Chapter Twenty-Seven
Second Indictment, Second Dismissal
While the judicial system was laboring to settle the case of the United States versus Lattimore , attacks from the political arena continued. One of the more unusual ones, which remained clandestine, came via the chaplain of the Senate. The Reverend Frederick Brown Harris was a friend and supporter of J. Edgar Hoover. On July 13, 1954, Harris wrote Hoover urging that an anti-Lattimore activist who had called on Harris be allowed to "put into your hands some things you ought to have regarding the Lattimore case." This individual, according to Harris, "lives and moves and has his being in this matter of the communistic threat. . . . He has just completed a volume based on the testimony Lattimore has given at various hearings. . . . I can assure you that, after three-quarters of an hour interview with him, he is on fire with this subject and with his zeal to uncover the diabolical plottings of this system which is a conspiracy against all that is decent."[1] Hoover declined; Lou Nichols was commissioned to be baptized with zeal. There is no evidence that Nichols was converted.
Zeal flowed more openly July 28, 1954. In the grand ballroom of the Hotel Astor, Alfred Kohlberg's American Jewish League against Communism, Incorporated, gave a gala dinner for Roy Cohn, recently fired by the Senate Permanent Investigations Subcommittee.[2] Twenty-five hundred people crowded the ballroom; the sponsors said six thousand more had been turned away. Every right-wing organization in the country was represented; Frank Gibney, a senior editor of Newsweek , said of it, "Unquestionably, this was a most comprehensive assembly of 'McCarthyites.' Besides Roy, the Senator and a few of the more prominent boys on the McCarthy sub-committee staff, there was an assortment of zealots comparable in their intensity only to the personnel of meetings organized in
past years by groups like the old Communist-sponsored League Against War and Fascism."[3]
Kohlberg made one of the many tributes to Cohn. Not trusting the press to distribute his encomium adequately, Kohlberg mailed copies of his remarks to his list of some thousand opinion makers: "Roy, stay away from the U.S. Senate. I say this entirely without prejudice. In fact, some of my best friends are Senators. But beware of them, Roy, they are just too mixed up."[4] The mixed-up senators were the anti-McCarthyites such as Ralph Flanders.
From the standpoint of Rover and the prosecution, the Senate was troublesome; Rover had real trouble getting an SISS member to appear in court. Rover wrote McCarran August 24, 1954, asking him to arrange for a member of SISS, preferably himself, to appear before the grand jury on September 13 to testify that SISS had a valid legislative purpose in questioning Lattimore.[5] McCarran declined. Two weeks later Rover was still hunting a Senate witness. We have this intelligence from Ed Hummer, reporting to Branigan:
Hummer advised that for purposes of showing materiality, a senator who was on the McCarran Committee . . . will appear before the grand jury and again in the trial. He advised that former Senator O'Conor of Maryland has indicated his desire not to so appear since he is now a practicing attorney and the publicity might be adverse; that Senator McCarran does not want to appear because "he would lay himself open to attack by the Communists"; that United States Attorney Rover does not want Senator Eastland to appear because of his professed anti-Negro sentiment; that Senator Ferguson is willing but has advised Rover that he is in the midst of a political campaign from which he should not take time off; that former counsel for the McCarran Committee, Judge Robert Morris of New York City, is not wanted because Rover believes he would use such an appearance for self-aggrandizing; and that Senator Smith is not living. Hummer advised that the remaining two Senators, Jenner and Watkins, have been requested to appear and as yet no reply has been received.[6]
Lacking grand jury minutes, we do not know which senator appeared. Nor do we know very much that happened in the grand jury room. The only published account is in Fred Field's autobiography.
In 1953, a year after serving a jail sentence for refusing m tell a New York court about the affairs of the Civil Rights Congress Bail Fund, Field moved to Mexico. The climate in the United States was such that he could no longer be effective in the Communist-affiliated causes dear to him.
Rover was adamant that Field should appear before the grand jury, so a summons was served on him in Mexico City. Presumably, Field was called to identify letters from the IPR files; he cooperated in this request. But when Rover began to question him about his political beliefs and his relations with various people, he balked:
Nine of the questions began in exactly the same way: "Have you ever been requested to act on behalf of the Soviet Union . . . ," and then the nine endings: "by Budenz?" "by Browder?" "by any member of the American Communist Party?" . . . "by any Soviet citizen?" "by any Chinese Communist?" "by Owen Lattimore?" To all those questions I invoked the Fifth Amendment. It is not too difficult to imagine what could have happened if I had answered them instead. For example, had I said no to the one about Budenz, they would have had Budenz on the stand in no time at all, and he would have said something like this: "Yes, I clearly remember the occasion when I passed on to Comrade Spencer [Field] the message from Moscow in which Comrade Stalin asked him to come over to have tea with him." As a result, I would have landed in jail for perjury. There was convincing testimony on the record to show that the Establishment would believe absolutely anything Budenz said. I would not have had a chance. (Field's italics)[7]
The grand jury learned nothing significant from Field except that one of Lattimore's friends was a Fifth Amendment Communist. This did not matter. The guts of Rover's case was the BDPT document, probably supported by one or more of its compilers.
September 26, 1954, the day before the grand jury was to adjourn, Walter Winchell broadcast a claim that Philip Jaffe had made "a sensational statement to the FBI." Donegan called the bureau early the next morning. If Jaffe had said anything about Lattimore, Rover wanted to hold the grand jury and bring Jaffe before it. Wacks checked the records. Jaffe had never been "wholly cooperative." In August he had appeared to waver, but nothing had come of it. Branigan, who reported the incident to Belmont, recommended "that Mr. Donegan be advised that all pertinent information received from Jaffe re Lattimore has been furnished to the Department; that if the Department wants to continue the grand jury on the basis of Winchell's comment, that is entirely up to them." Hoover concurred: "We are not responsible for what W W says, & Donegan should be so advised."[8]
Rover did not need a confession from Jaffe. The grand jury was convinced. On September 27, 1954, they unanimously voted a two-count indictment.[9]
While prosecution attorneys were polishing and printing the indictment, the most powerful force behind the Lattimore prosecution died. Patrick McCarran, age seventy-eight, suffered a heart attack after addressing a political rally in Hawthorne, Nevada, September 28.[10] He took his suspicions about the "one being" directing the Communist apparatus in the United States to the grave with him. The chances are that Lattimore was still a candidate. Jenner and Eastland, who succeeded McCarran as chairmen of SISS, did not give up his crusade.
The new indictment was issued October 7. It is one of the strangest documents ever to come from a grand jury. The two counts are simple: Lattimore lied about not being a follower of the Communist line and not promoting Communist interests. But the document runs to twelve pages. It presents a definition of "Communist line" so expansive as to include any statement ever made by a Soviet or left-wing writer. It lists twenty-five "topics" on which Lattimore is alleged to have followed the Communist line, and for each of these topics it gives a list of Lattimore's publications, with page numbers, presumably setting forth that line. Fourteen of these topics are declarative sentences, such as "Moscow Has Not Backed the Indo-Chinese Communists." The other topics have no predicate; they are simply phrases such as "The Marshall Plan." The Lattimore publications listed, as in the BDPT analysis, are overwhelmingly ONA dispatches, Solution in Asia , and Situation in Asia .[11]
And as with BDPT, Lattimore's extensive statements in favor of capitalistic free enterprise are nowhere to be found in the indictment. Lattimore had also dearly asserted the legitimacy of free-world efforts to counter Soviet influence, but the indictment does not mention them. How Rover expected to deal at trial with a cross-examiner who would demonstrate that the articles listed were overwhelmingly anti-Communist is a mystery.
The AFP brief of appellee, flied November 18, 1954, quotes definitions of "follower of the Communist line" from HUAC, the U.S. Civil Service Commission, and the Internal Security Act of 1950 that differ radically from that of the Lattimore indictment. Most such definitions are narrowly drawn and focus on shifts in Soviet positions. According to the defense brief, "The indictment is not limited to those who shift with Russia as it shifts its policy. It touches any writer whose opinion ever coincided with Russian policy at any time. Covering a period of fifteen years, as it does, and including events long antedating the cold war, it would force every British and American statesman to admit that he was a follower of the Communist line in the sense used in the indictment."[12]
In a statement Lattimore issued the same day the indictment was released, he said, "Under this indictment, the entire Democratic and Republican administrations could be accused of perjury if they said they had never knowingly followed the communist line—so could Presidents Roosevelt, Truman and Eisenhower, all of whom have been accused of following the communist line. Inevitably this country cannot always take a position in exact opposition to the position taken by Russia."[13] The New York Times quoted Lattimore's statement approvingly.
Despite the unanimous grand jury vote on the new indictment, Rover was uneasy about it. Even before it was issued, he was planning ways to avoid having it overturned. Hummer is again the channel through which we can view prosecution plans; he talked to Branigan September 30.
Hummer advised that United States Attorney Rover has contacted Chief Judge Laws to request that Youngdahl not be assigned the Lattimore case again. Laws reportedly told Rover that any such request must be in writing and that Youngdahl had already indicated his desire to remain assigned to this case. Hummer stated that Rover has prepared a petition of prejudice and bias against Youngdahl, based mainly on his statement concerning materiality, referred to above, and if Youngdahl once again is assigned to this case, he will present this petition to Youngdahl as the basis for a motion for Youngdahl to step down. Hummer stated that he expects "fireworks" with respect to this situation since he is convinced that Youngdahl wants to use the Lattimore case as a steppingstone to higher positions.[14]
Hummer may have been wrong about Youngdahl's ambitions, but he was right on the mark about Rover. On October 13 Rover flied his affidavit of bias, stating that Youngdahl had shown himself so biased in favor of Lattimore that he could not preside impartially over a trial. He should therefore remove himself, allowing the case to be assigned to another judge.[15]
The defense was stunned. Youngdahl and Lattimore had never met. Youngdahl had never shown any bias in favor of Lattimore anywhere; he had simply ruled on the legal sufficiency of an indictment. AFP reacted immediately. Their motion to strike affidavit of bias and prejudice was filed October 14.
(1) The affidavit is a bald and undisguised attack on the decision of Judge Youngdahl dismissing the first count in the original indictment of Owen Lattimore. That decision was affirmed by an eight-to-one vote of the judges of the United States Court of Appeals.
(2) The affidavit is in plain defiance of all the decided cases which hold that a judge may not be disqualified because counsel objects to his opinions and rulings. . . .
The affidavit is clearly an attempt to manipulate the administration of justice. The Department of Justice wants to prevent Judge Youngdahl from deciding this case. The reason it wants him out of the case is because under his opinion in the previous indictment the prosecution fears that its present indictment cannot stand. The Government had an opportunity to appeal to the Supreme Court of the United States, which it declined. It substitutes for that judicial review the oath of the United States Attorney that in his opinion the written decision of Judge Youngdahl on its face is so bad that it must have been the result not of judicial reasoning but of unjudicial prejudice.
No such affidavit has been filed by the Government in any case before this. It amounts to an assertion that Judge Youngdahl has been in this case an untrustworthy judge who has allowed his prejudices to run away with his reason. That assertion is made in a cause celebre . All over the United States newspaper headlines have reported that it is the opinion of the Department of Justice that the judge who dismissed the first count against Lattimore was not acting as an unbiased court.[16]
Thus, it was all laid out: subtly, but firmly, the Eisenhower administration was challenging the courts to deal harshly with the heretic Lattimore. The rule of law was now to feel the heat of the frustrated inquisitors. At the time, no one could know how much the courts would bow to the anti-Communist hysteria. McCarthyism seemed to be on the wane, but the China lobby was as vigorous as ever and more determined. Youngdahl was vulnerable, and Attorney General Herbert Brownell swung his prestige firmly behind Rover.
Thurman Arnold requested an appointment with Brownell. According to the New York Times account, Arnold "asked Mr. Brownell at a conference this morning to disassociate the Justice Department from the challenge to Judge Youngdahl's fitness. The Attorney General refused and told Mr. Arnold that he had 'the fullest confidence in Leo Rover.' "[17]
Rover maintained the initiative. At a news conference October 20 he challenged the right of the Lattimore defense to object to his affidavit of bias, claiming that it was a matter exclusively between him and Judge Youngdahl. As the Times described it, Rover "asserted that the Lattimore lawyers had 'no standing to interpose a motion' to dismiss his affidavit. He described their motion as a 'frantic emotional attack' on his action."[18]
Two days later Youngdahl held court to hear arguments on the affidavit of bias.
It was a nasty scene in the district court the morning of October 22, 1954. There is an old saying in legal circles; when you have no case, abuse the opposition attorneys. Rover went that one better: he abused the judge. Of course, he had disdain aplenty for Lattimore's attorneys, but his harshest barbs were reserved for Youngdahl. The judge, Rover said, should never have commented on the possible immateriality of the counts in the first indictment. Materiality was a matter that could be decided only after hearing the government case at trial. "How can it be argued that Your Honor does not come into this case prejudging it, biased and prejudiced, whether you believe it or not, remembering, now, this is not any off-the-cuff statement. This is not something that the court might say in the heat of the trial. It is a cool, calm, deliberate opinion." Said the Times , "Torrents of emotional oratory swirled about Judge Youngdahl for two hours. Mr. Rover shouted that the jurist had been 'an advocate, not a judge' in earlier consideration of the Lattimore case. Judge Youngdahl had used language in an opinion, Mr. Rover asserted, that was 'a gratuitous insult to the Government of the United States.'"[19]
It was left to the genius of Thurman Arnold to counter this outburst of invective. His impassioned defense of the original Youngdahl ruling, and of the court of appeals that upheld the vital part of it, is a model for students of judicial pleading. Arnold's speech had more than the requisite citations of precedent for affidavits of bias. He articulated precisely the fanaticism that sparked the Lattimore prosecution. Rover was "the sincerest man I have ever known, but he has that type of mind that feels any opinion against him must be biased and prejudiced, because he is so sure that God is with him and that he is in the right. . . . Four out of the nine judges on the Court of Appeals said . . . on the face of the record, these counts cannot pass materiality. What does the United States Attorney propose to do? To get rid of you? Then he swears off those four judges, who went even further than you with respect to materiality. . . . I think that what Mr. Rover wants to do is to muzzle this court—not yourself, but other judges."[20]
Youngdahl listened to it all impassively and when it was over, took it under advisement.
Blind commitment to a cause comes to different people in different ways. McCarthy, for instance, began his anti-Communist career with no deep commitment whatever. Anticommunism was just another political tactic. Jack Anderson, who covered McCarthy for Drew Pearson, says,
"From day to day I could see the new cause tightening its grip on him, as though the compulsive upward thrusting that had so long driven him forward willy-nilly had at last found its true focus."[21] So McCarthy became a believer, internalized his own rhetoric, lost any sense of proportion.
Something similar happened to Ed Hummer. Beginning his contact with the Lattimore case as a thorough skeptic, prodded by Cohn's vendetta and Rover's fanaticism, Hummer came by 1954 to share the commitment of the prosecution team. It clouded his vision. After hearing the Rover-Arnold confrontation over the affidavit of bias, Hummer reported to Branigan that "Rover 'lowered the boom' on Youngdahl to such an extent that it is inconceivable to Hummer that any judge in Youngdahl's position would consider remaining on the case." Hummer, too, had lost his sense of proportion. The next day Youngdahl ordered the affidavit stricken from the record as scandalous.[22]
Rover had attempted to intimidate the courts. Hummer revealed this fact on October 27, when he told Branigan that the government would not appeal Youngdahl's action but would "first see how Youngdahl treats the defense motions." Hummer himself thought that "in view of the recent adverse publicity, Youngdahl now will 'bend over backwards.'" On October 28 AFP moved to dismiss the new indictment, claiming that it was worse than the original count one. The government's research into definitions of "follower of the Communist line" was "historically silly" and "could only have been conducted by consulting with witch doctors, for, whatever the process by which the Grand Jury was persuaded to bring this outrageous indictment, it could not have included any consideration of historical fact."[23] Momentum was now with the defense, but AFP took no chances. Their brief on appeal was 215 pages.
The storm in Judge Youngdahl's courtroom spread far beyond Washington. In England, "clamor raised by members of Parliament and large parts of the British press over the questioning of Britons in connection with Mr. Lattimore's trial" led Home Secretary Gwilym Lloyd George to announce that any future American requests for investigation in this or similar cases would be considered at a "high level" before granting them. The New Statesman and Nation called the Lattimore case a "battle for the soul of America."[24]
In Wyoming, Republicans opposing O'Mahoney's campaign to regain his seat in the Senate played up his part in the defense of Lattimore. One called the lawyer a "foreign agent" in full-page newspaper advertisements. O'Mahoney gave no ground. He not only refused to apologize for defending Lattimore but emphasized that his client was entitled to a pre-
sumption of innocence and to counsel of his own choosing. Ten days before the election O'Mahoney was thought to be ahead of his Republican opponent, but his advisers urged him to downplay the Lattimore case.[25]
In the Senate, upholders of civil liberties began some of the actions that eventually overthrew the McCarthy-McCarran forces. Senator Thomas C. Hennings, Jr., Democrat of Missouri, presaging the full-scale hearings he chaired on civil liberties in 1955 and 1956, called for an investigation of Rover's affidavit of bias. Senator William Langer, chair of Judiciary, at first went along with Hennings and requested Brownell, Rover, and Youngdahl to appear at a hearing November 23. When the committee met, none of the three invited witnesses appeared. Deputy Attorney General William P. Rogers appeared "to advise the Committee that the Department would produce no one for questioning . . . since the Department feels that this action [Rover's affidavit] was proper."[26] Langer adjourned the hearing on the pretext that one of the senators was absent. It never reconvened.
Midterm elections took place November 2, 1954. Democrats won back control of both House and Senate. The campaign degenerated toward the end into mudslinging and acrimony. Vice President Nixon, setting the tone for the Republicans, charged that the Democrats were unfit to govern because they were soft on communism. Democrats bridled at this charge, and House Speaker-Designate Sam Rayburn told United Press that "Congress would demand that the Republicans 'put up or shut up' on their claims of mass dismissals of Federal security risks" hired by previous Democratic administrations.[27]
McCarthy was not a major force in the campaign. With a committee recommendation to censure the Wisconsin senator waiting to be voted on by the full Senate, Republican campaign managers invited him to sit out the campaign. He didn't, quite; significantly, the Republican liberal who sustained McCarthy's bitterest attacks, Clifford Case of New Jersey, won reelection. In Wyoming, O'Mahoney also won, showing at least that support of the beleaguered Lattimore was not fatal. William S. White of the Times felt that the elections were a rebuff to extremist candidates.[28]
John Foster Dulles didn't get the word. Three days after the election Dulles accepted the recommendation of a special hearing panel charged with evaluating John Paton Davies under Eisenhower's Executive Order 10450. The board did not find that Davies was in any way disloyal. It found, contrary to every efficiency rating Davies had ever received, that he lacked judgment, discretion, and reliability. His continued employment was therefore inconsistent with the national interest. Dulles fired
him. Hurley and McCarran won that battle. The last of the Chiang opponents was now out of government service. As Davies himself puts it, Jonah was finally overboard.[29]
Several days later Dulles, who might have had a conscience, told Davies he could use Dulles's name as a reference in seeking another job.
Rover now increased the number of senior attorneys working on the Lattimore case from four to ten. He pressed the department to take Youngdahl's rejection of the affidavit of bias to the court of appeals; Brownell refused. According to Hummer, Rover was bitter about this decision.[30]
Youngdahl was seething. On November 18, in an unusual move, he filed a memorandum with the district court asking the government to disavow as "without substance" the affidavit of bias, which he described as a "hit-and-run" attack that could affect any judge who heard the Lattimore case. Youngdahl noted "with regret the public announcement by a Government spokesman that his ruling would not be appealed. The judgment of the appellate court could have helped to dissipate the affidavit's thrust against the integrity and independence of the judiciary." The Justice Department remained silent. AFP also asked Brownell publicly to withdraw the affidavit: same result.[31]
Despite Brownell's refusal to disavow Rover, the Justice Department had some uneasiness about how the Lattimore case was going. On November 24, 1954, they sent a new representative to the FBI to talk over a proposed line of investigation. The new man, Tom Hall, admitted misgivings about the proposed investigation, which he considered a "fishing expedition." Hennrich, for the bureau, agreed. The specific proposal is still classified. Whatever it was, the bureau, as usual, said put it in writing and "we will carefully analyze it."[32]
Hummer brought new intelligence November 24. It was all wrong. Hummer thought Youngdahl would step down if Rover removed himself from the case, but Rover refused to do so. Rover also thought Youngdahl's fellow judges would pressure him to step down.[33] They did not do so.
On December 2, after extended and bitter debate, the Senate condemned McCarthy, 67-22. This was occasion for rejoicing at Arnold, Fortas, and Porter. Senator Jenner, unwilling to let the debate end without another attack on Lattimore, threatened Senator Flanders with a subpoena to get him to testify about his relations with Lattimore.[34] This was gallows humor. McCarran was dead, McCarthy was impotent, and the Lattimore persecution was winding down.
Youngdahl presided over oral arguments on the defense motion to dismiss the second indictment December 13. The substance was familiar, but Arnold and O'Mahoney had some new rhetorical flourishes. Arnold commented, "If the first indictment was too vague, the second is 100 times too vague." O'Mahoney noted that President Eisenhower now advocated peaceful coexistence with the Soviet Union; if Lattimore "had been the one who first wrote 'peaceful coexistence' he would have been indicted for it." The atmosphere in the court was quite different from that of the hearing on the bias affidavit: "Today, Judge Youngdahl smiled and exchanged pleasantries with Mr. Rover. When he had finished two hours of argument, Mr. Rover thanked the judge for his 'graciousness and consideration.' "No date was set for announcing a decision.[35]
Until December 1954 mainstream press coverage of the Lattimore case had been based almost exclusively on public hearings, speeches, and documents. On December 27 the New Republic published "New Light on the Lattimore Case," listing "Brian Gilbert" as the author. It was an amazingly accurate effort. "Brian Gilbert" was the pen name of Roger Kennedy, a Minnesota Republican then working for one of the major broadcasting networks. Because of his background and conservative appearance Kennedy had access to Rover, Hummer, and possibly other prosecution attorneys. He had also talked to Arnold, Lattimore, and Youngdahl (whom he knew). Kennedy had originally intended to use the Lattimore material for a network documentary, but the network decided the story was too controversial. Kennedy therefore wrote up his findings for New Republic .[36] His article excoriated McCarran, Cohn, and the Justice Department, whose conduct he termed scandalous. Lattimore, he wrote, had been framed.
SISS was outraged. Jay Sourwine called Michael Straight, New Republic editor. Sourwine's employers were "particularly interested in the assertion made in the course of the article that the committee had encouraged perjury." Would Straight put them in touch with "Brian Gilbert"?[37] Straight called Kennedy. The prospect of confronting SISS was worrisome, but Straight convinced Kennedy that a contempt of Congress indictment was more worrisome. Kennedy subsequently paid a private call on Sourwine and members of his committee.
As Straight tells the story, "They expected to see an unkempt radical; instead, they faced a well-groomed young Republican. Some intensive grilling followed, but the committee concluded that the net cast out by Sourwine had caught an unappealing fish."[38] Nothing came of this meeting, but it was not the end of SISS interest in Lattimore. The committee followed his career as long as Sourwine was with them. As for the Gil-
bert/Kennedy article, it remains a perceptive account of the whole fantasy.
Even as the influence of the McCarthy-McCarran Senate bloc was winding down, a group of intellectuals calling itself the American Committee for Cultural Freedom (ACCF) took up the cudgels against Lattimore. The Gilbert/Kennedy article in New Republic triggered the ire of So/Stein and other reactionaries at ACCF; the executive committee of that organization drafted a reply to Kennedy. "Lattimore was indeed a willing instrument of the Soviet conspiracy against the free world," said ACCF; "This conspiracy triumphed in China, yet Lattimore, its 'articulate instrument,' is now defended in the pages of the New Republic ."[39] ACCF's moderate members did not go along with this article; David Riesman, Richard Rovere, Arthur M. Schlesinger, Jr., and Herbert Muller all protested. ACCF, supported by CIA funds, moved steadily rightward, keeping Lattimore on their roster of subversives; he is still there, in the rogues' gallery of the neoconservatives.
The date for Lattimore's trial had been set for January 10,1955; as that date approached and Youngdahl had not yet issued a decision on the motion to dismiss the second indictment, trial was postponed. On January 7 Rover finally filed a bill of particulars. It dealt only with the counts concerning Chi Ch'ao-ting, Oumansky, and the handling of Currie's mail. Nobody was enlightened. Unbelievably, on January 10 Rover again asked the FBI to prepare "charts and similar graphics" to display the BDPT findings. Hoover again did not "deem it desirable to have representatives of the Bureau prepare the visual data requested by Mr. Rover."[40]
On January 18 Rover's expectation of having intimidated Judge Youngdahl was dashed. Youngdahl threw out the second indictment in toto and with zest:
Under Count I, perjury is charged to the statement by Lattimore that he was not a follower of the Communist line. The Government supplies a definition of this phrase in the indictment. The Government is prompt to concede that no such definition was presented to the defendant at the Committee hearing in 1952; that it was formulated after Lattimore testified; that it was prepared after independent research conducted by the United States Attorney's Office. The sources of such research, however, do not appear. The Government contends that it is a matter of common knowledge as to what is meant by "follower of the Communist line" and that people differ but little in their understanding of the term; (footnote: Common knowledge of whom? The man in the street? A newspaper man? A man of ordinary or superior intellect? A member
of the F.B.I.? The Department of Justice? The Internal Security Subcommittee? The State Department?) that it is not a minimal requirement of following the Communist line to zig and zag with it, since it does not always zigzag; (footnote: The Government's position confuses the Court. In its "Supplemental Memorandum in Opposition to Motion to Dismiss," p. 7, there is found the following: "It defies common sense to argue that the only test of recognizing a dog is a wagging tail and similarly that the only test of a follower of the Communist line is one who zigs or zags. True, a dog should have a tail and a follower should zig and zag, but as [we have] stated to the Court, it will be proven the defendant has zigged and zagged. As the bulk of a dog is not his tail, neither is the bulk of the line zigging and zagging; overwhelmingly its positions remain fixed from their inception." The Government appears to be zigging and zagging as to its position and meaning of the indictment terms. . . .)
This count, even with its apparent definition, is an open invitation to the jury to substitute, by conjecture, their understanding of the phrase for that of the defendant. . . . To ask twelve jurors to agree and then decide that the definition of the Communist line found in the indictment is the definition that defendant had in mind and denied believing in, is to ask the jury to aspire to levels of insight to which the ordinary person is incapable, and upon which speculation no criminal indictment should hinge. . . .
The charges here serve only to inform the defendant that his sworn statements are to be tested against all his writings for chance parallelism with, or indirect support of, Communism regardless of any deliberate intent on his part. They demonstrate that the Government seeks to establish that at some time, in some way, in some places, in all his vast writings, over a fifteen-year period, Lattimore agreed with something it calls and personally defines as following the Communist line and promoting Communist interests. . . .
With so sweeping an indictment with its many vague charges, and with the existing atmosphere of assumed and expected loathing for Communism, it would be neither surprising nor unreasonable were the jury subconsciously impelled to substitute its own understanding for that of the defendant.
To require defendant to go to trial for perjury under charges so formless and obscure as those before the Court would be unprecedented and would make a sham of the Sixth Amendment and the Federal Rule requiring specificity of charges.
The indictment will therefore be dismissed.[41]
Lattimore and his lawyers were delighted. Surely now the zealots would fold their tents and fade away. But AFP did not brag about their victory.
When a Baltimore Evening Sun reporter contacted Arnold, Arnold would only say, "The opinion speaks for itself."[42]
Rover was furious and immediately asked the Justice Department to appeal. Hummer thought that Assistant Attorney General Tompkins would support Rover, but Solicitor General Sobeloff might not.[43] Trial was put off again.
Defense morale was further boosted on February 2 when United Press carried another story about Matusow: he had been confessing and retracting his confessions for more than a year. Now he again said that everything he testified to about Lattimore's books carrying the Communist line was false. Within three months of this final recantation the FBI conducted a new reconsideration of its former Communist informants. No less than seventeen of the New York informants in the Lattimore case were down-graded from "reliable" to "credibility is not known."[44]
The government appealed Youngdahl's decision on February 4, 1955. Rover continued to act as if the case were still on course. BDPT were still analyzing, the FBI was still collecting documents, the State Department was still pursuing potential witnesses in Taiwan. There had been more than 3,000 interviews, and 214 of these had been pertinent enough for the bureau to forward the results to Rover.[45]
The defense, however, thought the case would never come to trial. Since Lattimore had been all but immobilized for five years, the invitations he was getting from scholars in Europe began to look irresistible. Frozen out of American academia (except for Fairbank's annual invitation to Harvard) and unable to lecture at Johns Hopkins, Lattimore, with the support of his lawyers, figured it was time to go abroad. His life had been in the hands of lawyers and politicians long enough. Why should he not accept invitations to address the British Association of Orientalists at Oxford in May and the International Congress of the Historical Sciences at Rome in September? There were also four other tentative invitations. On March 12 he applied for an extension of his passport.[46]
Ruth Shipley was still in charge of the Passport Office and was every bit as anti-Lattimore as before. But she had been overruled in 1951; perhaps it could happen again.
Passport dragged its feet. Arnold complained: "They won't say yes and they won't say no," he told reporters. No wonder: granting a passport to Owen Lattimore was a matter of sufficient moment to reach clear up to the Oval Office.
The brouhaha began when the State Department asked the FBI to send them relevant reports on their investigations of Lattimore to use in ques-
tioning him. Belmont, for one, did not want to accede to this request. These reports would reveal "the logical government witnesses" to be called for trial. Rover's office also opposed State's request; he would give them nothing on Lattimore. On April 15 Assistant Attorney General (AAG) Tompkins overruled Rover, and the bureau was instructed to furnish the reports to State. Shipley read them and on April 29 prepared a letter denying Lattimore a passport.[47]
The Shipley letter went to Scott McLeod for approval; he disagreed, recommending that a passport be issued. From McLeod the letter went to the office of Loy Henderson, then to general counsel Herman Phleger, and finally to Herbert Hoover, Jr., the undersecretary, with no decision. Arnold asked that Lattimore be granted a formal hearing. Rover opposed such a heating; it would just give Arnold a chance for "blowing off steam" and would injure the government's legal case.[48] Rover lost. Frances Knight, a protegé of Senator Styles Bridges and as anti-Lattimore as Shipley, became chief of the Passport Office on May 1; Lattimore got his hearing with Knight. As he recalled in 1979, "Frances Knight asked me if I could show reason why I should get a passport. I said, 'If you give me a passport, you will face a stink on Capitol Hill. If you don't, you'll face a stink in Europe. Take your choice.'"
State was in an uproar, and a meeting was held in Sherman Adams's White House office May 11, with Adams, Herbert Hoover, Jr., Loy Henderson, Phleger, and Jerry Morgan in attendance. No decision was reached. The controversy went on at the undersecretary's level for another week.
On May 17, 12:15 P.M. , Adams talked to Secretary of State Dulles. Adams was distraught. Brownell thought the passport should be issued, but according to Adams, "Certain U.S. Senators will make life miserable if we let him go over. . . . [You] are not in a position to issue a passport to a man who has a pending indictment." But Dulles was to make the decision.[49]
Brownell called Dulles early on the eighteenth. The attorney general thought the passport should be issued; after all, when Lattimore was first indicted, the judge had ruled that he could travel anywhere in the world so long as he was back for trial. Dulles told Brownell that Adams was against it, but he didn't know how strongly. Brownell told Dulles to call Adams again.[50]
Dulles relayed Brownell's advice to Adams and said he thought they would issue the passport. Adams expressed regret but did not try to change Dulles's mind. Adams asked if he should speak to Eisenhower about it. Dulles responded, "Has he been following it?" Adams said no. They agreed that Ike should be informed.[51] Dulles then put in a call to the president:
The Pres. returned the call, and the Sec. said we are having a problem re giving a passport to Lattimore. Adams thought I should speak to you about it. I have the feeling that it is better if you are not consulted about it as it is hot. I am in close touch with Brownell and what we do would be what we agree on. The Pres. asked if there is any law that affects it? The Sec. said he is under indictment. The Pres. said oh, he is? The Sec. said the Judge gave permission for him to go abroad. . . . If you are interested, I would be glad to discuss it with you. The Pres. said to take whatever action is necessary and let him know before he is questioned at a press conference.[52]
Whatever conclusions one may draw about a hands-off presidency, Eisenhower's total ignorance of the most celebrated prosecution then under way in his Department of Justice is astounding. Dulles decided, and Lattimore's passport was renewed May 20.[53] Presumably the president was notified.
While the highest officials of the United States were sweating over whether the man who lost China should get a passport, the Justice Department was reviewing its security index, officially titled "Program for Apprehension and Detention of Persons Considered Potentially Dangerous to the National Defense and Public Safety of the United States." AAG Tompkins sent a routine letter to the FBI March 28, 1955, recommending that Lattimore be kept on (the bureau held the index cards). Hoover asked the Lattimore case officers in headquarters and the Baltimore office what they thought. He then wrote a two-page letter to Tompkins reviewing the SISS findings and the bureau's many investigations. From this information Hoover concluded, "It does not appear that facts . . . depict Lattimore as a dangerous individual." The bureau wanted to take him off, and Tompkins yielded. Lattimore became officially "not dangerous" on June 17, 1955.[54]
Rover filed his appeal from the latest Youngdahl decision April 11. The second indictment, he said, was scrupulously drawn to make clear to Lattimore "the nature and causes of the accusation." On May 11 John Jackson resigned from the prosecution team; Hummer and Davitt were reassigned. Edward Troxell replaced Jackson.[55]
On May 20 the Lattimores left for Europe, in plenty of rime for his opening lecture in Oxford. After the stress and nastiness of the previous five years England was a tremendous relief. The scholarly community there greeted him with open arms. He lectured to packed houses, and many European intellectuals sought his company. Lattimore's core beliefs, that the Chinese Communists won on their own and were not slaves of the Kremlin, were accepted truths in Europe, not venal heresies as they
were in the United States. His four months in Europe were a time of great rejuvenation.
Oral arguments before the court of appeals took place June 1 in Lattimore's absence. The full court sat again, but there were only eight judges; Harold Stephens had died shortly before the hearing. One new judge had not participated in the 1954 decision. The Washington Post said it was a "bitter debate in the tense, crowded courtroom." William D. Rogers of AFP said the "argument was somewhat inconclusive." Certainly there was little new; both sides had developed their contentions fully in the briefs. AFP was confident, according to Rogers: "No one has any doubt about the eventual outcome. The only question in my mind is what the Government will do when the Court of Appeals decision comes down." No date for a decision was set.[56]
The death throes of the Lattimore prosecution were much like the beginnings. Poor, befuddled Clay Osborne wrote one of his last pathetic letters to the FBI on June 8. It was addressed to a Los Angeles agent who had been sympathetic to him. "I have either underestimated the total bulk of useful documentation, or else overestimated my own ability swiftly to correlate it. It appears, now, that about another week will be required to get everything organized for even minimum usefulness to our common purpose. I've dedicated so much time to this already that a little more seems justified to meet standards of duty."[57]
There followed descriptions of OWI documents Osborne had pilfered in 1943 and just dug out of his files. Presumably he was now out of the mental hospital and able to visit his storeroom. There were OWI staff orders, memoranda, analyses of "The significance of the Emperor of Japan," the article by Sun Fo, notes on a conference with Sir George Sansom, and so on. All of these documents, Osborne felt, should be photographed for use in the cause. He was very careful with his treasures: "All drawers are secured by long screws at any time I am absent—and during absences of a few hours or longer, I take with me in the rear of my car, all those documents being prepared for you [the FBI]. In my wallet I have placed a notation to notify you in any event of grave accident or death—that my locked briefcase is your property, and that you will pick it up. Same notation is on brief case." The government did, in the end, take some of Osborne's documents. The State Department determined that they were subject to security classification, and Osborne was ordered to return the originals.[58] The documents are still classified.
Of cranks and opportunists there was no end. A "mystery flight" informant was still being checked out in June. This conspiratorial talebearer
told the bureau that Lattimore had commanded an Army Transport Command plane that carried military supplies to the Chinese Communists in 1944. This informant had talked to the pilot of the plane, who now lived in Milwaukee. The bureau tracked the pilot down. He had never met Lattimore, had not flown to China at the time alleged, had never delivered supplies to a Chinese Communist army.[59] Poor Rover. Nothing checked out.
BDPT were still at work, still asking for documents (in June 1955 they wanted copies of fifteen pages of the Daily Worker and Pravda ). George Donegan passed the requests on to the bureau. Expedite, said Donegan.[60]
It was too late. On June 14 the court of appeals upheld Youngdahl on a vote of 4-4. It would have taken a majority vote to overrule. No opinion was issued, and the order of the court did not disclose how the judges voted. Rover told the Washington Post that as far as he knew, the government would go to trial with the remaining counts of the first indictment, but he would ask the Justice Department to take the appeals court decision to the Supreme Court.[61]
Celebration at AFP was muted. According to Bill Rogers, they were much surprised at the closeness of the vote.[62]
Well they might have been. The grounds for Youngdahl's decision, that such an indictment was vague and imprecise, became settled law. In 1956 an indictment of author Harvey O'Connor for contempt of Congress in refusing to tell Joe McCarthy whether he, O'Connor, had been "a member of the Communist conspiracy" was thrown out because the question was so "imprecise and ambiguous" that it was not a crime to refuse to answer it. The court of appeals panel in the O'Connor case consisted of two judges who had ruled on Lattimore plus Warren E. Burger. Their ruling was unanimous. O'Connor told an Illinois newspaper that he was "delighted that it is now possible for an American citizen to have contempt for Joe McCarthy without having to go to jail."[63]
Rover's assistants, Troxell and Donegan, were divided on whether there was any case at all in the absence of the two backdrop counts Youngdahl had thrown out; Troxell thought the minor counts were weak, but Donegan wanted to go with them. Sobeloff, Tompkins, and Rover were to meet June 27 to make a decision.[64]
Hummer's report to the bureau says that Rover had no part in the decision; Sobeloff and Brownell were responsible. They wasted no time. The headline to the page-one New York Times account of June 29, 1955, tells the story: "Lattimore Perjury Case Dropped by Government. Conviction Made Difficult by Courts' Killing Key Counts, Brownell Says."[65]
Brownell's one-page news release of June 28 gave a brief history of the case, carefully noting that the original indictment had come under the previous administration. It concluded: "Upon a consideration of all aspects of the case, it has been decided not to apply to the Supreme Court for review on certiorari on the two counts that were recently invalidated. In the absence of these counts there is no reasonable likelihood of a successful prosecution on the five counts remaining from the first indictment. Therefore, the United States Attorney for this District intends to take the necessary steps to bring about a dismissal of these counts, thus bringing this litigation to a conclusion."[66]
Now Leo Rover, spearhead of the Lattimore prosecution for two and a half years, faced the embarrassing prospect of going before Luther Youngdahl, whom he had excoriated as unfit, and asking that the case be dismissed. To Youngdahl's credit, he did not take advantage of his triumph. As Youngdahl told the story in December 1977:
Chief Judge Laws—he was the one who gave me the case had a place out near Goose Creek. Arthur Godfrey had a place out there, and there's a wonderful golf course. We played golf out there. One day during a golf game [Laws] said to me, "Luther, Rover has been to see me, and he said the Department of Justice wants to dismiss that entire"—this was after the second appeal, where they split 4-4, on this two-count indictment—"the Justice Department wants to dismiss that entire case, only they're afraid you'll come out with another barn-burning order." I said, "If they want to come in and dismiss it I'll be a good boy and grant the dismissal and adjourn court in a hurry." So Rover came in one morning, moved to dismiss, and I said, "Motion granted." And I got off the court, almost ran off the bench. That was the end of that.[67]
Actually, Youngdahl said more than that. The official notation reads, "Government's oral motion for leave to dismiss the remaining counts of this indictment is by Court granted; dismissal entered; Defendant discharged."[68]
It was time. There had never been a case against Lattimore. William C. Sullivan, at one time number three man in the FBI, says in his memoirs:
The dangerous threat of Communism was, of course, one of Hoover's obsessions. During the Eisenhower years the FBI kept Joe McCarthy in business. Senator McCarthy stated publicly that there were Communists working for the State Department. We gave McCarthy all we had, but all we had were fragments, nothing could prove his accusations. For a while, though, the accusations were enough to keep McCarthy in the headlines. One of his major targets was a State Department employee
[sic ] named Owen Lattimore who McCarthy thought was an important Soviet agent, and a lot of government money was spent on digging through FBI files for evidence to prove it. We investigated the hell out of Lattimore, read every letter and memo, everything he ever wrote, but we never found anything substantial to use against him. McCarthy's accusations were ridiculous.[69]
Roy Cohn, of course, never saw it that way. In my interview with him in December 1979 he argued that only a subversive judge kept Lattimore from his due:
Cohn: I never had the opportunity of legally defending that indictment in District Court. It was dismissed on a bunch of technicalities.
Newman: Why did that prosecution fail?
Cohn: That prosecution never failed because it never happened. When a judge throws out something on a technicality, I don't consider a prosecution failing.[70]
Warren Olney, looking back on the case from the perspective of the 1970s, thought the case could have been handled better. Even though it was weak, the government should have been more sophisticated. Olney was particularly unhappy about Rover's affidavit of bias: "To our consternation, Leo got so incensed at this adverse ruling that he made a very unwise blast at the judge in public. It got into the papers, and it was very embarrassing to us to have that happen. Of course, it made the judge furious, and his fellow judges also. It was disastrous for Leo himself. . . . He undoubtedly would have been a district court judge if he hadn't blown his stack and fired off at the judge when he shouldn't have."[71]
Roger Kennedy, again writing as "Brian Gilbert" in the New Republic , deserves the last word on the dismissal of the Lattimore case. He reviewed the poisonous climate of the times, the excesses of the congressional investigators, the dubious efforts of the government to use perjury as a vehicle to repress dissent, the brazen effort to intimidate the courts, and the need to preserve freedom of speech. His conclusion:
There is another, and more serious lesson: we cannot afford another Lattimore case. Certainly no other private litigant will be likely to find a law firm like Arnold, Fortas and Porter which will take such a case without fee. (Time charges for an "ordinary litigant" by such a firm would run close to $250,000.) But in a broader sense, the cost has been too high. The perjury case against Lattimore grew out of a political
prosecution. It was forwarded by improper political pressure upon the Justice Department, upon the press (represented by the magazine Pacific Affairs ) and, of course, upon the Judiciary. Luther Youngdahl, practicing constitutionalist and Christian, fierce defender of the rights of heretics, sat firm upon the bench and fought off a berserk attack upon the integrity of our judicial system. Now, finally, the attackers seem a little ashamed, as they wipe their eyes and feel the passing of the fever in whose grip they did so much that was ignoble. Luther Youngdahl has won his fight; and so have we, and liberty.[72]
When Brownell announced the end of the prosecution, Owen and Eleanor Lattimore were in Sweden, visiting one of their friends from the 1930s at a cottage in the country. They returned to their Stockholm hotel the evening of June 28, 1955. The telephone rang, and a "very Swedish voice" told them the news just in from Washington. They had not expected it so soon.
They telephoned several friends in Stockholm hoping to find someone to help them celebrate. No one was at home. As Lattimore wrote Joseph O'Mahoney, "We went to a hotel balcony overlooking an arm of the harbor and ordered champagne and smoked salmon and smoked reindeer, and drank a toast to all the many people without whom we'd never have survived."[73]
The rest of their European tour was one long celebration. European intellectuals had never understood the Lattimore prosecution. They had read Lattimore, many knew him personally, and they believed him to be a loyal American and capitalist to the core. They did not think him a liar. The Lattimores spent July and August in England, where he lectured to appreciative crowds at Oxford, London, and elsewhere. Then they attended the history congress in Rome and headed back to America.