A Cruel and Shocking Act: The Secret History of the Kennedy Assassination (11 page)

Frame #371 from the Zapruder film, November 22, 1963

6

THE CHAMBERS OF THE CHIEF JUSTICE

THE SUPREME COURT

WASHINGTON, DC

DECEMBER 1963

The chief justice feared it would be a miserable Christmas—and a terrible new year. Warren’s children said the Kennedy assassination had shaken him and their mother like no other event in their parents’ lives. “The assassination was just unbelievable to both of them,” said Robert, the youngest of their six children. “It changed them.” Another son, Earl Jr., said that for the first time in his father’s life, the “strain really, really showed.” By agreeing to run the commission, “he was living that tragic event over every moment.… It was really quite cruel for him to have to go through it again and again.”

That year especially, the chief justice would have welcomed the chance to escape the capital and spend the holidays back home in Northern California, surrounded by his children and grandchildren and his old friends, enjoying the sunny, sometimes warm December weather of the San Francisco Bay Area; the harshness of winters in Washington could still startle him. Traveling to California for the holidays had been his routine since joining the court, but now, having yielded to President Johnson, he suspected that he would be forced to remain in Washington. He needed to organize the commission, even as he prepared himself for a busy winter docket at the Supreme Court. The cases to be decided the following year included a momentous First Amendment case,
The New York Times v. Sullivan
, that was scheduled for argument on January 6. Several other major cases argued in late 1963 were set for rulings. Just nine days before the assassination, the court heard arguments in a landmark voting-rights case,
Reynolds v. Sims
; that case would allow the court to force all fifty states to adopt one-man, one-vote rules for elections of their state legislatures.

Luckily for Warren, he was still in good health at the age of seventy-two. He was proud that he was still vigorous, still hard at work at the court, even as so many of his old colleagues from the district attorney’s office in Oakland and at the governor’s offices in Sacramento were heading into retirement. Sadly, a few of his old California friends had recently gone to their graves.

By agreeing to run the commission, Warren had assumed two full-time jobs. He decided he would try not to limit, in any way, his activities on the court. After a decade on the bench—in October, he had marked his tenth anniversary as chief justice—Warren could see that the court under his leadership was remaking the country, pushing the United States into the future, making it fairer and freer. The court was defeating the bigots and the reactionaries who, he sensed, had somehow created the atmosphere that had resulted in Kennedy’s murder. His legacy as chief justice might be far greater than anything he could have achieved had he realized his earlier dreams of winning the White House.

Johnson and his aides had pledged to Warren that he would have unlimited resources to run the commission. He would have all the money he needed to hire a staff, find offices, and pay for whatever investigation was necessary. But somebody had to hire that staff, and somebody had to find those offices, and now all those responsibilities rested on Warren’s shoulders. He was being asked to run the court even as he set up and directed what amounted to a small federal agency to investigate the president’s murder—an agency that, if it did its job poorly, might cause the nation to stumble into war.

Warren knew he needed help fast, and he immediately reached out to Warren Olney, his most trusted aide throughout his career in county and state government back in California. Olney, fifty-nine, another native Californian, had first gone to work for Warren in 1939 in the district attorney’s office in Oakland. He was typical of Warren’s closest deputies—loyal, discreet, progressive, but essentially apolitical, someone who saw in Warren an ideal of what a public servant could be. The chief justice considered Olney “a man on whom I could bet my life for integrity.” Olney had followed Warren to Washington. From 1953 to 1957, he was assistant attorney general in the Justice Department’s criminal division; in effect, he was the Eisenhower administration’s chief criminal prosecutor. At the department, Olney made his mark—like his mentor Warren, across town at the court—on civil rights. He helped draft the 1957 Civil Rights Act, the first major civil rights legislation approved by Congress since Reconstruction. In 1958, he became the director of the administrative office of the U.S. Courts, the agency responsible for the logistics of running the federal court system; the job kept him in close touch with the chief justice.

After his meeting with Johnson in the Oval Office, Warren called Olney and asked him to join the commission to run its day-to-day investigation, with the title of general counsel. It would be a full-time job for however long the investigation lasted—two or three months, Warren estimated. To his relief, Olney said yes.

*

Warren had not yet met his fellow commissioners, but he seemed confident the other six would respond enthusiastically to the appointment. Olney was a well-known figure in Washington legal circles; he was certainly admired by many of his former Justice Department colleagues. Warren apparently thought it would all be a formality.

FBI director Hoover had other plans, however. Exactly how he got word of Warren’s intention to appoint Olney is not clear from FBI files. But within days of the chief justice’s conversation with Olney, the FBI was aware of Olney’s selection, and the bureau launched an aggressive, behind-the-scenes campaign to block it. The stop-Olney campaign was designed to remain a secret from the chief justice.

Olney had made enemies at the FBI. At the Justice Department, his zeal for civil rights enforcement was not shared by the bureau; Hoover, in particular, saw many civil rights leaders, especially Martin Luther King, as subversives, if not Communists. Hoover had come to consider Olney as “hostile” to the FBI and disparaged him as “Warren’s protégé”—the description used in FBI files.

The campaign against Olney reflected how much the relationship between Hoover and Warren had deteriorated in the quarter century they had known each other. As California’s governor in the 1940s, Warren had a close relationship—a friendship, he thought—with Hoover, earning him a place on the FBI’s coveted “special correspondents list” of public officials entitled to the bureau’s help. When Governor Warren traveled to Washington, he took advantage of the FBI’s offer of a car and driver. The relationship with Hoover was once so close that Warren reportedly asked the FBI to conduct a background investigation of a young man who was courting one of the governor’s daughters.

But when Warren arrived at the Supreme Court in 1953 and the court began to rein in the powers of the FBI, especially as the justices broadened the rights of criminal suspects, the relationship with Hoover chilled—and never recovered. By the time of Kennedy’s assassination, it was one of mutual contempt. Warren later told Drew Pearson he believed that Hoover’s FBI had been engaged for years in “gestapo tactics,” including illegal wiretapping in high-profile criminal investigations—practices that were ended in part because of the actions of the court.

“I remember J. Edgar Hoover when he had 700 men before the war and was doing a fine job,” Warren told Pearson in 1966 for what was supposed to be an authorized profile of the chief justice for
Look
magazine. “Now he has 7,000 men and power has gone to his head. He gets all the money he wants from Congress and there is no check on him whatsoever.” He said he feared that if the FBI and the CIA were ever combined into one agency, “we will really have a police state.” (Warren apparently realized he had spoken too freely to Pearson and convinced the columnist to abandon the article.)

Hoover had initially been opposed to the creation of an independent commission to investigate Kennedy’s murder. It would be a “regular circus,” he told Johnson in a phone call on Monday, November 25, three days after the assassination. His opposition was understandable. The FBI was not used to outside scrutiny of any sort; Congress offered little oversight of the bureau, routinely bowing to Hoover’s requests for larger and larger budgets to be spent mostly at his discretion. But with the creation of a commission, the FBI could expect a deluge of questions about why it had failed to detect the threat posed by Oswald, who had been under the surveillance of the bureau’s field offices in both Dallas and New Orleans in the months before the assassination. Hoover told his deputies he feared a commission might cause the bureau’s operations to be second-guessed in ways that could threaten the FBI’s very survival.

Still, he did not protest when, on November 29, Johnson called to announce that he had changed his mind and decided to create a commission. The recording of the call showed that Hoover accepted the decision without complaint, perhaps reflecting his trust in the new president to protect the FBI’s interests. There is no evidence that he complained to Johnson directly about the choice of Warren as chairman.

It was the selection of Olney, however, that caused Hoover to act. Quietly Hoover’s deputies contacted the members of the commission—apart from Warren—to warn them of Olney’s reputation at the bureau as a man who had not supported Hoover’s concept of law and order. As FBI assistant director Cartha “Deke” DeLoach wrote later, it was “necessary for a number of sources to confidentially brief members of the presidential commission, other than Warren, as to Olney’s background” and his “miserable personality.”

Warren scheduled the first meeting of the President’s Commission on the Assassination of President Kennedy—the panel’s formal name—for ten a.m. on Thursday, December 5. The setting was an ornate, wood-paneled conference room at the National Archives on Pennsylvania Avenue; the archives had agreed to make space for the commission to meet until it found offices of its own. Walking into the meeting that day, the chief justice was apparently unaware that his first key decision in running the investigation had already been undermined by the FBI.

*

Even before the meeting, there was evidence that the commission’s relationship with the FBI would be difficult. Hoover peevishly refused to grant the commission’s request that he send a senior FBI official to the meeting to answer questions about the state of the bureau’s investigation in Dallas. The FBI argued that it would be more appropriate for Deputy Attorney General Nicholas Katzenbach, who was due to attend the meeting, to represent the bureau.

There appeared to be a much more significant act of defiance by the FBI with a series of leaks to some of the bureau’s favorite reporters. On December 3, two days before the meeting, the Associated Press reported that the FBI was close to completing an “exhaustive report” that would identify Oswald as “the lone and unaided assassin of President Kennedy.” The AP report, attributed to unnamed “government sources,” said the FBI had determined that Oswald—“without accomplices”—fired three bullets at the president’s limousine from the Texas School Book Depository. The FBI report would find that the first and third bullets hit Kennedy, while the second struck Connally. Similar stories were leaked to other news outlets.

To several of the commissioners, the articles amounted to an orchestrated effort by the FBI, and probably by Hoover personally, to cement public opinion around the idea that there had been no conspiracy to kill the president—certainly no conspiracy that the FBI might have been able to foil. The bureau was trying to force them to reach conclusions before they had weighed any of the evidence, it appeared.

“It is the most outrageous leak I have ever seen,” Congressman Boggs, the Louisiana Democrat, told the other commissioners. “It almost has to come from the FBI.” Deputy Attorney General Katzenbach was convinced Hoover and his deputies were leaking the stories: “I can’t think of anybody else it could have come from.”

The meeting that Thursday opened with a round of handshakes among the seven commissioners and Katzenbach. They took their seats at a long, handsome, wooden table; the only other person in the room was a court reporter hired to transcribe the proceedings. Most of the transcripts of the commission’s executive sessions, classified as top secret, would remain locked away for decades.

“This is a very sad and solemn duty that we are undertaking,” Warren began. “I am sure there is not one of us but what would rather be doing almost anything else that he can think of than to be on a commission of this kind. But it is a tremendously important one.” President Johnson “is right in trying to make sure that the public will be given all of this sordid situation, so far as it is humanly possible,” he continued. “I feel honored that he would think that I, along with the rest of you, are capable of doing such a job, and I enter upon it with a great feeling of both inadequacy and humility because the very thought of reviewing these details day by day is really sickening to me.”

He then set out his view of the commission’s assignment. He said he believed the scope of the investigation should be limited and that the commission should finish its work as quickly as possible. In fact, “investigation” was really not the word for what he proposed. He argued that the commission should simply review the evidence about the assassination that had been gathered by the FBI, the Secret Service, and other agencies; it would be the commission’s responsibility to make certain that their investigations were adequate. Whatever he might privately think of Hoover, Warren seemed to believe that the FBI, in particular, could be trusted to get to the facts.

“I think our job here is essentially one for the evaluation of evidence, as distinguished from being one of gathering evidence, and I believe that at the outset, at least, we can start with the premise that we can rely upon the reports of the various agencies,” he said. According to Warren, there should be no public hearings, nor should the commission seek subpoena powers, which would require approval from Congress. He said he saw no need to hire a separate staff of investigators. “I don’t see any reason why we should duplicate the facilities of the FBI or the Secret Service.”