CHAPTER XI

Keeping the Professor in the Dark

The Justice Department, Commerce Department, Agriculture Department,

Defense Department, and State Department had all used the arbitrary

secrecy of “executive privilege” without causing a public uproar. Not

only had they succeeded in avoiding major press criticism, but they

had secured statements from President Eisenhower to give a noble and

patriotic coloring to their deceptions.

With such encouragement at the top it was inevitable that the policy

of secrecy would spread. In August 1957, the newly created House

Legislative Oversight Subcommittee hired Bernard Schwartz, the young

law professor from New York (see Chapter VIII), as counsel for an

investigation of the various regulatory agencies. The committee,

headed by Representative Morgan Moulder, Missouri Democrat, had been

established “to go into the administration of the laws [creating the

regulatory agencies] and see whether or not the laws ... were being

carried out or whether they were being repealed or revamped by those

who administer them.”

The young professor had barely started his work in September 1957,

when he began bumping into secrecy trouble. In all, there were six

of the so-called “independent regulatory agencies” in the scope of

the House Legislative Oversight Subcommittee. The “big six” to be

probed were the Federal Communications Commission (FCC), the Civil

Aeronautics Board (CAB), the Interstate Commerce Commission (ICC),

the Federal Power Commission (FPC), the Federal Trade Commission

(FTC), and the Securities and Exchange Commission (SEC).

The Congress had created these regulatory agencies to perform a

wide range of functions including control of radio and television

licenses, control of gas and electric power lines, control of

commercial land transportation by train, truck, or bus, the

investment market, and air transportation. Rights worth billions of

dollars were involved in the decisions of these agencies, and it had

been the stated intention of Congress to remove these decisions from

the direct pressure of politics. To do this, the regulatory agencies

were headed by bipartisan commissions or boards, the members of which

were nominated by the President, subject to approval by the Senate

and limited to a fixed term of office.

In theory, at least, these boards or commissions were specialized

courts in their fields. They had rule-making and administrative

functions, but they also rendered judicial decisions on the basis of

public records and public hearings. Once appointed, these members

of the regulatory agencies were to be insulated from the pressure

politics of the White House and the Congress. Prior to Dr. Schwartz’s

arrival in Washington, there had been widespread reports, and some

evidence, that members of some of the regulatory commissions were

engaging in conversations with political personnel at the White House

and elsewhere on cases under study. To Dr. Schwartz, an outstanding

authority in the field of administrative law, it was elementary that

such conversations were improper while a case was being decided.

“It is as bad as having one of the parties in a law suit sneak into

the chambers of the judge to try to influence his decision in the

middle of a trial,” Dr. Schwartz told me.

I discussed some incidents with him which I felt merited

investigation, and he told me he was having trouble getting access to

material he requested. The CAB appeared ready to try to pull down a

secrecy curtain as broad as “executive privilege” because it could

have no legal substance for an independent regulatory agency.

On September 19, Dr. Schwartz requested that the CAB allow members

of the House subcommittee staff “to receive and examine any records,

documents, or information directly, or indirectly, pertaining to

your agency, function or business within the jurisdiction of this

subcommittee.”

A few days later, on September 23, he pressed CAB Chairman James

R. Durfee for full access to CAB records. Durfee insisted the CAB

would screen all files containing documents or communications from

other agencies or departments of government. It was now apparent

that Durfee was going to refuse access to internal governmental

communications on grounds of “executive privilege.” Dr. Schwartz was

irate. He termed Chairman Durfee’s position “completely ridiculous”

and suggested that Durfee obtain competent legal counsel.

By this time the pressure of the investigation was being felt by a

number of the regulatory agencies. The chairmen of the six regulatory

agencies met at a luncheon at the University Club in Washington the

next week to determine how to handle the inquisitive Dr. Schwartz.

Because of the success some government departments had been having

with “executive privilege” some of the chairmen decided that this

was to be the answer for their agencies, but there was no general

agreement.

Dr. Schwartz was not discouraged by the lack of information; he

only pressed harder. Subcommittee Chairman Morgan Moulder took the

suggestion of Dr. Schwartz and set October 17 as a public hearing

date for CAB. In the meantime, on October 5, he followed another

Schwartz suggestion and asked that the CAB prepare and submit a

report on “all gifts, honorariums, loans, fees, or other payments”

of things of value received by CAB employees from any “person,

firms, corporation, association, organization, or group having any

interest, direct or indirect,” in any matter before the board.

Dr. Schwartz was allowed to examine the public files, but his efforts

to obtain files of correspondence with the White House and with other

agencies ran into the claim of “executive privilege.” In the first

months, he nevertheless became aware that Sherman Adams and others on

the White House staff had been extremely active in reaching various

regulatory agencies.

In an exhaustive eighty-two-page “Memorandum of Law,” filed on

October 17, Dr. Schwartz exposed the true nature of the “executive

privilege” arguments. They all sprang from the idea that “the King

can do no wrong.”

“In the pretension of those who espouse ‘executive privilege,’” he

said, “the infallibility recognized in the King in the days when

he was personally sovereign of England has been attributed to the

President in our system. The reasoning which supports the doctrine

should shock the intelligence, as well as the sense of justice,

of those who truly believe in the essentials of representative

democracy.”

He reported that the CAB claimed “the authority to screen files

and records before they are made available to the subcommittee,

with a right to the Board in its discretion to remove any and all

documents” that could be considered personal files of Board members

or communications within CAB or with the White House.

“The Civil Aeronautics Board cannot claim privilege with regard to

communication between the Board, on the one hand, and the President

or other departments and agencies, on the other. Such an assertion of

privilege cannot defeat the right of this subcommittee to investigate

the relationship between the independent regulatory agencies and the

executive branch.”

Schwartz continued: “‘Executive privilege’ is not available to an

independent agency like the Civil Aeronautics Board as a possible

basis for the withholding of information from the Congress. The

Civil Aeronautics Board, as the Supreme Court has recognized, is

an independent agency whose members are not subject to the removal

power of the President. Such a body cannot in any proper sense be

characterized as an arm or an eye of the Executive. It is instead an

arm of the Congress, wholly responsible to that body.

“The doctrine of absolute ‘executive privilege’ itself is not

supported in law. The cases cited by its proponents are not truly

relevant on the power of the Executive to withhold information from

the Congress. On the other hand, there are many decisions squarely

rejecting the doctrine, even in courtroom cases. In addition, Dean

Wigmore (the leading authority on the subject in this country) flatly

repudiates the doctrine.”

Although Dr. Schwartz did succeed in eliciting half-promises of

co-operation from some officials of the regulatory agencies, most

of them dragged their feet. Richard A. Mack, a member of the FCC,

wouldn’t show investigators many of his records, including the office

diary that provided links for his indictment later on charges of

having conspired to violate the federal law. The lack of co-operation

by Commissioner Mack was matched by the resistance at CAB, where

Schwartz was trying to pin down evidence of contacts by Sherman Adams.

In January 1958—after five months of frustration—Schwartz insisted

that the members of the Legislative Oversight Subcommittee get tough

and demand full co-operation. Some members of the investigating

committee did not want to force the issue. Several of the Republicans

came out flatly in support of the Eisenhower administration’s

obstructionist tactics.

The lack of support from committee members so irritated Schwartz that

it took only a little urging from some newsmen to get him to leak a

staff memorandum to The New York _Times_. It was a lengthy document

setting out the well-settled legal principle that it is improper for

members of regulatory agencies to have private talks with litigants

when a case is in hearing or in the process of being decided. The

Schwartz memorandum also questioned the propriety of the members’

accepting lavish entertainment from executives of the industries they

were supposed to regulate.

Tempers flared in the days following the leak of the Schwartz

memorandum, and finally on February 10, 1958, the House subcommittee

voted to fire Dr. Schwartz. I called Dr. Schwartz in the early

evening of February 10 to inform him of the subcommittee’s decision

and also to tell him that a subpoena was to be issued for him to

testify the next morning.

He told me he had copies of every important document from the

committee files in a trunk and two cardboard boxes. “Someone should

have knowledge of what is in these records,” he said, “so it will

be possible to force the subcommittee to continue hearings.” If

something dramatic wasn’t done, he was convinced the investigation

would never get off the ground.

Dr. Schwartz asked if I wanted the copies of documents to take to

members of Congress who had shown an interest in the problems of the

regulatory agencies. I said I should not take possession of documents

which might be considered the property of the House subcommittee. But

since the documents were legally in his custody, I suggested that he

could take them to the apartment of Senator John J. Williams, the

Delaware Republican, and I would be happy to accompany him.

I had talked with Senator Williams of improper pressure on the

regulatory agencies and thought he would take the records. He had

fought against tax scandals in the Truman administration, but I

regarded him as an objective crusader who would call the strikes

the same way if the Eisenhower administration were involved in

wrongdoing. I had hoped that Senator Williams might be able to give

the investigation of regulatory agencies the same prodding that he

had given to the House tax scandals investigations in 1951 and 1952.

Dr. Schwartz said he would be willing to turn the papers over to

Senator Williams and explain them to him in detail.

I headed at once for his apartment. When I arrived, Dr. Schwartz had

the trunk and two boxes of documents ready to go. Mrs. Schwartz was

nervous about her husband’s going, however. I assured her that for

practical political reasons it was unlikely that the House would take

action against Dr. Schwartz for delivering the documents to a United

States Senator. As quickly as possible we carried the heavy trunk and

boxes to my car. At the Mayflower Hotel, we hired a porter to wheel

them on a baggage cart to the apartment of Senator Williams. While

we were at the Williams apartment, Dr. Schwartz received an urgent

telephone call from his wife. He took it in private in another room.

Mrs. Schwartz said she had been called by a reporter who told her

that since Senator Williams was a Republican, he would probably turn

the documents over to Sherman Adams at the White House. The fear

was groundless, but Mrs. Schwartz was frantic and made her husband

promise to leave the Williams apartment and take the documents with

him.

Dr. Schwartz returned to the room and told the Senator it had been

suggested that the documents might be taken to Senator Wayne Morse,

the Oregon Democrat. We excused ourselves to go telephone Senator

Morse and left Senator Williams alone with the documents. I made the

call. As I was certain he would—for I had previously talked with

him about the regulatory agency scandals—Morse assured me he was

interested in reviewing any documents Schwartz had available.

When we arrived at his apartment, Senator Morse greeted us calmly

and assured us that he wanted the documents because of his official

interest in the regulatory agencies, and we left them with him.

Now we felt certain we had created a situation in which it would

be virtually impossible for the House to avoid going forward with

the investigation. The word would move fast that the files had been

examined by a leading Democratic Senator and a leading Republican

Senator. It would create a good many complex problems for any House

members inclined to ignore or hide the evidence and leads that

Schwartz had accumulated.

Before the Schwartz files were returned to the House subcommittee,

Senator Morse read them. It was reported to me that most, if not

all, of the documents were photographed before they were sent on to

Representative Oren Harris, the Arkansas Democrat who was chairman of

the House Committee on Interstate and Foreign Commerce.

Until now it appeared Sherman Adams had erected a total shield from

investigations by Congress. He had used “executive privilege” to

avoid testimony in the Dixon-Yates case. He had been able to make his

contacts at the Securities and Exchange Commission without undergoing

questioning by the investigating subcommittee which was examining why

the SEC had postponed a hearing on Dixon-Yates at a crucial point.

It was Sherman Adams who scribbled his initials on papers to indicate

he had approved them for President Eisenhower’s signature. Sherman

Adams was on the telephone daily to United States senators and

congressmen on knotty legislative and patronage matters. Sherman

Adams ironed out the problems between cabinet officers, and he dipped

his hand into virtually every department from the first months of

the Eisenhower administration. Always it was understood that Sherman

Adams was speaking for President Eisenhower, or was acting for

President Eisenhower. Even when he didn’t say, “This is what the

President wants,” it was understood he was speaking for President

Eisenhower.

The legend grew that Sherman Adams was cold and clean as New

Hampshire granite—a barrier against the corrupting influence of

personal and political favoritism. Coming on the heels of the Truman

administration, such a reputation was much admired even when it was

known that Adams was not well liked. There were countless stories

of his undiplomatic, even rude, treatment of Republican political

figures who were interested in a return to some good plain political

patronage. It all added to the legend that Sherman Adams was one of

the finest influences the Eisenhower administration had brought to

Washington.

But there were also those stories of the calls that Sherman Adams

made on members of the so-called “independent regulatory agencies.”

One might commend the White House for keeping a firm hand on agencies

directly under the control of the White House, but the regulatory

agencies were another matter. Politics were supposed to be kept out.

Shortly after the midnight ride with Dr. Schwartz, I came into the

possession of copies of two letters from “Sherm” Adams to “Murray”

Chotiner, an attorney for North American Airlines. In the letters,

“Sherm” had informed “Murray” that he had discussed the North

American Airlines case with the acting head of the CAB. It appeared

to be a one-party contact with an official of the CAB during the

period when a case was being decided. It appeared to be a direct

violation of the rules of the CAB if Adams had done what he stated

in the letter he had done for Chotiner, a politically influential

California lawyer. I wrote my story on the facts available in the

secret files of the House subcommittee.

I caught President Eisenhower’s eye early in the February 26, 1958,

press conference and he recognized me with a trace of reluctance.

“Mr. President,” I started. “Sherman Adams has written a letter in

which he states that he went over the details of a pending Civil

Aeronautics Board matter with an acting chairman of the CAB.

“It is contended up on Capitol Hill, that this was a violation of a

CAB rule which states—it is improper that there be any communication,

private communication that is, by any private or public person with

a member of the CAB, with the examiners of the CAB, with the staff

while the case is pending, except in those matters prescribed by law.

“I wonder if you could tell us whether you felt Mr. Adams was acting

within the proper scope of his authority in this particular matter.”

President Eisenhower pleaded ignorance of news stories that had been

on page one for days:

“Well, again you are bringing up a thing I have not heard of; but I

will say this: There is a number of cases that come under the CAB

that the White House must act on. Any time that they refer or have

anything to do with the foreign routes that CAB has authorized, or

refused to authorize, then the President himself is required to make

the final judgment.”

The President was confused. He was assuming that the case was a

foreign airline route case to which normal rules do not apply. The

case about which Adams had written the letter, however, involved a

domestic airline, North American Airlines.

“And, very naturally,” President Eisenhower continued, “my staff

would want to get any additional information that I need. So, I would

assume it is so on that case.”

“Mr. President,” I broke in to explain that the North American case

was not a foreign line, but was a domestic airline. “On that line—”

I was cut off by the President’s cold stare, and abrupt comment: “I

don’t want anything more about that.”

There was no opportunity to ask another question, but the record was

much clearer to the nation’s editorial writers and cartoonists than

it was to President Eisenhower.

“Whether the President wants it or not, there ought to be ‘more

about that’ at the very next news conference,” commented the St.

Louis _Post Dispatch_ in a hard-hitting editorial. The editorial

pointed out that in the face of rules that would make Adams’ contacts

“improper,” President Eisenhower had “not only evaded a direct

question about whether Mr. Adams’ intercession was improper but

having evaded it, told Reporter Mollenhoff: ‘I don’t want anything

more about that.’”

The Washington _Post_ commented that President Eisenhower’s answer

“gave a damning indictment of his own unfamiliarity with important

national affairs yesterday in his fuzzy comments on the relationship

of Sherman Adams to the Civil Aeronautics Board.

“For days there have been stories about the accusation by Dr. Bernard

Schwartz that Mr. Adams in 1953 discussed the status of North

American Airlines with the acting chairman of the CAB on behalf of

the airlines counsel, Murray Chotiner. Yet Mr. Eisenhower said,

almost incredibly, that he had never heard of the matter.”

The _Post_ editorial concluded:

“Is it that Mr. Eisenhower just isn’t interested, or is it that Mr.

Adams, who attempts to ease the Chief Executive’s burdens, filters

what the President reads?”

Reports were already circulating in Washington that Sherman Adams

had made some contacts at two other regulatory agencies on behalf of

Bernard Goldfine, a wealthy New England industrialist. However, the

claim of “executive privilege” still spread its protective covering

over Sherman Adams and others at the White House. The officials of

the regulatory agencies continued to refuse to give testimony on

contacts with the White House. And, of course, at that stage Sherman

Adams had no intention of giving public testimony.

Then, suddenly, the House investigation became a hot issue. Evidence

was developed that Richard A. Mack, a member of the FCC, had been

involved in some rather complicated financial dealings with a Miami

attorney, Thurman A. Whiteside. Whiteside had loaned him money, and

there was also an arrangement through an insurance firm which was

putting a little extra money in Mack’s pocket. Whiteside checks

totaling $2650 were received by Mack while he was on the FCC, and

Whiteside also gave him a one-sixth interest in an insurance company

that sold $20,000 worth of insurance to one of the applicants in the

FCC case involving Miami Channel 10.

This case was to lead to the indictment of Mack and Whiteside for

alleged conspiracy to fix the award by FCC on Miami Channel 10. Mack

was forced to resign from the FCC after a pathetic appearance before

the House Legislative Oversight Subcommittee.

In the criminal trial, Mack admitted receiving financial help and

“loans” from Whiteside, but contended that it had nothing to do with

the award of Channel 10 in Miami to Public Service Television, Inc.

Mack contended it was merely an extension of the favors Whiteside had

given him since they were boyhood friends. The first trial ended in a

hung jury.

The former FCC member never went to trial again. In court he was

described as ill and alcoholic, and unable to stand the ordeal of a

trial.

Whiteside was tried a second time, and was acquitted on the criminal

charge. A short time later, in May 1961, Whiteside was found dead in

his Miami office. Death was caused by a self-inflicted bullet wound.

The FCC in a later ruling ordered Public Service Television to stop

using Channel 10. The FCC had concluded that the activities of Mack,

Whiteside, and others constituted improper conduct in connection with

the application of Public Service Television.

The United States Court of Appeals upheld the FCC ruling that Public

Service and two other applicants had disqualified themselves by

improper practices. The Supreme Court refused to hear an appeal.

Dr. Schwartz and his investigators had pinned down the essential

details on the Mack case before Schwartz was fired, and the hearings

demonstrated fully the type of activity that at least one of the

regulatory agencies had concealed with the claim of “executive

privilege.” By this time, it was clear to everyone that there were

a good many things wrong with the operations of the “big six”

regulatory agencies. There was no proof that they were filled with

corruption, but there was adequate evidence of a widespread laxity

that needed to be examined and exposed.

There had been only the rumors of the Adams-Goldfine relationship

while Dr. Schwartz was with the House subcommittee, but once the

hearings on Mack were moving, the whole subject of one-party contacts

with regulatory agencies came in for closer scrutiny.

Reports that Adams had received a vicuña coat and a $2400 oriental

rug from Goldfine evoked interest in Goldfine. These reports were

followed by the revelation that Goldfine had lavishly entertained

Adams at hotels in New York and Boston, and during the same period of

time Adams had made inquiries for Goldfine at the SEC and FTC.

Sherman Adams whipped out a letter which he believed would still the

outcry against him. It was a vague letter that simply admitted he

had contacted the Federal Trade Commission and the Securities and

Exchange Commission on some of Goldfine’s problems. However, Adams

said he had requested no favors for his friend Goldfine, but ignored

the fact that any call from Sherman Adams would flag a case for

special attention. The benefits known to have been received by Adams

were small, but his relationship with the notorious Goldfine was to

become a source of continued embarrassment to the White House. The

embarrassment finally forced Adams out of the White House into the

open arena of congressional questioners.

Adams went before the House Legislative Oversight Subcommittee in the

crowded House Caucus Room. It was his first time to give testimony,

and he hoped that it would stop the criticism. President Eisenhower

admitted that Adams had been “imprudent” in his relationship with

Goldfine. But, the President said, “I need him.”

Now nothing could stop the criticism, public and private. It seemed

that every week brought more and more revelations of the questionable

activities of Bernard Goldfine. There were charges of mislabeling

of woolen goods filed by the FTC, and records showed Goldfine firms

involved in a long series of mislabeling incidents. Goldfine had not

filed proper reports with the SEC for several years. Also, Goldfine

had refused to testify on a mysterious $700,000 in cashier’s and

treasurer’s checks he had taken out of his businesses.

Hailed before the committee, Goldfine took the Fifth Amendment,

claiming that to answer the questions might tend to incriminate him.

Every day that Bernard Goldfine was on the witness stand or otherwise

in the public eye was pure misery for the Republican political party.

It was apparent that the Republicans would be saddled with Goldfine

as long as Sherman Adams remained the number one assistant to

President Eisenhower.

And so, on September 22, 1958, Sherman Adams resigned. In a

nationwide television broadcast, he said he had “done no wrong” but

was the victim of “a campaign of vilification.”

Only five days later, a federal grand jury in the District of

Columbia returned the indictment charging Richard Mack, the former

FCC commissioner, with conspiracy to defraud the government. The

indictment charged that Thurman A. Whiteside, a Miami lawyer, had

bought Mack’s vote in connection with the award of Miami television

Channel 10.

Some people paid a heavy price for what had once seemed to them to be

clever secretive manipulations to influence governmental decisions.

Whiteside crumpled under the strain and died by his own hand. Mack

cringed before the court with a plea that he was too ill and too

alcoholic to stand trial.

Even a million-dollar fortune couldn’t save Bernard Goldfine from

the disgrace of a federal prison term. He hired the most expensive

lawyers and engaged in every conceivable maneuver to stay out of

prison, but in the end lost his freedom and his “friends.” He went

to prison on a criminal charge of evading more than $800,000 in

federal taxes. Although he had boasted bravely that he would not

co-operate with the Justice Department in explaining what he did

with the missing $800,000, his health broke while in prison and

left him a shattered shell of his former self. Later the Internal

Revenue Service filed liens against his property totaling more than

$7,000,000. The Goldfine magic had turned to mud.

These cases had dramatized the full evil of secret government. The

problems of Adams rose directly from the failure of the White House

to recognize the dangers involved. It was not necessary to read evil

intent into the origin of the blanket secrecy. It was bad enough that

the Administration had so self-satisfiedly assumed that things were

being handled efficiently and properly and that the press and the

Congress were better off kept in the dark where they couldn’t stir up

trouble.

Washington cover-up · 第 11 / 18 章