January 1964: Distrust of the FBI Grows


OUR PRIORITIES IN EARLY JANUARY WERE QUITE CLEAR. WE NEEDED GOOD lawyers and we needed them quickly. We had to organize the investigation in some sensible fashion. We needed to instruct the lawyers in how to undertake their assignments in a way best designed to meet the commission’s needs. Within the first two weeks of the month we had largely achieved these goals.

On January 14, the FBI delivered two supplemental reports to the commission that it believed provided all the answers the investigation required. One report extended the FBI’s December report about Oswald and included the laboratory examination of the president’s clothing, the paper bag in which Oswald carried his rifle, and the bullet fragments found after the assassination. The other extended its December report covering Ruby’s killing of Oswald, reflecting the many interviews of Dallas police officers and reporters who were in the police headquarters basement on the morning of November 24, 1963.

The FBI Oswald report included analysis of the now famous Zapruder film. A Dallas manufacturer of women’s clothing named Abraham Zapruder produced one of the most important pieces of evidence in the investigation. When the president’s motorcade turned onto Elm Street from Houston Street and entered Dealey Plaza, Zapruder was filming with an eight-millimeter camera, intending to add to the family’s collection of home movies. Zapruder focused his camera on the limousine as it passed almost exactly in front of, and slightly below, his position. The Zapruder film captured Kennedy’s reaction to the shot that pierced through his throat and the one that struck the back of his head and killed him. Zapruder’s film contained approximately twenty-six seconds of footage—perhaps the most scrutinized film in American history.

Zapruder knew immediately the value of his film. He made three copies right away and gave two to the Secret Service. On the morning of November 23, he sold the print rights to Life magazine for $150,000. After many years of legal wrangling regarding ownership of the film and its permissible use by the media and others, the US government purchased the film from Zapruder’s heirs in 1999 for $16 million. The original version and the two given to the Secret Service are now in the National Archives.

The report on Oswald also provided additional information about his personal history, relatives, associates, finances, affiliations with political groups, forged documents, travel to Mexico, activities in the Soviet Union, and plans to return to the Soviet Union, as well as the murder of Officer Tippit. The FBI pointed out that its agents had interviewed more than two thousand people. Based on these interviews and the physical evidence, the FBI concluded that Oswald was the assassin “although no clear-cut motive has been established.” There was no evidence that he was assisted by any other person, group, or government; there was no evidence that he had been recruited or assisted by the Soviet Union intelligence services; and there was “no proof of any prior contact or association between Oswald and his murderer, Jack Leon Ruby.” The FBI advised: “Leads are still being covered, and the FBI will continue to check out any additional allegations or information which come to its attention.”1

In its twenty-four page supplemental report on Ruby, the FBI concluded that its investigation “thus far has not established any connection between Ruby and Oswald or that Ruby conspired with any individual including police officers.” The FBI advised: “Investigation is continuing on an expedited basis to exhaust every logical source of pertinent information.”2

The FBI’s supplemental Oswald report did not revisit its earlier conclusion that two bullets struck the president and a third wounded Connally. It reported that the bullet that entered the president’s back “had penetrated to a distance of less than a finger length.”3 This was at odds with the conclusions of the autopsy doctors at Bethesda’s National Naval Medical Center. After consulting with doctors at Parkland Hospital, the autopsy doctors had concluded as early as November 23 that the bullet entering the president’s back had exited through his neck, and the Parkland doctors had agreed.4

The failure of the FBI to correct its earlier error on such an important matter created an immediate stir among the lawyers now on board. The FBI had not yet recognized that its conclusion that the first shot hitting the president had not exited from his body was inconsistent with the medical and ballistics evidence. That the FBI would make a mistake wasn’t especially astonishing. Based on my own experience with the FBI and comments from veterans in the criminal division, I was aware of the bureau’s investigative limitations. The FBI’s rivalry with other agencies and its bureaucratic rigidity were well known in Washington, as were Hoover’s titanic sensitivities.

Nonetheless, I was amazed by the enormity of this error. This was a serious mistake regarding one of the most critical factual issues in the investigation. The conclusion was founded on the responses to hypothetical questions on November 22 of a Parkland Hospital physician based on his limited knowledge of the president’s wounds. Its consequences lasted through the decades, as critics enthusiastically embraced the FBI’s misstatement as confirmation that the commission’s findings about the president’s wounds and the single-bullet theory were false. At the commission, we worried about what other, perhaps less detectable, errors might be found in the FBI reports on the assassination and the murder of Oswald.5

image The Lawyers Get Their Assignments

At the commission’s last meeting in December, Warren had sketched out how the staff would investigate the assassination. He envisioned individual lawyers assigned to specific parts of the investigation, such as Oswald’s life, Ruby’s life, details of the assassination, and aspects of the work of the FBI, CIA, and Secret Service. He expected Rankin to propose an organization based on his comments for the commission to consider.

When I arrived at the commission, I started working on a tentative outline of the commission’s investigation. I didn’t know what the chief justice had suggested at the commission meeting, but I had with me the criminal division’s proposal of how to organize a comprehensive investigation of the assassination. I augmented that draft in light of what I had learned since coming to the commission.

I gave my eleven-page outline to Rankin on December 30. In it, I identified five areas for investigation: (1) the basic facts about the events on November 22; (2) the facts that pointed to Oswald as the assassin; (3) Oswald’s background and possible motive; (4) the facts about the murder of Oswald by Ruby; and (5) the security measures that had failed to protect the president. If he approved, I proposed that Rankin submit the draft outline to the commission members.6 Rankin welcomed the suggestion.

Rankin made one change. He decided to divide the section dealing with Oswald’s background and motive into two sections—one dealing with his activities in the United States and the other dealing with his foreign activities, especially his stay in Russia and his trip to Mexico for the stated purpose of returning to the Soviet Union. Rankin submitted the revised outline to Warren, who sent it to the commission members on January 11. Warren told the members that the proposed organization of the commission’s investigation was necessarily tentative and encouraged them to “advise Mr. Rankin of any suggestions they wish to make regarding this outline.”7

Little did Rankin and I realize that our tentative organization of the commission’s work—in particular the focus on Oswald as the likely assassin—would be cited for decades as evidence that the commission had prematurely concluded that he was the assassin before any thorough and impartial inquiry had been undertaken. I believed then and now that any effort by the commission to embark on an investigation that ignored the facts implicating Oswald in the killing of the president and Officer Tippit would have smacked of pretense or naïveté that would have thoroughly impeached the commission’s credibility. We had to take as a starting point the facts that had been developed (and publicized worldwide) and make clear that the commission’s final determinations would not be made until its investigation had been concluded.

By this time, our staff was growing. Earlier in January, Rankin had moved on my recommendations for hiring junior lawyers. In addition to Belin, Specter, and Stern, Rankin invited Burt Griffin and David Slawson to join the staff. Rankin sent telegrams to all five candidates on January 8 and almost immediately received acceptances from each.

Burt Griffin, a Yale Law School graduate, had served as a prosecutor in the United States Attorney’s office in Cleveland for a few years before entering private practice. When I described the job, Griffin was very excited by the prospect and assured me he would accept an offer. He told me later he consulted with two of his firm’s partners about this possible offer with the Warren Commission. One told him that the job was likely to be very dull; the other worried that it might delay Griffin’s development of a client base. His wife, though, shared his enthusiasm about the opportunity.8

David Slawson, a Harvard Law School graduate, was working at the law firm in Denver where Supreme Court Justice White had practiced law and was very interested in coming to Washington to work with the commission. I learned later that Slawson had worked closely with White in support of Kennedy’s presidential campaign.9

The commission issued a press release on January 12 announcing the appointment of Adams, Ball, Coleman, and Jenner as four senior lawyers who would assist Rankin. A fifth, Leon D. Hubert Jr., a former US attorney from New Orleans, would be named the following week. Close observers noticed that the senior lawyers all came from different parts of the country, which was hardly a coincidence. The release also identified the five new junior lawyers, as well as Redlich’s appointment as Rankin’s special assistant. All of the lawyers were given the status of special government employees, a classification that applied to people who did not work in the federal government for more than 130 days during any period of 365 consecutive days.10

On January 13, Rankin and I looked over the results of our rapid hiring for the first time. The quick timetable for choosing our law firm could have resulted in disaster. It was impossible to know if the mix of strong personalities would mesh well. This first meeting marked the start of what would become the largest criminal investigation ever conducted in the United States. Some of our lawyers had criminal law experience; others none. We likely faced considerable difficulty with the FBI. Some lawyers might be able to handle that; others not. Rankin and I each knew personally only a few of our new recruits. The unknowns made up the majority of the faces at this meeting.

The room buzzed with enthusiasm and anticipation. The lawyers sized each other up, probed for mutual acquaintances, and exchanged stories about their experiences. This was a group of very self-confident lawyers, but eager to get to know one another. Rankin stressed the importance of the task and the need for “thoroughness, imagination and speed.” He presented an organizational structure that paired one senior lawyer with one junior lawyer in each of the six areas of the investigation.11

Rankin gave the lawyers no choice in their assignments, but his manner gave each the impression that he had selected them specifically for their particular area. I began to see what made Rankin so special. He succeeded at every task that life and luck threw his way because he focused relentlessly on substance and refused to make things personal. Some friends said of Katzenbach that he treated old people, young people, and dogs with equal affection and respect. Rankin had that same quality.

Because the commission had already drawn criticism for identifying Oswald as a likely assassin, Rankin and I had agreed that it would be better to assign Ball, a defense lawyer, and Belin, a civil lawyer, to the area dealing with Oswald’s involvement, rather than a prosecutor like Specter. Rankin also didn’t want Specter and Coleman teamed up because they were both from Philadelphia. Therefore we slotted Specter to investigate the facts relating to the assassination, and we paired him with Adams, the former New York City police commissioner. Rankin tasked Slawson with the investigation of Oswald’s foreign contacts and the possibility of a foreign conspiracy, the area that Slawson later said held the most interest for him.12

As Rankin handed out the assignments and described the task ahead, I relaxed. The lawyers were enthusiastic about their assignments, eager to get to work, and determined to ferret out whatever conspiracy might have led to the assassination and the murder of Oswald. No one in the room expressed the view that Oswald had acted alone. No one expressed the view that there had been a conspiracy. We all realized the immensity of our task to explain how and why one of the most traumatic events in American history had happened. And we were all honored to have been chosen to participate.

As the lawyers arrived, I handed each a copy of the two FBI reports we’d received in December. I also gave each the pile of raw materials I had identified as most relevant to his area of investigation. Rankin told the lawyers that Norman Redlich, the constitutional law professor from New York, would be working with him on special projects and that I would be providing the coordination among the staff lawyers and with outside agencies and individuals.

I sensed that many of the lawyers were curious about how I came to the commission. I believe that my position as a political appointee at Robert Kennedy’s Justice Department provided a sufficient explanation. Having known three of the junior lawyers for years and recommended two others, I think I was accepted as a worthy colleague until and unless I proved to be wholly incompetent or offensive.

There were two other notable additions to the staff. Mel Eisenberg, an associate at a New York law firm, came aboard ostensibly to work with Redlich. As Eisenberg tells the story, Redlich called a tax partner at Eisenberg’s firm to check out another possible candidate for the staff, but the partner convinced Redlich to consider Eisenberg instead. Rankin promptly charged Eisenberg with the task of mastering the scientific evidence that should be considered in evaluating the assassination.

At this initial staff meeting, Rankin introduced Charles Shaffer, also from the criminal division, who had appeared at the commission offices in early January offering to assist me on a part-time basis. A former assistant US attorney in New York, Shaffer joined the division in 1961 as a special trial attorney in our labor racketeering unit. I knew he enjoyed the confidence and respect of Jack Miller and Robert Kennedy. I hadn’t requested any assistance from the criminal division, but was glad to have his help.13

I learned from Shaffer many years later that he had been sent by Robert Kennedy to find out if the commission’s investigation turned up any links to the Teamsters Union. This did not surprise me. Kennedy’s pursuit of the Teamsters Union had resulted in dozens of convictions of Teamster officials. The department had indicted James Hoffa, the head of the Teamsters Union, in 1963 for attempting to bribe jurors in an earlier case against him. The trial was scheduled for early 1964.14

After a few weeks, Rankin, perhaps more sensitive to Shaffer’s presence than I was, cornered Shaffer and interrogated him about exactly why he was hanging around. Instead of answering, Shaffer told me that he handed Rankin a slip of paper and told him to call the telephone number on it if he needed any information about Shaffer’s responsibilities. The number was Robert Kennedy’s private line. Rankin never mentioned this conversation to me. Shaffer stayed for about three months, worked hard, and provided valuable assistance. Once convinced that neither the commission nor the FBI had found any evidence of Teamster involvement, he quietly retreated to his duties at the Justice Department.15

If the commission was going to be successful, the effective utilization of the staff was essential. Time was precious. Although we were not given a deadline, everyone understood that the public was impatient for answers. At the January 13 meeting, Rankin asked that each team prepare a comprehensive memorandum setting out the known facts within its area and proposing additional investigation. He emphasized the need to carefully review the reports of the investigative agencies and departments to avoid the embarrassment of asking agencies for information that had already been provided.

During these first few weeks in January, our space in the VFW building acquired the look and sound of a functioning organization. Lawyers and secretaries filled the offices. I was in an office down the hall from Rankin. I sat at one desk and Shaffer another. I had also persuaded my talented criminal division secretary, Adele Lippard, to help me at the commission.

Rankin had three secretaries to support the front office. Julia Eide came with Rankin from his New York office and worked as his personal secretary. Beverly Heckman and Anne Welsh were on loan from government agencies. In early January, Rankin asked his secretaries to provide a copy to “Willens–Chrono” of all his commission correspondence and memoranda. I do not recall any discussion with him about this instruction. I assumed that Rankin wanted me to be familiar with the full scope of the commission’s activities so that I could better assist him and advise Justice Department officials about the commission’s work.

Rankin encouraged me to perform a managerial role. He always listened to my suggestions, no matter how numerous or irreverent, almost certainly because I represented the department and the attorney general. He had great respect for the Department of Justice, where he had served for eight years during the Eisenhower administration, and he spoke of the deceased president and the Kennedy family with affection.

With a tentative outline of the investigation approved by the commission, and the staff eager to get started, we needed to decide exactly how best to get the information we needed. We did not lack for advice on this score. In these early weeks, Rankin received unsolicited phone calls and letters from members of Congress, Texas officials, and others who weren’t shy about making suggestions about how he should run the investigation or pursue speculations that each correspondent thought deserved immediate attention.

In late December 1963, Norman Redlich and I, along with Frank Adams, the first of the senior lawyers to appear, debated how to get the investigation done. We proposed to Rankin a two-pronged approach. Some of the needed investigation would be done by federal agencies. Other parts of the investigation would be done by the commission. Staff members would make an initial assessment whether particular witnesses should be called to testify before the commission. The commission had already decided that Oswald’s wife, Marina Oswald, should be one of its first witnesses.16

As January progressed, the newly arrived lawyers offered their views on the subject. Everyone agreed we needed a chronological chart setting forth by date and time all the relevant facts disclosed in our investigation. Its preparation would be an arduous assignment, and Rankin agreed with my suggestion that it be prepared by federal agency personnel rather than our lawyers. Two IRS agents appeared promptly to work on this project.

After talking to Warren, Rankin decided that he would retain immediate responsibility for evaluating presidential security arrangements and that Sam Stern, the former Warren clerk, would work with him. I learned later that the chief justice regarded the presidential protection issues as the most important before the commission. It was the only forward-looking area of the commission’s assignment. The Secret Service had failed in its responsibility. Something had gone terribly wrong, either with the service’s personnel or its procedures, or both. It was essential to find the problems and fix them, but this inquiry presented two sticky problems. First, in order to evaluate the policies and procedures of the Secret Service, we needed the cooperation of the Treasury Department (where the Secret Service was located), and it might well object to our intrusion into their bureaucratic domain. Second, our investigation had to avoid inadvertently making information public that could compromise the safety of future presidents.

The initial press coverage of the commission was favorable. Although the commission had made no public statement regarding its initial decisions, one Washington Post reporter apparently had a very good source among the commission members. Early in January, he reported that the commission “is undertaking a far more wide-ranging and independent inquiry than most Washington observers expected.” He went on to report that the commission would not be accepting any set of premises, or formulating even tentative conclusions, until it made its own investigation. He said the commission would use “its own counsel and staff to interview sources already questioned by the FBI and the police,” conduct its own investigation, and take the testimony of witnesses in Washington.17

This reporter thought that the commission’s plan to have some public hearings was a bad idea. He suggested that “a better investigation will be conducted if it is held entirely in private until the final report is issued.” He supported this position with the argument that had been influential in establishing the commission: “This is not a trial. It is an extra-legal inquiry to obtain and assess evidence in a case which cannot go to trial. It seems to me that it would be misleading and harmful to have the information which the Commission will be collecting coming out piecemeal at periodic public sessions.” Reflecting this concern, the commission decided that its hearings would be private unless a witness requested a public hearing. As the inquiry unfolded, only one witness did so.18

I had mixed feelings about this news report. The reporter’s account of the commission’s intentions was accurate and the issue of public hearings was an important one. But I was upset that the reporter had demonstrated easy (and early) access to the commission’s deliberations. It didn’t bode well for protecting the confidentiality of the commission’s actions and discussions in the coming months.

A long and complimentary story by Anthony Lewis in the New York Times later in January featured Warren’s role in directing the commission. Lewis, the Times’ Supreme Court reporter, observed that Warren had “an extraordinary reputation abroad” but was a figure of controversy in his own country because of the Supreme Court rulings under his leadership. Lewis cautioned against any commission investigation of the country’s “guilt” or state of mind and argued that what the public needed from the commission was “a highly particularized factual analysis completed as swiftly and with as little controversy as possible.” Referring to the difficulties encountered by justices who previously accepted such nonjudicial tasks, Lewis concluded: “The potential for divisiveness is surely there in this investigation of an act that the Birch Society has already attributed to a Communist conspiracy and foreign observers to a plot by rightists. And divisiveness is what must be avoided above all. Earl Warren will need all his skill to pilot the inquiry through to a conclusion that removes the cloud from this country’s honor and institutions.”19

The Commission Begins to Shape the Priorities

On January 20, the staff gathered in our large conference room to be welcomed by the chief justice. Everyone showed up. “All the commission lawyers revered him,” Specter later observed. “When we were in the same room with Earl Warren, we felt we were in the presence of history.”20

Warren was relaxed and informal, though he commanded the room. He explained his initial reluctance in serving as chairman. “Previous non-judicial appointments of Supreme Court justices had proved to be divisive and controversial,” he said. “It is simply not a good idea.” But he told us how President Johnson had equated Warren’s service to the country during World War I to this assignment. The president had also expressed his great concern about the international repercussions of the assassination and made a personal and earnest request for his help. Under these circumstances, the chief justice told us that he had no alternative. Warren went on to say that Johnson expected the commission “to find out the whole truth and nothing but the truth.” Looking directly at each of us, Warren said, “That is what I intend to do.”21

The next day, the commission approved the six-part outline for the investigation, which meant that we needed a sixth junior lawyer. A day or two later, I called a former law-firm colleague now teaching at the University of Chicago Law School, and asked for a recommendation. He suggested that we consider Jim Liebeler, a Chicago Law School classmate with a North Dakota farm background who was ready to leave his New York law firm. He cautioned me, however, that Liebeler was very conservative, very outspoken, and very independent-minded—but also very smart.

After Rankin and I interviewed him, Liebeler was hired for the sixth slot. I learned over time that Liebeler was a dedicated Goldwater conservative, a Milton Friedman economics devotee, and a libertarian before Americans had ever heard of Ron Paul.

Now we could fill in the blanks in our organization chart:

Area 1, the facts of the assassination: Frank Adams, the former police commissioner from New York, as the senior lawyer and Arlen Specter, the prosecutor from Philadelphia, as the junior lawyer.

Area 2, Oswald as the assassin: Joe Ball, the criminal defense lawyer from Los Angeles, as the senior lawyer and David Belin, the civil trial lawyer from Iowa, as the junior lawyer.

Area 3, Oswald’s domestic US background and possible motives: Bert Jenner, the civil trial lawyer from Chicago, as the senior lawyer and Jim Liebeler, the civil lawyer from New York, as the junior lawyer.

Area 4, Oswald’s foreign involvements: Bill Coleman, the corporate lawyer from Philadelphia, as the senior lawyer and David Slawson, the antitrust litigator from Colorado, as the junior lawyer.

Area 5, the murder of Oswald by Ruby: Leon Hubert, the former prosecutor from New Orleans, as the senior lawyer and Burt Griffin, the former prosecutor from Cleveland, as the junior lawyer.

Area 6, the arrangements for presidential protection: staffed only by a junior lawyer, Sam Stern, the corporate lawyer from Washington, DC, but with participation by Rankin, the appellate lawyer from Nebraska and New York.

We already knew that forensic and investigative reports weren’t going to be enough to ensure the credibility of the commission’s report. Sworn testimony from witnesses with personal knowledge of the facts was crucial. But preparing for and obtaining such testimony was time-consuming. The task had to be divided so that the commission would hear only the highest-priority witnesses while our lawyers interrogated less-central witnesses.

The process of taking testimony under oath necessarily meant that we went back over ground that had been covered through interviews by the FBI or another federal agency. But these agents were not authorized to take testimony under oath recorded by an independent court reporter. The important difference is that only sworn testimony is subject to a perjury charge if the witness lied. We planned to take sworn testimony in two ways: at hearings attended by the members and governed by its procedures and the powers granted by Congress; and in depositions by our lawyers under generally applicable court rules. In both instances, the testimony would be recorded verbatim by an authorized court reporter.

Each team needed to develop strategies for obtaining the necessary testimony. This involved determining which witnesses the commission was prepared to question based on the available investigative record and what investigation was required before other witnesses could be called to testify. Rankin sent a memo to all the lawyers on January 22 expressing a new sense of urgency. The commission wanted a progress report at its next meeting. Rankin asked each team to produce a preliminary, and relatively short, memo containing a statement of objectives and problems in the team’s assigned area of investigation based on the materials at hand. He asked that these memos be prepared within the next two days so that they could be considered at a staff meeting on January 24.22

Rankin’s directives and timetable stimulated much discussion. Staff lawyers would drift into my office to discuss, complain, debate, question, or just generally muse about the task ahead. The same occurred in Redlich’s office, just down the hall. The senior trial lawyers, Adams, Ball, Jenner, and Hubert, had done many important trials. They didn’t consider themselves to be memo writers; they wanted to get out in the field and have at it with live witnesses. Others viewed the piles of reports from the FBI and other government agencies as presenting the familiar challenge of mastering the facts before embarking on exploratory depositions. Rankin never wavered in his determination that each team should assess everything that was currently known, from every source, before marching into the field to do further investigating.

At the staff meeting a few days later, Rankin set a deadline of February 10 for the comprehensive memo from each team that would summarize the known facts in its area. Redlich complained it wasn’t enough time, citing the voluminous investigative reports from the FBI and other agencies. Redlich had probably read more of these reports than the rest of us because he had been assigned to prepare for Marina Oswald’s testimony. He made the point that future critics would not excuse any failings by the commission on the grounds that it hadn’t had sufficient time to do the job. Most on the staff agreed. Rankin pushed the target date back to February 18.23

Producing long written memos brought the role of the commission’s secretaries to the forefront. Some lawyers, accustomed to very high quality personnel in their private law offices, complained to Rankin about the competence of their secretaries. Rankin called McGeorge Bundy, national security adviser, at the White House and, within a day or two, some very competent secretaries appeared at the commission office.24

With secretarial reinforcements in place, all six teams submitted preliminary memoranda on time. Because the commission had changed the agenda for its January 27 meeting, Rankin and the rest of us were able to relax somewhat at the January 24 staff meeting. He took the occasion to elaborate on the background of the commission members and to emphasize Warren’s commitment to his assignment. Then Rankin addressed us in a more sober mood. In a phrase often repeated during the following months, he said, “Our client is the Truth.” “The commission’s report will be examined by the entire United States and will be examined for the next fifty years,” he said.25

About this time we started to feel more pressure from the press. Requests from reporters seemed to arrive daily. Rankin, no stranger to public issues, valued good relations with the press but at the same time let us know he wanted no leaks. He told us that the commission had decided at its January 21 meeting to publicly announce each commission meeting and to issue a press release after the meeting. Apart from this arrangement, no other releases should be made to the press and staff lawyers should issue a firm “no comment” if approached by reporters.26

I had some limited experience with the press during my time at the Justice Department. I saw how effectively Robert Kennedy’s press secretary Ed Guthman and his talented deputy Jack Rosenthal dealt with press demands. Even before joining the commission, I had discussed with them whether the commission should hire a public information officer to help with the press. In late December I had recommended to Rankin that we do so. I don’t remember whether Rankin agreed, but I learned later that Warren rejected the idea when Katzenbach raised it at the commission’s first meeting. Consequently, we fended off the press by ourselves as best we could. I still think the commission should have hired a press specialist. Our experience with an impromptu and damaging statement to the press by the chief justice in early February illustrated the difficulties that might have been avoided.

image Was Oswald an FBI Informant?

The words of warning about the press had hardly escaped Rankin’s lips before Waggoner Carr, the Texas attorney general, called him to pass on a thirdhand report that Oswald might have been a paid FBI informant before the assassination. Carr had gotten this information from Henry Wade, the Dallas County district attorney, who in turn had received it from an undisclosed source. The source said that the FBI had paid Oswald at the rate of two hundred dollars per month from some time in 1962 until the assassination. Carr told Rankin that Wade or one of his staff lawyers had mentioned this allegation at a public court hearing in the Ruby case, so the Dallas officials believed that one or more newspaper reporters had the story even if it hadn’t yet been published.27

Rankin immediately called the chief justice to report this allegation and told me very soon thereafter. Warren and Rankin wanted to go directly to Robert Kennedy to pursue this allegation with Hoover. I got on the phone and called Katzenbach and Jack Miller. They both emphatically vetoed this idea. They said it would be embarrassing for Kennedy, who was, after all, Hoover’s boss, and would make his continued administration of the department more difficult. I believed from the beginning that the allegation was improbable, but agreed it required immediate consideration by the full commission.28

Warren convened an emergency meeting of the commission the next day, January 22. The members recognized the difficulty in the FBI disproving such an allegation in light of the records, or likely lack of records, at the bureau. In the course of speculating about this allegation and its implications, Rankin told the commission that he suspected that the FBI had jumped the gun by identifying Oswald as the lone assassin before completing its investigation. Rankin emphasized that this was not consistent with his experience with the FBI. Responding to questions from commission members, he said the FBI “would like us to fold up and quit.… They found the man. There is nothing more to do. The Commission supports their conclusions, and we can go home and that is the end of it.”29

The commission decided to ask some key Texas officials to come to Washington. Carr, Wade, assistant district attorney William Alexander, Leon Jaworski, and Robert Storey (former dean of Southern Methodist University Law School) all quickly made their way to Washington to discuss the matter with Rankin. None of the Texas officials knew the origin of the allegation about Oswald. Some had heard that this possibility had surfaced in connection with a dispute in the Ruby criminal case whether the FBI should be compelled to produce certain documents sought by Ruby’s attorneys. By this time, the Nation had published a story about the possibility that Oswald was an informant not only for the FBI but also for the CIA. Lonnie Hudkins, a reporter for the Houston Post, had authored the Nation story. It turned out that a similar allegation had been made to the Secret Service in December, but a report from that agency on the allegation did not reach the commission until late in January. That tip also mentioned Hudkins as the source for the allegation.30

Commission members debated the merits of two different approaches to the problem. Under the first, the commission would initiate its own investigation, which would necessarily include seeking information from Hudkins, who almost certainly would invoke a reporter’s privilege not to disclose his source. Rankin recommended a second approach, which involved his encouraging Hoover to cooperate with the commission in trying to resolve this matter. Rankin intended to urge Hoover to demonstrate by whatever records the bureau had that the allegation was simply not true. But Rankin realized that he would have to alert Hoover to the fact that “the Commission would have to feel free to make such other investigations and take testimony if it found it necessary in order to satisfy the American people” that Oswald was not an undercover agent. After extended discussion, the commission adopted Rankin’s approach.31

Rankin scheduled an appointment with Hoover for the next afternoon. On the morning of that day, January 28, he received a letter from Hoover brimming with anger. Hoover knew that Texas officials had been in town to discuss the Nation piece. He acknowledged that FBI agents had interviewed Oswald three times after his return to the United States and before the assassination. But he issued a flat denial: “Lee Harvey Oswald was never used by this Bureau in an informant capacity. He was never paid any money for furnishing information and he most certainly never was an informant of the FBI. In the event you have any further questions concerning the activities of the FBI in this case, we would appreciate being contacted directly.” Hoover made this denial public on January 27, the day before he delivered the letter to Rankin. Rankin was not surprised. He knew Hoover.32

Rankin went ahead with his scheduled meeting with Hoover. It was not pleasant. During his eight years in the Justice Department, Rankin’s responsibilities as assistant attorney general and solicitor general occasionally had involved him with Hoover. During those years, he recalled that “our relations were warm and cordial and we seemed to have an understanding between each other and cooperation in trying to get the work accomplished that we had before us.” The relationship deteriorated during Rankin’s service as general counsel to the commission. He described Hoover’s attitude toward him then as “quite cold and uncommunicative.” Rankin said that “he acted as though he felt that the commission was hostile to him and to the FBI, and he commented upon all the man-hours we were demanding of him and how it was a burden to the FBI in its carrying on its other work.” Notwithstanding Hoover’s attitude, Rankin made the presentation that had been approved by the commission.33

Hoover subsequently sent several letters to Rankin in early February that summarized interviews with people alleged to have information supporting the allegation that Oswald was an FBI informant and provided affidavits in support of the bureau’s denial of the allegation. He advised Rankin that Wade stated that he had no information to support this allegation and that Hudkins had refused to supply the name of a Dallas law enforcement official who had made the allegation to him. Hoover also provided his own affidavit, the affidavit of the agent who participated in two of the interviews of Oswald, and nine additional affidavits of bureau personnel “who, because of their assignments, would have been responsible for or cognizant of any attempt to develop Lee Harvey Oswald as an informant of the FBI.” All of them denied the allegation.34

While investigating this allegation, as we learned more about the FBI’s contacts with Oswald, the commission discovered a disturbing lack of candor about those contacts, which damaged the bureau’s credibility. For example, Hoover’s January 27 letter to Rankin also referred to a report that Oswald had certain information in his address book that related to FBI agent James Hosty—specifically Hosty’s name and telephone number—a fact that Redlich had previously discovered from his examination of the address book. Hoover confirmed that the address book did contain this information, which Hosty had provided to Ruth Paine, with whom Marina Oswald was living with her two daughters (one recently born) when he interviewed her on November 1 and 5, 1963, regarding Oswald’s whereabouts. The FBI had not previously told us about that fact. Soon thereafter, it became apparent that the FBI intentionally omitted these references to Hosty from its report to the commission dealing with Oswald’s address book. We all knew that Hoover personally directed or approved these self-protective moves. We suspected more would come of this, and it soon did.35

image The Commission’s Decides to Do Its Own Investigating

Our discovery that the FBI was hiding information, apparently for self-serving reasons, required a decision about the continued use of FBI agents in our investigation. Could the commission work with an agency that proved willing to withhold information from us?

I thought we could handle this problem and, in fact, had no alternative. We had very competent lawyers who would be hard to fool as they became more knowledgeable about the facts. I had seen instances at the Justice Department where department lawyers had some reservations about Hoover’s direction of the FBI, but found ways to work around the problem. They used other investigative agencies to cross-check what the FBI told them; they developed their own sources; and they always were aware of the possibility that the FBI was gaming them in some respect. FBI agents out in the field tended to act with fewer “political” motives than their Washington superiors, especially while working closely with department lawyers to prosecute a case successfully.

But we all feared that this instance of deliberately withheld information was not likely to be an isolated event. Our continued use of the FBI did give rise to criticism over the years that we failed to use “independent” investigators not employed by the federal government. Some critics believed that the commission’s investigation was already fatally tainted because of its initial reliance on the FBI and other federal agencies. In their view, federal agents could not be relied upon to investigate allegations that their own agencies failed in their responsibilities. In addition, critics claimed that federal agents (and their superiors) would be more susceptible to political pressures within the federal government to ensure that the investigation came to a predetermined conclusion. I understood these concerns, but saw no problem in using federal agencies so long as the commission’s ultimate decisions were based on its own extensive record of sworn testimony.

By late January, commission lawyers had identified hundreds of details that had to be checked out, stories that had to be confirmed or rejected, and additional physical evidence that had to be recovered. Only the FBI could muster the resources and manpower to do this work within an acceptable time frame. We had no other comparable pool of trained and experienced investigators in the United States. If the FBI and other federal agencies were barred from assisting the commission, candidates would have to come primarily from state and local police departments, with no assurance of their quality or independence. Many of these law enforcement officials had been employed or trained by the FBI, so they might not be considered “independent” investigators. Even if such candidates were found in suitable numbers, the required security clearances (typically done by the FBI) would have delayed any significant investigation by the commission for several months. I simply didn’t see any practical or politically acceptable alternative to using investigators from the FBI, the CIA, and the Secret Service.

The commission members, all of whom had extensive Washington experience, came to the same conclusion, despite reservations about Hoover’s trustworthiness. Former commission members Ford and McCloy later emphasized the ability of the commission’s staff and its supervision of the federal agencies. Ford noted,

Although the staff and the Commission utilized the investigative personnel and capabilities of organizations within the Federal establishment, we as a Commission and the staff were never satisfied with what information we got from these Federal organizations. What we did was to use them as a base, and then the staff and the Commission took off from there and handled individually the inquiries, the questions, and any leads that came to the Commission or to the staff.36

McCloy supported Ford’s position and stated: “It is not true, as has been alleged, that we relied entirely on the agencies of the Government.”37

Rankin explained later that he had examined the possibilities of using an independent investigative staff. He concluded and reported to the commission “that it would be a long time before we got any such staff put together that could handle all the problems that were involved with the size of the investigation” that we were conducting. Because President Johnson had instructed all government agencies to cooperate fully with the commission, Rankin decided “that it seemed prudent to try to use the intelligence facilities that the Government had at hand.”38

Redlich and I shared the view that our reliance on an FBI we didn’t fully trust meant we would have to work harder and longer to be sure we checked out every fact. We felt the weight of the staff lawyers’ distrust of the FBI as they accelerated the pace of investigative requests to check and double-check facts. Rankin had instructed that all such investigative requests should go to me before they went to him for approval. Rankin also felt the burden as he approved the taking of sworn testimony from an ever-growing list of individuals with potentially relevant information.

This process ultimately produced testimony from 552 people: 94 witnesses who appeared before the commission, 395 witnesses deposed by commission lawyers, 61 witnesses who provided sworn affidavits, and 2 who provided statements. In assessing this entire record of testimony, and more than three thousand exhibits, the commission had the responsibility to do what federal investigative agencies do not customarily do—evaluate all the available evidence and make reasoned judgments of the conclusions that are supported by that evidence. This process is one that lawyers routinely are called upon by their clients—whether public or private—to undertake, and the commission members and lawyers had a wealth of experience in doing exactly that.

Even as the commission began to gain momentum, it was not an entirely unified team. Gerald Ford continued to chafe under Warren’s style, although he was the only member who aired such complaints. Decades later, he still thought the chief justice ran a “one-man commission” and was not responsive to the views of other commission members. He characterized Warren as “pretty categorical in his views … there was no deviation from his schedule and his scenario. He treated us as though we were on the team, but he was the captain and the quarterback.” Notwithstanding his reservations, Ford made a very substantial commitment to the commission’s work. Transcripts of the commission meetings do not support his criticism. Although individual members sometimes differed with the chief justice on particular issues, the transcripts show that Warren carefully sought their opinions and that the commission’s decisions from beginning to end were unanimous.39

By the end of January, we had begun to move along an independent path. The FBI had essentially concluded its investigation and had no intention of initiating further work to supplement or amend its summary reports on Oswald and Ruby. During the commission meeting of January 27, Rankin advised the commission that the FBI’s January report on Oswald “filled in some of the holes” in its first report, but left more than half of the commission’s questions unanswered.40 The hundreds of investigative requests and the tenacity of the staff in the following months uncovered important new information, developed new ways of interpreting the scientific and physical evidence, and brought us much clearer insights into how Oswald and Ruby could succeed in doing what they did.

Looking forward to February, the commission was going to hear its first witness, Marina Oswald, early in the month, with more witnesses to follow. The pending issues with the FBI had to be addressed to the extent possible, but more conflict was virtually certain. We were now ready to start dealing with the Treasury Department about presidential protection and with the CIA and the State Department about Oswald’s foreign activities. As soon as Ruby’s trial for the murder of Oswald, scheduled to begin in February, was concluded in Texas, our lawyers would be headed for Dallas to initiate the commission’s program of taking testimony under oath from witnesses who had knowledge of the facts we needed to determine and evaluate.

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