a member of the Communist Party,” Lamont vigorously attacked the
subcommittee’s jurisdiction. As far as he was concerned, McCarthy
had no power to inquire into his “personal and private affairs.” Not
only was this prohibited by the Constitution’s First Amendment, but
no statute or Senate rule gave the Permanent Subcommittee the right
to question a private citizen as to his “personal conduct, personal
beliefs and associational activity.” Indeed, if any governmental
agency had this right, it was the judiciary and not the legislature.
Lastly, Lamont maintained that the absence of the subcommittee’s three
Democrats, who had resigned in a huff in the late summer of 1953 over
the chairman’s insistence on hiring staff personnel without consulting
them, “has deprived this committee of its competency to act until it
has been properly constituted.”
If McCarthy was impressed by what he had heard, his visage didn’t
reflect it. Frank Carr, the subcommittee’s staff director, who was
hovering at his elbow, handed him a dark-covered book which turned out
to be Ernest J. Simmons’ _U.S.S.R., a Concise Handbook_, to which, it
seemed, Dr. Lamont had contributed a chapter entitled “National and
Racial Minorities.” After observing darkly that this book was “being
used by the military to indoctrinate our troops,” the chairman wanted
to know whether the witness had been paid for his chapter. Lamont
couldn’t remember whether he had or not, but promised to furnish that
information after checking his records.
The next order of business was a mysterious pamphlet called
_Psychological and Cultural Traits of Soviet Siberia_, which later
turned out to have been prepared by Army Intelligence. Its bibliography
referred to _The People of the Soviet Union_ by a “C. Lamont.” Lamont
readily admitted that he had written a book by that name in 1946, but
had never read or even heard of the long-named work in which it was
cited. In fact, he had tried to find a copy after it was mentioned by
McCarthy at a pre-hearing press conference, but was unable to locate
it. The Senator promptly asked Frank Carr to supply the witness with a
copy. He directed Lamont “to examine the document and then mark those
passages which come verbatim from your book.”
Up to this point, there had been little to distinguish the proceedings
from the almost two hundred that had preceded it since the Wisconsin
Republican had decided that the national destiny called for more
drastic tactics than the Constitution permitted. Outside of the fact
that Louis Budenz, hardly a stranger at Congressional hearings, was
sitting in a corner of the room, the executive session seemed destined
for next morning’s back pages. But what had all the earmarks of an
innocuous little query began to stir things up. The question: “Do you
know a Mr. Louis Budenz, Mr. Lamont?”
Lamont refused to answer the question. When McCarthy asked him for
his reasons, the witness offered to read his statement again, but the
chairman wasn’t having any more of that. Anticipating that Mr. Lamont
would still refuse to answer the question, he ordered him to do so.
Q. I say, so the record is complete, you are being ordered to answer,
and I assume you are refusing to answer?
A. Yes, on the grounds stated.
The chairman followed up his first question about Budenz with another
concerning the ex-Communist. “Did you ever admit to Mr. Budenz, in a
telephone conversation” he asked him, “that you were a member of the
Communist Party?” Again, the witness failed to give satisfaction. “I
refuse to answer that on the same grounds, Mr. Chairman, as set forth
in this statement.” But he was quick to point out that he was not
standing on the Fifth Amendment.
Q. You are not refusing under your rights under the Fifth Amendment,
right?
A. No, no.
With the cavalier observation that “I think it is necessary for the
Chair to order him to answer in case the committee decides to take
contempt proceedings against him,” McCarthy waited for his man to come
to heel.
Lamont, who recognized a crossroads when he entered one, decided to
confer with Wittenberg. The chairman, while very solicitous of the
right of a witness to consult his attorney, reminded the official
stenographer to make a notation of the fact “so that the record is
complete.” After a brief parley, Lamont had his answer ready. “I am
declining to answer on the ground that I do not wish to involve myself
in controversy with a known provocateur, and I am a loyal American. As
I said in the statement, I am not and never have been a member of the
Communist Party.” No, he would not identify “the known provocateur,”
other than the “person you named in the statement, Mr. Chairman.”
Then McCarthy turned to “a Clarence Hathaway.” Had the witness worked
with him “in connection with the penetration of various organizations
by the Communist Party?” Lamont objected to the form of the question
and, when his objection was promptly overruled, went back to his basic
point that the subcommittee did not have jurisdiction to interrogate
him. When the Senator pumped him as to whether he had been doing any
undercover work for any Communist Party members, the witness, after
characterizing the questions as “outrageous,” lapsed into stony silence.
Scarcely concealing a growing jubilation, McCarthy decided that
it was time to remind the witness that he was digging a hole for
himself. After marking Lamont’s statement as Exhibit 1, he ordered the
stenographer to “have the record show the only grounds for the refusal
on the part of the witness are the grounds referred to in Exhibit
1; that the witness has said that he is not relying on the Fifth
Amendment.” When Wittenberg pointed out to him that his client had also
objected to the form of the questions, McCarthy brushed him aside.
However, like Lamont, Wittenberg, too, had his flinty side. “But, sir,
you were dictating to the stenographer the reason for the refusal
of the witness, and he should have the full record.” The chairman’s
answer was brief and conclusive: “You may show whatever you like in the
record.”
Then McCarthy returned to Ernest J. Simmons and his _U.S.S.R., a
Concise Handbook_. But Lamont was just as adamant as he had been with
Budenz and Hathaway. As far as he was concerned, “the book speaks for
itself.” This was all the opening an old infighter, who had learned
his trade in the North Woods, needed. “You think the book speaks for
itself whether he [Simmons] was a Communist?,” he asked the witness.
Wittenberg’s somewhat hurried instructions to “decline to answer”
proved to be totally unnecessary since, like all good rhetoricians, the
chairman was determined to answer his own question. He leaned back in
his chair, tugged at his right ear lobe, and solemnly announced: “This
might be the first time today that I would agree with you. I think it
does speak for itself. He uses you and other men named as Communists
almost exclusively.” Lamont, who had been listening politely, hardly
seemed impressed by this revelation.
By the time the five-o’clock shadow on the Senatorial jowls had reached
its hirsute zenith, Lamont had refused to answer some twenty-three
questions, one of which was framed in Russian and was destined to be
lost to posterity because the stenographer’s knowledge of the language
was limited to “Da” and “Nyet.” It was obvious that the witness was
more than prepared for any eventualities. When McCarthy pointed out to
him that “you can make a very good test case, Mr. Lamont,” Thomas W.
Lamont’s middle son replied, with some fervor, “I hope so.”
As the long afternoon drew to a close, Lamont was ordered to come back
at ten o’clock on Monday morning, this time to Room 318 of the Senate
Office Building in Washington. When Wittenberg pleaded a previous
engagement, the time was changed to one p.m. Before the session ended,
McCarthy informed Wittenberg that, while he could not supply him with
a copy of the testimony, he was free to correct any errors in the
transcript when it was ready. As the brief cases were being snapped
closed, the chairman turned to apostate Budenz, whose role as the
silent observer was not his usual one.
Q. Before we go, Mr. Budenz, you have listened to the testimony. Can
you identify this as the man whom you discussed in your testimony
before?
A. Yes, sir.
Q. Good.
No sooner had Lamont and his retinue walked down the courthouse steps
than the Senator closeted himself with the waiting reporters who knew
that a subcommittee rule that “all testimony taken in executive session
shall be kept secret and will not be released for public information
without the approval of a majority of the subcommittee” had never stood
in its chairman’s way before.
Two days later, Irving Like received a call from a member of the
subcommittee’s staff, informing him that there had been a change of
plans and that Dr. Lamont’s appearance on Monday, the twenty-eighth,
would be quite unnecessary. Like stated that his client would show up
in Room 318 of the Senate Office Building at the appointed time unless
the oral adjournment was confirmed in writing. At 2:41 p.m. a telegram
was dispatched from Senator McCarthy’s office, addressed to Corliss
Lamont.
PURSUANT TO CONVERSATION WITH MR. LIKE OF MR. WITTENBERG’S OFFICE
THIS DATE, YOUR APPEARANCE BEFORE THIS SUBCOMMITTEE IN WASHINGTON,
D. C. ON MONDAY, SEPTEMBER 28, 1953, HAS BEEN POSTPONED. HOWEVER, YOU
ARE UNDER CONTINUING SUBPOENA AND BOTH YOU AND YOUR COUNSEL WILL BE
NOTIFIED WHEN YOUR APPEARANCE IS REQUIRED.
JOE McCARTHY, CHAIRMAN SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
OF THE SENATE COMMITTEE ON GOVERNMENT OPERATIONS.
Wittenberg received a similar wire.
At ten a.m. on Monday morning, McCarthy and five members of his staff
marched with measured tread into Room 318. The chairman solemnly called
the committee to order. “We had announced last week that Mr. Corliss
Lamont would be before the committee today, Mr. Lamont has not been
subpoenaed. He was notified that he could come today and purge himself
of the contempt for failure to answer last week.” As his words trailed
off into ether, McCarthy looked around the room and, with a bemused
innocence that would have put Scarpia to shame, asked, “Is Mr. Lamont
here?” The official transcript notes that “There was no response.” With
a grave shake of his head, the chairman ordered Lamont’s testimony made
public “so that the reason for the citation for contempt will be very
clear.”
On October 2nd, Dr. Lamont wrote to the Senator and reminded him that
he was indeed under subpoena on September 28th, and that his appearance
in Washington had been postponed by McCarthy himself. Almost a month
later, he received a brief letter from Frank Carr, informing him that
he had been entirely correct in his earlier communication and that the
transcript of the hearing would be rectified accordingly. The next day,
Lamont addressed another letter to McCarthy, asking how he intended “to
make the record conform to fact and correct the flagrant injustice to
me.” There was no answer.
McCarthy didn’t get around to Lamont’s citation for contempt until
the following July. In between, he had found bigger game. On January
30th, Major Irving Peress, an army dentist, had refused to answer
some questions put to him by the Wisconsin Senator on the ground that
his answers “might tend to incriminate me.” Three days later, Peress
was given an honorable discharge and became, posthaste, the Fort
Sumter of his time. When McCarthy, in a temper tantrum over Peress’
recent promotion to major, told Brigadier General Ralph W. Zwicker,
who had distinguished himself at the Battle of the Bulge, that he
was “a disgrace to the uniform [and] not fit to be an officer,” the
long-simmering conflict between the Senator and the Administration
was in the open. On February 21st, Secretary of the Army Robert T.
Stevens finally screwed up his courage and condemned what he termed
“the humiliating treatment” Zwicker had received, and the White House
followed suit on March 3rd when it announced that no officer was
required “to submit to any kind of personal humiliation when testifying
before Congressional committees or elsewhere.” Indian Charlie’s knee
had found its target at last.
A week later, Stevens released a thirty-four-page report which,
in effect, accused Frank Carr and Roy M. Cohn, the subcommittee’s
chief counsel, of persecuting the Army for its failure to defer or
commission G. David Schine. In retaliation, McCarthy asserted that
Stevens and his generals were holding Schine as a “hostage” in order
to prevent a thorough investigation of the Fort Monmouth personnel.
The net result--thirty-six days of testimony, 187 hours of televised
proceedings, thirty-two witnesses, and 7424 pages of transcript. The
hearings, which were conducted before the temporarily McCarthy-less
Permanent Subcommittee, made Joseph Welch famous, established “point of
order” as a household phrase, cost both Cohn and Carr their jobs, and
started the soybean trader from Appleton on his Retreat from Monmouth.
Although the major charges of both sides went largely unsubstantiated,
it was clear, as a suddenly fearless Stuart Symington told the
two-penny Torquemeda (and a national television audience) that no one
was “afraid of anything about you” anymore. Apparently, Joe Welch
wasn’t the only one who “had never really gauged your cruelty or your
recklessness....” The bubble had, at long last, resoundingly burst.
It was at this ticklish moment in his career that McCarthy urged his
fellow Senators to cite Lamont for contempt. On July 16th, four days
before Cohn’s resignation, he introduced Resolution 281, which asked
the President of the Senate to forward the Lamont case “to the United
States Attorney for the Southern District of New York to the end that
the said Corliss Lamont may be proceeded against in the manner and
form provided by law.” Accompanying the resolution was a carefully
edited version of the Lamont testimony, which omitted any reference to
the affirmation incident or the discussion of the adjournment date.
Apparently, photographs weren’t the only things that could be cropped
if one had a talent for that sort of business.
It wasn’t until August 11th that McCarthy’s resolution reached the top
of the Senate agenda. Nine days earlier, Senator Ralph E. Flanders’
Resolution 301 to censure his Wisconsin colleague had been referred to
a select committee of three Republicans and three Democrats, headed by
Utah’s austere Arthur V. Watkins. This didn’t seem to faze McCarthy,
who blithely informed his brethren that he had received an opinion
from the Attorney General that the matter of Lamont’s recalcitrance
“could well be submitted to the grand jury for indictment.” When New
York’s Lehman let it be known that he intended to object to any summary
treatment of the resolution, McCarthy suddenly remembered that he had
left a “number of witnesses” simmering in the committee room, and
hurriedly left the chamber.
Because of Lehman’s objections, it was not until August 16th that full
debate began on the Lamont citation. The late Senator Langer, with
McCarthy baying at his heels, spread on the pages of the Congressional
Record the complete story of the adjournment of the September
hearing to one o’clock on the afternoon of the following Monday, and
the subsequent telegrams which postponed it until further notice.
McCarthy’s defense was that Lamont had been “told by telephone that
if he wanted to appear and purge himself of contempt, Monday would be
the deadline....” It was simply a case of a refusal to take advantage
of some misguided but well-intended official benevolence. Besides, why
all the furor about this “very wealthy man, not in his own right, but
through inheritance,” who had “done more to damage this nation than
any other man in the country, with the possible exception of Frederick
Field.”
Langer didn’t seem particularly concerned with the size of Lamont’s
bank roll. Observing that the only thing in which he was interested was
“fair play to the witness,” the Senator from North Dakota hammered
home his thesis that McCarthy had been guilty of a gross misstatement
when he had announced on September 28th that “Mr. Lamont has not been
subpoenaed.” Just read the telegrams of September 25th, he urged his
fellows: what could be plainer than the words “You are under continuing
subpoena”? Obviously, there was little a body could say about that and
the Badger State’s junior Senator slipped out the back of the Senate
chamber.
He returned shortly after Langer had yielded the floor to Lehman who
decided to explore McCarthy’s insistence that Lamont explain why he
chose to affirm rather than take an oath. With a fat tongue in a fat
cheek, McCarthy assured the Senators that he was certain that Lehman
was “not doing it at all purposely” when he had misinformed them. The
real truth of the matter was, he told them, that, while a witness had
the right to affirm, he had to state that he had religious scruples
against an oath. This was too much for New Mexico’s Chavez whose Jesuit
law school training had taught him that there was no difference between
swearing and affirming, and that neither had to be explained.
But Lehman’s real argument against the proposed citation had nothing
to do with whether a man took an oath or not. He reminded the Senate
that another case--_United States v. Emspak_--which involved the extent
of Congressional investigating powers, was pending before the Supreme
Court. Since he was certain that its decision would be handed down in
“a reasonable number of months” (it took eight), he saw no reason for
not adjourning the proposed citation for a little while. McCarthy,
who had been pleading with Lehman to yield the floor, could restrain
himself no longer. Why, this man Lamont, he reminded his friend from
New York, has never reformed. “He is the same tool of the Communist
conspiracy.” Did the Senator realize that, as late as May of 1954 the
witness had had the effrontery to attack “every committee that has ever
exposed a Communist from the committee headed by Martin Dies, down to
date?” Such a man was totally unworthy of any Senatorial support.
Just as it looked as if Lehman was getting somewhere, pro-citation
help arrived from an unexpected quarter. Leverett Saltonstall heaved
his lanky bulk out of his chair and persuaded the New Yorker to give
him a moment. He had known Lamont since the latter was ten years old.
He had nothing but respect for his parents and his brothers but, as
for Corliss, he was “different from his brothers,” who were doing very
nicely indeed. The difference, as he explained it, seemed to lie in
the fact that “he is a man who has very firm opinions.” Naturally, the
Senator from Massachusetts thoroughly disagreed with those opinions,
notwithstanding their firmness. In fact, on one occasion, he had come
to blows with Lamont over his unorthodox views. The best thing the
Senate could do “would be to cite him for contempt and let the court
decide on the issues and the facts as we have presented them here
tonight.” The successor to Sam Adams, John Hancock and James Otis had
spoken.
After Wayne Morse had nobly declaimed that “we, as Senators, owe
it to our committees to support them when they come to the floor
of the Senate and make a prima facie case in support of a contempt
citation,” Lehman made his final pitch. He didn’t believe that the
record justified Lamont’s citation. “I very much fear,” he said, “that
very serious results may ensue if we permit the record to remain
unchallenged and merely say that because a committee brings in a
resolution of citation for contempt, the Senate should, in the natural
course of events, vote in favor of such resolution. I regard it as a
very dangerous procedure.”
But, despite a last ditch stand by Langer, Senator Thomas H. Kuchel,
who was presiding, finally put the matter to a vote. The result was
seventy-one yeas and three nays. Only Messrs. Chavez, Langer and Lehman
voted against the citation. On October 14th, a Federal grand jury in
New York, in Indictment No. C 145-216, accused Lamont of refusing to
answer the twenty-three questions that McCarthy had asked him one year
and three weeks before. The next day, the defendant pleaded not guilty
and was released on $1000.00 bail. The gauntlet he had thrown down in
the same courtroom on a sunny fall day in 1953 had at last been picked
up.
But the junior Senator from Wisconsin was hardly in a position to gloat
over his triumph. Three weeks before Lamont’s indictment, the Watkins
Committee had unanimously recommended that the man from Appleton be
censured by his colleagues. In its report, the Select Committee, which
had been handpicked by Vice-President Nixon, stated that McCarthy
had been guilty of contempt of the Senate and had flagrantly abused
General Zwicker. It wasn’t until the beginning of December that the
upper house, by vote of 67 to 22, got around to “condemning” rather
than “censuring” him, mainly for his attack on the Select Committee
itself. Five days later--on the thirteenth anniversary of the Japanese
bombing of Pearl Harbor--“Tail Gunner Joe” retaliated by apologizing to
the American people for supporting Eisenhower in 1952. A man guilty of
such a “shrinking show of weakness” just wasn’t fit to occupy rent-free
government quarters at 1600 Pennsylvania Avenue.
On October 29, 1954, Wittenberg moved to dismiss the indictment against
his client on fifteen grounds, the most important of which were his
claims that no Congressional committee had the constitutional right to
interfere with a private citizen’s First Amendment rights, and that the
Permanent Subcommittee was not authorized to conduct its investigation
of Lamont. Four weeks later, Wittenberg and J. Edward Lumbard, the
United States Attorney, took all day to argue their respective points
before District Judge Edward Weinfield. Then they sat back and waited
for him to make up his mind, a process that was to take two days short
of eight months.
While Weinfield’s meditations were in progress, the _Emspak_ case,
which Lehman had tried to use as a roadblock the preceding August,
was decided by the Supreme Court. In it and a companion case--_Quinn
v. United States_--Chief Justice Warren put a brake on the powers
of Congressional committees. “The power to investigate,” he said,
“... is also subject to recognized limitations. It cannot be used
to inquire into private affairs unrelated to a valid legislative
purpose.” With what many observers believed was a judicial slap at the
suddenly vulnerable gentleman from Wisconsin, Warren let it be known
that the Court would accept nothing less than a rigid adherence to
what he called “minimal procedural standards” as far as legislative
investigating committees were concerned.
On July 27, 1955, Weinfield announced his decision. He agreed with
Wittenberg that, since the indictment did not allege that Lamont’s
refusal to answer the twenty-three questions was wilful, it was fatally
defective. But he refused to rest his opinion on the safe ground of
improperly drawn charges. He found that there was no evidence that the
Permanent Subcommittee ever had the authority to conduct an inquiry of
Lamont--or of other witnesses for that matter. Lastly, even assuming
that McCarthy had the power he claimed, the judge wasn’t convinced that
the Lamont interrogation was within the scope of that power or that
any of the questions were pertinent to an investigation of “Communist
Infiltration into the Army.” One week later, Senator Langer, with the
pious observation that he hoped that “we shall stand fast in following
our conscience and doing what is right, in accordance with the truth,
in any matters which may develop, even though such a course may be
unpopular,” obtained unanimous consent for Weinfield’s opinion to be
printed in the Congressional Record.
But there was still some life left in the prosecution. Paul W.
Williams, Lumbard’s successor, decided to appeal to the United States
Court of Appeals for the Second Circuit, a redoubtable bench that sat
three floors above Weinfield’s courtroom. The arguments were much the
same as they had been in the District Court. The Government insisted
that “wilfullness” was not an element of Lamont’s crime and that it did
not have to allege that the McCarthy subcommittee was “duly empowered”
to hold its hearing. Wittenberg, on the other hand, was content to ride
along with Judge Weinfeld’s interpretation of the law.