00:00it’s been a long time since we were here00:02together and so Gettysburg is our topic00:06as I’m sure you remember and I want to00:09start tonight by seeing if there are00:10things that have occurred to you in this00:13interval that you want to bring up any00:14leftover things from last time or any00:17nagging problems or aggravating00:22statements that you’ve been mulling over00:25since we last met Scott you look like00:27you’re assuming the asking a question00:29position is that correct I do have aquestion I one of the things that I aslike a historian of the Civil War andyou kind of touched on this in the essayyou wrote on here the struggle to likefigure out who to believe and who didnot believe and how you decipher allthese different accounts and I feel likein this book which one are you pointingto Alexander yeah versus some of otherthings we’ve read he has a differentperspective on like whether they shouldhave continued the battle on the firstday and that he’d be he offered theopposite point of view I thought that ina number of instances than what we readand I struggle especially because a lotof this stuff is written so far afterthe war to decipher like you know andparticularly you who’ve studied a moreasking how do you understand and how doyou kind of consolidate two differentperspectives and who’s right and youwould actually have you you read a lotof things and play them off against oneanother and make judgments about whichpeople which historical actors tend tobe reliable and which are liars that anumber of them are just in better Liarsthey lie about everything he is he is Itold you before everybody else came in Ithink he is the single best writer aboutthe war among all the people whoexperienced the war and wrote about it02:04from the Confederate side and I think on02:06the Union side the only one02:08better than geniuses u.s. grant us grant02:11and Porter Alexander are the two best02:12memoirs military memoirs of the Civil02:15War he wrote another book as you know if02:18you read the introduction in here02:20carefully that he published in nineteen02:21seven and Alexander did called military02:23memoirs of a Confederate it’s so good02:25that it has never been out of print02:27two hundred and thirteen years later02:28that books never gone out of print02:30he wrote this one however before he02:33wrote military memoirs and military02:34memoirs has a misleading title because02:37it isn’t a memoir it’s really a history02:39of the Army of Northern Virginia02:41he wrote this one first wrote it only02:44for his children which gives him a tone02:49that simply is almost never present in a02:52memoir as you know he’s very hard on02:55robert e lee in various places in there02:57almost no former Confederates were hard02:58on these very hard on Stonewall Jackson03:00he quotes profanity he quotes instances03:03of cowardice he’s absolutely up front03:06about Confederate soldiers who killed03:07black soldiers who tried to surrender at03:10the Battle of the crater he’s not very03:11matter-of-fact they killed them they03:13came they heard there were black03:14soldiers they came from way down at the03:16other end of the line so they could kill03:17one of them it’s it’s it’s an amazing03:21book in many ways and it was a03:23revelation to me not only to me but to03:26people who knew Alexander well and in03:28the literature very well I think that03:30has become the single most quoted book03:34on Lee’s army by anyone who was in his03:37army and it’s just because he’s I’ve03:40been able to check lots of things over03:41the years his descriptions and so forth03:43and he he’s amazingly accurate was an03:47engineer he’s really smart he’s03:48obnoxious Lee smart can tell by reading03:50this that he was a pain to a lot of03:52people because he was smarter than they03:54were and they knew he was smarter than03:55they were one of one of those kinds of03:57people we all know those people we maybe04:00those people but anyway he’s one of04:02those people and he had there’s a04:04description in there of a place on the04:06North Anna River he was at that place04:08one time for 30 minutes in his life and04:12he described how the Federals started to04:14shell that position and how the house04:16had recessed windows04:20said they thought they were about a foot04:21and he jumped up in one of the windows04:23and pressed himself against that as the04:26shells came in and one of the union04:27shells hit a chimney that was up to to04:30his left and destroyed part of it and we04:33took a tour there this has been 15 years04:35ago now got to that house and it’s04:38exactly as he described it recessed04:41windows a chimney with a repair on the04:44top of it right to the top left of the04:46window which was on the side of the04:48house where he said he was it’s just04:49astonishing of what his memory was like04:52but he also had a diary that helped jog04:55his memory04:56and he had letters that he’d written04:57during the war that he also used when he04:59wrote this so it’s so it’s an amazing05:02account that doesn’t mean it’s05:03infallible and it doesn’t mean there’s05:05no second guessing there’s always second05:06guessing in a memoir even more generally05:09I mean it talks about in the the other05:11book about how even in the war council05:14would need like there were all the05:17different people who were there and have05:19first-hand accounts have dipped recount05:21like the weather men had reservations05:25about and they don’t all agree and if05:31three weeks from now somebody looked all05:34of us up and asked us to give them an05:36account of this class meeting there05:39would be many things that would be05:41difficult to reconcile we would you’re05:43all going to very different memories of05:44what goes on in here you hear different05:47things you process different things05:49differently and you’ll just have05:51different memories I think I’m very05:53suspicious of oral histories as a05:55category of evidence they’ve they’re05:58very much used now they’re going to be06:00used more and more because people don’t06:01write letters anymore and they try to06:03destroy email even though they really06:05can’t but they get it beyond the reach06:06of historians so it’s going to be a real06:11problem I think an even bigger problem06:13than it has been in the past06:15yes and06:17worse because if we were sharing our06:20view of this class we wouldn’t have an06:21agenda oh you might have an agenda06:24we might everybody has an agenda I’m not06:27that compared to people who are trying06:29to chose not comparative people whose06:31reputations are on the line06:32yes not compared to Daniel sickles06:34arguing with George Gordon Meade about06:37what went on on the second day of the06:39Battle of Gettysburg no they have a lot06:41right now I have a lot riding on that06:43yes I think kind of a different way that06:48liyan means are treated is really06:51interesting it seems like Lee gets away06:53with making a lot of mistakes and06:55everybody forgives him and his06:56reputation still really strong and it06:58seems all neat successes are kind of07:00characterizes not sort of good luck you07:05mean his successes at Gettysburg yeah07:07good kind of good fortune and I is it07:10does we get away with it because of the07:12charisma because I want to know what you07:16think the answer to your own question is07:18that was the one thing I could come up07:21with and also maybe Longstreet just07:23going on such a tiring after Gettysburg07:25probably helpfully out in a huge way but07:29it did it I think if we could bring Mead07:32and Lee into this room and have them07:36here they would leave and then we would07:38talk about them and you would have a07:40very different impression of lead than07:43you did me no matter what you thought07:45and you might have an impression going07:46in by the time they left I think you07:50would leave was just one of those people07:52who commanded spaces and impressed07:57people even people who didn’t especially07:59think they wanted to like him me was08:02grumpy and he doesn’t have a lot of08:05successes over all his career I mean Lee08:06comes into Gettysburg with this resume08:08with a number of really quite08:10spectacular successes on it almost all08:13against the odds and me doesn’t have08:16that on these resume08:17never has that on his resume and has the08:19bad fortune about a year after08:23Gettysburg to find himself traveling08:25he’s still the commander the army but08:27grant is traveling with the army and so08:29it’s not means army it’s grants army if08:32anything good happens it’s grants army08:34if anything bad happens it could be08:36means army well so what08:38you never think that lea would do08:41something like media Chamberlain like08:44give him like 120 men and just like well08:48me didn’t do that to Chamberlain08:50underlings did it I mean it happened it08:52was way down the chain of command it was08:54the brigade commander who told08:55Chamberlain a guy named strong Vincent08:58and you’ll see his little marker where09:00he was mortally wounded strong Vincent09:01told Joshua Chamberlain strong Vincent09:03commanded this brigade and in the fifth09:07Corps and Joshua Chamberlain’s main09:09regiment was one of the regiment’s in09:10that when you walk along Little Round09:12Top when you’re there they’re the main09:14regiment then there’s an 83rd09:16Pennsylvania and there’s a Michigan09:18regiment and a New York regiment those09:20are the four regiments in a brigade and09:21it just so happened that Chamberlain09:23ended up on the left but of course you09:25mean what would we put soldiers in a09:28position like that yeah09:29just like that oh he would just09:32absolutely like that09:34yep yep say though that meat has like09:36nothing like what Lee has on his resume09:38but he was the commander of the army09:41when the Union won the biggest battle of09:45the war so isn’t that a huge resume09:46building no because it’s grants army in09:49everybody’s mind it’s because US Grant09:51is with that army the entire way09:53once he gets east which is to say the09:56only battle where George Meade is really09:58the commander of the army of the coma is10:00this one but it’s a big one but it is a10:03big one it’s a really big one it’s a big10:05one that left10:06Abraham Lincoln with what idea about me10:10did he let Lee get away and finished you10:13had a chance to really finish the job10:15and he didn’t do it didn’t do it10:18immensely frustrated by this once grant10:21comes Meade is part of the eye and I10:25think meat was a good soldier don’t get10:27me wrong but meat is not the soldier10:29could win the war for the United States10:31I mean there’s not the slightest chance10:34that he could have been a soldier who10:35won the war the United States he just10:37doesn’t just doesn’t have it why do you10:40think he was so and and I was surprised10:45by the essay on meeting here because10:47he’s like touted as this great very10:51positive este positive but when you read10:53it there he doesn’t do that much he just10:55like repositions some people and gets a10:57lot of credit for that but obviously10:59clearly Sowers is he’s very good at11:01repositioning you know that sounded so11:05snarky actually was good at11:08repositioning and that is important11:10we’ll taco I mean this is yeah so we’ll11:13talk about that what’s your body is11:14narrow if you got bottom line to this11:16particular set of comments all effort11:19those trying to dish I was trying to11:20defend the point that meat had nothing11:22on his resume because well coming into11:24Gettysburg here’s range resume he was a11:27pretty good division commander he11:29commanded the Pennsylvania reserves he11:30commanded the division at Antietam then11:32he’s promoted the corps commander he’s a11:34corps commander at Chancellorsville but11:36he doesn’t really do anything he was11:38still a division commander at11:39Fredericksburg and his guys got shot11:41just like everybody else’s he did okay11:43but he didn’t really stand out so he’s11:46an okay corps commander he was a pretty11:48good division commander and he’s an army11:50commander who’s been in command for11:51three days that’s a pretty blank resume11:55I think for someone who’s an i and in11:58contrast Lee has the seven-day second12:00Bull Run the Maryland campaign12:01Fredericksburg and Chancellorsville on12:03his resume vastly different maybe back12:08to Kara’s question a little bit Scott’s12:09um does the difference between what12:14Howley and he’ll meet or perceived as a12:16maybe to some of that stem from they’re12:20just they’re different leadership styles12:21as well the fact that it does seem like12:23pretty consistent Lili is the central12:27figure right he’s figurehead he’s an12:29idol all all decisions flow to him he12:32has a very small staff and much too12:35small right and12:36admittedly and and at the same time mead12:39is having counsels and group discussions12:43and votes about what should be done and12:46I wonder if that distributive form of12:50power just that kind of a distributive12:52power structure if maybe that also these12:54because it makes it easy for meets12:56critics to look them and say oh he12:58didn’t decide anything the group did13:00okay right but at the same time in my13:03mind it seems like that actually might13:05be a more effective more effective but13:08that was one of the questions that I13:09wanted to talk about that I wanted to do13:11at last but I don’t care how we do this13:13I will get to lots of things tonight and13:15since this is supposed to be a more13:17freeform evening we can do just exactly13:20whatever you want to do as long as you13:22don’t get wildly out of control but if13:25we want to talk about that I’m happy to13:27talk about that they have very different13:29leadership styles leak and make a13:30decision Lee doesn’t need votes to13:34decide what he’s going to he talks to13:35people talks to Longstreet every day13:37we’ll do more of this next week talking13:39about the subordinates goes and talks to13:41you’ll and his subordinates on the night13:43of the first talks to you again that13:45night he’s worried about you all he’s13:47already figuring out that you’ll he’s13:49not Stonewall Jackson which he didn’t13:51know before now he’s figuring that out13:53but he never says let’s vote never says13:57that’s all getting the room and vote13:58that’s not he does not need to do that14:01but me certainly you can have some14:04sympathy for being in this situation14:06that having been in command for three14:08days and never been an army commander14:12before he’s junior to some of the pizza14:14some of the other corps commanders he14:15isn’t even the senior corps commander14:17he’s junior to John Reynolds he’s junior14:19to John Sedgwick it’s not even the14:21senior corps commander in the army and14:23people in the army are very meticulous14:26about rank during the Civil War and even14:30now but then they certainly were if I’m14:33a Major General and Bryce is a14:35major-general but I was a major-general14:36a month before Bryce I’m not going to be14:39entirely comfortable if Bryce is put in14:42charge of me because I rank him14:46and that’s the case with me at14:48Gettysburg it’s two of his subordinates14:50who are senior to him in the army Justin14:53I was gonna say isn’t someone telling as14:55well at one time that he did pole that14:56he wanted to kind of back away the14:58reposition and was it all the corps15:00commanders we wanted to stay all the15:02ones who were awake yes and one was15:05asleep and one didn’t vote but yes all15:07those who voted but what is the point15:10this essay this favorable essay to him15:12what’s the point that he makes in that15:14essay that’s a decision that people15:16appointed too many times this show that15:18me just can’t meet has to get he needs a15:20consensus he needs to find out what15:22everybody wants to do what’s the yes I15:24say about that said he’d already made up15:29his mind to stay before he asked for the15:32vote but he hadn’t made up his mind15:34about was whether to remain on the15:37defensive or to attack the next day but15:39he’d already made the decision and15:41already sent a message to the War15:42Department about his intention to stay15:46so he made one decision without talking15:48to but of course that raises the15:51question what if what if six of the nine15:54people in the room and said well we15:55think we need to go we don’t think we15:57should stay then I think George mean why16:02not of stage who knows we can’t know16:05about that but I think that police is16:09right behind this specific better which16:12is a big one isn’t better this kind of16:15leadership style because you have so16:17many battle fronts and then you can16:19instead of like waiting the kind of16:21hours to come to talk to you and send16:23another decision like everybody just16:25decide by themselves and you know you16:28kid16:29on a faster speed than the enemy because16:31it’s so centralized it they cannot go as16:35fast as you can no because no and that’s16:37so that’s smart so he brings everybody16:40in and he asks Hancock what’s going on16:46in your part of the line and he asks16:47Warren let’s go what have you seen I16:49mean and everybody can tell him bring16:52their intelligence from the very parts16:53of the line sure that’s I would think16:55that’s a smart16:56to do that’s a smart thing to do for the16:58next day to plan is wailing and again17:01for the same day battles but once the17:04battle starts then of course it becomes17:05very difficult because communication is17:07so problematical on a Civil War17:10battlefield really problematical you17:12want to send a message to Hancock and17:15you so you get your staff officer Scott17:19and start point him in the direction of17:21where you think Hancock is supposed to17:23be and he goes and well Hancock has gone17:26over to talk to somebody else so he’s17:28not there or Scott gets shot on the way17:31over or he gets lost or his horse gets17:33shot I mean anything it’s really really17:36difficult to maintain what we would17:40consider reasonable control of a17:42battlefield when you’re talking about17:43there are 160,000 men on that17:48battlefield within a few miles of one17:50another17:51Jake said that was a question I had17:52reading the paper we’re talking the17:55first day a lot about we was exerted17:58yeah I actually talked about that but18:00you’re being kind yeah how much the18:06communication of the time I mean how18:08much it was can user well here’s the18:10influence he can exert on the first day18:12the waited what did Lee wants what are18:14these orders in his army what’s the18:17situation on the first day is Lee is18:19riding toward Gettysburg that morning of18:24July 1st anybody to have to avoid a big18:26engagement he has ordered his18:28lieutenants not to bring on a general18:30engagement quiet his whole army isn’t18:33done yet Longstreet pickets armies all18:35over southern Pennsylvania he wants them18:37back together it’s the same thing18:38happened to her in the Maryland campaign18:40his army was scattered all over Maryland18:42and he was pushed into a fight so here18:45he wants the army back together before18:47he gets into a fight those are the18:50instructions the night before oh so what18:52happens in the morning okay ap Hill19:00tales19:01Henry Heath he can walk into Gettysburg19:03to look for shoes who is not doing this19:07job right there what what is what19:09missing component here Jim Stewart if19:13Jeff Stewart had been there with the19:14cavalry we would have known there were19:16pebbles in Gettysburg you would have19:18known and Henry Heath would not have19:20walked into Gettysburg with his big19:22clunking division which is not what big19:25clunking divisions of infantry do you19:27don’t line 7,000 guys up on the road for19:30a breast and walk toward something19:32you’re not sure about but that’s what19:34was that’s what happened just annoying19:36is what was the definition of general19:38engagement in terms of so in my mind and19:40reading kind of essentially this was you19:43know heavy reconnaissance this was you19:45know there’s some engagement but it19:46wasn’t the full-on Army’s colliding well19:49what happens when you start shooting at19:50each other19:51put the Hoosier how many are shooting it19:53does doesn’t it but button but let me19:56reframe my question what can happen when19:59you if you have an infantry division20:00that starts shooting at other people20:02that can easily turn you together I mean20:05the best way not to bring on a general20:07engagement is don’t go start shooting at20:09somebody if you’re an infantry division20:11let your cavalry sort of do what cavalry20:14do and don’t send an infantry division20:17forward and so by the time20:21soli hears this firing in the direction20:24of Gettysburg and decides to go take a20:27look so he gets there – any of you20:30remember about when you got there up to20:33Oklahoma about two o’clock he shows up20:35on her Ridge you’ll see her ridge when20:37you get there it’s one Ridge over from20:39McPherson Ridge so here comes Lee here’s20:43Gettysburg here’s Burridge merson’s20:47Ridge seminary Ridge Oak Hill and20:52Cemetery Hill and Culp’s Hill wildly out20:55of proportion but generally the soli20:58shows up here to what has gone on down21:02to that point in the day what’s the21:04situation when he gets there can anybody21:07give us a quick account 25 seconds21:12what’s happened21:13he’s moving in on this road he come in21:16two on the Chambersburg pike modern21:18route 3021:19with his 7000 infantry21:21and he gets this far he gets to her21:24Ridge any runs into Buford’s cavalry21:28which is here and on McPherson Ridge and21:30the cavalry make heath deploy which21:33takes them takes a long time to get 700021:36men from being four abreast walking21:40along road to in battle lines like this21:43so you go for its call from going you’re21:46in column on the road and you go into21:48line into a battle formation takes an21:50hour for Heath to do that then they21:54fight here and it’s a and the battle is21:57on an east-west axis we’ve talked about21:58all of this the cavalry fights about an22:01hour and then John Reynolds comes up22:04with the first Corps and then it becomes22:05an infantry fight Justin this is why22:07it’s you don’t want your infantry22:08walking along Pennsylvania and running22:11into somebody now you have an entire22:14infantry Corps fighting a Confederate22:17division now you’ve got $15,000 17,00022:21guys shooting at each other that’s22:22getting very close to being a general22:24engagement already but you get a22:27stalemate here because the Federals are22:30in a good position on McPherson’s Ridge22:32you’ll see that ground it’s very good22:35ground22:35some veterans are on her rich but just22:39before Lee gets on the battlefield22:42Robert Rhoades is division of Richard22:46Ewell’s Corps shows up on Oak Hill and22:50when you stand on Oak Hill it’s a22:51stunning aspect from Oak Hill the Union22:55battle line is like this facing it that22:58way22:59Confederate artillery on Oak Hill and23:01they’re looking right down the whole23:03Union line it’s an artillerist dreams23:06you can’t miss if you shoot a little bit23:09short you’ll hit Federals here if you23:11shoot a little bit long you’ll hit23:13Federals here you’d have to be an23:15absolute dope knocking at federal23:18somewhere if you’re an artillerist up23:20here where they come in then Confederate23:23infantry shows up here and that23:25reorients the entire battle now the23:27Federals have to bring the 11th Corps23:29they bring the 11th Corps out here and23:31part of the first Corps now has to23:33which and paste that way now it’s a23:36battle that has a north-south axis and23:39an east-west axis and when Lee gets here23:41what he sees is the Confederates it’s23:44sheer luck as we talked about last time23:46they’re coming in at exactly the right23:49place every time the Federals get a23:52battle line in place Confederates come23:54in beyond their line and so Lee sees23:57that and he is the one who makes the23:59decision here24:00he says push it so he has changed his24:04orders at that point don’t bring on a24:05general engagement oh wait a minute this24:08general engagement looks like it’s24:09really going our way and so here is24:12combative aggressive side comes out and24:15he says push it but that’s a key24:17decision for him to make but he makes it24:20on the basis of what he can actually see24:22from there he can see the elements24:24coming together tactically it makes24:27sense we see Iran when I began I had to24:29that’s do you see retreat right he what24:32retreat or like doesn’t get into24:35engagement convenient many things you24:37said no don’t fight roll like don’t24:39retreat if you need to then yeah not so24:42much reach but yes and what had happened24:44to very the the day before this big24:49brigade under the bright North24:51Carolinian we talked about James24:52Johnston Pettigrew he had taken his24:55Brigade just the way heat went in on the24:57first Pettigrew did it on the 30th he24:59saw Union cavalry and what did he do he25:01immediately withdrew because his orders25:04were not to bring on a general25:05engagement that’s the other reaction25:07that is the reaction that that are that25:10reaction is the one that these orders25:12make pretty clear to anybody who has the25:15uniform on is desired reaction do not25:18start a fight because once you start a25:21fight anything can happen anything can25:24happen so Pettigrew hadn’t started a25:27fight the day before he gets into a25:29fight here but by the time Lee gets25:31there too these elements are coming25:33together and it seems to make sense to25:37let that let them but the by and go yes25:40so25:41there was a problem I know in other25:42battles used hot air balloons table you25:44might have been don’t know high air25:45balloons here that Confederates Porter25:48Alexander talks about the only instance25:49in the entire war for the Confederates25:52use a hot air balloon it’s during the25:53the Peninsula Campaign and it became25:56unboard and just floated down the James25:57the the Federals have a balloon core26:01sort of under a man named Thaddeus Lowe26:04who had balloons up during the seven26:08days balloons up at credit sure they’re26:09very unwieldy and in a really active26:12campaign like this the odds would be26:14against having them move with the army26:17and low fell out with the government the26:19government was paying him so much to be26:21a balloon guy it wasn’t in the army then26:24they they said willing to pay you half26:26as much and he said we’ll go to hell I’m26:28going to California and and that’s he26:30ended up out in Pasadena and mount Lowe26:32out there’s a named after low so they26:34have balloonist but Melinda’s are on26:36only a handful of battlefields in the26:38civil war they work you could get up see26:41everything they’d run a telegraph wire26:42up and so the balloonists are up there26:44tapping out what they can see down below26:46and the other side is trying to shoot26:49them down they dig holes put the trails26:51of the cameras in so they can get more26:52elevation and try to shoot them down but26:54they they don’t play a crucial role on26:57any battlefield okay sisters absence27:01that we talked about last night I feel27:03like I think it’s three days and27:05Gettysburg kind of offers him some27:07excuses and terms of only Alan Nolan27:10does because Alan Nolan wants all of it27:12on Lee so how does he let Stewart off27:13the book he says the league is in27:15country king borders and that he wants27:19him to protect the right flank but he27:20also you27:22I was hitting spy I uh you know what my27:28feelings are about is I I don’t think27:30you can let Stewart off the hook because27:32Stewart knew what his job was there’s27:34absolutely no question that he knew what27:37his job was his job was to screen the27:40armies movement is it went north and27:41gather intelligence about the Federals27:44that’s what his job is he’s really good27:47at it really good at it but he wasn’t27:51really good at it here in Allen who’s27:53the lawyer a really good lawyer Allen27:56was the senior partner in the biggest27:58law firm in Indiana and was on the28:00Harvard Law Review and he writes and28:02thinks like a lawyer which means he28:05doesn’t know how to use evidence because28:07lawyers here’s how lawyers use evidence28:10huh I want to argue a I’ve got 30 pieces28:16of evidence 11 of them support a 19 of28:22them support B but I want to argue B so28:25I’m going to use my 11 piece of evidence28:27and are you a that’s how you win cases28:30in a court you don’t have to tell about28:32the 19 pieces of evidence to the jury28:34but if you’re a historian and you’ve got28:3730 pieces of evidence and 2/3 of them28:40say me not a you have to think pretty28:43hard about arguing hey keep your28:46historian not if you’re a lawyer Alan28:48and I have many great discussions fueled28:51by he liked a really good scotch and28:54cigars and we would argue about this and28:57they’d say no historians don’t know how28:59to use evidence and I’m saying you know29:01really Alan come to terms with this but29:05that is that is how he makes his case29:08against Lee what’s the gist of a29:10lanolin’s case against Lee what is out29:14what really gets under Alan’s skin about29:17Stewart left some Calvary for him in a29:20broader sense oh no he did Stewart did29:22Lee cavalry he did leave cavalry you’re29:24running a company all of you you’ve got29:28six key subordinates you’ve got paid29:32really wonderful you’ve got be who’s29:35mighty damn good29:36you’ve got see who’s almost mighty damn29:38good you’ve got Dee who’s a complete29:41pain in the ass and can’t get along with29:43anybody else but it’s pretty good at29:44what he does you’ve got II who should be29:47sent to Siberia and kept away from Wars29:49and you’ve got it who is worse than e29:52Jeff Stewart takes these three with him29:54and leaves those three with lead so yes29:58he doesn’t need cavalry with Lee and30:00these two are cavalry who would fit into30:04the bar seeing in Star Wars this one is30:07good well you can’t get along with30:09anybody so it’s true that he leaves30:12cavalry that’s the truth but it’s not30:15cavalry that’s very good and so if you30:19have if you have a really critical30:21operation you’ve got three really good30:23underlings and three who are not really30:27very good and you decide these are the30:30ones you’re going to let it just me30:32that’s not a close call just to push30:34back inside though it wasn’t that big30:36failed at Gettysburg these three you30:38know deeper back it’s that you weren’t30:39even there30:40I mean why would you well the best one30:43the best one d and I’ll put a name on30:46him his name is William e Jones and his30:48nickname was grumbled that’s his actual30:51nickname he was known as grumble Jones30:53in the army30:55grumble Jones was left basically30:58watching the rear echelons of the army31:00which is an important place for him to31:01be the other two guys Beverly Robertson31:05who was a North Carolinian who should31:07have been court-martialed just before31:09the campaign started the other was a guy31:10named Albert31:11Jenkins who commanded this cavalry from31:14the western part of Virginia’s it was31:15just unspeakably unreliable they’re the31:19ones who were closest to what’s going on31:21with the army so it’s an Jeff Stewart31:23has Wade Hampton and fits you and he’s31:26got his best bits laid he’s got his very31:28best people with him up by Carlisle31:32Pennsylvania on the 1st of July31:34I mean they’re just they know but the31:36main thing the main thing as I said31:37before it isn’t even which subordinates31:40are or aren’t there the main thing is31:41the Jeff Stewart he’s the key31:44he’s the one he said that he’s in charge31:45of this so should we have given him that31:49responsibility of course he should31:50because he’s never letting down he’s31:52been a superb cavalry officer even31:56though it’s he’s been superb as long as31:58leads he’s been there ever since Lee’s32:01been in the Army Jeff Stewart has been32:02there right from the beginning and his32:04absolutely reliable just as reliable32:08does the way Longstreet has nothing32:11prepared lead for how long he’d be hated32:13Gettysburg not be prepared Lee in32:15contrast to you’ll whom Lee didn’t know32:19very much about he knows about Stewart32:21Stewart is an absolutely known quantity32:23to lead and so’s Longstreet okay I32:28didn’t get we’re trying to get like with32:30the cavalry I mean how custard assign32:32each cover he would take and did he need32:36because Lee Lee style of command we32:39talked about this before it’s a very32:41it’s a very loose rein that he exercises32:44over these people he really trusts he32:46tells Stewart what he wants him to do32:48and then what’s worrying about it and32:50just assumes that Stewart will do it32:52because Stewart has always done it32:54before so Stewart what Lee didn’t know32:56is it Stewart was going to take these32:58three brigades and ride off to the east32:59and end up out of contact with the army33:03through the absolutely critical part of33:06the campaign there was no way he could33:08have anticipated that no way and for his33:11thoughts did he need the best cover he33:13or Lee no it’s true Stewart was it33:16necessary or no could have performance33:19well if any of us I mean if we had been33:22if I were Jeff Stewart I would have33:24taken those guys too and so would any of33:26you because they’re the people you rely33:28on the most it’s not their fault it’s33:31not his subordinates Stewart’s fault33:33yeah yeah yeah sure I would have taken33:34the best ones he did not think he was33:38good he didn’t think that he was leaving33:39Lee in the hands of these other33:41cavalryman’s Stewart did not think that33:43Stewart thought he was gonna be doing33:44what he was supposed to be doing he33:46didn’t know the army the Potomac was33:48going to start moving with him on the33:50other side of it and there they go33:53stuck33:54bryce what wasn’t that part of was it33:57nolan’s33:57I think it was no arguing that wasn’t34:00that part of it the breakdown was that34:02Lee had given Stuart so many orders34:05three or four different directives like34:07Alan argues that poor Jam would have34:10just been confused about what I was34:12supposed to defend and screen and gather34:16resources and swing around the army but34:19not too far but not too close he did not34:21tell him to swing around the in army to34:23be 12 but that’s a big okay if you do34:26they tell we did not come to swing34:28around the Union Army that’s Jeff York’s34:30decision okay that that would I don’t34:34think there I think if he thought he was34:36going to retrieve the reputation that34:37was taken a blow at brandy station or34:41Stuart almost lost the biggest cavalry34:43battle of the war after he’d been in his34:45peak Hokkien best of having big reviews34:49and balls tonight and having everybody34:52come and look at how wonderful he was34:54all those things and they was almost34:56defeated and he was humiliated34:58is it reasonable to expect that he could35:01have been confused by what seemed to be35:04contradictory orders you know what I35:06think he would have said if he was35:08confused he would have said generally35:09I’m not quite sure what you want me to35:12do here please clarify that’s all he35:15would have had to do if he would I don’t35:17think he was confused but if he were35:19confused that’s what you would do that’s35:22what anybody would do let me just make35:25sure this is what you want me to do35:26that’s all it would have taken they’re35:27together they’re in the same place he35:30can just go to Lee’s tent and say may I35:33have five minutes with the general I35:34have one thing I would like to clarify35:35what he thought we would have had to do35:40Dannan then my question is when he’s35:42dealing with someone like you all who35:44was not a known quantity who is35:46completely paralyzed by yes we know that35:50right he didn’t know that right so35:52that’s so that then that’s the question35:54is how does he deal with someone like35:55that you know in in a big confrontation35:58like Gettys35:59to say you know it indicates that you36:03were going to be paralyzed by my lack of36:06how did lady when did lead begin to have36:09it’s a real doubts about you Karen he36:14said that you should take it practical36:16and it’s that evening I think that Lee36:20began to think oh this isn’t okay it’s36:24not Stonewall Jackson and I better go36:26see just how far from Stonewall Jackson36:28this is soon wrote over to yields36:30headquarters that night and what have36:32you find when he got there when he let36:34them know that he wanted to maintain the36:36aggressive the next day what was the36:38reaction at at mules its you’ll and36:41Jubal Early who’s a division commander36:43Robert Rhoades who’s a division36:45commander those are the main people in36:47place there what’s their response the36:52response is just a passenger they try to36:55test the authenticity we don’t want to36:58be the main part of this offensive why37:00don’t you let somebody else be the main37:02part and we’ll we’ll play a secondary37:04role isn’t what Lee wanted to hear from37:07them not what he wanted to hear in that37:09room and not what he would have heard37:12from I hate to say it again Stonewall37:14Jackson it isn’t what he would have37:16heard from Stonewall Jackson and it’s37:18not what he would have heard from37:19Longstreet in most instances either he’s37:21spending at least gonna get a number of37:23little wake-up calls on July 1st at37:26Gettysburg ease already had one about37:28Stewart and he gets one about you he37:31gets one about Longstreet when they have37:33their first sort of tense conversation37:36in the afternoon Brian yeah kinda on37:38that that one more interesting passages37:41was Craig talking about the leading37:43causes of southern fetus first Stewart’s37:47absence second I guess you’ll Xin37:50competence right third long he puts on37:52cheek confidence brought you agreeing37:53with that I you know I think Stewart is37:58in a separate category because if38:00Stewart’s that there wouldn’t even have38:01been a battle if Stewart had been doing38:03what Stewart was supposed to do once38:04they’re on the battlefield I think I38:07think Longstreet is more culpable38:09I think poor you’ll have38:10reasons for not attacking late in the38:13afternoon he knew things that Lee didn’t38:15know he said he would attack if ap Hill38:17supported him on the right Lee was38:20literally with ap Hill when he got that38:23word from you and Lee never told AP hill38:25to attack which seems that seems odd to38:29me that Lee would sort of not have he’ll38:31attack but would expect you’ll to attack38:33and it seems reasonable to want a38:36coordinated attack so I I think Lee is38:38culpable there and I don’t know he never38:40explained why he didn’t tell Hill to38:43attack Hill had one division that hadn’t38:45fired a single shot his biggest division38:47hadn’t even been in the action yet38:49commanded by a guy named Anderson from38:52South Carolina hadn’t even been in the38:54fight so I don’t know what’s going on38:57with Lee there that to me is38:58inexplicable but boy did he he put a39:02black mark next to eul’s name39:06metaphorically at that point and it and39:09it never got erased it only has any put39:11up more but this is the first one that39:13night first he had an attack then he39:16didn’t seem aggressive when Lee went and39:18talked to him leave with Lee it’s pure39:21one of his subordinates you might not39:24always succeed but he would want you to39:28be aggressive and want to succeed and39:31want to harm the enemy if he doesn’t get39:35that kind of vibe from you it’s not good39:38for you terms about he’s going to think39:41about you39:46basically said that Lee was on the field39:49it was with health would would you let39:51some to some extent I said that I did at39:580.2 like this were like a business and40:01your CIO yeah not doing well it’s gonna40:04be a CEO that takes responsibility takes40:06the fall40:07I agree completely I don’t understand40:09why unless it in legal terms of is just40:12all charisma at some point a remand ago40:16does the tax except Lee estates all40:18culpability and it seems like these40:19commanders are the scapegoat he other40:23people made everyone but lead the40:25scapegoats at Gettysburg and I think40:27there’s plenty of blame to pass around40:29but you can’t Lee doesn’t get a pass40:30here he is the one and he is on the40:33scene with Hill he’s right there so that40:36is in he is he’s the one who decides to40:38make it a big battle he’ll doesn’t40:40decide to make it a big battle Lee40:41decides to make it a big battle when40:43he’s on the scene and then he decides40:46not to do something else with he’ll he’s40:48but once he gets once he rides Traveler40:52up off the Chambersburg pike on to her40:56Ridge it is his battle down til then you40:59can point to lots of people why did41:01he’ll let Heath go in why did he do that41:02where’s Jeff Stewart once Lee is there41:05and the chalk is smacking all over the41:08ground then he’s the heat there we agree41:13with you completely the responsibilities41:14on his shoulders absolutely on his41:16shoulders then his defenders would say41:19well Lee wanted to do this and his41:21subordinates letting down he hoped they41:24would do this and they didn’t do that41:25and he but he is in charge once he gets41:29to the field at two o’clock I agree was41:33that part of what41:35he was official communications never41:39disingenuous about what happened or41:42maybe not disingenuous but he put it in41:44an air that he was trying to get certain41:46things done but trying to be defensive41:49if at all possible he was forced into41:52this and ultimately I guess passed a41:54little bit of the buck in terms of the41:56fact that it was his decision well I41:59actually know I don’t think Lee I think42:02one of the things I think is Admiral42:04badly is that he does take42:05responsibility he took the42:07responsibility in a letter the Jefferson42:09Davis right after he said I’m I it’s my42:11fault I asked the troops to do more than42:13they can do it’s my fault now he in his42:16post-war conversations which he didn’t42:19think would ever become published and42:21which did eventually become published he42:24he had a hierarchy of blame and he did42:28blame Jeff Stewart and he was hard on he42:32lumped all his corps commanders together42:33he said they fought the battle in a42:35halting way and his clear you’ll would42:38be at the top of that list but but42:40healing is on happening with the ellen42:41long stream as well so yes he does point42:43the finger at people but doesn’t in his42:45official report and he doesn’t publicly42:47and he didn’t with his own men right42:49after the battle he rode right out among42:51them you walk out on that part of the42:53field and said this is all my it’s all42:55my fault not it’s all my fault that’s42:57mostly my fault or it’s our fault it’s42:59my fault he said I salute also thinking43:07only and going to this point that was43:11also him complaining a lot about not43:13having commanders or generals to talk43:16with a versity but that he was already43:18in the war for a while so he’s an he’s43:21also his folk that he didn’t develop to43:24other Cornell’s or general brigades43:29because you know he knew the size was43:31getting in he knew he wanted to spread43:34out43:35more they corpse but he didn’t do well43:41bring you up more officers right well43:44here’s the here’s we talked about this43:46problem before and when you’re all43:48running high-powered country there are43:49companies you’ll probably find this out43:52too it’s hard to be certain that43:55somebody who’s done very well at this43:57level is going to do very well at this44:00level you just can’t tell sometimes they44:03do sometimes they’re spectacular44:04sometimes they end up with your job44:06button you try all the fuel somehow and44:08what he’s trying this is their first44:10battle since Stonewall Jackson died so44:13this is the very first time that his to44:15unknown quantities are going to be corps44:18commanders hill and you’ll they’ve never44:20commanded this many men before it’s new44:23for them this is their first time at bat44:26at that level of command so no he has no44:29record to go on there no record to go44:31there is no the way to try them all well44:35the other way to try them out is they44:36command at the next lowest level he’s44:38not going to tell Stonewall Jackson take44:39a battle op I want to see how he’ll does44:41as a guard commander know it’s donal44:44jackson’s their stonewall jackson’s in44:46charge it’s a it’s a brutal process in44:51the Civil War when do you have to44:52replace someone usually someone who’s44:54any good when they’re killed that’s when44:57you have to do it so Jackson is dead45:00what are we going to do one of the key45:02decisions that we made right after45:05Jackson died is the army had always been45:07in two pieces Jackson and half of it in45:10Longstreet had half of it Lee decided45:13that he probably shouldn’t trust anyone45:16else with that much so he may cut it45:18into three pieces instead of two and so45:21whereas Jackson and Longstreet that each45:26had a core with four divisions in it45:28that’s the old army in Northern Virginia45:30eight divisions in two Corps when they45:33create the new 3rd Corps they take that45:36division goes there that division goes45:39there and they bring a new division into45:41the army so it is so now James45:44Longstreet score is smaller than it was45:46before Richard you’ll got a smaller45:48version of the Corps that that Jackson45:51had commanded in AP Hill got a brand new45:54Corps that had his old division in it45:56which came out of Jackson’s court plus45:59one division from Longstreet’s Corps and46:01then the new one that hadn’t been with46:03the army before46:03that’s one decision Lee made and I think46:06that decision in itself shows that he’s46:09Lewis that’s almost one way to see how46:12these guys will do you’re giving them46:13not as quite as much responsibility as46:16Longstreet and Jackson had under the old46:19organization you’ve reorganized the army46:21and reduced the amount of responsibility46:24that each of your first tier of46:26subordinates has but it was a46:29requirement to do West Point46:31no it’s not a requirement but the other46:37side they had channels that were gone46:41they had one yeah one Corps commander46:44Dan sickles46:46is the only car commander in either army46:48who didn’t go to West Point in the46:50general to get religion there are lots46:54of Colonels lots of because there aren’t46:56enough West pointers to command these46:58gigantic armies so the vast majority of47:00officers in the armies did not go to47:03West Point but the top echelon of47:06command in both armies overwhelming in47:10all the Civil War armies overwhelmingly47:12went to West Point sickles is the only47:14one who didn’t and sickles is sort of47:16the odd man out in the army a lot of the47:19other officers don’t like him he’s not47:22part of the club in any way that didn’t47:25blade for Lydia also a problem to47:28choosing officers high rank because oh47:30you have to be West Point so don’t know47:31certainly gyro classic he would have47:34just know everybody he considered was a47:37West pointer everybody who was47:39conceivably a candidate to be a corps47:41commander47:42see that there was also like necessary47:46or he was too careful no I don’t think47:50there was anybody if I were at least I47:51wouldn’t even know where you’d have to47:53go so far down to get somebody who was47:55in the West pointer the idea of taking47:57them from they might be a brigade47:59commander so you go from commanding 150048:01min to 20,000 men that’s too that’s too48:03big a jump to take too big a jump at the48:06very end of the war there was a man48:08named John Gordon who you’ll you’ll see48:13where they’ll talk about him at48:15Gettysburg Marines will I’m sure when48:17you’re there he ends up as a corps48:19commander at the very at Appomattox he’s48:21a Corps commander he’s a non West48:23pointer who’s just a kind of brilliant48:25military figure but he takes him a long48:28time and the only reason he gets up48:29there is because everybody else is48:31getting shot and he ends up in that48:34position48:41there’s a pause here yet yes do we start48:45a new line yes let’s start a new thread48:47I’m going to make another feeble attempt48:50to get you to say something nice about48:51books I’d say a lot of nice things on48:53long street when I was free was very48:55tall but I was going what I was trying48:59to find when I was digging through my49:00mom Street this was some I remember49:02reading at some point there was some49:04study someone did they actually tried to49:07duplicate his large on the second day49:11and they said and I wanted no fingers I49:14remember that he got to a point where he49:18was exposed so we had to backtrack and49:20take a look around can do you know yeah49:23do you know what I’m talking about49:24I guess I’ve made them you tell me I’ve49:26taken many groups on that March it is49:28it’s it’s an importer Alexander he talks49:31about it he they wanted to get around to49:34the Union left and you you come down a49:38road and I don’t know whether the49:39Marines maybe they’ll take you on the49:40smart shoe you come up to this little49:42piece of high ground you’re looking a49:43little ramp up and round top and their49:46Union signalman up there and they don’t49:47want to be discovered so when they see49:49that they drop back down off it RIA49:51today does this long counter March and49:52gets down in the bottom he’s got a gap49:54of about five hundred yards you need to49:56get from here to right down here without49:58being seen so he does this long well50:00Porter Alexander reached that same place50:02earlier in the day for his artillery50:04caught up and all they saw that what was50:07his solution to the problem he dropped50:09down went about 400 yards off to his50:12right and ended up down where he was50:13supposed to be cooking maybe 20 minutes50:15to do it 20 minutes with him when he50:17goes well yeah I was artillery the50:19artillery was out in front of the50:21infantry it’s not how many guys you have50:22it’s how do you solved the problem he50:24solved the problem in a very efficient50:26indirect way Longstreet solved the50:28problem in the most cumbersome50:30imaginable way but ate up lots of50:32precious time and Alexander remarked in50:35another context he didn’t see why the50:37infantry when they got there just didn’t50:38follow his horse droppings around to see50:41how they got where they were going50:43because it’s just and when you stand50:44there the ground just lays out the50:47camera is Little Round Top we’re50:49standing on this little road here50:50there’s of the ridge goes just like this50:52and we drop back this50:54our and we just come around go around50:58the back row and we end up where the50:59camera is and nobody can see us51:02I mean you can see it all from right51:03there can see how so you could have to51:07find another thing to get Longstreet up51:09okay that was not going to work that one51:11he should have been able to figure out51:12he did things he didn’t start to get his51:17column ready to march until his last big51:19aid was up and now this is inside the51:22beltway minutia but I mean this is he51:24waits for a bit for his very last reggae51:26to get out before he starts to get ready51:28to go why didn’t he get ready to go and51:31when the last Brigade comes up go but51:34didn’t he do that because he didn’t51:35agree with the orders and yes yeah what51:38kind of subordinate does that because it51:39doesn’t agree with the orders I mean51:42really if he really doesn’t want to do51:44it then say General Lee I can’t I’m51:46sorry I disagree so violently with what51:49you’re doing that I think you should put51:51someone else in my place that’s what you51:53do if you’re not gonna try your best51:55that’s what you do get out of the way I51:58hate to play you called Payton so I’m52:01only going to run at half speed on this52:03account I know the ball is gonna come to52:04me but I’m not going to run very fast I52:06think you should have called a slam yes52:09kind of a go you don’t get to do that if52:12you’re the receiver and Peyton Manning52:14calls the play or you what our I52:16guarantee you you won’t be a receiver52:18very long if you do that two or three52:20times and he knows you’re doing it you52:23don’t get to do that in an army and and52:27I do and I think you put your finger52:29right on I think that’s exactly what52:30Longstreet was doing he’s making a point52:32but let’s save him for next week we’ll52:35talk about Longstreet a lot next week52:37we’re supposed to focus on need and Lee52:41Jenny right I’m buying you affirm but I52:46thought we were doing tonight52:47that’s why I feel so empowered but52:50talking about we and just shouldn’t go52:54in across some timing52:56that’s a huge that’s what I had actually52:58intended to start with tonight but this53:00is sort of stream of consciousness the53:03way we’re coming out this so now we’re53:04back in the aftermath of53:06Chancellorsville right should he have53:08even gone53:09what does Alan know and think about that53:10well he kind of displays the argument a53:13bit yes and they’ll take it to the north53:16but it seems that it’s too aggressive53:18like Alan think you said pee on my ear53:20yeah53:21what should we have done according to53:23Alan I should have just gone a bit53:25defensively hunker down baby and select53:28the Yankees come to you just like at53:30Fredericksburg right oh I see the whole53:33points we talked about last class by53:35going to the Nord lure the army away53:37from Richmond you know using your army53:39to just dissipate making Morgan’s have a53:43call for peace but I feel like it’s a53:46huge hold of the guy and I don’t see why53:48the North with so many more men couldn’t53:51split their army and sack Richmond as53:54well as engaged Lee in Pennsylvania did53:56they all they just took him to54:00Pennsylvania right there I mean yes that54:02mate they left they left away what did54:04occur want to do when we march north he54:08wanted to go to Richmond but but why did54:12I mean but Lee understands what are the54:14realities what what would the northern54:16population say if General Lee’s headed54:19for Pennsylvania and the Army of the54:22Potomac goes the other way how is that54:24going to play behind the lines in the54:25United State is not it is not an option54:28there’s the biggest most famous rebel54:31army is in the United States what’s the54:34reaction you go get them and get them54:37out of the United States you don’t get54:38to go the other way but no they have54:41enough men to they can you babe I mean54:42there’s a how many armies do they have54:45next to Washington one one they have the54:49army Potomac what’s the army of the54:50tomek’s job deal with the army in54:54Northern Virginia where the army54:55Northern Virginia goes the army Potomac54:58god damn better well though or there are55:00going to be problems they’re going to be55:02tremendous problems for the Lincoln it55:04station so that is not an option to go55:07the other way not an option55:08Italy understood that even though hooker55:11having been crushed mentally by Li at55:14Chancellorsville wanted to do that I55:17still find that sort of hilarious that55:19the army commander would say well I want55:20to go the other way I know he’s headed55:22to the United States now’s my perfect55:24chance to go to Richmond but he didn’t55:27understand this Richmond is not the key55:28the key is Lee’s army so you thinking55:31sacrifice men we were just gone on55:33terrorizing Pennsylvania throughout I55:35mean I think there was no chance he was55:37going to sacrament there’s a zero55:39percent chance that politically he would55:42be allowed to do that this absolutely no55:44chance not a slim chance no chance that55:47he’s going to be allowed to do that55:49these are two Democratic Republic’s at55:52war this is one of the things we talked55:54about the first day politics and55:56military affairs are like this the56:00military the armies do not operate in a56:03military vacuum they operate in an56:06intensely politicized atmosphere and56:08people pay attention people being56:10civilians at home the boat pay attention56:14oh there’s no chase I’ll be right back56:16there in just a second oh sorry cuz last56:18class you said that he had to take the56:22army out of Virginia he said that yes56:25ledian yeah so how else you do that56:28without going to know that’s the only56:30way to do that we haven’t talked about56:32the main reason he said he wanted to get56:34it out of Virginia what’s the main56:36reason Lee wants to get the army out of56:39Virginia and then they want to give him56:40a chance to regrow there it’s logistics56:42he wants to give the farmers in Virginia56:45respite and he wants to get into56:47Pennsylvania and just siphon everything56:50his army can use out of that lush56:53central Pennsylvania countryside that’s56:55I think that’s the number one thing on56:57his mind56:59number two is he says you’re talking57:01about how big the armies are what is he57:0320 so he says if we don’t if we just sit57:05and wait what is going to happen we say57:08okay we won the Battle of57:09Chancellorsville I’m just gonna sit here57:11at Fredericksburg what’s going to happen57:15what’s going to happen what are the57:17federals could have do what are the57:19faendal is going to do in from Lee’s57:21perspective what does he say what’s the57:24scenario that he sketches out basically57:26he sees the war of attrition with the57:28north continuing to engage and bring the57:30war to the south one danger wherever57:33they choose to bring it he says they’re57:36bigger than we are they have more men57:38than we have if we just sit here we’re57:41going to allow our more powerful57:42opponent to take their time perfect57:45their plans and project their power at57:48the point of their choice and eventually57:52where does he say the army Northern57:54Virginia will end up yes it will end up57:56defending Richmond will end up in57:58Richmond and when he gets in Richmond58:00his view is the war is over58:02because it will end up as a siege and a58:05siege can only end one way with a58:08smaller force hunkered down and a larger58:10force enveloping it and he will do58:14almost anything to avoid death what58:16makes the comparison between Lee and58:18Washington wasn’t that was pretty58:19interesting yes Washington walking his58:21Lee’s idle right Washington let’s the58:24British take New York he lets them take58:26Boston you doesn’t have anything they58:27want we didn’t exactly let them take New58:30York they took New York the enthusiam58:32out but yes so the be moving into58:35Pennsylvania is basically the same as58:37Washington going to Valley Forge and58:40just kind of making his way down selves58:41and having to catch for loss at Yorktown58:44so from that perspective the war of58:47attrition isn’t a bad thing for Lee Lee58:50does not fight the war the way58:51Washington fought the revolution58:52absolutely Washington avoids big battles58:54but when Lee is afraid of this war of58:57attrition should he have been he’s59:01afraid of being besieged in Richmond59:03yeah he absolutely should have been what59:04how did the war in when he got besieged59:06in Richmond and Petersburg that’s when59:08the war ended yeah but like politically59:11the North was going to get tired of this59:13if we had avoided the big battle is that59:15fair to say if there weren’t big battles59:18the United States civilian population59:21probably wouldn’t have gotten tired of59:23it59:23as they got tired of it when their59:25soldiers were suffering hideous59:27casualties in these big bells it’s a59:30it’s a it’s this race for the59:33Confederates from Lee’s perspective a59:35race between attrition that comes with59:40winning the kinds of victories you’re59:41winning the depressed northern morale59:42and how quickly northern morale which is59:45going to have it is the North going to59:46give up first or we can run out of em59:48first that is the equation that Lee has59:50in his mind in an end the northern59:53morale proved resilient enough to absorb59:56a third of a million casualties and59:58still push on through all both came very60:01close in the summer of 64 not the60:03sticking to it I mean this close this60:06close you can you can make a great case60:10that it would have been better if Lee60:12hasn’t suffered so many casualties we’d60:14have to be an idiot not to make that60:15case but what you can’t supply and what60:18Alan Nolan could never answer I would60:22ask you how do you guarantee a supply of60:24Ambrose Burnside’s60:26to give you a bunch of battles of60:28Fredericksburg where you put your army60:29and really strong ground and your60:31opponent comes up and just attacks60:32uphill against you all day you only ever60:36found one of those guys in command of60:38the Union Army60:39excited about you know that that is what60:44caused the Union at that moment divided60:46what you do the same in the opposite way60:48because they would have all day fighting60:51uphill attacking a very entrenched60:53position they were going to lose I’m60:55Linda Park and right what worse what60:59you’re saying that while is that he61:00should have known that he would fail at61:02Gettysburg and should have known that61:04attacking a nindroid position uphill at61:07that moment is also the timing to be61:11affable61:11here’s the problem with that thinking he61:15did that it gains his mill in late June61:1918 he had a 50,000 man assault that61:21gains his smell biggest assault of the61:23war early that succeeded he had61:27assaulted Chancellorsville exactly two61:29months before the picket Pettigrew61:32assault where his infantry who were61:34outnumbered were attacking61:36who retrenched and they succeeded there61:39are and I think this is what led him I’m61:42not getting I’m just trying to explain61:44why I think he did this and it’s because61:46I think he believed in the end that his61:49infantry could just take care of61:52business no matter what the obstacles61:55because he had seen them do it in an61:59offensive mode 4 times before Gettysburg62:03but when you stand there and look across62:06you’ll stand on Cemetery Ridge and look62:08across at Cemetery Ridge and I mean you62:11I’m sure you’ll thank gosh we’re going62:13to line up here and walk over there with62:17people seven tenths of a mile with62:19people shooting at us with cannons and62:20mutlu whew it’s it’s it’s really62:26distressing to do that so should he have62:30nothing he had this great quotation62:32later he said i bided known that it62:34wouldn’t work even as dull a fellow as i62:36am would have done something different62:39but he didn’t know it wouldn’t work62:42Longstreet thought it wouldn’t work62:44and I think Longstreet Jim for all your62:47posturing about how I don’t like62:49Longstreet I think Longstreet’s idea was62:51better at getting Braddock Porter62:53Alexander’s idea is the best what if he62:55say Lee should have done after his big62:57victory on the first day Alexander says63:00there are three options and he says the63:02best one is one for the Confederates yes63:06hunker down we smacked the Federals63:10around on the first day they’re there on63:12this line here here we are on seminary63:16Ridge which is a nice defensive position63:18as well just we’ll hunker down and make63:21them attack us they never drive us from63:24positions said and Alexander said the63:27onus is on them to get us out of the63:29United States the place where Lee was63:32most disingenuous in his official report63:34is when he said that he the battle was63:37forced on him because his supply63:39situation was tenuous and in the essence63:41he had to attack that that is just not63:43true now Alexander calls him on that63:46he said well we stayed there for three63:48more days and fought a big battle and63:50then we stayed another 10 days north of63:53the Potomac if he had published that63:57book if Alexander had when he wrote it63:59he would have come in for incredible64:01criticism across the south incredible64:03for being so harsh on Lee anybody want64:06to do something else would leave right64:08now or shall we give this did this class64:10is no different than any other class64:11where it’s all about Lee we haven’t64:13spent much time on George media but any64:16kind of Lee aftershocks I’ll say after64:22I’ve made the answer to that note but we64:25are going to circle back to leave Mead64:29we’ve had a semi elephant defensively as64:33someone who was who did a very good job64:36in difficult circumstances I want to64:39hear someone offer a critique of need64:42that might not be quite so positive64:44if anyone reached that kind of64:47conclusion about it are you all need ice64:49in there so have a crack at a gym yes64:58that’s yes basically defending me and65:03saying that it really was a critical65:05place seemed to me to be mostly about65:16and it was you’ll see his he wasn’t65:19blown up but there were lots of65:21cannonballs coming around and then so he65:22left so the entire narrative of his65:26actions during the day seemed like he65:29wasn’t really interesting that much the65:31biggest effect that’s all I came out65:33about him was that he yes he did make65:34this a that one decision early on65:36brought everyone together to get65:39information out of a consensus65:41the decision but everything else seems65:45to just fall into place because the boom65:49commanders or his subordinates did their65:53job well or just kind of happened when65:57did he get to the battlefield when this65:59meat show up and get his birth the night66:04of day one how late on the night of is66:08almost midnight66:09so almost midnight so that’s66:11everything’s over with he has to make a66:14decision that night too I mean he there66:17he has a decision to make am I going to66:19stay here tomorrow or not what about on66:23the second66:23what are his biggest what’s his biggest66:26crisis on the second sickles yes what’s66:34what so what’s the deal with sickles66:38you’re George Gordon Meade what do you66:41think is happening on your line on the66:44second until you find out differently66:46you put your line together how are you66:49thinking what the hell are you doing66:51well no now wait a minute I said what66:53are you thinking before you find out66:54what’s it doing how would you put your66:56line together in a nice interior lines66:59on high ground you don’t probably don’t67:01even it’s right goes from it goes from67:03cold tail this is such a mess here now67:05we’re going to start over like you’re67:08doing with all these warranties67:10this is great we have boards and boards67:13co-ceo Cemetery Hill which confusingly67:18has the same initials Cemetery67:22there’s a little brown top so you think67:26you have a West Point case there so his67:31original lie on the second goes like67:34this and sickles is supposed to be in67:37the farthest left it kind of goes down67:39to Little Round Top that’s what he67:41thinks is is happening and then early in67:45the afternoon what does he find out cuz67:47happened what what is sickles done so67:51all the little kids work advance here’s67:53the peach orchard which is higher than67:56so sickles has just taken his his core67:59this is the Emmitsburg Road coming into68:02town he’s taking his core he’s put it68:04one division there and then the other68:06one my map is so bad it comes down to68:09Devil’s Den which he will see and he68:11didn’t what did he tell me about this68:16nothing did not tell me he did this so68:21now the Union line just stops right here68:23and what’s the weakness of sickles isn’t68:27that sickles the point is that this is68:28higher than this ground and sickles is68:30sensitive about that because of what68:32happened to in the Chancellorsville and68:33when you go there you’ll see that the68:35peach orchard is higher than this but68:37when he moves out there what is the68:41defensive problem with his being out68:43there along the Emmitsburg Road you can68:45just get cut off this flank was in the68:48air this life is in the air he’s just68:50floating out there all by himself with68:52his ten thousand men and so needs68:56what’s needs reaction to this what is68:58possible reactions to this what could he69:01do when he finds out this is HAP I don’t69:03mean he cursed he cursed a lot but Mead69:05Mead had a very rich vocabulary hubbub69:08vulgar isms and blasphemies that he69:12would deploy at the drop of a hat but69:13apart from that what what are the what69:17could he do here okay darn it sickles69:20has gone out there golly69:23no oh fudge he’s not worried supposed to69:26be he tried he thought about but yeah he69:33went out and looked69:34why can’t he order him back because this69:36started fighting the Confederates are69:38showing that’s right the Confederates69:40are showing up so yes he does he pulls69:48in troops from two other Corps to try to69:50shore up this this weak line and69:53somebody made the semi dismissive69:57comment Justin I don’t know who did that69:59what me did was move people around and70:01he gets a lot of points for that that is70:04essentially what he does his move people70:06around he moves them around so that his70:09life is strongest at the point of70:11greatest danger he moves them from culty70:15virtually strips everybody from our far70:17right CH site and moves them down here70:21so there’s hardly anybody left up there70:23anyways other people it’s all about70:25supporting his left flank70:27which is in real danger throughout the70:30fighting on the second and he uses these70:33inferior lines very well so he doesn’t70:35good he does a very good job of that but70:38that would be something you’d have to be70:42a really bad officer not to know how to70:45use interior lines because that’s one of70:47the things that everybody knew I mean70:49that’s a huge advantage everybody70:51nobody’s but still let’s give him points70:52for that he did a good job of that what70:56else did we do that we find that70:58especially impressive to us I mean I71:00could never understand why sequels who71:02went what why did sickles go out there I71:05could not Michelle wants to know why I71:09have chalk all over my pants and why71:11sickles went out from his line on71:13Cemetery Ridge why did he do that and71:16somebody but not you Jim I don’t want71:19you to answer this I want somebody else71:21to answer tab and Chancellor bill yeah71:23higher position those order to get it up71:25called Hazel Grove yes and what happened71:28when he gave it up that thing the United71:31States positive battle that’s right71:33other than that nothing bad happened71:35done canary so was so it’s all about71:39Chancellorsville it’s all about71:41Chancellorsville what does I mean he71:43just says and he told Henry hunt who’s71:46the union artillerist our chief of71:48artillery I can defend better from that71:50high ground than I can from back here71:53but the fallacy in that is have enough71:55men to make a line that makes sense by71:59going out to the peach orchard and72:00defending that high ground so that’s a72:04good argument in theory but on the72:06ground it doesn’t stand up all those72:09sickles dependent and sickles said What72:12did he say his move did retrospectively72:16when they’re arguing about who’s his72:18arguments what the caused me to send72:23reinforcements sooner which was kind of72:26again for to it what did it do with the72:27Confederates according to sickles72:30anybody picked up on that yeah and get72:33like saved the Union mind because the72:35killer would have gotten around their72:36flank because they were throwing dirt72:38around hops so the confederation said72:40attacked him up in the peach orchard and72:42that cave it’s almost like a delaying72:44action made them focus there and they72:47broke a lot of their strength trying to72:50carry this ground that sickles took up72:52and by the time they over ran the peach72:54orchard and wheat field they ran up72:57against Union lines that by that point72:59we’re able to hold on the high ground so73:01he argues it saved the battle and his73:04critics said it came this close to73:06undoing the army you idiot political73:11craven political Tammany Hall tool you73:14almost lost the battle by what you did73:17in his responses no that’s exactly wrong73:19by moving out there I made Longstreet73:22deployed farther away than he would have73:24and he broke himself on my line which73:27was farther to the West than it would73:29otherwise yes I would I wouldn’t part of73:35this because he was and no one else was73:44yes and so there was already a lot of73:46bad baggage to begin with and so there73:49was no trust there’s no respect and so I73:52don’t73:52I wonder if sickle would have made the73:55same decisions to disobey the orders had73:57they actually gotten along if he made he73:59had gotten along right regardless the74:01chance or a hooker had given him the74:02orders or someone that he got along with74:04him given the orders I think that I74:07think there’s no way we can let him off74:10the hook for not telling his army74:12commander what he was doing I mean you74:13just can’t do that you can’t move an74:15entire infantry Corps out of where74:19you’re ordered to be without letting74:21your commander know what you’re doing so74:23I don’t think we can let him off the74:24hook there but I do think he is it’s74:27it’s understandable because he is an74:29almost complete outsider in the high74:32command but not only because he got74:34along with hooker who was a West pointer74:36but because he is he’s a politician he’s74:38not a West pointer he has this very74:40clouded and controversial and notorious74:44history that he brought with him as well74:47and was not considered the gentleman and74:49was not coming he just doesn’t fit in it74:50doesn’t fit in at all with this in the74:53culture of the Army of the Potomac74:55but even saying all of that he’s still a74:58soldier and a subordinate and you just75:01can’t do that even if it’s the right75:03move if he had told me initially that75:06meat cooks that okay you go there and75:08we’ll do this in this and this as we set75:10up the line the Marines I’m sure are75:12going to talk to you about that line the75:15line in a number of places that hooker75:17that sickles put together didn’t have75:19enough infantry to make an infantry line75:21there are lots of places where you had75:22artillery and in the Civil War you can’t75:26have artillery all by itself it can’t be75:28by itself because it’s absolutely75:30vulnerable to infantry if it’s all by75:32itself so it was a terrible line didn’t75:34have enough men to do that it’s on the75:37other hand it took the Confederates a75:40lot of casualties to get75:41sicles line so and it’s impossible to75:46decide which of them is absolutely right75:48or absolutely wrong but I don’t think75:52it’s impossible to decide that he can’t75:55have a principal subordinate who is75:57freelances this way in a situation like76:00that but I but I want somebody to argue76:02with me if you think that that if there76:04are circumstances when you should have a76:05subordinate do that when it makes sense76:08right poor hands wet up let’s go isn’t76:10that the way that lead kind of ran76:12things right I mean to a certain extent76:14certainly not to to the point of76:16insubordination but he didn’t he push76:19down certain decision-making power and76:21say if you get to a point in the battle76:22and I’m not there and there’s a decision76:25to be made you make it and you become76:27the aggressor and so it seems like if76:29sickles had been in Lee’s army Lee might76:32have almost praised him for taking that76:35kind of an initiative I mean at what76:38point is an insubordination and at what76:40point is it just taking the initiative76:42and taking higher ground that you see is76:43better it’s that the problem with taking76:47the higher ground I think I think that’s76:49a great way to put it I think there76:50would be much more leeway in Lee’s army76:52than in the Union Army to do that but76:54the problem with the action is that he76:56doesn’t improve the army situation there76:59he creates this salient where he is hope77:01or is now completely vulnerable and77:04unless people do other things to rectify77:07that situation he’s he’s put at risk77:10basically 1/5 of the army here so I77:13think that’s his problem it’s it’s not77:15as if he’s pushing and aggressive he’s77:17not going after the Confederates here77:19he’s just funding the defensive77:20alignment but I think your point about77:23whether this kind of behavior at least77:26to a degree would be more acceptable in77:28Lee’s army I think the answer is yes to77:30that how can you explain good then we77:33didn’t let Longstreet or Hood go around77:36the flank in us exactly Lee Lee’s not77:38part of that equation77:39that’s Longstreet being a bad77:41subordinate again in my view hood should77:43have been allowed to do that Lee would77:45have allowed to do that because Lee had77:48allowed Longstreet to do77:50at Manassas he had allowed Jackson to do77:52it at Chancellorsville you get to the77:53ground and you see that the situation is77:55different and you know something that I77:58don’t know then you’re allowed to adjust78:01the circumstances on the ground and78:02that’s what hood was asking to do78:04it’s Longstreet who said no General Lee78:07told us to do it this way and we can’t78:09change General Lee’s orders78:10well Longstreet knew that wasn’t true78:12because Longstreet had changed these78:14orders at different points because all78:16of that on Longstreet I put 100% of that78:19on Longstreet because Lydia is way back78:21up by Lee has no idea what’s going on78:23and they’re not communicating with Lee78:26Longstreet is just saying Lee would not78:28allow that and so we can’t do that78:34getting back to me so the part of waters78:37kind of imposing your will of the enemy78:39was there ever a time that the Meade78:41attempted to do that because I feel like78:43he was just reacting a large part this78:45is all reactive yes right and so that78:49brings us to the next lead question and78:51Mary I saw your hand go up I’ll come78:53here in just a minute78:53what where is Meade’s opportunity to78:56impose his will on the army Northern78:58Virginia does he have any option79:06as as he’s watching the detritus of the79:10picket Pettigrew assault in front of him79:14it seems and when he has the sixth core79:17right behind him which is the biggest79:19core in the army the Potomac and it79:20hasn’t fought yet it seems like there’s79:23an option there for him to do something79:25I saw other hands go up too is that what79:29everyone was going to say now what’s the79:32counter-argument to that why what would79:37prevent his doing that give us some79:39factors late Brian it’s late is it79:43almost dark what time’s it get dark in79:47Gettysburg Pennsylvania in July of 186379:53what isn’t there in the summer of 186379:57the reason daylight savings time gets79:59dark around 8 by 8 o’clock80:02through the guard so imagine you’re in80:05Arizona and that’s what time is like in80:08Pennsylvania what and what time in the80:11afternoon is Pickett’s charge over with80:14about four we’ve got four hours of80:16daylight left now that’s either a lot of80:21time or not much time to move 15,000 men80:24around and get them to do something it80:26takes a long time to move a lot of men80:28around and get them in position to do80:30something why else might he not have80:36done anything here yeah80:43the tonier voice is so you’re I mean80:46your heart is not in that and another80:48thing maybe this and that and you know I80:50might have said you have like that or80:51yeah it seems like after a victory like80:54that put yourself in need skin what’s80:58going through your head right now81:00they’re retreating81:02I’m sorry go ahead here make your point81:04before I thought you also or I my81:07impression from the reading81:08that he was still worried that the81:10Confederates might recruit that they81:12weren’t done he’d seen so much success81:15letting them mess up on their own behalf81:17that I think that probably gave him the81:20confidence to just hang on the defense81:22even let him attack again right Scott81:25well the if I was him I would have felt81:30like we won this battle and I don’t want81:33to risk anything we would have exhaled81:34and thought wow but the big argument in81:38the essay I believe is that like in all81:41this repositioning everything every81:43other chorus had gotten like so mixed up81:45and everything was just kind of they81:48were this defensive position and it was81:51all patchwork and to Hancock was wounded81:54and if the reason three courts I think81:57it said yeah had all been badly wounded81:59and to try to regroup and get people82:02where they needed to be deleted charge82:04would have been very difficult and I82:08think your point about me he’s really82:10new on the scenes this is Earth’s huge82:12battle he’s in charge of the entire army82:13to see success and then say okay and now82:16I’m going to go82:17the Confederates firm and the you know82:21leadership styles stuff it seems like82:23that would be a big stretch for Emily at82:26this point yeah I personally think82:30that’s a lot of what’s going on but just82:33flip this the scenarios though can you82:35imagine that Lee would let an82:38opportunity like that go by I really82:41can’t imagine that I think he would have82:43put something together and tried to do82:45something – because it’s chaotic I mean82:48it wait82:49how many we’ve been I can’t remember I82:51know I asked him how many of you been to82:52Gettysburg how many they’ve stood on82:53Cemetery Ridge and looked I mean you82:56know what that Vista is like and to see82:58nothing but defeat and chaos on the part83:03of your opponent as far as you can see83:07in both directions in front of your line83:08I mean that is something Porter83:12Alexander he talks about the Union83:14experience of Chancellorsville when they83:16started to retreat from the clearing of83:19Chancellorsville and Alexander hurried83:21his guns his battalions of artillery83:23down into position to where they could83:26fire into this is he put a defenseless83:29mass of retreating man he said that’s83:31the part of a battle that can be83:33denominated pie that’s what you wait for83:36that’s what you dream up and then you83:38just inflict the greatest possible83:41damage at that point and that’s not83:43happening in the wake of the picot83:45Pettigrew assault it’s not at all what83:49about over the next several days what83:52what happens over the next one what is83:54Lee what date is Lee retreat the port83:59same day Vicksburg surrenders God is on84:03the side of the United States is what84:05the people in the United States decide84:07it’s the fourth of July and we’ve won84:09two big victories so Lee hands for the84:12Potomac84:13what is he fine84:18he’s retreating in this gigantic84:21rainstorm the rivers up and he can’t get84:25across how many days before he can get84:29across and ten days he can’t get across84:36and how much fighting takes place in84:39those ten days84:42no it’s God but but that’s probably good84:46for the Union because at least the way84:49that Alexander described it they’ve84:51become so entrenched in that defensive84:53position even though that their backs84:55are to the river into the wall that they84:58were like hoping for a battle at that85:00point they were they were I’ll just ask85:04you to flip this around again the85:05Federals are hunkered down along the85:07Potomac they’re about forty-five85:08thousand of them and there are 80,00085:13Confederates who are coming after them85:15and they want the Confederates to attack85:18I think the can think it’s just it’s85:20just an interesting contrast in mindsets85:25or cultures of command or whatever you85:28want to call it it’s a very striking85:30contrast it really is it’s I mean Lee is85:36encumbered by these huge trains of85:38wounded man I’m trains wagon trains they85:40call them trains his train stretched85:43total supplies and wounded he has more85:49than 40 miles of trains on different85:52roads heading for the Potomac forty85:54miles as he leaves the battlefield that85:57seems like a pretty vulnerable target86:00yeah I’m shocked even if the union’s86:03head and kind of surrounded them or86:05Indian just lightly engaged you have86:08kept them from crossed they can’t cross86:09if they’re engaged wait yeah they’re not86:12even pressing all-out attack but just no86:13need to harass and then definitely half86:16of them yeah but they can’t cross if86:18they’re under fire right and in the end86:20Lee gets across in one night crosses his86:23army in one night he did the same thing86:25after Antietam one night that’s86:28incredibly efficient going across the86:30Potomac there it’s I I think I think86:36Meade is in a really hard position and86:39does a really good job in a lot of ways86:41but I can understand Lincoln’s86:44frustration in the wake of Gettysburg86:48I really can relying upon the council87:02officers I didn’t get the sense that87:05there was a big boys repelling there’s87:09not there’s there’s there’s not there’s87:13no one saying you must you’ve got to let87:16me do this just let me go even if no one87:18else goes let me know I think87:30I think it’s cultural I think it’s I87:33think that the whole reaction on the87:36part of these union officers is part of87:39this McClellan culture that was so87:43profoundly important in the forging of87:47the army and it’s absolutely and the87:49clouds absence makes no difference and87:51is still there even though McClellan87:53isn’t there anymore and this most87:55aggressive corps commander is Hancock87:57and Hancock is his wound is really badly88:02wounded and and Reynolds his most senior88:06corps commander is dead so not that he88:09was that aggressive but that may be part88:11of it so you’ve got new people in88:13command of those Corps to just as usual88:15as new and who knows what he’s going to88:17do now you have new people in command88:19and sickles so there’s somebody new in88:21command of the 3rd Corps in command of88:23the 1st Corps incoming it’s in command88:24of the 2nd Corps but the 6th Corps88:28hadn’t even thought it’s the biggest one88:29in the Army it seems like the 6th Corps88:31would have been available for at least88:36light harassing duty something something88:41Scott is another kind of positive on me88:46one of the things that I saw is a88:47contrast and images because and they88:50have just been because of the situation88:51was when the Federals were under fire88:56and and you know he was taking his88:58headquarters were taking fire he still89:01like got out there and went and like89:04checked in with almost around Anders and89:07what I mean they have a good story about89:09the he tells the story about the guys89:12hip standing behind the wagon and how it89:14didn’t give any more protection yeah89:16whereas it seems like me at least in89:18this situation is very removed89:22any of the actual combat and I know I89:25saw that as something that was an act of89:28valor to still be out there in the89:30trenches when he’s at risk right well he89:35definitely is moving around the89:37battlefield he lead acted that way at89:39Antietam moving all over the line and89:40coming under fire I think we pretty much89:43stayed close to where the Virginia89:45Monument is now when you’re there you’ll89:46have a good sense of where he was and he89:48was and just sort of yeah listening to89:51fighting to his left fighting to his89:53right and he’s not moving all around89:56nope nope I’m not sure what his presence89:59his presence down were hood in90:01Longstreet were would have made a90:03difference I think because i i’ve no90:05doubt leo said well sure move around90:06there that makes sense you can get clear90:09around the flank that way but anyway90:12hood didn’t get to go and then hood got90:14shot almost immediately90:17hideous wound a very bad wound for old90:20hood90:26nobody’s gotten a neat tattoo I guess90:28since we met last time not a single one90:30I think need but I’m also I have a real90:35sense you’re much more interested in Lee90:37here he seems more interesting to you90:42why is that how why is he more90:44interesting to you so take us back91:00Alexander account he was even proper91:04enough to go to Tennessee and I think91:06Longstreet Montreat want wanted to yeah91:08yeah oh no no absolutely and it’s a91:17question it underscores how important he91:20was because virtually everybody else we91:22talked about this I think we did I can’t91:24remember I’m pretty sure we did they91:27debated this in April and May the91:28Confederates how to allocate their91:30resources and most people politicians91:32generals and Jefferson Davis favored91:35weakening Lee and reinforcing either the91:38army dependent Vicksburg or Braxton91:40Bragg’s army which was essentially91:42defending Chattanooga and they made good91:46arguments and but Lee said no and in the91:49end Davis91:50wouldn’t go against me which is a91:52measure of the argument in a loans are91:57in him the two books that you are92:00looking at non Connelly that argue that92:03Lee was just one of many generals he92:05says the same as all the others he’s not92:06the same as all the others he’d be they92:08get five votes and he gets five and a92:10half boats in this Lincoln when he took92:13when he pulled his cabinet and everybody92:14voted no and he voted yes and then he92:16said the eyes have it it’s that kind of92:18thing with Lee it’s hard to go against92:21the only guy who ever wins anything for92:23you it’s really hard to do Harriette92:25anything though if we move so far you92:28don’t remember what92:29going to say well I think it’s92:31interesting that we find leave we92:34definitely may because we brought a lot92:36more about him but at the end of the day92:38I’d rather be mean with the right92:39strategy than charismatic slightly92:42dogmatic and Lee with the wrong strategy92:44so it’s just really interesting to think92:47that Mead because he didn’t go on the92:50offensive to be more likely his harshly92:52criticized and Lee who basically loses92:55the war because he will not do anything92:58but be the aggressor now you’re93:01channeling now I know him that’s right93:03Lee loses the war because he’s too93:05aggressive you could also say that means93:07not be you don’t say means not be more93:09likely because obviously he’s not be93:10more like grant who also would have done93:13something to hurt the rebels after93:15pursuing grant would have been all over93:17them to me does empower people though93:21right like he just empowers the top93:23level at the decision-making point and93:25then expects people to listen well by93:29empower you mean listens to their93:31arguments and then makes it yeah sure93:34yeah he does he does yep I wouldn’t say93:38that I think you know you look at the93:39two people that from the war that are93:42still have these huge sizes these are93:43Lincoln and Lee and I think that the93:44reason they had this perceived or93:47publicly perceived ideology that they93:49were operating on and I think that’s93:50what people like find fascinating that93:52they were so yeah there’s a slower Lee93:56being driven by it is like love for home93:58and Lincoln major by you know his like94:02love of country or however you know and94:05the whole nation and so I think that94:06people find that fascinating that they94:08were so Dhirubhai that that that it like94:10dictated all of their actions and in94:12fact of the way and so I think that’s94:14why you know ends up being this94:15long-term fascination whereas me like94:17did the right things but it’s like94:18there’s not a backstory there I think94:20it’s harder to like connect with why he94:22did the things he did94:25and with Lee it’s also I think I mean if94:28you all of these qualities that people94:31like would have meant nothing if he94:33haven’t won a bunch of victories in 186294:35and 1861 the matter oh he’s a great94:37Christian gentleman yeah but he’s a94:39loser let me toss to all these battles I94:41don’t care buddy but letting be a94:43preacher not a general because he’s not94:45many battles that’s the key that’s the94:47real people Lee is that he wins battles94:49and gives civilians hope that’s the key94:53all the other stuff is nice wonderful94:56dressing in gigas and scrollwork and94:58crown moldings but the basic thing is95:03that he’s successful and successful to95:08the degree that Gettysburg isn’t held95:11against him that’s what to me is one of95:13the most remarkable aspects of his95:16position in the Confederacy Gettysburg95:18essentially has no impact on his95:21reputation none none it’s amazing but95:29true amazing but true it really is okay95:34we’re a minute over will do subordinates95:38next week I’m going to bring a musket95:40next week I have to drive to Washington95:42or would have brought it tonight and who95:43knows in Washington with a musket what95:45might happen to me but I will have it95:47next week when we end what I already95:51gave you hardtack tonight I didn’t bring95:56hardtack know you’ll get hardtack to95:58hardtack and a must96:01you’ll be the only kids on your block96:03with hardtack I promise
Pat Cipollone is making the president happy. But his job is bigger than the president.
Pat cipollone had been working as White House counsel for just two months when his boss issued his first performance review. During a private ceremony in the Oval Office, Donald Trump was walking around the room, shaking hands, when he stopped and greeted Cipollone and his former law partner Tom Yannucci. Cipollone introduced his old friend and told the president that the two had once worked together. “So far, Pat’s doing a great job,” Trump said. “But we’ll know for sure after six years.”
That Trump would brashly predict his own victory in 2020 is no great surprise. What is unusual is that a president who fires top advisers by tweet would signal that Cipollone is here to stay. Perhaps it’s because Trump needs Cipollone more than he needs almost anyone else. The counsel heads a White House legal team that is enmeshed in perhaps the greatest constitutional standoff since Watergate, and he’s now at the center of the administration’s response to a grave new threat to Trump’s chaotic presidency.
According to multiple current and former senior administration officials and Cipollone associates we spoke with for this story, Cipollone is eager to see the White House through this moment, and Trump, at least so far, appears ready to heed his guidance. In his 10 months in the administration, the 53-year-old Cipollone seems to have earned the president’s trust in a way that few aides have done. He is both discreet, and more to the point, clear in his admiration for the president. He is not the sort of lawyer who will refer to the president as “King Kong,” as his predecessor, Don McGahn, once did. Trump has long been tough on his lawyers, demanding loyalists and brawlers in the mold of Roy Cohn, his personal attorney from his time as a real-estate magnate and a former aide to red-baiting Senator Joseph McCarthy. Trump didn’t believe that McGahn would fight for him with the tenacity of a Cohn, and McGahn himself appeared to be more of a guardrail for Trump than a defender. “I don’t have a lawyer,” Trump complained to McGahn and other aides in the Oval Office two months into his tenure, according to a passage in Special Counsel Robert Mueller’s report.
There’s an almost unbearable tension inherent in Cipollone’s job. Trump apparently believes that government lawyers exist to do his bidding, making clear with his cries of “Harassment!” and “Witch hunt!” that he despises the congressional investigations aimed at his presidency. Cipollone—aggressive, dedicated, and at times controlling, according to his colleagues—has helped to frustrate Democratic attempts at oversight, challenging subpoenas and crafting legal arguments to block aides’ testimony before Congress. But while Cipollone’s title may suggest that he’s the president’s lawyer, he’s not: The counsel’s job is to protect the presidency and its enduring institutional interests, not Trump the man. “You can’t say, ‘Whatever [the president] does, I will represent him to the hilt,’” Bernard Nussbaum, the former White House counsel under Bill Clinton, said in a 2002 oral-history interview. How Cipollone views his role in this fraught moment will shape not only his relationship with a president who demands complete loyalty, but what the public is able to learn about Trump’s conduct in office.
House Democrats were already taking steps toward impeachment—pursuing a broad inquiry into Trump’s dealings—when press reports last month opened up a new front in the oversight war and pushed Speaker Nancy Pelosi to endorse an impeachment inquiry. The reports showed that in a private phone call, Trump repeatedly pressed his Ukrainian counterpart, Volodymyr Zelensky, to investigate one of his 2020 Democratic rivals, former Vice President Joe Biden.
A series of revelations since the reports came out has drawn House Democrats’ scrutiny to Cipollone’s office. In a complaint made public one week ago, a whistle-blower alleged that White House lawyers had “directed” officials to move a transcript of the Ukraine call into a special classified system reserved for particularly sensitive material. The White House later said that the attorneys involved were from the National Security Council, a statement that both read as an attempt to shift focus from the White House legal team and obscured the fact that NSC lawyers fall under the authority of the counsel’s office. According to an administration official, who like others we talked with for this story spoke on the condition of anonymity to discuss internal dynamics, the counsel’s office dictated the statement that was released. (White House Press Secretary Stephanie Grisham denied Cipollone’s involvement.) Cipollone also advocated for the White House to publicly release its rough notes from the call, despite Trump’s initial opposition, the administration official told us. Cipollone declined to comment for this story.
But the NSC distinction may be without a difference. One former White House lawyer from a different administration told us that the White House counsel would likely have known in advance how the transcript was going to be handled. “If they’re suggesting [NSC lawyers] made the decision, that’s ridiculous,” this person said.
Alleging that a cover-up took place for Trump’s political protection, some House Democrats want Cipollone or other White House lawyers to answer questions about how the transcript was dealt with. “Clearly, we need to learn more about why it is they would do that, after first confirming that they have,” Representative Denny Heck of Washington, a Democrat on the House Intelligence Committee, told us.
Trump’s conduct during the Ukraine call has touched off “a defining moment for the counsel’s office post-Watergate,” John Dean, the White House counsel under Richard Nixon and himself a whistle-blower in the Watergate scandal, told us.
With the prospect of six more years in office looking more uncertain than ever, Trump finally seems to feel like he has a lawyer. The question now, as the impeachment inquiry deepens, is the degree to which Cipollone thinks of Trump, not the presidency, as his client.
If cipollone has shown he’s up to the task of defending the president, even in such high stakes as impeachment, it may be because he’s personally advised Trump and his inner circle for years.
A low-key figure in Washington’s private legal establishment, Cipollone discreetly offered advice to Trump and his aides as early as the campaign, when the pro-Trump Fox News host Laura Ingraham introduced him to Trump’s team. Cipollone helped Trump prepare for the general-election debates with Hillary Clinton in 2016.
The president’s allies called on Cipollone again less than a year later, when Mueller opened his investigation into Russian interference in the election. Cipollone became a sounding board for Trump’s outside legal team, members of which told us that he had advised them on questions such as whether the president should give a sit-down interview to Mueller. (Cipollone didn’t think he should; Trump agreed.) “I called him counsel to the counsel,” Jay Sekulow, one of the president’s outside lawyers, told us.
Cipollone’s advisory role brought him close to another figure now at the center of the ongoing impeachment inquiry: Rudy Giuliani, whose months-long communication with Ukrainian officials has become a crucial element of Democrats’ investigation into whether Trump attempted to solicit dirt on Biden from a foreign government. Along with Sekulow, Giuliani represented Trump during the Mueller probe, and he told us in an interview last month, before the impeachment inquiry took off, that they “spent a lot of time with Pat.” Beyond the question of whether Trump should testify, they also asked for Cipollone’s advice on their chances of winning in court should Trump refuse to comply with a Democratic subpoena. “It was helpful to have an outside lawyer,” Giuliani said, “because sometimes when you represent someone, you lose a little objectivity.” Of all the lawyers they talked with about the probe, Giuliani added, Cipollone was “the most impressive.”
Sekulow and Giuliani both “strongly urged” the president to have Cipollone succeed McGahn when he stepped down last fall, said Giuliani, who thought that Cipollone’s ability to “explain things well” in “normal language” would be beneficial for Trump.
Cipollone began his career in Washington in the early 1990s with a brief stint as an aide to William Barr, then the attorney general under President George H. W. Bush. His move afterward into private practice was a lucrative one: His latest financial-disclosure form shows that he earned a total of about $6.7 million as a commercial litigator for his former law firm Stein Mitchell Beato & Missner in 2017 and 2018. A devout Catholic, he is also a social conservative who helped found the National Catholic Prayer Breakfast, served as general counsel to the Knights of Columbus, and in 2012 petitioned to overturn the law allowing same-sex marriages in Maryland. Ingraham, who’s been close friends with Cipollone for decades, has referred to him as her “godfather,” and credits him with inspiring her conversion to Catholicism.
When Cipollone took over as White House counsel last year, he found an office bordering on skeletal. The staff was down to fewer than 20 lawyers, the collateral damage of the dysfunction between McGahn and Trump. When McGahn decided to leave the White House in October 2018, a lot of his allies did too. McGahn had never been shy about his feelings toward the president, and he channeled his energy toward deregulation and judicial appointments. Nevertheless, according to the special counsel’s report, McGahn tried to save Trump from himself; in one dramatic episode, he refused Trump’s demand to fire Mueller. That act of defiance surely spared Trump even more legal and political peril. The president in turn, according to the Mueller report, said that McGahn leaked to the media “to make himself look good.”
“It made people very uncomfortable,” a former White House official told us, referring to the Trump-McGahn relationship.
Cipollone has been leading a reset, doubling the size of the office to about 40 lawyers. He’s a regular visitor to the Oval Office, as well as to Trump’s private study off the Oval. “Pat is in the back office with the president a lot, which is a sign of closeness with the president, who trusts and values him,” Alex Azar, the secretary of health and human services and a longtime friend of Cipollone, told us.
Whereas McGahn seemed to reflexively say no to the president’s orders, current and former senior officials said, Cipollone has been eager to bring Trump’s vision to life—he is, as one former official put it, willing to “play ball.” The officials rooted his willingness to cooperate in another quality that sets Cipollone apart from his predecessor: Cipollone, they said, came into office with no personal agenda in mind. “The one thing with Pat is, it’s not about him,” Jared Kushner, the president’s senior adviser and son-in-law, told us. “Things that go well are the president’s accomplishments,” not Cipollone’s. None of the current and former officials we spoke with could name a single issue about which he was particularly passionate.
And Cipollone has broadened the office’s scope by building what is effectively a mini law firm inside the White House and advising on a wide range of policy matters, whether it’s the government shutdown earlier this year or funding of a wall at the U.S.-Mexico border. “In other things, he’s just more involved,” the former official explained. “But he doesn’t have a policy angle. He just says yes more.”
If democrats are to make a convincing case that Trump needs to be impeached, they’ll require the documents and testimony that the administration handles. A dress rehearsal of sorts has been playing out for months since control of the House flipped, with Democrats trying to obtain information on Trump’s tax returns, the profits he makes from his hotel and other properties, and how the White House awards security clearances, among other matters. With many requests, they’ve come out on the losing end.
Now, as Democrats plunge into an impeachment drive centered on the Ukraine call, they are demanding information about how Trump tried to pry loose dirt on Biden, and they’re pressing Cipollone for answers. Yesterday, Representative Elijah Cummings of Maryland, the chairman of the House Oversight Committee, released a letter describing his plan to issue a fresh subpoena for White House documents, writing that committee chairs had gotten no response to earlier requests. Among other materials he is seeking, Cummings wrote, he wants any communications about Trump’s Ukraine call from a range of administration officials, including those inside the counsel’s office.
When we spoke with Barr, now Trump’s attorney general, before the whistle-blower story broke, like the president he described Congress’s oversight requests as a form of harassment, making Cipollone’s job that much tougher. He insisted that Trump’s statement from April about “fighting all the subpoenas” was just “colloquial” phrasing—that the administration is “not automatically resisting all requests for information.”
Barr himself figures into the Ukraine drama. In his phone call with the Ukrainian president, Trump said that Barr would get in touch to talk more about jump-starting an investigation into Biden. (The attorney general’s office issued a statement last week saying that Barr hasn’t spoken with anyone from Ukraine or discussed the matter with Trump.) And new reporting shows that Barr has also been talking with foreign officials as part of a Justice Department investigation of the FBI’s early inquiry into the 2016 Trump campaign’s contacts with Russia.
“This is probably the highest degree of difficulty for counsel in this administration because of the intensity of the oversight and the demands and the pressure that’s brought on the administration,” Barr told us, reflecting on Cipollone’s role. “Things are more partisan. The degree of animosity is much higher in many respects than the last time I was in government.”
Not that Trump has done anything to lower the temperature; much of the time, he’s raising it. In recent days, for example, he’s demanded to know the whistle-blower’s identity—a move that could put the person at risk of harm—and tweeted part of a quote from a Dallas pastor who warned that Trump’s removal from office through impeachment would cause a “Civil War–like fracture” in the country. He’s warned that he’s the target of a coup, or, as he tweeted the other day, a “COUP.” (Impeachment, a legislative prerogative spelled out in the Constitution, is not a coup.)
Working in tandem with Barr’s Justice Department, Cipollone and his team have advanced a series of legal arguments in recent months that has hamstrung Democratic oversight: They’ve said that past and present White House officials are “absolutely immune” from testifying lest they divulge confidential conversations with the president. And they’ve put forward the legal rationale that congressional oversight needs to be tied to a “legislative purpose,” even though, for example, lawmakers aggressively investigated wrongdoing in the Nixon and Clinton White Houses.
Democrats have appealed to the courts in some cases to compel compliance. Should they try to subpoena Cipollone himself about the Ukraine episode, the White House seems likely to strongly resist. “If they say they want to break the [lawyer-client] privilege—and good luck with that—we’ll litigate it for the next year,” Sekulow told us.
Even when the White House hasn’t been able to prevent witnesses from testifying, officials have worked to muzzle them. In one memorable example, from June, the former White House senior aide Hope Hicks spoke to the Judiciary Committee behind closed doors. Cipollone had sent the committee’s chairman, Representative Jerry Nadler of New York, a letter permitting her to testify but not about anything dealing with her stint in the White House. Bound by those terms, and with Cipollone’s deputies hanging on every word, Hicks revealed very little about the White House:
“On your first day of work at the White House, was it a sunny day or a cloudy day?” Democratic Representative Ted Lieu of California asked Hicks.
Michael Purpura, a counsel’s-office lawyer: “You can answer.”
Hicks: “It was a cloudy day.”
Lieu: “And in the White House, where is your office located?”
Pat Philbin, another Cipollone deputy: “We’ll object to that.”
Lieu: “Okay. During your tenure at the White House, where would you normally have lunch?”
Purpura: “You can answer.”
Hicks: “At my desk.”
Lieu: “And would the president ever come in while you’re having lunch?”
The legal principles governing what White House officials reveal about private discussions with the president are complex. Hauling White House officials before Congress could potentially chill the candid internal deliberations a president has a right to expect. Even some Democratic lawyers say that some of the arguments Cipollone and the Justice Department have put forward are legitimate. Under President Barack Obama, the counsel’s office also sought to shield sitting White House officials from testifying before Congress, cautioning that these sorts of requests could trample on constitutional separation of powers.
Still, congressional Democrats argue that the resistance has reached intolerable levels. “It’s patently obvious that our ability under Article I of the Constitution to pursue oversight of the executive branch has been violated over and over again by this administration, and the tools that we have commonly used are ineffective,” Representative Jackie Speier of California, a member of the House Intelligence Committee, told us. To Trump, of course, that sort of complaint is a ringing validation that Cipollone is doing his job just right.
Anyone within trump’s line of sight has a chance to rise fast. Trump cares little about titles and hierarchies. If he likes you, he’ll rely on you—right up until the time when he decides he doesn’t like you, in which case you might as well check Twitter to see if you’ve been canned.
Trump so far has treated Cipollone as a senior adviser with a broad portfolio, past and present White House aides told us. He is discreet almost to a fault, his friend Tom Yannucci told us. “You could hardly talk to him even in an elevator,” Yannucci said, recalling when he and Cipollone were colleagues. “And there’d be no one else on the elevator.” Chuckling, he added: “I’d say it’s endearing, but it’s not. It can also be annoying.”
Few White House officials would deny that Cipollone is showing results, and not just on the oversight front. McGahn was widely credited for helping Trump appoint a significant number of federal judges, and there’s been no slippage under Cipollone. In the first two years of Trump’s presidency, the Senate confirmed 85 federal judges, according to a White House official. So far this year, the Senate has confirmed 67. With more than 50 more nominees in the pipeline—and with no signs that Senate Majority Leader Mitch McConnell will temper his pace in bringing them up for a vote—the White House is on track this year to surpass the combined total in 2017 and 2018.
In another administration, reshaping the federal judiciary would be a substantial legacy. Here, though, compared with the raging impeachment battle, it may be a footnote. As Trump follows the drama obsessively, a key part of Cipollone’s job is supposed to be protecting the presidency and ensuring that Trump doesn’t misuse his powers as he fights for survival. Cipollone has broken into Trump’s inner circle in part because he’s been more willing than his predecessor to find legal paths for carrying out Trump’s agenda. In the coming months, he may need to say no to the president when Trump is accustomed to hearing yes. Is he up to it? Azar, at least, believes so.
“I would hire Pat to be my lawyer,” Azar told us. “And there’s a reason for that. Pat would tell me if I was doing something I shouldn’t be doing or going in the wrong direction. He wouldn’t hesitate to tell me that, and I know he wouldn’t hesitate to tell the president that either.”
It is then up to Trump to dispassionately accept the advice without ostracizing Cipollone—the ultimate test for a president uninterested in dissent. Cipollone’s allies believe that he wants to stay with Trump not just through the current crisis, but through the president’s reelection and the end of a second term.
When we spoke with Barr, we asked him about Cipollone’s future. So many aides come and go. What about Cipollone? Would he be around through the end?
“You mean five years?” Barr said with a chuckle, banking on a reelection victory. “Yes, I think he will.”
Last week, our colleagues Jodi Kantor and Megan Twohey published a book documenting their investigation of Harvey Weinstein. In writing it, they discovered information about two feminist icons — Gloria Allred and her daughter, Lisa Bloom — that raises questions about their legacies and the legal system in which they’ve worked. Today, we look at the role of Ms. Bloom, a lawyer who represented Mr. Weinstein.
WASHINGTON— Eugene Scalia, President Trump’s nominee to lead the Labor Department, earned more than $6 million since the beginning of last year as a corporate attorney, according to government disclosures.
Mr. Scalia, a partner at the law firm Gibson, Dunn & Crutcher, also said in the disclosures that his legal clients include a range of businesses, from megabanks such as Bank of America and Goldman Sachs Group Inc. to tech giant Facebook Inc. and retailer Walmart Inc.
The disclosures came in filings released by the Office of Government Ethics late Thursday or early Friday.
The White House formally announced its intent to nominate Mr. Scalia earlier this week to succeed Alexander Acosta as Labor secretary. Mr. Acosta stepped down earlier this summer.
The ethics disclosures show that Mr. Scalia received $6,232,021 in “partnership share and bonus” between January 2018 and the time he signed the document in late July.
Mr. Scalia’s ties to the financial-services industry and other big businesses could complicate his tenure on high-profile initiatives should he win Senate confirmation to lead the department.
For instance, he is expected to sit out the department’s rewrite of a closely watched investment-advice rule, after successfully leading an industry challenge to the Obama administration’s version of the regulation, The Wall Street Journal reported this month.
In the twilight of the ceaselessly dueling courtroom gods, legacies wobble and crack.
Once, they were unquestioned giants of the legal profession. David Boies, the slayer of Microsoft’s monopoly, the man Al Gore turned to in hopes of salvaging his bid for the presidency. Alan Dershowitz, one of the intellectual bulwarks of the O.J. Simpson defense team, the tactician immortalized on the big screen for reversing the murder conviction of socialite Claus von Bülow.
But now, as they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, the 78-year-old Boies and the 80-year-old Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case. Their link became even tighter and more complicated this past weekend when the disgraced multimillionaire was found dead of an apparent suicide at a federal detention center in New York where he was awaiting trial on new sex trafficking charges. Epstein’s death occurred the day after newly unsealed court documents claimed he had a voracious sexual appetite for underage girls and detailed the alleged methods he and his friends used to recruit them.
The clash between Dershowitz and Boies, and its offshoots, have spawned lawsuits, swarms of stinging court documents, ferocious accusations, angry television appearances, a secretly taped call and more. In this long-running melodrama, Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers, Virginia Roberts Giuffre — who was a teenage locker-room attendant at President Trump’s Mar-a-Lago resort when she met Epstein. Giuffre has alleged that Epstein demanded that she have sex with him repeatedly when she was underage and lent her for sex to his friends, including Dershowitz.
Dershowitz finds himself labeled as an alleged sex abuser in a personal affidavit by Boies, a claim he has volcanically denied. Dershowitz’s effort to counter the accusations has been made all the more nettlesome because his long-ago representation of Epstein has come under greater scrutiny following Epstein’s arrest last month. Dershowitz, an emeritus Harvard University law professor, is also fending off a defamation suit filed by Giuffre, set for key oral arguments next month, in which Boies has become a vital player.
Because Epstein’s death will end his criminal case, the Giuffre defamation action against Dershowitz could be one of the dwindling number of cases that would allow for the full public airing of numerous accusations against Epstein that his alleged victims have long sought.
As the Boies-Dershowitz conflict has dragged on, Boies, his partners and his allies have tarred Dershowitz in personal affidavits related to a bar complaint and a defamation lawsuit for allegedly bedding Giuffre when she was an underage teenager. In court filings, they portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer.
“After extensive consideration of everything Mr. Dershowitz told and showed me, I ultimately concluded that his denials were not credible,” Boies wrote in an affidavit included in Giuffre’s defamation suit against Dershowitz. (Giuffre sued Dershowitz because of numerous statements he made in media interviews, including calling her a “certified, complete, total liar” and saying that “she simply made up the entire story for money.”)
Meanwhile, Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.
“I believe the law firm of Boies Schiller is a RICO,” Dershowitz said in a recent interview at his New York apartment, citing the acronym used for Racketeer Influenced and Corrupt Organizations Act, a law frequently used against the mafia. “I believe they are the law firm of extortion, subornation of perjury and other crimes.”
Boies declined repeated interview requests and did not respond to written questions that specifically referenced the RICO allegation, as well as other assertions made by Dershowitz. Giuffre’s attorneys did not respond to requests for comment.
Named in a court filing
The mudslinging between two of America’s most famous and celebrated attorneys tracks to the wee hours of Jan. 22, 2015, when the men were casual acquaintances and occasional confidants. Dershowitz, a ubiquitous TV presence, awoke early that morning at his New York apartment and headed to Rockefeller Center, where he was scheduled to appear on NBC’s “Today” show to discuss the sex allegations made by Giuffre.
On the way, Dershowitz seethed.
Three weeks earlier, his name had surfaced in a court filing by Giuffre, who was then known only as Jane Doe No. 3, asking to join a lawsuit related to the Epstein case. The suit alleged that Epstein’s victims hadn’t been notified in advance of a non-prosecution agreement with federal prosecutors after the wealthy financier was arrested on suspicion of sex trafficking involving minors.
It wasn’t the substance of the complaint about victim notification that was most important to Dershowitz, though. Instead, he was incensed that the filing asserted that Giuffre had been lent to Britain’s Prince Andrew for sex and to Dershowitz, whom she alleged had sex with her at Epstein’s private island, his Palm Beach estate, his New Mexico ranch, his New York mansion and on his private plane.
Dershowitz and the prince adamantly denied the accusations at the time. Dershowitz and Buckingham Palace, speaking on behalf of Andrew, also issued strongly worded denials last week when the court documents were unsealed.
On “Today” that day in 2015, Dershowitz went nuclear. He accused Giuffre of filing “perjured” court papers and said, “She is categorically lying and making the whole thing up.”
Dershowitz has bolstered his contention that Giuffre cannot be trusted by referencing claims that she has made about having dinner with former president Bill Clinton on Epstein’s island. Dershowitz took it upon himself to investigate the Clinton allegation and to clear his name. He hired a security firm headed by former FBI director Louis Freeh to investigate.
Through Freedom of Information Act requests, the firm determined that Clinton could not have been on Epstein’s island during the time period when Giuffre said she had dinner with him. A summary of findings prepared by the Freeh firm states that the FOIA records “completely undermine [Giuffre’s] credibility.” The firm also said it found no evidence to support the sex allegations against Dershowitz.
Last week, Dershowitz also gained what might be a potent weapon in his quest to impeach Giuffre’s credibility in the newly unsealed court documents. The papers relate to a defamation suit filed against Ghislaine Maxwell, whom Giuffre and others have accused of procuring girls and women for Epstein. The suit was settled for an undisclosed amount in 2017. The records were unsealed at the request of several news organizations, including The Washington Post and the Miami Herald, which published a series of articles about Epstein’s alleged abuses prior to his recent arrest.
Among the documents was a 2011 email sent to Giuffre from Sharon Churcher, a journalist for the British tabloid the Mail on Sunday, that Dershowitz contends is proof that Giuffre was being encouraged to lie about him. The email appears to reference a book proposal Giuffre was compiling.
“Don’t forget Alan Dershowitz . . . JE’s buddy and lawyer,” Churcher writes to Giuffre in an apparent reference to Jeffrey Epstein’s initials. “Good name for your pitch as he repped Claus von Bulow and a movie was made about that case . . . title was Reversal of Fortune. We all suspect Alan is a pedo and tho no proof of that, you probably met him when he was hanging put [sic] w JE.”
Churcher did not respond to a request for an interview.
The famed law professor’s campaign to refute Giuffre’s allegations created a pile of legal trouble because of the words he chose. While defending himself, he also cast aspersions on the character and ethics of the two attorneys representing Giuffre in her attempt to join the lawsuit related to notifying Epstein’s victims.
Dershowitz had said in a television interview that the attorneys — Florida-based Brad Edwards and former federal judge Paul Cassell — were “prepared to lie, cheat and steal.” He had described Cassell as “essentially a crook.” (Cassell and Edwards did not respond to interview requests.)
Cassell and Edwards responded in the way lawyers might be expected to — they sued him for defamation.
Despite the lawsuit, Dershowitz continued to vociferously and publicly defend himself.
In Florida, an attorney in Boies’s firm named Carlos Sires was watching “Today” when Dershowitz appeared. He reached out via email to Dershowitz offering to help him with the dispute and later discussed the possibility of representing him. (Dershowitz has said he considered Sires his attorney at that point, a contention that Sires has disputed in an affidavit attached to a bar complaint Dershowitz later filed against Boies.)
Sires also said in the affidavit that he was not aware at the time of his initial contact with Dershowitz that other lawyers in his firm were representing Giuffre in a separate case. That digital note set in motion a cascading series of events that have put Dershowitz and Boies at odds for the past four years. (Sires could not be reached for comment.)
The dispute centered on Dershowitz’s claim that Sires reviewed confidential material about the defamation case filed against Dershowitz by Edwards and Cassell. About a week later, Boies determined that there was a conflict that Sires had not known about and the firm notified Dershowitz that it couldn’t represent him.
Dershowitz was angry, concluding that the firm sneakily got inside information about his defense in order to gain an advantage, according to interviews with Dershowitz. Boies has dismissed that suggestion, saying in a personal affidavit connected to the Florida bar complaint Dershowitz later filed against him that material Sires reviewed was nothing more than a recap of Dershowitz’s public statements.
What Dershowitz didn’t know at the time was that Boies, the man who would become his nemesis, had been in contact with Giuffre for nearly six months. Boies was contacted in June 2014 by Stanley Pottinger, an attorney who was the former head of the Justice Department’s civil rights division, about representing Giuffre, according to an affidavit by Boies included in Giuffre’s ongoing case against Dershowitz.
Although Giuffre had two attorneys, Pottinger thought she needed more legal help because he expected her to “become the target of vicious attacks” by people she accused of sex abuse, according to an affidavit Pottinger wrote that is included in Giuffre’s ongoing case against Dershowitz.
The next month, Boies met with Giuffre in New York, according to his affidavit, and he asked Pottinger to vet Giuffre’s claims. Satisfied that she was credible, Boies agreed that his firm would take her on as a client, although he says the firm did no work related to her until November. Boies said in the affidavit that partner Sigrid McCawley represented Giuffre while she was a witness in the defamation suit filed in January 2015 by Edwards and Cassell.
Eventually, Dershowitz came to allege even darker motives for Sires’s outreach after the “Today” interview. He developed a complicated extortion theory involving Boies after being contacted in April 2015 by one of Giuffre’s friends — a woman named Rebecca Boylan — who’d seen coverage of the scandal and agreed to speak with him in a tape-recorded conversation, Dershowitz said in an interview. He played the tape for The Post, but did not let the news organization have a copy,
Boylan, according to Dershowitz’s account of the conversation, told him that Giuffre had never mentioned having sex with him. She added that Giuffre had told her she had been urged by her lawyers to name Dershowitz.
“She felt pressure to do it, she didn’t want to go after you personally,” Boylan said, according to Dershowitz’s tape of the conversation. “She felt pressured by her lawyers.”
But that wasn’t all. Boylan also said that naming Dershowitz was a step in a plan to win an enormous settlement from the founder and CEO of the parent company of Victoria’s Secret, the lingerie giant. Dershowitz knew Boylan was referring to Leslie Wexner, a billionaire who was a close friend and mentor to Epstein.
“They wanted to sue him for at least half his money,” Boylan said, according to Dershowitz’s tape .
Dershowitz also claims that Boies and his firm were attempting to send a message to Wexner, whom Giuffre had not publicly accused at that point of having sex with her at the behest of Epstein, although she later would. The message, according to Dershowitz, was that Wexner would be publicly shamed, in the same way that Dershowitz had been, if he didn’t pay up.
Boies wrote in his response to Dershowitz’s Florida bar complaint that neither he nor McCawley had been involved in the decision to name Dershowitz and has denied attempting to extort Wexner. He also wrote that “no settlement demand was ever made, or even discussed with, Mr. Wexner or his counsel.”
(Wexner declined to be interviewed, and Boylan could not be reached for comment.)
A secretly taped call
Still, Dershowitz was eager to persuade Boies that he was innocent, according to interviews with Dershowitz and accounts of their interactions included in an affidavit by Boies. The two men began a series of meetings between May and July 2015, according to Boies’s affidavit.
Among the items Dershowitz showed Boies, according to Dershowitz, were detailed calendars that he cited as definitive proof that he could not have been at Epstein’s island, ranch, Palm Beach mansion or on his private plane during the time period when Giuffre said he was having sex with her. (Dershowitz keeps a massive spreadsheet handy at his New York apartment to show the reporters he’s courted to tell his version of events.)
The two lawyers have different memories of those meetings. Dershowitz has asserted in interviews with The Post that Boies told him during those meetings that Giuffre must have mistaken him for someone else. Boies wrote in his affidavit that Dershowitz’s account “is not true.” Among the data points Boies cites in his affidavit is a lie-detector test that he says Giuffre passed. (Results of such tests are seldom deemed admissible in court.)
Later in 2015, Dershowitz took the unusual step of secretly taping a call with Boies. Dershowitz played the tape, which is muffled and cuts off at points, for The Post, but did not allow the newspaper to have a copy. On the tape, Boies appears to say he and one of his partners are convinced Giuffre’s claim of having sex with Dershowitz is “wrong.” Boies said in his affidavit that he never told Dershowitz that Giuffre wasn’t telling the truth.
In Giuffre’s defamation case against Dershowitz, two of Boies’s partners assert that the taping was “a violation of the canons of ethics.” They also say Boies was merely discussing a hypothetical and that he believed all along that Giuffre was telling the truth. Dershowitz has said the taping was entirely legal because at the time he was in New York, which only requires the consent of one of the parties on the call for a legal taping.
Armed with what he thought was a plausible extortion theory and with his taped evidence, Dershowitz went to war.
In 2017, he filed the bar complaint against Boies in Florida. The document lays out his allegations about the Boies firm’s handling of the defamation case filed against him by Edwards and Cassell, and then goes on to read almost like a lengthy Wikipedia article about controversies during what he describes as the Boies firm’s “long and sordid history.” He cites a 2012 case in which a New York judge chided Boies’s firm, saying “a clearer conflict of interest cannot be imagined. A first-year law student on day one of an ethics course should be able to spot it.”
Dershowitz also summarized the controversy over a potential conflict spurred by Boies serving on the board of directors and as a lawyer for Theranos, the scandal-plagued blood-testing start-up.
The bar complaint, which was obtained by The Post, surfaced shortly after Boies was enmeshed in a major conflict-of-interest scandal in 2017 involving the famed movie producer Harvey Weinstein, who was being accused in a series of sexual abuse incidents. At the time, Boies was getting a torrent of bad publicity because of the revelation in media reports that he was representing the New York Times in legal matters without telling the newspaper that he was simultaneously representing Weinstein, who was being investigated by Times reporters. Boies also secretly oversaw an effort to undermine the paper’s reporting by hiring a firm that employed former agents of the Israeli intelligence service, Mossad, to collect information on Times reporters and Weinstein’s alleged victims.
The Times cut ties with Boies and issued a blistering statement.
“We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.” It added: “We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible.”
Boies had signed the contract with the spy group, but later tried to distance himself from its work.
“I regret having done this,” Boies said in an email sent to his staff that was published by New York magazine. “It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else. . . . That is not who I am.”
Dershowitz seized on the Times imbroglio to press his argument in public that Boies is an unethical lawyer.
“No lawyer in modern American history has ever been more credibly accused of more ethical violations than David Boies and his law firm,” Dershowitz said in a recent interview with The Post.
In 2017, Boies’s firm issued a statement in response to Dershowitz’s conflict-of-interest allegations, saying: “Over the years, there have been some bar complaints filed against Mr. Boies. Each of them was filed by an unhappy adverse party; none was filed by a client. No disciplinary action was ever taken.”
The dispute goes on
The feud between Dershowitz and Boies is well known in legal circles, where both men have earned stellar reputations over the years.
“People can have grudges and sometimes things get heated between lawyers, but based on headlines about two people I’ve worked with, who are talented, smart and committed to their clients, we just don’t have enough information to make a judgment,” said Lawrence Fox, a Yale Law professor and former chairman of the American Bar Association Standing Committee on Ethics and Professional Responsibility who has worked alongside both men.
As the months have passed, one by one, Dershowitz’s broadsides against Boies and his allies have cratered. He settled the defamation case filed by Cassell and Edwards, Giuffre’s attorneys, before Boies and his partners came on the scene.
Earlier this year, the Florida bar complaint against Boies got tossed out.
But their dispute continues, with the next field of battle in New York, where Giuffre’s defamation case against Dershowitz — with a potential star plaintiff’s witness named David Boies — trudges on. Boies is a potential witness because he could be called to testify about his interactions with Dershowitz and about Dershowitz’s extortion theory. That means that Dershowitz, the 80-year-old, and Boies, the 78-year-old, will tangle again as the elder party in the grudge match tries to get the younger one’s law firm barred from representing Giuffre in the defamation suit against Dershowitz.
And so it has gone for years, an endless cycle of enmity playing out on a continuous loop. This clash of the titans is so persistent and many-tentacled that one could imagine it outliving the legal giants it has consumed.
The investment-bank model
When David Greenwald returned to co-lead Fried, Frank, Harris, Shriver & Jacobson LLP in 2013 after a turn as a top Goldman Sachs in-house lawyer, the Wall Street firm was dragging. Revenue had fallen 17% since 2007 and competitors were picking off its lawyers.
One problem, he noticed, was that partners were notoriously lax about turning in their timesheets, which meant clients weren’t always getting billed. The slips were costing the firm $6 million a year.
Mr. Greenwald realized the firm needed to operate less like a law firm partnership and more like the investment bank he’d just left, if it wanted to survive.
He closed underperforming Asia offices and created a finance committee. All partners had to turn in plans for how to expand their businesses. Partners were paid more on merit than seniority, and could no longer see how much each of their peers made.
And Mr. Greenwald told partners to submit their timesheets every week or risk a fine.
Average profits for equity partners at Fried Frank have doubled since 2013, to more than $3 million last year, according to the firm. Gone is the egalitarianism that marked Mr. Greenwald’s early days at the firm: Fried Frank’s highest-paid partner makes 13 times its lowest-paid.
“We’re all on the path from being small partnerships, in which everyone can get in a room and debate and make a decision, to by necessity having to centralize a lot of the decision-making in a group of people or an individual,” Mr. Greenwald said.
That journey from partnerships to profit machines has made some lawyers very wealthy. At the 15 most-profitable law firms, top partners bill on average $1,655 an hour and their rates are rising faster than inflation, according to legal analytics company Bodhala.
At the nation’s 100 largest firms, average equity-partner profits have doubled since 2004, to $1.88 million last year, according to American Lawyer. Eight firms average more than $4 million.
“We’re making much more than anybody who doesn’t save lives deserves,” said David Boies, the litigator who broke off from Cravath in 1997 to launch his own firm. In his best years, Mr. Boies has paid himself $25 million, a spokeswoman confirmed.
Pity the associate
As firms compete to keep profits rising for those at the top, lawyers further down the ladder are sometimes getting left behind. Promising associates who could once expect to be named a partner within seven or eight years are waiting 10 years or more.
Firms have created new steppingstones along the way to appease them—and keep them grinding.
One newly promoted partner at a big firm said he was shocked to learn he would have to spend a year as counsel, an increasingly popular interim title. The firm told him it was to prepare him for the bigger change of being partner. “I wouldn’t be a cynical lawyer if I didn’t think there were other profit-motive reasons,” he said.
Another popular stop-off is “non-equity partner,” the title held by those 560 Kirkland lawyers not invited to the California retreat. They earn a salary rather than sharing firm profits.
In 2000, 78% of partners held equity in their firms, according to American Lawyer’s ALM Intelligence. Last year, 56% did.
At Kirkland, junior partners compete each year for a few coveted slots in the equity-earning partnership, many billing more than 2,500 hours a year to try to set themselves apart. Given how much of the day’s work isn’t billable, that can require working 80 hours or more a week.
At elite New York firms, a two-tiered system was once unthinkable. Partners were partners. In the past year, however, cracks have emerged at two of them.
Simpson Thacher’s leaders told partners in April that they plan to start naming non-equity partners. It is hard not to see the move as a response to poaching by Kirkland, which has lured away more than a dozen Simpson lawyers since 2016, most of them associates and counsel that Kirkland made into partners.
“If the firm won’t be loyal to you,” said David Lat, a longtime lawyer and legal blogger turned recruiter, “why should you be loyal to the firm?”
Willkie Farr & Gallagher LLP, a 131-year old firm that was home to a future U.S. Supreme Court Justice and two New York governors, made a similar announcement this spring when it rolled out a two-tiered partnership. Its leaders said the move is intended to reward promising young lawyers earlier and make the firm more competitive in recruiting.
“It was getting harder to tell associates, ‘stick around for 10 years and see what happens then,’ ” said Willkie’s chairman, Steven Gartner. “They wanted more certainty and wanted it sooner.”
Making partner doesn’t just take longer. It takes hustle. A few decades ago, partner titles were handed out largely on the basis of being technically proficient. Now, being a business generator is a crucial component.
Janice Mac Avoy, a Fried Frank partner, said when she earned the partner title 23 years ago, the business model was “wait for the phone to ring” and do a good job for the client on the other end.
When a partner suggested a lawyer being considered for promotion had great contacts and could generate new business, she recalls a fellow partner saying, “You know that’s not an appropriate consideration.”
The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.