Johnson mentioned the other six men he expected to name to the commission, and it was an impressive group. There were two senators: Democrat Richard Russell, the “Georgia Giant,” and Republican John Sherman Cooper of Kentucky, a respected moderate who had been ambassador to India. There were two House members: Democrat Hale Boggs of Louisiana, the assistant majority leader, who had been close to Kennedy, and Republican Gerald R. Ford of Michigan. And there were two high-profile appointees who, Johnson said, had been recommended to him by Robert Kennedy: former director of Central Intelligence Allen Dulles and former World Bank president John J. McCloy.
According to Warren, the president said that he had already talked with the others and that “they would serve if I would accept the chairmanship.” The word “if” was important, Johnson made clear; all six had apparently said they would sign on only if Warren agreed to lead them. The president was suggesting that Warren would put the whole membership of the commission in jeopardy if he turned down the job. As Johnson recalled telling Warren, “All these appointments were conditioned on the Chief Justice being chairman.”
Warren was flattered and startled by the suggestion that Russell—the Senate’s most powerful segregationist—was willing to see beyond their differences and insist that he run the commission. Still, Warren declined. He explained his reasoning, repeating the arguments he had made that afternoon to his visitors from the Justice Department.
Johnson listened—and then turned up the pressure on the chief justice as far as it could go. It came down to this, he said: Was Warren willing to risk World War III? More than that, was he willing to be responsible for World War III? The president’s wording was that stark, Warren remembered.
“I see you shaking your head,” Johnson told him. “But this is something which is just as important to your country now as fighting for it was in World War I,” reminding Warren of his wartime service in the army. “I am not going to order you to take this, as you were ordered to duty in 1917. I am going to appeal to your patriotism.”
Johnson later recalled telling the chief justice: “Now these wild people are chargin’ Khrushchev killed Kennedy, and Castro killed Kennedy, and everybody else killed Kennedy.” If there was any truth in the allegations of a Communist plot, or if the investigation of the assassination was mishandled and false charges were made against a foreign government, the result could be nuclear war. He told Warren about rumors coming out of Mexico City that Oswald had received a payoff of $6,500 from Castro’s government to kill Kennedy. “You can imagine what the reaction of the country would have been if this information came out,” the president said.
Johnson told the chief justice that he had just spoken to Defense Secretary McNamara, who warned that a nuclear exchange between the United States and the Soviet Union would leave tens of millions of American dead in just the first strike. “If Khrushchev moved on us, he could kill 39 million in an hour, and we could kill 100 million in his country in an hour,” he said, suggesting that the chief justice was now responsible for the fate of those people. “You could be speaking for 39 million people. Now I just think you don’t wanna do that.”
He called on Warren’s patriotism. “You were a soldier in World War I, but there was nothing you could do in that uniform comparable to what you can do for your country in this hour of trouble,” Johnson said. “The President of the United States says that you are the only man who can handle the matter. You won’t say, ‘no,’ will you?”
Johnson remembered that Warren “swallowed hard and said, ‘No, sir.’”
With a little cruel pride, Johnson later recalled that he made Warren cry: “Tears just came into his eyes.… They just came up. You never saw anything like it.”
* * *
There is no known recording of the Oval Office meeting with Warren, but if the accounts offered by Johnson and the chief justice are accurate, the president lied outright in claiming that the other commissioners had agreed to serve only if Warren was in charge. The truth was that, with the exception of Russell, Johnson had not even talked to the others.
Johnson talked to Russell by phone at about four p.m., shortly before the Warren meeting, and tried to persuade him to serve on the commission. Russell rejected the idea outright. He was too busy with his Senate duties, he said. And his health was not good; Russell had been plagued for years by emphysema.
In that first call, Johnson asked Russell for suggestions of other candidates. The president said he might try to recruit a member of the Supreme Court to join the commission, although he suggested that it would probably prove fruitless. Warren’s name was never mentioned in the call. “I don’t think I can get any member of the court, but I’m going to try to,” he said to Russell, neglecting to mention that the chief justice—at that very minute—was being summoned to the White House to be convinced to take the job.
Hours later, at about nine p.m., Johnson made his second call to Russell. He would be delivering two pieces of unwelcome news. First, that Russell would serve on the commission despite his protests. Second, that the commission would be led by—of all people—Earl Warren, a man Russell had long portrayed to his fellow Georgians as a villain.
Taking no chances, Johnson decided to force Russell’s hand. Before making the call, he ordered the White House press office to issue a public statement announcing the creation of the commission and listing its members, including Russell.
Johnson reached Russell at his home in Winder, Georgia, where the senator was spending a few days after Thanksgiving.
“Dick?” Johnson began in a gentle, apologetic tone of voice.
“Yes?”
“I hate to bother you again, but I just wanted you to know that I’d made that announcement.”
Russell: “Announcement of what?”
Johnson: “Of this special commission.”
The president began reading from the press release and soon came to the names of the commission’s members. Russell heard Warren’s name as chairman and then heard his own.
He sounded flabbergasted by Johnson’s duplicity. “Well now, Mr. President, I know I don’t have to tell you of my devotion to you, but I just can’t serve on that commission.… I couldn’t serve there with Chief Justice Warren.” This was personal, he said. “I don’t like that man. I don’t have any confidence in him.”
Johnson cut him off. “Dick, it’s already been announced, and you can serve with anybody for the good of America. This is a question that has a good many more ramifications than’s on the surface.” As he had with Warren, Johnson noted McNamara’s estimate of the nearly forty million Americans who might be killed in a nuclear exchange, if the assassination led to war.
“Now the reason I asked Warren is because he’s the chief justice of this country, and we’ve got to have the highest judicial people we can have,” he said. “The reason I ask you is because you have that same kind of temperament, and you can do anything for your country. And don’t go to givin’ me that kinda stuff about you can’t serve with anybody. You can do anything.
“You never turned your country down,” Johnson continued. “You’re my man on that commission. And you gonna do it. And don’t tell me what you can do and what you can’t. I can’t arrest you. And I’m not gonna put the FBI on you. But you’re goddamned sure gonna serve. I’ll tell you that.”
Russell: “Well, I know, but Mr. President, you oughta told me you were gonna name Warren.”
Johnson then lied to Russell, just as he had lied to Warren a few hours earlier. “I told you,” the president said. “I told you today I was gonna name the chief justice, when I called you.”
Russell knew it was a lie, as transcripts of Johnson’s phone calls would show. “No, you did not,” he said.
Johnson: “I did.”
Russell: “You talked about getting somebody on the Supreme Court. You didn’t tell me you was gonna name him.”
Johnson: “I begged him as much as I’m begging you.”
Russell: “You hav
en’t had to beg me. You’ve always told me, all right.”
Johnson: “No, it’s already done. It’s been announced … hell.”
Announced? Russell finally understood what Johnson had done: the press release with his name on it had already been given to the White House press corps.
Russell: “You mean you’ve got out that…”
Johnson: “Yes, sir, I mean I gave it.… It’s already in the papers, and you’re on it, and you’re gonna be my man on it.”
Russell: “I think you’re sort of takin’ advantage of me, Mr. President.”
Johnson: “I’m not takin’ advantage of you.”
Johnson suddenly seemed to remember who he was talking to—his political mentor, a man who was closer to him than many members of his family. He pleaded with Russell to keep in mind how much he could do for Russell now that he was president: “I’m gonna take a helluva lot of advantage of you, my friend, ’cause you made me and I know it, and I don’t ever forget.… I’m a Russell protégé, and I don’t forget my friends.”
Russell: “Hell, I just don’t like Warren.”
Johnson: “Well, of course you don’t like Warren, but you’ll like him ’fore it’s over with.”
Russell: “I haven’t got any confidence in him.”
Johnson: “You can give him some confidence, goddamnit! Associate with him. Now.… Now by God, I wanna man on that commission. And I’ve got one.”
Russell gave up the fight: “If it is for the good of the country, you know damned well I’ll do it, and I’ll do it for you. I hope to God you’ll be just a little bit more deliberate and considerate next time about it. But this time, of course, if you’ve done this, I’m gonna do it and go through with it and say I think it’s a wonderful idea.” He uttered those last few words—“it’s a wonderful idea”—in a tone heavy with sarcasm.
Before hanging up, Russell admonished Johnson a last time. “I think you did wrong gettin’ Warren, and I know damn well you got it wrong getting me, but we’ll both do the best we can.”
“I think that’s what you’ll do,” the president replied. “That’s the kind of Americans both of you are. Good night.”
* * *
At the Supreme Court the next week, Warren had to explain himself to his fellow justices—why he had agreed to lead the commission after insisting, for years, how wrong it was for members of the court to take outside assignments.
He later told his friend Drew Pearson that the other justices reacted with outrage, with the exception of Justice Goldberg, the court’s newest arrival. “Every member of the court except Arthur Goldberg gave him hell,” Pearson wrote in his diaries. Justices William Brennan and John Marshall Harlan pointed out Warren’s hypocrisy, reminding him that he had long argued that “members of the court should stick to their knitting and not assume extra-curricular duties.” Warren knew his colleagues were right to be angry with him. He was, he admitted, angry with himself.
Frame #371 from the Zapruder film, November 22, 1963
6
THE CHAMBERS OF THE CHIEF JUSTICE
THE SUPREME COURT
WASHINGTON, DC
DECEMBER 1963
The chief justice feared it would be a miserable Christmas—and a terrible new year. Warren’s children said the Kennedy assassination had shaken him and their mother like no other event in their parents’ lives. “The assassination was just unbelievable to both of them,” said Robert, the youngest of their six children. “It changed them.” Another son, Earl Jr., said that for the first time in his father’s life, the “strain really, really showed.” By agreeing to run the commission, “he was living that tragic event over every moment.… It was really quite cruel for him to have to go through it again and again.”
That year especially, the chief justice would have welcomed the chance to escape the capital and spend the holidays back home in Northern California, surrounded by his children and grandchildren and his old friends, enjoying the sunny, sometimes warm December weather of the San Francisco Bay Area; the harshness of winters in Washington could still startle him. Traveling to California for the holidays had been his routine since joining the court, but now, having yielded to President Johnson, he suspected that he would be forced to remain in Washington. He needed to organize the commission, even as he prepared himself for a busy winter docket at the Supreme Court. The cases to be decided the following year included a momentous First Amendment case, The New York Times v. Sullivan, that was scheduled for argument on January 6. Several other major cases argued in late 1963 were set for rulings. Just nine days before the assassination, the court heard arguments in a landmark voting-rights case, Reynolds v. Sims; that case would allow the court to force all fifty states to adopt one-man, one-vote rules for elections of their state legislatures.
Luckily for Warren, he was still in good health at the age of seventy-two. He was proud that he was still vigorous, still hard at work at the court, even as so many of his old colleagues from the district attorney’s office in Oakland and at the governor’s offices in Sacramento were heading into retirement. Sadly, a few of his old California friends had recently gone to their graves.
By agreeing to run the commission, Warren had assumed two full-time jobs. He decided he would try not to limit, in any way, his activities on the court. After a decade on the bench—in October, he had marked his tenth anniversary as chief justice—Warren could see that the court under his leadership was remaking the country, pushing the United States into the future, making it fairer and freer. The court was defeating the bigots and the reactionaries who, he sensed, had somehow created the atmosphere that had resulted in Kennedy’s murder. His legacy as chief justice might be far greater than anything he could have achieved had he realized his earlier dreams of winning the White House.
Johnson and his aides had pledged to Warren that he would have unlimited resources to run the commission. He would have all the money he needed to hire a staff, find offices, and pay for whatever investigation was necessary. But somebody had to hire that staff, and somebody had to find those offices, and now all those responsibilities rested on Warren’s shoulders. He was being asked to run the court even as he set up and directed what amounted to a small federal agency to investigate the president’s murder—an agency that, if it did its job poorly, might cause the nation to stumble into war.
Warren knew he needed help fast, and he immediately reached out to Warren Olney, his most trusted aide throughout his career in county and state government back in California. Olney, fifty-nine, another native Californian, had first gone to work for Warren in 1939 in the district attorney’s office in Oakland. He was typical of Warren’s closest deputies—loyal, discreet, progressive, but essentially apolitical, someone who saw in Warren an ideal of what a public servant could be. The chief justice considered Olney “a man on whom I could bet my life for integrity.” Olney had followed Warren to Washington. From 1953 to 1957, he was assistant attorney general in the Justice Department’s criminal division; in effect, he was the Eisenhower administration’s chief criminal prosecutor. At the department, Olney made his mark—like his mentor Warren, across town at the court—on civil rights. He helped draft the 1957 Civil Rights Act, the first major civil rights legislation approved by Congress since Reconstruction. In 1958, he became the director of the administrative office of the U.S. Courts, the agency responsible for the logistics of running the federal court system; the job kept him in close touch with the chief justice.
After his meeting with Johnson in the Oval Office, Warren called Olney and asked him to join the commission to run its day-to-day investigation, with the title of general counsel. It would be a full-time job for however long the investigation lasted—two or three months, Warren estimated. To his relief, Olney said yes.
* * *
Warren had not yet met his fellow commissioners, but he seemed confident the other six would respond enthusiastically to the appointment. Olney was a well-known figure in Washington legal circles; h
e was certainly admired by many of his former Justice Department colleagues. Warren apparently thought it would all be a formality.
FBI director Hoover had other plans, however. Exactly how he got word of Warren’s intention to appoint Olney is not clear from FBI files. But within days of the chief justice’s conversation with Olney, the FBI was aware of Olney’s selection, and the bureau launched an aggressive, behind-the-scenes campaign to block it. The stop-Olney campaign was designed to remain a secret from the chief justice.
Olney had made enemies at the FBI. At the Justice Department, his zeal for civil rights enforcement was not shared by the bureau; Hoover, in particular, saw many civil rights leaders, especially Martin Luther King, as subversives, if not Communists. Hoover had come to consider Olney as “hostile” to the FBI and disparaged him as “Warren’s protégé”—the description used in FBI files.
The campaign against Olney reflected how much the relationship between Hoover and Warren had deteriorated in the quarter century they had known each other. As California’s governor in the 1940s, Warren had a close relationship—a friendship, he thought—with Hoover, earning him a place on the FBI’s coveted “special correspondents list” of public officials entitled to the bureau’s help. When Governor Warren traveled to Washington, he took advantage of the FBI’s offer of a car and driver. The relationship with Hoover was once so close that Warren reportedly asked the FBI to conduct a background investigation of a young man who was courting one of the governor’s daughters.
But when Warren arrived at the Supreme Court in 1953 and the court began to rein in the powers of the FBI, especially as the justices broadened the rights of criminal suspects, the relationship with Hoover chilled—and never recovered. By the time of Kennedy’s assassination, it was one of mutual contempt. Warren later told Drew Pearson he believed that Hoover’s FBI had been engaged for years in “gestapo tactics,” including illegal wiretapping in high-profile criminal investigations—practices that were ended in part because of the actions of the court.
A Cruel and Shocking Act: The Secret History of the Kennedy Assassination Page 8
