As the scene continues to build, the images on the screen become more and more abstracted, more out of control. “Different phases of the sequence showed on different screens and the spectator’s eye could jump from Zapruder 239 back to 185, and down to the headshot, and over to the opening frames, and on the TV wall the sets and frames were geared to patterns. The TV wall was a kind of game board of diagonals and verticals and so on, interlocking tarots of elemental fate, or synchronous footage running in an X pattern, and whatever the mathematics of the wall there were a hundred images running at once, here comes the car, here comes the shot.” The film, which has the clearest imaginable narrative, is abstracted in this scene—it’s playing on different TV sets, in various rooms, at varying speeds. It shatters the narrative and makes literal the deeper truth beneath, which is that in spite of its very clear story, it is incomprehensible. When I asked him about this, DeLillo nodded and added, “It’s as though the fragmentation will ease the shock of impact. But I don’t think it does.”
By the time we reach the climactic end of the scene, the film has played endlessly, looped constantly, in slow motion, close-up, at different speeds, to the people coming and going, running inside the different frames of hundreds of televisions sets. Finally, Klara sees the story of the film and its meaning transcending any particular time and place, understanding instead how it preys on our deepest fears of death and enacts our nightmares.
The progress of the car down Elm Street, the movement of the film through the camera body, some sharable darkness—this was a death that seemed to rise from the steamy debris of the deep mind, it came from some night of the mind, there was some trick of film emulsion that showed the ghost of consciousness. Or so [Klara] thought to wonder. She thought to wonder if this home movie was some crude living likeness of the mind’s own technology, the sort of death plot that runs in the mind, because it seemed so familiar, the footage did—it seemed a thing we might see, not see but know, a model of the nights when we are intimate with our own dying.
As we sat and talked at lunch, we eventually drifted off the topic of the Zapruder film. We talked about our families, and writing, and where he grew up and how I planned to finish the book in time for my deadline. Finally, as we were getting ready to say goodbye, he looked at me quietly, and with a mischievous smile, he said, “Would you like to turn off the eavesdropping device?” He had not forgotten that it was there.
I have no idea if my father was aware of Don DeLillo’s extraordinary description of the film in Underworld. He more than had his hands full with far more prosaic matters, such as negotiations with the government over the film. The ARRB finished its work in 1997 and handed the matter off to the Justice Department, which continued negotiations with LMH on just compensation for the film. In fact, the financial conflict stretched even farther back than that. During the eternal season of the “negotiated settlement,” before the ARRB decided to take the film, both LMH and the government had commissioned appraisals. Philip Moore at J. & W. Seligman had appraised it for LMH, and C. Cameron Macauley and Ernest D. Rose had done the same for the government. They had adopted radically different approaches to assessing the value of the film, which resulted in a vast gulf between their appraisals. Even the government’s highest offer and LMH’s lowest were millions apart, a fact that had made a settlement all but impossible.
The efforts to reach an agreement continued to sputter through 1997. Since the last thing my father wanted was to enter into litigation with the government, he took steps to avert this eventuality during the fall of 1997. At that time, my mother’s cousin Dana Freyer and her husband, Bruce, visited my parents. Our families have always been close, and my mother and Dana—in spite of having traveled very different paths in life—are kindred spirits. While they were together, Henry confided in Dana about the state of affairs with the government. He tended to lean on close family and friends, especially when it came to the Zapruder film, and Dana was no exception. Dana was the head of the arbitration and alternative dispute resolution practice at Skadden Arps in New York and had many years of experience in this area. She is a seasoned attorney, but she also balances her brilliant analytical mind with a generous heart and a deeply thoughtful manner. Henry and Dana could speak the same language when it came to the law, but she also implicitly understood and shared the deeper values that drove so much of his thinking. “Henry was explaining to me that the negotiations were really not proceeding satisfactorily,” she said, recalling their first conversation about the situation. “And he asked if I could get involved in having Skadden represent the family, in negotiating with the government.”
I was having this conversation with Dana on a mild summer day in late June 2011 while I was visiting her at her home in Scarsdale, New York. We were sitting outside on a tranquil patio, periodically being interrupted by her toddler grandson Henry—named in memory of my father—who was busily coming and going. Dana explained to me that after this conversation, she spoke with Robert Bennett, a partner in Skadden’s DC office at the time who was a well-known and highly respected litigation attorney, famous for having defended President Bill Clinton in the Paula Jones lawsuit, among many other high-profile cases. They took on the case, bringing in attorneys Richard Brusca and Harold Reeves. Jamie remained an integral part of the process, and our first cousin Adam Hauser—Myrna’s second son, who was very close to my father and practiced law in Texas—remained closely involved, as well.
At this point, LMH still had the option of challenging the taking of the film in court. Both sides show in their internal records that this was a viable legal question and believed that such a challenge could potentially result in the reversal of the taking. In addition to interviewing Dana, I visited Bob Bennett at his office at Hogan Lovells, and Rich Brusca at his home on the Eastern Shore. Both of them provided invaluable insight into the process of working through this problem. Brusca explained: “We thought that a very good case could be made that the government just was wrong in taking the film and could be challenged [in court].” Although the letters from the LMH attorneys to the government repeatedly put this forward as part of the legal strategy to keep the pressure on the Justice Department, these same lawyers—Bob, Dana, and Rich—each independently stressed that Henry did not want to sue the government for the return of the film. According to Brusca, “Your dad told us… ‘Well… it probably is important for the government to have it. So I really don’t want to challenge that. Let’s just figure out how much we can ask for and let’s just get it over with.’” Dana explained it further: “As lawyers, we were leaving no stone unturned, so to speak, and we did ask him, ‘Do you want to resist the taking?’ And he was clear that he did not want to resist the taking. He wanted [the film] to be with the government. He felt that it was proper [that it] should be publicly accessible as an American historical document.”
The problem was that if LMH didn’t resist the taking in court, that still left the matter of determining just compensation. If the two sides could not reach a negotiated settlement, the matter would have to be resolved by some higher authority. The normal course of action would be to settle the issue in the US Court of Federal Claims. Brusca explained to me that LMH didn’t want to go this route, partly because the Court of Federal Claims is known for being “more pro-government than most courts” and also because, if the Justice Department didn’t like the outcome, they could appeal the decision. Thus, the dispute could go on indefinitely. That was the last thing our family wanted.
But there was another possibility, which was to convince the government to go to arbitration. Unlike the open-ended and contentious nature of litigation, such an arrangement would mean that an independent panel of arbitrators would render a decision on the matter, with no possibility of appeal, and both parties would abide by it. Which brings us back to Dana. She told me that Henry asked her if she might be able to help “in structuring an arbitration proceeding in which the film’s fair market value would be determined by a panel of imparti
al arbitrators. This was fairly novel, as I recall. Because the government traditionally had not… I don’t know if never but, as I recall, had not in the past agreed to binding arbitration.” So while Jamie and Henry continued to try to reach an agreement with the Justice Department, Dana and Bob Bennett began working on a proposal for an arbitration proceeding to submit to the government.
In mid-June 1998, Washingtonians opened the Washington Post to find an article about the Zapruder film taking up half of the front page above the fold. The headline read “Haggling over History; Zapruders, U.S. Far Apart on Price of Kennedy Film,” with a black-and-white frame from the film of Jacqueline Kennedy climbing on to the back of the limousine. Major newspapers and magazines, including the New York Times, the Dallas Morning News, and Newsweek, ran similar articles with similar headlines. It was a mere six weeks until the government would officially take possession of the film and, as the article explained it, the two parties were far from reaching an agreement on just compensation. “They are millions of dollars apart. The Zapruders have asked for $18.5 million for the film and the copyright, informed sources said, and have hired Washington power lawyer Robert S. Bennett to press their claim. The Justice Department contends that price is much too high and has offered $750,000 while suggesting it might go as high as $3 million.”
As the paper said, LMH proposed $18.5 million, based on the Seligman appraisal, although additional appraisals conducted by other experts had come in as high as $25 million or even $41 million. LMH had done a separate valuation of the “intangible rights” in the film—i.e., the copyright—which came in at $10 million. Taking it all into account, the original film and its copyright appeared to have a staggeringly high potential value. And while $18.5 million was a hell of a lot of money, it was many times less than what the film would sell for on the open market. The government’s appraisal of the in-camera original film by Macauley and Rose had put the film’s value at $750,000. Ultimately, the government went up to $3 million for the original film, and at a certain point, LMH indicated that it might settle at $9 million or $10 million. Meanwhile, the Justice Department decided to exclude the copyright to the film from the taking, on the grounds that without it, the value of the artifact itself would be considerably less. It was a move that outraged assassination critics, who felt that allowing LMH to retain the copyright left our family in control of the use of the film in exactly the way they had resented for so long. Attorney Mark Zaid even filed a lawsuit to challenge the government on this matter. As the months passed, the negotiations again broke down. If the government did not accept the proposal for arbitration, the matter would be headed for litigation.
At the end of June 1998, my father wrote a letter to the family. Such direct words from him about the film were extremely rare. “We have made one final proposal to the Justice Department,” he wrote. “You can be both proud and assured that we have followed through on the standard set by your grandfather in his original dealing with the film. We have done everything reasonable to contribute to the United States ownership by offering to waive any challenge to the legal authority to take the film and by proposing to accept an amount substantially below estimates of fair market value. Regardless of the outcome, I think we have acted properly.”
The last salvo to the government was no longer an offer to try to reach a financial settlement. It was the proposal for arbitration, the outcome of his initial conversations with Dana Freyer from the previous fall. What my father didn’t write in his letter, and what I didn’t fully realize until I spoke with Jamie much later, was that all of this was taking place against the backdrop of an uncertain but potentially serious deadline. Jamie explained to me that there is a six-year statute of limitations on filing suit for just compensation (or for filing a suit contesting a taking) in the Court of Federal Claims. It was true that the ARRB had declared it was taking the film on April 24, 1997, but the JFK Act had been passed on October 26, 1992. The government could conceivably claim that it was the passage of the Act that made the Zapruder film the property of the US government and that the statute of limitations ran out six years after that date. That was a mere four months away from the date of my father’s letter. Regardless of how likely it was the government would act on this strategy or that it would work if they did, this was not a chance that Jamie, or any attorney, was going to take. LMH and its legal team had to either secure an arbitration agreement or file a lawsuit before October 26, 1998.
Bob Bennett wrote in a letter to assistant attorney general Frank Hunger, “In a final effort to resolve this matter without litigation, LMH is prepared to… submit the question of value to independent arbitration… We understand that the US requires that an upper limit be placed on the results of the arbitration. LMH is prepared to accept a maximum of $30 million on the results of binding arbitration for the value of the Film and all intangible rights (copyright, etc.). No agreement on any minimum outcome is necessary.” In other words, if the government and LMH could sort out all the issues—primarily the number of arbitrators and a mutually agreeable method of selecting them—the upper limit, or ceiling, would be $30 million. There would be no floor.
I spoke at length with my father’s law partner and longtime friend Roger Pies about this. Roger is a quiet man, rather shy, and he tends not to seek the spotlight. Even though they were very different in personality, he and my father were perfectly matched in wit, brilliance, and knowledge of the law. My father relied greatly on him over the years for advice and counsel in many areas, not just the Zapruder film. I interviewed Roger at my home in the early days of thinking about this book. He brought me stacks of papers about the film, and he spoke with me for nearly two hours, reflecting on every aspect of the government taking, its approach to valuing the film, my father’s thinking, the ups and downs of the process, and the stresses that were involved.
At one point, Roger told me that he encouraged Henry to accept the arbitration agreement without a floor, or a minimum value, that the arbitrators would have to assign the film. “It was a leap of faith. Big, pretty big leap of faith.” A big part of the risk was that in binding arbitration, there is no possibility of an appeal. If the arbitrators decided that the film had a value of one dollar, nothing could be done about it. But Roger understood Henry, encouraging him to have faith in the process. He reminded him, “You know you’re going to present it properly, you’re going to have good representation. You’re going to do the very best you can and you’re going to have reasonable people involved.”
From my point of view, the terms of the arbitration agreement reflect my father’s final act of good faith in trying to resolve the issue with the government. But I recognize that there is another point of view. I can see how a person could ask why, if he was such an altruist, he fought for any value at all, let alone for a higher value than the government was offering. If he was so committed to the film remaining in the government’s possession, and he wasn’t trying to exploit the film for money, why not donate it? Here, I think, my father’s background and character are of critical importance. For one thing, I believe he saw a difference between trying to persuade the government not to take the film and letting them off the hook for just compensation once they had taken it. He believed in and even revered the law, regarding it as the best chance of ensuring fairness and justice in a random and unpredictable world. For him, when the government took the film, they implicitly committed to compensating our family for that taking. It would not have been in his character to disregard the consequences of the law even if it meant doing something that was personally uncomfortable for him.
At the same time, it would be dishonest to ignore the truth of the money. I asked my father about this at some point during these years. Not knowing everything that had already happened, I wondered aloud if we were right, morally speaking, to be fighting for even a partial value of the film. He didn’t school me on all the efforts he had made to work things out with the government. But I remember he fixed his large light-blue eyes
seriously on me and said simply, “I don’t feel that our family is in a position to make an $18 million donation to the federal government.” In the easy way that privileged, well-educated children can think they know everything, I remember thinking that this was a clever way to answer my question. But now that I am an adult, and I have children of my own, I hear his answer very differently.
He was in a tough spot. He wanted the government to have the film—every person who worked with him said this, and in everything he wrote, said, and did, he reaffirmed this basic conviction. He had done everything he could to behave ethically and responsibly in this regard and to avoid exploiting the film for its full value. Still, his moral obligations extended beyond the American people and the government. They extended to his own family, his wife and children, the grandchildren that he hoped he would see, not to mention his sister, her four sons—whom he loved like his own—and their wives and children. At the end of the day, he wanted to protect us, too.
When it comes to money, there is a fine line between altruism and foolishness, realism and greed. Each one of us has to walk that line for ourselves. Our grandfather did it when he made the deal with LIFE. Our father did it by neither donating the film to the government nor fighting to get it back and selling it to the highest bidder. And although those nuances did not get picked up in the public discourse around the film, they guided our father’s actions in everything he did. I don’t believe he ever wavered in his absolute conviction to deliver what he felt we owed to the American people and also to protect his own family. But accomplishing this was no easy task.
Before any decision was reached about an arbitration agreement, a new development once again raised some of the film’s most long-standing and contentious issues. That summer, a company called MPI Home Video, founded in 1976 and headed by brothers Waleed and Malik Ali, was putting the finishing touches on a video about the Zapruder film, Image of an Assassination: A New Look at the Zapruder Film, for distribution to the public. Years before, MPI—video distributors for ABC’s Nightline and leaders in nonfiction video distribution nationwide, as well as managers for the North American rights in the British Pathé newsreel collection—had approached Jamie with the idea of doing a documentary about the Zapruder film. Henry had flat-out refused.
Twenty-Six Seconds Page 35
