Philip Heymann first achieved prominence by deliberately losing a highprofile, Watergate-related case before a US district court judge in Washington in 1973.
His legal mentor, Archibald Cox, had just been appointed special prosecutor to investigate the scandal triggered by the botched burglary at the Democrats’ Watergate headquarters before Richard Nixon’s re-election the previous year.
Concerned that the Democrat-controlled Senate Watergate committee would jeopardise his investigation by televising its hearings and offering immunity to witnesses, Cox told Heymann to challenge the committee’s plans before Judge John Sirica.
Heymann disagreed with Cox’s reasoning. “No judge was going to stop the Senate from holding its hearings,” he later recalled. Nor did he want Cox to be seen as the man who excluded the public from the eagerly awaited theatre. He instead persuaded his boss to proceed with the challenge simply to demonstrate his independence from the Democrats, knowing he would lose.
Heymann duly presented Cox’s case so gingerly that at one point, when he said he wanted to be “careful not to over-argue my case”, Sirica replied “no chance of that, young man”.
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Sirica did indeed reject Cox’s request for a court order, and Heymann was amply vindicated by subsequent events. Cox was widely seen as an impartial prosecutor, while the Senate committee proceeded to uncover much of the material that eventually brought down Nixon.
Watergate was Heymann’s first, but by no means only, claim to fame. He served four Democratic presidents over six decades before resigning as President Clinton’s deputy attorney-general over a crime bill he considered draconian and misguided. When not in public service he taught at Harvard Law School and became an authority on civil liberties and the limits of presidential power.
Nixon clearly breached those limits, as did President Trump nearly half a century later when he sought to bend the justice department and attorney-general to his will.
“For those who wish to enter public service, remember that your duty runs deeper than the orders of any president,” Heymann wrote in an unpublished memoir seen by The New York Times. “Do not trade away your credibility and reputation for political favour or advancement. Be loyal to the law, the values of the country, and have the courage to stand up when others threaten those ideals.”
Philip Benjamin Heymann was born in Pittsburgh in 1932. His father owned an insurance agency. His mother was a community service volunteer. He earned a philosophy degree from Yale, spent a year at the Sorbonne in Paris on a Fulbright scholarship, and served two years in the US Air Force’s Office of Special Investigations. He then studied law at Harvard, graduating third in his class in 1960.
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He married Ann Ross, whom he had met at a dance in Pittsburgh when he was 16 and she just 13. They had a son, Stephen, who became a federal prosecutor specialising in internet and computer crimes, and a daughter, Jody, a professor at the University of California Los Angeles.
After briefly clerking for John Harlan, a Supreme Court judge known as the “Great Dissenter” for dissenting in so many cases restricting civil liberties, Heymann joined the office of Cox, who was then President Kennedy’s solicitor-general, and remained there until Cox stood down after President Johnson’s election victory in 1964. Heymann was “as close to Archibald Cox as a son”, according to one contemporary commentator.
By late 1965 Heymann was back in Washington as a senior State Department official. There he helped to expose and end J Edgar Hoover’s practice, as FBI director, of conducting surveillance on Americans abroad whom he suspected of being left-wing subversives. He also helped to redeem John Paton Davies, a diplomat whose foreign service career had been unjustly curtailed by McCarthyism 14 years earlier.
By the mid-1970s Heymann and Cox were both teaching at Harvard Law School. When Cox was appointed Watergate special prosecutor Heymann told him: “Gee, I would like to go down with you.” Cox immediately hired him to set up his office.
Heymann investigated the White House “Plumbers”, who broke into the Watergate complex, and was one of the team that successfully prosecuted John Ehrlichman, the Nixon aide who created the Plumbers, for seeking to cover up the break-in.
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In October 1973 he was at Cox’s side during the so-called “Saturday Night Massacre”. Nixon ordered first Elliot Richardson, the attorney-general, and then William Ruckelshaus, the deputy attorney-general, to fire Cox, who had subpoenaed the president to obtain incriminating Oval Office tapes. Both refused and resigned.
Robert Bork, the solicitor-general, finally fired Cox, but public opinion turned decisively against Nixon, and Bork appointed a successor, Leon Jaworski, who pursued the investigation just as vigorously as Cox.
Heymann continued to yo-yo between Harvard and Washington, and from 1978 to 1981 served as head of the justice department’s criminal division under President Carter. In that role he oversaw Abscam, a notorious sting operation in which FBI agents posing as Arab sheikhs offered bribes in return for political favours. Six US congressmen and a senator were convicted.
He returned to Washington again in 1993 to serve as deputy attorney-general under Janet Reno in President Clinton’s administration, but lasted less than a year. In 1994 he resigned over provisions in a crime bill that would introduce mandatory minimum sentences for low-level drug offenders and imprison repeat offenders under a controversial “three strikes” policy. He believed they would lead to mass imprisonment and racial discrimination while failing to stop crime.
Back at Harvard Heymann lectured, wrote books and — especially after the 9/11 terrorist attacks — argued passionately against the curtailment of civil liberties and the use of torture to counter threats of terrorism. “For a great democratic nation, what is needed is a strategy, not unbridled anger,” he wrote.
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He retired from Harvard Law School in 2017 after nearly half a century at the faculty. When his daughter asked him how he would like to be remembered, he replied: “Speaking truth to power.”
Philip Heymann, prosecutor and law professor, was born on October 30, 1932. He died on November 30, 2021, aged 89