by Larry Tye
In 1963 Bobby gave the green light to sue Cohn for perjury and obstruction of justice. The government alleged that Cohn had rigged a grand jury to prevent his friend and three associates from being indicted for swindling a company they had invested in, then lied about it. Cohn said Bobby’s lawyers had “unleashed all the power they had” against him by, among other things, subpoenaing “every client I had,” calling “a thousand witnesses before grand juries, concerning me,” and monitoring not just his mail but his attorney’s. Indeed, the trial judge decried the mail watch as something “that smacks of Russia rather than the United States.” It also was precisely the kind of tactic Cohn had used so effectively against alleged subversives earlier in his own career, in the very New York courthouse where he now stood as a defendant. Was it, as Cohn and others charged, a simple case of making a personal dislike a federal matter? Bobby’s hatred of Cohn is not in doubt, nor is his prodigious capacity for holding a grudge. But in this instance, says the government attorney who handled the case, the attorney general was wary of how it would look to bring an indictment against his old adversary. Gerald Walpin says he was summoned to Hickory Hill on a Saturday afternoon to lay out for the attorney general his “clear” evidence that Cohn “had lied and had obstructed justice,” along with any doubts Walpin might have about winning a conviction. “He said to me at the end of the session, ‘I realize I may get mud thrown at me in the media. I don’t care. I’ll take it. We should do the right thing. You believe they’re guilty, that the indictment is well founded, you go ahead.’ And we did.”
Cohn was acquitted, twice. He believed those verdicts vindicated him and he pointed an accusing finger back at Bobby for bringing the case. Walpin disagrees, explaining that the entire jury was dismissed in the first trial when one juror’s father died. After they were discharged, Walpin adds, “the foreman said, ‘Your Honor, we had been eleven to one for conviction earlier this afternoon, and then the last holdout agreed to conviction. But we thought, with such an important matter, that we oughta sleep on it overnight to make sure everybody’s still in agreement.’ The judge said, ‘I’m sorry, there’s nothing we can do about it. I have discharged you.’ ”
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AS THE HEAD of a bureaucracy with thirty-two thousand employees and a $400 million budget, Robert Kennedy could and did set broadly ambitious goals like attacking organized crime and rooting out political corruption, which reverberated across the worlds of law enforcement and politics. At the same time this attorney general had the capacity to look down as well as up, focusing on the individual stories of people desperate for justice. Junius Scales was one of those small stories that reflected Bobby’s tender side.
Born to an affluent family in Greensboro, Scales loved books as much as he hated the Jim Crow system of racial segregation that governed life in the South in 1920. At the young age of sixteen he enrolled at the University of North Carolina, and the day he turned nineteen he joined the Communist Party. Over the next eighteen years he became a local organizer, then chairman of the state party, positions from which he could battle Jim Crow, then Joe McCarthy. On the evening of November 18, 1954, the FBI arrested Scales on a quiet street in Memphis, binding him in leg irons and carting him off to stand trial in Greensboro. The charge: violating the Smith Act of 1940, which made it a crime to belong to any group that advocated the violent overthrow of the United States government. The verdict: guilty, which his hometown paper said was “what he deserved.” After more than six years of new trials and appeals, the Supreme Court upheld his conviction by a five-to-four vote and he began serving a six-year sentence at the Lewisburg Penitentiary in Pennsylvania.
The Smith Act itself seemed un-American, outlawing the advocacy of ideas rather than the commission of misdeeds, and reflecting the anticommunist fever of postwar America. Scales’s punishment, in turn, seemed an especially poor fit for his supposed crime. He was the only American ever imprisoned for merely belonging to the Communist Party, as opposed to participating in a violent or subversive activity. His sentence was longer than that of anyone who had been convicted of actual political violence or subversion. By the time he was jailed under the Smith Act’s “knowing membership” provision, he no longer belonged to the Communist Party, having become disillusioned first by the Soviet invasion of Hungary, then by revelations of the murderous crimes of his onetime idol, Joseph Stalin. His real crime, the FBI made clear, was refusing to name names of other former or present party members. On the bureau’s say-so, Robert Kennedy’s Justice Department weighed in against a reduction in Scales’s sentence. That disappointed but didn’t surprise the growing groundswell of Scales supporters, which included the civil libertarian Roger Baldwin, the labor leader David Dubinsky, the New York Times editorial page, and nine of the twelve jurors who had convicted the curly-haired North Carolinian. The only thing that annoyed the attorney general more than the Communist Party was being told what to do by smug liberals or The New York Times.
But Bobby was changing. He had begun to distinguish saying provocative things from actually doing something wrong. He was more open to admitting a mistake. He was also less afraid to break with the unbending J. Edgar Hoover, who insisted Scales stay behind bars until he named his ex-comrades. The New York Times’s Anthony Lewis remembers first raising the Scales case with Bobby just when the administration was trying to persuade Southern senators, who were as fervidly anticommunist as they were pro-segregation, to dial back Jim Crow. The attorney general turned on him angrily, saying, “ ‘You liberals, you think we can just do anything we want and it will all come out your way. But if we did anything for Junius Scales I can tell you that it would be the death of our civil rights legislation.’ I said, ‘Okay, okay. You know more about it than I do.’ ” A month later, at his own birthday party, Bobby took Lewis aside and in an “almost shy way, he said, very briefly, ‘We’re going to let your friend Scales out of prison.’ That’s what he was like. It bothered him. All the things he said to me, he was angry because he knew it was wrong, and he didn’t think he could do anything about it. But then he thought he would do something about it. And he did.” What he didn’t tell Lewis was that in order to get JFK to commute Scales’s sentence, he had to buck not just Hoover but three other citadels against the Red Menace—the Senate Internal Security Subcommittee, the House Committee on Un-American Activities, and his own Internal Security Division. He also didn’t mention that Scales would be let out of jail on December 24, 1962, with a guard on duty yelling to him, “We just got a telegram from Bobby Kennedy, and he says we gotta get you home by tonight in plenty of time for Christmas.”
The attorney general’s turnaround on Scales signaled a man in transition, much as his nation was. Bobby was slowly shedding the Cold War persona of his McCarthy days, but he hadn’t yet become the liberal icon we remember. He cracked down on Communist Party members who failed to register as agents of the Soviet Union, indicting them and the party. He had a union leader in San Francisco arrested for being a Communist. Yet he intervened to grant visas to leftists such as the Mexican painter Juan O’Gorman when he was invited to speak by several American universities. He turned down a request from the shah of Iran, and the U.S. State Department, to ship back to Iran thirty students the shah accused of being Communists. And he hounded from office an obscure bureaucrat named Otto Otepka, who had overseen security vetting at the State Department since the McCarthy attacks. Otepka angered the attorney general by leaking classified files to Congress suggesting that the administration was lax in cracking down on subversives, and by refusing to clear appointees whom Bobby trusted but Otto didn’t. By the time he was fired in November 1963, Otepka had become a cause célèbre for anticommunists. “The lesson of the Otepka case is plain,” wrote the conservative scribe Frank Kluckhohn. “The State Department security against penetration by Communists and against other security risks has been smashed.” That smashing, Kluckhohn said, was done “at the personal order of Bobby Kennedy.”
If th
ose moves alienated his old anti-Red allies, at least some of his liberal critics applauded the changes they were seeing, starting with his pledge to give meaning to the phrase “equal justice.” “I have a strong feeling that the law, especially in criminal cases, favors the rich man over the poor,” Bobby said in his first interview after taking office. Tame language by today’s standards but not so then, and not for the head of the Justice Department. The inequality was particularly glaring on the issue of bail. The rich could afford it, the poor could not, and Bobby took critical first steps to make the system fairer. He also helped pass a law ensuring that destitute defendants could get a lawyer in federal criminal cases. And he set up the Office of Criminal Justice to explore other equity issues in law enforcement, including something as simple as ensuring that poor people could get transcripts of their trials in order to file appeals. Hoover dismissed such moves as the “maudlin proposals” of “misguided sentimentalists.” Patricia Wald, former chief judge of the influential U.S. Court of Appeals for the District of Columbia Circuit, saw them differently. “Criminal justice was just not that much of a focus for any previous attorney general,” Wald says. Kennedy’s sensitivity to these human-sized issues as well as the headline-generating ones—and his determination not just to talk but to act—was, according to Wald, “very unusual.”
More unusual still was a cabinet officer engaging with issues facing American Indians, which even liberals had not yet done. The Justice Department’s Lands and Natural Resources Division handled compensation claims for territory that the Indians maintained had been stolen from them when federal treaties were broken. The department’s stock answer to any claim had been “no,” after which the cases headed to trial. Bobby instructed Ramsey Clark, who ran the division, to settle as many suits as possible even if that cost the government more, which he knew it would. His bond with Indians would intensify over time, and would come to be about much more than land. “That such conditions can be allowed to prevail among a people uniquely entitled to call themselves first Americans is nothing less than a national disgrace,” he said at a 1963 meeting of the National Congress of American Indians. He would later confide that “I’d like to be an Indian, but it’s too late.” Maybe not. The Congress’s ninety tribes bestowed on him a war bonnet and the name Brave Heart. The Senecas gave him their own tribal title: Above the Crowd. “You asked me why he had this thing about Indians,” said Clark. “It didn’t have anything to do with the law, it had to do with justice with a small j, with doing right and being fair by these people that we had pushed around for so long.” John Nolan, a Justice Department aide, offered a less high-minded explanation: Indians were like Bobby—soft-spoken until you riled them up, at which point they raised hell.
Bobby knew that justice denied and Indian rights were part of a more pervasive problem of poverty in America. Bureaucratically, that was the jurisdiction of the Secretary of Health, Education, and Welfare. Politically, the attorney general cared too much and was too close to the president to be denied. Realistically, nobody in government understood enough about the origins of poverty to know how to root it out, so nobody really objected when he jumped in. Bobby’s approach was to call on anyone he needed in government no matter where they worked and to try everything. He started with the kids he cared about most and entrusted the leadership to a childhood buddy he knew wouldn’t be deterred. Dave Hackett knew even less than Bobby about the problem, but both believed that kids in trouble were more like the misunderstood gangbangers in the red-hot movie West Side Story than the “beastly punks” that Hoover had branded them. With Bobby overseeing it, Hackett’s Committee on Juvenile Delinquency funded programs in Harlem, on New York’s Lower East Side, and in fifteen other cities. Each treated youth crime as a matter of poverty, not individual misbehavior. The key was to seed the projects with federal money and keep the control local, with poor people helping decide their own fate. Funding went to preschools, vocational training, and any other governmental fix Bobby and Hackett could conjure up. Public money helped attract private. The attorney general was so committed that in 1963, he invited every cabinet member but the secretary of state to meet with Hackett and his insurgents, locking them in his office for four hours of brainstorming on ways to battle poverty. The most enthusiastic participant was Secretary of Defense Robert McNamara, who agreed that this was the single most important challenge facing America. Bobby wasn’t in office long enough to test a domestic Peace Corps and other dreams, but when Lyndon Johnson picked up the vision of a War on Poverty, his building blocks were precisely the pilot projects set in motion by Bobby and Hackett.
Those initiatives further showcased the evolving Bobby Kennedy. He had grown up an outsider and underdog within his family and would always identify with both. Campaigning in places like West Virginia had shown him firsthand what poverty and delinquency looked like. As attorney general he had the resources and grabbed the authority. There was no stopping him once mistreatment of Indians, child poverty, or any other cause had earned his favorite judgment word: “unacceptable.” To him the most unconscionable of sins was indifference. Bobby’s drive and enthusiasm were infectious, instilling in those around him the feeling that they had the power to change the world and the responsibility to try.
But as ever, he was impatient and sometimes callous in the way he treated flesh-and-blood humans as he battled on behalf of humanity. Patrick Anderson, an information officer for Hackett, saw his best and worst instincts on display in a down-and-out neighborhood of Washington where, thanks to Bobby, a school swimming pool would for the first time stay open through the summer. “As he inspected the pool,” recalled Anderson, “a blustering bureaucrat from the recreation department approached him, hoping for commendation. Instead, he was met with a machine-gun burst of questions:
Q. How deep is the shallow end of the pool?
A. Three feet.
Q. What about children under three feet tall?
A. They can’t use the pool.
Q. Why not use a wood platform to raise the shallow end?
A. It would rot.
Q. Why wasn’t the pool to be open on Sundays?
A. None of the pools was ever open on Sundays…
“By then, the poor man, suddenly become an enemy of tiny tots and Sunday swimming, was almost incoherent. Kennedy turned and walked away without a word,” said Anderson. “Minutes later, as he left the pool, hundreds of Negro children ran after him, shouting his name and reaching out to touch him. Kennedy moved among them slowly, smiling, rubbing their heads, squeezing their hands, reaching out to the smaller ones who could not get near him. This was not done for show—there were no reporters or photographers along—but because he loved those slum children, loved them as much as he disdained the fool of a bureaucrat who could not give him the answers he wanted.”
He loved crippled children, too. What politician didn’t? Upon meeting a ten-year-old girl in a wheelchair at the Washington Horse Show, he invited her and her classmates to visit him at work. “Her teacher didn’t believe her,” says James Clayton, who covered the Justice Department for The Washington Post. “She kept pushing and finally the teacher telephoned up Bobby’s secretary, Angie Novello, and Angie said, ‘Oh, we’ve been waiting for your call.’ So late one evening, after the press was gone, a school bus pulled up and all these kids, handicapped kids, were brought up to Bob’s office. He said to them, ‘Would you like to talk to the president?’ They said, ‘oh.’ He picked up the hotline to the White House….The president said two or three sentences to them and those kids went out floating.” Stories like that, Clayton adds, are one reason the press warmed to the attorney general. “He didn’t want it published. He would have objected if we published it.”
He never stopped advocating for the impaired and the impoverished, but he was less fearless in policing the errant rich. Antitrust lawsuits are traditionally the best weapon an attorney general has to keep big business in line. Bobby said that bigness worried him, but while he threa
tened to sue the most brazen of the monopolists, big oil and big steel, he never followed through. Instead he took the politically safe road of attacking price fixing while doing less actual trust-busting than the business-friendly Eisenhower administration had done. And at times he even appeared in court on the side of megacorporations like the dominant pipeline company in the Far West, drawing this rebuke from his old friend Justice William O. Douglas: “The Department of Justice knuckled under to the El Paso Natural Gas Company.” Business frankly bored Bobby, as it did all of Joe Kennedy’s offspring. But the attorney general knew he could neither afford to look like a toady to the robber barons, especially since his father was one, nor seem antibusiness at a time when the economy was sluggish. So he vacillated, one day telling the Economic Club of New York that “this administration and any administration has no choice but to be ‘pro-business,’ ” then assuring the public that “we’ve done a good job” in trust-busting “and we’ve done it with vigor.”*9
Ask any businessman in the 1960s, and the abiding memory of Bobby’s days at Justice is sure to be his “Gestapo-like” tactics during the great steel face-off of 1962. The crisis was sparked when the major American steel companies announced price increases just after the Steelworkers Union, under pressure from a White House worried about inflation, had agreed to forgo wage hikes. The Kennedys felt double-crossed. An outraged Bobby vowed to “play with a hard ball”—convening a grand jury, issuing subpoenas, and even scouring expense accounts to determine whether U.S. Steel and the other giants had colluded. “It was a tough way to operate,” the attorney general acknowledged, “but under the circumstances, we couldn’t afford to lose.” His probes included whether Bethlehem Steel president Edmund Martin had in fact said one day that prices should be lowered and the next that they should be raised, hinting that he had switched gears to fall in line with his fellow conspirators. With newspapers differing on what Martin had said, Bobby asked the FBI to talk to the reporters and to the Bethlehem president.
