with David Kendall
You seem be proud of your Indiana roots...
My mother lived in Franklin when my father was in the service and for
a while I listed my birthplace as Franklin, and it occurred to me that
I was born at Camp Atterbury.
But you grew up in Sheridan.
I did. And I really think of Sheridan as my home. My father was transferred
overseas in late 44 and my mother lived with her parents in Sheridan.
After the war my father came back there and thats really where I
grew up. But I know this area [Montgomery County] very well. I remember
Smartsburg and how many Wabash guys stole the Smartsburg signs. And I
dont know if that still goes on, but I think it would be irresistible
to a college student. You have this place called Smartsburg and you think
of your room and the place where you might be able to display a sign like
Youve been a great alumnus of this college as class agent, returning
for reunions, talking about us publicly, and as the busiest man in Washington,
you always seem to get back for reunions.
Well, youre very kind. I wouldnt accept that characterization
because theres a lot I havent done. But it is fun. One of
my long-standing rivalries is with Vernon Jordan. Vernon is an old friend
and, of course, an alum of the institution down the road. So we always
make it a point to remind each other of the outcome of the football game
if it favors us so.
And thats probably been painful the last few years.
But the law of averages will strike back soon.
Whats life like for David Kendall these days?
Its very busy. Professionally Im doing a lot of anti-piracy
work for the motion picture studios and record companies. That may not
be the most popular thing on the college campuses, but I am at war with
groups like Napster, Scour, Aimster, which are taking copyrighted material
and distributing it, copying it illegally. Its work that I find
Who are your clients?
The clients are Sony Pictures Entertainment, 20th Century Fox, Disney,
Warner Brothers, MGM, Paramount, Universal, and on the record side, the
Recording Industry Association of America, the RIAA. Its the industry.
Im on the industry side.
Is Whitewater finally over?
Its not over, but it has subsided. The final report has not yet
been released. There are some subsidiary matters involving the President
and the Senator. In my view they are not terribly significant, but they
are out there. So there are still some things going on.
Is everything weve read about the Presidents charismatic personality
I want to be careful about everything youve read because a lot of
what youve read is false. But certainly it is true that he has a
real political gift. And I dont say that pejoratively; he is genuinely
interested in people and issues. He will walk into a roomand this
has often thrown us off schedulebut he will say hello to everybody,
even very hostile people with whom weve been involved in legal situations.
That delay, that taking time, will change the chemistry of the room in
a positive way. You get some sense of his enormous energy. Hes very
curious and very energetic. Hes just one-of-a-kind on the current
political scene in that regard.
Have you had some time for personal scholarship or research?
Not as much as Id like. After the impeachment proceedings ended
on February 12, 1999, I began trying to get back to my more normal professional
life, and that entailed a lot of media work. We do a lot of work for AOL
and its absolutely fascinating. I am intrigued by it. I find that
my learning curve shoots quickly up, but thats just getting me to
where everybody else is in their knowledge about computers, the Internet,
and the new technologies, and it has taken up a lot of my time.
Does that involve a lot of intellectual property issues?
Exactly. You know, copyright, trademark, unfair competition and things
like that. Although it also involves novel issues. AOL is really on the
cutting edge of a lot of different things and people are trying always
to do something that calls for novel solutions. For example, spammingthe
process of using someone elses facilities to purvey this unwanted
junk emailis something that weve been looking at along with
other Internet issues. My daughter graduated from college in 1999 and
went to work for Oxygen Media in New York City. She was on the Internet
side of their operation, and I provided her with an unfailing source of
amusement as I would ask questions which were pretty rudimentary, or I
would have insights that she had eight or nine years ago.
Its got to be kind of fun.
It is fun and I enjoy it. But to answer your question, I had been teaching
as an adjunct professor at Georgetown Law School. I began doing that in
about 1985 and did it for 12 years, and Ive not yet gotten back
to that. Id like to get back to that but Ive just not had
the time to do so.
Steve Coz, editor of the National Enquirer, says you have this
profile of David Kendall as a Quaker choir boy, but in reality he
is a street fighter, a polished version of James Carville. How do
you react to that characterization and how do you balance your Quaker
upbringing with the dog-eat-dog world that is Washington, D.C.?
I like Steve Coz a great deal. Weve been through a lot of great
battles together. The Enquirer is a very interesting story. The
Enquirer is not what people imagine it to be; the people who talk
about it often havent really read it very much. It has done a lot
of incredibly good journalistic wor.
I object to the Quaker part of the description, I guess. I am a member
of the Religious Society of Friends, or my ancestors were, but that tag
gets hung around me a lot in ways that I dont really understand
and dont much like. I dont know what it signifies. I served
in the Army. I have a very complicated relationship with my religious
heritage, I guess.
In terms of the street fighter, I take the reference to James Carville
as praise. I love James. He and I have had both battles against one another
and for common causes. James is very candid and he is very loyal. The
street fighter, I guess... I think unfortunately the political scene today
is often messy, personalized, and partisan in bad ways. All politics is
partisan, so I dont take the word partisan to be pejorative. Today,
though, I think there is a scandal tinge that affects coverage in ways
that are often bad. I dont fault the press for following scandal;
the last thing in the world we need is a sleepy press. One of the great
glories of our society is the freedom of the news media, so I take that
as a given. But I think that with that freedom goes responsibility and
I think the press is often used for partisan ends. And I think there are
a lot of abuses of the press, so that makes life in the public eye often
very difficult. I think youve got to be aware of the public relations
aspects of things, I think youve got to fight back, and I think
you have to be pro-active. So if thats what it means to be a street
fighter, I take it as praise.
How did you personally find life in the media spotlight?
Well it was not something I sought nor particularly welcomed, but it obviously
goes with the territory. So you cant complain about it. I found
it difficult because, at least during the Lewinsky period, my house got
staked out every day. I didnt drive out my driveway running over
the news mediathey were polite, they didnt trespass. But they
were kind of a continuous presence. I think it was lucky for me that the
Lewinsky piece of the representation came after four years of battling
over Whitewater. So this media focus was not new, but it jumped to a higher
level in mid-January of 1998.
Somebody once asked, What do actors and actresses want? and
the answer was, Only three things: praise, praise, and praise.
I guess people like good coverage, positive coverage, but they dont
like negative coverage. In that I dont think Im different
from most politicians. But once youve begun to be written about,
you cannot be governed by that, you cannot think overly much about that.
Now youve got to think about it because youve got to avoid
making your own and your clients situation worse. Youve got
to be discreet, you cant mouth off as if you were a private citizen.
Because if you mouth off, you can say something that you mean one wayits
in one contextbut when its reported in that cold, black ink
its going to look very different.
Did you ever get angry or frustrated with the independent counsels
investigation process and did it ever become visible to the public if
I dont know if it became visible to the public, but I would say
that on a daily basis I was angry and frustrated. That I think is true
with a lot of people in public life. You do things; what gets covered
is maybe not what you thought was important and things get mischaracterized.
But again, its part of the process. You know, I would go for a run
and just try to keep things in perspective. My family was very, very helpful
at this, and so were my friends in Washington. The good thing was that
there were a lot of people who helped give you a sense of perspective.
They tease you when certain things are said about you. They help remind
you that these things, too, will pass.
Your first interactions with Ken Starr were very different than your
last. What were your initial impressions of Starr as lawyer and judge
in the Mobil Oil case?
Well, I think again Im not going to get into that too much
but I think that he is obviously a very bright man. I certainly
agreed with his decision in the Mobil Oil libel case. I think he has a
wide range of experiences. And in many ways he is quite a capable lawyer.
Have your impressions of him changed in his role as independent counsel?
Yeah, they did. And I think thats part of the public record and
Im going to let that record speak for itself.
As the chief architect of President Clintons legal defense in
the impeachment trial and looking back on it now from a distance, what
were the critical points of your defense?
Well, its hard to say. I think that putting things in perspectivewhich
took time [was critical]. I think the initial loss of perspective eventually
helped us, as charges were exaggerated, as various hypocritical issues
were raised. I think that the country outside the beltway had a much more
realistic take on things than a lot of people inside the beltway. I think
that gradually things came into perspective, and while that perspective
wasnt entirely positive, it was also not entirely negative. But
the danger is that things always move so fast in Washington. You may lose
in the short term. Edward Bennett Williams used to say, Washington
burns a witch every three months. Its important not to be that witch.
And theres a lot of wisdom in that.
At the Senate impeachment trial you built your defense on the relentless
focus on the facts, the law, and the constitution. How did you manage
to get beyond the betrayal that some Senators felt and get them in a bi-partisan
way to focus on the constitutionality of the case?
The Senate acted very differently than the House, and I mean that in a
very positive way. I think the Senate was genuinely bi-partisan. I think
the Senate had seen the food fight in the House and did not want to engage
in that. I think there was leadership, particularly I must say on the
Democratic side. I think Senator (Tom) Daschle deserves a lot of credit
for working out a process that would focus on evidence. And when you look
back at it, one of the most important things the Senate did was to identify
the record, identify the evidence in the very beginning that was at issue.
And that was the several volumes of evidence from the independent counsel.
The House really had added nothing. The House did no fact-finding. It
really is spectacular when you stop to think about it that, unlike 1973-74when
you had a committee that took testimony, analyzed evidence, and really
did its own work,that the House did none of that. The House was
totally partisan, relied entirely on the independent counsels work
with the exception of the independent counsels testimony. And he
[Starr] admitted on November 19, 1998 that he had seen none of the witnesses.
You know, there was just no evidentiary work done.
So what the Senate did in the beginning was to say, This is the
evidence were talking about. What does it add up to, legally and
constitutionally? The Senate did authorize three depositionsLewinsky,
Vernon Jordan, and Sydney Blumenthal. Thats three more depositions
than the House took. So the Senate actually did do more investigation
and fact-finding. But then it voted in what I thought was the right way.
And I think also the Chief Justice [William Rehnquist] deserves credit
for a very skillful handling of this remarkable proceeding.
How have the last seven or eight years taken a toll on your personal life,
and following that your professional aspirations?
Well, Im not sure what my aspirations are at this time, other than
to practice law, have a good time, and enjoy my family.
I think its easily possible to overstate the oppression and the
difficulty of this assignment. I enjoyed it. I wouldnt trade a minute
of it. It was very difficult at times, theres no question about
that. And in part thats because of the realitiesthe media
realitiesof life in the late 20th century. You were on call 24 hours
a day. Things would come up, you know, late Saturday afternoon, and youd
have to work. One of the things I enjoy so much about my life now since
January 20 of this year is that were really offalthough Senator
Clintons life, well, you know something could come upbut thats
different. And thats what was so difficult about it. There was no
way to get away from it. No real vacation from it; when you were on vacation,
you were sort of linked to your cell phone. But all of that said, it was
a wonderful experience.
Ive always been interested by politics. To say I enjoyed every minute
of it, well there were parts of it that I intensely did not enjoy. But
the overall experience I certainly enjoyed and I am grateful for having
had the opportunity to be a part of it.
Do you represent Senator Clinton?
Yes, I do. And I still represent the President.
You spent the bulk of your early legal career arguing against capital
punishment, saying that it does not serve as a deterrent to society
for violent crimes, it demeans society. After being involved in
several high profile cases in the 70s, you spoke at Wabash in 1979 and
said that in 20 years there will be no death penalty. Well,
20 years have passed and....
Ah, youthful optimismits a wonderful thing. Im 20 years
older and I think the country is going in that direction. I think that
Governor (James) Ryans moratorium is helpful. Im afraid I
was clearly wrong on the timing. I was rash to have said 20 years. But
I think society is trending in that direction. I think the death penalty
is a kind of barbaric atavism. In part its been preserved politically,
and I regret that the Democrats, I think, are on the wrong side of the
issue. It will eventually wither away. Again, this is not to say that
people should not be harshly punished for violent crimesthey should
be. I think the death penalty is an inefficient way, a counterproductive
way to try to deal with violent crime.
Did you weigh in on Timothy McVeigh?
I cant recall being asked about Timothy McVeigh. I certainly would
have. I think Timothy McVeigh should have been locked up, and the key
thrown away. I think that, unfortunately, to execute himmy own,
personal viewwill not bring any of his victims back, and that somehow
executing him almost trivializes the atrocities hes committed because
it suggests that theres somehow an equivalence between what society
has done to him and what hes done. Timothy McVeigh is a poster boy
for the death penalty, theres no question about that.
Do you think that the intense media attention paid to the McVeigh execution
will turn the tide of American public sentiment toward the death penalty?
Well, thats a good question. I think youve got to confront
the worst cases. If people really knew the facts about a lot of people
on death row, they would say, that person doesnt deserve to
be executed; be imprisoned yes, but executed no.
I suspect that the more facts you learn about McVeigh, the more you may
think he should be executed. I dont know if it will affect public
opinion or not. I dont think it has so far.
But public opinion is a very volatile thing. DNA testing is a good example.
I think DNA testing is a good thing because obviously there are cases
where it can prove that somebody who is accused is not guilty. The problem
is that in a lot of cases there is no possibility of DNA testing; its
just a non-issue in the case. And the fact that you can use DNA testing
may give you an entirely false sense of security about the way you use
the death penalty. So Im of two minds on thisIm all
for DNA testing but Im not for drawing too many conclusions from
But again, I think that the death penalty really doesnt have very
much to do with the people being executed; it has to do with what we as
society think is the right way to treat those people. I really do believe
that society is trending toward abolition, although I would not be so
rash today as to say that in 20 years there will be no more death penalty.
Youve always said its the cloak of secrecy that
makes it easy for us as a society to execute prisoners. And that doesnt
seem so much to be the case these days.
You dont see executions televised. At one time, of course, people
watched executions; Owensboro, Kentucky had the last public execution
in 1936. Its still one of those things that people put out of their
minds a little bit.
Edward Bennett Williams once said something to the effect that its
the lawyers job to defend and the Lords job to judge.
How do you divorce yourself from the conduct of your clients?
I think all lawyers do that, and they do it in the same way that I suspect
that other professionals do it. You have a certain professional role.
In the legal system we live in an adversary system. There are two sides
to every pancake, no matter how thin. Its the prosecutions
job to prosecute, its the defense lawyers job to defend, its
the judges job to sort that out, and the jurys job to decide.
And all those are particular roles. You cant as a defense lawyer
arrogate to yourself the role of judge, prosecutor, or juryits
not your role professionally. Youve got to play within the rules.
A lot of television gives a completely distorted idea of what defense
lawyers do. Id turn the question around and I would ask why should
it be that, given a professional role, that you are necessarily identified
with the client simply because you defended him? Ive exchanged letters
with a black lawyer in Texas who was a member of the ACLU and was representing
the Klan. The Klan wanted to get a permit to march or something, so this
guy took a lot of grief for it. But it seemed to me on the civil liberties
issue he was correct, and on the professional role issue he was correct.
I know that there is that identification, but I guess my response is that
there should not be; you are a lawyer and you are a professional.
People often refer to you as the ultimate cause guy. You
fought for the African American right to vote in the 60s and you
staunchly opposed the death penalty in the 70s. Youve defended
First Amendment freedoms for everyone from the National Review to the
National Enquirer to Playboy magazine. And you saved one of the centurys
most popular and effective presidents from the most damning of all political
punishments. Whats the next cause for David Kendall?
I dont know. As I say, if somebody says something nice about me
I never disagree with it. I dont know that I would say I was a cause
person. I have done things, as other people do, because I believed in
them. I dont know what comes next. Im very interested in the
new technologies; issues involving intellectual property in an age where
you have the Internet and how you balance the wondrous capabilities of
that medium with the traditional rights of people who create things.
But I dont know what the future holds. I guess if I could defend
the Christian aid workers on trial in Kabul, Afghanistan I would be on
the next plane because that seems to me such an atrocity. Obviously Im
not going to get that opportunity and Im not sure the Taliban would
be the place to make civil liberties, civil rights arguments. Ill
continue to be a lawyer and practice law. I dont have any particular
agenda, but I dont think Ive ever had much of an agendathings
have just happened.
They just happened at such historical times, such momentous occasions.
From the summer you spent in Mississippi to Gary Gilmore to standing in
front of the Supreme Court making law with regard to rape and capital
punishment and impeachment. What a remarkable career. And certainly its
not over yetIm not writing your epitaph. But how do you wish
to be remembered?
Well, youre very kind. I dont think about my epitaph, although
my kids remind me that Im not as young as I think I am. You do things
and the chips fall and youve got to move on. I hope things will
be interesting. One of the things I enjoy about being a lawyer is that
there have been fascinating things to do and controversies. I guess I
would like to be involved. I dont know where those issues will arise
in the United, but Id certainly like to be involved in them when
Are you disappointed in our country and its inability to recognize
these sorts of problems around the world?
No, absolutely not. In fact, Im quite proud of our country. Its
really remarkable. We have to be careful about our power, but I think
we are often in the world a force for good. There are a lot of things
we could do that we are not doing, perhaps, but were also doing
a lot of good for the world. And actually if you look around the world,
things are running in the right direction and they have been for the last
10 or 15 years in terms of more freedom abroad, more of a market economy
around the world, and more sensitivity to environmental issues. The United
States aint perfect, but it certainly is in the history of humanity
doing quite well, knock wood.
Tim Padgett 84, who writes for Time, says hes often
disappointed that the media doesnt necessarily recognize issues
outside our borders and is more often concerned with scandal inside our
To that I say,Amen. And I think the media could do more and
should do more to put issues in perspective.
I remember the New York Times a few years ago had a four-part series
on water. And you might say to yourself, Whats the big deal
with water? Well if you looked at the number of deaths that occur
around the world due to polluted water, parasites in waterthe issues
are very important. It was an absolutely incredible series. And I thought
to myself, thats what good journalism really isit can make
something interesting; it can treat a problem; and again it makes you
aware of things that affect many people. Yet until somebody puts it together
and writes about it you dont see it. No, it doesnt have the
flash of a Gary Condit scandalbut its very, very important.
Coeducation: Youve been outspoken that you believe Wabash should
be a coeducational institution. Given your background in civil liberties,
do you think there should be choices in American higher education?
Oh, absolutely. I think it should offer choices, and maybe single sex
education is the choice for Wabash. I really speak only for myself and
I know Im in the minority. But I thought that before I came to Wabash.
I thought it when I was here, and Ive thought it since. Not because
higher education shouldnt offer choices, but the quest for social
life was often so time consuming and occasionally dangerous that I thought
coeducation was the better way.
But I also think the classroom ought to be like the world. I really think
that women belong in the classroom, because you work with women, live
with women. I think that is the way of the world and I dont see
much intellectual or social justification for isolation in the educational
But as I say, Im plainly in the minority.
Read any good books lately?
Not enough. Ive been re-reading. War and Peace, a big slog; and
the Scarlet Letter, of all things. In my commuting back and forth from
the office Ive been listening to the tapes from the Teaching Company.
And I was listening to a series on American literature and and I read
a new book there after listening to these tapes. Anne Tyler, I like. Ive
spent a lot of time reading things relating to the recent political era.
I sort of read all of those books even though there are a lot of bad books
there. But I read a lot.
Are you anxious to read the Senators and Presidents new
Well I think they will be good. I am, in fact, anxious to read them. She
wrote It Takes a Village herself. I think they will be interesting
and they will be written with some greater perspective, which I think
will be helpful. That is to say that they will be written some years from
the events that they recount. And I think they will be good.
Glad to be back at Wabash?
Oh, I really am. I love Indiana. My sister is in Indianapolis and we still
have the family farm. So I really enjoy getting back. I suppose I have
the typical nostalgia. Im interested in seeing how things changeIm
always looking for what I remember, so it is good to be back.
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