Although I had been appointed an Assistant United States Attorney for the Southern District of New York under Eisenhower, I stayed on when Robert F. Kennedy took over the Department of Justice and Robert M. Morgenthau came in as United States Attorney.

On every assistant’s desk was a buzzer operated from the front office. One morning late in the summer of 1961, mine rang. I walked around to Mr. Morgenthau’s room. The door was closed, but the receptionist waved me in. Behind the desk sat Morgenthau, smoking a cigar. In a chair in front of the desk Robert Kennedy fidgeted with a pair of heavy hornrimmed glasses. Morgenthau introduced me to the Attorney General, who nodded once. It was his only contribution to the conversation. I sat down, and Morgenthau proceeded to explain why I was there.

What he said and some of the events which followed are the subject of this article. I want to tell about them because truth is better than guff, and therefore we should know how powerful men actually use their time and opportunities. To the considerable disclosures of recent years, I here make my small addition.

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“The department,” said Morgenthau, “has a special interest in Roy Cohn.”¹ That was no news to me. It had been the gossip of the office for months. “The Department thinks it would be a good idea to consolidate all of our Cohn activities in one assistant. I’m designating you. Review the files. Follow up. Go wherever you have to. Your job is to find out whether Cohn is guilty of something. The Department wants Cohn.”

“I’ll get him,” I said, and nodded to Kennedy, who was still fidgeting with his glasses. Neither he nor Morgenthau spoke as I left the room. That afternoon, I began to read about Cohn.

Morgenthau had been right. Nothing in the files amounted to anything against Cohn. Even so, one possibility seemed worth pursuing. In 1960, a number of people had been indicted for securities fraud. The charge was that they had manipulated the price of the common stock of a company called Gulf Coast Leaseholds, Inc., by buying and selling the stock through a Liechtenstein entity named Brandel Trust, which in turn acted through a Swiss bank account. Among the defendants were a Zurich lawyer, Paul Hagenbach, and a New York promoter, John Van Allen. Hagenbach was the registered agent in Switzerland for Brandel. Van Allen had dealt with him and was also known to be friendly with Cohn. If Cohn were a principal in Brandel, he could be indicted for securities fraud. Hagenbach controlled Brandel’s records, and in those records, I thought, would be the list of Brandel’s principals.

“I’ll go to Zurich and talk to Hagenbach,” I told Morgenthau, “but there are two difficulties. One is that I don’t have a passport. The other is how we’re going to persuade Hagenbach to break Swiss anonymity law and give us the records.”

“The first is easy,” Morgenthau said. “You’ll have a passport in twenty-four hours. Let me think about the second. Meanwhile, take a look at this.” He handed me a photostat of Roy Cohn’s 1960 income-tax return. It showed nothing to suggest a connection with Brandel.

I had my passport the next day. I also had a letter Morgenthau wrote for me to carry to Hagenbach. On official stationery, it read as follows:²

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August 30, 1961

To whom it may concern:

The bearer of this letter, Irving Younger, is an Assistant United States Attorney for the Southern District of New York. He is authorized to speak for the Department of Justice and for me.

s/Robert M. Morgenthau
United States Attorney for the Southern District of New York

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I reached Hagenbach by telephone. He would be willing to see me on Friday, September 1.

It wasn’t hard to find his office in the Bahnhofstrasse, Zurich’s main street. I arrived a few minutes early. Hagenbach was waiting at the door. He spoke slowly and clearly, in slightly accented but perfect English. We sat at a table covered with a green cloth.

“Why have you come to me?” he asked.

“To talk about your case.”

“How do I know you are a federal prosecutor?”

I handed him my passport, my identification as an Assistant United States Attorney, and the letter from Morgenthau. He looked at each, returning it to me before examining the next. The passport and the identification I put back in my pocket. I left the letter on the table.

“I have nothing to say about my case except that I am not guilty,” he said.

“Maybe you aren’t guilty,” I replied. “That will be for a jury to determine when the case is tried.”

“I am not a fool, Mr. Younger. I cannot be extradited from Switzerland on a charge of securities fraud, and surely you do not think that I will go voluntarily to the United States to be arrested and to stand trial.”

“I know you are not a fool. That is why I thought we should talk about your case.”

“I will listen to you.”

“There is a possibility, Mr. Hagenbach, that the indictment can be dismissed against you. Right now, or at least very soon.”

“Who will dismiss the indictment?”

“I will. I am in charge of the case now.”

“Why should you?”

“The indictment will be dismissed if you help the government.”

“It has been a great embarrassment to me to be indicted. My clients have read of it in the newspaper. It has hurt my practice.”

I said nothing.

“What must be done?” he asked.

“I want to know everything about Brandel.”

“It is all in the records.”

“What records? Where?”

“The records in my files and the records of the bank account.”

“Then that is what I want.”

“The records?”

“Yes. All of them. I want a copy of every piece of paper to take back with me.”

“And if I give them to you?”

“The indictment against you will be dismissed. In our practice, we call it a nolle prosequi.”

“How can I be sure that it will happen?”

“I promise.”

“How can I trust your promise?”

“There is the letter from Mr. Morgenthau.”

“May I keep it?”

“Yes.” Hagenbach picked it up from the table and put it in a drawer.

“Will you say in writing that the indictment will be dismissed?” he asked.

“Yes.”

He gave me a pad. I wrote out the following and handed it to him:³

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September 1, 1961

I promise Paul Hagenbach that the indictment against him, United States v. Van Allen, Hagenbach, et al., 60 Cr. 282, will be dismissed within sixty days.

s/Irving Younger
Assistant United States Attorney for the Southern District of New York

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“Now the records,” I said.

“It will take several hours to make copies of everything,” he said. “Come back later this afternoon and I will have them for you.”

As Hagenbach took me to the door, he said, “Do not think that I am violating Swiss law. That I would not do. I have secured an opinion from the Attorney General of Switzerland that, since I am the registered agent of the Trust, I have the right to waive anonymity and disclose the affairs of the Trust to whomever I wish.”

“I’m very glad to hear it,” I said, and left to take a long walk around the city. When I returned, three hours later, I brought with me a large suitcase. Piled on the table were photostats of several hundred documents, the records of the Brandel Trust and of its bank account. Hagenbach helped me pack them in the suitcase and, thirty-six hours later, I sat in my office in the United States Courthouse studying them.

They were not what the Department wanted. They proved a great deal about the guilt of Van Allen and the other defendants in the Gulf Coast case but nothing about Roy Cohn.

That was my report to Morgenthau. “You’re sure they don’t give us Cohn?” he asked.

“I’m sure,” I said. “Not one piece of paper in there is evidence that Cohn was behind Brandel.”

“Well, we know Cohn is smart. Maybe he set the thing up so that the records don’t involve him.”

“Possible,” I said. “But if he was in it, he needed a front.”

“Who?”

Among those who clearly had participated in the manipulation, only John Van Allen might have been a stand-in for Cohn. Now, Morgenthau agreed, we had to break Van Allen. Once we broke Van Allen, Van Allen would give us Cohn. To break Van Allen, we needed to hang a jail sentence over his head. Thus it was necessary to push ahead with the Gulf Coast case, in which, with the records I had brought back from Zurich, the government could be certain of a conviction.

But this raised yet other problems. If the Gulf Coast case was to be tried and the Brandel records put into evidence, the government would need someone to call to the stand to testify to their authenticity, someone who could swear that, of his own knowledge, these were indeed the records of Brandel and of Brandel’s bank account. That witness could only be Paul Hagenbach, and Hagenbach, as a citizen and resident of Switzerland, was not subject to a subpoena ordering him to testify in a federal court in New York City. To get him on the witness stand we would be obliged to persuade him. The only thing we had to persuade him with was the Gulf Coast indictment. But of course I had already promised Hagenbach, in writing, that the indictment would be dismissed within sixty days.

“What do we do?” The answer was to break the promise.

Hagenbach’s indictment was not dismissed by November 1. Instead, I assured him by telephone that, for technical reasons I did not want to go into, the nolle prosequi would be postponed for a while. I also said that I wanted to see him again.

Hagenbach met me at the American consulate in Zurich on October 25. I explained three things to him. First, his testimony would be necessary in the Gulf Coast trial, which might take place in a year or so. Second, to prepare for that testimony, I needed him in New York to go before the grand jury, identify the Brandel records, and tell what he knew about the stock manipulation. Third, although it would be impossible to dismiss the indictment against him until later, he would receive a written guarantee of safe conduct when it was time for him to come to New York. He said that he understood. I cautioned him to keep the matter secret. “There’s no need for the other defendants to know what you’re doing,” I said. Hagenbach agreed, and I returned home to go to work on the Gulf Coast case.

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It was three months before I was ready to put Hagenbach before the grand jury. I had not been able to give much time to Gulf Coast because other aspects of Cohn’s activities had occupied my attention. Among other things, I went to Panama to look into the possibility that Colin had used a Panamanian corporation for illegal purposes. I found nothing. 1 spent many days talking to John Van Allen, trying to persuade him to tell me something about Cohn. He said that he had nothing to tell. I subpoenaed Cohn before a grand jury. He appeared and responded to my interrogation with exquisite self-assurance. The jurors found no cause to indict. By February, chiefly through the help of my colleagues in the United States Attorney’s office, the Brandel records had been sorted and the Gulf Coast case begun to be analyzed. That we would convict Van Allen and the other defendants was obvious. Whether Van Allen would then break and implicate Cohn in anything indictable remained an open question. Cohn’s name appeared in the documents, but not in any way to provide evidence of criminality. Also mentioned once or twice was a New York lawyer, a friend and sometime professional associate of Cohn, named John Foley.

I telephoned Hagenbach and arranged to have him and his wife fly from Zurich to New York On the twenty-fourth of February. Two days before that, Morgenthau cabled Hagenbach a promise of safe conduct in the United States. On Saturday, the twenty-fourth, in the early afternoon, I was at Idlewild Airport (as it was then called) to meet the Hagenbachs and see them safely on their way to their hotel the Plaza. Unknown to them, I was accompanied by six FBI agents who had been instructed to stay back in the crowd and make sure that all went well. One of the agents, equipped with a camera, was stationed above the main floor, behind the glass wall of the observation deck, photographing everything that happened.

I waited in the room to which passengers came immediately after leaving the plane. The Hagenbachs were traveling on a Swiss diplomatic passport, and so customs had waived inspection of their luggage. They appeared. I greeted them and walked with them around the customs desks toward the main reception area. Perhaps three hundred people were milling about, waiting for other passengers to pass through customs. It was difficult to move through the crowd. I had fallen a yard or two behind the Hagenbachs when a man stepped up to them and said, “Hello, Paul. What brings you here?” I recognized Foley. Turning away, I walked in the opposite direction until I came to a bench. I sat down. The Hagenbachs were gone; Foley was gone. In five minutes, one of the FBI agents found me.

“Did you see it?” I asked.

“Yes. Who was that?”

“Someone I didn’t expect to be here. His name is Foley. Where are they now?”

“The Hagenbachs are standing on the sidewalk outside, waiting for Foley to get his car.”

“I want to talk to Hagenbach.”

“Let’s go,” the agent said, and led me outside. The Hagenbachs were there.

“How did Foley know you were arriving?” I asked Hagenbach.

He shrugged.⁴

“Where is Foley taking you?”

“To the Plaza.”

“All right. Go with him. But don’t say anything about me. I’ll call you tonight.”

The agent and I walked away. “I want them followed,” I said.

We had two cars. In one, four agents went ahead to the Plaza. The remaining two agents and I, in the other, trailed Foley’s car from the airport to midtown Manhattan, where we lost it in traffic.

At the Plaza, we found the first four agents standing in the lobby. One of them reported that the Hagenbachs had arrived with Foley and that all three had gone upstairs to the Hagenbachs room.

I went to a telephone booth and called Morgenthau at home. I told him that Foley had met the Hagenbachs and escorted them to the hotel.

“Foley’s acting for Cohn,” Morgenthau said. “Cohn sent him to find out what Hagenbach is doing here and prevent him from testifying. We were right. Van Allen can give us Cohn, and if we get Foley, Foley will also give us Cohn.”

“What now?” I asked.

“Stay there. Talk to Hagenbach alter Foley leaves and find out what’s going on. Then call me. I’ll let the Department know.”

After sending the agents home, I sat in the lobby and read a newspaper. I saw Foley come out of the elevator. He left the hotel without looking around. I called Hagenbach and asked him to meet me in the lobby. He came down, and we walked back and forth in front of the hotel.

“What did Foley want?” I asked.

“Nothing.”

“Did he ask why you were in New York?”

“Yes.”

“What did you say?”

“That I was going to see you.”

“Anything else?”

“That I might go before the grand jury.”

“What did he say?”

“That he would like to talk to me before I do.”

“Will you?”

“Yes.”

“When?”

“We made an appointment for tomorrow at three. Foley is to come here.”

Hagenbach returned to his room. I telephoned Morgenthau.

“We’ll bug the room,” he said. “Call me back in an hour.”

I did. “The Department says we can put in the bug,” he said. “Call the Bureau. They know what’s happening and they’ll get it going.”

The FBI field office in New York had electronic technicians on its staff. I was told by the agent in charge of the office, whom I called at once, that the FBI technical men would be at the Plaza the next morning to install the bug. “You take care of the legal refinements,” he said.

They were not complicated. A “bug” is a microphone concealed in a room. The law permits the installation of a bug and the recording of conversations thereby over-heard so long as the occupant of the room gives his permission.

I called Hagenbach and asked whether I might come up. He said yes. After listening to my explanation of what we proposed, he consented.

Early the next morning, I met seven or eight agents at the hotel. They spoke to the manager, who gave them the room next door to the Hagenbachs’, and they began to set up their recording equipment. I met Hagenbach in the coffee shop and told him the microphone would be installed in his room in the course of the morning. “I don’t want to be there when they put it in,” he said. “I don’t want to know where it is.”

“Then you and Mrs. Hagenbach go out for a few hours. The mike will be set up while you’re out.”

“We have no place to go,” he said.

I had no car and I didn’t know how to drive. One of the agents undertook to chauffeur the Hagenbachs and me around Manhattan. While we saw the sights, the other agents installed the microphone in the Hagenbachs’ room.

At three o’clock Foley walked into the lobby. I was sitting in a corner and saw him take the elevator upstairs. All of the FBI agents were in the room next door to the Hagenbachs’ with their recording equipment. The microphone was in place, and if perjury were to be suborned, there would be unequivocal evidence of it: a tape recording that would convict Foley and consequently give us Cohn. I had called Morgenthau at home several times during the day. He said he wanted to know what was occurring as soon as it occurred. So did the Department.

At about five o’clock Foley and Hagenbach came out of the elevator and walked to the sidewalk. Foley got into a cab and drove away. Hagenbach returned to the lobby. “What happened?” I asked.

“Nothing,” he said.

I went up to the agents’ room. They were packing their equipment. “What happened?” I asked.

“Nothing,” one of the agents said.

“That’s what Hagenbach says. They must’ve talked about something. What did you hear?”

“The microphone didn’t work.”

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By mid-spring, I was able to report to Morgenthau on the product of my nine months’ labor. Hagenbach had testified before the grand jury, and the Gulf Coast case was being prepared for trial.⁵ I had been to Europe twice, to Central America once, and to various places within the United States. I had studied every official file in which Roy Cohn was mentioned. I had put Cohn before the grand jury. I had devoted myself single-mindedly to investigating Roy Cohn, and the result was nothing.

“I’m licked,” I said. “If he has violated the law, I can’t find it.”

“I’ll inform the Department,” Morgenthau said.

I understood that I was no longer the Department’s man on Cohn.

I resigned as an Assistant United States Attorney at the end of June and went into private practice. Not long after, I was in the courthouse attending to a client’s case when, in the corridor, I met William G. Hundley, then head of the Department’s Organized Crime Section and reputed to be a close friend of the Attorney General.

“I’ve been meaning to call you,” he said. “Do you have a moment?”

We stepped into an empty courtroom and sat in the back row.

“Listen, Irv,” he said. “What about your resignation?”

“What about it?”

“We’ve heard that you were forced out for being too tough on Cohn.”

“That’s not true. I resigned because I’d been in the office long enough. It was time to move on to something else.”

“Well, if you say so, OK. But the Department thinks maybe Cohn got to Morgenthau.”

The Department need have had no qualms about Morgenthau’s loyalty and zeal. In September 1963, he indicted Cohn for perjury and related crimes. The jury acquitted. In November 1968, he indicted Cohn for fraud and related crimes. The jury acquitted. In January 1969, he indicted Cohn for bribery and related crimes. The jury acquitted.

Immediately after his first indictment, Roy Cohn called a press conference to denounce Morgenthau. “Ever since Morgenthau took office,” he said, “there isn’t a defendant or a criminal around who hasn’t been offered a proposition to get something on me.”⁶ Cohn thought that Morgenthau wanted to imprison him in retaliation for Cohn’s investigation, under McCarthy, of Communist infiltration into the Treasury Department when Henry Morgenthau, Robert’s father, was Secretary. I do not know whether there is any truth to this, nor do I know whether it is true, as I heard said in the United States Attorney’s office, that Robert Kennedy had hated Cohn since the day when, both of them working for McCarthy, they had quarreled and come to blows. I do know that Cohn’s complaint of vendetta deserves attention. In 1961, the Department decided to “get” Cohn—I know because I was there—and three times over the next several years brought him to trial. It is one of the remarkable things in modern legal history that Cohn was never found guilty, for a maxim among prosecutors is that if you indict enough you will ultimately convict.

But Cohn’s escape is beside the point. The point is the peril. A prosecutor’s power to damage or destroy anyone he chooses to indict is virtually limitless. Grand juries almost always do the prosecutor’s bidding. If the procedural niceties have been complied with, a judge can only order the case to trial. And then it will be up to the jury. Someone else, submitting himself three times to twelve citizens selected at random, might not have been so lucky or so able to bear the cost as Cohn. Someone else, the next person a prosecutor decides to “get,” may be convicted or ruined in the process.

I can think of no institutional safeguard against such a possibility. Everything rests on the honor, temperament, and professionalism of the prosecutor. Given the right man or woman in the job, only those who have something to fear need be afraid. Put the wrong person in charge and we are all in danger.

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Having spoken of the Department, of Morgenthau, and of Kennedy, let me now speak of myself. I read over this narrative and I am not proud. When Morgenthau said, “The Department wants Cohn,” I replied, with enthusiasm, “I’ll get him.” When Morgenthau showed me Cohn’s income-tax return, I did not ask him whether it was proper that he have it. When I thought it necessary to obtain the Brandel records, I made the promise that would get me the records, careless of the legality of my conduct in Switzerland, where I then was; and later, when it suited my purpose, I broke the promise.⁷ When I wanted to know what Foley would say to Hagenbach, I bugged Hagenbach’s room, securing a consent from Hagenbach that can hardly be regarded as freely given, and closing my mind to the affront to Foley’s privacy. It was the power of power. If I possibly could, I was going to be the one to do the job the Department wanted done. Not once did I stop to think what it was a Department of.

¹ Because I had no tape recorder concealed on my person, I cannot represent that this and the other conversations set forth later are accurate to the word. They are substantially accurate, however. I have confirmed my recollection against the court records wherever possible.

² This letter was received in evidence as Government Exhibit 114 at the trial of the Gulf Coast case. I have reconstructed it from the court records, since the United States Attorney’s office has failed to respond to my request for a copy.

³ This document was received in evidence as Government Exhibit 113 at the Gulf Coast trial. Here too the government has failed to respond to my request for a copy, and I have reconstructed it from the court records.

⁴ At the Gulf Coast trial, Hagenbach testified that Foley had telephoned him in Zurich and that Hagenbach had himself given Foley the date and time of his arrival. Foley was not a defendant in the Gulf Coast case, and, so far as I ever found out, he never did anything unlawful.

⁵ It was tried from November 14, 1962, to August 7, 1963. Hagenbach testified for the government, as did John Van Allen, who had changed his plea to guilty. All the remaining defendants were convicted, and every conviction but one was affirmed on appeal.

⁶ Quoted in the New York Times, September 6, 1963, p. 26.

⁷ The indictment against Hagenbach was dismissed sometime after my resignation as an Assistant United States Attorney.