By Stephen Jones

From the Oklahoma Law Review, 1978

In 1948, Whittaker Chambers, a former Communist spy, perjurer, homosexual, and senior editor of Time magazine. stated under oath before the House Un-American Activities Committee that Alger Hiss, a graduate of Johns-Hopkins University and the Harvard Law School, a law clerk for Justice Oliver Wendell Holmes, a New Deal brain truster, a confidant of Dean Acheson, a friend of John Foster Dulles, an adviser to President Roosevelt at Yalta, the Secretary General of the United Nations organization conference at San Francisco, and the then President of the Carnegie Endowment for International Peace, was a Communist. Mr. Hiss denied under oath that he knew a man by the name of Whittaker Chambers, and denied that he was then or ever had been a Communist, or that he had given State Department documents to Chambers [ed. note: Hiss made the latter denial before the grand jury in December 1948.]

Chambers repeated his allegations in an unprivileged forum (i.e., the radio program, Meet The Press), and Hiss sued for slander. To support his charges, Chambers produced four notes concerning State Department matters in Hiss's handwriting, microfilmed copies of government papers, and State Department cables typed, allegedly, on a typewriter owned by Hiss. Chambers swore that he had received this material from Hiss while he, Chambers, was the head of a Washington espionage cell for the Communist Party. Hiss, Chambers claimed, was one of his confidential sources of information. Hiss was subsequently indicted for perjury for allegedly falsely testifying when he denied, in substance, that he knew Chambers or that he had passed State Department documents to him.

The problems of the Hiss defense in 1949-1950 were threefold: First, the case was tried in the worst possible political atmosphere (Soviet-American relations were strained, the Russians now possessed the atom bomb, and the Smith Act and Judith Coplon trials were in progress). Second, there were certain interesting things about the membership of the second jury which probably made them prejudiced against Hiss, a fact which was unknown to the defense at the time of jury selection. Most damaging, however, was the fact that the defense floundered on the issue of how Chambers had received documents in Hiss's handwriting and typed on the Hiss typewriter. If the Hiss defense knew then what it knows today, their client might well have been acquitted.

Hiss assumed that forgery by typewriter was impossible. In fact, it isn't and it wasn't then. However, other significant information emerged from the release of FBI documents in the early 1970s that seriously undermined much of the value of the typewritten documents.

Hiss claimed that the handwritten notes had been used by him to brief his superiors, either in writing or orally, a fact which was confirmed by superiors Stanley Hornbeck and Francis Sayre. Hiss claimed his memos could have been stolen from his desk at the State Department, and at least one State Department witness testified as to having gone into Hiss's office in his absence without interruption from anyone. The confusion over handling of documents in Hiss's office which presented the very real possibility that someone with a State Department pass could have stolen the documents, is nowhere better emphasized than in the conflicting and confusing testimony regarding procedures in the Sayre and Hiss offices, given by the two men and their two secretaries. Since Chambers admitted that he had at least one other contact at the Department other than Hiss, i.e. Wadleigh, the possibility that still others could have stolen the documents is heightened. Two of the documents, according to routing slips, were never in Sayre's office, and one was not even typed on the Hiss typewriter according to FBI analysis.

The controversy involving the Hiss typewriter, upon which some of the documents were allegedly typed, is too great to treat here. Suffice it to say that the strongest point in Hiss's favor is that the typewritten documents in question were typed after January 1938, and the last document the prosecution found typed on the machine by anyone in the Hiss family was dated May 25, 1937. The possibility that Chambers stole or borrowed the machine, with or without tile knowledge of the Hiss family, and used it to type stolen documents is thus clear. Chambers could then have easily later returned the machine.

Would a jury convict Hiss today if it heard the same evidence again, but this time supplemented by the witnesses' affidavits which were attached to the Second Motion for New Trial? (The motion was disposed of without a formal evidentiary hearing.) Or, would Hiss have been found guilty had he not been tried in the atmosphere of 1950 while the Coplon and Smith Act trials were underway? The answer is difficult to forecast and would be speculative at best. However, this much we know: The first trial ended in a hung jury with four jury members voting for acquittal; the trial judge had serious reservations about Chambers' veracity; and at least two Justices of the United States Supreme Court felt certiori should he granted. According to Justice Douglas, they felt that reversal was dictated by the Court's decision in Weller v. United States because the evidence did not rise to the dignity of independent proof of facts inconsistent with the innocence of the accused.

The first trial resulted in a hung jury, but the second jury convicted Hiss and his appeals were denied. He served approximately 44 months in prison. The case invaluably assisted Richard M. Nixon in his political career because it was Mr. Nixon more than anyone else on the Committee who supported Chambers and dogged Hiss.

As may be expected from this recitation, the case has not only legal but also political significance. It was conceived in controversy and the passage of thirty years' time has not abated public interest. Hiss has continuously maintained his innocence and has emerged as something of a folk hero to those of a more liberal persuasion who see Hiss as Nixon's first victim. Indeed, he recently has been readmitted to the Bar in Massachusetts, in part because of his rehabilitation.

Numerous books have appeared before "Perjury," but all of them, with the possible exception of the remarkable volume, "The Strange Case of Alger Hiss," by The Earl Jowitt, some-time Lord Chancellor of Great Britain, are hardly more than briefs for the particular viewpoint of the author on the guilt or innocence of Mr. Hiss.

Admittedly, the author has written a fascinating, important, but essentially erroneous book. Mr. Weinstein concludes that Alger Hiss was guilty of perjury as charged and probably guilty of other crimes. The book is fascinating because it offers new information about Chambers and Hiss. However, because of its claim to serious historical scholarship and because of the controversy its publication has generated, it is fair to measure the book's scholarship and the author's conclusion by certain standards. I have chosen four. First, is the book objective? Second, is it accurate? Third, is the treatment of the subject and persons involved consistent? Fourth, is the method of analysis sound?

Is the book objective? "Perjury" was represented in its pre-release puffs as an objective and fairly documented tract, written by a professional historian who began his research believing in Hiss's innocence, but who eventually reached the conclusion that he was guilty as charged. His supposed objectivity has won favorable reviews, indeed, laudatory praise, from the New York Review of Books and The Washington Post. The Post outdid itself with a particularly savage cartoon of Mr. Hiss alongside the review of Mr. Weinstein's book. To put it mildly, both the Review and the Post were taken in, as have been a number of other people, by the "objectivity'' of the book.

What should have alerted any serious student attempting to judge the merits of Weinstein's case impartially was the oft repeated assertion that Mr. Weinstein began by believing in Hiss's innocence, but that he was forced to change his mind after he read selected FBI documents which he secured as the result of a Freedom of Information suit against the Department of Justice. The important consideration to remember however, is that a professional historian began with a bias; that alone should be enough to raise serious suspicions as to his objectivity, especially on something so historically recent as a trial only three decades old. Second, it is important to remember that Mr. Weinstein has not examined all of the FBI documents, Department of Justice files, or the work papers of the prosector. The Hiss defense files, on the other hand, were opened completely to Mr. Weinstein.

Is the book accurate? While a small point to he sure, Congressman Charles Kersten was not Mr. Nixon's "Democratic colleague" as Weinstein asserts but was in fact a Republican. The mistake is not important, except that it indicates sloppy proofreading or verification. A more significant point and one which is perhaps indicative of the author's shifting of facts occurs at page 41 of his book. There he describes the Cherner Motor Company of Washington as the District's "largest auto dealership." Yet, on May 27, 1976, in a reply to his critics in the New York Review of Books, Mr. Weinstein disputed David Levin's characterization of the automobile dealership as being the largest Ford agency in Washington. Obviously, if Cherner is the largest auto dealer in Washington, as Weinstein claims, it certainly also has to be the largest Ford dealer, as Levin argued and Weinstein denied. The actual ranking of Cherner's is, of course, of no importance, although the transaction involved was of some central importance to the case. The significance of the incident is grounded in what it tells us about the author's methodology.

Is the material treated in a consistent manner? I submit that it is not. For example, Weinstein has no use for the psychological studies of Chambers by Doctors Meyer Zeligs and Carl Binger, yet quotes with approval similar studies of Richard Nixon by David Abrahamsen. Further, at page 277, Hiss is losing John Foster Dulles, "once his strongest supporter" when throughout the book Weinstein has portrayed Dulles as lukewarm toward Hiss, and in any event he was never Hiss's "strongest supporter." In addition, the footnote on page 317 which claims that a man by the name of Sidney Hook did not know Chambers during he period of his defection cannot be reconciled with the statement on page 321 that Chambers did, in fact, know Hook.

Is the analysis objective? The answer is no and upon that conclusion, if accurate his determination that Hiss was guilty fails. Weinstein's whole approach is prosecutorial. Indeed, perhaps as much as 90 per cent of what he has offered as evidence would not he admissible in any court, and for good reason; it is mostly hearsay, opinion, gossip, and supposition. That which is truly evidence is, in almost every case, susceptible to different interpretations. In Weinstein's mind, though, any inconsistency by Hiss is evidence of perjury, but similar inconsistencies by Mr. Chambers, even when made under oath, are repeatedly dismissed as of no particular importance. In fact, the evidence of Hiss's innocence is presented by Weinstein himself if one will read critically pages 216 through 228 of the book. Weinstein's word-blending of facts, which obviously undercut his whole thesis, is disappointing.

It is not my role to determine who is telling the truth - Chambers or Hiss. The jury chose Chambers, and their verdict stands as a legal statement unless, of course, there is evidence to impeach it. What I believe is a reasonable inquiry is whether now, in judging the evidence we can say that Hiss was guilty beyond a reasonable doubt. I admit the question is largely one of perspective. I believe that the microfilmed documents, together with the typed and handwritten notes, do not prove Hiss guilty, unless one believes Chambers. How can one believe a man who lied so thoroughly before so many forums on so many different aspects of the case, prior to his testimony at trial, and whose character had been so thoroughly impeached? Isn't it of some importance that Chambers stated sixteen times, under oath, that Hiss was not involved in espionage? Is it not of some significance that Chambers never leveled his accusations against Hiss concerning espionage until Hiss sued Chambers for slander? As pointed out earlier, the judge at the first trial, Samuel H. Kaufman, found nineteen very substantial discrepancies in Chambers' testimony at trial and before the Grand Jury. Admittedly, Hiss was not completely candid, but at least his fuzziness on some points is understandable, or if not understandable, at least defensible or explainable. But to explain away Chambers' inconsistent testimony at the Committee hearing, before the Grand Jury, at the trials as being the result of some still lingering respect on his part for Alger Hiss, as the author does at page 245, is to attempt to make a connection which strains credulity.

Weinstein does, however, perform a useful service in one respect. We now know how zealous the FBI was in tracking Hiss and preparing the government's case. At the request of the prosecutor, Thomas Murphy (later a federal judge), the FBI attempted to locate copies of federal income tax returns of two experts consulted by the defense (p. 410). Also, the contents of FBI reports on Hiss were leaked to Father John Cronin who was preparing a report for Catholic bishops on communism in America (p. 347). Finally, the defense investigator, Horace W. Schmahl, may have cooperated with the FBI and told them of the defense strategy and investigation, according to evidence cited by Weinstein.

Alger Hiss is certainly not Weinstein's only villain. Weinstein also impugns Richard Nixon. Mr Nixon, we are told, completely distorted his own role in the case for political gain. The conviction cannot be escaped that the gratuitous attacks on Mr. Nixon (which, after all, are unrelated to the issue of guilt or innocence of Hiss) were nothing more than a questionable attempt by the author to appease "liberal" reviewers of his book who might be upset at the author's conclusion that Hiss was guilty (when so many of them had argued his innocence). It appears that Weinstein was relying on the fact that reviewers would applaud his finding that Mr. Nixon was playing dirty tricks with his opponents as far back as three decades. Regretfully, such a tactic may have paid handsome dividends, especially in the Review and Post articles.

Perhaps the greatest fault in Mr. Weinstein's evaluation is in his gratuitous comments on several occasions that some of Mr. Hiss's attorneys believed him guilty. Little could be more damaging to an individual fighting for vindication than the allegation that his own lawyers thought him guilty, even as they made a spirited defense. The author cites riot a single shred of evidence; not a comment, letter, telegram, or anything else for support of such a conclusion, Indeed, the objective facts show that Weinstein's charge cannot be true. Mr. Hiss was served by devoted and resourceful counsel, who ably represented him and who continued to assist him long after the trials, appeals, and funds had run out. One such attorney still represents him thirty years later. Another, Claude Cross, shortly before his death, filed a formal application for Mr Hiss's readmission to the Massachusetts Bar. Lloyd Paul Stryker and his aides, who defended Hiss at the first trial, are on record as personally believing in Hiss's innocence.

Someday, someone will write the definitive book on the Alger Hiss case with an objective treatment of all of the evidence presented (as well as that excluded and found later), but that book most assuredly has not been written by Allen Weinstein.

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