White-Collar Crime

White-Collar Legends: A Conversation with Tom Green

An interview with a white-collar legend.

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tom-greenAnd now for something completely different — and almost certainly more valuable than what I usually have to say.

I’m at Harvard Law School this week to teach at the Trial Advocacy Workshop, a fantastic winter-term course that I myself took many moons ago. The night I arrived, I had the privilege of meeting Tom Green, a longtime D.C. white-collar practitioner and one of the undisputed titans of the bar.

Tom started his career as an AUSA in DC and has had the kind of career that lawyers dream of. Watergate, Iran-Contra, Whitewater — Tom was there. He was the longtime chair of Sidley’s white-collar group and recently represented Dennis Hastert in the government’s misguided prosecution of the former House Speaker.

I told Tom about this column, and he was gracious enough to let me interview him about his life in white-collar practice and advice he would give people who are interested in doing that kind of work. What follows is a lightly edited transcript of our conversation. I hope ATL readers will find it as interesting as I did.

Tom, how did you get your start in white collar work?

I was discharged from the Army in 1967 and I always thought I wanted to be a trial lawyer. I had my law degree, but I wasn’t a practicing lawyer in the army, and I just came to Washington. I’d been born and raised in Minnesota, and I literally talked my way into the Justice Department down on Pennsylvania Avenue and found some people who were nice enough to talk with me.

One of the men sent me to U.S. Attorney’s Office, where I had a couple of interviews, and, notwithstanding a policy to only employ lawyers with experience in a law firm or who had clerked, I convinced them that, as a veteran (and with a few tears and shrieking), that they should hire me, and David Bress, the U.S. Attorney, consented. And so that became the start of a long career. And just to close the circle, after David Bress left the office, he invited me to practice with him, and he became the lead lawyer for one of the original Watergate defendants, Robert Mardian. I ultimately carried David’s bag through the congressional hearings and prepared everything for trial.

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On the third day of the trial, David collapsed in the courtroom, and Judge Sirica called me into his chambers and told me I was now Robert Mardian’s lawyer. So at age 31 — maybe I was 32 — I was the youngest defense lawyer by far in the courtroom, and that was the start. And from there, you know, it was just dumb luck.

Tell me about one of your most memorable experiences as a white-collar lawyer.

Well, there are a few of them. The Watergate case, in my view, was the most significant criminal case ever tried in the United States, and still is even as we speak. So for me at that age, it was an extraordinary moment. But then I moved into the trial of Governor Marvin Mandel, where I represented one of his codefendants, and I think living through the Iran-Contra affair was certainly an extraordinary experience for me.

I represented General Richard Secord, who was an extraordinarily decorated Air Force general and combat flyer. I was present at the very beginning, in the sense that I had met Secord and had met Oliver North through Secord even before the Iran-Contra story broke. And I remember when Eugene Hasenfus was shot down in Nicaragua while delivering arms to the Contras and that brought the whole affair into the open. And then there were a lot of very critical strategic moves on how to position these fellows so as to allow them to survive this, because the atmosphere in the country was very electric, and the President didn’t seem to know exactly what he had done.

I’ll just tell one quick vignette from the period. I went down to see Attorney General Ed Meese right at the outset to tell him that I was willing to bring Mr. North and General Secord in for an interview in return for immunity. The Attorney General and his colleagues had told me that they would consider it and they would maintain the status quo in the meantime. I said great, and I jumped in a cab and was going back to my office. The cab driver had the radio on. And I heard President Reagan fire North, and I thought, “That’s some status quo.” So I rushed back and had to regroup from there. There were a lot of incidents like that.

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What was your hardest loss?

I represented a husband and a wife in a Florida prosecution. She was a county commissioner, he was a lobbyist, and they were indicted in a kind of reciprocal indictment, I think about 32 counts—he for bribing her, she for soliciting or accepting bribes. But they were lovers, and many of the alleged bribes were things like paying rent where they were living and taking her to dinner—I mean, kind of crazy stuff, and so I tried to discourage the government from bringing the case. But we went to trial.

I tried it in front of a federal judge who has since passed away and who was very difficult and tried to limit everything I was doing in the courtroom. The long and short of the story is that they were indicted on 16 reciprocal counts. He was acquitted on all. She was acquitted on 15 of the 16, and the one count that she got convicted on was honest services fraud. The gist of that charge was that she had lied to newspaper reporters about her affair. In other words, when asked if she was having an affair, she said no.

I insisted that was not honest services fraud, and the judge disagreed with me. And here’s a lesson for lawyers: the closing argument of the prosecutor focused on this line to a radio station host. I knew I should object, and I knew that I was hearing something that was totally wrong. But I didn’t object. The jury was instructed but not sent to deliberate. They were sent home. The next morning, I came back to the courtroom and said to the judge, “I want to object to the closing argument. There’s no prejudice here, the jury has not yet begun to deliberate, and I’ve had time to think about it. That was a totally improper argument.” And the judge said, in so many words, get lost, you’re a day late and a dollar short. The jury came back, and that was the count they convicted her on.

I’ll tell another story on myself. I argued the case in the Court of Appeals. It was in the 11th Circuit. I was the last case on the docket. They had about ten cases. The court had not broken for lunch. I was in the courtroom all day. I think I got up about 3:00, and the judges said I had 15 minutes. I don’t even think they gave me 15 minutes before they asked me to sit down. And they affirmed. The story has a little bit of a happy ending, in that President Clinton commuted her sentence after she served a number of months, but I’ve always wondered if I should have turned that case over to an appellate specialist. It’s a disappointment even to this day in my life. Now, she’s a wonderful friend, and she’s gone on to do incredible things in her life, but it was a sad moment for me, and still is.

What should every white-collar lawyer know?

Well, if I have to look back and think about how my career has gone, I’d say that some of the success I’ve had is attributable to just old‑fashioned tenacity and not being willing to accept the terms that prosecutors give me or provide me. And just to keep pushing and pushing and pushing back on them. I think today, for whatever reason, there’s a tendency to start to discuss resolution of the case pretty quickly. And I think all of us as defense lawyers lose sight of the fact that there are openings and flaws in these cases, and a lot of mistakes are made by the government. I’m not trying to be personal in that respect, but there just are, and they can be exploited. And I think that, to be a successful defense lawyer, you’ve got to commit yourself to pushing until you’ve exhausted every possibility.

If you had it to do all over again, is there anything you would have done differently?

Well, we’ve been kidding, and I said I’d go to business school. But you know, I practiced law in an extraordinary period, when this kind of white-collar defense practice was first embryonic and then became a big staple at a lot of law firms. So I’ve been right through the growth period, and the independent counsel period, and all of those things that made this exciting. I think law firms today are a different mix of practice groups and other stresses, so I think I made it in at the right time and have no regrets that I’m leaving it at the right time.

What advice would you give a young attorney who’s thinking about going into white-collar practice?

I get that question a lot. There are a lot of young lawyers today who call themselves white-collar lawyers because they’re in big firms and they’re doing FCPA investigations or pharma investigations and things like that. Well, they are, and I’m certainly not here to be critical of any of that. But for me, a white-collar lawyer is synonymous with a defense lawyer, and a defense lawyer is synonymous with a trial lawyer. And you have to have the basic trial skills, because ultimately you’ll need to be in a position where you can push the government to the wall and say “let’s go try the case” and have some credibility in doing that.

So I would urge young lawyers to try to find—and it’s increasingly more difficult, I understand that—but to try to find an opportunity where they can get on their feet and try cases, whether that means a public defender’s office, a state prosecutor’s office, the Attorney General’s office, or a U.S. Attorney’s office. And there are still law firms that are trying cases. Maybe they’re not all criminal cases, but they’re still trying cases, and if you can try a civil case, you can try a criminal case. It’s a little bit like riding a bike—if you can ride one bike, you can ride another bike. I mean, there are differences, but it’s really the skills that are at the heart of this.

It’s tough, and those jobs are competitive, but I’d say keep an eye out, because often, you can migrate. After you’ve been in a place for a couple of years, you can go to another place and so forth. Over the years, I’ve tried a lot of cases, and I’ve taken a lot of lawyers with me in those cases. They’re now better lawyers than I am. So if you can kind of hitch your wagon to someone who’s trying a lot of cases, that’s a way to do it, too.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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