John Lord O'Brian
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John Lord O'Brian (October 14, 1874 – April 11, 1973) was an American lawyer who held public offices in the administrations of five U.S. presidents between 1909 and 1945. O'Brian has been recognized by scholars for his commitment to civil liberties. At the time of O'Brian's death at the age of 98, Chief Justice
Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul College of Law i ...
described him as the "dean" of the bar of the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
.


Early life and career in New York

John Lord O'Brian was born in
Buffalo, New York Buffalo is a Administrative divisions of New York (state), city in the U.S. state of New York (state), New York and county seat of Erie County, New York, Erie County. It lies in Western New York at the eastern end of Lake Erie, at the head of ...
. He attended public schools there before matriculating to
Harvard College Harvard College is the undergraduate education, undergraduate college of Harvard University, a Private university, private Ivy League research university in Cambridge, Massachusetts, United States. Part of the Harvard Faculty of Arts and Scienc ...
. After receiving a bachelor of arts (A.B.) degree from Harvard in 1896, O'Brian returned to his hometown and received a bachelor of laws (
L.L.B. A Bachelor of Laws (; LLB) is an undergraduate law degree offered in most common law countries as the primary law degree and serves as the first professional qualification for legal practitioners. This degree requires the study of core legal subje ...
) degree from the
University of Buffalo Law School The University at Buffalo School of Law (also known as State University of New York at Buffalo Law School, or SUNY Buffalo Law School) is the law school of the University at Buffalo. Founded in 1887, and affiliated with Niagara University until 1 ...
in 1898.SUNY Buffalo School of Law. O'Brian's career in public office began at the age of 32, when he was elected as a Republican candidate to represent Buffalo in the
New York State Assembly The New York State Assembly is the lower house of the New York State Legislature, with the New York State Senate being the upper house. There are 150 seats in the Assembly. Assembly members serve two-year terms without term limits. The Ass ...
in the election of November 1906. While in the State Assembly, O'Brian was considered a consistent supporter of Governor Charles Evans Hughes Sr. Hughes recommended O'Brian to President
Theodore Roosevelt Theodore Roosevelt Jr. (October 27, 1858 – January 6, 1919), also known as Teddy or T.R., was the 26th president of the United States, serving from 1901 to 1909. Roosevelt previously was involved in New York (state), New York politics, incl ...
for the position of
United States Attorney for the Western District of New York The United States attorney for the Western District of New York is the chief federal law enforcement officer in seventeen New York counties: Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, O ...
; O'Brian left the State Assembly to take that position in 1909. O'Brian served as the U.S. Attorney throughout the subsequent administration of President
William Howard Taft William Howard Taft (September 15, 1857March 8, 1930) served as the 27th president of the United States from 1909 to 1913 and the tenth chief justice of the United States from 1921 to 1930. He is the only person to have held both offices. ...
. O'Brian also continued in that office into the administration of Democratic President
Woodrow Wilson Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was the 28th president of the United States, serving from 1913 to 1921. He was the only History of the Democratic Party (United States), Democrat to serve as president during the Prog ...
, thus beginning a bipartisan path of serving as an appointed office holder under both Republican and Democratic administrations. In his role as the federal government's principal attorney in western New York, O'Brian in 1913 filed an
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
lawsuit alleging that the
Eastman Kodak Company The Eastman Kodak Company, referred to simply as Kodak (), is an American public company that produces various products related to its historic basis in film photography. The company is headquartered in Rochester, New York, and is incorporated i ...
was maintaining an unlawful
monopoly A monopoly (from Greek language, Greek and ) is a market in which one person or company is the only supplier of a particular good or service. A monopoly is characterized by a lack of economic Competition (economics), competition to produce ...
on photographic films and equipment. In 1913, O'Brian unsuccessfully ran for
Mayor In many countries, a mayor is the highest-ranking official in a Municipal corporation, municipal government such as that of a city or a town. Worldwide, there is a wide variance in local laws and customs regarding the powers and responsibilitie ...
of the City of
Buffalo Buffalo most commonly refers to: * True buffalo or Bubalina, a subtribe of wild cattle, including most "Old World" buffalo, such as water buffalo * Bison, a genus of wild cattle, including the American buffalo * Buffalo, New York, a city in the n ...
. He lost to incumbent mayor Louis P. Fuhrmann in a three-way race. He was the nominee of both the Progressive and Citizens parties, netting 23,757 votes to Democrat Louis Fuhrmann's 30,219 and Republican Thomas Stoddart's 13,447. In 1915, O'Brian was a delegate to the New York Constitutional Convention.


Justice Department Service During World War I

In 1917, O'Brian went to
Washington, D.C. Washington, D.C., formally the District of Columbia and commonly known as Washington or D.C., is the capital city and federal district of the United States. The city is on the Potomac River, across from Virginia, and shares land borders with ...
to serve as a special assistant attorney general to
Thomas Watt Gregory Thomas Watt Gregory (November 6, 1861February 26, 1933) was an American politician and lawyer. He was a progressive and attorney who served as US Attorney General from 1914 to 1919 under US President Woodrow Wilson. Early life Gregory was born ...
, the
U.S. Attorney General The United States attorney general is the head of the United States Department of Justice and serves as the chief law enforcement officer of the federal government. The attorney general acts as the principal legal advisor to the president of the ...
under President Wilson. Gregory placed O'Brian in charge of the
Department of Justice A justice ministry, ministry of justice, or department of justice, is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
's newly-formed War Emergency Division, which was responsible for enforcing the
Espionage Act of 1917 The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code ( ...
and later its amendments known as the
Sedition Act of 1918 Sedition is overt conduct, such as speech or organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, establ ...
. Although responsible for enforcing these congressional acts, O'Brian considered some of their provisions to be unconstitutional and declined to defend those provisions in court. To control unfettered and inconsistent enforcement of the statutes, O'Brian forbade local federal prosecutors from filing charges of espionage, sedition, or treason without approval from his Division in Washington. Working with fellow Justice Department attorney
Alfred Bettman Alfred Bettman (August 26, 1873 in CincinnatiBETTMAN, Alfred
in ''
, O'Brian shaped the Department's interpretation of the wartime statutes and the prosecution strategy for enforcing them. In the words of historian Theodore Kornweibel, O'Brian and Bettman "attempted to curb the most egregious violations of civil liberties." To the extent that O'Brian considered the statutes' provisions to be consistent with the
U.S. Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally including seven articles, the Constituti ...
, however, he played an active role in their enforcement. For example, O'Brian personally argued on behalf of the United States before the U.S. Supreme Court in the appeals brought by
Charles Schenck ''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Hol ...
(
Schenck v. United States ''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Hol ...
) and
Eugene Debs Eugene Victor Debs (November 5, 1855 – October 20, 1926) was an American socialist, political activist, trade unionist, one of the founding members of the Industrial Workers of the World (IWW), and five-time candidate of the Socialist Party o ...
( Debs v. United States) from their convictions for violating the Espionage Act of 1917. While in charge of the War Emergency Division, O'Brian hired
J. Edgar Hoover John Edgar Hoover (January 1, 1895 – May 2, 1972) was an American attorney and law enforcement administrator who served as the fifth and final director of the Bureau of Investigation (BOI) and the first director of the Federal Bureau o ...
, who had just finished his legal education in Washington. Impressed with Hoover's diligence, O'Brian promoted him to Special Agent in charge of the Division's Alien Enemy Bureau. O'Brian later said of hiring Hoover, "It is one of the sins for which I have to atone."Newman, p.405.


Activity Between the World Wars

O'Brian left the Justice Department in 1919 and returned to the practice of law in Buffalo.Newman, p. 405. Before the end of that year, he was mentioned as a potential Republican Party candidate for
Governor of New York The governor of New York is the head of government of the U.S. state of New York. The governor is the head of the executive branch of New York's state government and the commander-in-chief of the state's military forces. The governor ...
. A faction of Progressive Republicans in New York also tried to enlist O'Brian to run in 1920 as challenger for the party's U.S. Senate nomination against incumbent Republican Senator James Wadsworth Jr. Those Progressives cited O'Brian's support for
women's suffrage Women's suffrage is the women's rights, right of women to Suffrage, vote in elections. Several instances occurred in recent centuries where women were selectively given, then stripped of, the right to vote. In Sweden, conditional women's suffra ...
as one of the reasons to prefer him to Wadsworth. O'Brian, however, declined to seek that nomination. With the election of President
Herbert Hoover Herbert Clark Hoover (August 10, 1874 – October 20, 1964) was the 31st president of the United States, serving from 1929 to 1933. A wealthy mining engineer before his presidency, Hoover led the wartime Commission for Relief in Belgium and ...
in 1928, O'Brian was considered for the position of U.S. Solicitor General, but was passed over in favor of Charles Evans Hughes Jr. Instead, O'Brian served in the Hoover administration from 1929 to 1933 as the
Assistant Attorney General Many of the divisions and offices of the United States Department of Justice (DOJ) are headed by an assistant attorney general. The president of the United States appoints individuals to the position of assistant attorney general with the adv ...
in charge of the Antitrust Division of the Justice Department. In this role, O'Brian argued on behalf of the federal government (including the
Federal Trade Commission The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) United States antitrust law, antitrust law and the promotion of consumer protection. It ...
) in more than 20 cases before the U.S. Supreme Court. Upon leaving the Justice Department in 1933, O'Brian returned to private practice in Buffalo. There his clients included
Pierce-Arrow Motor Car Company The Pierce-Arrow Motor Car Company was an American motor vehicle manufacturer based in Buffalo, New York, active from 1901 to 1938. Although best known for its expensive luxury cars, Pierce-Arrow also manufactured commercial trucks, fire tr ...
, which he counseled as the luxury car maker struggled to remain in business during the
Great Depression The Great Depression was a severe global economic downturn from 1929 to 1939. The period was characterized by high rates of unemployment and poverty, drastic reductions in industrial production and international trade, and widespread bank and ...
. In the later 1930s, the
Tennessee Valley Authority The Tennessee Valley Authority (TVA) is a federally owned electric utility corporation in the United States. TVA's service area covers all of Tennessee, portions of Alabama, Mississippi, and Kentucky, and small areas of Georgia, North Carolin ...
hired O'Brian as counsel to defend legal challenges to the constitutionality of the federally-owned corporation. As lead counsel, O'Brian twice argued before the U.S. Supreme Court in cases that upheld the TVA's legality. In the congressional election of 1938, O'Brian ran unsuccessfully as a Republican against incumbent Democratic Senator Robert F. Wagner. At the
1940 Republican National Convention The 1940 Republican National Convention was held in Philadelphia, Pennsylvania, from June 24 to June 28, 1940. It nominated Wendell Willkie of New York for President of the United States, president and Senator Charles L. McNary, Charles McNary ...
, O'Brian gave the nomination speech for
Thomas E. Dewey Thomas Edmund Dewey (March 24, 1902 – March 16, 1971) was an American lawyer and politician who served as the 47th Governor of New York from 1943 to 1954. He was the Republican Party's nominee for president of the United States in 1944 and ...
, saying that Dewey could "be trusted to keep the country out of war." O'Brian likewise said that Dewey was "a life-long" Republican, that is, not like
Wendell Willkie Wendell Lewis Willkie (born Lewis Wendell Willkie; February 18, 1892 – October 8, 1944) was an American lawyer, corporate executive and the 1940 History of the Republican Party (United States), Republican nominee for president. Willkie appeale ...
.


War Production Board Service During World War II

During World War II, O'Brian served as general counsel to the
Office of Production Management The Office of Production Management was a United States government agency that existed from January 1941 and was led by the Danish William S. Knudsen, William Knudsen. The agency was established to centralize direction of the federal procurement p ...
and to its successor, the
War Production Board The War Production Board (WPB) was an agency of the United States government that supervised war production during World War II. President Franklin D. Roosevelt established it in January 1942, with Executive Order 9024. The WPB replaced the Su ...
. O'Brian played a central role in organizing the Board's wartime activities and determining the scope of its authority.


Activity After World War II

When his government service concluded in the last months of World War II, O'Brian joined the
Washington, D.C. Washington, D.C., formally the District of Columbia and commonly known as Washington or D.C., is the capital city and federal district of the United States. The city is on the Potomac River, across from Virginia, and shares land borders with ...
, law firm
Covington & Burling Covington & Burling LLP is an American multinational law firm. Known as a white-shoe law firm, it is headquartered in Washington, D.C. and advises clients on transactional, litigation, regulatory, and public policy matters. The firm has addition ...
on January 1, 1945. The name of the law firm changed several times before and after O'Brian's arrival, particularly when partner
Dean Acheson Dean Gooderham Acheson ( ; April 11, 1893October 12, 1971) was an American politician and lawyer. As the 51st United States Secretary of State, U.S. Secretary of State, he set the foreign policy of the Harry S. Truman administration from 1949 to ...
either left for or returned from government office; by 1950, it was known as Covington, Burling, Rublee, O'Brian & Shorb. When Paul Shorb died, it was O'Brian who proposed that the name revert to simply Covington & Burling, which it has remained since 1951. O'Brian remained actively engaged in the practice of law beyond his 75th birthday. In 1949, O'Brian counseled
Major League Baseball Major League Baseball (MLB) is a professional baseball league composed of 30 teams, divided equally between the National League (baseball), National League (NL) and the American League (AL), with 29 in the United States and 1 in Canada. MLB i ...
Commissioner
Happy Chandler Albert Benjamin "Happy" Chandler Sr. (July 14, 1898 – June 15, 1991) was an American politician from Kentucky. He represented Kentucky in the U.S. Senate and served as its List of Governors of Kentucky, 44th and 49th governor. Aside from his ...
in responding to challenges to the
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
exemption that had been recognized by the U.S. Supreme Court in 1922 in
Federal Baseball Club v. National League ''Federal Baseball Club v. National League'', 259 U.S. 200 (1922), is a case in which the U.S. Supreme Court ruled that the Sherman Antitrust Act did not apply to Major League Baseball. Background After the Federal League folded in 1915, most of ...
. In 1952, at the age of 77, he acted as co-counsel with
John W. Davis John William Davis (April 13, 1873 – March 24, 1955) was an American politician, diplomat and lawyer. He served under President Woodrow Wilson as the Solicitor General of the United States and the United States Ambassador to the United Kingdom ...
in successfully opposing the Truman Administration's effort to take possession and operational control of the American steel industry in the
Steel Seizure Case ''Youngstown Sheet & Tube Co. v. Sawyer'', 343 U.S. 579 (1952), also commonly referred to as the Steel Seizure Case or the Youngstown Steel case, was a landmark United States Supreme Court decision that limited the power of the president of the ...
. In January 1956, at the age of 81, O'Brian argued for the last time before the U.S. Supreme Court. More than a year later, he was still arguing for clients before the federal circuit court of appeals in Washington, D.C. In 1955, O'Brian delivered the
Godkin Lectures The Edwin L. Godkin Lecture is an annual lecture hosted by Harvard Kennedy School at Harvard University, Cambridge, Massachusetts, United States. The lecture series was founded in 1903 and named in honor of Edwin L. Godkin, the Irish-American jour ...
at
Harvard University Harvard University is a Private university, private Ivy League research university in Cambridge, Massachusetts, United States. Founded in 1636 and named for its first benefactor, the History of the Puritans in North America, Puritan clergyma ...
, entitling his series "Security in an Age of Anxiety." His lectures were published by Harvard under the title "National Security and Individual Freedom." Speaking just months after the December 1954 Senate censure of Senator
Joseph McCarthy Joseph Raymond McCarthy (November 14, 1908 – May 2, 1957) was an American politician who served as a Republican Party (United States), Republican United States Senate, U.S. Senator from the state of Wisconsin from 1947 until his death at age ...
, and reflecting on his World War I experience at the Justice Department, O'Brian warned against the danger of "craving for security at any price" and expressed his discomfort with many Cold War security and loyalty programs. He died on April 11, 1973.


Recognitions

The law school building at the
State University of New York at Buffalo The State University of New York at Buffalo (commonly referred to as UB, University at Buffalo, and sometimes SUNY Buffalo) is a public research university in Buffalo and Amherst, New York, United States. The university was founded in 1846 a ...
is named after O'Brian. In 1956, a professorship at
Harvard Divinity School Harvard Divinity School (HDS) is one of the constituent schools of Harvard University in Cambridge, Massachusetts. The school's mission is to educate its students either in the religious studies, academic study of religion or for leadership role ...
was endowed by admirers of O'Brian and named in his honor, recognizing his service in the late 1940s as chairman of a committee dedicated to "revitalizing" that school.


References

{{DEFAULTSORT:OBrian, John Lord 1874 births United States assistant attorneys general for the Antitrust Division United States attorneys for the Western District of New York Lawyers who have represented the United States government Hoover administration personnel Woodrow Wilson administration personnel Harvard University alumni University at Buffalo Law School alumni People of the Office of Strategic Services 1973 deaths People associated with Covington & Burling 20th-century members of the New York State Legislature