On the face of it, Pat McCarran could celebrate the coming of 1953 with glee. The new Eisenhower-Nixon administration would be a vast improvement over Truman in its zeal to punish Communists. The candidate McCarran supported for the other Senate seat from Nevada, George "Molly" Malone, won a close election. (McCarran opposed the Democrat Thomas Mechling.) McCarran's power in Nevada politics held steady. John Carter Vincent had been suspended by the State Department, and it was just a matter of time before John Paton Davies would get his due. McCarran's immigration law took effect, and 269 French sailors on board the Liberté in New York harbor were denied shore leave over Christmas 1952 because they refused to answer questions about their politics. Best of all, Lattimore had finally been indicted.
McCarran's satisfaction over the Lattimore indictment, however, ran aground on an entirely unanticipated shoal: the vindictiveness of Roy Cohn. Cohn had been McCarran's eyes and ears on the Lattimore prosecution team, and he reported loyally and regularly to his patron. On the testimony of Cohn, we must assume that McCarran supported him as the new counsel to the Judiciary Committee, which Cohn told Hummer he was accepting.
But Cohn's vanity induced him to seek revenge on Hummer. As Cohn saw it, Hummer did not deserve credit for the Lattimore indictment, nor should he have been in charge of the grand jury presentation. Either in late December 1952 or early January 1953 Cohn went to Robert Morris with a proposal: they should together show McCarran the early Hummer analysis arguing that there was no case against Lattimore, claim that this was one of the briefs that Hummer had presented to the grand jury, and
get McCarran to demand that Hummer not be put in charge of the Lattimore prosecution. They consequently visited McCarran and showed him the Hummer brief; predictably, McCarran believed them and was livid at Hummer.
McCarran's chance to humiliate Hummer came on January 19, when Herbert Brownell appeared before Senate Judiciary for hearings on confirmation as attorney general. Senator William Langer of North Dakota was now chair, but McCarran was ranking Democrat with only slightly reduced clout. Ten minutes into the hearing McCarran got his turn to question the nominee.
Sen. McCarran : There is now pending in the Department of Justice, or, rather, pending before the courts of the District of Columbia, the indictment of one Owen Lattimore. That indictment was effected by this committee having sent the record of the Lattimore hearings to the Department of Justice. There is now in charge of that case a lawyer by the name of Hummer. I happen to know from personal observation in one instance—that is, of his brief—that he filed with the grand jury two briefs against finding the indictment. He is now in charge of the prosecution. Query: Do you believe that a man who has evinced his attitude as against the indictment should have charge of the prosecution before a trial jury?
Mr. Brownell : Senator, I have stated before, and I want to state to you and the other members of the committee, that I shall use the greatest care in the selection of personnel there and the assignment to particular jobs to see to it that we get men who are interested in rigid enforcement of the laws of this country. I shall select a person in this particular case that you refer to, other than Mr. Hummer, who will study the record with great care; and, if there is wrongdoing in that case, he will be equipped in every manner to give an effective prosecution on behalf of the people.
A firestorm broke immediately. The press was all over McCarran's office, the Justice Department, and the FBI with questions. Within hours McGranery issued a denial; Hummer, he said, had initially opposed prosecution but after reviewing the SISS hearings had recommended prosecution. Hummer had done such a good job before the grand jury that the vote was 23-0 on six counts, 22-1 on the seventh.
Hummer's friends began a campaign to vindicate him. Father Cronin led the charge. On January 21 Cronin conveyed his dismay to McCarran: "I have known Mr. Hummer intimately for seven years. There are few officials in Washington, elected or appointed, who surpass him both in first-hand knowledge of Communism and in all-out opposition to this menace. . . . Undoubtedly you were deceived by someone who was ill-informed, malicious, or both. In simple justice, you owe it to Mr. Hummer and to yourself to get the facts. Once you have them, I feel sure that you will publicly correct the injustice you have done." Cronin sent copies to Attorney General Brownell and Deputy Attorney General William P. Rogers.
William N. Payne, Jr., foreman of the grand jury that indicted Lattimore, speaking for all the jurors, also sent McCarran a blistering letter, by registered mail, telling the senator that he was protesting to the attorney general and stating that "several members of the Grand Jury have expressed to me the possibility of an investigation and reopening of the Grand Jury phase of this case to discover the source of these unfounded charges."
Hummer, of course, also protested to any and all who would listen. His friends in the bureau insisted that he go talk to someone in McCarran's office. On January 29 Hummer visited Chief Counsel Jay Sourwine. Sourwine was sympathetic. As Hummer told Branigan the next day, "Sourwine advised that he knows that Senator McCarran was wrong in his statements and, according to Hummer, Sourwine 'doesn't know what to do about him,' meaning Senator McCarran. . . . Hummer stated he intends to write a Departmental memorandum recommending that this matter be brought before a Grand Jury, since it is a violation of Federal statutes to furnish any unauthorized person classified information."
There followed a bitter series of exchanges between SISS staff, Hummer, and the FBI. The best worm's-eye view of the brouhaha was that of Eva Adams, McCarran's personal secretary. She had observed the whole thing, from the visit of Cohn and Morris with the senator to Father Cronin's storming over with protests from the National Catholic Welfare Conference on February 5. Lou Nichols got her evaluation of how it all stood then: "Miss Adams stated Cohn and Morris are now trying to deny that they made certain statements to Senator McCarran. Miss Adams, incidentally, is not too happy with either Morris or Cohn and told me she was going to have some problems, as was everybody else with these two."
McCarran had the biggest problem. He had offended a constituency very important to him, and everybody in Washington knew he had un-
justly maligned Hummer. During early February 1953 McCarran was out of Washington. When he returned, Sourwine and Adams persuaded him to apologize to Hummer. It was a hard thing for the crusty old baron to do, but on February 16 he wrote Hummer a letter.
Upon returning to Washington, I find that an interpretation which was never intended has been placed upon my remarks with respect to your memoranda concerning the Lattimore case.
All I intended to convey was that you had written memoranda with respect to this case and the question of whether it should go to a grand jury, and that you had in one memorandum arrived at and expressed the conclusion that there was no case against Lattimore justifying taking the matter to the grand jury, on the basis of the Tydings hearings and all evidence made available by the Federal Bureau of Investigation up to that time. I am sure you will agree with me that this was in fact the case.
I am sorry if you have been hurt by the interpretation placed upon my remarks. I had no purpose of injuring you, and there was nothing of personal vindictiveness in what I said.
This was all a lie. No false interpretation had been placed on McCarran's remarks. He had been given false information by Cohn and Morris and had repeated it in the Brownell hearing, with plenty of vindictiveness. But Hummer was a gentleman. He replied, "I wish to thank you for your courtesy, and the fair-mindedness of your views. I look forward to meeting you someday. Since I was born and raised in your neighboring state, Utah, I am sure we have some mutual acquaintances."
McCarran knew the real villain in the fracas. Cohn was not made counsel to Senate Judiciary but went instead to the Senate Permanent Subcommittee on Investigation, where his devotion to G. David Schine, and his flamboyant style, eventually brought McCarthy into public disrepute.
Hummer was left with the tainted shreds of the Lattimore case. Over and above Cohn's nastiness. Hummer was appalled at the fanaticism that had led McCarran to intervene so outrageously in the judicial process and to force through a shaky indictment. Hummer knew that his original recommendation against prosecution was right, that the SISS hearings had not changed the situation, and that his success with the grand jury would not be easily repeated in court, where government witnesses would be cross-examined by a skillful attorney representing Lattimore. But Hummer also understood McGranery's position and the need to ride with the prevailing hysteria. That consideration, plus Hummer's dislike of Lat-
timore, led him to get on board the bandwagon. Anyway, twenty-three solid citizens on the grand jury had voted to indict.
But Hummer knew he could not head the prosecution. It would take a rock-ribbed, copper-sheathed eminence to do that. In addition to Brownell's promise to McCarran, the Eisenhower ethos would demand a prominent, no-holds-barred prosecutor.
This problem was put in the lap of Earl Warren's former assistant in the California attorney general's office, Warren Olney Ill. Olney was a blue blood, a renowned prosecutor, just right for assistant attorney general in charge of the criminal division. One of Olney's first jobs was to look into the Lattimore case, which he discussed in an oral history:
We inherited that case in the form of an indictment already returned. . . . It was within my authority to dismiss that indictment. I read the testimony and I read the reports· If I had been able to read the grand jury testimony and read the reports prior to any action being taken, I would have recommended against an indictment because it didn't seem to me that it was a provable case. There was enough there perhaps to call for as complete an investigation as you could make, on the chance that something more definitive in the way of evidence would show up. But on the basis of what was at hand at that time, it seemed very weak to me.
But I didn't discuss this. I didn't pass the decision on to somebody else. I concluded that I ought to take the load on myself and I decided that we ought to go ahead and try it. The reasons were: if we dismissed the case, there would be a tremendous commotion, claiming that influential people had stepped in and caused us to dismiss the motion against Lattimore, just because he was a well-known and well-connected person. And there would be a great many people who would continue to believe he was guilty and, in fact, would think that dismissal was just evidence that he was.
On the other hand, if we went ahead and presented the case in public for what it was—one never knows what's going to develop in a trial. . . . So we decided to go ahead with it. . . .
So I thought we should find an outside prosecutor who was experienced and who would approach the thing with an open mind to investigate, prepare, and further evaluate the case. We would inform him, when he took it on, that if he concluded that the case was not triable and that the proof was not there, we would dismiss. On the other hand, if he concluded that it was a triable case, and he so recommended, then we would expect him to try the case, and not somebody else.
We got Leo Rover for the purpose.
Leo Rover had been appointed U.S. Attorney for the District of Columbia by Coolidge and held that post under Hoover and Roosevelt until 1934. He successfully prosecuted the Gaston Means case in connection with the Lindbergh kidnapping, taught law at Catholic University of America and at Georgetown, and in 1952 was selected "lawyer of the year" by the District of Columbia Bar Association. Rover's views on Lattimore were compatible with those of the new administration. Olney to the contrary, it is hard to imagine that Rover could have decided not to prosecute.
At first Rover was confident of his case. By March, however, he was having second thoughts. Count four of the indictment was particularly troublesome, and on March 6 Rover conferred with Inspector Hennrich of the FBI about this problem. Count two, in which Lattimore was charged with lying about his knowledge of Chi Ch'ao-ting, and count three, about Asiaticus, could be handled. But count four charged that Lattimore lied when he said he had not published articles by other persons known to him to be Communists. Who were these other persons? Apparently nothing specific had been presented to the grand jury. Four hundred eleven different individuals had written for Pacific Affairs while Lattimore was editor. Could the bureau find a Communist among them? As Hennrich reported this conference to Belmont, "During our discussion, Mr. Rover acknowledged that in connection with this particular count, it is, in effect, a situation of having the cart before the horse, in that an indictment has already been returned and now it is necessary to bolster the indictment by having additional investigation conducted in order to try to substantiate it in the event the Chi Chao-ting and Asiaticus counts fail."
After some carping, the bureau agreed to check out the 411 potential Communists who had written for Lattimore. But things did not improve for Rover. On March 17 Robert Morris telephoned Lou Nichols with another of his tips about an incriminating letter Lattimore had allegedly written that might be tracked down (it wasn't). Morris had other news: "Morris also told me in confidence he was somewhat disturbed about a statement which he had heard, allegedly made by Rover _______ that Rover had said, in commenting on the Lattimore case, he would much rather have a case in which he had some confidence. Morris further stated this is the line which Hummer has been taking and he had been informed Hummer had told Warren Olney this was a bad case."
It was a bad case, and Abe Fortas knew it. As he recalled in 1981, "I told Lattimore with all the force I could bring to bear that he had to tell me the truth, that I didn't want him to tell me anything that was not the
absolute truth about what he did and what he believed in. I had a feeling that what he was telling me was the absolute truth. I never, despite what seems to me to be the lifetime that I spent on this case, I never had a moment of doubt."
But Fortas knew well the political pressures to make Lattimore a scapegoat. As noted earlier, Fortas had warned Lattimore of the "possibility of a straight frameup, with perjured witnesses and perhaps even forged documents." By 1953 Fortas's pessimism was fully justified. Whatever gossip went the rounds about the case against Lattimore being weak, the massive resources of the Justice Department, the FBI, and the McCarran Senate bloc would guarantee powerful prosecution.
Since the prestigious Leo Rover was heading the prosecution, Thurman Arnold, the best-known figure in the firm of Arnold, Fortas, and Porter (AFP), assumed an increasing role in the Lattimore case. Arnold was fully supportive of Lattimore. Having substituted for Fortas during several days of the SISS hearings, Arnold knew the lengths to which McCarran would go. Arnold wrote a friend in March 1952, "Never in my life have I seen anything more vicious and contemptible than the way the Committee is trying to break Lattimore." He drafted most of the briefs, taking ideas from several Yale law professors and members of AFP.
Paul Porter, the other senior member of AFP, was less prominent in the Lattimore defense but equally committed. Gene Gressley relates one of Porter's prime anecdotes. Porter met an acquaintance at a suburban Washington country club who yelled at him, "Paul, are you still representing Communists and homosexuals?" Porter fired back, "What's the matter, John, are you in trouble?" To help with the political aspects of the case, AFP hired Joseph C. O'Mahoney, a senator from Wyoming until his defeat in the 1952 election.
AFP had lots of help in preparing the Lattimore defense. John P. Frank, later a prominent lawyer in Phoenix, was in the early 1950s a Yale Law School professor. Frank clerked for Justice Hugo Black in 1942, then worked as a "sort of personal assistant to both Abe Fortas and Harold Ickes." He wrote a section on vagueness in the first or "backdrop" count and spent several summers in Washington working with AFP. He recalled in May 1986:
It was the most important case I ever worked on. What was particularly remarkable was the moral intensity of the defense. It was the forces of good combatting the forces of evil. The fact that I was commuting from Yale for no pay indicates its intensity. The intensity of the witch hunt for the victims was enormous. Only the very tough could survive. The
rest would cop a plea or run away. What got Lattimore through was he had a backbone of steel, and his wife was absolutely courageous. The most remarkable single feature of these clients was they never expressed weakness, never asked "My God why can't this go away." Whatever McCarran could dish out, Lattimore could take and return.
Frank also called together a group of his Yale colleagues to help with the Lattimore defense. Among them were Thomas I. Emerson, an expert on First Amendment rights; Vern Countryman, a procedure specialist; and Richard Donnelly, a criminal lawyer. Emerson says of his work on this project:
I was assigned to write on the First Amendment problem involved in the broad first count [of the indictment]. I was particularly glad to do this because it gave an opportunity to bring before the court a case that would reinstate the First Amendment as a limitation upon congressional committees at least in one area. . . . I developed in the brief the point that Lattimore was really being asked about his opinions, had been asked and was being tried for the opinions which he held not related to any overt acts. It was a question as to what his sympathies were and that whatever else may be within the scope of congressional investigating authority certainly an inquiry into mere opinion apart from conduct was protected by the First Amendment.
The major burden of the Lattimore case fell on a junior member of AFP, William D. Rogers (not to be confused with William P. Rogers of the Justice Department, later a Nixon cabinet officer). Rogers took the briefs of the Yale group and Arnold, added evidence dug up by Lattimore's associates at Johns Hopkins (including Elsbeth Levy Bothe, later a circuit court judge in Baltimore), and edited the final product. This was the beginning of a long relationship; Rogers handled Lattimore's affairs after Fortas left the firm.
Most of AFP's clients were corporations involved with the government. AFP took considerable risks in defending people caught up in the inquisition in those days. Lattimore was the preeminent civil liberties case handled pro bono by AFP, and it absorbed vast amounts of time from the very beginning. Fortas recalled:
At the time of the Tydings hearings, we were representing Unilever. The general counsel and director of Unilever came over to see me about a very critical matter involving Unilever. I had never met the man. His name was de Baat. When he arrived, I told him I just couldn't give him any time on this crucial matter which I was handling pretty much alone
for the firm. I told him the reason for it. I told him that with considerable concern because Unilever was a very large client. And I said, "The only thing I can do, Mr. de Baat, is to invite you to come over to the hearings." So he came over to the hearings and sat there and was appalled and amazed. I told Thurman Arnold and Paul Porter that this probably means the end of our Unilever retainer, but that's the way it was. They agreed without a moment's hesitation. It turned out to be a rather amusing situation, because it really solidified our connection with Unilever. Unilever has vast interests in the Far East, and had known about Lattimore. So instead of losing a client, we really gained their admiration. Some years later, Paul Porter and I were in the Netherlands and we went out to the de Baat's estate, and were having tea in the garden. Three geese came along, and de Baat and his charming wife pointed out the three geese to us and said they'd named the geese Arnold, Fortas, and Porter. And de Baat hastened to say to me that the goose didn't have the same connotation in the Netherlands that it had in the United States, that geese recalled to the people of the Netherlands the warning of the invasion of Rome. Geese were much admired in the Netherlands. So they had named these three geese for us for our actions in the Lattimore case. . . . [The Lattimore case] didn't damage our firm; one result was it attracted the best young lawyers.
Rogers was one of the young lawyers and has a somewhat different perspective on the Lattimore case. AFP at that time was a small firm, only seven members including juniors, and struggling financially. When Rogers finished a clerkship with the U.S. Court of Appeals in 1952, AFP wanted to hire him but could not afford to do so. To make ends meet that year the senior members borrowed on their signatures. Rogers therefore clerked with Justice Stanley Reed of the Supreme Court for a year, and in 1953 AFP had enough money for a new member, so they hired him. And the Lattimore case did hurt the firm:
The partners paid for their courage with money from their own pockets. The $250,000 of time they invested in Lattimore meant a lot to them at the time. Time spent on Lattimore meant time lost on paying clients. And they lost clients as well. Joseph N. Pew and the Sun Oil Company walked out on the firm in retaliation for our taking on the Lattimore case. Lattimore did strengthen the reputation of the firm as an outfit of courage and decency, but it cannot be true that the senior partners did not lose a lot of money as a result. Nonetheless, neither Abe nor any of the others ever complained. The cost was never discussed. They did not go around wringing their hands at the long hours or the fees that were foregone. And, ironically, Sun is now again an honored client of the firm.
Even before Rover's appointment, Hummer, Davitt, and Anastos were getting ready for the defense motions. Hummer wanted to "put pressure" on a witness (name denied) to corroborate Budenz's testimony; the FBI held aloof from this suggestion, and Branigan recommended that the bureau do nothing without "prior Departmental authority." Hummer was also on the track of John Huber, the "vanishing witness" of the Tydings hearings. Huber apparently wanted to wipe out the disgrace of his 1950 fiasco and get into the top ranks of anti-Communist informers. He hired Edward Bennett Williams and gave Williams a sworn deposition to pass on to Hummer. In the deposition Huber changed his story again. He now swore that he attended a Communist party meeting at which Mr. and Mrs. Lattimore were "honored guests." Hummer was excited about this new evidence and wanted the bureau to interview Huber again to check him out. Branigan agreed to the interview, but it took the bureau a month to locate Huber. Despite the effort, his new story did not impress the bureau, and they passed it on without comment to Warren Olney. Huber then disappeared from the Lattimore file for another year.
On February 3, 1953, the Baltimore office wrote headquarters complaining that it was difficult to prepare a report on the seven counts of the indictment because the Justice Department had provided no definition of "Communist." This lack particularly affected the report on count four, charging Lattimore with lying when he denied publishing articles by persons he knew were Communists. How was this to be interpreted? It was a good question; it went straight to Justice, which took three weeks to answer.
On February 6, 1953, Chief Judge Bolitha J. Laws of U.S. District Court for the District of Columbia heard preliminary arguments in United States versus Lattimore , Criminal Number 1879-52. The first defense request was for postponement. O'Mahoney and Arnold told Judge Laws that the defense had to examine all the IPR records, which would take two or three months. Rover, for the government, said he was "anxious to dispose of the case during the spring term." Judge Laws set a trial date of May 11. Arnold also said that the defense would file a motion to dismiss. The key count, he said, was "a very vague allegation." All defense motions were to be Flied by February 16.
Lattimore's answer to the indictment was filed with the court February 16 as required. There were numerous motions: for change of venue, for discovery of government evidence, for a bill of particulars, for postponement of trial, and for inspection of the grand jury minutes. But the major motion, supported by a 100-page brief, was to dismiss the charges in their
entirety. The headline-catching argument for dismissal was that SISS had set out to entrap Lattimore, not to carry out any legitimate legislative purpose. Further, the prosecution was entirely political, and McCarran had interfered outrageously in the judicial process by trying to "coerce" the judgment of Brownell in his confirmation hearings.
The brief argued that the major backdrop count—that Lattimore had lied when he said he had never been a sympathizer or promoter of Communist interests—was vague and ill defined. "What are these Communist interests? Did President Roosevelt promote communism when he approved Yalta? Did President Roosevelt promote Communist interests when he furnished lend-lease to Russia? Did General Marshall promote Communist interests when he criticized Chiang Kai-shek's Government? . . . Tito is a Communist, and whatever his interests, they are of necessity also Communist interests. Was the Government of the United States a promoter of communism and a sympathizer with Communist interests when by both legislative and executive action it came to the aid of Tito?"
The brief claimed that the members of SISS could not even agree among themselves, much less with Lattimore, as to the meaning of communism . The issues here were matters of opinion and belief, not overt acts, and as such were protected by the First Amendment. If this case went to trial, it would be "the first time in American history since the heresy trials of early New England" that a person would "be tried before a jury in a criminal case for statements of pure opinion and belief." Since there was no evidence of disloyalty, the prosecution "has fallen back on a charge about Lattimore's beliefs and sympathies, a charge so vague that it could be made a basis for trying anyone in public life who advocated any policy or expressed any opinion with which any future committee or prosecutor might disagree."
The brief also dismissed the six minor counts as nothing but "flimsy wisps. . .. From the longest interrogation of a single witness in congressional history, the prosecution fishermen, unable to produce a whale, have come up with minnows." Each of these "minnows" was then dissected, showing that Lattimore was asked to remember trivial items with no access to documents or memoranda, that he usually qualified his answer, and that he acknowledged error when SISS produced documents contradicting his memory. Further, the matters of fact on which he allegedly lied were not material to the stated function of the McCarran committee. They were totally irrelevant to an investigation of the Internal Security Act of 1950 or any other laws or subversive activities. On count five, for instance, what did it matter when Lattimore had lunch with Oumansky?
Both Whittaker Chambers and Elizabeth Bentley, two of the committee's most revered witnesses, had said it didn't matter at all.
So the issues were drawn. Rover and his crew now had to answer them. One of the first matters Rover dealt with was the troublesome "cart-before-the-horse" fourth count. Baltimore's demand for a definition of Communist as used in this count was relayed to Rover by FBI headquarters several times. On February 20 he gave an answer. "It is the opinion of this Division that it is not essential to the proof of this count that evidence of Communist Party membership be adduced. . . . any information which indicates that the referenced writers followed the Communist Party 'line' in their writings, wrote for Communist Party publications, or openly advocated the principles of Marxism-Leninism, would be pertinent to the count." While this definition may have satisfied Baltimore's conceptual problem, it did not ease the bureau's work load. They still had to review the files for information on the 411 writers whose work Lattimore had published. On April 13 Branigan reported to Belmont that they had processed 33 of the names; the remaining 378, he estimated, would take 70 days.
To the bureau, the most dangerous Lattimore defense motion was discovery. The Lattimore motion requested "all FBI reports, memoranda and communications relating to the investigation and prosecution of Owen Lattimore" that had been available to Tydings, SISS, and the grand jury. The justification for this motion was that these documents "may disclose extremely important exculpatory matter." The bureau knew the Lattimore lawyers were right in one sense; there was indeed powerful exculpatory matter in raw FBI files, but this matter had been omitted in the reports sent to McCarran and the Justice Department. Bureau fears of the discovery motion were based on two things: (1) if the amount of bureau information furnished McCarran ever became known, Hoover's carefully constructed pose of never releasing reports to unauthorized persons would be destroyed; and (2) if clever defense attorneys had access to bureau reports, they might sniff out some of the hundreds of "embarrassing or objectionable" incidents occurring during the investigation: illegal wiretaps, bag jobs, leaks to anti-Lattimore reporters, and the like. There were several conferences between FBI and Justice people during February and March to discuss the discovery problem. Rover shared the bureau's concern and promised to oppose the discovery motion vigorously. On three of the memos reporting these conferences Hoover wrote comments, such as the one on March 13: "This now raises greater concerns about our furnishing Congressional Committees with information from our files."
The attention of the McCarthy-McCarran group was partially diverted from Lattimore during March by the furious fight over the nomination of Charles "Chip" Bohlen as ambassador to the Soviet Union. McCarran was not on the Foreign Relations Committee, which had jurisdiction over diplomatic appointments, but as the New York Times noted, "He is a hard-hitting foe." McCarran joined the chorus against Bohlen: "Mr. McCarran said that Mr. Bohlen's connection with the Yalta Conference was 'enough for me.'"
On March 17 the government filed its answer to the Lattimore defense motions. Rover had two main thrusts. One was to counter the claim that Lattimore was being prosecuted for his beliefs: "It should be emphasized at the outset that the defendant is not being prosecuted for adhering to a belief or opinion, political or otherwise, but rather for giving false testimony. He was not specifically asked to answer as to his political beliefs, but volunteered to state his political position. His adherence to a belief, therefore, was and is inviolate. The offense with which he is charged is that he lied in not believing what he said."
The other government contention dealt with entrapment. Lattimore could argue this point at trial, Rover held, but it was not proper in a motion to dismiss. As to discovery, the government opposed it; Lattimore would find out what evidence they had at the trial. Nothing surprising here, and the defense lawyers felt reasonably confident that Rover had not seriously damaged their position.
Three significant events occurred while these motions and countermotions made their way through the district court process to a trial judge.
First, Budenz was caught faking again. One of the IPR trustees Budenz fingered as a Communist was Benjamin Kizer of Spokane, Washington. Kizer had written book reviews for Pacific Affairs . Budenz had told SISS his standard story that Kizer had been identified as a Communist by Earl Browder and Jack Stachel. The bureau told its Seattle office to investigate Kizer. When the report came from Seattle March 20, it made mincemeat of Budenz's charge. Kizer was clearly anti-Communist, having worked in the Crusade for Freedom launched by General Lucius Clay to combat Soviet propaganda in Europe. The Seattle SAC considered the matter closed.
Second, in late March, Roy Cohn got back into the attack on Lattimore. He and David Schine, reporting to a public hearing of McCarthy's Senate Permanent Investigations Subcommittee about their "research" into U.S. libraries in Europe, noted that these libraries had books by Lattimore. One of them was actually Ordeal by Slander , which had as its main target a senator of the United States.
And third, the end of March saw Chip Bohlen win his fight and enter service as ambassador to Moscow; and Chief Judge Laws assigned the Lattimore case to Judge Luther W. Youngdahl.
In April 1951, when President Truman fired General Douglas MacArthur for insubordination and torrents of obloquy descended on the White House, only one of the forty-eight state governors publicly supported the President. On July 5, 1951, Truman called that governor in and offered him an appointment to the U.S. District Court for the District of Columbia. The governor was Luther W. Youngdahl, Republican of Minnesota, fervent Lutheran and strong defender of the Constitution.
Luther Youngdahl was born in Minneapolis in 1896. He graduated from Gustavus Adolphus College, served in the Army during World War I, and earned a degree at Minneapolis College of Law in 1921. From 1931 to 1936 he was a municipal judge in Minneapolis, then a Hennepin County court judge until 1942. From 1942 to 1946 he was an associate justice of the Supreme Court of Minnesota. The appellate bench was not to his liking, so in 1946 he sought and obtained the Republican nomination for governor. He won handily and was elected to that office three times. The Washington Post described him as "the state's most popular political figure." He was a tough "law and order" governor, enforcing the Minnesota liquor laws and driving out organized crime. His Lutheran faith played a strong role in his political life; Robert Esbjornson subtitles his biography of Youngdahl A Christian in Politics . Youngdahl told a Washington Post reporter, "Not once—not once during the three terms that I was governor of Minnesota—did anyone ever approach me to ask a favor, not about a contract or anything else. Of course, they knew they would have been thrown down to the bottom of the steps of the Capitol if they had tried."
Successful as Youngdahl was at politics, he grew tired of political battles and decided that he wanted to finish his career trying cases in a courtroom. Truman's offer of a district court appointment came just at the right time.
Youngdahl listened to O'Mahoney, Arnold, and Rover argue the defense motions on March 31 and April 1. O'Mahoney led for the defense and got most of the press. As recorded by the Baltimore Sun ,
O'Mahoney declared that the Bohlen incident showed to what extent "fear and hysteria have driven some senators. . . . Bohlen might have been in this defendant's shoes. We cannot give way to hysteria. We cannot give way to political indictments."
Should the charges against Lattimore be upheld, O'Mahoney contended, "many a citizen of the United States in the future will be made a victim of an intolerant committee of Congress.". . .
The former senator said he was not challenging Congress' right to investigate where it pleases, but he added it was a different matter when the court was asked to punish a man on a deliberately "vague" charge. . . .
O'Mahoney pointed to Lattimore's testimony denying that he had ever been a Communist. The former senator maintained it was no accident that the Government skipped this Lattimore denial in its search for grounds for an indictment and that it ultimately decided on a charge the Baltimore professor had promoted communism. The Government, according to O'Mahoney, was deliberately seeking a vague indictment.
For the Lattimores, the court was a welcome improvement over previous hearings, contrasting startlingly with the twelve poisonous days before McCarran. For the first time Lattimore's counsel were able to function as counsel normally do: presenting the defense case coherently without imperious and belittling interruptions, in an atmosphere where the presiding officer was required to assume the innocence of the accused until proven guilty. This time, too, Lattimore was a spectator, not a combatant.
Nonetheless, the hearing was stressful. Eleanor Lattimore told the Barretts, "This has been another one of those Alice in Wonderland performances which seemed so unreal that it was difficult to believe it concerned us in any way." And while Arnold and O'Mahoney (Fortas could not attend) were unshackled, the presence of a battery of seven government lawyers dedicated to putting Lattimore in jail was unnerving. Rover himself, as Lattimore saw it, displayed a full measure of acrimony, snarling the name "Lattimore" in a tone more appropriate for Judas Iscariot, spitting out the words "professor" and "intellectual" as if he were before a jury of illiterates, insinuating that in defending himself Lattimore had been demanding special privileges.
This latter insinuation rankled especially with Lattimore: "One of the most outrageous things was his completely cynical accusation that I myself was responsible for the publicity about my case because of having published Ordeal by Slander . He seemed to think people would assume that loose and sensational slanders against me made with Congressional immunity that projected me into the headlines not only in my own country but all over the world were not 'publicity' but that anything I said to
dear my own good name was self-seeking publicity for no other purpose than to get myself talked about, as if I enjoyed it."
There were other prejudicial tactics from Rover, including a statement that Lattimore's conscience was "between him and his God, that is if Lattimore believes in God." Rover also claimed that Lattimore had held a press conference just before the McCarran hearings, which was false, and that Lattimore had given his statement to the press before he gave it to the committee, which was also false.
O'Mahoney led off for the defense, startling the Lattimores with old-fashioned eloquence that reminded Eleanor of the evangelist Billy Sunday. As a Catholic and former senator, O'Mahoney could attack the McCarran committee as no one else could. Arnold, in contrast, was scholarly and deadly logical. He cited two recent precedents, the Bowers and Rumely cases, which were appellate decisions supporting the defense contention that McCarran had been illegitimately probing Lattimore's beliefs, not asking questions germane to the charter of the committee. Youngdahl questioned Arnold on these precedents, and the judge dearly understood Arnold's argument.
On the first day of the hearing Youngdahl requested that Rover re-phrase the first count of the indictment as if he were charging a jury. This rephrasing, Youngdahl said, was necessary because he believed that indictments that could not be rephrased in simple, nontechnical language were often flawed. Rover responded evasively to this request, saying that it could be done only after all the evidence had been presented. Youngdahl sat poker-faced through Rover's response. Arnold and O'Mahoney felt that Youngdahl would throw out this first count.
The defense team and Lattimore were less optimistic about the minor counts. It seemed to them inevitable that any judge would be influenced by the universal assumption of the time that "where there is so much smoke there must be at least some fire and not just the nefarious activities of incendiaries and throwers of smoke bombs." They expected that Youngdahl would strike the first count on vagueness and First Amendment grounds but yield to public opinion by ruling "let the jury decide" on the rest. And the government had been working on public opinion. From friends at Johns Hopkins, the Indian embassy, and various newspapers, they knew that Justice Department lawyers had put out the story that Lattimore was going to be convicted with the aid of "surprise witnesses from Asia" and that his defenders had better stay away from him for their own good. This rumor was fraudulent: there were no surprise witnesses from Asia—or from anywhere else.
At the close of the hearing Youngdahl denied the defense motion for change of venue, took the motions for dismissal and a bill of particulars under advisement, and granted the motion for postponement. Trial was set for mid-October 1953.
Rover claimed during the hearing that the government was seeking not to persecute Lattimore but only to prosecute him for perjury; and he promised that "every scrap of admissible evidence that can be secured" would be offered at trial.
The FBI was fully mobilized to provide Rover with his "scraps of evidence." Baltimore alone had twenty-five agents working exclusively on preparation of a full report on the seven counts of the indictment; this team did not include agents working in the field. There were probably another seventy-five agents assigned to the Lattimore case in headquarters, the Washington field office, New York, and other major cities. Crackpots were still coming out of the woodwork, taking agent time to check them out. Many of them were still approaching McCarthy and Surine. One of Surine's sources touted the potential testimony of a soldier of fortune named Dimitri Bourlin. Bourlin had allegedly dealt with Lattimore in Inner Mongolia. The FBI referred the Bourlin charge to Army. Army replied that they "assumed that the Bureau knew that Bourlin had been thoroughly discredited as an agent"; that there was no record of Bourlin ever having been in Mongolia; and that Bourlin was too young to have been in Mongolia when Lattimore was there. Finally, in May 1953 Army Intelligence located Bourlin in Pundu Jail, Kuala Lumpur: narcotics running. It was like that for hundreds of hot tips.
But presumably respectable people were after Lattimore, too. In April, John T. Flynn's Lattimore Story came out from Devin-Adair, a right-wing publisher. A blurb inside the front cover shows how Flynn publicized the SISS findings:
Asked to tell why he wrote this book, John T. Flynn replied: "As the weird story of Owen Lattimore unfolded itself in official documents and sworn testimony, I noted that it had one flaw. It was unbelievable . In a Dumas novel of intrigue at the court of Louis XV, it might be accepted. But in America—the America of the 1950s—it seemed fantastically out of place and utterly incredible. Much has been written about it, but now all the evidence is available. Few have the time or means of sifting the immense folios of testimony and incriminating documents, which were dramatically unearthed in an old barn, as might be done in a screen thriller.
"I have therefore tried to fit together in this small volume all the characters, episodes, intrigues and confessions buried in 14 large volumes of testimony and documents, out of which emerges the curious story of a conspiracy involving over four dozen writers, journalists, educators, and high-ranking government officials—almost all Americans—to force the American State Department to betray China and Korea into the hands of the Communists. Unbelievable as this strange enterprise may seem, the proofs are now all here—not assumptions and suspicions and tortured deductions, but proofs. That is why I have written this book."
And Flynn was not alone. On April 5, 1953, twenty-eight writers and public figures sent a statement to seven hundred newspapers around the country protesting that McCarthy had not been treated fairly by the media. "Hardly any" literary critics had reviewed the senator's book, McCarthyism—The Fight for America , whereas Lattimore's Ordeal by Slander received "the widest coverage" and "the most extravagant and uncritical support" when it was published. Among the signers of this protest: William F. Bucldey, Jr., Adolphe Menjou, Kenneth Colegrove, George Creel, Ralph de Toledano, Eugene Lyons, Felix Morley.
Budenz got another black eye in April. In checking bureau files of the 411 Pacific Affairs writers, Budenz's 1950 SISS executive session charge that Catherine Porter was a concealed Communist came to light. Headquarters asked New York what they had in their flies about Porter. What came back was disconcerting. When bureau agents had interviewed Budenz about the Porter charge in late 1950, he "was unable to supply any identifying data concerning the person he named and was unable to recall how he came to the conclusion that she was a Communist." Another scrap of evidence down the drain. The New York report concluded, "In view of above, no further action being taken by NYO with respect to Porter."
There was plenty of action in the national political arena. In the month after Youngdahl held the first hearing in the Lattimore case, McCarthy, Dulles, Stassen, and Eisenhower staged their running battle over whether the senator could negotiate with foreign ship owners to keep them from trading with China. Stassen waffled, Ike waffled, Dulles waffled—only McCarthy stood firm. Journalists and politicos began to snipe at Eisenhower's lack of leadership in his party's battles with McCarthy. The Rosenberg lawyers flied another unsuccessful appeal of the death penalty. The Supreme Court barred Abraham Isserman, attorney for the eleven convicted Communist party leaders, from practice before it. Cohn and
Schine went on their whirlwind tour of U.S. libraries in Europe, finding subversive literature everywhere. HUAC concluded hearing forty-five witnesses in Hollywood. National Commander Lewis K. Gough of the American Legion urged the United States to meet Soviet threats with Soviet tactics. Charlie Chaplin gave up trying to reenter the United States. John Paton Davies was moved from the exposed salient of Germany to a post in Peru. Patrick Hurley, making his second run for a New Mexico Senate seat against Dennis Chavez, got the backing of the Senate Committee on Elections for an investigation of the vote. The Subversive Activities Control Board ordered the Communist party to register as a group seeking the overthrow of the government. Brownell announced the first twelve organizations ordered to register under the Internal Security Act of 1950. Eisenhower issued Executive Order 10450, tightening regulations for assuring the security of federal employees. John Carter Vincent, forced into retirement by Dulles in March, returned to the United States with a blast at the China lobby. Senator Herbert Lehman of New York attacked "McCarthyism and Jenneritis." From reading the newspapers of the time, one could conclude that the most important business before the country was a hunt for domestic subversives.
And on May 2, 1953, Judge Luther Youngdahl stoked the fires of the flaming witch-hunt with an order making headlines from coast to coast. Four counts of the Lattimore indictment, including the all-important first count, were thrown out, and the remaining counts were held to be of doubtful materiality, a matter that could be challenged at trial. It was a startling, sweeping, powerful decision.
Having in mind the necessity of weighing the balance between the broad power of Congress to investigate and the protections afforded individuals by the Bill of Rights, as pointed out in Douds, and applying the rule to the indictment here, the Court is convinced that the first count is fatally defective. Under this count the defendant is charged with lying in denying that he had ever been a sympathizer or promoter of Communism or Communist interests. It is a statement made by defendant to the Committee.
First, this count is violative of the Sixth Amendment which protects the accused in the right to be informed of the nature and cause of the accusation against him. The test has been laid down in Sutton . . . where the Court held that the meaning of the Sixth Amendment was that the defendant: ". . . be so fully and clearly informed of the charge against him as not only to enable him to prepare his defense and not be taken by surprise at the trial, but also that the information as to the alleged offense shall be so definite and certain that he may be protected
by a plea of former jeopardy against another prosecution for the same offense."
Further, this count did not meet the requirement of rule 7(c) of the Federal Rules of Criminal Procedure; it was not a plain, concise, and definite statement of the offense charged. The "sympathizer and promoter of Communist interests" language was so nebulous that a jury would have to "indulge in speculation" as to what it meant. And this count was fatally defective because it restricted Lattimore's freedom of belief and expression, both protected by the First Amendment. Youngdahl acknowledged the climate of the times in concluding his rejection of the first count: "Communism's fallacy and viciousness can be demonstrated without striking down the First Amendment protection of discourse, discussion, and debate. When public excitement runs high as to alien ideologies, is the time when we must be particularly alert not to impair the ancient landmarks set up by the Bill of Rights."
Counts three and four were also stricken as violating the First and Sixth amendments, and count seven was defective "in its plain inconsistency and indefiniteness." And on the remaining three counts, "The allegations in counts two, five and six are so indefinite that the Court feels the defendant is entitled to a bill of particulars giving him certain information as to enable him to defend." Lattimore refused comment in Baltimore, "but his voice reflected obvious jubilation." Rogers says there was indeed a "big celebration. But we knew it would be appealed. One was allowed 24 hours of celebration, then it was back to the case."
Senator Arthur Watkins said on the basis of "reports he had of the decision Judge Youngdahl's reasoning appeared to be faulty." Senator McCarran had no comment. Overnight Youngdahl became the lightning rod for the wrath of the pro-McCarthy press and the recipient of the hate mail that always comes to heretics and defenders of heretics.
Again the burden of response was on Rover.