The
Reinstatement of
Alger Hiss |
This
previously unpublished article was written in 1975.
By
Maurice deG. Ford
At
nine on the morning of May 9, 1975, the Supreme Judicial Court
of Massachusetts heard oral argument on the petition of Alger
Hiss for readmission to the bar. Twenty-five years had elapsed
since his conviction of perjury on the testimony of Whittaker
Chambers at the height of the McCarthy era. The Hiss case
had been the vehicle which Richard Nixon, then a young member
of the House Committee on Un-American Activities, had used
to gain national prominence. Now the era is different and
events seem to have come full circle. Former President Nixon
rests in disgrace within the seclusion of San Clemente. Alger
Hiss's application for reinstatement at the bar gives the
Massachusetts Supreme Judicial Court, and us, a chance to
reflect on the Red Scare of the McCarthy era and on where
we have come as a nation. It may also be an opportunity to
redress, in some measure; a grievous individual injustice.
Not
that the question before the court is cast in such encompassing,
global terms. The Supreme Judicial Court of Massachusetts
is not the forum to retry, or even review, Alger Hiss's original
conviction. That matter was settled, at least legally, when
the Supreme Court of the United States declined to grant certiorari
in 1951. Nor will the McCarthy era, as a whole, be on trial.
Courts, and this is perhaps their strength, deal with much
more concrete, narrowly defined cases and controversies. The
precise issue before the Massachusetts Supreme Judicial Court
is whether, under Section 18(4) of Rule 4:01 (relating to
reinstatement) Alger Hiss can now meet "the burden of
demonstrating that he has the moral qualification competency
and learning in law required for admission to practice law
in [the] Commonwealth, and that his resumption of the practice
will not be detrimental to the integrity and standing of the
bar, the administration of justice or to the public interest."
Alger
Hiss originally submitted his application for reinstatement
in early November, 1974, two and one-half months after President
Nixon had lifted off, for the last time, from the White House
lawn. He is now 70 years old. His affidavit, accompanying
the application, recounts a distinguished career - membership
on the Harvard Law Review, selection, upon graduation from
Harvard Law School in 1929, as law secretary to Justice Oliver
Wendell Holmes of the United States Supreme Court, employment
by the eminent old Boston law firm of Choate, Hall and Stewart
and by an equally prestigious New York firm. In the early
and middle 30s, he served in a number of positions in the
Roosevelt Administration, including a stint on the staff of
then Solicitor General (and later Supreme Court Justice) Stanley
Reed, one of the most sought-after legal opportunities open
to a bright young man.
This
was followed by ten years in the State Department. He was
with President Roosevelt at Yalta and instrumental in the
founding of the United Nations. In 1946, he was elected President
of the Carnegie Endowment for International Peace (of which
John Foster Dulles was then Chairman of the Board). He retained
this post until his indictment on two counts of perjury before
the grand jury. After a hung jury in his first trial, Hiss
was convicted and sentenced to Lewisburg federal penitentiary,
where he served from March, 1951 to November, 1954.
Along
with the ordeal of Julius and Ethel Rosenberg, the trial of
Alger Hiss was perhaps the most sensational event of the McCarthy
period. There is little need to recount it here. Most of us
remember the accusations of Whittaker Chambers, who testified
that while employed by the State Department, Hiss had passed
Chambers (alias George Crosley) secret government documents
when both were underground members of the Communist Party.
Microfilmed copies of some of these documents were produced,
almost magically, out of the famous pumpkin on the Chambers
farm; other copies in Chambers' possession had allegedly been
done on a Woodstock typewriter belonging to Mr. and Mrs. Hiss
(although the latter protested that the typewriter had been
out of their possession at the time). And we remember the
waffling testimony of Alger Hiss's superior at the Carnegie
Endowment (shortly to be Eisenhower's Secretary of State),
John Foster Dulles.
Following
his conviction, and solely because of it, Alger Hiss was disbarred
from practicing in Massachusetts, New York and before the
Supreme Court of the United States. Hiss's responses to the
reinstatement questionnaire, accompanying his application,
set forth, perhaps more dramatically than any other document,
the sharp decline of his fortunes since his release from Lewisburg
penitentiary: work for a manufacturer of women's hair accessories,
15 years spent as a salesman of office supplies and printing
on commissions that amounted to no more than $6,000 to $12,000
annually, supplemented, recently, by a small amount for speaking
and writing. Even more saddening have been a marital separation,
which occurred shortly after his release from jail, and years
of living alone and isolated in rented rooms, mainly in Greenwich
Village.
Yet,
as his friend, Eli Whitney Debevoise (a founding partner in
what is now one of New York City's most distinguished law
firms) puts it in his own affidavit on behalf of Alger Hiss's
readmission to the bar, the years since Hiss's conviction,
despite financial impoverishment and personal loneliness,
have not been without their indications of character and even
greatness as a man. "During the period since his release
from prison," Debevoise writes, "[Alger Hiss's]
manner of life, including his acceptance of a job available
to him as a way of earning his living in a field much less
interesting or demanding on his intellectual powers than the
positions he had prior to his conviction and his steadiness
in sticking to it...show moral stamina and moral qualities
which are important requisites in the practice of law. He
has not lost a broad interest in other matters and in current
events and continues to be an unusually able and intelligent
man." His life has been exemplary, free from arrests
or convictions, save one, as his reply to the reinstatement
questionnaire notes poignantly:
In
1955, I was fined $5.00 in a Magistrates Court in New York
City for playing catch with a baseball with my son in Washington
Square Park.
Shortly after the submission of his application for readmission
to the Massachusetts bar, the Supreme Judicial Court ordered
that the state's Board of Bar Overseers hold a preliminary
hearing and present a report to it on the Hiss case. After
examining Alger Hiss personally and sifting through evidence
on his behalf (including strong support from Ervin Griswald,
former Dean of the Harvard Law School and Solicitor General
of the United States, and retired Supreme Court Justice Stanley
Reed, the Board of Bar Overseers admitted:
We
find that he has courageously and industriously set himself
to earn an honest living and to support his family, without
bewailing the financial loss caused by his conviction and
disbarrment. We find that he is well regarded in... business...and
enjoys there an excellent reputation for honesty and integrity...
The
Board of Bar Overseers likewise noted that Alger Hiss has
continued to try to make an intellectual contribution:
Mr. Hiss has also, since his release from prison,
lectured...at many American schools, colleges and universities,
and conducted seminars at some of them. Audiences at Harvard,
Princeton, Weslyan... .New School for Social Research, University
of Virginia and Johns Hopkins [Hiss's alma mater] have heard
him. And Mr. Hiss has made three trips to England for similar
purposes. He has authored at least two books, and has written
book reviews for legal periodicals. He edited, at the request
of the late Professor Mark deWolfe Howe of Harvard, an abridged
edition of the Holmes-Laski correspondence. His lecture
subject matter, as well as that of his writings, generally
has not been his own misfortunes or conviction, but has
related to the United Nations and to American foreign policy.
Mr.
Hiss has supported and educated a child of his own and a
stepson, and, although presently separated from his wife,
we find that he has been a good family man.
While
refraining from its practice, Mr. Hiss has remained interested
in the law. Many of his closer friends are lawyers with
whom he has continued to discuss legal affairs and developments
on an informed but informal basis.
He
shows no bitterness toward those who were involved in his
trial, and he accepts the American judicial system as the
best, although he feels that he, personally, is the victim
of a miscarriage of justice.
Despite
these findings, the Board of Bar Overseers unanimously felt
forced to conclude that "Mr. Hiss's readmission to the
Bar would have an adverse effect on the administration of
justice, the public interest and the standing of the Bar"
and recommended that the Massachusetts Supreme Judicial Court
not reinstate him. The reasons for this perplexing negative
recommendation appear to rest primarily on the Board's interpretation
of previous decisions of the Supreme Judicial Court relating
to the readmission of attorneys.
The
Board of Bar Overseers believed that its recommendation against
readmission was compelled by a 1943 Massachusetts decision
relating to a lawyer by the name of Keenan. Keenan had been
disbarred as the result of an investigation into public complaints
of widespread corruption at the bar and had been found guilty
of bribing jurors. Five years after his disbarrment, Keenan
applied for readmission. More than 60 lawyers, judges and
friends testified that, save for this one conviction, his
conduct was highly ethical. Nonetheless, the Supreme Judicial
Court concluded that Keenan's conviction of bribing jurors
was evidence of the most convincing kind, militating against
reinstatement and that to overcome that evidence "require[d]
little less than absolute assurance of a complete change of
moral character" or "guarantee against the repetition
of the corrupt conduct." Since Keenan had continued to
protest his innocence of the bribery charge at the time he
applied for reinstatement, the Court felt it did not have
the requisite assurance that he would not commit a similar
crime again.
Since
the time of his indictment on the perjury charges levied against
him by Whittaker Chambers, Alger Hiss has maintained his innocence.
He has continued to assert his innocence in the proceedings
for reinstatement, saying, at the hearing before the Board:
"I have not had any complete change in moral character.
I am the same person I have been, I believe, throughout my
life." The Board did not feel able to reopen or question
the justness of Hiss's original conviction, especially since
the major witness against him, Whittaker Chambers, was deceased
("It is surely not for the Board, as the petitioner suggests,
to determine whether or not, in view of the political atmosphere
of the so-called "McCarthy era," the verdict of
the jury may be regarded as so suspect that we may disregard
it or minimize it." And, since the verdict, accordingly,
stood and since Hiss refused to recant, the Board found no
way, according to its interpretation of the Keenan case, to
find him of the requisite moral character for readmission:
Accepting,
then, the finality of the judgment and of the verdict in
Mr. Hiss's case, it follows logically that, even admitting
the possibility of a failure of justice, the petitioner
cannot show that he repents or has reformed so long as he
continues to insist on his innocence. Strict application
of logical principles might, in fact, lead to the conclusion
that the petitioner gives evidence of his present lack of
moral character when he again testifies to his innocence
of the original charge, in the face of a conviction which
this Board, for the purposes of its deliberations must accept
as establishing the fact of his guilt.
The
Board of Bar Overseers admitted that, "if it were free
to consider the matter in the absence of the only evidence
to the contrary (the conviction), [the Board would] unanimously
find that Mr. Hiss is presently of good moral character and
that he would almost certainly not commit any serious crime
if readmitted to the bar." And it agreed that "[t]he
logic stated may sound mechanistic - at least syllogistic...."
Nonetheless the Board expressed its belief that it was "bound
to approach this problem in the manner indicated."
The
Board of Bar Overseers report to the Supreme Judicial Court
in the Hiss case is rife with ambivalence ("Our personal
sympathy for Mr. Hiss, his, upright and persuasive bearing,
humility and reasonableness, cannot, as we see the facts,
warrant a finding of present good character when such a conviction
remains in the balance so long as we are legally unable to
consider its correctness...."). The Board seems to be
pleading for some release from its "mechanistic - at
least syllogistic" - logic. And, at the end of its report,
it appeared almost to beg the Supreme Judicial Court to prevent
the Board from being a modern-day Pontius Pilate:
We
believe ourselves bound by the decisions of this Court to
make the findings above set forth. We believe that this case
may presently call into question our interpretation and application
of the stated principles of law on which the Board relies.
We believe that the reconsideration of those principles,
if appropriate, is not a matter for our action. (Emphasis
supplied).
It thus became particularly interesting to see how Massachusetts's
highest court would handle the matter.
Oral
Argument Before the Supreme Judicial Court
The paneled courtroom in which the Supreme Judicial Court
of Massachusetts sits contains just two portraits. One of
them is Justice Oliver Wendell Holmes, Jr., for whom Alger
Hiss had clerked in 1929‹30. The stern countenance of his
old mentor peered down at him as Alger Hiss arrived at the
oral argument in his case on May 9th He was present "as
a spectator only," but held himself available to speak
to the justices if they so requested. "Look who's up
there on the wall," exclaimed his son, Anthony Hiss,
a staff writer for the New Yorker, nudging his father.
The elder Hiss, glancing up at Holmes's handlebar mustache,
replied, "I'm so pleased to look up there and see him
looking exactly as I remember him."
Although
he is now seventy, the years have treated Alger Hiss kindly.
He appeared as lean as he was when a young man, impeccably
dressed in a grey, three-piece suit. The courtroom was crowded,
although not as many old friends were present as one might
wish. Alger Hiss was still somewhat alone. Anthony Hiss, who
is now writing a book about his father tentatively entitled
"He Who Laughs Last," recalled the traumatic events
of his childhood: "I was scared.... These big guys were
coming and taking Dad away." Apparently referring to
Whittaker Chambers, Tony Hiss noted: "Back then, if you
said something hysterical, you got taken seriously."
And he had obvious affection for his father and sensed what
a difference readmission to the bar might make in the latter's
life - and not only symbolically. "He loves the law and
finds it as exciting and stimulating as ever. He can certainly
use the money. He makes $5,000 in a bad year and $8,000 in
a good year."
The
attorney who presented the oral argument on behalf of Alger
Hiss was John F. Groden. But past legal figures in Mr. Hiss's
life were not forgotten. On the brief with Mr. Groden was
Harold Rosenwald, Esq., Alger Hiss's lawyer in his second
jury trial and the appellate proceedings which followed it,
whom even the unfavorable Board of Bar Overseers report characterized
"with affection, as dedicated, gifted beyond the capacity
of most advocates, persuasive and persistent." Harold
Rosenwald wanted to be with him this time as well. Although
they did not appear to be present in the courtroom, there
were old friends, themselves eminent in the law, who had stood
by him in the many lean years and wanted to come forth for
him as references now - Richard Wait, a partner in Choate,
Hall and Stewart, and colleague in their early years, Professors
Richard Field and Victor Brudney of the Harvard Law School
and Robert B. von Mehren, Esq., a partner in the Debevoise
firm in New York City.
At
the beginning of oral argument, John Groden, Mr. Hiss's attorney,
asked the seven justices of the Supreme Judicial Court to
focus on what he considered the most relevant question: "What
is the moral character of Alger Hiss right now?" He distinguished
away the Keenan case, upon which the Board of Bar Overseers
had felt compelled to rely so heavily, by noting that 22 years
of "exemplary behavior" had elapsed between Alger
Hiss's disbarrment and petition for reinstatement, contrasting
with only five in Keenan's situation. Whereas the court has
found that there was "no certainty that.... Keenan would
not again fall a victim to the same weakness that was his
first undoing," the Board of Bar Overseers had concluded,
in contrast, Alger Hiss "would almost certainly not commit
any serious crime if readmitted to the bar."
The
moving party for Hiss's initial disbarrment in Massachusetts
in 1952 had been the Boston Bar Association. When he filed
his petition for readmission in November, 1974, the Board
of Bar Overseers asked the Boston Bar Association if it now
wished to express any views on the matter. The President of
the Boston Bar Association, Edward J. Barshak, replied, in
a detailed letter which Mr. Groden asked permission to read
to the full bench:
Chairman
Board of Bar Overseers
294 Washington Street
Boston, Mass.
Re: Application of Alger Hiss
Dear Mr. Heserve:
On
December 17, 1974, notice was sent to all members of the Council
of the Boston Bar Association and to all former presidents
of the Association of a special meeting to be held on December
23 concerning the application of Alger Hiss....
At
the December 23 meeting of the Council, Mr. Hiss appeared
with counsel. He was questioned fully by members of the Council.
After deliberations, the Council voted that I should communicate
with the Board of Bar Overseers, in favor of the application,
as follows:
It
is the opinion of the Council of the Boston Bar Association
that Mr. Hiss's "resumption of the practice of law will
not be detrimental to the integrity and standing of the bar,
the administration of justice, or to the public interest."
(S.J.C. Rule 4:01, Section 18(4) ).
In
addition to the actual vote, set forth above, I think I should
convey some information about the meeting and deliberations....
The attendance at the meeting was the largest I have ever
seen. There was much discussion among the members of their
individual views for voting in favor of Mr. Hiss, but it was
decided to limit the actual vote as set forth above [t]here
were no arguments presented against Mr. Hiss or his application.
Respectfully
submitted,
Edward
J. Barshak
Although
it did not take part in the oral argument, the Boston Bar
Association also submitted a friend-of-the-court (amicus curiae)
brief on Alger Hiss's behalf.
Finally,
Mr. Groden called the justices's attention to a 1974 decision
of the Maryland Supreme Court in which it had decided to reinstate
Maurice L. Braverman as a lawyer 19 years after his disbarrment
for being convicted also in the McCarthy era, of a conspiracy
to teach and advocate the violent overthrow of the government
in violation of the old Smith Act. Braverman, like Hiss, had
refused to recant. Addressing this issue, a panel of judges
(the Maryland counterpart to the Board of Bar Overseers),
reporting to the Maryland Supreme Court, concluded:
As
to Petitioner's reformation, the Baltimore Bar Association
raises the philosophical question of how petitioner has
proven his reformation when he refuses to recognize the
existence of any misconduct from which to reform. Since
petitioner is adamant in his belief in his innocence, he
is consistent in not expressing any repentance. While he
seems to hinder his cause by not taking what may be the
easier way of confession and contrition, the intellectual
honesty of his position must be recognized. Reform has been
defined as: to change from worse to better, to bring from
a bad to a good state. We believe petitioner has demonstrated
his reformation without an expression of contrition from
him.
Groden
argued that the Massachusetts court should apply the reasoning
of the Braverman decision to the Hiss case.
Following
Mr. Groden's argument, which was uninterrupted by questions,
Bar Counsel Robert DeGiacomo rose to present the opposition
of the Board of Bar Overseers. If the Board of Bar Overseers
was ambivalent about Alger Hiss's reinstatement, Mr. DeGiacomo
was even more so. He differed from the Board on its interpretation
that the Keenan case made public recantation an absolute requirement
of readmission to the bar. "The implications of political
justice," he said, "together with the requirements
of a loss of basic human dignity which are implicit in such
a demand in this case would serve no purpose. This Court and
this political system need no such affirmation." Clearly
Mr. DeGiacomo had in mind other political systems which insisted
on extracting confessions despite protestations of innocence,
and he did not want any state in the United States to imitate
such a system.
Mr.
DeGiacomo did argue, however, that perjury, particularly in
the context of espionage, was so serious an offense - and
went so centrally to the issue of what it means to be an attorney
that conviction of it should forever bar reinstatement. He
agreed that Alger Hiss had suffered greatly, but argued, quoting
the language of the Keenan decision, that "the true test
must always be the public welfare. Where any clash of interest
occurs, whatever is good for the individual must give way
to whatever tends to the security and advancement of the public
justice."
Mr.
DeGiacomo - and his sincerity was evident - was concerned
that Alger Hiss had violated his most sacred trust - the oath
which all newly admitted members of the bar in Massachusetts
take, by which they "solemnly swear that [they] will
do no falsehood, nor consent to the doing of any in court...."
Having once broken his solemn oath, Mr. Hiss should not be
allowed to take it again. If the profession contained former
convicted perjurers, there would always be in the minds of
many of the public "a doubt, a fear." To add strength
to his argument, Bar Counsel DeGiacomo drew on the part of
St. Thomas Aquinas's Summa Theologica entitled Of the Recovery
of Virtue by Means of Penance, which distinguished the public
wrongdoer, like Hiss, and the more private sinner:
Those
who have been publicly convicted or caught in the act of
perjury, ... and of such like crimes, according to the prescription
of the sacred canons must be deprived of the exercise of
their respective orders, because it is a scandal to God's
people that such persons be placed over them. If... the
aforesaid crimes are not proved by judicial process, or
in some other way made notorious, those who are guilty of
them must not be hindered, after they have done penance,
from exercising the orders they have received or from receiving
further orders....
It almost brought one back to the days when the Massachusetts
Bay Colony was a theocracy!
To
underscore his point that the members of the bar must regulate
themselves according to the strictest standards in order to
be thought above reproach by the public, Robert DeGiacomo
chose to close his presentation with a quotation from a speech
the old mentor, Justice Oliver Wendell Holmes, Jr. made to
the Suffolk County Bar Association dinner in Boston on February
5, 1885:
The
law is made by the Bar, even more than by the Bench; yet
do I need to speak of the learning and varied gifts that
have given the bar of this State a reputation throughout
the whole domain of the common law? I think I need not,
nor of its high and scrupulous honor. The world has its
fling at lawyers sometimes, but its very denial is an admission.
It feels, what I believe to be the truth, that of all secular
professions this has the highest standards.
This
prompted a friend to whisper to Hiss: "That's a double
whammy." Hiss nodded, but said nothing.
The
justices had not asked Mr. Groden any questions from the bench,
but Mr. DeGiacomo was not to escape so lightly. Justice Paul
Reardon wondered whether it was "proper to ask whether
there is any instance in which jury verdicts might be mistaken?"
DeGiacomo replied: "Indeed, juries are fallible and they
do make mistakes. Chief Justice G. Joseph Tauro inquired:
"Is there anything in the record in the past twenty five
years which would support the fact that Hiss was guilty of
espionage. DeGiacomo again replied, I sensed with a twinge
of relief: "I know of nothing, your honor. Since his
conviction, he has conducted himself as an honorable man.
In his modest station, ., he has been a credit to society.
There is no question about that." And, again, just after
DeGiacomo had finished with his final quotation from Justice
Oliver Wendell Holmes, Jr., Chief Justice Tauro called attention
to the fact that the Boston Bar Association, in its efforts
at self regulation, had had quite a different opinion than
the Board of Bar Overseers about who would be a credit to
the profession.
Although
it is always risky to try to predict the outcome of a case
by the questions asked by the justices (sometimes they will
give the side they most favor the toughest time), many of
Hiss's sympathizers, as they emerged from the courtroom, seemed
optimistic. Alger Hiss, himself, appeared almost buoyant.
But with typical lawyerlike caution, he declined to comment
on a pending case in which he was intimately involved and
felt it "inappropriate" to answer many questions.
But he did venture one prediction (which proved correct);
"I'm going to the Celtics game tonight, and I don't think
it will be the final game of the series."
On
August 5, the Court ruled unanimously in favor of reinstating
Hiss to the Massachusetts bar.
Maurice
deG. Ford is a member of the Massachusetts bar.
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