"I think there are a lot of abuses of the press, so that makes life in the public eye often very difficult. I think you’ve got to be aware of the public relations aspects of things, I think you’ve got to fight back."

"Edward Bennett Williams used to say, 'Washington burns a witch every three months. It’s important not to be that witch.' And there’s a lot of wisdom in that."





















































"I think Timothy McVeigh should have been locked up, and the key thrown away. I think that, unfortunately, to execute him—my own, personal view—will not bring any of his victims back, and that somehow executing him almost trivializes the atrocities he’s committed because it suggests that there’s somehow an equivalence between what society has done to him and what he’s done."

"I’m quite proud of our country. It’s 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 we’re also doing a lot of good for the world."

Magazine
Fall/Winter 2001

30 Minutes
with David Kendall
Interview

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 that’s 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 don’t 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 that.

You’ve 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, you’re very kind. I wouldn’t accept that characterization because there’s a lot I haven’t 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 that’s probably been painful the last few years.

But the law of averages will strike back soon.

What’s life like for David Kendall these days?

It’s very busy. Professionally I’m 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. It’s work that I find very interesting.

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. It’s the industry. I’m on the industry side.

Is Whitewater finally over?

It’s 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 we’ve read about the President’s charismatic personality true?

I want to be careful about everything you’ve read because a lot of what you’ve read is false. But certainly it is true that he has a real political gift. And I don’t say that pejoratively; he is genuinely interested in people and issues. He will walk into a room—and this has often thrown us off schedule—but he will say hello to everybody, even very hostile people with whom we’ve 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. He’s very curious and very energetic. He’s 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 I’d 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 it’s absolutely fascinating. I am intrigued by it. I find that my learning curve shoots quickly up, but that’s 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, spamming—the process of using someone else’s facilities to purvey this unwanted junk email—is something that we’ve 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.

It’s 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 I’ve not yet gotten back to that. I’d like to get back to that but I’ve 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. We’ve 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 haven’t 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 don’t really understand and don’t much like. I don’t 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 don’t 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 don’t 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 you’ve got to be aware of the public relations aspects of things, I think you’ve got to fight back, and I think you have to be pro-active. So if that’s 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 can’t complain about it. I found it difficult because, at least during the Lewinsky period, my house got staked out every day. I didn’t drive out my driveway running over the news media—they were polite, they didn’t 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 don’t like negative coverage. In that I don’t think I’m different from most politicians. But once you’ve begun to be written about, you cannot be governed by that, you cannot think overly much about that. Now you’ve got to think about it because you’ve got to avoid making your own and your client’s situation worse. You’ve got to be discreet, you can’t mouth off as if you were a private citizen. Because if you mouth off, you can say something that you mean one way—it’s in one context—but when it’s reported in that cold, black ink it’s going to look very different.

Did you ever get angry or frustrated with the independent counsel’s investigation process and did it ever become visible to the public if you did?

I don’t 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, it’s 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 I’m 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 that’s part of the public record and I’m going to let that record speak for itself.

As the chief architect of President Clinton’s legal defense in the impeachment trial and looking back on it now from a distance, what were the critical points of your defense?

Well, it’s hard to say. I think that putting things in perspective—which 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 wasn’t 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. It’s important not to be that witch.” And there’s 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 1973-74—when 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 counsel’s work with the exception of the independent counsel’s 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 we’re talking about. What does it add up to, legally and constitutionally?” The Senate did authorize three depositions—Lewinsky, Vernon Jordan, and Sydney Blumenthal. That’s 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, I’m not sure what my aspirations are at this time, other than to practice law, have a good time, and enjoy my family.

I think it’s easily possible to overstate the oppression and the difficulty of this assignment. I enjoyed it. I wouldn’t trade a minute of it. It was very difficult at times, there’s no question about that. And in part that’s because of the realities—the media realities—of life in the late 20th century. You were on call 24 hours a day. Things would come up, you know, late Saturday afternoon, and you’d have to work. One of the things I enjoy so much about my life now since January 20 of this year is that we’re really off—although Senator Clinton’s life, well, you know something could come up—but that’s different. And that’s 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.

I’ve 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 optimism—it’s a wonderful thing. I’m 20 years older and I think the country is going in that direction. I think that Governor (James) Ryan’s moratorium is helpful. I’m 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 it’s 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 crimes—they 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 can’t 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 him—my own, personal view—will not bring any of his victims back, and that somehow executing him almost trivializes the atrocities he’s committed because it suggests that there’s somehow an equivalence between what society has done to him and what he’s done. Timothy McVeigh is a poster boy for the death penalty, there’s 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, that’s a good question. I think you’ve 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 doesn’t 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 don’t know if it will affect public opinion or not. I don’t 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; it’s 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 I’m of two minds on this—I’m all for DNA testing but I’m not for drawing too many conclusions from it.

But again, I think that the death penalty really doesn’t 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.

You’ve always said it’s the “cloak of secrecy” that makes it easy for us as a society to execute prisoners. And that doesn’t seem so much to be the case these days.

You don’t see executions televised. At one time, of course, people watched executions; Owensboro, Kentucky had the last public execution in 1936. It’s 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 it’s the “lawyer’s job to defend and the Lord’s 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. It’s the prosecution’s job to prosecute, it’s the defense lawyer’s job to defend, it’s the judge’s job to sort that out, and the jury’s job to decide. And all those are particular roles. You can’t as a defense lawyer arrogate to yourself the role of judge, prosecutor, or jury—it’s not your role professionally. You’ve got to play within the rules.

A lot of television gives a completely distorted idea of what defense lawyers do. I’d 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? I’ve 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. You’ve defended First Amendment freedoms for everyone from the National Review to the National Enquirer to Playboy magazine. And you saved one of the century’s most popular and effective presidents from the most damning of all political punishments. What’s the next cause for David Kendall?

I don’t know. As I say, if somebody says something nice about me I never disagree with it. I don’t know that I would say I was a cause person. I have done things, as other people do, because I believed in them. I don’t know what comes next. I’m 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 don’t 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 I’m not going to get that opportunity and I’m not sure the Taliban would be the place to make civil liberties, civil rights arguments. I’ll continue to be a lawyer and practice law. I don’t have any particular agenda, but I don’t think I’ve ever had much of an agenda—things 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 it’s not over yet—I’m not writing your epitaph. But how do you wish to be remembered?

Well, you’re very kind. I don’t think about my epitaph, although my kids remind me that I’m not as young as I think I am. You do things and the chips fall and you’ve 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 don’t know where those issues will arise in the United, but I’d certainly like to be involved in them when they do.

Are you disappointed in our country and its inability to recognize these sorts of problems around the world?

No, absolutely not. In fact, I’m quite proud of our country. It’s 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 we’re 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 ain’t perfect, but it certainly is in the history of humanity doing quite well, knock wood.

Tim Padgett ’84, who writes for Time, says he’s often disappointed that the media doesn’t necessarily recognize issues outside our borders and is more often concerned with scandal inside our borders.

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, ‘What’s 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 water—the issues are very important. It was an absolutely incredible series. And I thought to myself, that’s what good journalism really is—it 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 don’t see it. No, it doesn’t have the flash of a Gary Condit scandal—but it’s very, very important.

Coeducation: You’ve 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 I’m in the minority. But I thought that before I came to Wabash. I thought it when I was here, and I’ve thought it since. Not because higher education shouldn’t 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 don’t see much intellectual or social justification for isolation in the educational environment…But as I say, I’m plainly in the minority.

Read any good books lately?

Not enough. I’ve 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 I’ve 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. I’ve 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 Senator’s and President’s new books?

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. I’m interested in seeing how things change—I’m always looking for what I remember, so it is good to be back.

Return to the table of contents