by James Rosen
Mitchell defended the constitutionality of preventive detention in his first major television interview, on CBS News’ 60 Minutes. “It’s long been an article of faith in the United States that a man is innocent until he’s proven guilty,” correspondent Mike Wallace argued. “The fellow we’re talking about has not been proven guilty yet, has he?” “In the instance, no,” Mitchell replied, “but the greater and better needs of society I think require the judge…to protect society. And if the track record is such…I think the judge has every conceivable right to keep that fellow in preventive detention.” Elsewhere, Mitchell complained of seeing the recidivist criminal “turned loose just because his mother lives in the same city.”19
In the end, Congress consolidated the Nixon-Mitchell proposals into several pieces of legislation: the District of Columbia Court Reform and Criminal Procedure Act, the Organized Crime Control Act, the Uniform Controlled Dangerous Substances Act. President Nixon signed them into law. “[T]hose who are fighting against crime will have the tools that they need to do the job,” Nixon declared at one signing ceremony, held at the Justice Department in October 1970 as Mitchell and J. Edgar Hoover looked on, adding, “they will do the job.”20
In pure statistical terms, Mitchell’s performance as a crime fighter was undeniably impressive. In 1970, for the first time in fourteen years, fewer crimes were committed in the District of Columbia than in the year before. By the following year, Mitchell had steered twenty-seven pieces of anticrime legislation to passage by Congress; doubled the number of organized crime strike forces; and secured indictments or convictions against half the top bosses in the nation’s two dozen largest organized crime syndicates.21 Baltimore, Kansas City, Pittsburgh, Seattle, and St. Louis all saw reductions in street crime;22 in the first three months of 1971, sixty major cities reported the same. The amount of heroin and cocaine removed from U.S. markets more than doubled, tripling in the case of marijuana.23 And by March 1973, the FBI reported that in the previous year—Mitchell’s last as attorney general—the national crime rate decreased for the first time in seventeen years.24
Forbes hailed him “the most effective gang-buster…and menacer to the drug menace who ever held the attorney general’s office.”25 “In city after city,” trumpeted U.S. News & World Report, “the grip of organized crime is being weakened.” Asked once if the war on Cosa Nostra was not “an endless process in which you catch one group of operators but others move in immediately to take their places,” Mitchell replied: “It used to be that way…. Now, with the use of electronic surveillance, we pretty well get the whole criminal organization.”26 Refusing to wiretap mobsters, as Ramsey Clark had, Mitchell likened to “fighting with one hand tied behind your back.” Over time, Mitchell’s views on combating organized crime gained wide acceptance; among the believers was his former Mudge Rose intern, a future U.S. attorney and New York City mayor named Rudolph Giuliani.
Indeed, it was Mitchell who proposed a new racketeering law authorizing action against legitimate businesses infiltrated by organized crime, a measure later known as the RICO (Racketeer Influenced and Corrupt Organizations) act, and employed, with devastating effect, against the New York Mafia. And it was Mitchell who narrowed the circumstances under which immunized witnesses could escape criminal prosecution—a provision later used, during Watergate, to compel testimony against the former attorney general himself.27
The severest charge against Attorney General Mitchell was that he systematically subordinated the mission of his department to the political fortunes of the president he served. The truth, as Nixon’s secret tapes later showed, was quite different. Far from “politicizing” the Department of Justice to serve Richard Nixon’s interests, Mitchell actually protected it from political interference, to a degree never popularly understood in his lifetime. “The most important feature of [Mitchell’s] tenure,” Richard Kleindienst wrote in 1985, “was the shield he erected between Justice and the White House staff.” “Nobody ever interfered with me at the Department of Justice, and again, it goes back to Mitchell,” Kleindienst reaffirmed in a 1992 interview. “Because of his stature and relationship with the president, he had insulated us from that.”28
Those quick to discount the opinion of Kleindienst because he was Mitchell’s deputy and friend must conversely honor that of the late Erwin N. Griswold. A lifelong Democrat, the silver-haired Griswold served as dean of Harvard Law School, president of the American Bar Association, and, from 1967 to 1973, as solicitor general of the United States, the official charged with arguing the federal government’s cases before the U.S. Supreme Court. There are few more respected figures in the history of American jurisprudence, and his appraisal of Mitchell’s stewardship at Justice reflected the feelings of many nonpartisan officials. “[Mitchell] ran a pretty good department,” Griswold recalled in 1994. “And it was always square shooting as far as I was concerned…. I wasn’t loyal to the president because I never conceived of my responsibility to be to represent the president. I conceived of my responsibility as representing the people of the United States. And I think that Mitchell rather welcomed that point of view, because on the whole it was somewhat rare in the government.”29
Offering a similar recollection was Thomas E. Kauper, a deputy assistant attorney general in the Office of Legal Counsel, which provides opinions on the constitutionality of an administration’s actions and policies. Since an adverse ruling from this office could potentially scuttle any presidential initiative, regardless of size or scope, any attorney general bent on “politicizing” the Department of Justice would necessarily seek to control the office’s work product; yet here again Mitchell took a hands-off approach. “Requests for opinions did not come through Mitchell, and they were never routed back through [him] unless they were quite spectacular,” Kauper recalled in 1988. “They generally were sent to the White House without the attorney general’s input.”30
One high-ranking federal official who did not share Mitchell’s hands-off approach to the career officials at Justice, his recognition of the need for institutional continuity despite political and philosophical changes at the top, was Richard Nixon. “Mitchell…didn’t want to be political,” Nixon complained in August 1972. The president had already arrived, more than a year earlier, at the depressing conclusion that John Mitchell would never be as ruthless and cynical in the manipulation of the levers of Justice as Robert Kennedy had been for his brother. “Actually, when Mitchell leaves as attorney general, we’re going to be better off in my view,” Nixon confided to H. R. Haldeman on July 1, 1971. “John is just too damn good a lawyer, you know. He’s a good, strong lawyer. It just repels him to do these horrible things, but they’ve got to be done.”31
DAYS OF RAGE
There are organizations in this country that are dedicated to the destruction of our society and our governmental institutions. If that is the description of a revolution, then a revolution is in process.
—John Mitchell, 19701
AS A VILLAIN of the sixties counterculture and antiwar movement, Attorney General John Mitchell attained special, almost iconic, status. Even more than the detested president he served, Mitchell represented everything against which rebellious youth were, in an age of antiheroes, rebelling. Where Richard Nixon harbored the politician’s longing for universal approval, occasionally making awkward overtures to the young, the attorney general suffered no such longings. Dutifully, Mitchell played his assigned role as the disciplinarian, imposer of law and order against radical chic, the dour authoritarian face of Nixon’s counterrevolution against hippies, pushers, and protesters.
Mitchell assumed office at a time when militant students’ faith in violence as a political instrument was reaching its apex, and when the response from the education establishment was feeblest and most misguidedly conciliatory. The Berkeley Free Speech Movement of 1964, the seizure of Columbia University in 1968, and the steady radicalization of American youth in the late sixties all disgusted Mitchell. His lawyer recalled
him expressing contempt “for these kids at Columbia, who he thought had everything in the world, running around raising hell.” Mitchell’s secretary said her first glimpse into his conservatism came when they watched a “mob” of students burning the American flag on television. “Those Goddamn bastards!” Mitchell spat, pounding his desk.2
President Nixon felt the same way. During his first month in office, he ordered his attorney general to draft new laws cracking down on college radicals, as evidenced in H. R. Haldeman’s previously unpublished notes.
[Tell] Mitchell…
there will be legis. very soon for action re campus
riots.
need precisely drawn plan…
have Justice draw up…
As with his war on crime, Nixon believed that appearing to crack down on campus militants mattered as much—if not more—than the reality of whether he did so. He demanded Mitchell flex some muscle, even if the problem proved intractable.
Doesn’t matter if we can do anything
must say something strong, though
show no sympathy
hit it hard…
Is Justice doing enough + are we publicizing enuf?
What they are doing in law enforcement
—esp. what they are doing re: campus stuff 3
On cue, the attorney general announced a plan to prosecute “hard-line militants” who crossed state lines to foment riots on college campuses. “A great deal of evidence has been collected on this aspect of campus disorders,” Mitchell said, calling the involvement of professional agitators “a very serious component” of the problem. In this Mitchell followed the lead of FBI director J. Edgar Hoover, who had told the Commission on the Causes and Prevention of Violence in September 1968: “Communists are in the forefront of civil rights, antiwar and student demonstrations, many of which ultimately become disorderly and erupt into violence.”4
It was on May 1, 1969—May Day to committed socialists, Law Day to the rest of the nation, which was theoretically obliged to spend it, by decree of President Eisenhower, in solemn contemplation of the law as “the heart and sinew of our Nation”—that the new attorney general took his great public stand against campus extremism, and enshrined himself forever in the student radicals’ pantheon of villainy. Speaking to the Detroit Bar Association, Mitchell declared that the time for patience with unruly demonstrators had come to an end, that “seizures of university buildings and imprisonment of university officials” were not “legitimate” acts of civil disobedience. “If there must be arrests,” Mitchell warned, “arrests there shall be.”
Testifying before a House subcommittee three weeks later, Mitchell—despite Nixon’s orders—opposed introduction of new laws to combat the problem. Such measures, he argued, might “play into the hands of the militants” better the existing laws should be enforced, Mitchell said, that moderate students should dissuade “the sheep from running with the wolves.” Putting a sharper point on these views was Mitchell’s deputy, Richard Kleindienst, who vowed “radical, revolutionary, anarchistic kids” would be “rounded up and put in a detention camp.”5
Mitchell did more than make speeches. He created a thirty-man “campus rebellion” task force and revived the Justice Department’s Internal Security Division, dormant since its McCarthy-era heyday, as a potent weapon against a new generation of subversive groups advocating violent overthrow of the government. He also took the unusual step, in March 1969, of personally announcing the indictment of eight of the nation’s most prominent radicals on charges of conspiracy and incitement to riot at the 1968 Democratic convention.
The eight indicted men included a smorgasbord of leading dissenters: Abbie Hoffman and Jerry Rubin, Yippie pranksters best known for media-savvy acts of civil disobedience like “levitating” the Pentagon and showering dollar bills, confetti-style, on the floor of the New York Stock Exchange; Tom Hayden and Rennie Davis, founders of Students for a Democratic Society (SDS) and veteran antiwar organizers; David Dellinger, a fifty-four-year-old pacifist and principal of the “Mobe,” or National Mobilization Committee to End the War in Vietnam; Black Panther Party founder Bobby Seale; and two academics, Lee Weiner and John Froines, widely seen as “acquittal bait” for fair-minded jurors.6
Mitchell’s predecessor, Ramsey Clark, had ignored “intense and growing” pressure to file charges against the rioters who had made mayhem in Chicago. The new attorney general saw the case differently, and his decision to authorize the indictments, and announce them himself, earned him everlasting enmity on the left. “Mitchell used grand juries to harry and hound dissenters,” wrote liberal historians Nancy Zaroulis and Gerald Sullivan. “It was the Chicago case that taught the Nixon administration how to use the grand jury process, originally designed to protect the rights of citizens, for malicious, contrary purposes.”
That the Chicago Eight promptly turned their trial into an unruly circus—“Fascist pig liar!” Bobby Seale shouted at the judge, before being bound and gagged—was hardly unanticipated by Mitchell and Nixon, who reckoned they would profit politically whenever “the movement” advertised its extremism. And, fulfilling his confirmation pledge, Mitchell expanded the Justice Department’s wiretapping program to include domestic subversion cases. He authorized surveillance on five members of the Chicago Eight. The disclosure was made in a June 1969 legal brief in which the Justice Department asserted the government’s inherent right to wiretap, without a warrant, any group the attorney general determined a threat to “attack and subvert the government by unlawful means.”7
Rennie Davis, chief organizer, with Tom Hayden, of the Chicago protests—and the only defendant, aside from Abbie Hoffman, to testify at the conspiracy trial—also recognized the signal being sent by the prosecution of the Chicago Eight. “I saw a shift in the attitude towards leadership in the antiwar movement,” Davis recalled. “Mitchell was really the architect of it…. He was primal—fundamental—to the architecture of both [our] being on trial as well as the political response to us that could be expected from the Nixon administration.”
Indeed, to many leading radicals, John Mitchell was the devil. In October 1969, Hoffman showed up outside the Justice Department wearing boxing gloves, challenging Mitchell to come out and fight. It marked the first time in postwar America—but hardly the last—that the Justice Department became the prime target of antiwar wrath in the Vietnam era. Nor was the rage limited to Mitchell’s workplace. The day after convictions were handed down in the Chicago Eight case, in February 1970, a thousand angry protesters rioted outside Mitchell’s residence, Watergate East, throwing rocks and bottles and screaming “Pig! Pig!” and “Burn the fucking place down!” The six hundred riot cops ringing the building unleashed two waves of tear gas, swung nightsticks “freely,” cracking at least two skulls and a collarbone, and arrested more than 145 people.8
Under Mitchell’s leadership, DOJ intensified its investigation and infiltration of militant left-wing groups. “One of the problem areas that I found when I got to the Department of Justice was the lack of intelligence in this area,” Mitchell told an interviewer in August 1969. “So we are putting together more of an intelligence apparatus than has existed.” This was no small feat. Twenty federal agencies collaborated on a program that one leftist historian later called “maximum surveillance, disruption, and harassment of the New Left.” The U.S. Army monitored 18 million civilians; the Civil Service Commission recorded the names of 15 million suspected “subversives” the Secret Service assembled 50,000 dossiers; the Department of Health, Education, and Welfare staffed two offices devoted to intelligence-gathering on student activists; and the Internal Revenue Service assigned seventeen men to track the finances of leading political organizations. On Capitol Hill, the House Internal Security Committee kept index cards on 754,000 alleged revolutionaries. CIA, ignoring statutory prohibitions on domestic spying, conducted surveillance on, and prepared psychological profiles of, more than three-dozen radicals. Hoover’s FBI put 2,000 agents
on the case.9
The New Left felt the heat. Unknown to the public at large until his nomination as attorney general, the stern-faced Mitchell, with his vows to crush the movement, quickly instilled in American radicals a palpable sense of dread. “Mitchell and the rest are out to destroy youth culture,” proclaimed a revolutionary group in Boston. An SDS member spoke of the “darkened” climate for activists, “more menacing” than under the previous administration; the Black Panthers’ David Hilliard declared America “a dictatorship headed by Attorney General Mitchell.”
“Mitchell was a symbol,” said Bill Ayers, a member with his wife, Bernardine Dohrn, of the infamous Weathermen. A Marxist offshoot of SDS, the Weathermen took their name from a line in Bob Dylan’s 1965 alienated-youth anthem “Subterranean Homesick Blues”: “You don’t need a weatherman to know which way the wind blows.” Initially they mounted resistance to “Amerikkkan” imperialism in armed street clashes with police. Later they assumed clandestine identities, changed their collective name to the Weather Underground, and began detonating bombs at courthouses, correctional facilities, police stations, the Capitol, the Pentagon. In Mitchell’s rise to power Ayers saw “one more step in…a kind of impending American fascism.”
