Transcript of Oral History Interview with FRANK TUERKHEIMER for the Dane County Bar

Association Date of Interview: July 9, 2015

Transcribed by: Ann M. Albert

ED REISNER: Good morning. This Ed Reisner. I'm here on behalf of the Dane County Bar Association to           do an oral interview of Emeritus Professor Frank Tuerkheimer. It's July 9, 2015. And thank you for coming, Frank.

A            Good to see you again, Ed.

Q           Let's talk about the beginning. When and where were you born?

A            I was born in New York City in July of 1939.

Q           So you have a birthday soon.

A            Very soon.

Q           All right. Well, happy birthday.

A            For what little it's worth, I was made in Germany. My parents had been in the United States only about six, seven months when I was born.

Q           So they came just before War World II?

A            Yeah. They came after the (UNINTELLIGIBLE) and before the war began.

Q           So you grew up in New York.

A            Yes.

Q           Where did you attend college?

A            Columbia College.

Q           And did you know at some point early in your life that you were going to go on to be a lawyer?

A            Nope. I did not.

Q           When did you come to that realization?

A            Well, after college, I didn't know what else to do, so went to law school.

Q           This sounds very familiar.

A            Right. Default has been the major motivator in my vocational decisions.

Q           And where was law school?

A            NYU Law School. I had a Root-Tilden Scholarship which was -- paid room, board, and tuition and some pocket money on the side. And it was hard to turn that down.

Q           I know that you must have done very well in law school because after law school you had a judicial clerkship.

A            Yes.

Q           And that was with whom?

A            Judge Edward Weinfeld.

Q           In the –

A            In the Southern District of New York.

Q           Okay. One-year or two-year?

A            One-year.

Q           One-year. Following your judicial clerkship, did you immediately go into the U.S. Attorney's Office?

A            No. I spent a year on a Ford grant in a little country in southern Africa called Swaziland working for its attorney general.

Q           That must have been amazing.

A            It was amazing.

Q           Was language a problem when you did that?

A            No. Swaziland was technically still a British – it wasn't quite a protectorate. The British controlled the foreign ministry and I think finance, and the            Swazi controlled all other ministries on the road to independence, which came a couple years later on. So English -- well, there were three languages there: Swazi, Afrikaans, (UNINTELLIGIBLE) South African English. But the legal system substantively was a combination of English and South African law,               but procedurally it was pretty English. So the India Evidence Act, which governed, was recognized way more than authority, so it was largely a familiar system.

Q           Have you been back since?

A            Yes.

Q           And is any part of your work there still recognizable?

A            Oh, I wouldn't think so. No. I prosecuted a few cases, some of which were very interesting. I tried to codify Swazi law and custom, which was -- that was very naive because the Swazi elders who knew the law, the last thing they wanted was this stuff written down because once it's written down, their knowledge becomes worthless. So I got a nine-month runaround.

Q           All right. Nine months pass. You came back to the United States. And what did you do next?

A            I went into -- I went into the U.S. Attorney's Office as an assistant in the Southern District of New York.

Q           And the U.S. Attorney at that time was Robert Morgenthau?

A            Robert Morgenthau.

Q           And over the time you were there, did you have an opportunity to work closely with him?

A            Yes, I did. Very closely. And we remain very much friends. When we go to New York, I have lunch with him several times. And I can relate a law school story to you about that afterwards, if you like.  But I've gotta say -- and you can cut this out from here if you want -- my first contact with Morgenthau involved drafting a Complaint for the arrest of some cashiers at Yonkers Raceway who were thought to be implicit in a race-fixing scandal. And the federal handle was the people that won these races would get other people to cash their winning tickets. So I had gotten -- I drafted arrest warrants for the three cashiers, and the arrest was supposed to take place on Wednesday night. Well, it took place on Tuesday night. And the press called Morgenthau, and he was reluctant to take credit for it because it wasn't going as planned, and he would look foolish if it was a local arrest, so he had to keep quiet.  Well, he got into his office the next morning and saw that indeed it was a federal arrest. I had no knowledge of any of this, and I passed him in the hall-- this is the first time I worked for him -- and as he passed me, he said, "You f---ed up, didn't you?" That was my first contact with him.  It turned out, as I discovered later in the week, that the IRS agent who made the arrests, well, we had shared coffee on Thursday morning, and he talked about having seen Fiddler on the Roof the night before, Wednesday night. And I said, "Marv, you had those tickets for a long time; didn't you?" "Yes." "And you certainly didn't want to miss the show for a bunch of arrests; isn't that right?" So that's the reason the arrest took place on Tuesday night and then Morgenthau told me that I f---ed up.

Q           Tell me the dates that you were with the U.S. Attorney's Office.

A            From October of 1965, which is now almost 50 years, till February of 19 -- of let's see. Until -- did I say '55?

Q           '65.

A            '65, '65. I'm sorry. February of '65 until February of 1970.

Q           So February of 1970 comes. We're getting close to coming to Madison; aren't we?

A            Very close. And I should tell you it's kind of scary when I think about it. I started in '65. That's 50 years ago, which means that if somebody had walked into my office who'd been an assistant U.S. attorney 50 years ago, he would have been an assistant in the Wilson Administration. And there was no such thing.  They were all gone.

Q           I'm about to go to my 50th high school reunion, 1965.

A            You work it backwards.

Q           And I haven't been to a reunion, a high school reunion, at all. So I'm interested to see how these people have aged. Of course, I haven't.

A            No, you haven't. You look great.

Q           February of 1970, did you come immediately to the Law School?

A            No. Morgenthau left -- well, he was fired by Nixon in late '69, early '70, became deputy mayor in the Lindsay administration, and I think three of us went with him into the deputy mayor's office for just a few months, and I was one of 'em. So I was an assistant deputy mayor or something like that until the summer.  And then we came to Madison I think about a week after the Sterling Hall bombing.

Q           Oh, my. And the dean that hired you was?

A            Dean Kimball, Spencer Kimball.

Q           Spencer Kimball. That makes sense.  You began teaching here then in the fall of '70?

A            Of 1970, yes.

Q           '70. And I know that you taught evidence because, as I mentioned to you, I was in an evidence class that you taught in the spring of '72. And I can still remember that class all these years later because it         was unique to me, and I think an innovation at the time, if I remember right, you taught from the Hornbook the Rules of Evidence, and then we did scenarios in class.

A            We did scenarios in class, and I annotated the Hornbook to a trial transcript, the bank robbery case that I had tried a few years earlier, to illustrate the application of the rules, yeah. Yes.

Q           And I also know that during the course of your teaching at the law school, you came up with at least one other major innovation, and that was an electronic textbook.

A            Well, yes. When we got into the 1990s, I just felt a little strange teaching to students about a case that was tried in 1969.  I had represented an indigent defendant here in the Western District, and I noticed that the court reporter prepared -- it wasn't the old system anymore. It was an electronic -- it was done electronically. So I got Judge Crabb's permission to use that transcript, and then instead of just having page references and the assignment to a page of the transcript, I just created an electronic book where there were jump links to the transcript. But I think I did a few other innovative things in the Law School. In trial advocacy, I had students do different parts in two trials, and I let them do a third trial, and I got a court reporter from the school here to prepare a transcript. And that transcript became the basis of an appellate advocacy course in the spring. And I thought that was important because in my experience as an appellate lawyer, the facts are far more important than the law. Appellate judges know the law. What they don't know is the facts. And what the lawyer brings to the case is a detailed knowledge of the facts.

And traditionally, appellate advocacy courses in the Law School contain a paper-thin record, and I thought that was just unrealistic. And so by combining the two, I think I created a more realistic appellate advocacy course where the students had to know the facts, had to know the record. And then I also -- I don't think I ever taught first-year criminal law or criminal procedure. I was never asked, and I never asked to do it, in part because I always found it difficult to separate the two. I thought that's an artificial distinction. I put a course together I guess shortly after you left called -- I forget what it's called, but it was basically what prosecutors and defense lawyers do pretrial and why they do it. And it contained a lot of student writing. They had to do motions, large bail limits and stuff like that, motions to dismiss. And it ended up with a fairly complex severance and joinder issue, the kind of things that are normally not covered in law school, but are the nuts-and-bolts stuff of criminal practice.

Q           The hallmark of faculty on this campus has always been a combination of teaching, research, and public interest. And we know that you taught for many years. We know that you did research and put together innovative methods of teaching. But there came a time when you did public service as well. I'm thinking of your service in the U.S. Attorney's Office here.

A            Well, as you know, what preceded that, of course, was the year and a half I was on the Watergate Special Prosecution Force. And then, yes, when President Carter was elected, I put my name in the ring for the U.S. Attorney's position and ultimately got it.

Q           So that would have been about 1977?

A            Yes. I was -- there was a slight delay in the – I was nominated early on in 1977. There was a slight delay in the blue slips or whatever they call it on the floor of the Senate, so I was actually -- but it was clear it was gonna happen. So I was actually initially sworn in by Judge Doyle as a court-appointed U.S. Attorney in June of '77. I think I was confirmed in July and then sort of became official in September.

Q           And how long did you do that?

A            Until President Reagan was elected.

Q           So you were non-renewed?

A            I was not renewed. Those are not renewable positions.

Q           As the U.S. Attorney, you had a staff. Did you find time to actually try cases yourself?

A            I made it my business to try cases. I tried about six or seven cases during the four years I was there.

Q           Uh-huh (affirmative). Well, let's go back slightly.  You mentioned the year and a half in the Special Prosecutor's Office. That was the end of the Watergate Scandal following President Nixon's departure from office?

A            No. It started -- obviously, it started long before. It started at the beginning of the scandal. But the Special Prosecutor's Office was created in the spring of 1973. Nixon resigned in the summer of 1975.

Q           I also paid a lot of attention to Watergate because the break-in occurred on the night before I was admitted to the Bar in Wisconsin, June 15, 1972, and I was admitted on June 16, 1972. So -- and I remember listening to the Watergate hearings, and it was certainly a memorable time in my life. Tell me about your portion of Watergate.

A            Well, when I was hired, I think I was still 34 years old and, believe it or not, I was one of the more senior people there in terms of age. It was a very young staff. And my principal responsibility, but not my sole one, was working in connection with dairy industry -- illegal dairy industry contributions to the 1968 and 1972 presidential campaign. Some of that was just illegal stuff that the associated (unintelligible) the American Milk Producers made both to the Humphrey campaign in '68 and to the Nixon campaign in '72. But the main focus of that was, of course, payments to Secretary of the Treasury John Connolly for his assistance in raising the price of (unintelligible) level.   I did as a senior person, so part of a group that met fairly regularly to deal with what we then had as evidence of the President's involvement in the conspiracy to obstruct justice when the June – when the March 21st tape, March 21, 1973 tape, was made available in which the President encouraged John Dean to raise a million dollars after Dean had tried to tell him that there was a cancer on the presidency. And we -- you know, the question is what do you do when you have evidence that the President is a member of the conspiracy. And Leon Jaworski then, the special prosecutor, was reluctant to name him. And I remember having many discussions with Leon about the need to name him for a variety of reasons, including notice to the defense lawyers. They had to know when they picked the jury that the President was a co-conspirator. And I suggested that in our group that instead of naming defendants and co-conspirators and unknown, unnamed co-conspirators, we just have two groups, defendants and unnamed co-conspirators, and that way the President could be included without Jaworski's concern that he didn't want to get too far out in front of the country.  And someone else, Rick (unintelligible), I think, suggested that maybe we have the grand jurors vote on unindicted co-conspirators, which is unusual. Normally they're just named. And that worked out quite well because the White House then when they saw the President wasn't named then figured if he were, we would have leaked it, based their legal strategy opposing the subpoena for the tapes on the ground that they weren't evidentiary. And, of course, given the fact that the President was named as an unindicted co-conspirator, or it was voted that, but not mentioned in the indictment, the legal ground was totally cut out from under the White House.   

Q           So the Watergate case, the milk case, the dairy case, wound up when?

A            Well, I tried it, actually, now that I think about it it's 40 years ago from this spring. It was against John Connolly. Edward Bennett Williams represented him. And the jury found him not guilty.

The critical event in that was actually the severance of the obstruction of justice and perjury charges from the underlying illegal payment charges. And once we lost the first ones, we didn't think that it was right to proceed again 'cause the evidence largely overlapped, and we dismissed the obstruction and perjury charges.

Q           So that was 19 --

A            -- 75.

Q           -- 75?

A            Yeah.

Q           You returned to the Law School briefly before going off to the U.S. Attorney's Office?

A            Right.

Q           And then 1980-81 when Reagan was elected, you came back to the Law School?

A            Right.

Q           At some point you took emeritus status here?

A            Yeah. That was about, gosh, it's now longer than I thought it was. 2004, 11 years ago. Wow.

Q           But you continued to teach both here and in New York; have you not?

A            I taught here for I think six years after I took emeritus status. I think I taught in New York for about seven years, but not every year, at both the Cardozo Law School and the New York Law School.

Q           And are you continuing that?

A            No.

Q           No?

A            No. Once enrollments dropped markedly, they stopped hiring outside people.

Q           Yeah.

A            And so the last time I taught was two years ago.

Q           Well, I can assure you that there is at least one generation of law students who went through this law school who really appreciated your approach and your knowledge. And like I said, I never tried a case, but I still can remember parts of evidence because of the way you taught it.

A            Thank you, Ed. Thank you. That's nice of you to say.

Q           Now, one of the cases that you suggested we talk about was your involvement in the Government's prosecution of the Progressive magazine.

A            Before we do that -- and you're obviously free to cut this out -- since this is of Dane County historical significance, I wonder if I can talk to you about the first cases I worked on as a lawyer here.

Q           Oh, please do. Yes.

A            Because they get us into Judge Doyle, and I suspect that's something you would be interested in.

After I -- shortly after I came here, I put my name on a list or whatever, and I agreed to represent an indigent. And my first case was on behalf of a man who was charged after his father refused to accept a plea agreement. The prosecution said, "Look, if you plead guilty, the case is over. If you don't, we're gonna charge you and your son with this crime," whatever it was.             And I thought, and I was deeply convinced of the correctness of my position, that this constituted an impermissible delegation of executive power from the executive to the father because now it becomes the father who decides whether his son is indicted, and         that's supposed to be decided by the Justice Department. Well, Judge Doyle did not share my enthusiasm for that particular argument and rejected it out of hand, and so did the 7th Circuit.

The other case, which I think was the second case I handled, was the Kickapoo Dam Project. There was an effort by the Corps of Engineers to construct a dam on the Kickapoo River, which I think is the last free-flowing river in that -- in this part of the southwest part of the state. And I represented the Sierra Club in an effort to enjoin construction of the dam.

I was excited that we were before a liberal judge, Judge Doyle. And I didn't fully appreciate that -this is now in the 1970s -- that a liberal who goes back to the New Deal is a liberal who venerates public works projects. That was the core of the New Deal. So while I initially thought I would find a very sympathetic judge, in fact, the judge was totally unsympathetic and denied our request for a preliminary               injunction or a permanent injunction. And once again, the 7th Circuit agreed with that. But we won the war because ultimately, it was found that it just wasn't worth the money to build that dam there 'cause there would be too much silt in the lake that ensued, and we really wouldn't be able to use it for recreational purposes very long, but lost both of those cases before Judge Doyle.

Q           Ironically, that dam was supposed to be for flood control to save some towns that were in its path, and the towns have been moved since. Soldiers Grove and Gays Mills --

A            Exactly.

Q           -- have both been relocated, and the water still flows free and is enjoyed by --

A            Well, I gotta say, yeah, I may have lost -- I did lose the case, but it did give me an appreciation of the beauty of southwestern Wisconsin that -- it was a glaciated area, and I think it's the most beautiful part of the state, and we regularly go there to enjoy it.

Q           Yeah. I've spent many an afternoon at Wildcat Mountain looking down on it, so -            Also before we get to the Progressive case, I should mention too that you've been active with -- you've been of counsel to a number of law firms, a couple of law firms.

A            No. I've just been of counsel in one, but that comes later.

Q           It's changed. The name of the firm has changed.

A            Yeah. I didn't -- I became of counsel in 1985 with what was then LaFollette Sinykin. And to my astonishment, it's been 30 years. And I can't believe that.

Q           Wow.

A            To just finish that theme, I was -- after having been the special prosecutor and U.S. Attorney and wanting     to litigate, I found that it was really difficult to litigate out of the Law School. I mean, if you have to have something in by tomorrow, it just couldn't be done. And so I thought I should join a firm. And I joined LaFollette Sinykin, and I've been of counsel there ever since.

Q           And LaFollette Sinykin is now Godfrey & Kahn.

A            Godfrey & Kahn, yes. In 2000, yes.

Q           All right. On to the Progressive. How did you become involved in that case?

A            One I think -- I think it was a Thursday afternoon, three or four lawyers from the Justice Department came to my office -- I was U.S. Attorney -- and told me that we had to get an injunction against the               Progressive magazine because it was about to publish an article on how to build the H-bomb, which would reveal extraordinary technical secrets about the construction of the H-bomb and would damage the country's ability to prevent proliferation of  thermonuclear weapons. They briefed me on the case and expected me to get up and argue for the Government.  As I listened to the briefing -- I mean, they had been working on it for months. And I don't take any particular pride in being the person -- I mean, I just think it wasn't fair to the Government to have me, based on just a couple of hours of talking, take this thing before Judge Doyle, who I knew would ask wonderful questions and I'd probably be unable to answer them. So I said, you know, "You take it."

Well, it turned that Judge Doyle had been on the board of the Progressive magazine, so he recused himself, and the case was assigned to Judge Warren, who would then technically sit by designation in the Western District.  But the next day, the Justice Department lawyers went to Milwaukee to argue before Judge Warren. And I read the article. They had the article, and they had boxes of stuff which was censored, said was restricted data, and in an affidavit said that everything that is restricted data is not in the public domain, justifying an injunction against publication.

Well, when I read the article with those boxes, I was absolutely floored because I saw as restricted data things that I had learned as a teenager interested in the topic of physics 25 years earlier, for example, that the only energy on earth that is efficient that can fuse hydrogen to create a hydrogen bomb is a nuclear bomb where you'd use uranium or plutonium. Well, I'd known that for 25 years. And the censor said it was restricted data. And there were similar -- a whole bunch of examples like that.

And I came to Milwaukee after my Justice Department colleagues were successful in getting a temporary restraining order, and I said, "You know, there's a problem here." And they kind of looked at me like, "Yeah, you're telling us there's a problem. Thanks."  So I spent the weekend here at the University of Wisconsin Physics Library just copying stuff that I knew -- that I knew was out there from what I'd been interested in as a kid 25 years earlier. And I sent it off -- I sent that stuff off to them. It was a huge packet of material. I just copied it, including -- this was very interesting -- including a publication by the government in India, which is significant because India was one of the few countries who had the technological capacity to develop a thermonuclear bomb, and they in their official government publication said things which the censor        said was restricted data.

Well, they cut back on what they claimed was restricted data. But I took no further part in the case and at one point even refused to sign the brief.  I remember Judge Doyle was very -- 'cause I could               talk to him now because he had nothing to do with the case. He tried to calm me down, to say, "Look, just play along, don't go public." Well, I wouldn't have gone public. That's not fair to the client. But I do remember he was a very restricting influence.

Q           I think you mentioned that I should pay some attention to Earl Munson's involvement in the case. And I think the only -- Earl Munson, I believe, was a partner at LaFollette Sinykin back before you had joined them.  But I remember seeing an oral -- a video oral history of Earl Munson's where he talked about one night he was working late in the office, and he had a copy of the article, which no one was supposed to be able to see. And he was about to leave the office, and his phone rang, and it was a voice telling him to make sure that he locked it up. And he realized that his office was under surveillance and the Government was making sure that that copy was protected.

A            I didn't know that.  Earl worked on it as well as Brady Williamson, who's still with -- who is now with Godfrey & Kahn. So I -- oh, I wrote a letter to the Attorney General asking, suggesting, urging that he drop the case, and I went through a lot of detail on it in the letter. And I -- a friend of mine was in the Justice Department working in one of the departments that advised the President. And he was at a meeting with the Attorney General, and the last item on the agenda was the H-bomb case in Madison and the letter from the U.S. Attorney. And Griffin Bell, who was the U.S. Attorney -- was the Attorney General, said, "Oh, we have this U.S. Attorney who wants to drop the case, but he's U.S. Attorney in the most liberal community in the country, undoubtedly responding to pressure. I think we can pass this over." And that's -- that was the extent of the discussion. Of course, nobody tried to pressure me. Nobody who knows me would have tried. I remember my friend called me up, and he just said, "Frank, you've just been done a grave disservice." And I must say my feelings for Griffin Bell have never been high, but they weren't any higher then either.

But the case ultimately had to be dropped when a Berkeley -- underground newspaper in Berkeley published the same thing.

Q           And, of course, as you said, the secrets had all been out there had anyone wanted them anyway.

A            Right. And this way, the only thing the Government accomplished, it made it easier for someone to get this. The interesting thing is that it shows you how words that are really stupid can have an impact. Judge Warren, I think after he heard one of these arguments, said something like he sure as hell wouldn't want Idi Amin to have an H-bomb. Idi Amin, I guess for our contemporary people, was the dictator of Uganda who -- I mean, he killed people with machetes. And the notion that Uganda would have the engineering and technological capacity to build an H-bomb is ridiculous.

But his statement was true. You wouldn't want Idi Amin to have an H-bomb. And that generated a certain amount of public support for the injunction.

Q           One of the questions that we ask everyone during these oral interviews, the practicing lawyers who have practiced for a lifetime, is how the practice has changed over time.  You have a different perspective. How have law schools changed over the last 50, 60 years?

A            Well, I would think that one of the major changes --and I think -- I'm proud to say Wisconsin, I think, has taken the lead on that -- is in clinical programs.  I must say when I came here, I didn't think our clinical program was great because I think we delegated too much supervisory authority to people not connected with the Law School. And I, surprisingly to many people, was not a great proponent of the program for that reason. But I think since then, we have committed enormous resources to our clinical programs, and they have done absolutely superb jobs. I can't -- I would put Keith Findley on my pantheon of heroes in the legal profession. And we are so fortunate that he's here and that he's on the faculty now. And he typifies the great work that our clinical program has done, to be distinguished from what it was like 40 years ago.

Q           So you've had this unique perspective of being in the Law School, but being a practicing lawyer in Dane County as well. What observations can you make about practicing in Dane County?

A            Well, when it comes to the judges, I gotta say – you know, keep in mind I spent four years in the system in         the Southern District of New York and tried about 25, 30 cases in front of what is presumably the cream of the federal judicial system at the trial court level, and I've got to say I've tried cases before judges here who were of a caliber that would fit well within the best of the federal judges in the Southern District. I gotta say it isn't universally true. I mean, my (unintelligible) of my experience came when during the middle of a trial I was in the men's room, and the judge was next to me, and neither of us was in a position where we could pull out quickly, and he started talking to me about the case. That was very uncomfortable.

When it comes to lawyers, my philosophy has always been, you know, I want to get along. And I've made many friendships in the courtroom. I treasure those. But -- so I've been fooled once, but I don't think I've ever been fooled twice by the same lawyer. And I've found that it's been a major, major plus of all the years in Madison, the friendships that I've made in the courtroom. I think there's only one lawyer       over all these years that got me that I really disliked.

And very symbolic of Madison, I remember one year I was trying -- I was prosecuting a case that had four defendants, and at about 8:15, 8:30 in the morning, I'm pulling up to the courthouse on my bicycle, and there's four other people, all four lawyers pulled up on their bicycles, a very typical and a very happy Madison scenario.

Q           That does sound like Madison. Is there anything else you'd like to say, to add?

A            Well, no. I would just say that I've -- coming to Madison was a wonderful decision. I had no idea how wonderful it was and how wonderful it would be. And, you know, the Bar has been a major facet of what's been a great 45 years here in Madison, and I'm very grateful to have had the opportunity to intermesh with it.

Q           As I said before, a generation of law students is thankful that you came. I think a generation of lawyers would have the same feeling about you too.

If there's nothing else, we'll wrap it up. Thank you again, and good luck.

A            Thanks.