Hiss’s Indictment — Illegal?
“Not Guilty as Charged: A Revised Verdict for Alger Hiss”
By Robert L. Weinberg
Whittaker Chambers accused Alger Hiss of having committed espionage, but the 1948 grand jury considering this allegation in 1948 could not charge him with that crime – even if its members believed him guilty of it. There was good reason for that. Doing so would have violated the statute of limitations which was put in place to protect the innocent, not to help the guilty evade their crimes: lawmakers understood that a person couldn’t properly conduct a defense against charges that revolved around an act alleged to have been committed many years before. Witnesses who might have exonerated the defendant could have been long dead, or supporting evidence could have been lost.
The prosecutors leading the grand jury that investigated Hiss recognized this, but they were so determined to indict him they made an end run around the law – indicting Hiss for perjury, since he had sworn under oath that he had not been a spy. By asking Hiss whether he committed espionage, they put his denial on record. At the time, Hiss and his attorneys called the prosecutors’ efforts “a dirty trick,” but since the grand jury minutes remained sealed for more than 50 years, they had no way of establishing this claim in court.
In the article below, reprinted with permission from the May/June 2008 issue of The Champion, the magazine of the National Association of Criminal Defense Lawyers, Robert L. Weinberg, a well-known Washington, DC federal criminal defense lawyer, argues that the end run “dirty trick” that produced Alger Hiss’s perjury indictment did not just skirt the law but, under federal case law spelled out since the 1950s, was demonstrably both illegal and unconstitutional. The prosecutors’ maneuverings thus produced an invalid and unlawful indictment.
Since the record shows Hiss to have been illegally indicted and prosecuted, Weinberg concludes, he is necessarily therefore “Not Guilty As Charged.” And the Hiss case requires “a Revised Verdict.”
Robert L. Weinberg is a past president of the District of Columbia bar and a retired founding partner of the Washington, D.C., law firm of Williams and Connolly, where he litigated federal criminal and civil cases for 35 years. Many of his cases involved challenges to the validity of federal grand jury proceedings and indictments, including the Gaither case cited in this article. Weinberg teaches Criminal Pretrial Practice as an Adjunct Professor at George Washington University in its LL.M. in Litigation program, and since 1965 has taught Criminal Procedure as a Visiting Lecturer at the University of Virginia School of Law.
This article is reprinted with permission from The Champion, the magazine of the National Association of Criminal Defense Lawyers.
Sixty years ago a freshman Congressman from California, Richard Nixon, spearheaded an investigation of Alger Hiss by the House Un-American Activities Committee, which led to a grand jury investigation of Hiss and his indictment on December 15, 1948, for perjury allegedly committed that very day. Nixon later acknowledged, in his 1962 book, Six Crises, that “had it not been for the Hiss case I might never have been Vice President of the United States and a candidate for President.” 
Alger Hiss was convicted in 1950 of the charge that he falsely denied having been a spy for Russia in the 1930s. He could not be prosecuted for the alleged spying because the three-year statute of limitations for espionage had long since expired. But by eliciting Hiss’s sworn denials of such spying activity when Hiss testified before a federal grand jury on December 15, 1948, prosecutors were able to secure an indictment and conviction of Hiss for two counts of perjury. 
The Alger Hiss case was one of the most important prosecutions of the twentieth century.  The public debate over whether Hiss was, in fact, a spy has continued for over half a century.  The thesis of this article is that – whether or not one believes Alger Hiss was in fact guilty of spying (an issue on which this article deliberately takes no position) – the allegedly false answers for which Hiss was indicted and convicted of perjury did not, as a matter of law, constitute perjury. Thus, Hiss was not “guilty as charged,” as the jury’s verdict stated that he was.  He served almost four years in federal prison on a charge that was not, in law, a federal crime.
Three federal court decisions handed down in the 1950s, shortly after Hiss’s release from prison, recognized the principle that the government may not base a perjury indictment and conviction upon answers which it elicits from a witness solely for the purpose of charging that those answers were false and perjurious. Those case are United States v. Icardi, Brown v. United States, and United States v. Cross. 
Recently released transcripts, from the grand jury’s investigation of Hiss, will demonstrate that the principles set forth in those three cases – if applied to the circumstances of the Hiss case – would show that Hiss should not have been convicted of the offense of perjury under the indictment brought against him. These grand jury transcripts, which had remained under seal for half a century, were ordered released pursuant to a petition filed by a group of historians to disclose the grand jury transcripts of the Hiss case because of their historical significance.  Hiss’s pretrial motion for disclosure of these transcripts had been denied in 1949.  Hiss was again denied access to the grand jury transcripts when he sought their disclosure, almost 30 years later, on grounds of their historical significance, through a Freedom of Information Act request.  The current Rule 16 provision, granting the defendant pretrial discovery of his own grand jury testimony as a matter of right, was not part of the original Rule 16 promulgated in 1946, two years prior to Hiss’s indictment.
THE ICARDI, BROWN, AND CROSS CASES
The first of the above-cited federal court rulings on perjury was rendered in a case, much publicized at the time, of a former World War II U.S. Army Lieutenant, Aldo Icardi. Lt. Icardi was indicted for perjury because, when called to testify under oath at a hearing of a Subcommittee of the House Armed Services Committee, he had denied the accusation that, ten years earlier, he murdered his superior officer while serving behind enemy lines in Italy. Lt. Icardi had thereafter been discharged from the service, so he was no longer subject to military jurisdiction. Under the law at that time, he was not subject to trial in U.S. civilian courts for a murder committed abroad. But Icardi would be subject to U.S. jurisdiction for a charge that he committed perjury by denying the murder at a House Subcommittee hearing in Washington, D.C.
At Icardi’s trial for perjury, defense attorney Edward Bennett Williams established, to the trial court’s satisfaction, that the Subcommittee’s real purpose for interrogating Icardi about the murder was to lay the basis for securing a perjury indictment against him – and not for the purpose of enacting new legislation.
Williams described the Icardi case at length in his book, One Man’s Freedom. The book quotes from Williams’ cros s-examination of Congressman Sterling Cole, the Subcommittee Chair. Williams elicits the Congressman’s acknowledgment that, before calling Icardi to testify before his Subcommittee, Cole had discussed the possibility of developing a perjury case, if, as expected, Icardi testified under oath before the Subcommittee to the same account (denying the murder accusations) which he had previously given to the military authorities.
Q. Did you talk to anyone at all anywhere before Mr. Icardi was invited to testify with respect to a perjury case being set up against Mr. Icardi?
Mr. Marony: Objected to as beyond the scope of redirect examination.
The Court: Oh, I think I will permit him to answer.
The Witness: Would you repeat it?
By Mr. Williams:
Q. Yes, sir. Did you talk to anyone, I say, anyone at all, sir, before Mr. Icardi was invited to testify with respect – did you talk to anyone with respect to setting up a perjury case against Mr. Icardi?
A. I cannot quite subscribe to setting up a perjury case. I can, in response, say that the question of perjury was a subject of discussion. . . .
* * *
Q. Tell me the substance of your conversation, sir.
A. It would only be repetition. The subject of swearing Mr. Icardi was discussed. It was determined to swear him. He offered no resistance to being sworn as a witness. It is my recollection that the question of prosecution for perjury was entered into in the discussion of the question of swearing him under oath. Now I cannot particularize beyond that.
Q. But this was all before he was invited to testify?
A. Well, it wasn’t limited to that time.
Q. But you did have this discussion before he was invited to testify?
A. I can’t swear positively that we did. I say it is my best recollection that we must have.
Q. Didn’t you have a conversation with your counsel and with Mr. Kilday [the only other Congressman on the Subcommittee], during which you discussed inviting Icardi to testify, during which you discussed that you would swear him if he accepted the invitation, and during which you discussed that a perjury case could be spelled out against him if he testified in accordance with the reports that you then had in your committee files obtained from the Army?
A. I cannot deny that that happened. On the other hand, I cannot swear that it did happen. I could very readily say that in all probability it did happen . . . .
Q. It is your recollection that it did, is that your answer, sir?
A. Yes, sir.
Mr. Williams: I have no further questions.” 
This cross-examination testimony was obtained, Williams’ book explains, because “I broke the most elementary rule of good cross-examination . . . ‘never ask a question unless you know what the answer is going to be.’ Breaking this rule is almost always a mistake. This time it turned out to be a bonanza . . . .” 
Following the cross-examination of Congressman Cole, the court entertained a motion to dismiss the case.  (see 140 F. Supp at 384). After an overnight recess, the highly regarded U.S. District Judge Richmond Keech came on to the bench and held that, under the then-new Federal Rules of Criminal Procedure (Rule 29), he must treat the defense motion “as a motion for judgment of acquittal [and the motion] must be granted.” 
Judge Keech delivered an opinion holding that the witness’s allegedly false answers to the Subcommittee’s questions could not constitute the crime of perjury because Icardi’s allegedly false denials of guilt of murder did not relate to a matter which was “material” to a legitimate subject for Subcommittee investigation. The Subcommittee’s authorized role was to investigate whether new legislation was required and whether the Defense Department had handled its previous murder inquiry adequately – it was not to determine whether Lt. Icardi was guilty of the homicide of which he had been accused. Because Icardi’s answers could not have influenced the Subcommittee’s conclusion on matters within the proper scope of its investigation, “the court holds, as a matter of law, that the false answers defendant is charged with having given did not relate to a ‘material matter.’”  Since the perjury statute, 18 U.S.C. Section 1621, requires that the false testimony relate to a “material matter,” and the record “cannot support a finding by this court, as a matter of law, that Icardi’s answers related to a material matter,” the essential element of “materiality” was not proven to the court, and acquittal by the court on the perjury indictment was therefore required as a matter of law. 
The Icardi decision was followed and applied a year later in the context of federal grand jury testimony. This ruling was made in a U.S. Court of Appeals decision in the case of Brown v. United States.  G. Elmer Brown was convicted of committing perjury before federal grand jury in Nebraska. The conviction was reversed because, as the record on appeal showed, the prosecutor’s purpose in calling Brown to testify before the federal grand jury “was simply to do what he did, viz, to extract from defendant his testimony about [a four-year old conversation in Missouri] knowing that his recollection of it differed from that of the others present, and to get him indicted for perjury.”  The Court held: “Extracting the testimony from defendant had no tendency to support any possible action of the grand jury within its competency. The purpose to get him indicted for perjury and nothing else is manifest beyond all reasonable doubt.”  The opinion of the Court of Appeals expressly equated Brown’s allegedly false testimony given before a federal grand jury to that of Lt. Icardi before the House subcommittee. The Court in the Brown case therefore found, citing Icardi, “the principle that is applicable here exactly stated by Judge Keech,” namely, that allegedly false testimony that is elicited from the witness for the very purpose of charging him with perjury does not relate to a matter “material” to the investigation, so the defendant grand jury witness must be acquitted of the perjury charge for failure to prove the essential element of materiality. 
Three years after deciding Icardi, Judge Keech confronted the same issue, presented by the same defense counsel, Edward Bennett Williams, in United States v. Cross.  Since the District of Columbia is the usual venue for prosecutions arising out of Congressional Committee hearings, the recurrence of the same legal issue and legal cast in Washington is not surprising. This time, however, a Senate Select Committee was involved, and there was no admission by the chair of the investigating committee of a plan to prosecute the witness for perjury.
The witness, James G. Cross, a union president, was in the court’s view properly called as a witness and questioned about his role in acts of violence against opponents in his union. But after Cross had denied his involvement in the violence, and a further witness had contradicted Cross’s testimony, the Committee chair recalled Cross at a later date to repeat his sworn denials. This latter appearance before the Committee, Judge Keech found, was solely for the purpose of eliciting a repetition of the prior denials, thereby increasing the likelihood that Cross would be prosecuted for perjury. The court inferred this purpose of the Committee from the Committee hearing transcripts and documentary records after the witness had been indicted solely for the denials which he had repeated when recalled. Once the government’s evidence in chief had shown the foregoing sequence of events, defendant moved for judgment of acquittal on the ground that the prosecution had not proved two essential elements of perjury: that the allegedly false testimony was on a “material matter” and that the Committee was sitting as a “competent tribunal” when the witness was recalled and repeated his sworn denials.
The narrow question presented by the motion in this case is whether, on July 16, 1957, when the defendant Cross was recalled before the Select Committee and gave the alleged false testimony upon which the indictment is based, the Committee propounded the questions to the defendant Cross for the purpose of eliciting from him facts which might aid in legislation.
170 F. Supp. at 306.
After reviewing the trial record, the court reiterated its test: “The validity of this perjury case must be tested by the purpose of the Committee in propounding the specific questions upon which the indictment is based at the time when they were asked.”  (emphasis supplied).
As will be shown below, this exact test – only changing “the Committee” to “the prosecutors” – should be applied to determine whether the specific questions asked of Hiss on December 15, 1948, on which the Hiss indictment was based, were propounded for the purpose of predicating a perjury charge on the expected answers reiterating prior denials of criminal conduct.
In Cross’s case, when Judge Keech applied the quoted test, he concluded that the government failed it. “. . . [T]he recall of Cross was for the purpose of emphasizing the untruthfulness of his prior denial . . . . The Government, therefore, has failed to establish two essential elements,” namely, the materiality of the alleged false testimony, and the competency of the tribunal. 
Neither Icardi, Brown nor Cross overruled or disputed any prior precedent on the law of materiality. Rather, they applied well established principles for determining “materiality” under the perjury statute to the particular (and hopefully atypical) factual records before those courts: records that established to the Court’s satisfaction that the indictment was predicated on allegedly false testimony that the interrogator had elicited for the very purpose of basing a perjury indictment upon it. Moreover, in each case, the record showed that the interrogator knew that the targeted witness had previously given the same answers to substantially the same questions that the interrogator was about to propound, and that those prior answers of the witness were contradicted by or in conflict with sworn testimony of other witnesses (such as Whittaker Chambers in Hiss’s case).
APPLYING THE ICARDI-BROWN-CROSS RULES TO THE HISS CASE
Under the rule of materiality set forth in Icardi, Brown and Cross, the perjury indictment and conviction of Alger Hiss would likewise be invalid. The recently released grand jury transcripts show that Hiss was questioned on every day (except Sunday) between December 7 and 14, 1948. On December 14, Hiss was told by the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, Alexander Campbell, in the presence of Hiss’s attorney, Edward McLean, that Campbell believed Hiss’s grand jury testimony had been false and that Hiss would be indicted for perjury. Nevertheless, the perjury indictment that Campbell and his colleagues secured against Hiss on the next day, December 15, 1948, was not based upon the answers that Hiss had given prior to Campbell’s telling Hiss on December 14 that he would be indicted for perjury. Rather, the two questions that the indictment alleged Hiss had answered falsely were questions propounded on December 15, the day after Campbell had already disclosed his intention to obtain a perjury indictment.
Moreover, on December 13, Rep. Richard Nixon, who was leading a contemporaneous investigation of Alger Hiss by the House Committee on Un-American Activities, appeared as a witness before the grand jury to identify some microfilm evidence in the Committee’s custody – and the Congressman then was allowed by Campbell, quite improperly, to make a legal argument to the grand jury aimed at procuring Hiss’s indictment for perjury.  Nixon told the grand jurors how unfortunate it would be if Hiss went “scot free” because of the “legal technicalities” that prevented Hiss from being indicted for espionage after the three-year Statute of Limitations had expired. Nixon’s implication was clear: the grand jurors should vote an indictment for perjury instead. The implication would have been clear to Campbell as well.
The grand jury’s 18-month term, and hence its authority to bring an indictment, was expiring on December 15, 1948. On that day the prosecutors sought and obtained a two-count indictment for perjury against Hiss. But significantly, neither count was based upon answers that Hiss had given to the grand jury in his testimony through December 14 – the date by which Campbell had obviously decided to seek Hiss’s indictment for perjury, and even told Hiss that he would be indicted. Both perjury counts were based solely on Hiss’s answers to questions that the prosecutors propounded on December 15, after they had already decided to seek a perjury indictment. The inference is inescapable that the questions were framed and put for the very purpose of basing a perjury indictment upon Hiss’s expected responses, denying allegations of his accuser, Whittaker Chambers. Indeed, Hiss, who had testified as the first witness on the morning of December 15, was called back shortly after noon for a further appearance, during which the prosecutors asked the question on which they then based the second count.
In Hiss’s case, as in Cross, the questions asked of the witness on the date of his last appearance – the questions that elicited the allegedly perjurious answers set forth in the indictment – were repetitious of questions that had been asked in prior sessions. As stated, Hiss had testified on every day (except Sunday) from December 7 through December 14, and the questions propounded on December 15 covered the same ground already covered multiple times in the prior week. Indeed, the allegation of false testimony in Count I begins:
Q: Mr. Hiss, you have probably been asked this question before, but I’d like to ask the question again. 
The line of questioning that led up to the answer charged to be perjurious in Count II, had been preceded by a similar statement acknowledging its repetitious nature.  The fact that the answers deliberately elicited on December 15 added nothing to the information conveyed in prior days’ testimony, suggests, as was the case in Cross, that the latter testimony was not material to furthering the purpose of the grand jury’s investigation. In Hiss’s case, the grand jury was a special grand jury impaneled to investigate espionage activities. Moreover, since the testimony was elicited on the very last day of the grand jury’s 18-month existence, it would not appear to further any investigation on which this grand jury could still take action before its discharge. 
The prosecutors’ purpose in utilizing the December 15 questioning to obtain indictable answers is revealed in an affidavit contained in the court archives of the case. This affidavit was executed and filed on February 24, 1949, in opposition to a motion filed by Hiss’s counsel under Rule 6(e), for inspection of the grand jury minutes. The affiant was Raymond Whearty, who was a Special Assistant to the Attorney General in conducting the grand jury investigation, and also was the First Assistant to Assistant Attorney General Alexander Campbell. The affiant explained the proscutors’ reason for basing the indictment solely on Hiss’s December 15 questioning:
The indictment itself was prepared on the afternoon of December 15, 1948, after defendant Hiss had testified the second time, in order that there would be no undue delay in its presentation, if voted, since it was late in the afternoon before the grand jury concluded its deliberations. The indictment was limited to the testimony given by Alger Hiss on that date since there was not physical time in which to examine the voluminous testimony given by him to select other possible testimony on which a perjury indictment against him might be predicated. (Emphasis supplied.)
In other words, because they were racing against the clock to obtain a perjury indictment against Hiss before the grand jury’s life expired, the prosecutors’ evident purpose on December 15 was to obtain indictable answers, not answers that were designed to secure additional information to further the expiring grand jury’s eighteen-month investigation. 
In view of the representation that Assistant Attorney General Campbell had made to Alger Hiss and his counsel on December 14 (around noon), that Hiss would be indicted for perjury, it seems remarkable that Mr. Campbell had not had an indictment predicated on pre-December 15 testimony of Hiss drawn up and presented to the grand jury before the close of business on December 15. The alleged crime for which Alger Hiss was indicted on December 15 was a crime that had not yet been committed at the time that the Assistant Attorney General had told Hiss that he would be indicted for it.
After telling Hiss on December 14 that he would be indicted for perjury, the Assistant Attorney General had his staff “create” the crime by their questioning of Hiss before the grand jury on December 15. Besides depriving the sworn answers of “materiality,” such prosecution for a prosecution-created crime would be a violation of due process. 
The lack of “materiality” of the December 15 testimony under the Icardi-Brown-Cross line of authority thus seems clear. The only purpose of the December 15 questions was to use the answers to indict the witness for perjury, not to further the expiring grand jury’s investigation.
AN ADDITIONAL, CONSTITUTIONAL FLAW INVALIDATED THE INDICTMENT
Besides predicating their indictment on answers that, even if proven false, would not be material, the prosecuting counsel manipulated the grand jury process so as to make the indictment invalid ab initio on constitutional grounds. Special Assistant Whearty stated in the oral argument on the motion for inspection of grand jury minutes that “the indictment was drawn during the period they [the grand jurors] were having their deliberations.” 
Prior to the grand jury’s deliberations and vote, Whearty stated, “There was discussion, as is usual, between government counsel and the grand jury,  government counsel retired from the jury room and the grand jury deliberated for over an hour, . . . and the grand jury said that they returned an indictment only against Hiss for perjury.” When the court then asked Whearty, “was the indictment drawn before or after [the grand jury’s deliberations]?” he responded: “The indictment was drawn during the period they were having their deliberations.”
It is apparent, from Special Assistant Whearty’s description to the court of the indictment process, that the grand jurors, when they deliberated and voted, had never seen nor had read to them the specific indictment that was returned, since the government’s indictment had not been drawn up and completed until after the grand jury had retired to deliberate and vote. The failure to submit the specific allegations of the indictment to the grand jurors for them to deliberate and vote upon them is a violation of the Fifth Amendment guarantee that no person shall be charged with a felony except upon “indictment of a Grand Jury.” The procedure that Whearty indicated had been followed in obtaining the Hiss case indictment – where the grand jurors never were shown or had read to them the specific language of the charges comprising the three-page indictment that the grand jury purportedly voted to find – has been held invalid by the U.S. Court of Appeals for the District of Columbia Circuit.  That Court held such procedure constitutes a violation of the defendant’s right, under the Grand Jury clause of the Fifth Amendment, to be tried only on the specific charges that the grand jury has found. Accordingly, the indictment of Alger Hiss was invalid because of this constitutional flaw in returning the indictment against him.
In the case of Alger Hiss, the motivation of the interrogator to lay the basis for a perjury indictment was just as plain as in the Icardi and Brown and Cross cases, where acquittals of perjury were ordered by the courts because the answers so procured could not satisfy the statutory requirement of “materiality.”
As a matter of law, those three cases hold, where questions are propounded by the interrogator for the very purpose of bringing an indictment charging that the answers constituted perjury, the testimony so adduced is not “material,” and failure to establish the essential element of “materiality” requires acquittal on the perjury charge.
Upon the indictment for perjury, so procured against Alger Hiss, the verdict of history for Hiss should be: “Not Guilty as Charged.”
1. Richard M. Nixon, Six Crises 1, 70 (1962).
2. The opening paragraph of the court of appeals’ opinion affirming Hiss’ conviction succinctly described the two counts on which he was indicted and twice tried:
“On December 15, 1948, the appellant testified under oath as a witness before a grand jury of the United States sitting in the Southern District of New York that he had never, nor had his wife in his presence, turned over any documents of the State Department, or of any other government organization, or copies of such documents, to Whittaker Chambers or to any other unauthorized person. He also testified before the same grand jury on the same day that he thought he could definitely say that he did not see Mr. Chambers after January 1, 1937. This grand jury returned an indictment charging in count one that he committed the crime of perjury when he testified as firstly above stated and in count two that he did when he testified as secondly above set forth. He was duly tried by jury twice, the jury at the first trial having failed to agree upon a verdict. At the second trial he was convicted on both counts and has appealed from the judgment and sentence thereon.” United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), cert denied, 340 U.S. 948 (1951).
3. See Alan M. Dershowitz, Introduction to: Weinstein, Perjury: The Hiss-Chambers Case (1994 Reprint for the Notable Trials Library).
At his first trial, Hiss was represented by Lloyd Paul Stryker, the leading defense lawyer of his day.
4. For instance, as recently as the spring of 2007, a conference on “Alger Hiss and History” was held at New York University, sponsored by its Center for the United States and the Cold War. One of the speakers was Hiss’ 80-year old stepson, Timothy Hobson, who, speaking publicly about the case for the first time, contradicted Chambers’ testimony that Chambers was a regular visitor to the Hiss home some 70 years previously. See The Nation, April 30, 2007, p. 8. Shortly thereafter, in the summer of 2007, The American Scholar published an article co-authored by a former Pulitzer Prize winner, seeking to rebut the claim that Alger Hiss was the Soviet spy who had been code-named “Ales” in Soviet intelligence communications and archives from the 1930s and 1940s. Bird and Chervonnaya, “The Mystery of Ales,” The American Scholar (Summer 2007), pp. 20-35. Leading books supporting the position that Hiss was in fact a Soviet agent include: G. Edward White, Alger Hiss’ Looking-Glass Wars: The Covert Life of a Soviet Spy (2004); Allen Weinstein, Perjury: The Hiss-Chambers Case (1978, republished 1997) (Professor Weinstein later became the Archivist of the United States); and Sam Tanenhaus, Whittaker Chambers: A Biography (1998).
Books asserting Hiss’s innocence of spying include: Alger Hiss, In the Court of Public Opinion (1957); John Chabot Smith, Alger Hiss: The True Story (1976); and Fred J. Cook, The Unfinished Story of Alger Hiss (1953). The Lord Chancellor of England, Earl Jowitt, also raised doubts about the correctness of the verdict against Hiss in his book The Strange Case of Alger Hiss (1953), which indicated that Hiss would probably have been acquitted if tried under English rules of evidence and procedure.
5. With the title of this article, “Not Guilty as Charged,” compare the titles of two others: Tanenhaus, “Hiss: Guilty as Charged,” Commentary, vol. 95 (April 1993); “Hiss, A New Book Finds Him Guilty as Charged,” Time (Feb. 23, 1978 at 28) (reporting on Allen Weinstein’s book, Perjury; The Hiss-Chambers Case). However, neither Tanenhaus nor Weinstein had considered the legal issue raised in this article, i.e., whether Hiss would have been “not guilty” of the perjury charge in the indictment as a matter of law, even if he were found to have been a Soviet agent as Chambers had testified. So far as this author is aware, this question has not been addressed in the numerous books and articles of either Hiss’s supporters or opponents. The perspective on the case of a federal criminal defense lawyer is understandably different.
6. United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); Brown v. United States, 245 F2d 549 (8th Cir. 1957); United States v. Cross, 170 F. Supp 303 (D.D.C. 1959).
7. In re American Historical Association, et al., 49 F. Supp 2d 274 (S.D.N.Y. 1999) (granting the petition as to most of the transcripts, per Leisure, J.).
8. United States v. Hiss, No. C 128-402, Memorandum of Bondy, J. (S.D.N.Y., March 31, 1949) (holding that Hiss failed to make the showing required by Rule 6(e), that disclosure of the transcripts would reveal that grounds may exist for dismissal of the indictment).
9. Hiss v. Department of Justice, 441 F. Supp. 69 (S.D.N.Y. 1977) (FOIA “does not affect the traditional rule of grand jury secrecy codified in Rule 6(e),” per Owen, J.).
10. Edward Bennett Williams, One Man’s Freedom, 52-53 (1962).
11. Id. at 52.
12. See 140 F. Supp. at 384.
13. 140 F. Supp. at 389.
14. 140 F. Supp. at 388.
15. Id. at 389. In a perjury trial, “The issue of materiality is one of law to be determined by the court, not one of fact for the jury.” United States v. Alu, 246 F.2d 29, 32 (2d Cir. 1957). See Sinclair v. United States, 279 U.s. 263, 298 (1929) (“the materiality of what is falsely sworn, when an element in the crime of perjury, is [a question of law] for the court”). The jury that convicted Hiss was instructed by the trial court that “his testimony was material in the investigation being conducted by the Grand Jury.” (Tr. 4574). Defense counsel excepted to the instruction. (Tr. 4773).
16. 245 F.2d 549 (8th Cir. 1957).
17. ld. at 555.
19. Brown and lcardi also held that an additional essential element under the perjury statute – namely, that the tribunal questioning the witness must be a “competent tribunal” – was not proven because the tribunal had ceased to be a “competent” one when it engaged in propounding questions for the illegitimate purpose of extracting perjurious testimony. The same evidence of improper purpose that deprived the testimony of “materiality” also was used by the court to conclude that the tribunal, although lawful when established, had lost its “competency” when it undertook to question the witness for an illegitimate purpose.
20. 170 F. Supp. 303 (D.D.C. 1959).
21. ld. at 309 (emphasis supplied).
22. See Cross, 170 F. Supp. at 309-10. See also endnote 19.
23. Grand Jury Transcript, Dec. 13, 1948, pp. 4198-4200.
24. Indictment, United States v. Hiss, supra, Count I, p. 2.
25. “Q: Now, another question – I’m sure you answered it before, but I would like to ask it again – can you fix the date that you met Whittaker Chambers for the first time?” Grand Jury Transcript, Dec. 15, 1948, p. 4,486.
In his book, In the Court of Public Opinion, which was published in 1957 for the purpose of presenting legal arguments challenging the validity of his conviction, Hiss surmised (p. 197) that the repetitious questions propounded by the prosecution on the final day of his grand jury testimony were asked for the purpose of indicting him for perjury. But for whatever reason, Hiss did not cite to the 1956 decision in the Icardi case, which would have supported the claim that such prosecutorial questioning could not be the basis for a valid perjury conviction. Hiss probably would have heard or read of the decision in Icardi’s case, since Judge Keech’s ruling was publicized extensively in The New York Times and in Life magazine, and appeared “on the front pages of newspapers all over the country.” Evan Thomas, The Man to See: Edward Bennett Williams (1991) at pp. 90-91.
26. The grand jury was discharged by the court just after the indictment had been returned to the court on the evening of December 15. The New York Times, Dec. 16, 1948, pp. 1,3. According to the New York Times article, the “acting foreman” handed up the indictment to U.S. District Judge Clancy at 5:45 p.m. on December 15, and 18 grand jurors were present in Judge Clancy’s courtroom. Weinstein reports that the vote of the grand jurors was divided, but that varying accounts of the number of dissenters were given by different sources. See Weinstein, supra, at p. 624, n.75. Another author (a non-lawyer) quotes a former grand juror in the Hiss case as telling him in an interview: “Hiss’s indictment was a close vote, not a unanimous one.” Dr. Meyer Zeligs, Friendship and Fratricide (1976) at p. 362. Hiss reported in his book that only one more juror than the required majority had voted to indict him. Hiss, In the Court of Public Opinion, supra, at p. 197. [The required majority would be 12 of the 23 jurors who comprise a federal grand jury, even if only 18 were present and voting. See Rule 6(f), Fed. R. Crim. P.] Rule 6(c) provides that the official record of the number of grand jurors concurring in the indictment must be filed with the court clerk; but this record is made public only if the court so orders – and no such disclosure order appears to have been entered to date in Hiss’s case.
27. Further indication of the prosecution’s motive to use the questions to obtain an indictment of Hiss for perjury is shown by the later revelation that the prosecutor who asked these questions on December 15, Thomas J. Donegan, who was then special assistant to the attorney general, had previously been a private counsel for Elizabeth Bentley, who was one of Hiss’s accusers. See In re American Historical Society, supra, 49 F. Supp. 2d at 296-97 (S.D.N.Y. 1999) (Leisure, J.). In the successor special grand jury on espionage, empanelled December 16, 1948, Special Assistant Donegan elicited from his former client, witness Elizabeth Bentley, testimony accusing Hiss of Communist Party membership and of espionage in the 1940s. Grand Jury Transcript, Feb. 16, 1949, pp. 6317-6321.
28. In United States v. Mandujano, 425 U.S. 564 (1976), a prosecution for grand jury perjury that did not involve the issue of “materiality,” a plurality opinion of Chief Justice Burger, joined by Justices White, Powell and Rehnquist, cited, but properly found inapposite to Mandujano’s case, the Brown, Cross, and lcardi decisions. See 425 U.S. at 582-83, n.8. However, this plurality opinion mischaracterized the Brown, Cross, and lcardi decisions as “cases voiding convictions for perjury …. ” In actuality, two of these three cases, lcardi and Cross, involved acquittals of perjury, not convictions; while Brown set aside a conviction for perjury because of failure to prove all the elements of the offense.
Moreover, see Mandujano, 425 U.S. 564, 609n. (1976) (concurring opinion of Justices Stewart and Blackmun), citing the Eighth Circuit’s decision in Brown, supra, as a case of “prosecutorial conduct amounting to a denial of due process.”
In Hutcheson v. United States, 369 U.S. 599, 624 (1962) (concurring opinion), Justice Brennan cites the Icardi case with approval for the point that a congressional investigation must not be conducted for the purpose of punishment.
29. Transcript of Oral Argument, p. 75, United States v. Hiss, No. C. 128-402 (S.D.N.Y. Feb. 24,1949) (Bondy, J.).
30. The “discussion … between government counsel and the grand jury” is not contained in the grand jury transcripts that were released in 1999 by order of Judge Leisure, and quite possibly was never stenographically reported and transcribed. Prior to 1979, Rule 6(e) did not require that grand jury proceedings be recorded. See Advisory Committee Note to 1979 Amendment to Rule 6(e)(1). Hiss wrote that, much later, he had learned that in the December 15 proceedings, “Campbell exhorted the grand jurors to indict me.” In the Court of Public Opinion, supra, at 192.
31. Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969).