had used. Bailey felt it sounded like a word that Al Capone would favor and so abandoned it.
Oswald was a puppet, Bailey thundered. The people on that Dallas jury, he imagined, would like the chance to cut those strings, and freeing his client was the best possible way for them to express their outrage.
Nowhere to Hide
After just nine days, the prosecution was about to rest. Henry Wade didn’t believe in gilding the lily and, in any case, felt he should not overreach. Wade had presented eyewitnesses to both the shooting in Dealey Plaza and the physical location of Lee Harvey Oswald in the Texas School Book Depository. He brought in witnesses and evidence that placed Oswald as a supporter of communism who had lived in the Soviet Union and had returned to the United States to agitate against the government’s policy in Cuba. This was a man, said the prosecution, who deeply hated his country and showed his contempt for it by shooting at the President himself.
Wade felt, and most agreed, that he had established a crime, presented evidence that placed Oswald at the crime location, tied him to the gun that had been found, and revealed his anti-American motive.
F. Lee Bailey had not really been able to touch him during this phase, and the case against Oswald seemed to be strong. At the same time, Bailey always said he would win his case during the testimony of the defense witnesses who would raise question upon question about the prosecution’s case. Bailey also teased his ace in the hole to the hundreds of reporters and cameramen gathered outside the Dallas Courthouse. Lee Harvey Oswald had a powerful and confounding tale to tell and, if he should tell it, “the heavens shall fall.” At the same time, he refused to confirm that Oswald would testify, always pointing out that he had every constitutional right to refuse and was keeping his options open until the last moment.
June 3, 1964 was, by the calendar, exactly two days until that moment when the defense would mount its own case.
Lee Harvey Oswald sat quietly in his cell that morning and waited. He was in a special holding cell and was allowed only an hour of exercise with other inmates once a day. The case was literally driving him crazy, and he had come to have a maniacal focus on his getting fresh air and exercise in the jail yard.
What happened next was never made explicitly clear in 1964 and is not any more focused today in 2013. What is known as fact is that at 1:37 p.m., Oswald was found by fellow inmate, Clyde Melville, in a pool of his own blood inside a side entrance off the exercise yard. He was unconscious from a severe beating and barely breathing when orderlies, responding to Melville's frantic shouts, summoned the prison doctor on call.
Dr. Joseph Nowotny was not capable of delivering a level of care that would have guaranteed Oswald’s survival, but he got lucky when Melville revealed he had worked briefly as a hospital attendant in Houston before his arrest. Together, Melville and Dr. Nowotny managed to stabilize the injured Oswald. Soon after, Oswald was taken to Parkland Hospital, the same place where Oswald’s alleged shooting victims had been treated.
The trial was immediately suspended, pending an investigation and a judgment on Oswald’s condition. Judge Harlan Epel locked the jury down in a local hotel while the legal teams debated the issues. Within forty-eight hours, everyone realized the judge had no choice but to declare a mistrial, which he did immediately.
The one-two punch of Dealey Plaza and now the Dallas Jail gave Texas a public relations black eye that it took decades to recover from.
In the aftermath, F. Lee Bailey had this to say: “There are no accidents and certainly none in prison. A man this important to the nation’s sense of justice does not get beaten within an inch of his life unless someone wants to send a message. You must ask yourself today who wants to send a message to my client, and what would that message be?”
The internal investigation blamed the attack on inmates angry at Oswald for trying to kill the President. Oswald was not able to voice his response given the swelling in his broken and wired jaw. He did write three words on a doctor’s prescription pad: “Get me Warren.” Oswald had determined there was only one person in America worth talking to more than his lawyer and that was the nation’s top judge, Chief Justice Earl Warren.
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A Plea to Leave
The trial was left in chaos by the beating of Lee Oswald. It would not be a fast recovery, the doctors at Parkland advised. The trial was postponed for a month, but the delay was expected to be extended again when the first one ran out. It was just as well. With the mistrial sending all the jurors home, it was clear that the wheels of justice would have to start turning all over again if they were going to turn at all.
While Oswald recovered under police guard at Parkland for the first two weeks before he was shipped back to the Dallas County Jail, F. Lee Bailey was busy. He relayed an urgent message to Earl Warren, saying his client wanted to meet with the chief justice in Texas.
The men who run the Supreme Court are not accustomed to being summoned anywhere by a lowly defense attorney. When the accused, however, is suspected of trying to kill the President of the United States, it pays to listen. Bailey said his client was adamant. He would no longer tell his story in a Texas courtroom. That was off-the-table forever now. But he would tell it to the chief justice, man-to-man.
At the same time, Nicholas Katzenbach, RFK’s top man, had been presenting a case to a federal grand jury convened by the AG’s office that sought to indict Lee Harvey Oswald for the murder of Secret Service agent Clint Hill. For while it was true that a law still needed to be passed making it a federal crime to murder the president, there was federal jurisdiction established for the Secret Service.
So Earl Warren traveled to Dallas, Texas to hear from Oswald. The meeting was set up in a secure conference building. Warren insisted that several commission staff attorneys accompany him. Afterward, they all characterized Oswald as practically begging them to charge him under federal statutes and drag him back to Washington, D.C. Only then, said Oswald, would it be possible for him to confide what he truly knew about the Kennedy “hit.” Oswald argued that telling the truth while he was still physically in Dallas would get him killed for sure next time. He wanted to be granted immunity and moved to Washington, D.C.
